Watt v. Guest, 2022 ONSC 2641

COURT FILE NO.: CV-21-86399 DATE: 2022/05/02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Gordon L.D. Watt and Joanne Ethel Watt Applicants – and – Robyn Mary Guest and Christopher Michel Swail Respondents

Counsel: Samuel Zakhour, for the Applicants Andrew Ferguson, for the Respondents

HEARD: January 31, 2022

Reasons for Decision on Motion for Interlocutory Injunction

SOMJI J.

Overview

1The applicants Mr. and Ms. Watt (the “Watts”) seek a permanent injunction and interlocutory injunction to stop the respondents, their neighbours Mr. Swail and Ms. Guest, from removing an existing fence and constructing a new fence situated between their properties.

2This decision addresses the interlocutory injunction. The court must determine if an injunction should be granted to prevent the respondents from taking any action in relation to the fence and to protect the Watts’ interest until trial or other disposition of the action.

3The wooden fence at issue sits on a laneway owned by the City of Ottawa (“City”) and borders the back of the parties’ properties (“boundary fence”). The Watts’ brought their application in the spring of 2021 after the respondents advised them of their intention to build a new fence in the summer.

4The respondents argue that while it was their plan to build a new fence, they only intended to do so with the City’s approval given the proposed fence would continue to run along a laneway owned by the City. When the respondents informed the Watts of their intention to build a new fence on April 12, 2021, they understood that the City supported their plan.

5However, on July 21, 2021, after the Watts had commenced a legal action, a City Planner informed the respondents that it will tolerate the existing fence as a legacy fence and will not permit any new encroachments in accordance with City policies. In short, if the respondents wished to erect a new fence, it has to be built on their own property and not on the laneway. Consequently, the respondents are unable to remove and replace the boundary fence because doing so would bring them in breach of the City’s polices. From their perspective, the issue is effectively moot, and the Watts have not met the criteria for a court injunction.

6The City is not named as a defendant in this action. Given that the boundary fence is on their property and their employees were involved in representations made to both parties in the spring of 2021 regarding the proposal for a new fence, I added the City as a party to the proceeding and to respond to specific questions which they have complied with.

7This motion addresses whether the Watts have met the three-part test set out in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 for an interlocutory injunction. The court must determine:

1. Is there a serious issue to be tried?
2. Will the Watts suffer irreparable harm if an injunction is not granted?
3. Does the balance of convenience favour an injunction?

8Upon review of the affidavit evidence filed and the submission of the parties, I find that the Watts have not met the test for the granting of an interlocutory injunction.

Background Facts

9The Watts have resided at 435 Piccadilly Avenue in Ottawa since 1985. The respondents have lived at 436 Mayfair Avenue since 2011. The boundary fence sits along a municipal laneway classified by the City as a Class B, Type 6 lane, which is described as a lane that is unmaintained and occupied by abutting owners. While the lane is shown on Plan 397 and was registered in 1921 as a public lane under the sole jurisdiction of the City, it has not been used according to Mr. Watt as a public laneway since the 1950s.

10Over the years, property owners have built gardens, pools, and sheds that encroach onto the laneway and in doing so, have effectively extended their property usage onto City property. Property owners have also erected fences along their now extended backyards. The boundary fence is one such fence. It was built in 1950 and reinforced by the Watts in 1987. Despite these encroachments, it is not disputed by either party that the City of Ottawa continues to own the laneway property and that it has telephone, electricity, and sewer lines running above and below. Neither the Watts nor the respondents have an encroachment agreement nor have they paid any encroachment fees to the City.

11The boundary fence does not run down the middle of the laneway such that both the Watts and the respondents’ properties encroach equally onto the laneway. The boundary fence is situated such that the Watts occupy about 80% of the laneway and the respondents about 20% of the laneway. This has been troubling for the respondents not because of the unfairness of the division, but because the fence is 30 years old, degrading, and sufficiently close to their own property such that that they cannot build a fence along their own property line with proper footings without extending several feet into their own backyard. The respondents’ concerns about the degradation of the fence were corroborated by the affidavit of Peter Finnegan who was the previous owner of 436 Mayfair Avenue between 1989 and 2011.

