ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NOS.: CV-17-60647 and CV-17-63343 (Hamilton)

DATE: 2022/03/18

BETWEEN:

Robert Landry and Jennifer Spleit

Plaintiffs

– and –

Esbeit Enterprises Inc.,

Thomas Merwin and

Justin Merwin

Defendants

Brian Duxbury & Joshua Perell Counsel for the Plaintiffs

Karmel Sakran & Anastasia Linthwaite Counsel for the Esbeit

Asif Lasani & Kevin Kolumbus

Counsel for both Merwins

AND BETWEEN

332546 Ontario Inc. o/a RTC Appliances and Lee Merwin

Plaintiffs

and –

Robert Landry and Jennifer Spleit

Defendants

Asif Lasani & Kevin Kolumbus

Counsel for RTC & Lee Merwin

Brian Duxbury & Joshua Perell

Counsel for Landry and Spleit

HEARD: February 14, 15, 17, 18, 22, 23, 24, 25 & March 8 & 9, 2022

The Honourable Justice James W. Sloan

REASONS FOR JUDGEMENT

[1] If judgments had titles, this judgment could be called “The Tale of Two Properties”.

[2] The plaintiffs Robert Landry (Landry) and Jennifer Spleit (Jennifer) own 608 Upper James Street (608) in the City of Hamilton. They purchased the property in June 2016 and renovated the second floor into their residence and the main floor into a studio for teaching music and/or martial arts.

[3] Esbeit Enterprises Inc. has owned 610 Upper James Street (610) since July 31, 2001.

[4] A brief history of the properties shows the following:

a) Initially 610, 608 and 606 comprised a single property which over the years was built upon, severed and transferred.

b) 608 - On or about February 24, 1970, Colleen Lashmar and John Bell transferred 608 to Abraham and Joseph Miller. Abraham Miller died November 21, 1993, and his 50% interest passed to his wife Florence. Joseph Miller died on September 26, 1984, and his 50% interest passed to his wife Sonia Miller.

c) On June 6, 2016, the Miller widows sold 608 to the plaintiffs.

d) 610 - When Colleen Lashmar died on October 28, 1971, her surviving husband Herbert Lashmar, transferred ownership of 610 to himself and their four children. Following the death of Herbert Lashmar his ownership interest in 610 was transferred to his four children on August 31, 1977. One child, Patrick Lashmar eventually acquired 100% of the property and transferred his ownership to 477726 Ontario Limited.

e) On July 31, 2001, 477726 Ontario Limited transferred title to Esbeit Enterprises Limited.

f) RTC started leasing part of 610 on September 29, 1993. The current lease provides RTC with 5 designated parking spots.

[5] The properties were registered in the Land Titles System on September 25, 1995. Therefore, the relevant 20-year timeframe, as to whether there is a prescriptive right, would need to accrue prior to September 25, 1995.

[6] 610 is a multi-tenanted building. There is a restaurant at the front on the ground floor and RTC operates an appliance repair business from the back portion of the ground floor. RTC is owned by Thomas (Tom) Merwin and operated by him and his two sons Justin and Lee.

[7] 610 is situated on the northwest corner of Upper James and Genesee Streets. Upper James runs in a north-south direction while Genesee runs in an east-west direction. Both buildings are rectangular in shape and align in an east-west direction. They are two stories high and there is no space between them.

[8] 608 owns land behind its building footprint. Landry estimated it to be 15.5 feet deep, by 24.75 feet wide. The westerly end of 608’s land abuts land owned by 610. In essence 610’s land is L-shaped and extends to the north behind 608. To make things easier to understand and since a picture is worth a thousand words, I have attached as Appendix “A”, an old sketch/survey by Brown & Duff. (Ex. 7).

[9] The small rectangle of land (approximately 15.5’ x 24.75’) on which I have drawn diagonal lines, is the area of disputed parking privileges. It is owned by 608 and 608 wants the right and ability to park their cars there, and to encroach slightly onto land owned by 610 immediately to the west of 608’s lot line. They have purchased a Kia Soul so that when it is parked it will not hang over onto 610’s property. The Kia is 12 feet long and 5’9” wide without the mirrors. The land immediately behind and to the west of 608, is owned by 610. It is used as a parking lot and methods of ingress and egress for 608 and 606.

[10] Although they are a little bit difficult to see on Appendix “A” (Ex. 7) there are two registered rights-of-way over the land owned by 610 which is immediately to the west of 610’s building envelope. One right-of-way is approximately 15 feet wide and runs north and south along the westerly limit of 610’s property. The other right-of-way is approximately 8 feet wide and runs east and west essentially perpendicular from the 15-foot right-of-way, to the middle of the westerly limit of 608.

[11] To assist the reader with understanding the situation, I have also attached Appendices “B”, “C” & “D”. Appendix B (Ex. 4) is an aerial view of the two properties. I have written the numbers 608 and 610 on the respective buildings. Appendix C (Ex. 5) is a street view showing the back of the properties on which I have written the numbers 608 and 610. Appendix D (Ex.80) is a hand-drawn sketch showing numbered parking spots situated behind 608 and 610, on which I have written the numbers 608 and 610.

[12] The plaintiffs who own 608, claim they have the right to park their vehicles behind their building on land owned by them. The issue arises when the tenants of 610, particularly the employees of RTC claim the right to park on 610’s property, immediately adjacent to the westerly limit of 608, thereby impeding/blocking cars belonging to 608 from entering and/or leaving 608’s parking lot.

[13] This judgment may refer to witnesses by their first name, last name, or as plaintiff or defendant.

[14] I have tried to put down the salient points of each witness’s testimony as they gave it. The evidence for each witness is based on that witness’s allegations. I will summarize the evidence and detail my findings at the end of this judgment.

Evidence of Robert Landry

[15] For a short period of time after the plaintiffs purchased 608, they did not encounter any problems parking on the 608 property, however by the fall of 2016, the tenants of 610 started to interfere by purposely parking their vehicles directly behind 608, even when there were alternate parking spots available. In addition, Esbeit (the owner of 610) painted new yellow diagonal parking lines directly behind 608, without having any regard for the east-west right-of-way.

[16] Numerous photographs and videos were introduced as exhibits to show the vehicles of 608 being continually blocked in by vehicles owned by 610’s tenants, mostly RTC.

[17] Landry testified that he, his family, and his wife’s clients, including young children were frequently surveilled by one or more of the Merwins, to the point that it became very concerning to him, his family and their patrons. The Merwins also made verbal comments to the plaintiffs’ patrons, including young children while they were on the parking lot.

[18] While both parties claim the other was aggressive, Landry introduced numerous pictures to show vehicles driven by RTC/Merwins being constantly parked across the back of 608 and extremely close to the lot line.

[19] The plaintiffs only seek parking for their own vehicles (not their patrons) and have a sign displayed on the back and front of their building telling their patrons to park in the municipal lot behind the two properties.

[20] When viewing the property, the real estate listing stated that 608 came with two parking places. When they viewed the property, each realtor and the plaintiffs were able to park all three cars behind 608.

[21] In his initial discussion with Tom and Lee Merwin, Landry described them as curious and nice. He quoted them as saying, we “hope your students don’t park here, you have two spots at the end”.

[22] Issues started to arise in September 2016. The plaintiffs had difficulty getting construction material delivered to their back door and offloaded by truck crane. Landry attempted unsuccessfully to contact Esbeit.

[23] Numerous photographs were introduced as exhibits showing parking lines painted on 608 property by the plaintiffs and diagonal parking lines as previously described being painted by Esbeit. There are also numerous photographs showing cars and trucks from 610’s tenants blocking access to 608’s parking area.

[24] On or about November 9, 2016, Landry heard banging and he looked out to see several agitated men and a white van parked across the back of his property. Esbeit told Landry to come down to the parking lot and told him he was causing trouble and was a bad man. Esbeit continued to accuse Landry of painting on his property and trying to steal his land. When asked if he was threatening him, Esbeit replied “you will see”.

[25] Landry felt threatened and his wife was terrified. One of the results of this encounter, was that the plaintiffs installed an alarm and camera surveillance system.

[26] On or about November 16, Landry’s wife called him to say the men were back on their property. Landry called the police and returned home but the men had gone inside. The men had painted some of his yellow lines black (Ex. 10). They came out later pacing and smoking behind 608.

[27] A few days later, the before-mentioned yellow diagonal parking lines which had been painted on 610’s property and some of the plaintiffs’ yellow lines were blackened (Exs. 10 & 11). The diagonal yellow parking lines on 610’s property delineated three parking spots across the entire back of the plaintiffs’ property, which when used would totally block all vehicular access to the 608 property (Ex. 12).

[28] Landry encountered Esbeit again a couple of weeks later and was again accused of trying to steal his land. Esbeit also told Landry he could not park behind 608 without his permission. After this encounter, people started to park more and more across the entire back of the 608 property and Tom and Lee Merwin were rude and intimidating.

[29] The plaintiffs moved into their new 608 residence in December 2016 and commenced this lawsuit in February 2017.

[30] The defendants, mostly if not exclusively, the Merwins and a person named Mike, continued to park directly behind 608, even when other parking spots were available. This type of harassment can be seen in many exhibits including those numbered between 20 to 39. In addition, they would routinely smoke behind 608 causing some of the smoke to enter the plaintiffs’ home.

[31] A video (Ex. 32) shows Lee Merwin purposely taking great care to park both a car and a van directly behind 608. The car and van are parked very close together making it awkward to walk between them. This was done at the time when the music school was in session and other parking spots were available.

[32] In particular, Lee Merwin continually walked behind, smoked behind and took numerous photos from behind 608, of people entering and exiting 608. This includes taking photos of Landry’s father and mother-in-law when they were leaving after a visit. He described this behaviour as creepy and intimidating.

[33] Landry described holding some martial arts classes outside on his property during Covid. Lee Merwin continued to take photos/videos and make comments to him and his students. Both Landry and the students felt uncomfortable and one young lady quit his class, while an overweight male felt very uncomfortable.

[34] This persistent photography/videography by the defendants continued at least two or three times a week up to the present time.

[35] Landry also complained that 610 allowed a large truck labelled Paramount Butcher Shop to park in the parking lot for extended periods of time. The truck extends for approximately half of the width of the parking lot and therefore would have been parked on the north-south right-of-way.

[36] The five parking spots allotted to RTC in their lease are on the registered right-of-way along the western side of 610’s lot.

[37] When asked why he stated that 608 did not have any parking when he made an application to the committee of adjustment (Ex. 79), Landry answered that he filled out this application on his own with the help of the municipal clerk who told him, he would get his building permit more quickly if he said there was no parking. It later turned out that he did not need a variance to get his building permit, so the variance application was not proceeded with.

[38] He denied that he had ever been rude, belligerent too, spat at, intimidated, screamed at or threatened any of the defendants either verbally or by actions. He further denied that Lee Merwin ever told him that the door was always open.

Cross-Examination of Landry by Sakran

[39] Landry acknowledged he holds a second-degree black belt in karate and teaches karate part-time. His wife teaches English and music in the evenings.

[40] The karate students all enter by the front door and some of the music students enter by the rear door.

[41] He made inquiries with respect to parking before putting in an offer. He talked to both of the real estate agents. Also, the city indicated there was parking behind 608. He depended on both his real estate agent and lawyer to complete the transaction and acknowledged that there does not appear to be a condition with respect to parking in the agreement of purchase and sale.

[42] Landry recalls being told there were two parking spots and two parking spots appear in the listing agreement. He did not specifically raise the issue of parking with the lawyer. He saw no reason to believe that the building did not come with parking in the rear. When he visited the building with two realtors, they all parked their cars, three in total, directly behind the 608 building.

[43] At the time they saw 608 the building was vacant, and he did not speak to anyone in 610 about parking. Based on what he physically saw, what he was told and based on having a realtor and a lawyer, it seemed obvious to him, given the paved space behind 608 that parking went with the building.

[44] There was a discussion about the plaintiffs’ request to title insurance to cover the cost of a variation application, however that application became unnecessary and therefore nothing further was done with respect to title insurance.

[45] Landry confirmed that a paving contractor paved his lot in September 2016 and painted the lines three or four weeks later in October. He believes it was approximately two or three weeks after the lines were painted that Esbeit and the three men showed up and started painting diagonal parking lines on 610 land and blackening the lines he had had painted.

[46] He testified, that prior to his painting lines there were no lines or at best they were very difficult to see.

[47] He restated his evidence, that from the information he received from the two realtors, his lawyer Norm Watson and from what Tom Merwin told him, that he had two parking spots. He confirmed that Tom Merwin told him he had the two parking spots at the end of the line. In addition, he deduced that it made sense that 608 would have two parking spots from the physical surroundings.

[48] Sakran suggested Landry told the Hamilton by-law officer that an Oldsmobile owned by one of the Merwins was parked on his private property. Although the form used by the Hamilton by-law officer does use the word private property, Landry testified that all he told by-law officer was that the car was blocking him in.

Cross-Examination of Landry by Lasani

[49] Exhibit 79 which was the application to the Committee of Adjustment, was reviewed again. Landry gave the same answers to Lasani that he had previously given to Sakran. This was to the effect, that he was following advice from the municipal clerk who told him, that the best way to get his building permit as quickly as possible would be to state that he had no parking. The court acknowledges that this is hearsay.

[50] The application to the Committee of Adjustment was never proceeded with because the clerk called a few days later, indicating that the plaintiff did not need a variance to obtain his building permit. Landry confirmed that he wrote what is in the application, however he does not recall whether the clerk asked him to swear it.

[51] He was asked again about the dynamics that played out when Esbeit showed up with a white van and three men and asked Landry to come down to the parking lot. Landry essentially repeated the evidence he had given before, stating that Esbeit demanded that Landry come down to the parking lot, while at the same time the men were pacing and posturing behind 608.

[52] Landry confirmed that Esbeit called him a troublemaker, a bad man, accused him of painting on his property and accused him of trying to steal his land as he had “stolen land from the natives”. The men then surrounded him in an intimidating fashion. When Esbeit was asked if he was threatening Landry, Esbeit replied, “you will see”.

[53] It was suggested that the men were there to paint the parking lines. In reply, Landry stated they did not have any paint and they left without painting any lines. He also denied trying to dissuade the men from painting the lines by assuming a martial arts stance.

[54] With respect to Exhibit 60 which is the picture of Lee Merwin smoking a cigarette on the corner of Upper James and Genesee, Landry confirmed they did not speak and no gestures were made other than Lee waving his hand. He suggested Lee was being aggressive because he never came out to the front of the buildings. He denied the suggestion that he gave the middle finger to Lee.

[55] Landry acknowledged painting the northerly wall of the 610 building which extends past the end of his building (Appendix C, Ex 5). He gave two reasons for doing so, the first one being that somebody had painted new very gross graffiti on the wall which faced both him and the church lot. He also submitted, that if the wall was a fence he would be able to paint his side. He went on to state that he painted the wall the same colour it had been before even though he personally didn’t care for the colour.

[56] It was then suggested that the van in Exhibit 53 and the pickup truck in Exhibit 58 do not belong to the Merwins or any employee of RTC. He stated that to the best of his knowledge he was correct and if he was not correct, he had hundreds of photos showing vehicles driven by the Merwins and/or other RTC employees blocking 608’s parking spaces.

[57] Landry stated he had permission from the pastor to park on 606 lands during the day as long he did not interfere with women at the spa.

[58] He was shown a 2009 Google maps aerial image of the area and acknowledged that faint parking lines could be seen on the parking lot in 2009.

Landry–Reply Evidence

[59] Although the Merwins did not park behind 608 as often after the lawsuit commenced in 2017, they still parked behind 608 on occasion and continued to surveille the plaintiffs, their property, their clients and continued their posturing behind 608.

Evidence of Jennifer Spleit

[60] Spleit is the wife of Landry. She is 39 years of age and has university degrees in music, which she teaches on the main floor of 608.

[61] In June 2016 when they bought 608, she was approximately three months pregnant with their first child.

[62] She confirmed the evidence that Landry gave with respect to their numerous attendances at the property before they purchased it and their being able to park along with two realtor’s cars directly behind 608.

[63] Because there was significant construction going on for the first couple of months, she did not attend often at 608 until August 2016, when Landry was doing mostly inside renovations.

[64] In August she faced significant challenges trying to get in and out of the parking area behind 608 which she found very upsetting.

[65] Challenges in addition to her personally parking her car, also included getting the delivery of building materials to the rear of 608 and placing a construction dumpster to haul away waste. The original delivery of the construction dumpster had to be rescheduled after the delivery truck could not get close enough to the back of 608 to drop off the dumpster.

[66] She stated, she was concerned that if an emergency vehicle was needed, it could not get to the back of 608. In addition, her students, some with large musical instruments and some with physical challenges would not be able to access the back door of 608.

[67] She blames most of the stress she was experiencing on the owner and tenants of 610. They continually and maliciously parked directly behind 608 preventing her from accessing her parking. She testified, that as a result of this stress, her blood pressure rose to the point where she was hospitalized for five days.

[68] Shortly after her discharge, she was rushed back to the hospital for an emergency C-section. The baby was born approximately two months premature and was immediately placed in the neonatal intensive care unit where she stayed for approximately three weeks. She was also placed in an intensive care unit for three days and was unable to see her newborn daughter during that period of time.

[69] Once she was able to see her child, the child required feeding every three hours. Fortunately, notwithstanding her traumatic entry into the world, the plaintiffs’ daughter is now doing fine.

[70] Because the renovations had not been completed, the plaintiffs were staying with Spleit’s parents. Spleit blames the owner and tenants of 610 for their construction delays because they made it difficult to get building materials delivered directly to the rear of 608. She had originally scheduled the opening of her new studio for September 2016, but it had to be postponed.

[71] In addition to the parking problems caused mostly by the owners and employees of RTC, patrons of the restaurant Basha Nahas, which is located on the front of the first floor of 610 and is known by some of the locals as the Hookah Bar, also partied behind 608.

[72] During her first week of teaching classes, Justin Merwin parked directly behind her back door while remaining on 610’s property. There were other available parking places, so she asked him to move his vehicle, but he refused.

[73] Several days later while she was in the middle of giving a lesson to a 12-year-old boy, Lee Merwin burst into the studio unannounced, asking if this was a good time to talk. She told him Landry was upstairs. Her 12-year-old student was visibly shaken.

[74] In October 2016, it was always difficult to park both their cars behind 608 because there was always an “RTC vehicle” parked past the northwest corner of the 610’s building.

[75] In November of 2016, while she was teaching a student, she heard banging on 608’s rear door along with raised voices. A long white van was parked, such that it blocked off the 608’s parking and there were a number of men aggressively yelling, telling her to get Landry out there. She asked her husband to call the police. Approximately one week later the same scene played out & since her husband was not home, she called the police. The police came and left, after which the men came back out again.

[76] After the diagonal lines were painted behind the 608 property, vehicles owned/driven by RTC and the Merwins were almost always purposely parked behind 608, restricting 608’s access to their parking. When the owners/employees of RTC park behind 608, they are parking as far away from the RTC entrance door as possible.

[77] The above behaviour continued until after the examinations for discovery were held in the spring of 2018.

[78] This behaviour by the defendants made it challenging for the plaintiffs to park on 608 property, challenging for students with large instruments to access the rear door of 608, and challenging for mothers with strollers to get past the vehicles which were parked closely together (Ex. 89 B-2-67).

[79] In addition, many of her young students were frightened by having their pictures taken and being spoken to by the defendants who were grown men, as they attempted to attend their music lessons. Her students attend after school Monday to Friday between 4:00 p.m. and 9:00 p.m., with some students attending on Saturday.

[80] All her clients are told to use the municipal lot for parking. She entered as exhibits, pictures from her website, monthly newsletters and signs posted at 608’s front and rear doors, all of which advise her clients to park in the municipal lot.

[81] Spleit was also fearful to exit the rear of 608 because the men were frequently loitering there.

[82] Her trying to park on 608 property, by accessing her parking from the 606 property was not a solution and only allowed for one parking spot.