12When the respondents proposed removing the boundary fence and building a new fence in the spring of 2021, they did not propose building it in the same spot, but repositioning the fence in the middle of the lane so that each property would encroach equally into the laneway. As might be expected, the Watts were not pleased about this proposal as it would have impacted their garden beds and backyard space which they have enjoyed for over 35 years.

13The respondents had not involved the Watts in their consultations with the City about a new fence which commenced in 2019. The Watts were only made aware of the proposal for a new fence when the respondents slipped a letter in their mailbox on April 12, 2021. In the letter, the respondents informed the Watts that, in consultation with the City, they had been instructed to build a new fence in the middle of the laneway and expected the work to begin in July 2021. The letter stated that the City had confirmed this placement upon certain conditions, and the City would reach out to all impacted parties to confirm the placement of the fence prior to its installation. Should the Watts have any questions and wished to clarify the City’s position, they should contact Laureen DiNardo at the City.

14When the respondents deposited the letter in the Watts’ mailbox, they understood based on their consultations with the City that they could either rebuild the boundary fence with agreement from the Watts or upon approval by the City which they understood they had. They would later learn from the City Planner that this was not the case.

15The Watts replied in a letter dated April 13, 2021. They thanked the respondents for their letter regarding the repositioning of the boundary fence. They informed the respondents that it was very unlikely that the City had instructed them to rebuild the fence because the Watts had previously obtained an injunction against the City from interfering with the boundary fence when a previous owner of 436 Mayfair had proposed something similar 30 years earlier. The Watts informed the respondents that given it was the respondents’ intention to tear down the boundary fence to realign their rear lot line, they would be retaining counsel to obtain an injunction to stop them. There would be no need for an injunction if the respondents left the boundary fence where it is. They offered to speak to the respondents further about the legalities of the issue.

16Ms. Watt also contacted the City representative Laureen DiNardo and understood from their conversation that the City had not made any order to remove the fence.

17The Watts filed for an interlocutory and permanent injunction against the respondents on May 1, 2021. Counsel for the Watts explained that even though the boundary fence sits on City property, the Watts did not seek an injunction against the City because they trusted that based on an earlier undertaking from the City, the City would not interfere with their encroachment. They did not have that same confidence in their neighbours.

18On July 13, 2021, I adjourned the motion to hear further arguments on the legal issues. Given the boundary fence sits on a laneway owned by the City, I ordered that the City be added as a party to the proceedings. I also ordered the parties to make best efforts to locate the original litigation file from the archives of the Superior Court of Justice to determine the existence of any previous injunction or City undertaking in relation to the boundary fence: Endorsement of Justice N. Somji, Superior Court of Justice, July 19, 2021.

19Following the adjournment, counsel for the City filed a factum responding to my questions and setting out the City’s position. The City’s factum clarified several issues in dispute. First, the City explained that on April 24, 2013, the City approved and adopted the Urban Lanes Management Polices and Standards (“Policy”) which applies to all City-owned lanes including the boundary fence. The Policy provides that the City is always entitled and without notice to access any utilities or City piped infrastructure located along City lanes. In other words, notwithstanding that various property owners have encroached the laneway, the City has the right to remove and excavate the lane at any time. For example the sewer pipe located under the laneway of the boundary fence is from the 1930s and renewal work on the sewer is anticipated in the future.

20Second, and perhaps most important for this matter, the Policy provides that the City will tolerate existing or legacy encroachments that were in place as of 2012, but it will not permit any new encroachments. According to the Policy, a legacy fence will be tolerated:

a. For the duration of the life cycle of the fence, following which, the encroachment should disappear and any replacement fence to be erected on private property,

b. Unless or until the city requires access to the lane, including to carry out works to utilities; and

c. Until such time as City council may decide to change its policy.

21Third, the City was asked if it had intended to issue an Order to Comply to have the fence removed which the respondents believed would happen if the Watts did not cooperate. The City replied that there is no such mechanism contemplated in the in the Policy and any such tool to permit construction of a new fence would be contrary to the Policy.

22Fourth, the City’s position was conveyed by a City Planner Alain Miguelez to the respondents by email on July 21, 2021, one week after the initial court hearing. Mr. Miguelez informed the respondents that he had conducted a review of the boundary fence and that it would be tolerated as a legacy fence under the Policy. Furthermore, the City would not tolerate the new fence proposed by the respondents because new encroachments on the laneway are not permissible under the Policy. Consequently, the respondents did not have the City’s approval for either taking down or building a new fence. Mr. Miguelez’s email states as follows:

I understand that you are inquiring whether the existing encroachment (fence) in the laneway may be relocated/removed so that a new fence may be constructed. Based on the Policy, the City tolerates existing encroachments but it will not permit any new encroachment as those would be considered illegal. The relocation of the fence, or construction of a new fence, in the laneway would constitute a new encroachment and as such, staff cannot consent to this pursuant to the Council-directed Policy. It is my further understanding that circumstances on site do not prevent you from erecting a fence on your property, including along the city’s laneway property line, if you so elect.

23Finally, the City reported that Mr. Miguelez had apologized to the respondents for the delay in relaying the information to the respondents and for any misinformation that may have ben previously provided. Counsel for the City explained that the delay was caused by the fact that the Manager of Right of Way, Court Curry, who was overseeing the review was in a potential/perceived conflict of interest because he knew one of the respondents and hence, the review had to be reassigned.

24As discussed further, the City Planner’s position was in stark contrast to the representations made by City staff to the respondents dating back to 2019. Upon receiving the City Planner’s direction, the respondents understood they could not build a new fence along the middle of the laneway as they had proposed to the Watts. In fact, they could not build a fence anywhere except for within their own property lines.

25What remains perplexing however, is that the respondent’s neighbour David Sevigny located at 442 Mayfair Avenue did build a new fence in the summer of 2021 and did so right down the middle of the laneway. Mr. Sevigny had been equally involved with the respondents in their consultations with the City, but perhaps because he had no dispute with the neighbours buttressing the back of his property, he was able to build a new fence even though this new encroachment is in contravention of the Policy and would be “considered illegal” according to the City Planner.

26While the issue is effectively moot from the respondent’s perspective, the Watts do not view the matter that way. In the absence of a written undertaking from the respondents that they will not remove the boundary fence, they maintain their position that this court should issue an injunction preventing the respondents from tearing down the fence and rebuilding a new one.

Issue 1: Is there a valid cause of action, and if so, is there a serious issue to be tried?

27When the Watts brough their application for injunctive relief, they were required to serve a Statement of Claim within 30 days particularizing the cause of action. On June 7, 2021, the Watts served a draft Statement of Claim but did not particularize any cause of action. The Watts now seek leave to extend the time available to amend the Statement of Claim and to amend the claim which I am prepared to grant as I do not find it would prejudice the respondents. The amendment seeks to add the following at paragraph 9:

Further, the Defendants have threatened to trespass onto the property that is subject to a tenancy at-will between the Plaintiffs and the City of Ottawa, and injunctive relief is necessary to keep the Defendants from causing damage to the premises on which the Plaintiffs have a possessory interest through the tenancy at-will.

28To obtain an interlocutory injunction, the moving party must first establish that there is a serious issue to be tried: RJR MacDonald Inc. v. Canada (Attorney General) at para 49; 1711811 Ontario Ltd. (Adline) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125 at para 74. The respondents argue that a prerequisite for such a finding is that the moving party identify a proper cause of action which the Watts have failed to do: Thomas v. Benjamin, 2021 ONSC 5485 at para 102. The respondents argue that the Statement of Claim, even as amended, does not disclose a legal cause of action or wrongdoing because the respondents have not entered upon the land occupied by the Watts or interfered with the boundary fence. Furthermore, if the Watts seek to recognize a new tort of “threatened trespass” to property, they have not established the requirement to do so. Finally, the respondents question whether the Watts can make a claim of trespass or assert any legal rights over land which they do not own and which belongs to the City.

29The threshold for determining whether there is a serious issue to be tried is low and based on a limited review of the case on the merits. Nonetheless, it is a determination that must be made by the motion’s judge on the basis of common sense: RJR MacDonald Inc. v. Canada (Attorney General) at para 83.

30The Watts assert that the defendants have trespassed or threaten to trespass onto their property which, in this case, would be the laneway land within the boundary fence.