[83] In addition to their malicious parking behaviour, the defendants routinely parked on the registered east-west right-of-way.

[84] In addition, the defendants used their security cameras to spy on the plaintiffs and take pictures of their young students, including using the zoom function of the security camera (Ex.98 A493).

[85] Another form of harassment involved Lee Merwin taking pictures of her parents and others when they visited 608 (Ex. 91 B-2-147). Because of the defendants’ behaviour, the friends and family of the plaintiffs are not comfortable visiting them at 608. Lee Merwin often takes videos/pictures in addition to whatever the RTC security cameras capture.

[86] Also, men including the Merwins and their friends stand behind 608 smoking, staring and glaring. She has also been reported to the by-law officers alleging Covid infractions.

Cross-Examination of Spleit by Sakran

[87] She agreed that the land on either side of the east-west right-of-way is owned by 610.

[88] She confirmed that Lee Merwin yelled and entered the music studio while she was in the middle of a music lesson. She acknowledged that the back door was unlocked but stated that he just barged in, he did not knock or ring the doorbell.

[89] Sakran suggested that Esbeit said it was urgent, but Sakran did not ask Spleit anything about any conversation concerning the urgency.

[90] She said they attempted to contact Esbeit by calling the number on the side of 610 with respect to lease inquiries, but never got a call back. Landry also gave his business card to the Merwins and asked them to have Esbeit contact him, but Esbeit never did.

Cross-Examination of Spleit by Lasani

[91] Spleit never formally met Lee Merwin but knew who he was and sees him at the rear of their property. The Merwins’ faces appear on the side of the RTC’s vans.

[92] Initially in September 2016, there was a problem with the Merwins being a nuisance and although it was stressful, she initially did not think they were being vindictive, however, when the defendants continually blocked their parking, notwithstanding there were other open parking spots available, she concluded they were doing it deliberately.

[93] She was then asked about the 200 pages of parking logs she kept. Her response was that it was just a record of what she could see on a daily basis. She made her notation a few times a day and tried to keep track of the number of empty parking spots and what vehicles were parked where. She also stated that RTC had approximately twelve vehicles and only five parking spots.

[94] She stated, she continued to keep the parking log because she noticed there were regularly some open parking spots in the parking lot and therefore no need for anyone to park directly behind 608.

Evidence of Jordan Teperman

[95] Teperman was born in 1982. He lives in Toronto and is a lawyer and General Counsel for a land development company.

[96] Teperman is the grandson of Abraham and Florence Miller. Abraham Miller and his brother Joseph purchased 608 on or about February 24, 1970. The Miller brothers ran a textile business out of 608.

[97] As a young boy Teperman visited his grandparents store frequently, sometimes going with his mother and sometimes going with his grandparents.

[98] In the 1980’s his grandparents lived in Hamilton and both of them worked in the textile store. His grandparents and mother would always park at the back of 608 and would always enter 608 through the back doors. At that time his grandfather drove a station wagon which doubled as a work vehicle for transporting fabric and his grandmother drove a coupe.

[99] To access the parking behind 608 they drove in off Genesee Avenue. It is Teperman’s recollection that his grandparents and mother were always able to park directly behind 608. He has no recollection of them ever having any difficulty in parking behind 608.

[100] In the early and mid-2000’s he became more involved in assisting with the management/maintenance of 608.

[101] After the closure of the textile business in approximately 1985, 608 was rented to Dance Xpressions within approximately 6 to 7 months. Later Teperman prepared the leases that included a provision for parking, however he does not recall the exact terms. The tenant and some of its clients parked directly behind 608. Teperman also parked directly behind 608 without difficulty when he visited the premises.

[102] Teperman was shown one page of a lease and he undertook to check his records to see if he had the full lease or any leases pertaining to 608. He identified the one page as being part of a lease for 608 (Ex.85). The parking clause read as follows:

16. Parking: The tenant shall be entitled to the use in common with the other tenants of the Building the parking area. Parking is located at the rear of 608 Upper James Street.

[103] Because some of the tenants of 610 were loitering behind 608, Teperman intervened and had a sign erected.

Cross-Examination of Teperman by Sakran

[104] The plaintiff Landry contacted him before he purchased 608 and Teperman advised Landry that there was parking behind 608. Teperman dealt with the sale of 608 on behalf of the vendors.

[105] He confirmed that his grandparents, including his grandfather’s station wagon parked directly behind 608 on a regular basis and not just when unloading. He further confirmed that subsequent tenants also parked directly behind 608.

[106] He acknowledged that he used the middle part of the 610 parking lot to access the parking behind 608. He was not aware of any legally registered rights-of-way.

[107] When he was involved with the property, he never had any issue concerning parking with the tenants of 610.

[108] He acknowledged that 608 was listed for sale in 1993, however it was not sold until 2016. He stated that the impetus for the 1993 listing was because his mother needed money to fund her divorce lawyer.

[109] He could not recall when the lease to Dance Xpressions started, but testified that it ended approximately 6 months before 608 was sold to the plaintiffs. He confirmed that the ownership of the Dance Xpressions business changed hands and when that happened a new lease was entered into at that time.

Evidence of Florence Miller

[110] Mrs. Miller is 84 years of age and the widow of Abraham Miller, who along with his brother Joseph purchased 608 in approximately 1972. She is also the grandmother of Jordan Teperman.

[111] At the time the Miller brothers ran General Textiles out of 608, she and her husband lived in Hamilton. The store was open 6 days a week Monday to Saturday. She helped in the store whenever she was asked to.

[112] She always parked behind 608 as did her husband and he drove his station wagon there every day the store was open. Clients of General Textiles also parked behind 608 and as she put it, “there was “never, never, never a problem about parking behind 608”.

[113] When they bought 608, it was a vacant lot and the Miller brothers built the current two-story building. During the construction phase, big material trucks were there frequently.

[114] Although she did not know where the exact property line was, for the 25 years that they owned 608 they never had any problems parking behind 608.

[115] She testified that her husband Abraham would never buy a property where he could not park his own car and have deliveries made.

[116] After her husband’s brother died the textile business was wound down and the property became owned by her and her sister-in-law Sonia. She never had any problem renting the property and the tenants always parked behind 608. There was no parking on Upper James Street.

[117] She never received any complaints from the tenants about parking.

Cross-Examination of Miller by Sakran

[118] She does not know Mr. Lashmar. She does not know who owned 610 but knows they never gave 608 any problems.

[119] In response to a suggestion from Sakran, she testified, that if her husband had made any parking arrangements with 610, he would have told her about it and he did not.

[120] She stated she would know if anyone complained about parking after 1985 and no one did. She is absolutely positive about being able to park behind 608.

[121] After they closed the business, they moved to Toronto and had no problem renting out 608. From 1985 to 1999 her husband dealt with the tenants and rentals. Although she does not know the exact name of the tenants, in response to a suggestion, she stated that they never had a one-year vacancy. The only time she can recall it being vacant was for a few months before it was sold in 2016.

[122] When the property was sold in 2016, her grandson Jordan Teperman dealt with the real estate agent. It was her recollection that before then, Jordan did very little because he was just a kid.

Evidence of Trina Nadeau

[123] Nadeau has known Jennifer Spleit for ten years. She is musical and taught part-time at the plaintiff’s music studio, both before and after it moved to 608.

[124] She is also a mother and resides in Kitchener Ontario. Since the renovations were behind schedule, she offered to help out and continued to assist after the renovations were completed. She would stop to unload her instrument behind 608 and also used 606.

[125] Although she does not know their names, she described men hanging around behind 608 smoking. It was her information that they were tenants of 610, i.e. neighbours.

[126] She described an incident of her leaving by the rear door of 608 carrying her cello and another bag, trying to get to her car which was parked behind 606. It was dark and a vehicle was blocking her access. She was verbally accosted by a man she described as angry and agitated, who told her she should not be parking there.

[127] She asked him to move his vehicle, however he said he would help her leave but he would not move his vehicle.

[128] It was dark, icy and snowing and she felt nervous, scared and very unsafe being in the presence of this angry man, however she had little choice and proceeded to leave slowly.

[129] She did not go back to 608 for a long time, because she did not want to be caught in that angry man situation again. She stated it would be very awkward and somewhat dangerous to try to manoeuvre her heavy expensive cello down the sidewalk and in through the front door of 608.

[130] She noticed that numerous times, vehicles were being parked behind 608, making the plaintiffs’ parking extremely difficult. She also saw the plaintiffs’ yellow lines had been painted over with black paint.

Cross-Examination of Nadeau by Sakran

[131] She acknowledged that she does not know where the property lines are and assumed the angry man was a tenant of 610. In any event, she said whoever the man was, he usually parked behind 608.

Cross-Examination of Nadeau by Kolombus

[132] She acknowledged she did not know the Merwins and the events she was testifying to, took place five years ago.

[133] She confirmed that the man was angry because of where she parked, which was behind 608. The man assisted her with backing up and she left 608 through the parking lot.

Evidence of Oswin Spleit

[134] Oswin is the father of Jennifer Spleit. When he would visit 608, he parked in the municipal lot. When he came to pick up his granddaughter, he would stop behind 608, leave his car running and go to get her. He estimated this would take between 5 to15 minutes.

[135] On one occasion he encountered Lee Merwin and on other occasions would see him taking photos/videos of him and his granddaughter when they exited or entered his car.

[136] On one occasion, after picking up his granddaughter and strapping her into her car seat, he noticed a note on his windshield. He took the note off his windshield walked over to Lee Merwin’s truck and placed note under the truck’s windshield wiper. At the time Lee Merwin were standing outside his truck and the open truck door was between the two men. He told Merwin not to touch his car ever again. He estimates the two men at their closest, would have been separated by approximately two feet in addition to the truck door.

[137] The police were called and after some discussion the police told Oswin that Merwin had issues and it was best to avoid him. Although this is hearsay no objection was raised.

[138] He thought it was odd that the tenants were involved in the parking dispute rather than it being resolved by the owner of 610.

[139] The Merwins continued to take pictures or videos of him when he would pick up his granddaughter.

[140] Exhibit 49 is a video of Lee Merwin putting a note on the windshield of Oswin’s car. The car was not bothering Lee and there were other parking spaces available on the lot.

[141] He denied the suggestion that he said something to the effect of “if you do that again I’ll break your fingers.” He further stated he would never say such a thing with his granddaughter in the vicinity.

Cross-Examination of Oswin Spleit by Sakran

[142] Sakran suggested there should have been audio along with the video, but none was played for the court and Oswin was not aware of whether there was or should have been audio or not.

[143] He confirmed that he did not know exactly where the property line was or anything about historical parking.

Cross-Examination of Oswin Spleit by Kolumbus

[144] Oswin stated that he did not know Justin or Tom Merwin except from their pictures on the side of the company vans. He stated that the van door was already open as he approached Lee’s van to place the note under the windshield wiper.

[145] He again denied threatening to break Lee Merwin’s fingers and further denied that he was yelling or screaming.

[146] There was no reply evidence.

Evidence of Ilona Spleit

[147] Ilona is Oswin’s wife and Jennifer’s mother. She drives a vehicle many times to 608 to pick up her granddaughter.

[148] She was surprised and concerned about the man in the parking lot taking video/pictures of her and her granddaughter. They seem to be in the parking lot constantly and are constantly taking pictures/videos of them when they are there. She confirmed, that other than stopping to pick up or return her granddaughter, they use the municipal parking lot if they are staying longer.

Cross-Examination of Ilona Spleit by Sakran

[149] She confirmed that she did not know where the property lines were, but understood that the previous tenant, a dance studio had parking behind 608.

Cross-Examination of Ilona Spleit by Kolumbus

[150] She does not know and did not engage with any of the Merwins.

[151] No reply.

Evidence of Michael Van Velden

[152] Van Velden is a tradesman and Robert Landry’s half-brother. He helped with the renovations at 608. He drove his vehicle to 608 but used the paid parking to keep his vehicle out of the parking lot during construction.

[153] He described one occasion when Landry had gone to pick up material and several men started to paint parking lines behind 608. He cautioned them about getting paint on Jennifer’s car but was told to mind his own business. He did not raise his voice but felt uncomfortable when the men became confrontational.

[154] He called Landry who told him to take a few pictures, which he did, and then he went back to work.

[155] He thought the parking behind 608 was for 608’s use.

[156] He denied making any gestures towards the man or spitting at them. From his perspective the men were intimidating, so he removed himself from the situation.

Cross-Examination of Van Velden by Sakran

[157] He described the men as being upset and that they used obscene and vulgar language and mentioned parking infringements. He described them as waving their arms around and puffing up their chests. From his perspective they did not need to be hostile, and they did not know who he was.

[158] He does not know where the property lines are or anything about the historical parking.

Cross-Examination of Van Velden by Kolumbus

[159] He does not know any of the Merwins and only spoke to the men about the lines.

[160] On other occasions they made him feel uncomfortable by taking pictures/videos of him when he came to 608.

[161] No reply.

Evidence of Christabel Pinto

[162] Pinto has known Jennifer Spleit since she was born. She is a piano teacher and music director and works periodically for Jennifer.

[163] In 2016 and 2017 she was told to park behind 608 when she came to work, but she could not because of large RTC vans which blocked off access. She therefore had to park in the municipal lot.

[164] She did not feel safe behind 608 because there were always guys standing around when she was there, and she thought it was creepy that they were taking pictures/videos of her.

Cross-Examination of Pinto by Sakran

[165] She does not know where the property line is or anything about historical parking, but she was told that the plaintiffs had two parking spots and was told to use one.

[166] She confirmed she felt uncomfortable walking past the men to enter the rear door of 608.

Cross-Examination of Pinto by Kolumbus

[167] She does not know any of the Merwins.

[168] No reply.

Evidence of Christine Davidson

[169] Davidson resides near Pincher Creek, Alberta. She was in Hamilton in April 2018 to attend her mother’s funeral.

[170] She and her husband simply wanted to drop off a playpen when they were in Ontario and drove to the back of 608.

[171] When they arrived, someone was jumping around taking pictures of them. She said something to the effect of, “hi how are you?” But got no reply.

[172] She was scared and thought it was creepy. She was happy that her husband was there at the time.

Cross-Examination of Davidson by Sakran

[173] When she asked the plaintiffs what was going on, they simply said that is the neighbours and shook their heads.

[174] They never went into 608, they simply dropped off the playpen.

Cross-Examination of Davidson by Kolumbus

[175] She does not know any of the Merwins. They stopped quite close to the back stairs of 608 and she does not remember any other vehicles.

Evidence of Cameron Urbanak

[176] Urbanak is a carpenter by trade and assisted the plaintiffs with their renovations five days a week throughout the summer and fall of 2016.

[177] On numerous occasions men from 610 came over to see who was parked behind 608. On one occasion the owner of 610 and a group of men yelled at Urbanak to get Landry which he did.

[178] Landry proceeded down the back stairs where the men surrounded him and became quite aggressive.

[179] There was no cross-examination.

Evidence of Radoslaw (Radek) Kubat

[180] Kubat took martial arts lessons from Landry. During Covid they tried to do some training outside behind 608, close to the back stairs. On one occasion in the early spring of 2021, a RTC van pulled in behind 608 and was pointing directly at Landry and Kubat. The driver took out his cell phone and started recording them. Kubat is not sure, but thought the van was running at the time.

[181] Kubat was trying to learn a new move and was feeling self-conscious and very uncomfortable.

[182] Not much cross-examination or reply.

Evidence of Tammy Love

[183] Love currently lives in Parry Sound. She used to live in the Hamilton area until 2018. Her oldest child started music lessons with Jennifer approximately 10 years ago.

[184] When the music studio moved to 608, she would try to drop her children off behind 608, however it was often cumbersome to get in and out the parking lot. Work trucks were parked somewhat haphazardly, which made it hard to stop and turn around.

[185] She recalls one instance when two trucks were not properly parked in designated parking spaces and three men were standing around a white work truck. She was simply trying to drop off her oldest daughter, when one guy kept waving his arms and motioning to her. She was freaked out and because she could not turn around to exit the parking lot going frontwards, she had to back out of the parking lot.

[186] She described the men as waving their arms and using rude and abrupt actions. The men attempted to approach her vehicle, but she did not want to engage with them. One of the men was yelling and she felt intimidated, awkward and very uncomfortable. She did not want her children to be affected by these men in uniform.

[187] On several occasions when she tried to drop her children off, men in uniform would be in the parking lot monitoring her and her children.

Cross-Examination of Love by Sakran

[188] Love stated she only wanted to get to the back door of 608 to allow her daughter to enter the studio with her instrument. If the vehicles had been parked properly it would have been no problem for her to drive in, let daughter off, turn around and leave facing forward. At no time was she parking, she was only stopping.

Cross-Examination of Love by Kolumbus

[189] She does not know any of the Merwins. She described the men waving their hands as loud, rude, abrupt and intimidating. Although she does not recall what words were said, their hand gestures were angry, as if she was not supposed to be there.

[190] Under the circumstances she was not going to open the window of her vehicle with her children in the car. As a parent she only wanted to drop off her child.

Reply

[191] At all times when she was there, there were several parking spots available.

Evidence of Sarah Jussila

[192] Jussila owns the dance studio Xpression Creative Dance which used to operate out of 608. She started going to 608 in approximately 1997 as a 12-year-old student and later became an instructor. In 2010 she took over the business.

[193] Before 2010, the dance teachers and receptionist always parked behind 608. It did not seem like they ever had any parking difficulties, and she was not aware of any.

[194] When she took over the business in 2010, she assumed she had two parking spots directly behind 608 and two other spots for a total of four. She always parked directly behind 608 for the approximate 5 ½ years that she operated the studio.

[195] On the odd occasion, a white truck would park behind 608, however when she asked them to move it, they always did. There was very rarely any parking problem and she and her staff usually used three parking places.

[196] She cannot recall if parking was a term of her lease, but recalls Jordan Teperman telling her, she had two parking places behind 608 and two parking places across from that. She left 608 in 2016.

Cross-Examination of Jussila by Sakran

[197] She did not know 610 owned the parking lot behind 608. When she owned the studio, most people including herself entered through the front door. Her business operated after 4:30 p.m. and the parking lot was never busy. She recalled the owner of 610 as being nice and respectful.

[198] No other cross-examination or reply.

Read in Evidence of Esbeit by the Plaintiffs

[199] The plaintiffs read in a small part of the of the examination for discovery of Esbeit, Lee Merwin and Justin Merwin. The read ins effectively said, that Esbeit was aware of the registered right-of-way and that he did not warn the plaintiffs not to park behind 608.

[200] Lee Merwin owns an Oldsmobile automobile bearing license plate number BWXD 465 and he was the person driving the Oldsmobile and RTC van in the video dated January 26, 2017, in which he positions the two vehicles directly behind 608 and very close together.

[201] Justin Merwin drives a grey vehicle with a roof rack from time to time.

Evidence of Hicham Esbeit

[202] Esbeit owns 610 through his holding company and purchased it on or about July 31, 2001. He renovated the property including constructing three residential apartments on the second floor, one of which his family lived in. Initially RTC had most of the first floor and later when they moved to the back of the first floor, he opened a restaurant in the front until about 2006.

[203] He was quite emphatic that the small portion of land 608 owns behind its structure, was only meant for use as an emergency exit and it could not be used for parking.

[204] When he bought 610, it was his understanding that 608 had the right to park in parking spots 7 and 8 on Exhibit 80 (Schedule D), because they could not park in front of the emergency door.

[205] It was his understanding that 608, notwithstanding the emergency exit could take items into and out of 608 through the emergency exit.

[206] He acknowledged knowing Jussila and that she could park in parking spots 7 and 8. He further indicated that people who parked there, always walked around to the front door to enter 608.

[207] The parking lines shown in Exhibit 8 were in existence when he bought 610. He thought the right-of-way was down the middle of 610’s parking lot in a north-south direction. He knew the right-of-way was so 604, 606 and 608 would have access to their properties, however he said the access to 608 was only for loading and unloading.