31In order to maintain an action in trespass the Watts must demonstrate lawful possession of the land in question: Townsview Properties Ltd. v. Sun Construction and Equipment Co. Ltd., [1974] 7 O.R. (2d) 666 (ONCA) at para 10. Where the party suing for trespass is not the rightful owner of the land, but occupies it, lawful possession may be established by agreement or licence to occupy the land: Volovsek v. Donaldson, 2020 BCSC 25 at paras 7-8. Where the land is Crown land, the occupation must be exclusive and the occupying party must demonstrate they are in possession with the privity or consent of the Crown: Georgian Cottagers’ Association Inc. v. Corporation of Township of Flos and Kerr, [1962] O.R. 429 (Ont. H.C.) at paras 48, 49, and 60; Boutin v. Boutin at paras 14, 18, and 20.

32As the City points out, the lane is shown on Plan 397 and was registered in 1921 as a public lane under the sole jurisdiction of the City. While the Watts have the right to maintain the legacy fence as per the Policy, that right is not absolute. For example, the City may at any time, and without notice, remove the fence for the purpose of accessing the laneway for maintenance work.

33In 1987, the previous owner of 436 Mayfair Avenue had also attempted to remove the boundary fence. In response, Mr. Watt commenced legal proceedings not against his neighbour, but against the City. An interlocutory injunction was granted against the City, but the matter was later resolved when the City provided Mr. Watt with an undertaking in 1992 that it would not allow for the removal of the fence until such time as the City decided to open or close the laneway (“Solicitor’s Undertaking”).

34The City takes the position that the Solicitor’s Undertaking was to Mr. Watt. In 2003, Mr. Watt transferred title of 435 Piccadilly Avenue to his spouse Ms. Watt and is therefore, no longer the legal property owner. According to the City, an undertaking to a person does not survive transfer of title to any other person.

35Even if the 1992 undertaking did continue to apply, it remains to be determined if such an undertaking is sufficient to establish lawful possession by the Watts of the land within the boundary fence. The undertaking is at most an agreement not to interfere with the fence. It does not address the Watts’ rights to occupy the land in question. Furthermore, the Watts have never entered into any encroachment agreement with the City that would delineate their rights over the land in question nor have they paid any encroachment fees.

36In addition, as the respondents point out, s. 16 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 precludes the Watts from asserting a right over the laneway because property owned by a municipality and held for a public benefit cannot be lost by adverse possession. In other words, the fact that the Watts have occupied a portion of the laneway within the boundary fence since at least 1987 does not necessarily mean they now own the property: Corporation of the United Counties of Prescott and Russell v. Waugh at para 20, citing Household Realty Corp. Ltd. v. Hilltop Mobile Home Sales Ltd., [1982] 37 O.R. (2d) 508 (ONCA).

37Ultimately, I find that for the purposes of this motion, it is unnecessary for me to make a finding on whether the Watts have established lawful possession of the laneway to maintain a claim of trespass because even if they had, I find there is no evidence of trespass or threat of trespass and therefore, no serious issue to be tried.

38To date, the respondents have not engaged in any trespass or interference with the fence. They made inquiries for a new fence with the City and expressed their intention to the Watts to build a new fence, but they have not actually interfered with the fence.

39Furthermore, I find there is no evidence to support an intention on the part of the respondents to trespass or interfere with the boundary fence. The respondents do not own the laneway. It was never the respondents’ intention to interfere with the boundary fence without the City’s authorization. The City Planner has now confirmed as of July 21, 2021, that the City will tolerate the boundary fence and will not authorize a new fence as it would constitute an illegal encroachment in contravention of their Policy. While the respondents were dismayed by the turnaround in the City’s position, I find there is no evidence that they intend to interfere with the boundary fence in direct contravention of the City’s direction.

40The Watts argue that the respondents expressed their intent to tear down the fence when they delivered the letter on April 12, 2021, and until there is an express retraction of that intention by them, there remains a legitimate threat that they will interfere with the boundary fence in the future. They argue that there is insufficient evidence that the City supported the respondents’ plan for a new fence and to the extent that there was, the respondents were relying on the representations of one person who was subsequently found to be in a conflict of interest. They argue it was and remains the respondents’ intent to build a new fence. I disagree.