[208] He testified, that before 2016 when the plaintiffs purchased 608, there had never been an issue with respect to parking. He complained that the plaintiffs, their friends and their family no longer use the front door and that they made the back door the main entrance. He said the parking problems were all the plaintiffs’ fault.

[209] He further stated that he would have no problem letting the plaintiffs use parking spots 7 and 8, but was quite upset because Landry paved a small portion of his lot when he repaved land behind the 608 building. In addition, Landry also painted lines on 610’s property. He was quite agitated when he gave this evidence.

[210] He acknowledged blackening some of Landry’s lines and repainting parking lines behind 608, but only on 610’s property. Esbeit accused Landry of being rude and a tough guy and stated that Landry should have contacted him. He accused Landry of showing up like he wanted a fight, even though all he was doing was correcting the parking lines on his property. He accused Landry of threatening to sue him on this occasion.

[211] He said Landry came on like a tough guy, called the city by-law officers weekly, and bothered his tenants. He stated that on one occasion in December of 2016, after RTC got a parking ticket, he had to go down to the by-law people to have it rescinded. In his opinion that is when everything started to go bad.

[212] He complained that the plaintiffs wanted their clients and parents to be able to park on his lot.

[213] He complained that he never got a call from the plaintiffs and that the number on the sign on the side of his building is not his phone number.

[214] He only met Landry on one occasion. He denied barging in while Spleit was giving a music lesson and stated he would never do that.

[215] He does not recall any of his tenants telling him that the plaintiffs wanted to talk to him, and although he recalls telling the Merwins to let everyone park where they wanted, the Merwins kept complaining about the parking problems.

[216] Esbeit never took any pictures or videos. The garbage bin which at one time was in the southwest corner of the parking lot, was there for the restaurant but has been gone for a long time.

Cross-Examination of Esbeit by Lasani

[217] There were no parking lot issues until the plaintiffs bought 608 and created the problem.

[218] Esbeit wants the plaintiffs to access their building through the front door.

[219] The problem started when Landry paved and painted lines on 610’s property when they already had parking at spots 7 and 8.

Cross-Examination of Esbeit by Duxbury

[220] Esbeit has no knowledge of the parking behind 608 prior to his purchase of 610 in 2001.

[221] The large Paramount Butcher Shop truck that is blocking the north-south right-of-way (Ex. 63) belongs to one of Esbeit’s companies.

[222] End of Esbeit’s witnesses.

Evidence of Thomas Merwin

[223] Thomas Merwin (Tom) is 68 years old, the owner of 332546 Ontario Inc. o/a RTC Appliances and the father of Lee and Justin Merwin. He wanted to retire at 65 but could not because of this court action, which is interfering with his son’s abilities to finance his buyout.

[224] He moved his company to 610 in 1993, at which time he signed a five-year lease with Lashmar that included three designated parking spaces. Parking was increased to five spaces in 1998. The designated parking spaces are on the westerly boundary of 610’s lot. He identified Exhibit 80 which is a parking sketch (Schedule D).

[225] Currently there are no specific directions from the landlord about where to park. His company still gets five parking spots and the remainder are on a first-come, first-served basis.

[226] They have always considered the right-of-way to be in the centre of the parking lot in a north-south direction.

[227] His first interaction with Landry was a brief discussion in the parking lot. It was essentially a wave and Landry mentioned how few parking spots there were. His second interaction was during the renovation of 608, just before the construction bin was placed behind 608. In their third interaction, Tom told Landry that he was not entitled to any parking spots.

[228] In 1993, he said the tenants of 608 sometimes parked at the back of 608, but 608 was not usually open at the same time his company was open.

[229] Between 2000 and 2005, if a car was left parked in the parking lot for two to three days, they would place a note on its windshield explaining, that the parking was for the tenants of 610 and if they had any questions, they were to come to RTC to get an explanation.

[230] Between 1999 and 2016 they did not have any parking issues with respect to 608.

[231] He never spoke to Jennifer, however he recalled one conversation with Landry, about Landry going to put flowerpots behind 608. Although the discussion was cordial, it ended with Landry saying something to the effect, that Tom did not know who he was or what he could do.

[232] Tom next described the snow shovel incident, saying he got hit from behind by Landry’s snow shovel after which he turned around and said, “sorry.” He suggested that Landry purposely hit him because he had to walk 50 or 60 feet towards him, to come in contact with him.

[233] He described another incident when he was told by Landry that he could not park behind 608.

[234] From a monetary point of view, he testified that he had to buy two parking passes two years ago at $65 each per month. He also had to buy two more parking passes at the same cost last year and is on a wait list for two more passes which would bring his total to six. He blamed this entire expense on the owners of 608.

[235] Tom testified that if his lease did not include the five parking spots, his company could not stay at 610. He acknowledged that there is no monetary amount set out in the lease for his five designated parking spots.

[236] He testified that no one related to RCT in any way, has parked behind 608 since they were served with the court action in February 2017.

[237] From his perspective the parking situation is not good, and they have five technicians, four of whom are out at any time. They all used to come in at the same time in the morning to get their instructions, however because of the lack of parking they cannot all come in at the same time and they now have a scheduling nightmare.

[238] He acknowledged that the parking had not been a problem during Covid.

[239] In response to the suggestion that the plaintiffs said there are usually empty parking spots, he replied that vehicles move all the time and therefore visual availability depends on the timing of the picture.

Cross-Examination of Thomas Merwin by Sakran

[240] He denied being aggressive towards the plaintiff Landry and said he did not have an unfriendly interaction with him

[241] During the incident involving the painting and blackening of parking lines, Tom testified that Landry came in, there was a loud discussion and Landry provoked Esbeit by getting right up close to Esbeit, in what he described as, being in his face.

[242] He said that either he or one of his sons would have called Esbeit about the lines being painted.

[243] He described Esbeit as professional and business like.

Cross-Examination of Thomas Merwin by Duxbury

[244] He told Landry that he had no parking spots and no right to park behind 608. He also told Landry he could not put flowerpots behind 608, because he did not own any property there.

[245] With respect to the video (Ex. 40) showing Lee moving a van and a car and parking them close together behind 608, he said Lee was making room for another vehicle and he could not recall if Lee had blocked in Jennifer’s car.

[246] He acknowledged calling a by-law officer because he was authorized to do so by Esbeit the owner of 610. He also called Esbeit.

[247] He acknowledged taking some of the pictures that have been made exhibits, but stated that he did not make any recordings off of RTC’s security cameras, including the one showing Jennifer and her students walking in the parking lot. He said that Lee or Justin would have made/downloaded those videos.

[248] He stated that they were advised to take pictures of their interactions with the plaintiffs for the court action.

[249] With respect to the snow shovel incident, he denied he was backing up and said he was moving forward. He stated the video shows Landry putting the shovel in his right hand so it would strike him as he was passing him on the sidewalk.

[250] He is not aware that Landry ever came into the RTC store.

[251] With respect to the couple of months of construction at 608, Tom suggested there were one or two workmen from time to time, which he equated to four extra vehicles.

Reply by Lasani

[252] Tom only called the by-law officer once and it was before the court papers had been served.

Evidence of Lee Merwin

[253] Lee is 39 years old grew up in Hamilton, attended Dalhousie University for philosophy for one year and has taken several technology/computer courses.

[254] He suffered a significant back injury which has left him with chronic pain and what he described as a degenerating back.

[255] He currently works for RTC repairing appliances in people’s homes and he and his brother wish to purchase RTC from their father.

[256] He produced a sketch (Ex. 106), which he penned just before trial. He acknowledged that it is not to any scale. Notwithstanding the lack of scale, the sketch generally represents his understanding of 610’s parking lot. Approximately 6 years ago the barricades behind 606 were removed so that traffic can now go from 606 into the municipal parking lot.

[257] As a child he recalls a lady parking behind 608 and then walking around to the front door. He understood she parked behind 608 with his father’s permission.

[258] Without saying much more, his recollection was that 608 was unoccupied. He also testified that on some occasions students from Mohawk College used to use the parking lot.

[259] He does not recall any neighbour problems until the plaintiffs moved in in 2016.

[260] He first saw Landry in approximately June 2016. He saw him measuring 610’s land which he found puzzling, but there was no further engagement at that time. He did not know that 608 had been sold until he saw work trucks there.

[261] He recalls a construction dumpster being placed on 610’s property behind 608 in late June or early July 2016. He testified that a significant amount of 610’s parking was used for construction people. He stated that his father who was a gentleman, had no objection because he understood the renovation was short-term and RTC would simply work around it.

[262] He then testified, that the dumpster was brought in and they did not know how long it would be there.

[263] He stated that the dumpster was placed on parking spots 6 and 7 (Ex. 80) for two weeks.

[264] On one occasion while Lee’s car was parked beside the bin, Landry told him it was foolish to park there because it might get damaged. He was unimpressed by what Landry said, but admitted he was correct. Lee responded that the dumpster was on 610’s property and he may have said, “be careful of my car”.

[265] He denied ever telling Landry that he had two parking spots at the end of the lot. This was not a heated interaction but also not super friendly.

[266] Over the first three or four months of the plaintiffs’ ownership of 608, there was a significant increase in the vehicular traffic using 610’s parking lot, in addition to the construction dumpster.

[267] Although he was not there 24/7, he estimated that one third of 610’s parking lot was being used by tradesmen working at 608.

[268] After the dumpster was gone there was less congestion, however the plaintiffs’ vehicles were being parked on 610’s property day and night.

[269] He started taking more pictures/videos towards the end of 2016 because matters were going negative. After a discussion with Landry, he concluded that Landry felt some of 610’s land belonged to 608. He concluded that this was the plaintiffs’ plan going forward, since the renovations were done.

[270] One of his first photographs shows where the plaintiffs paved part of 610’s property and painted parking lines on it. The disagreements heated up in November and December 2016 and remained heated in January and February 2017. Lee decided to take more pictures/videos for proof of 608 using 610’s land as their own.

[271] Lee knew that he and Landry did not see eye to eye, so RTC installed security cameras because videos don’t lie. With the security cameras, he could check certain events which were brought to his attention and other issues such as the piling of snow from 608’s land onto 610’s land.

[272] After service of the statement of claim, he tried not to take pictures/videos using his phone.

[273] He was not purposely taking pictures of children, but was taking pictures of musical instruments to show that the persons using the parking lot were associated with 608. With respect to the issue of the plaintiffs shoveling snow while their child was playing outside, he stated, the issue he was trying to capture was that the plaintiffs were piling significant snow on 610’s parking lot thereby decreasing the number of parking spots.

[274] With respect to the children walking to the school bus, he stated that he was not present, did not talk to the children and simply wanted to show that people associated with 608 were using 610’s parking lot. The video images were captured by RTC’s security camera.

[275] He did not know Jennifer was pregnant in 2016 and never spoke to her prior to the birth of the plaintiffs’ child.

[276] He denied “barging” in on Jennifer while she was teaching a music lesson, or being rude in any way. This incident occurred after he took pictures of the paving and parking lines. He recalls it being cold and he was not wearing a jacket. He was simply trying to stop the issues from escalating. He simply went as one person to talk to another person. He described himself as being very polite, keeping his distance from Jennifer and he spoke in soft tones. He said hello, apologized and told her he wanted a chance to talk, and she told him to go upstairs and talk to her husband which he did on the outside fire escape.

[277] Landry got his coat and came outside. The two men spoke for 20 to 30 minutes. He told Landry that he did not represent Esbeit but could try to talk to him. At the end of the conversation, Lee felt Landry was closed off to any resolution that did not allow him exclusive use of some 610 property.

[278] He thought he was the first one to tell Landry that he had no parking spots and he did it in a nice way, however throughout the trial he has learned that Landry already knew he had no parking lots, because he filled out a variance application for the city stating that he had no parking spots.

[279] At this time, because he was only the son of a tenant, he asked Esbeit for help and Esbeit hired contractors to repaint the parking lines. Lee assisted the painting contractor by moving vehicles. When the area behind 608 was being painted he was approximately 20 feet away. He watched Landry come out and stand on 610 property. Landry stood in the workman’s way using forceful body language including spreading feet and raising hand to prevent them from finishing their work.

[280] Approximately two weeks later Esbeit came back to finish the job and Lee was the one holding the cardboard to protect Jennifer’s car from overspray.

[281] He did not know Esbeit was coming that day. While standing by the RTC door he heard raised voices particularly Van Velden. Although he could not make out everything that was said, it had something to do with concern about getting paint on Jennifer’s car. It was a windy day and that was when Lee got cardboard from the garbage bin. From Lee’s perspective he was simply trying to prevent a future problem.

[282] During the painting Van Velden was on the fire escape and Lee accused him of spitting at them and proclaiming that the plaintiffs owned some of 610’s property. He did not call the police although the plaintiffs may have.

[283] On December 9, 2016, Lee received a parking ticket (Ex. 83) which said his car was parked on property owned by 608. Since this was not true, he and his father got the ticket rescinded two or three days later.

[284] With respect to the note he left on Oswin’s car windshield, he said it was the same historical note they leave on every car that is not supposed to be parking in 610’s lot. He said the car in question habitually parked on 610 property and often not between the parking lines. Although he is not there 24/7, he noticed this particular car being parked in the 610 lot on several occasions.

[285] Lee put the note on Oswin’s car, went to RTC and came back out to his van to get a tool through the trucks sliding side door. While looking for the tool he saw Oswin coming towards him. Having regard to his back problem he thought the situation was dangerous and that he might be harmed, so he opened the passenger door and braced his leg against it. Oswin came over, lifted the windshield wiper of the van and slammed it down on the note.

[286] Lee accused Oswin of saying something to the effect, “if you touch my car again, I will break your fingers”. Oswin then left, got into his car and drove away.

[287] Lee was shaken and walked over to a lady standing in the lot at 606. Although he did not know her personally, he knew she was a hairstylist. The lady asked if Lee was okay and stated that what took place was kind of weird and that Lee was not being alpha. Lee persuaded her to give him a note of what had just transpired.

[288] Lee then called the police to complain about the threat.

[289] Lee was then shown Exhibit 59. This is a video which essentially shows him walking in the parking lot in one direction and then returning in the other direction. In answer to a suggestion that he was glaring and obsessing in Landry’s direction, Lee responded that his demeanor on the video was simply neutral. He also said that Jennifer’s car was parked on 610’s lot.

[290] Lee was then shown Exhibit 60 which is a picture of him smoking at the corner of Upper James and Genesee. It was suggested that he was staring and waving at Landry. Lee’s reply was, that he had heard a loud noise and walked to Upper James to see what was going on. There he saw Landry using some equipment and he did not say or do anything. In response to Landry giving him the finger, he simply waved back.

[291] Lee was then shown Exhibit 104 which is a picture of the 610 parking lot after a snowfall. He said the picture represents the fact that 608 shovels snow from their property onto the 610 parking lot, specifically parking spot 6, thereby reducing the number of spots for other 610 tenants to use. Even when spot 6 is not completely filled with snow, it forces any car trying to park there, to encroach on the right-of-way. He also said that since the lawsuits started, most tenants of 610 do not park north of the 610 building line.

[292] Lee also testified that 608 shovels snow onto the cars of the tenants of 610, including his own. He described one incident where he was sitting in his car and Landry shoveled two or three shovelfuls of snow onto his car while he was sitting in it. He simply locked his doors and drove away slowly.

[293] Lee was then shown Exhibit 108 which is a video of Landry and a client performing martial arts exercises outside behind 608. Lee took this video from the RTC security camera footage. He testified, that what was happening behind 608 was illegal because it was in contravention of the Covid rules at the time.

[294] In January 2021 he could hear yelling, karate noises and punching bags being hit. He noticed Landry and one of his students sparring. While they were mostly on 608 property, they would sometimes encroach up to ten feet onto 610 property (Ex. 108).

[295] Lee was then shown Exhibit 74 which is a video that he took. It shows Landry and Kubat doing martial arts exercises behind 608. Lee commented that both of the plaintiffs’ businesses were operating in contravention of Covid restrictions. He said there was a car between his car and Landry and Kubat while he was taking the video.

[296] Lee testified that the following exhibits show the following transgressions of the plaintiffs:

a) Exhibit 30 - Lee testified the yellow line is the lot line between 608 and 610. He said Jennifer pulled her car in, in a north-south orientation from 606, therefore she could pull out by simply reversing back onto 606. Based on this logic, he said, by RTC parking in spots 6 and 7, Jennifer’s vehicle was not blocked in.

b) Exhibit 53 - Lee testified that the vehicle behind 608 does not belong to RTC or any of its employees and to the best of his knowledge does not belong to any other tenants of 610.

c) Exhibit 58 - Lee testified that the black truck in this picture, while similar to a RTC vehicle, is not an RTC vehicle.

d) Exhibit 65 - This picture was taken before the lawsuit and shows that two thirds of Landry’s truck is parked on 610’s property. Although this still happens, the plaintiffs have purchased a shorter vehicle.

e) Exhibit 110 - Lee took this picture to show an attendee at 608 (Oswin) parking on 610’s property.

f) Exhibit 111 - Lee took this picture to show an attendee at 608 parking 100% on 610’s property and perpendicular to the parking lines.

g) Exhibit 112 - This shows Landry’s truck parked on the right-of-way and was taken before the lawsuit. It stayed there for at least half an hour. The parked truck is preventing Lee’s car and two RTC vehicles from moving.

[297] He stated that RTC never did maintenance on their vehicles in the 610 parking lot, although they would check their oil levels and top up their washer fluid.

[298] He described the Nadeau incident as him trying to help her turn around in the parking lot. He said with darkness and snow, it can be difficult to do what he described as a three point turn in the parking lot. He saw someone struggling and held out his open hand in a non-threatening manner to help guide her out of the parking lot. He stood behind her car and used hand motions to guide her. He described her driving as cautious and not very skilled. He does not recall being asked to move his car.

[299] He does not recall the Love incident and stated that he never intentionally acted in any way to upset people. He does not hold third parties responsible for what the plaintiffs did.

[300] In closing he said he really wants this trial to be over so his parents can rest and retire. He is only the son of a 610 tenant and never intended to make any problems. He will be part of the solution and will abide by whatever order this court makes. He stated his family never wanted this and the trial has taken everything to a whole new level and the longer this is put off, the longer 608 keeps using 610’s property.

Cross-Examination of Lee Merwin by Duxbury

[301] He started full-time with RTC in the summer of 2016.

[302] The top of his sketch (Ex. 106) is oriented to the north and the sketch is not to scale.

[303] The first time he noticed Landry, he saw someone measuring parts of the 610 parking lot. He was curious and at some stage recalls telling the plaintiff that he did not have any parking spots.

[304] He took pictures and videos to accurately track problems, so no one would have to depend on anybody’s memory. He agreed that 608’s use of 610’s land has become a focal point for him, notwithstanding he is only a son of one of 610’s tenants.

[305] He acknowledged producing/downloading videos of the plaintiffs and their daughter from the RTC security cameras. He agreed one of the videos showed Landry and his daughter playing behind 608 among other things.

[306] He acknowledged producing a screen capture of Jennifer and her students in the parking lot. He zoomed in on Jennifer, so it was clear that she was in the video.

[307] He testified that the video cameras feed into the RTC shop, to an area where no one regularly works.

[308] It was suggested that he produced 170 pictures and videos from late 2016 to 2021. His response was that he stopped videoing by phone and produced the other pictures and videos from RTC’s security camera footage.

[309] He was shown the video at Exhibit 59 in which he walks in and out of the video. When asked about his demeanour by his counsel, he answered that what he did might be interpreted negatively by the plaintiffs but that would simply be human nature. He further stated that his family was getting sued.

[310] He denied the suggestion that he would walk behind 608, stands there and stare. He acknowledged that he would walk behind 608 and sometimes take pictures. He stated, he would walk in the parking lot to go to his truck to get tools etc. and his eyes would be open and sometimes he would take pictures.

[311] He commented on the September 6, 2018 video (Ex. 61), which he said was taken the day after the Exhibit 59 video. It shows Lee walking behind 608 over to 606. He stated that he was not sure whether or not his journey on this occasion was work-related and further commented that no videos or pictures were being taken.

[312] Lee was next shown Exhibit 48 where he and another man are smoking/vaping beside a van behind 608. He said it was very rare that they would smoke behind 608. He acknowledged that he knew the plaintiffs lived in 608. When asked why they would not smoke closer to Genesee Avenue, he stated that on this occasion, they were examining the work truck and discussing the best way to run the wiring for the truck’s backup camera.

[313] Exhibit 64 is a video taken from the window of an RTC van by Lee. It shows Jennifer’s parents getting into their car which is parked behind 608. Lee got out of his vehicle leaving the door open and took pictures which included Jennifer’s parents and the back of their car. Lee testified that he did not know who the people were and was merely taking a picture of the license plate of the car. Ex. 91 is a photograph of the same event.

[314] Exhibits 17, 18 and 20 all show Lee’s silver car parked in spot 6.

[315] Lee was next asked about Exhibit 22 which is a picture of a grey station wagon which looks like it is backing up and there is a person standing behind it. Lee stated that he was in the parking lot for work-related reasons when he noticed a vehicle having trouble maneuvering. He did not know who was in the car and simply went over to try to assist the driver to manoeuvre her way out of the parking lot. He agreed that the driver may have subjectively felt uncomfortable. It was dark, a little snowy and the parking lot was tight to manoeuvre in.

[316] Exhibit 31 shows Lee’s car and a RTC van in parking spots 6 and 7, but Lee disagreed that this impeded access to 608. Exhibit 36 shows Jennifer’s vehicle parked between Lee’s vehicle and a RTC van, however Lee denied that it would have been difficult for Jennifer’s vehicle to leave.

[317] In Exhibit 44, Lee’s vehicle and a RTC van are parked in spots 6 and 7, while Jennifer’s car is parked in a north-south orientation. Lee disagreed that the vehicles parked in spots 6 or 7 restricted access to 608.

[318] Lee acknowledged that he, not RTC’s security camera took the picture of a child with a large instrument in the parking lot, after the service of the court action (Ex. 114).

[319] Lee acknowledged taking the video of Landry and Kubat (Ex. 75). He denied zooming in and said he was filming while walking from the back of his vehicle to the front vehicle door. It is one of the few videos he took after the examination for discovery.

[320] With respect to the allegation of Landry shoveling snow on Lee’s vehicle, Lee acknowledged that he did not review the RTC’s security camera to see if this event was recorded. Notwithstanding having his cell phone, Lee said he was startled and did not think to take any pictures.

[321] Lee testified that the construction dumpster was primarily on parking spot 6 and that most of the dumpster was on 610 property. He estimated that debris would have to be thrown 10 to 15 feet from the top of the fire escape to land in the dumpster.

[322] With respect to the allegation that Van Velden spat on the men painting the parking lines, Lee agreed that Esbeit did not mention anything about spitting.

[323] With respect to entering the music studio without knocking, he testified that the door was open and he did not know that instruction was taking place. He questions why Jennifer would have been alarmed by his conduct but does not know subjectively, how she interpreted his actions.

[324] With respect to the note he put on Oswin’s car, he stated that his RTC Van was backed into the west side of the 610 parking lot and that the sliding side door faced towards Genesee Street to the south. He stated that he saw Oswin out of the corner of his eye quickly coming towards him and he felt threatened.

[325] At his examination for discovery held on June 26, 2018, Lee stated that he saw Oswin exiting from the second floor of 608, screaming, being very aggressive, running down the fire escape and running towards him, teeth gritted and fists clenched while swearing and screaming.

[326] Lee confirmed that the defendants produced approximately 170 pictures and videos by way of productions.

Reply of Lee Merwin by Lasani

[327] The approximately 170 photographs and videos were taken over five years which would be approximately 3 items per month.

[328] To the best of his recollection although it was five years ago, all of the dumpster was west of the property line of 608 which would mean it was all on 610’s property.

Evidence of Justin Merwin

[329] He is 37 having been born on October 18, 1984. He grew up assisting at RTC. He started working full time when he was 18 or 19 and worked elsewhere for about three years in his early twenties.

[330] He and his brother plan to purchase RTC.

[331] He does not spend much time in the parking lot, but knew by September 2016 that someone was going to move into 608.

[332] On October 12, 2016, he parked near parking spots 6 and 7 for a few minutes to run into RTC. When he returned a woman with a baby advised him that he could not park there. He said that he thought he could and drove away.

[333] With respect to the Nadeau incident, he told the court that employees of RTC try not to use customer’s washrooms. Because of this policy he urgently needed a washroom when he pulled into the parking lot and may not have parked as well as he could have.

[334] Exhibit 118 is a video of a mobile crane entering 610’s parking lot on February 11, 2017. Justin testified that the crane was needed to lift an HVAC unit onto the roof of 608. He knew that to try to complete this lift using Upper James Street would require a permit which could take significant time to obtain and 608 would be without heat. His complaint is that the plaintiffs never advised RTC or Esbeit of their request/intention to use 610’s parking lot for an extended period of time. He became aware of their desire, when the polite driver of the crane came into RTC. Justin assisted by moving RTC vehicles from the lot and by requesting other tenants of 610 to do the same.

[335] Exhibits 119 and 120 show a large cargo truck in the middle of the 610’s parking lot, blocking in many vehicles. Although this does not happen often, this truck was there for approximately half an hour.

[336] With the exception of during Covid lockdowns, since the plaintiffs moved into 608, there has been a large impact on 610’s parking lot, which he blamed on 608 and their patrons. As one example, he acknowledged that the RTC vans are larger than cars and RTC always tried to park them away from the entrance to the parking lot near Genesee Street. They used to park them at the north end of 610’s lot behind 608.

[337] He said it can be seen in the videos at exhibits 105, 121 and 122 that numerous cars pull into the 610 parking lot, to drop off people with instruments going to 608. In addition, there is significant pedestrian traffic from the municipal lot consisting of people walking across the 610 parking lot to get to 608. Notwithstanding that all these videos were taken at approximately 6:00 p.m., he said it is very dangerous because of the number of pedestrians using the parking lot and the number of cars driving onto the parking lot to let passengers off and then backing up, turning around and exiting the parking lot. He also stated that some cars wait in the parking lot to pick up their children.

[338] He testified, that before the plaintiffs moved into 608, drivers used to stop on Upper James, put their four-way warning lights on and let people out other vehicles to go to 608.

[339] He had no problem accommodating 608 during their construction phrase, however it seems they want to take over part of the 610 parking lot.

[340] After they were served with the lawsuit in February of 2017, RTC made every attempt not to use parking spots 7 and 8.

[341] As a result of what has happened, they initially applied for two municipal parking licenses, then obtained another two municipal parking licenses and have applied for two further municipal parking licenses for a total of six. He stated that if the plaintiffs were not there, they would not need any of the municipal parking license. He is also concerned, that if RTC grows larger and needs more parking it will make it even more difficult for them.

[342] Justin installed the security cameras and said RTC always wanted them. They were not installed for the sole purpose of surveilling the plaintiffs. The cameras were installed at the end of 2016 or early 2017 before they were served with any court papers.

[343] He was shown the plaintiffs’ supplementary affidavit of documents (Ex. 123) and stated that the plaintiffs have produced approximately 710 photographs and videos while the defendants have produced approximately 300 which is less than half of that amount.

[344] He said he has found the parking problems and subsequent lawsuit confusing, stressful and financially worrying. He accused the plaintiffs of wanting the defendants to pay for the plaintiffs’ mistake. He cannot understand why the matter has not been resolved.

[345] He thinks the plaintiffs don’t realize what they are doing and that there are unintended consequences from what they are doing.

[346] While he has no ill will towards the plaintiffs, he wants to be able to use the parking lot as RTC has always used the parking lot.

Cross-Examination of Justin Merwin by Sakran

[347] He suggested that two possible outcomes from this lawsuit could be, that RTC has to move its business, or the business could close. With respect to moving, he stated it would be difficult to find such a great central location with a good accommodating landlord.

[348] He stated that the landlord is responsible for maintaining the parking lot including snow removal.

[349] They have never received any complaints about parking from the patrons of 608.

Cross-Examination of Justin Merwin by Duxbury

[350] The contractor installing the HVAC unit may have spoken to him the day before the mobile crane arrived.

[351] He acknowledged only producing two pictures of large vehicles parked on 610’s parking lot, one being the mobile crane.

[352] He acknowledged that RTC is not open to the public at 6:00 p.m.

[353] He acknowledged that Upper James is a busy four lane arterial road, but he was not sure if any no stopping signs are posted in front of 608 or 610.

[354] He acknowledged it would be dangerous to stop and let children off in front of 608, but stated that drivers used to do it before the plaintiffs moved in.

[355] He acknowledged that RTC’s five designated spaces are at the Genesee Street end of the parking lot and do not include parking spots 7 and 8.

[356] He acknowledged that the van parked behind Jennifer’s car in Exhibit 21 was parked by him during his washroom emergency.

[357] He acknowledged that the grey van parked partly behind Jennifer’s car in Exhibit 24 was probably parked by him.

[358] Although Justin’s car is parked to a great extent behind Jennifer’s car, she would have been able to back out.

[359] He acknowledged that Exhibit 45 shows two RTC vans parked behind Jennifer’s car which is parked in a north-south orientation.

Reply by Lasani

[360] Justin acknowledged that the picture at Exhibit 117 is the tailgate of Landry’s pickup truck and not the dumpster.

[361] He does not believe that the pictures showing his Chevy Uplander parked behind Jennifer’s car in exhibits 24, 26 and 45 were taken after the service of the court documents in February 2017.

Evidence of Patrick Lashmar

[362] Lashmar was subpoenaed by the defendants. He is currently 73 years of age. He and his three siblings inherited 610 from their parents, the last of whom passed away on June 3, 1977. He eventually purchased his siblings’ shares and rolled ownership of 610 into a numbered corporation on or about June 4, 1981.

[363] He sold 610 to Esbeit on or about July 31, 2001, although he does not recall who he sold to. He does not know the plaintiffs or that they own 608. He knows that Tom Merwin operates RTC and that he has two children. He does not know the children but believes they may be employees of RTC.

[364] While he was operating or helping to operate 610, he did not know who occupied the second floor of 608. It was owned by two brothers who ran a textile shop.

[365] Since RTC was a major tenant, their lease initially contained three designated parking spots, this increased to five designated parking spots in 1993. Those spots were in the south-west corner of the 610 lot and were designated as numbers 12, 13, 14, 15 and 16 on Appendix D (Ex. 80). A dentist also had one designated parking spot being number 4. All other parking spots were on a first-come first-served basis for tenants only, not customers.

[366] Overall, the parking lot was not that busy and he does not recall having any problems.

[367] He acknowledged that there was a right-of-way so that 608 would have access to their loading doors at the back. He understood that the north-south right-of-way was in the middle of the 610 parking lot, between the parking lines shown on the sketch and that it allowed access to 608 and 606 (Appendix D).

[368] His recollection is that 608 was frequently vacant starting in the mid-nineteen eighties when the textile business closed. His recollection is that 608 may have been vacant 3 or 4 times, for up to a year or two at a time. Prior to his involvement his parents did not discuss the business of 610 with their children.

[369] He stated that his father was neighbourly to 608 and that 608 definitely wanted clear access to the rear of their building. Lashmar did not see the back door of 608 being used very often.

[370] Previous maps did not show parking places 7 and 8 as possible parking spots. Lashmar’s father allowed the brothers who owned 608 to park there. Lashmar also allowed the brothers to park their, although he never thought they had a legal right to do so, he got no complaints.

[371] On occasion he would get complaints from 608 with respect to parking and he would simply ask the tenants of 610 not to park there.

[372] He maintained the parking lot, including plowing snow behind 608 and 606. During heavy snowfalls it was sometimes necessary to pile snow on parking spots 9 and 10.

[373] The only parking problems he recalls, involved tenants of an apartment building from across the street.

[374] Lasini did not ask any questions.

Cross-Examination of Lashmar by Duxbury

[375] Lashmar currently lives in Owen Sound in semiretirement, and moved there from Hamilton. His full-time job was as a literacy consultant for the Hamilton Catholic School Board, in addition to which he owned some properties.

[376] His father took care of all of the management of 610. After becoming involved in the property he would attend there as necessary on the lunch hour to meet a prospective tenant or on a Saturday to allow access to a tradesperson such as a plumber.

[377] He did not pay any real attention to 608 or its tenants. All parking plans prior to 1999 were verbal and he no longer has any information in with respect to them.

Evidence of Sarah Gerencser

[378] Gerencser was the hairstylist who witnessed the alleged threat by Oswin to break Lee’s fingers.

[379] She recalls it being in March 2017 while she was taking a smoke break behind 606.

[380] She recalls seeing a person she now knows was Lee put a note on car which had pulled into the 610’s parking lot. Later she described a man coming out of 608 with the child. When he noticed the note, he began freaking out. He put the child in the car, took the note off his windshield and walked over towards Lee.

[381] She thought the level of anger displayed by the man really stood out and she was preparing to dial 911, because she was afraid Lee would be injured.

[382] After the other guy left, she went over to see if Lee was alright. At that point, she described Lee as freaked out, shaken and scared. At Lee’s request she gave him a note describing the incident (Ex. 46).

Cross-Examination of Gerencser by Duxbury

[383] She described the man who confronted Lee as aggressive, shouting and gesturing with his arms before he put the child into his car.

[384] She is fairly sure she could see both men clearly, although it could have been that Lee was on the other side of his van. In any event she could hear both men clearly and she could see the other man’s gesturing.

[385] Although she cannot remember every word verbatim, she does recall the other man threatening to break Lee’s fingers. She did not encounter Lee after this one incident.

Evidence of Taylor O’Rourke

[386] She is Tom Merwin’s niece and worked for RTC for a short period of time starting in 2020 but no longer works there.

[387] She knows who Landry is but never met or spoke to him.

[388] She testified that she would eat lunch in her car for about 25 minutes and Landry would look over towards her car without breaking eye contact and this made her feel uncomfortable.

[389] For some reason this allegation was not put to Landry when he testified, and O’Rourke gave no further evidence.

Submissions of the Plaintiffs

Prescriptive Easement

[390] Part of the plaintiffs’ claim is for a prescriptive easement over a small strip (approximately 2 – 3 feet) of 610’s land immediately to the west of the western boundary of 608’s land.

[391] The two rights-of-way being 15 feet and 8 feet wide, are both wide enough for vehicular traffic. The rights-of-way are defined broadly and generally and state they were for access without limitation.

[392] The plaintiffs rely on numerous cases including, Yekrangian v. Boys 2021 ONCA 629, West High Development Limited v. Veeraraghaven 2011 ONSC 107, Aragon … v. Pillar Investments Limited 2018 ONSC 4607, Barbour v. Bailey 2016 ONCA 98, Depew v. Wilkes 2002 CanLII 41823 (ON CA), 2002 CarswellOnt 2516, Henderson v. Volk 1982 CarswellOnt 1343, Krieser v. Garber 2020 ONCA 699 and Lafferty v. Brindley 2001 CarswellOnt 5445.

[393] The test to be applied when trying to determine if a prescriptive easement has been established has been set out in many cases including the Aragon case and allows the court to make reasonable inferences. The plaintiff relies in part on paras. 168, 170, 171 and 172 which reads as follows:

168 To establish a prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open and peaceful use of the land, without objection by the owner. To acquire an easement by prescription under a statute of limitations or under the doctrine of loss modern grant, the claimant’s use of the land must be “as of right” or, as described in the old authorities “nec vi, nec calm, nec precario” – “without violence, without stealth (secrecy), without permission.”

170 The theory behind a claim for an easement based on a prescription under a limitation statute or under the doctrine of loss grant is that the evidence establishes that the owner of the servient tenement has with knowledge consented or acquiesced to the establishment of an incorporal ownership interest in land by the owner of the dominant tenement as opposed to licensing the use of land without conferring an ownership interest in it. …

171 For the claim to an easement to succeed, the claimant’s use must be “open” which means that the use is not secret or clandestine and an ordinary owner of the land, diligent in the protection of his or her interest, would have a reasonable opportunity of becoming aware of the use of the land. For the claim to an easement to succeed, there must be evidence that the owner of the servient tenement knew or ought to have known what was happening on his or her land. Where the use by the owner of the dominant tenement is notorious and the owner of the servient tenement makes no objection, then his or her acquiescence to the use as a right of the dominant tenement owner can more readily be inferred.

172 The onus of proof of the requisite use is on the claimant, the owner of the dominant tenement. The evidence required to establish title by prescription will vary with the nature of the user. For a right-of-way, the requirement for its continuous, uninterrupted use will be satisfied if clear and unambiguous evidence shows that the use was of such a nature, and took place at such intervals, as to indicate to the ordinary diligent owner of the servient tenement that a right is being claimed.

[394] “The grant of a positive easement prima facie includes also the grant of all such ancillary rights as are reasonably necessary for its exercise and enjoyment” Lafferty para. 36.

[395] The plaintiffs rely in part on paras. 40 and 41 from the Lafferty case which read as follows:

40 Application of these principles to the plaintiff’s claims requires only a brief review of the circumstances. I have found as a fact that the plaintiffs’ predecessors in title were parking in the disputed location at the brow of the slope long before the deeded right-of-way was granted or the plan was registered. I have noted that this was the only topographically feasible location at which to park. Access by vehicle was the only realistic means of approach and for the lots to be enjoyed at all, the vehicles had to be left standing until the cottagers chose to depart.

41 In the circumstances, I am satisfied that the parking of vehicles is an ancillary right included within the granted right-of-way. The matter is so obvious that the Hunter brothers probably took it for granted and considered it unnecessary to be spelled out. The 40 year history between the early 50’s and the early 90’s indicates no objections to parking by the cottagers. Clearly it was simply accepted by the succeeding farmers that the vacationers had a right to park at the edge of their lots on the right-of-way itself.

[396] The standard of review as set out by the Ontario Court of Appeal in paras.19 & 20 of the 2021 Yekrangian case, states:

19 … The interpretation of the deed is fact specific. It is a matter of ascertaining the objective intentions of the parties from the language used in the deed, read in light of the factual matrix known to the parties at the time. ...

20 … Where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created.

[397] The plaintiffs submit the rights-of-way are for vehicular traffic without limitation and therefore there is no rationale to limit the use of the rights-of-way to deliveries, intensity of use or time of use. For this submission they rely on the West High case which stated the following at paragraphs 85 and 87:

85 … Where you find a road constructed so as to be fit for carriages and the requisite with, leading up to a dwelling house, and there is a grant of right-of-way to that dwelling-house, it would be a grant of a right-of-way for all reasonable purposes required for the dwelling-house and would include, therefore, the right to the user of carriages by the occupant of the dwelling-house if he wanted to take the air, or the right to have a wagon drawn up to the door when the wagon was to bring calls for the use of the dwelling-house.

87 … In the case of a general grant, as here, the permissible use is not limited to the original use. Although the owner of the dominant tenement cannot alter the type of use of the right-of-way beyond its original scope, the burden on the subservient tenement can be reasonably increased so long as the use is of the same general nature, and it can reasonably said to have been in the contemplation of the parties at the time grant.

[398] The plaintiffs submit that they have established a prescriptive easement in accordance with the test set out by the Ontario Court of Appeal in Barbour at para. 56. Other counsel acknowledge that this is the test to be applied. The test was enunciated as follows:

56 To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or right-of-way:

i. There must be a dominant and subservient tenement;

ii. The dominant and servient owners must be different persons;

iii. The easement must be capable of forming the subject matter of a grant; and

iv. The easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenement.