41I am not in a position to make findings on what precisely each of the City staffers said to the respondents nor is it my role to adjudicate any dispute between the respondents and the City as to whether any misrepresentations were made. Nonetheless, based on the limited record before me, I am satisfied that the respondents genuinely believed the City supported their proposal to remove the old fence and build a new fence along the middle of the laneway at the time they sent their letter to the Watts. This finding is based on the following:

1. The respondents were consulting with the City staff as far back as June 2019 about the construction of a new fence. This was not a proposal made in haste in the spring of 2021.
2. Since June 2019, the respondents have relied on representations from not one, but several City Staff: Stephanie Gigault, Linda Carkner, and Laureen DiNardo. The conflict of interest was not with either of these representatives, but with a Manager of Right of Way Court Curry.
3. In email correspondence between June 17, 2019, and September 27, 2019, the respondents were informed that if neighbours choose to build fences along the laneway, the laneway remains City property, the City retains right of access for maintenance, and the City will not reinstate fences or gardens damaged during maintenance work. The respondents were informed that if a neighbour wants the lane to be equally shared, they can reach out to Linda Carkner and she will investigate. There is no reference in these emails to the Policy or that new encroachments after 2012 are not allowed by the Policy.
4. Thereafter, the respondents continued to take instruction from the City on the fence proposal. On September 30, 2019, respondent Mr. Swail and his neighbour Mr. Sevigny had a meeting with City staff Linda Carkner and Laureen DiNardo. Mr. Swail attests that he understood from the meeting that the request to reposition the boundary fence in an equal manner was reasonable provided any infrastructure and utilities were protected and that an encroachment agreement was entered into with the City. He and Mr. Sevigny inquired what would happen if the rear neighbours were not cooperative and were told that they should be directed to City staff. The respondents followed up and obtained an encroachment agreement on March 9, 2020. The meeting as described by the respondent as well as the subsequent steps taken to obtain an encroachment agreement suggest that the respondents genuinely believed the City was supportive of a new fence.
5. Between March 20 and 24, 2021, Mr. Swail informed Ms. DiNardo by email that he and his neighbour Mr. Sevigny were planning to move ahead with installing a new fence in the spring of 2021 and placing it in the middle of the laneway. Mr. Swail specifically requested the City’s assistance in notifying the neighbours to mitigate impacts of construction on their plantings and to explain to them that the City is aware and believes it is appropriate that “we divide the use of the laneway.” Ms. DiNardo replied asking for specific timelines so that the City had sufficient time to discuss next steps and provide appropriate notifications to affected parties. Ms. DiNardo also indicated she would be in touch with some proposed meeting dates. From the respondents’ perspective, at this juncture the City was well aware and continued to support the respondents’ imminent plan to build a fence in the middle of the laneway.
6. On April 12, 2021, the respondents informed the Watts of their intentions, and two days later, they received the Watts’ response letter which they forwarded to Ms. DiNardo. According to Mr. Swail, Ms. DiNardo informed him on April 19, 2021, that the City would serve notice for the existing fence to be removed as an unauthorized encroachment. There were further conversations between the City, the respondents, and the Watts, the specifics of which are in dispute. Nonetheless, on April 19, 2021, the respondents continued to believe the City supported their plan for a new fence.
7. It was only on May 19, 2021, after the Watts had taken legal action against the respondents, that another City staffer Melanie Knight wrote to indicate she would be taking over the matter from Ms. DiNardo and suggested, for the first time, that a new fence could not be built without agreement from the Watts. Ms. Knight’s emails dated May 19 and 21, 2021, laid out the available options to the City in relation to the fence which Mr. Swail indicated in his replies were not consistent with what the respondents had been told. On July 21, 2021, Mr. Miguelez set out the City’s position that it would tolerate the existing encroachment as a legacy fence and no new encroachments were permissible.
8. Finally, the respondents’ belief that the City supported their plan to build a new fence along the middle of the laneway is corroborated by the fact that their neighbour David Sevigny had participated in largely the same consultations with the City, formed the same understanding based on the City’s representations, and moreover, proceeded to construct a new fence down the middle of the laneway in August 2021 with no objection from the City. On the contrary, Mr. Sevigny states in his affidavit that City staff provided him with information to facilitate the construction of a new fence. Ms. DiNardo sent him an overhead photo showing the location of the City’s sewer to ensure no interference and a City arborist also provided written information to ensure the fence was installed in compliance with the City’s Tree Protection Bylaws.