[399] The plaintiffs also drew the court’s attention to paras. 58 and 59 which read as follows:

58 … There must be a connection between the easement and the normal enjoyment of the dominant tenement, as opposed to a personal right belonging to the dominant tenement owner: Depew v. Wilkes, supra at para. 20. Examples of uses that courts have found to be “reasonably necessary” usually involve a very practical purpose such as parking spaces or driveways. …

59 This is reinforced by the fact that in order to be capable of forming the subject matter of a grant (the third criterion listed above), easement rights must not be ones of mere recreation and amusement; the rights in issue must be of utility and benefit to the dominant tenement: …

[400] In the Depew case the Ontario Court of Appeal stated the following at paras. 24, 25 and 26 with respect to parking:

24 In the present case, I agree with the respondents that the appellants had to establish that parking was, in the words of Ellenborough Park, “reasonably necessary for the better enjoyment” of the dominant tenants tenements. The reasonable necessity requirement is fact specific and must be applied in a flexible manner. …

25 … I am satisfied that the prescribed 20 years has long past in regard to parking. I am satisfied there was acquiescence, that the parking was open and notorious and uninterrupted and as I have said, reasonably necessary. In the result, then, I would grant an easement in regard to parking.

26 … The parking is connected with the normal enjoyment of the property. As the Caldwell case demonstrates, the fact that an alternative exists does not preclude a finding that the easement is reasonably necessary for the better enjoyment of that tenement.

[401] The plaintiffs’ request is only for parking and a small encroachment, not for use of the parking lot. This is not an intensification issue. Based on Henderson, the acquiescence of the dominant tenement can be inferred. For this the plaintiffs quoted from paragraph 19 of the case which reads as follows:

19 The evidence required to establish title by prescription will vary with the nature of the user. The use of a passageway by noisy delivery trucks will be hard to hide. The use of a lane for passage by tractor-trailer rigs with motors roaring in air brakes kissing would be difficult to disguise. In those instances the owner of the servient tenement can readily be taken to know of the user of his property. If he makes no objection then his acquiescence to use can readily be inferred.

[402] In addition, the plaintiffs have established the temporal element for a prescriptive easement, by having 20 years of use as of right, prior to the property being registered in the Land Titles System on September 25, 1995.

[403] Florence Miller’s husband and his brother purchased 608 in 1972. From that time forward she was knowledgeable about the property as the wife of one of the owners and subsequently an owner of half the property when her husband passed away in about 1985. She along with her husband worked in the textile shop when needed.

[404] Her detailed evidence is set out earlier in this judgment, but the salient parts of her evidence which shows constant and frequent parking up to 1985 are:

1. Her husband parked his station wagon behind 608 five days out of six.

2. She always parked behind 608 when she attended the property.

3. They, along with their employees and patrons would enter 608 through the rear doors.

4. 608 did not have an arrangement with 610 to allow them to park behind 608. Lashmar confirmed that he did not know about any parking arrangement for 608 between his father and the Millers.

5. She did not know that there was any dispute about 608’s right to park behind 608, until after this lawsuit was commenced.

6. After her husband’s death in approximate 1985, she inherited half of 608 and the property was essentially, continually leased out to a dance school. The owners of the dance school parked behind 608.

7. The dance school, despite a change in ownership, continued to lease 608 until approximately six months before it was sold to the plaintiffs in 2016.

[405] The reasonable inference to be drawn can only be, that up to 1985, 608 enjoyed the ability to park behind 608, and because Mr. Miller drove a station wagon there, there is no doubt that when he parked behind 608, part of his vehicle would have encroached over some of the 610’s land. Construction vehicles would have started parking there in approximately 1972.

[406] Lashmar was unable to give any evidence with respect to the parking issue behind 608.

[407] Jordan Teperman who is the grandson of Florence Miller was born in 1982. As a young child he would attend 608 with either his mother or grandparents. They always parked their car directly behind 608 and never had any issues parking there.

[408] Teperman also testified that:

1. The tenants of 608 continued to park behind the building when his grandmother leased the premises.

2. Parents would drop off their children for dance lessons behind 608.

3. The area behind 608 was used for the delivery of props and for practicing outdoor recitals.

4. He does not recall any discussions with the owners of 610 with respect to parking.

[409] Sarah Jussila both as a dance student, dance teacher and owner of the dance studio between approximately 1997 and 2015, testified that the dance teachers, including herself and the receptionists always parked directly behind 608.

[410] When she was involved with 608, 608 had three parking spots.

[411] Patrick Lashmar was called to testify by the defendants. Lashmar’s evidence was essentially that:

1. Prior to 1977, Lashmar’s father owned and looked after 610 and he did not discuss the business of 610 with his children.

2. He took over management of the building in 1977 along with his brother-in-law. He would have been the one to deal with any parking lot issues after 1977 and none were ever raised.

3. He recalls seeing the Miller brothers park behind 608.

4. He recalled deliveries being made to the back of 608.

5. His father was “okay” with the Millers parking behind 608 and he had no knowledge of any formal parking arrangement.

6. His attendance at 610 was infrequent and his visits were usually for about a 5 to 10 minutes’ duration, to show the building to a prospective tenant or let a tradesperson in.

7. He did not pay much attention to what was going on at 608 and had very little interaction with the tenants of 608 at any time.

8. He maintained full-time employment.

9. Notwithstanding that he is the author of the parking sketch (Ex. 80), he does not recall seeing a document identifying the exact location of the right-of- way, did not know where the right-of-way was, and no one ever raised an issue with him about the locations of the rights-of-way.

10. He never heard of any issues with respect to parking from anyone.

11. He did not know who owned 608.

12. Although he did not know who the tenants of 608 were, he knew they parked behind 608.

[412] Based on the evidence of Lashmar, it is clear that there was no permission or license granted to the Miller brothers to park behind 608.

[413] Based on the sketch drawn by Lashmar, with the printing “do not block doors” and “no parking” behind 608, it is obvious that this shows 610’s acquiescence or recognition of 608’s right/ability to park behind 608 (Appendix D, Ex. 80). Therefore the pattern of 608’s parking behind its building had been established at that time for the first 15 years.

[414] The plaintiffs submit, based on the evidence of Miller, Jussila, Teperman and Lashmar that:

1. Millers parked behind 608 up until approximate 1985;

2. Subsequent tenants of 608 parked behind 608; and

3. There was no arrangement between Lashmar’s father or Lashmar and the Millers regarding parking behind 608.

[415] By 1985 the nature of use had been established. Whether there was the odd vacancy does not matter. The ability of the owners of 608 to park behind 608 is simply common sense.

[416] When the dance studio is factored in there is a consistent pattern of parking for approximately 40 years. While there may have been an ebb and flow with respect to the intensity of parking, the parking use never disappeared.

[417] Esbeit purchased 610 in 2001 and has no direct knowledge of the use of the parking lot prior to 1995.

[418] Esbeit testified three times that the owners of 608 were supposed to park in spots 7 and 8 (Appendix D, Ex. 80).

[419] Tom Merwin can only give evidence with respect to the parking lot from 1993, the beginning of his tenancy forward. He had no interactions with the tenants of 608 regarding parking between 1993 through to 2016.

[420] Merwin’s “most firm belief” regarding parking spots behind 608, comes from Lashmar’s 1999 sketch, which is Exhibit 80.

[421] Merwin observed tenants of 608 parking behind 608, and also stated, that the dance studio and his business were not usually open at the same time.

[422] Although from practice, it appears that people use the middle of the north-south parking lot as a right-of-way as opposed to the registered right-of-way at the western edge of the lot, the registered right-of-way has not shifted nor has Esbeit sought an order to shift it.

[423] By using the middle of the parking lot as a “right-of-way” it has given 610 access to approximately 8 more parking spots along the western edge of its lot. However, shifting the right-of-way to the middle of the parking lot has created a short turning radius of the plaintiffs’ vehicles in their parking area.

[424] The plaintiffs submit, based on the cases of Yekrangian v. Boys, 2021 ONCA 629 at para. 20 and Fountas Holdings Corp. v. J.S. Melo Inc., 2014 ONSC 2463, at para. 13, that a right-of-way must be interpreted in accordance with all of the circumstances that existed at the time of its creation.

[425] The right-of-way was created to enable 606 and 608 to get to their properties without limitation. The right-of-way does not set out specific or limited uses. Therefore, there is no basis to read in or read down the right-of-way as somehow limiting access to delivery vehicles, emergency vehicles or pedestrian traffic, etc.

[426] There is no evidence to support the proposition that the right-of-way was for anything less than full vehicular movement. In fact, the evidence of Miller, Teperman, Jussila and Lashmar is just the opposite.

Nuisance - Obstruction of the Right-Of-Way

[427] The plaintiffs rely on the Fountas case and in particular para. 17, to submit that wrongful interference with the party’s right-of-way constitutes nuisance and that, “a party who created a nuisance is liable unless the nuisance is remedied without due delay, once the party became aware of it.”

[428] It is uncontested that the defendants have blocked the east-west right-of-way continuously for years. It is also uncontested that the painted parking spots 7 and 8 as shown in Exhibit 80, obstruct the east-west right-of-way and obstruct access to 608.

[429] Both the painted configuration of the parking lot behind 610, and the Merwin defendants parking their vehicles in spots 7 and 8, are sufficient for the court to make a finding of nuisance.

[430] While some behaviour of the defendants may have lessened after the commencement of the lawsuit, the obstruction of the right-of-way and the resulting interference with the plaintiffs’ access to, and use of, their property has been continuous, perhaps more subtle, but hardly hands-off.

[431] Esbeit is deemed to have known about the rights-of-way. He purposely painted parking spots over the 8-foot right-of-way. On one occasion he showed up with two or three other men and demanded that Landry come down to the parking lot. Outnumbered three or four to one, Landry found this threatening and scary.

Nuisance - Conduct of the Defendants

[432] On this topic the plaintiffs rely on the cases of TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, Krieser v. Garber 2020 ONCA 699 and Lafferty v. Brindley, 2001 CarswellOnt 5445.

[433] The plaintiffs start their submissions on this topic by quoting from the case of TMS Lighting, at para. 14, which in turn relies upon Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, at paras. 18 & 19 to the effect:

… a private nuisance consists of an interference with the plaintiff’s use or enjoyment of land that is both substantial and unreasonable. The court held that a substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry precedes to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all the circumstances.

[434] The interference with the plaintiffs’ use and enjoyment of their property was both substantial and unreasonable. The court was referred to several paragraphs from the Krieser case as follows, for the proposition that the court should focus on the harm suffered:

18 In his reasons, he began by articulating the test for nuisance. He explained that nuisance is the interference with the use or enjoyment of land and that, in nuisance, the focus is on the harm suffered rather than fault or the nature of the conduct giving rise to the harm; …

20 …He observed that “this test applies whether the nuisance is physical injury to land or an interference with the amenities of the land,” citing Antrim, at para. 23.

21 As for the reasonableness criterion, the trial judge noted that “the courts assess, in broad terms, whether the interference is unreasonable by balancing the gravity of the harm against the utility of the defendant’s conduct in all the circumstances”: Antrim, at para. 26. The trial judge also noted that “the severity of the interference and the character of the neighbourhood are important factors in assessing the gravity of the harm,”. …

38 Antrim at para 2, explains that “the reasonableness of the interference must be determined by balancing the competing interests”. As to how that balancing exercise should be carried out, Cromwell J. wrote at para. 25, that “… The reasonableness of the interference must be assessed in light of all the relevant circumstances.”

39 The court is neither bound or limited by any specific list of factors when considering the reasonableness of an interference, but “should consider the substance of the balancing exercise in light of the factors relevant in the particular case”: Antrim, at para. 26. The court will sometimes readily conclude that an interference is unreasonable without having to engage in a lengthy balancing exercise: Antrim, at para 50.

44 Finally, where the interference in this case is characterized as a loss of amenities or physical interference is of no moment. In Antrim, at para 49 – 51, faced with conflicting case law, Cromwell J. addressed whether the reasonableness inquiry must be conducted where the interference is “material or physical,” or only with respect to other types of interference, such as loss of amenity. He concluded that reasonableness is to be assessed in all cases where private nuisance is alleged, regardless of the type of harm involved. He recognized that it will not always be easy to distinguish between damage that is.“

[435] Parking on the right-of-way is an automatic nuisance and the use of parking spot 6, despite the complaints of the plaintiffs, constitutes a separate ground for a finding of nuisance. Although spot 6 is not on the right-of-way, its use by the defendants interferes with the accessory rights to which the plaintiffs are entitled by virtue of the right-of-way.

[436] In Lafferty at para, 36, the court stated that the:

“grant of a positive easement prima facie includes also the grant of all such ancillary rights as are reasonably necessary for its exercise and enjoyment.”

[437] The use of spot 6 by the Merwins (or anyone) limits the plaintiffs’ ability to safely manoeuvre their vehicles onto and off of their property. Allowing parking on spot 6 would be an unreasonable imposition on the accessory rights of the plaintiffs and the level of interference by the Merwins to date constitutes a further nuisance.

[438] The plaintiff led significant evidence with respect to the nuisance caused by the personal conduct of the defendant, Lee Merwin. It is uncontested that:

1. Lee Merwin regularly took photographs of the plaintiffs, their guests, patrons and students.

2. He regularly attended at the back of 608 to observe the use of the plaintiffs’ property.

3. Lee also purposely moved vehicles onto spots 6, 7 and/or 8 for the express purpose of blocking in the plaintiffs’ vehicles or limiting their access to 608. Based on Lee’s intentional actions it does not matter if he knew about the right-of-way.

4. The Merwins purposely kept a vehicle parked in spot 6 as Justin put it “to hold that spot”. They did this, notwithstanding RTC had five dedicated spots none of which included spot 6 and RTC acknowledged that the remainder of the spots were on a first-come first-served basis.

5. RTC set up a network of security cameras to capture the comings and goings of the plaintiffs, their guests, patrons and students.

6. Esbeit attended the back of 608 on at least two occasions without notice and accompanied by others.

[439] The defendants’ conduct frightened the plaintiffs and made them feel uncomfortable in their home and for the safety of the child and the children in their care.

[440] Additional witnesses called by the plaintiffs, described incidents where they were regularly confronted with difficulties accessing the rear of 608, by people taking their photograph and/or making aggressive comments and/or gestures about their use of the parking lot.

[441] Even after the service of the statement of claim in 2017, the plaintiffs did not cease being a nuisance. Although there was a subtle shift, the defendants continued monitoring everybody coming and going from 608, continued to take pictures and videos of people coming and going from 608 and continued to strategically place vehicles on parking spot 6 to impede access to 608.

[442] RTC’s use of parking spot 6 continued even when there were other open parking spots on the lot.

[443] Lee continued to intimidate, antagonize and videotape people including children accessing 608 in September 2018. In January 2021 he took a picture of Oswin and his wife at the back of their car. In addition, he videoed patrons performing martial arts movements on the parking lot behind 608.

[444] Justin was responsible for placing his car in parking spot 6. It was his opinion that the plaintiffs wanted RTC to pay for the plaintiffs’ mistake, that they were trying to steal land and invade RTC’s rights. He refused to agree that any of the RTC vehicles blocked the plaintiffs’ vehicles in.

[445] Jennifer is afraid to go into the backyard because they are being monitored 24/7 by RTC.

Trespass

[446] Part of the trespass claim includes Lee entering 608 without knocking, Esbeit congregating with two or three other men behind 608 on November 9, 2016, along with the numerous photos and videos taken by the defendants.

[447] The defendants’ conduct has impinged upon the plaintiffs actual and potential use and enjoyment of their property. Their interference with the plaintiffs’ property was direct and consequential.

Intentional Interference with Economic Relations

[448] The tort of intentional interference with economic relations has two elements being:

1. A wrongful interference with the actions of third party in which the claimant has an economic interest; and

2. An intention thereby to cause loss to the claimant.

[449] Both plaintiffs are self-employed and have lost students as a result of the dispute with the defendants. Some of their students were photographed and/or accosted by Lee Merwin.

[450] One of Landry’s students (Kubat) was photographed while taking an outdoor lesson. One of Jennifer’s 12-year-old students was frightened when Lee Merwin entered the studio unannounced in the middle of a music lesson. That person is no longer a student.

[451] Notwithstanding that the music school’s busiest hours of operation are after RTC has closed for the day, RTC still makes it more difficult for patrons of the plaintiffs to access the rear of 608 both by car and on foot.

[452] The intentions of the defendants can be inferred from their evidence in which they object to the plaintiffs use of the 610 lot, restrict access to the rear of 608, and by the continuity and extent of their behaviour, including after the start of this litigation as well as from the number of specific incidents.

Punitive Damages

[453] Punitive damages which are meant to punish, deter and denounce a defendant’s conduct, can be awarded for nuisance and trespass. Relevant factors for determining an award:

“… include whether the defendant persisted in the conduct over a lengthy period of time, whether the defendant was aware that what he or she was doing was wrong, and whether the defendant profited from the conduct.”

[454] In this case:

1. Esbeit was aware of the rights-of-way in favour of 608, but he ignored the rights of the plaintiffs and profited by renting parking spaces on the right-of-way behind 608.

2. The Merwin defendants deliberately continued to obstruct the east-west right-of-way for years after learning of its existence and have shown a wanton disregard for the plaintiffs’ rights as property owners.

3. The defendants have engaged in a sustained campaign of conduct that was disturbing to the plaintiffs, their friends and patrons. Even after the lawsuit was commenced their campaign continued with significant and inappropriate monitoring

[455] Esbeit along with two or three other men threatened Landry.

[456] The Merwins’, particularly Lee, were not innocent bystanders. Although there was an event or series of events that should have been resolved by the owners of 608 and 610, the Merwins inserted themselves right in the thick of things. It was Lee Merwin’s mantra that “610 owned the land”.

[457] The defendants are responsible for a serious invasion of the privacy of the plaintiffs, their family, their students, and their home. The plaintiffs should not be terrified to use the back of their property/home.

[458] The court does not need to focus on the number of photographs or videos taken, it should focus on the intimidating and aggressive behaviour perpetrated by the defendants against the plaintiffs.

[459] An order for punitive damages is appropriate to admonish the conduct of the defendants and since they will remain neighbours with the plaintiffs, it will deter them from further interfering with the plaintiffs’ use and enjoyment of their property.

[460] Mr. Duxbury reminded the court about the evidence of Pinto, Davidson, Love Nadeau, Oswin, Ilonia and Van Velden, which was generally to the effect, that for the most part, Lee appeared agitated and angry, and he made them afraid and concerned for their safety.

Reply Submission of the Plaintiffs

[461] In reply to the submissions made by the other parties the plaintiffs further submitted:

1. The rights-of-way were created by Lashmar and are broad and unlimited.

2. The rights-of-way have nothing to do with parking or the intensification of the parking lot use.

3. Continuous use of parking does not mean every day.

4. Lashmar did not and could not have granted parking rights to 608 because he did not know who owned 608.

5. The period needed for prescription started between 1970 and 1972 and therefore ends between 1990 & 1992, a year before RTC began renting space in 610’s building.

6. Florence Miller is not adverse in interest and no cross-claim was brought against her.

7. The November 2016 event involving Esbeit, and two or three other men was not the painting event and was worrisome.

8. The use of the rear door is of no assistance with respect to the parking issue.

9. The right-of-way to lot 606 does not assist the court with the parking issue at 608.

10. Esbeit did not purchase 610 until 2001, and there is no evidence of any license between him the owners of 608.

11. The first time the plaintiffs were informed that Lee was no longer pursuing damages for nuisance and trespass was on the last day of submissions, but RTC has maintained its claim for nuisance and trespass.

12. Not knowing about the right-of-way does not excuse the Merwins’ conduct.

13. The Merwins’ conduct was designed to box in the plaintiffs’ cars and limit their access to 608.

14. After February 2017, RTC personnel continued to park in spot 6 which created a pinch point and was solely for the purpose of making the plaintiffs’ lives more difficult. The March 1, 2018, photo (ex. 119) shows an RTC van parked in spot 6, and also shows several empty parking spots which the van could have parked in.

15. The complaint about Landry shoveling snow onto spot 6, shows RTC’s intention to use spot 6.

16. The Merwins cannot have a claim for trespass on parking spots 6, 7 or 8 because RTC did not have the exclusive use to those spots.

17. The plaintiffs’ issue about being photographed, is not about the Merwins’ simply capturing a record for the court, it’s about the consistency of being photographed and videotaped over several years.

18. Jennifer’s parking log was made to counter the allegations of parking lot congestion and the lack of parking spots.

The Plaintiffs Claims

[462] The plaintiffs asked the court for the following relief with respect to both court actions:

1. A declaration that they have a prescriptive easement to park vehicles on the lands of 608, such easement to extend onto the lands of 610 as necessary.

2. Clear and unobstructed access over the north-south and east-west rights-of-way and an order to remove all obstructions as necessary.

3. Damages for nuisance and trespass in the amount of $150,000, against the defendants in their action and the defendants by counterclaim in the action brought against them.

4. Punitive damages in the amount of $100,000, against the defendants in their action and the defendants by counterclaim in the action brought against them.

5. Dismissal of all claims and counter claims against them.

6. Costs of this action.

Submissions of Esbeit Enterprises Inc.

[463] The problem with 608 having insufficient space for parking on its his own land, stems from the creation of the 608 lot and the original owners constructing the building that exists today.

[464] Now the plaintiffs want to broaden, without limitation, the historic use of allowing deliveries to the back door of 608. They also want to park behind 608 and allow pedestrians to enter and exit using the back door.

[465] Specifically, the plaintiffs want:

1. The right, not only to park on 608’s land but also on a little of 610’s land.

2. Unrestricted use of the 610 parking lot by their patrons and their patrons’ vehicles.

3. To take away the long-standing rights of 610 occupants, by parking on spots 6, 7 and 8.

[466] Esbeit submits:

1. Access to 606 and 608 has always been through the middle of the 610 parking lot; and

2. The occupants of 608 have been known to park their vehicles on 610 lands.

[467] Esbeit further submits that to obtain an easement:

1. The claimant must demonstrate a use and enjoyment of the right-of-way and parking privileges under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. (Henderson v. Volk, 1982 CarswellOnt 1343 (Ont. C.A.) para. 14)

2. The enjoyment must not be permissive. That is to say, the claimant cannot be a user of the right-of-way and parking privileges, enjoyed from time to time at the will and pleasure of the owner of the property over which the easement is sought to be established (Henderson para.15).

3. The use of the subservient land by the dominant tenement, can’t be pursuant to the express or implied permission of the owner of the subservient land. (Mason v. Morrow, 1998 CarswellOnt (Ont. C.A.) para. 5)

4. Use permitted through good neighbourliness, and enjoyed on that basis, is not sufficient to acquire an easement by prescription (Henderson).

5. The threshold for meeting the criteria for establishing a prescriptive easement is high (Ebare v. Winter, 2005 CarswellOnt 30 (Ont. C.A.) para. 27).

6. The court should “proceed with caution before finding that title by prescription or by doctrine of loss modern grant was established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor…” (Ebare para. 27).

7. The courts will not convert permissive acts into legal rights turning “neighbourly accommodation” against the owner (Thompson v. Lidtkie, 2019 CarswellOnt 19778 (S.C.J.)).

[468] Further, based on para. 16 of Henderson:

16 … the nature of the user cannot be changed by the owner of the dominant tenement. As an ancient example, a way used for the passage of carriages cannot be used for driving horned cattle or swine. In the same vein, the user is not entitled to use the character of his land so as to substantially increase or alter the burden on the subservient tenement. Nor may the user increase the intensity of his use and thereby alter or increase the burden upon the servient tenement.

[469] Esbeit submits, that by using 608’s back entrance and allowing 608’s patrons to use 608’s back entrance, the intensity of use of the parking lot has increased.

[470] Unlike the plaintiffs, the Millers did not live at 608 and the parking was during normal business hours Monday to Saturday.

[471] Likewise, the dance studio did not use 608 as a residence and while they parked behind 608, they used the front door to get into the building.

[472] Esbeit submits that Lashmar gave express or implied permission to the Millers to park behind 608. It further submits, that because the Miller brothers owned 606 they built the building on 608 large and without sufficient room for parking. They did this because they could park on 606. Therefore, there was/is no independent parking at the back of 608.

[473] In addition, the Millers did not reside at 608. Furthermore, when Lashman met the surviving Miller brother, in or about 1985, he testified that the 608 building was unoccupied and therefore, that vacancy interrupted the 20 year period needed to obtain a prescriptive easement.

[474] For this submission, Esbeit relies on paras 94 & 95 of the Barbour case which stated:

94 In Henderson v. Volk, at p. 384, this court warned against granting an easement in the absence of clear evidence of both continuous use and acquiescence in such use by the owner.

95 In this case, it would make little sense to suggest that Mr. Barbour had to object to the owners of Tiny Island driving over Part 2 to access their property when, on the evidence accepted by the trial judge, there were long stretches of time during which the isthmus was underwater and the previous owners did not drive. Simply put, Mr. Barbour could not have acquiesced to something that was not taking place.

[475] There is no necessity for the plaintiffs to be able to park behind 608 because they have access to municipal parking.

[476] Esbeit further submits, that the east-west right-of-way is only 8 feet wide and therefore, not intended for all purposes.

[477] Florence Miller could not provide any specific information as to the timeframe of any vacancies or the names of any occupants prior 1999.

[478] She is also adverse in interest, because, if she now says there was no parking or she does not know if there was parking, she could be sued for misrepresenting the parking fact to the listing agent. Esbeit submitted it was convenient that Florence had torn up the leases from 1985 to 1995.

[479] Also, Florence Miller moved to Toronto after 1985, and her brother-in-law Abe Miller, and a gentleman known as Torek, looked after the rentals.

[480] Esbeit further submitted, that Lashmar’s evidence should be preferred over Florence Miller’s evidence, because she was testy and Lashmar was reliable, tempered and tolerant.

[481] The plaintiffs have promoted the use of 610 lands and the back of 608 as a point of entry for their patrons, family and friends. This is strikingly different to the historical use of 610 and explains the dramatic increase in vehicular and pedestrian traffic on the parking lot.

[482] The Miller family is adverse in interest to the defendants because they told the realtor there were historical parking rights behind 608, alternatively the Millers misrepresented the right to park behind 608.

[483] Lashmar is more reliable than Miller, who indicated that “this is all stupid stuff with what is going on, I am getting upset it is enough already”. In contrast, Lashmar was more temperate and tolerant in his evidence.

[484] Lashmar testified that his understanding of the two hand printed notations “do not block doors” and “no parking” shown on Appendix D (Ex. 80) related to 608 lands. There was a right-of-way through his property (610) and the people at 608, had to have access to the loading door for a truck to come in and so by designating a couple of parking spots there, he was reminding people not to block their back door and because it could be a fire hazard.

[485] Lashmar does not recall anyone expressing any parking issues about the lot. He recalls his father being okay with the Miller brothers parking in spots 7 and 8, but does not know if it was on a permanent basis. He never thought the Millers actually had a right to park there.

[486] On one or two occasions when someone insisted that they had the right to park in spots 6, 7 and 8 he replied: “I do not think you do but you can park there as long as my lot was not busy.”

[487] Lashmar permitted 608 occupants to park on 610 property, because it created fewer hassles for him as long as his tenants could find parking.

[488] His recollection is, that after 1985, 608 was empty two or three times and for a year or more at each time.

[489] Lashmar stated that his father encouraged people not to block the loading doors of 608 because it was a neighbourly thing to do. He thought his dad allowed the Millers to use parking spots 7 and 8 and he was okay with it, but he never thought 608 had the right to park their, however his main concern was not getting any complaints from his tenants.

[490] Esbeit also relies on the cases of Ebare (supra), West High (supra), Laferty (supra), Depew (supra), 1043 Bloor Inc v. 1714104 Ontario Inc., 2013 ONCA 91, CarswellOnt 1579 and Carpenter v. Doull-MacDonald, 2018 ONCA 521.

[491] In the Ebare case he referred to para. 27 which is quoted earlier in this judgment, to the effect that the court should proceed with caution.

[492] Esbeit also referred to paras. 61 and 63 from the 1043 Bloor case which essentially gives directions to the court in prescriptive easement matters. All counsel agree with what is set out in those paragraphs.

[493] The court was asked to review para. 5 of the Carpenter case. Esbeit equated it to Lashmar’s evidence that his father was being neighbourly. Para. 5 reads as follows:

“5 The application judge concluded that the historical usage of the respondent’s property on which the appellant relies was only ”modest, infrequent, and intermittent”, and was permitted by the extension of the former owners neighbourly goodwill to his fellow war veteran and neighbour of many years. This conclusion was based on the application Judge’s acceptance of the testimony given by the former owner of 15 Ferncroft Dr., William Tyrone, who had lived at the property for almost 60 years. Specifically, Mr. Tyrone testified that the historical usage of the property consisted of the former owner of 11 Ferncroft Dr. coming onto the passageway perhaps once or twice a year to clean eaves troughs or windows, or service air-conditioning lines. As a result, the application judge found that the applicant had not met her evidentiary burden of establishing an easement “as of right”.

Ancillary Rights

[494] The rights-of-way do not allow for parking, stopping or dropping off or picking up passengers. The plaintiffs and their patrons have no right to do so on 610 land.

[495] Even a prescriptive right for parking, would not allow the free-for-all of stopping, dropping off and picking up. The 8-foot right-of-way, because of its width, is only practical for access and deliveries.

[496] The court must look at the size of the right-of-way, the words that create the right-of-way and the circumstances that existed at the time of the grant.

[497] Esbeit relies on paras. 20 and 24 of the Depew case which have been reproduced previously, for the proposition that ancillary rights are not personal rights and must be “reasonably necessary to the use and enjoyment of the easement which was contemplated by the grantor”.

[498] Esbeit also relies on para. 87 of the West High case (which has been previously reproduced) for the proposition that: “the easement must have been in the contemplation of the parties at the time of the grant”.

[499] The 15-foot north-south right-of-way was created in approximately 1949 and pre-existed lots 604, 606 and 608. The 8-foot east-west right-of-way was created when 608 was created on or about February 24, 1970. At that time 608 was a vacant lot with no defined purpose.

[500] Esbeit submits that because the east-west right-of-way is only 8 feet wide, it is not wide enough to allow for turning and therefore does not carry with it the ancillary right to park behind 608.

[501] The court must balance the private property rights of 610, against whatever benefit extends to 608 by way of ancillary rights attached to the right-of-way.

Nuisance and Trespass

[502] Although Esbeit took no videos or photographs, there was nothing nefarious being done by the Merwins by taking photographs and videos. It was done for the purpose of gathering evidence for this court case. The Merwins were being squeezed out of their parking privileges and their photography is akin to a private investigator.

[503] Notwithstanding the plaintiffs’ allegations, the plaintiffs trespassed by paving and painting lines on 610’s land.

[504] Although there may have been a mildly heated discussion, Esbeit denies gathering a “gang” behind 608 to intimidate Landry, when he wanted to talk to Landry about the property lines and what Landry was doing.

[505] Esbeit submitted that the plaintiffs should not use their back door on a daily basis for themselves, their family or their patrons because:

1. It is not necessary for them to do so,

2. The dance studio never used the back door, and

3. Because of how the back door was used previously, there was harmony between 608 and 610.

[506] He reminded the court about Lee and Gerencser’s testimony with respect to Lee’s allegation that Oswin approached him in the parking lot in a threatening manner and threatened to break his fingers.

[507] Although not germane to the determination of the primary issue in this case:

1. The plaintiffs had a clear vision about their intended use of 608 before buying the property.

2. They failed to communicate this vision with any of the defendants.

3. There was a due diligence clause in their agreement of purchase and sale which they waived.

4. When initially advised by Hamilton by-law inspector that they had insufficient parking, they instructed their lawyer to write a letter to Chicago Title Insurance.

5. When initially filling out a minor variance application Landry wrote in a sworn document, “no parking on site for music school and apartment dwelling” and it is not possible to comply with the provisions of the by-law because there is “no space on property”.

[508] The plaintiffs offered no evidence of any accommodation, consideration or apology for their activities and its impact on 610 occupants, notwithstanding the Merwins accommodated the plaintiffs during their initial three months of renovation, and clearing the parking lot so a crane could install their rooftop HVAC system.

[509] The plaintiffs:

1. Hired a company to pave and paint lines on 610’s property without notice to Esbeit, or the other occupants of 610.

2. Reported a Merwin vehicle to the by-law enforcement officer as being parked on 608 property, when in fact it was parked on 610 property.

3. Interfered with the contractor hired by Esbeit to repaint the parking lines on 610 lands, to rectify the incorrect lines painted by the plaintiffs.

4. Caused RTC to purchase four monthly parking passes and apply for two more.

[510] The many photos and videos produced by the plaintiffs, demonstrate the substantial deviation from the historic use of the parking lot and congestion caused by the plaintiffs. In particular, the use of the parking lot has increased due to:

1. Two commercial operations with the residential apartment on the second floor being run out of 608.

2. 608 patrons driving onto 610 lands to drop off and pick up people at the back of 608.

3. Using the back door and fire escape of 608 as the normal routine entrance for themselves, and their parents, students and instructors. This encourages non-610 and non-608 occupants, to drive on and off of, and/or park on the 610 parking lot.

[511] The result of this congestion has forced the Merwins to seek alternate parking for their RTC vehicles and to consider relocating their business away from 610.

Submissions of RTC and the Merwins

[512] Where the submissions of RTC and the Merwins are the same as those for Esbeit, Lasani has tried not to duplicate them.

[513] There has been almost no interaction between the plaintiffs and Tom and Justin. Tom and Justin have never had, and Lee withdrew his claims against the plaintiffs for nuisance, trespass, harassment and interference with economic relations.

[514] RTC is the only “Merwin defendant” asserting any claims against the plaintiffs for nuisance and trespass, while the plaintiffs have claims against all of the defendants for nuisance and trespass.

[515] Although at one time, RTC had five designated parking places, all parking is now on a first-come first-served basis.

[516] Although aware of the north-south right-of-way, the Merwin defendants were not aware of the east-west right-of-way for the benefit of 608. Therefore, some of their actions were done under a colour of right.

[517] When 608 was tenanted, prior tenants of 608 would sometimes park one vehicle in parking spots 7 or 8. Prior tenants of 608 generally operated in the evenings or on weekends so their use of parking spots 7 and/or 8 did not interfere with RTC’s use of the parking lot.

[518] Prior 608 tenants did not have a residential presence.

[519] The Merwin’s understood that 608’s use of parking spots 7 and 8 was by agreement with 610 and that RTC still had the right to park in any one of the 16 parking spots (Appendix D, Ex. 80).

[520] Without notifying any of the defendants, the plaintiffs placed a large construction dumpster behind 608 blocking parking spots 6 and 7. Debris was thrown into the dumpster from the fire escape, despite vehicles being parked on both sides of the dumpster.

[521] Things heated up in November 2016 when the plaintiffs paved and painted lines on 610’s property. In response to this, Esbeit personally, and workmen on his behalf repainted the lines. Lee took no part in the painting, but did fetch and hold a piece of cardboard to avoid any overspray getting onto Jennifer’s car. He did this in an effort to stop the situation from further escalating.

[522] Lee Merwin acknowledges entering 608 through the back public entrance. He wanted to try to discuss a potential solution of the parking issues. He did not barge in. He was directed by Jennifer to go upstairs and speak to Landry, which he did in an effort to see if a compromise could be worked out.

[523] From November 2016 through February 2017, the plaintiffs continually parked their cars to the rear of 608 partially blocking parking spots 6, 7 and 8.

[524] Almost immediately after service of the court action in February 2017, the Merwins stopped parking behind 608 in an effort to de-escalate the situation. Notwithstanding the over 700 photos and videos produced in this litigation, none of the photos show any Merwin vehicles parked behind 608 after February 2017. Therefore, this parking issue only took place over a three-month period, notwithstanding the plaintiffs claim that it continued until June 2018. There are essentially no pictures of any RTC related cars parked in spots 6, 7 and 8 after February 2017.

[525] The Merwins who are defendants in this lawsuit which alleges nuisance and trespass, began to document the plaintiffs’ use of the parking lot, including the use of the parking lot by their family, guests and clients, to use as evidence for the lawsuit. This was mostly done through security cameras affixed to the rear of 610.

[526] In fact, for purposes of this lawsuit, the plaintiffs did the same, and in addition kept a detailed log book of vehicles which parked in the 610 lot.

[527] In addition to parking lot issues previously detailed under the Esbeit submissions, Landry holds martial arts classes in the rear of 608, where he and his students trespass onto the 610 parking lot when doing their martial arts exercises. In addition, the plaintiffs shovel snow from the rear of 608 onto the 610 parking lot and specifically parking spot 6, decreasing its size.

[528] The plaintiffs’ patrons further aggravate the parking lot situation, by dropping off their children in the parking lot and then parking until the children’s lesson are completed.

[529] RTC as a tenant of 610, has legal rights and a vested interest in being able to use the 610’s parking lot to carry on its business.

[530] RTC has been compelled to incur the cost of four parking passes and is on a waiting list for two for a total of six.

Credibility

[531] The evidence of the plaintiffs is overstated, exaggerated and extremely self-serving. The plaintiffs or either of them:

1. Claim the defendants are responsible for the premature birth of their daughter without calling any evidence to back up this allegation.

2. Lied when Landry swore an affidavit in support of the variance application. The obligation to tell the truth in this sworn document is the same obligation to tell the truth when sworn or affirmed in court.

3. Went to great lengths to paint the Merwins as aggressive and threatening but provided little or no detail.

[532] Landry, by lying in his affidavit shows that he will do whatever it takes to get what he wants.

[533] Oswin Spleit testified that he only told Lee Merwin not to touch his car again after finding a parking note on his windshield. Lee testified Oswin was agitated and aggressive and threatened to break his fingers. Lee’s evidence was corroborated by the independent evidence of Gerencser.

[534] Landry’s brother, Van Velden, yelled and spat at Esbeit when he was repainting the parking lines behind 608.

[535] Pinto is a friend of Jennifer’s and Davidson is Jennifer’s aunt.

[536] Love was unable to articulate why she found Merwin’s behaviour angry, aggressive, intimidating and scary.

[537] Urbanek was an employee of the plaintiffs and did not indicate he was afraid. Kubat was a client of Landry and could only offer a guess as to whether or not Lee’s car was running at the time he was taking a video.

Trespass

[538] “Trespass must be a direct intrusion onto the plaintiff’s lands, whereas a nuisance may be an indirect intrusion.” (Smith v. Inco 2010 ONSC 3790 at para. 37)

[539] “The plaintiff is entitled to compensation by damages sufficient to place him or her in the same position as if the wrong had not occurred. While trespass is actionable without proof or damage, where there has been slight injury or none at all, only nominal damages will be awarded. This is particularly so where the trespass was technical or unintentional or where the defendant acted under a colour of right or in order to avert the possibility of danger.” (Langille v. Schwisber, 2010 CarswellOnt 10561, paras. 158-169)

[540] Based on the case of Elizabeth Bagshaw Society v. Breton 1997 Carswell BC 2472, a tenant has a right to sue in trespass. At para. 58 the court stated:

58 The right to sue in trespass is based upon present possession. Thus a lessee, such as a plaintiff, has a sufficient interest in leased property to sue in trespass. Damages are only available insofar as they relate to harm caused to his leasehold interest.

Nuisance

[541] Nuisance consists of interference with the plaintiff’s use or enjoyment of land that is both substantial and unreasonable.

[542] Based on the case of Antrim Truck Centre v. Ontario (Transportation), 2013 SCC 13 (paras. 18-25), a private nuisance must be both substantial and unreasonable. Compensation will not be awarded for trivial interference. The court went on to state that, “there is a threshold of seriousness that must be met before an interference is actionable.”