42In circumstances where there is no evidence of any present illegal act or injury and no evidence of any intention to engage in an illegal act or injury, an injunction is premature and not warranted: Ontario (Attorney General) v. Temagami Wilderness Society, [1989] O.J. No. 1522 at paras 28-30.

43I find the respondents genuinely believed at the time they informed the Watts of their plans to build a new fence that the City supported their plan. At that time, it was their intention to build a fence with the City’s blessing. Their letter to the Watts indicated as such. Having now been told by the City Planner that the boundary fence is to be tolerated and any new fence on the laneway would be illegal, there is no evidence that they have any continued intention to build the fence as proposed. The Watts have not established that there is a serious issue to be tried.

Issue 2: Will the Watts suffer irreparable harm if an injunction is not granted?

44At the second stage of the test, the court must be satisfied that refusal to grant an injunction will result in irreparable harm which could not be remedied if the final decision on the merits does not accord with the result of the interlocutory motion.

45The onus is on the Watts to establish irreparable harm. That harm must be based on more than just speculation: 21581234 Ontario Inc. v. Pitton, 2017 ONSC 411 at para 49; Labrador Recycling Inc. v. Folino, 2021 ONSC 2195 at para 31. The Watts have not met their onus.

46The purported harm identified in this case is the interference by way of trespass or threatened trespass with the Watts’ property rights. Upon learning in July 2021 that the City would tolerate the existing fence, the respondents did not act upon their original proposal nor is their evidence that they intend to. In the face of the City’s direction of July 2021, it is highly speculative that the respondents would interfere with the boundary fence and cause harm to the Watts.

47Finally, even if the respondents were to harm the boundary fence and to callously put up a new fence without the authorization of the City, the harm is not irreparable. Not only would the harm be compensable by damages, but the Watts would be well within their rights to request the City remove the new fence as an improper encroachment on City land. While there is no guarantee the City would authorize a replacement fence in the same location, the Watts’ right to maintain the legacy fence as per the Policy has never been and is not absolute.

48While I agree with counsel for the Watts that injunctive relief is often favoured over damages in cases involving trespass of property rights, the Watts possessory or legal rights, if any, over the laneway is very much in question: The Corporation of the Town of Caledon v. Darzi Holdings Ltd., 2019 ONSC 5255 at para 11. Injunctive relief is also favoured over damages when the trespass is clear which I have found is not the case here: 2100 Bridletown Inc. v. Ding, 2021 ONSC 2119 at paras 38, 41-43.

Issue 3: Does the Balance of convenience favour an injunction?

49The balance of convenience does not favour granting an injunction.

50Among the factors to be considered in determining whether granting or withholding interlocutory relief would occasion greater inconvenience is one, the nature of the relief sought and of the harm which the parties contend they will suffer, two, the nature of the legislation under attack, and three, where the public interest lies: RJR MacDonald Inc. v. Canada (Attorney General) at para 90.

51In this case, an injunction is being sought by one citizen against another in respect of land which is owned by the municipality, and in circumstances where there is no risk that the defending party intends to act in direct contravention of the municipality’s direction. I find that to grant an injunction in this situation sets the stage for unlimited applications for injunctions against distrusting neighbours to protect structures on City property which they occupy, but over which both neighbours have limited, if any, legal rights. Perhaps a better solution in such circumstances is for citizens to pause, reflect, and ask themselves, how can we resolve this so that, as Robert Frost said, “Good fences make good neighbours.”

Disposition and Costs

52Pursuant to r. 25 of the Ontario Rules of Civil Procedure, R.S.O. 1990, c. 43, the Watts’ request for leave for an extension of time and to amend paragraph 9 of the Statement of Claim is granted.

53The Watts motion for an interlocutory injunction is dismissed.

54The parties are encouraged to agree on the costs of the motion, including the initial hearing of June 13, 2021. In the event the parties are unable to settle the issue of costs, the parties may file written submissions not exceeding two pages, exclusive of the Bills of Costs and Offers to Settle. The applicants shall file submissions by May 14, 2022, and the respondents by May 23, 2022. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.