[543] At para. 26 the court set out some of the factors, that could be taken into account with respect to the gravity of the harm, including:

1. the severity of the interference,

2. the character of the neighbourhood,

3. the sensitivity of the plaintiff, and

4. the frequency and duration of the interference.

[544] The court must also concern itself with whether a non-trivial interference was also unreasonable.

[545] Because the plaintiffs’ complaints have been set out previously in some detail, the Merwins’ submit briefly, that the plaintiffs’ allegations about the Merwins parking behind 608, making it difficult to navigate the 15-foot right-of-way, photographing people using 608 and being rude and threatening are simply not supported by the evidence.

[546] RTC was told by the owner of 610, that they could park in spots 6, 7 and 8 and they did not know about the east-west right-of-way. They had parked in spots 6, 7 and 8 for over 20 years without difficulty or complaint and stopped parking there after February 2017.

[547] With respect to Lee and Justin they are on service calls most of the day which would preclude them from loitering behind 608 for any significant period of time.

Intentional Interference with Economic Relations

[548] This is an intentional tort and is available in third party situations where a defendant commits an unlawful act against a third party, and thereby causes economic harm to the plaintiff.

[549] To prove intentional interference with economic relations, a plaintiff must establish that:

1. The defendant intended to injure the plaintiff’s economic interest,

2. The defendant’s interference must have been by illegal or of unlawful means, and

3. The plaintiff suffered an economic harm or loss as a result.

[550] As set out in Bram Enterprises Ltd. v. A.I. Enterprises Ltd. (2014) 2014 SCC 12 (SCC) (paras. 23, 45 & 86). The court must determine the following:

1. The means are unlawful if they support a civil action for damages or compensation by a third party, or would do so, except for the fact that the third party did not suffer any loss as a result of the defendant’s acts,

2. Unlawful conduct is limited to conduct that is actionable by the third-party or would have been actionable if the third-party suffered a loss,

3. To satisfy this element of the tort the onus is on the plaintiff.

Punitive Damages

[551] All of the Merwins’ conduct was reasonable and/or under a colour of right. Therefore, there should not be any punitive damage award.

[552] The court was referred to para. 121 of Midwest Properties Limited v. Thordarson 2015 ONCA 809 which states:

121 … The general objectives of punitive damages are to punish, deter, and to denounce a defendant’s conduct: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 (S.C.C.). at para. 68. An award of punitive damages should be rationally connected to one of these objectives: Whiten, at para 71. Factors relevant to determining the rational limits of a punitive damage award include whether the defendant persisted in the conduct over a lengthy period of time, whether the defendant was aware that what he or she was doing was wrong, and whether the defendant profited from the conduct: Whitten, at para. 1113.

[553] RTC reminded the court that the plaintiff Landry lied in his affidavit at City Hall.

The Plaintiffs Have Failed to Make Their Case

[554] The plaintiffs’ claims against the Merwin defendants for nuisance, trespass, and interference with economic relations raise the following complaints:

1. They park their vehicles behind 608, blocking the plaintiffs’ access or vehicles, and blocking the east-west right-of-way.

2. Some vehicles parked on 610 land, encroached into 608’s space.

3. The 610’s parking lot is not plowed appropriately.

4. They have taken photos of the plaintiffs along with their guests and patrons.

5. They have been rude or threatening towards the plaintiffs, their guests and their patrons.

[555] These allegations are not supported by the evidence which shows:

1. The plaintiffs parked in spots 6 to 8, based on their leasehold parking rights as tenants of 610.

2. The plaintiffs’ rights to park in those spots was confirmed by the landlord Esbeit.

3. As of February 2017, they stopped parking in spots 6 to 8.

4. Landry never interacted with Justin Merwin, and Jennifer only had one brief interaction with him.

5. Neither of the plaintiffs had any significant interaction with Tom Merwin.

6. Other than a 20-minute conversation with Lee Merwin to discuss the situation, neither of the plaintiffs had any other conversations with him.

7. The photographs taken by Lee Merwin have been limited to the parking issues in this litigation and involved where people parked, the volume of guests/patrons of 608 and the use they made of the 610 parking lot. They were also taken to gather evidence of what Lee Merwin thought were acts of trespass/nuisance and to avoid he-said/she-said scenarios.

8. The plaintiffs photographed and videotaped approximately 700 times, roughly double the volume taken by the Merwins.

9. Lee Merwin only went on the 608’s property once and that was to have a discussion with the plaintiffs.

10. Tom Merwin who had authority to issue parking for 610, only issued a single ticket when Jennifer was parked in spot 7. He could have issued tickets almost daily.

11. Delivery vehicles and trucks have no difficulty traversing the north-south right-of-way.

12. Although they had no warning from the plaintiffs when a large mobile crane arrived to hoist their HVAC system to their roof, Justin Merwin assisted in clearing the parking lot to allow the crane to enter and complete its task.

13. As a result of the plaintiffs continued use of 610, the Merwins had to purchase four parking passes for the nearby municipal lot and are currently on the wait list for two more passes.

[556] At the very least the Merwin defendants were acting under colour of right which was more than reasonable in the circumstances.

Have the Merwins (Plaintiffs in 17-63343) Met Their Burden of Proof

[557] Based on the evidence, the “Landry plaintiffs” have committed trespass and nuisance against RTC and Lee Merwin as follows by:

1. Placing a dumpster on 610 land and throwing debris into it endangering nearby vehicles.

2. Confronting the Merwins and other RTC employees and demanding that they not park in the 610’s parking lot behind 608.

3. Repaving and painting the parking lines on the 610 parking lot and blacking out parking lines for spots 6 to 8.

4. Having by-law officers issue a ticket to Lee Merwin for parking in the 610’s parking lot.

5. Parking throughout the 610 parking lot and having their family, friends and customers also parked there.

6. Allowing a large shipping truck to park in the middle of, and block the 610’s parking lot, without notifying the other users of the 610 parking lot in advance.

7. Yelling at, intimidating and threatening, anyone who informed the plaintiffs or their guests not to park on the 610’s parking lot. This includes Oswin threatening to break Lee Merwin’s fingers and Van Velden spitting towards Esbeit.

8. Landry hitting/bumping Thomas Merwin with a shovel.

9. Shoveling snow from 608 property onto parking spot 6, and preventing or making it more difficult to be used.

10. Painting the walls of 610 without permission or prior notice.

11. Monitoring the Merwins by taking substantial photos/videos and keeping a daily log of all vehicles in the 610’s parking lot including license plates.

12. Glaring in an intimidating manner at staff and clients of RTC.

13. Teaching martial arts in the 610 parking lot, including setting up multiple punching bags.

[558] Unlike the prior tenants of 608, who based on Lashmar’s evidence, would seek permission to park a vehicle or two on 610’s property, the plaintiffs did not do so, despite the survey confirming that 608 does not have enough space at the rear of their premises for parking.

Damages and Requested Relief

[559] The plaintiffs are guilty of the torts of trespass to property and nuisance to property by harming and impeding RTC’s use of its leasehold rights. As a result, RTC has had to purchase municipal parking passes and change their service call procedure due to parking lot congestion.

[560] The cost of three parking passes to replace spots 6, 7 and 8 at $65 per month per pass, for the period from March 1, 2017, to February 28, 2022, equals $11,700.

[561] In addition, RTC has had to incur the cost of four additional parking spaces, the total cost of which for the period of December 2020, to the end of February 2022, equals $3,900 which brings the total damages as of February 2022 to $15,600. Also, Lee Merwin seeks general damages for the plaintiffs’ continued nuisance and trespass against his rights as an employee of RTC Appliances to use the 610 parking lot.

In the Alternative

[562] At its heart this lawsuit is a property dispute between the plaintiffs and Esbeit who is the owner of 610.

[563] In the event the court makes adverse findings against any of the Merwins, their actions were based on an innocent and reasonably perceived colour of right by virtue of:

1. RTC’s lease which provides for five designated parking spots.

2. Information they received from their landlord.

3. They were not informed of the east-west right-of-way.

4. They had historical unimpeded use of the 610 parking lot, from 1993 to 2016.

[564] After the lawsuit was commenced the Merwins tried to de-escalate everything by no longer parking in spots 6 to 8.

[565] No damages should be awarded against the Merwin defendants based on inadvertence, mistake and colour of right. The Merwins were reluctantly dragged into what is truly a property dispute and have made every effort to de-escalate the conflict.

[566] These emotions got the best of Lee the day he entered 608 in the middle of a music lesson.

Findings

Prescriptive Easement

[567] If there is a prescriptive easement allowing the owners/tenants/patrons of 608 to park behind 608 and encroach on a narrow strip of 610 land it would have to have been obtained from the use of the 608/610 property for 20 years between 1972 to September 25, 1995. This is because the property was registered in the Land Titles System on September 25, 1995, and prescriptive easements cannot be obtained over land that is registered in the Land Titles System.

[568] All counsel agree that the court must apply the four-part test set out in Barbour v. Bailey, 2106 ONCA 98 at para 56.

[569] The law is clear with respect to proving, whether or not the owner of one piece of land known as the dominant tenement (608) has a prescriptive easement over land owned by another, referred to as the subservient tenement (610).

[570] The dominant tenement, here 608, must demonstrate that the owners/tenants of 608 had continuous, uninterrupted, open and peaceful use of some of 610’s land for the requisite period, which here would be for any twenty years period before September 25, 1995.

[571] The only witnesses with any knowledge of what use was made of the land behind 608 for this period of time, were Florence Miller, Jordan Teperman and Patrick Lashmar.

[572] All of their evidence has been previously set out, and I do not intend to refer to it extensively here.

[573] Lashmar became involved with 610 in 1977, when his father, (Herbert) who was his surviving parent passed away, leaving the property to him and his three siblings. He bought out his siblings’ interests in 610 in 1981. While his father was alive, his father dealt with 610 and did not discuss 610 with the children.

[574] He testified, that he and his father before him allowed the owners/tenants of 608 to parked behind 608. After testifying that his father did not discuss anything about 610 with him, he did not say how he knew or why he thought his father had given 608 some type of permission to park behind the 608 building. This is as good as the evidence got with respect to the “good neighbourliness” defence and I find it falls short of proving that concept in this case.

[575] Lashmar stated that the owners of 608, definitely wanted clear access to the rear of 608. Lashmar stated that he permitted 608 occupants to park on 610 property because it created fewer hassles for him, however he did not state that he formally or colloquially gave permission for 608 to park on 610 land.

[576] Overall, the parking lot was not busy during Lashmar’s involvement and there were no problems. He attended at 610 very infrequently and never really knew or paid any attention to who owned or leased 608 at any particular time. He thought that 608 might have been vacant on three or four occasions for up to a year or two at a time. Other than this bald statement and his attendance at the 608 building on one occasion in approximately 1985/86 when the textile business closed down, he could not assist the court any further with respect to any vacancies.

[577] Lashmar worked full time during the day, so other than infrequently attending 610 for a few minutes over his lunch hour, he simply was not there during “business hours”. The gist of his evidence was, that 610 as a rental property, including the parking area, functioned very well with virtually no on-site physical overseeing by himself.

[578] Florence Miller was very involved in 608, both as the wife of one of the original owners and later as a one-half owner, after her husband’s death.

[579] Her evidence was, that she and her husband Abraham always parked behind 608 and her husband did so at least six days a week. She stated that her husband would never buy a property, if he could not have parked his own car on it and have deliveries made right to the back door.

[580] She would have been the beneficiary of half of the rent paid by tenants of 608. Therefore, she would have known if the building was vacant at any time between 1985 and 2016 when it was sold. She denied that 608 was frequently vacant after her husband’s death. It was her testimony that they never had any problem renting the property and that 608 tenants always parked behind 608.

[581] She further testified that if anyone had complained about parking after 1985, she would have known, and nobody complained.

[582] The suggestion that her testimony should not be believed, because she thought the lawsuit over the parking issue was silly and she may have been a little testy, does not detract from her knowledge of the parking related issues.

[583] The suggestion that she may have been untruthful, because otherwise she might get sued for having given false information to the listing realtor, is a red herring and wishful thinking.

[584] The suggestion that Miller was hiding something or giving false evidence because she no longer has leases pertaining to 608 prior to 1995, is a flight of fancy.

[585] Jordan Teperman (the grandson of Florence Miller) was born in 1982 and recalls attending 608 as a young boy with either with his grandparents or mother and they always parked directly behind 608.

[586] This recollection would have been from when he was 3 or 4 years old. Most of the remainder of his evidence was not germane to the parking issue prior to 1995, however he became more involved with 608 in the early 2000’s and stated that the dance school tenants continued to park behind 608 until it was sold in 2016.

[587] The suggestion that 608 and its patrons should not be allowed to use the back door of 608 is ridiculous and certainly the Millers and their patrons used the back door. The fact that the owners and instructors of the dance studio parked at the back of 608 but used the front door as their entrance into the building is a red herring. What is relevant, is that the tenants of 608 parked behind 608 up until 2016. There is absolutely no reason for the plaintiffs, along with their friends and patrons, not to use the back door of 608.

[588] The fact that the plaintiffs reside on the second floor of 608 is also a red herring.

[589] The suggestion by Lashmar, that 608 was not rented out when he attended the building for a brief period of time in approximate 1985, does not assist the court. This evidence is about one short instant in time, which perhaps lasted for several minutes. Florence Miller acknowledged that 608 was vacant for a brief period of time after the textile business was shut down and before it was rented to a dance studio.

[590] The suggestion that there is no necessity for the plaintiffs to be able to park behind 608 because there is paid municipal parking available in the area, misses the point. I find, as was commented on in in the Barbour and Depew cases, that parking for the plaintiffs behind their home (608) is reasonably necessary for the better enjoyment of the dominant tenement.

[591] The submission that the plaintiffs allow and promote the use of 610’s parking lot to allow their patrons to park there is not borne out by the evidence. The documentary and photographic evidence is to the opposite. The plaintiffs have posted signs at both the front and back entrances to 608, telling their patrons they cannot park in the 610 parking lot and directing them to the paid municipal parking lot. In addition, Jennifer places a similar notice on her website and in her monthly newsletter to her patrons.

[592] I find that the plaintiffs and the parents of their patrons have the right to use the rights-of-way, to access the area behind 608 to drop off and pick up their children.

[593] Nothing in this judgment should be interpreted as giving the plaintiffs’ patrons any rights to park anywhere on the 610 parking lot. If they do, that is a parking issue to be dealt with by Esbeit. It is not an issue for this court.

[594] This case is not about the intensification or difficulty with respect to the use of the parking lot on 610’s land, however I wish to make the following comments with respect to the intensification of use and navigational problems which came out in the evidence:

1. Neither right-of-way is delineated (painted) on the pavement, so the public is not aware of the rights-of-way.

2. Much like the dance studio, Jennifer’s music studio (which encompasses almost all of the defendants’ complaints) has similar business hours from approximately 4:30 p.m. to 9:30 p.m. The dance studio operated from the mid 1980’s until 2016. The owner of the studio and at least one instructor always parked directly behind 608. The evidence from the defendants is that this use by 608 did not create a problem prior to 2016.

3. Based on the above sentence, RTC never explained why their technicians could not gather in the morning to talk together and receive their instructions for the day, as they had done prior to 2016.

4. There was no evidence about whether the intensification on the parking lot is because RTC’s business has expanded, but this may be the case. It appears that RTC’s business has grown, because they have essentially lost approximately 2 or 3 parking spots, but have purchased/applied for six municipal parking spots. The logical numerical conclusion, is that their business is doing well, and they have an expanded need for parking.

5. There was no evidence with respect to what use the other tenants of 610 make of the parking lot or its rights-of-way.

6. Although the court does not know the size of the vans RTC had previously, based on the pictures and videos, RTC’s current vans are substantial vehicles when compared to a car. A van when parked because of its width would put spatial pressure on the two adjoining parking spots. Because of the van’s length, it would also put pressure on or encroach on the 15-foot north-south right-of-way, which for practical purposes runs down the middle of the 610 parking lot. The RTC van’s mere presence in a parking spot would make backing out from an adjoining spot more difficult, both from a visual and spatial point of view.

7. There was no evidence about whether, and if so when, RTC purchased more vans.

8. The original north-south right-of-way (Appendix A - Ex. 7) looks like it was designed, to allow for parking only against the western edge of the 610 building, not both there, and at the western edge of the 610 lot.

9. It was likely Lashmar’s father Herbert, who allowed vehicles to start using the 15-foot right-of-way, as if it existed down the middle of the north-south orientation of 610’s parking lot. At that time (likely in the early seventies) from his point of view, this alteration of the right-of-way practically doubled the number of parking spots he could squeeze onto the parking lot. This change appears to be responsible for some of the logistical problems that all parties are now concerned with.

10. The space between the west wall of 610’s building and the westerly perimeter of 610’s lot is approximately 48 feet wide. When the right-of-way was maintained along the westerly limit of Lot 610 there would have been no problem for cars to pull into or pull out of the parking spaces that abutted the west wall of 610’s building, and the parking spots may have been perpendicular to the building wall rather than angled.

11. Currently however, the easterly most parking spots which abut 610’s building, are angled in an east-west orientation and the parking spots along the western edge of 610’s lot are angled in a north-south direction. Because of this configuration more space is needed in the middle of the parking lot (where the de facto right-of-way is) to allow a driver to safely back out of an angled parking spot and to orient their vehicle, so it faces in a southerly direction which would allow them to exit onto Genesee Street by driving forward.

12. The approximate distance between the rear of the 610 building and the westerly edge of the 610 lot is approximately 48 feet. Since the right-of-way is 15 feet wide and allowing for at least 1 foot between a vehicle’s bumper and the edge of the parking lot/building, would leave a maximum of 14 - 15 feet for the length of each parking space if the parking spaces were configured perpendicular to the 610 building and the western edge of its lot. If a 14 to 15-foot vehicle were parked in an angled parking spot it would extend beyond the above calculated 14 - 15 feet and into the right-of-way.

13. Of course, the larger the vehicle the larger the practical problem to fit within the designated parking place and to back up and exit safely.

14. I believe there was evidence, that it is possible to exit the parking lot in a northerly direction through Lot 606. If this is a viable means of exiting the 610 parking lot, particularly during what appears to be the busy student drop off time at 4:30 p.m., it would allow parents to leave the 610 lot going north, rather than having to stop, turn around and try to leave the lot in a southerly direction onto Genesee Avenue. This could be of great assistance to the 4:30 p.m. congestion problem.

[595] On a balance of probabilities and based to a great extent on the testimony of Florence Miller, I have no difficulty finding that the owners/tenants of 608 had continuous, uninterrupted, unobstructed, open and peaceful use over the land of 610 to access and park on the land 608 owned behind the 608 building, along with a narrow strip of 610 land immediately to the west of the 608 land which I would estimate to be approximately 3 - 4 feet in width.

[596] I find that this use of 610’s land by 608 (both for access and parking) existed from sometime starting in 1972 and continued up to and beyond September 25, 1995, when the property was registered in land titles in 1995. On the evidence before me it continued up to 2016.

[597] Therefore, 608 has a prescriptive easement over the lands of 610 to allow 608 access to and use their parking lot on land owned by 608 and situated to the west of the 608 building envelope. To explain it another way, 610 shall not allow its tenants to park on that portion of 610 land, that borders 608 land. That is, where the westerly border of 608, abuts the easterly border of 610’s parking lot.

[598] In addition, because of this judgment the parents of the plaintiffs’ patrons will be able to pull in directly behind 608 for the purposes of dropping off or picking up their children. Nothing in this judgment gives the plaintiffs’ patrons any rights to park in 610’s lot.

[599] Given the fact that there was/is an east-west right-of-way and Esbeit’s testimony that he thought 608 had the right to park in spots 7 & 8, it is extremely unfortunate that the parties could not resolve this matter short of an expensive eight-day Superior Court trial.

Damage Claims

[600] Although submissions by the parties with respect to damages were broken down into the categories of nuisance, trespass, intentional interference with economic relations and punitive damages, the lines in their submissions tended to get somewhat blurred.

[601] Many of the alleged wrongdoings by the opposite party were recited under more than one category.

[602] In addition to the above, I have taken into account the following:

1. That the plaintiffs as the “new kids on the block” could have done more, at least at the start, to try to talk to the owner of 610.

2. The parking issue raised its head shortly after the plaintiffs started renovating 610. While calling the number on the side of the building was an obvious thing to do, Landry seems to have done little else.

3. Other than leaving a phone message, that never got returned and giving his card to one of the Merwins to pass it on to the owner of 610, he did little else except to proceed forward with his building plans.

4. It was obvious to Landry that he needed to talk to the owner of 610, because the Merwins were telling him he had no parking rights.

5. In addition, he needed to get building materials to the back of his property and construction waste carted away from the back of his property.

6. There was no evidence that he contacted his real estate agent or lawyer, both of whom would likely have been able to track down contact information for Esbeit in short order.

[603] Before dealing with the damage claims I wish to set the following findings of the court:

1. The allegation that Landry purposely hit Tom Merwin with a shovel is demonstrably false. The court is surprised, based on the measured way Tom Merwin gave his evidence, that he persisted with this allegation. The video does not show Landry hitting or even slightly touching Tom with a shovel. If anything, it appears that Tom, while shoveling snow off a sidewalk, may have inadvertently, while making a backward movement, brushed up against Landry. This allegation is beyond tempest in a teapot.

2. With respect to the allegation that Landry paved and painted lines on 610 property, the survey (Appendix A – Ex. 7) tends to show that the westerly end of Lot 608 extends approximately 3 feet beyond the westerly wall of the 610 building. There was a debate as to whether or not the picture on the survey was accurate, with Esbeit submitting that the distance is only a matter of an inch or so and not 3 feet. In any event, the picture would allow Landry a colour of right with respect to where he paved and painted. Notwithstanding the foregoing, it seems unusual when doing something so close to a boundary line, that in this case Landry did not verify exactly where the boundary was and from a neighbourly point of view, talk to/notify Esbeit. Under the circumstances, the court acknowledges that it likely would have been difficult to get Esbeit’s consent and that would have delayed the plaintiffs in improving the back of their property, at least until they had a surveyor come out to verify the lot line. The situation however can be described by the old adage “it is easier to ask for forgiveness than it is to get permission”.

3. The complaints by the plaintiffs, about them, their daughter and Jennifer’s students ending up in videos, is simply a fact that for the most part they were caught by RTC’s security cameras which capture everything that goes on behind 610’s building. There is no evidence to suggest that the videos and pictures were used for any other purpose than this litigation. This is also true about all of the videos and pictures produced as evidence. They were not made for any nefarious purpose.

4. If Lee Merwin called the police about the alleged threat to break his fingers, no police report was produced and no police officer was called to testify.

5. The large truck in Exhibit 112 was parked in the north-south right-of-way and was blocking three or four cars for about half an hour. It was alleged to have been there at Landry’s request which he did not deny. While it seems obvious that a truck this size would be dropping something off, the court did not receive any explanation as to why the truck was there. There was also no evidence that any prior warning of the truck’s arrival was given to other users of the 610 parking lot, particularly RTC. That was however parked there for a very short period of time.

6. The allegation of Oswin gritting his teeth, clenching his fists and being menacing towards Lee Merwin is a complete fabrication based on the video evidence. The court finding with respect to this allegation is the same as it was for the alleged Landry – Tom Merwin shovel incident.

Plaintiff’s Damage Claims

Nuisance

[604] The plaintiffs’ main complaints, are that the defendants, mostly RTC and its employees (Lee and Justin Merwin) continually and purposely:

1. Parked in parking spots 6, 7 and 8, in an effort to prevent them from using land owned by them as a parking lot. From the plaintiffs’ perspective this was almost a daily occurrence and occurred even when other parking places were available in the lot. It continued, particularly with respect to spot 6, (by Justin) even after the statement of claim was served in February 2017.

2. Parked on the east-west right-of-way which would encompass all or part of parking spots 7 & 8.

3. Took videos and photographs of the plaintiffs, their guests, and patrons.

4. Took pictures and confronted their patrons (mostly women and children) about parking. Lee and Justin, both males were frightening to their female patrons and made the plaintiffs feel uncomfortable in their home and concerned for the safety of their daughter and the children in their care.

[605] The plaintiffs would certainly consider it a nuisance not to be able to park behind 608.

[606] I find that the Merwin defendants, Justin and Lee are guilty of nuisance simply by the fact, that for at least several months they parked on the east-west right-of-way. In addition, they went out of their way on several occasions to purposely park vehicles to block the plaintiffs’ vehicles and make access to the rear door of 608 particularly by someone with a stroller or large musical instrument very difficult.

[607] They were intent on using self-help to get the plaintiffs to “back off” from what they considered, the plaintiffs “illegal” demand for parking rights. Parking rights that they considered to belong to RTC.

[608] For some reason Lee, the son of a tenant, (Tom Merwin – RTC) felt it necessary to appoint himself as:

1. The parking sheriff,

2. The Covid-19 sheriff with respect to Landry teaching students outside behind 608,

3. The safety sheriff with respect to his expressed concern about the plaintiffs’ vehicles, potentially blocking their back door of 608 which he and Esbeit referred to as an emergency exit, and

4. The paint police with respect to 610’s northern wall.

[609] Their nuisance is tempered to some extent by the fact that they were unaware of the east-west right-of-way and when they became aware of it, for the most part no longer blocked it.

[610] In addition, the Merwins have a colour of right argument. They essentially had had an unfettered right to park in 610’s parking lot since 1993 and their landlord supported that position after the plaintiffs moved into 608.

[611] Both parties took photographs and videos. Although there were several hundreds of these, most of them were downloaded from security camera videos which run 24/7. Both sides blamed the other for essentially monitoring them all the time.

[612] Although it may be unnerving to have a security camera pointed in your direction, in this case the RTC cameras appear to be oriented along the west and south walls of 610’s building. This appears to be exactly where any business operating out of the southwest corner of 610, would focus their cameras. In other words, they do not appear to be pointed in inappropriate directions.

[613] In addition, the plaintiffs kept a parking log of all vehicles in the parking lot including RTC’s.

[614] Under the circumstances of the parties:

1. Operating under the atmosphere of this lawsuit,

2. Wanting to present the best evidence to the court that they could, and

3. Trying to avoid he-said/she-said scenarios,

I find that the photography and videography of both parties, does not rise to the level of a civil nuisance. As set out previously in this judgment some of the allegations particularly of the Merwins, have been found not to be true because of the videos which were produced.

Trespass by the Defendants

[615] The plaintiffs claim for trespass onto 608 land includes:

1. Lee entering 608 through the back door without knocking.

2. Esbeit congregating with two or three other men behind 608 on November 9, 2016, and

3. Being constantly surveilled and having photos and videos taken by the defendants.

[616] The court has previously ruled on the issues of surveillance, photos and videos.

[617] Although it would have been much better for Lee to knock before entering 608, the court finds that his intention was to try to discuss a possible resolution of the situation. In fact, this is exactly what he tried to do after he was directed by Jennifer to speak to Landry, which he did.

[618] It is difficult to determine whether Esbeit was on 610 or 608 property.

[619] Although there may have been a technical trespass committed by Lee, based on the foregoing, I am not prepared to award any damages for trespass.

Intentional Interference with Economic Relations

[620] There is virtually no evidence to show that the plaintiffs suffered any financial business losses as a result of the defendants’ conduct.

[621] This case is about a parking problem. It is essentially between the owners of 608 and RTC, a tenant of 610, although there were minor incidences between 608 and Esbeit, the owner of 610.

[622] I would not award any damages under this heading.

Punitive Damages

[623] Based on the case law, the plaintiffs submit that relevant conduct includes, whether:

1. The defendants’ conduct persisted over a lengthy period of time,

2. The defendants were aware of what they were doing was wrong, and

3. The defendants profited from the conduct.

[624] The conduct complained about includes:

1. Esbeit allowing parking on the east-west right-of-way and profiting by renting those parking spaces.

2. Esbeit along with two or three other men threatening Landry.

3. The Merwins deliberately obstructing the east-west right-of-way for years after learning of its existence.

4. The Merwins deliberately blocking in the plaintiffs’ vehicles.

5. The Merwins sustained campaign of conduct that the plaintiffs, their friends and patrons found disturbing and the Merwins continued inappropriate monitoring after the lawsuit was commenced.

[625] It is unclear how intentional it was that Esbeit allowed parking on the east-west right-of-way. However, as the owner of 610 he is deemed to know that the east-west right-of-way was there and it would certainly have come to his attention shortly after February 2017.

[626] There is no evidence that Esbeit profited by allowing parking on the east-west right-of-way. There is no evidence that Esbeit charged extra for parking and he only guaranteed RTC five parking places. Therefore, the evidence does not show that he made any more money by allowing RTC or anyone else to park on the right-of-way.

[627] There is evidence, that at least until February 2017, Justin and Lee Merwin went out of their way to intentionally block the plaintiffs from using parking behind their building and to make access very difficult even for pedestrians, particularly those with strollers or large musical instruments, from accessing the back door of 608.

[628] Subsequent to February 2017, there is evidence that the Merwins’ intentionally parked their vehicles on that portion of parking spot 6 that is to the north of the northerly building line of the 610 building. They did this even when there were other parking spots available on the lot. This made getting in and out of 608 parking lot more difficult and the Merwins knew it.

[629] Taking videos and pictures of people and cars using the parking lot, in the midst of a parking lot dispute and based on the allegations in this lawsuit, does not give rise to punitive damages. I accept the explanations of the Merwins that the photographs and videos were only going to be used for evidence in this lawsuit. I am also cognizant of the fact that the plaintiffs also took numerous videos and photographs for the same stated purpose. In addition, many of the videos were unobtrusively downloaded from security cameras which simply record everything.

[630] It’s difficult to separate the actions complained about by the plaintiffs with respect to the various claims for monetary awards.

Quantum of Claims

[631] I am going to deal with the plaintiffs’ quantum claims for nuisance and punitive damages together.

[632] Very little time spent on the quantum issue by either party. The main case referred to by the plaintiffs was the Ontario Court of Appeal decision in Krieser. In that case a contractor (Nealon) constructed a dock on Lake Simcoe for the Garbers. The dock was not built, in accordance with the building permit. The dock as constructed, restricted Krieser’s use of his waterfront and caused him to have to park his 33-foot boat at a marina.

[633] The trial judge awarded Krieser an injunction, such that the dock had to be relocated and awarded punitive damages against both Nealon and Garber. The Court of Appeal set aside the punitive damage award against Nealon, but confirmed the punitive damages award with respect to Garber. The injunction was upheld.

[634] Krieser alerted Garber to the fact that the dock was being built too far to the west early in the dock construction. Despite the warning/request from Krieser, Garber continued and completed the dock. Krieser then offered to pay the entire cost to have the Garber dock moved so it would comply with the building permit and allow him his previously enjoyed waterfront access. This offer was not accepted by Garber.

[635] The Court of Appeal held, that even if Nealon’s (the contractor) initial non-compliance with the permit was intentional, “his conduct was not so outrageous that punitive damages were rationally required to punish, deter and denounce” (para. 112).

[636] The Ontario Court of Appeal upheld the punitive damage award against Garber in the amount of $100,000, based on the “protracted nature of the interference”, “Garber’s failure to accept Krieser’s offer” and the need to “punish and denounce Garber’s conduct and deter similar conduct” (para. 120).

[637] It seems to this court, that by far the largest single factor in the trial judge’s punitive damages award of $100,000 against Garber, was Garber’s failure to accept Krieser’s generous offer to cover the cost of relocating the dock so it would comply with the building permit. When this offer was made, Garber would have known that the dock been improperly constructed. In fact, he had been warned about it during its construction. Had the offer been accepted there would have been no need for a trial.

[638] Also, in the Krieser case, Krieser was for the most part not able to use his boat on the waterfront in front of his cottage and was not able to park his boat at his cottage.

[639] In the case at bar, there was no Krieser-like offer and the plaintiffs have for the most part, subject to the previously stated difficulties, been able to park behind 608.

[640] However, the court finds that there was a protracted nature of interference by some of the Merwin defendants and further finds that such purposeful behaviour between neighbours needs to be punished, to denounce their behaviour and deter other such neighbourly disputes from festering.

[641] I have taken into account that the defendants lessened their interference with the plaintiffs parking to a notable degree after the service of the statement of claim in February 2017.

[642] I therefore make the following nuisance/punitive awards:

1. Against Esbeit in the amount of $15,000. He was the property owner and the only one who could legally deal with the situation. He knew or ought to have known about the east-west right-of-way and in any event after the lawsuit was commenced, he appears to have done nothing with respect to the right-of-way. It appears he encouraged and supported the Merwins position thereby emboldening them.

2. Against Lee Merwin in the amount of $10,000. His part in this dispute has been detailed at some length previously in this judgment.

3. Against Justin Merwin in the amount of $5,000. His part in this dispute has been detailed at some length previously in this judgment and was less than Lee’s part.

[643] I make no punitive award against RTC or Tom Merwin.

Merwin/RTC Damage Claims

[644] The Merwins claim damages for nuisance and trespass against the plaintiffs for:

1. Placing a dumpster on 610’s land. It was admitted that there was a dumpster behind 608, but there is no photographic evidence that it was on 610 land. In any event it was there for two weeks, was necessary for the plaintiffs to undertake the renovations and perhaps impacted one or two parking spots. I find this claim ridiculous and petty and would not award damages for it.

2. Confronting RTC employees including the Merwins with respect to parking behind 608. This is akin to the pot calling the kettle black. I would not award damages to either party for telling people where they can and cannot park under the circumstances here, where they both had a colour of right.

3. Repaving and painting parking lines on 610 property and blackening out parking lines for spots 6, 7 & 8. In addition to the survey suggesting that 608 owned the land that it paved, the parking lines as previously painted by Esbeit were incorrect, because they allowed for parking on top of the right-of-way. I would not award damages under this complaint and in any event not to a tenant.

4. Having a ticket issued to Lee Merwin claiming he was parked on 608 property. Although the by-law officer may have written down that Lee’s car was parked on 608 property, it was in fact parked illegally on the east-west right-of-way. I would not award damages under this complaint.

5. Parking throughout the 610 parking lot and allowing their family, friends and customers to also park there and allowing a large shipping truck to park in the middle of the 610 parking lot without advance notice. There is no evidence to support the allegation that the plaintiffs allowed anyone other than themselves to park on the 610 parking lot. The large shipping truck appears to be a one-off situation for which I would not award damages for nuisance or trespass. In addition, Esbeit had a large truck parked which substantially encroached on the north south right-of-way for a few days.

6. Yelling at, intimidating and threatening anyone who informed the plaintiffs or their guests not to park on 610 land, including also threatening to break Lee’s fingers and Van Velden spitting at Esbeit. The court has already found that there is insufficient evidence for it to make a finding that Oswin threatened to break Lee’s fingers. Since Esbeit never told the court that anyone spit at him, the court finds that this allegation has not been proven.

7. Landry hitting Thomas with a shovel. The court has already determined that this ridiculous and petty allegation never happened.

8. Shoveling snow from 608 land onto a parking spot 6. Although it appears that Landry did shovel some snow onto parking spot 6, this appears to be an issue that should be taken up with the landlord, since numerous photos/videos show a lack of winter maintenance when it comes to snow. While this may technically be a nuisance or trespass, under the circumstances of this case I would not award any damages.

9. Painting the wall of 610 without permission or prior notice. This is not a claim the Merwins can make. While it would have been better if the plaintiffs had contacted Esbeit before they painted the wall, the last time they asked for permission to freshen the paint on the same wall, Esbeit refused to allow them to do so, even if they paid for it. In this instance with young people walking by this wall and the wall unfortunately having gross graffiti on it, I would not award any damages. In addition, the plaintiffs used exactly the same colour of paint that had previously been used. This is another petty and ridiculous claim.

10. Monitoring the Merwins by taking substantial photos/videos and keeping a daily parking log. This has been dealt with previously and I would not award damages to either party for taking pictures in furtherance of their court action.

11. Glaring in an intimidating manner at staff and clients of RTC. There is virtually no evidence of this whatsoever.

12. Teaching martial arts in the 610 parking lot, including setting up multiple punching bags. I find this allegation to be absolutely ridiculous and petty. Based on the video, Landry or his student stepped onto 610 land while they were doing martial art exercises at the back of 608 during Covid restrictions. I would not award any damages for such an allegation.

[645] Based on the above reasoning and this court’s findings that the plaintiffs have a prescriptive easement for parking behind 608, the damage claims of RTC and the Merwin defendants are dismissed.

[646] RTC and the Merwin defendants submitted in the alternative, that no damages should be awarded against them because:

1. This was a dispute between property owners, being the plaintiffs and Esbeit,

2. They were acting under a factual mistake and colour of right, and

3. They made every effort to de-escalate the conflict.

[647] They are correct that any ultimate resolution would have to be between the property owners, however the Merwins’ inserted themselves right in the thick of things. In essence it was their concern/fight over parking rights which caused the plaintiffs to launch this lawsuit.

[648] While Justin made the friendly and neighbourly gesture of clearing the parking lot for the truck crane to lift the plaintiffs' HVAC, and Lee discussed the issue with Landry in a civilized manner, most of their actions were calculated to try to get the plaintiffs to back off from their parking claims.

Esbeit’s Damage Claims

[649] Although Esbeit in his counterclaim requested damages for nuisance, trespass, harassment, intentional interference with economic relations in addition to punitive damages these claims were not pressed in summation.

[650] Based on my previous findings and reasons I would have dismissed these claims in any event.

[651] Esbeit’s main request was to have the court deny any prescriptive easement for parking. This has already been dealt with.

SUMMARY

[652] There shall be a declaration that the owners of 608 (the plaintiffs) have a prescriptive easement over the lands of 610 follows:

1. The owners of 608 are entitled to clear and unobstructed access to the back of their lot.

2. The owners of 608 are entitled to use such portion of the land of 610, that is adjacent to and immediately west of the rear property line of 608 sufficient to allow them to park three motor vehicles, together with the use of such additional lands as are necessary to allow for their ingress and egress to the said parking spaces.

[653] The plaintiffs are entitled to punitive damages and damages for nuisance in the following amounts:

1. Against Esbeit Enterprises Inc. in the amount of $15,000.

2. Against Lee Merwin in the amount of $10,000, and

3. Against Justin Merwin in the amount of $5,000.

[654] The plaintiffs are entitled to their costs.

[655] All claims not referred to in this summary are hereby dismissed.

[656] Counsel may wish to consider whether they need two judgments. I raise this issue because one judgment is likely going to be registered on the title of both properties.

[657] If the parties are unable to agree on costs, Mr. Duxbury shall forward his brief submissions on costs to me by March 25, 2022. Mr. Sakran and Mr. Lasani shall forward his brief response to me by March 30, 2022. Mr. Duxbury shall then forward his reply, if any, to me by April 1, 2022. Since counsel have my judicial email address cost submissions may be sent to me directly by email with all other counsel being copied. Cost submissions, excluding bills of costs shall be limited to 5 pages, using spacing of 1.5 and 12 pitch font.

[658] If counsel feel there is anything missing from this judgment I may be contacted before the issue of costs has been decided.

James W. Sloan

Released: March 18, 2022

COURT FILE NOS.: CV-17-60647 and CV-17-63343 (Hamilton)

DATE: 2022/03/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robert Landry and Jennifer Spleit

Plaintiffs

– and –

Esbeit Enterprises Inc.,

Thomas Merwin and

Justin Merwin

Defendants

AND BETWEEN

332546 Ontario Inc. o/a RTC Appliances and Lee Merwin

Plaintiffs

and –

Robert Landry and Jennifer Spleit

Defendants

REASONS FOR JUDGMENT

J.W. Sloan, J.

Released: March 18, 2022