COURT FILE NO.: CV-21-2578

DATE: 2022-01-20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Peter Chow and Davina Chow, Applicants

AND:

Gurdev Malhi and Manjinder Uppal, Respondents

BEFORE: Conlan J.

COUNSEL: Mr. S. Nanua, for the Applicants

Mr. J. Mangalwadi, for the Respondents

HEARD: January 20, 2022

ENDORSEMENT

I. The Application

[1] In their Notice of Application issued on September 13, 2021, at paragraph 1, the Applicants, Peter Chow and Davina Chow (“Chows”), besides interest and costs, request an order that (a) the Respondents, Gurdev Malhi and Manjinder Uppal (“Uppal”), remove, at their own expense, that portion of their driveway that encroaches onto the neighbouring property owned by the Chows, and (b) and (c) Uppal do so in accordance with the Town of Oakville’s by-laws and required permits, and (d) Uppal pay for and complete the necessary restoration work to return the Chows’ property to its pre-encroachment state.

[2] The Application was heard in about one hour on January 20, 2022, via Zoom. No viva voce evidence was presented by either side. No out-of-court examinations took place beforehand.

II. The Filings

[3] The Chows filed affidavit evidence, title documents for the Chow and the Uppal properties, two professional property surveys dated January 21, 1998 and August 25, 2021, photographs, a factum, and a brief of authorities.

[4] Uppal filed affidavit evidence.

[5] The first affidavit filed by Uppal, very brief, requested an adjournment, which was granted previously. The second affidavit, also brief, disputed the accuracy of the Chows’ survey evidence, disputed the encroachment allegation, and requested that the case proceed to a “trial”. The third affidavit, again brief, raised two things – that the Respondents did not construct the driveway in question, and that title insurance may be relevant to the dispute. Correspondence between the title insurer, Stewart Title Guarantee Company, and counsel for Uppal was attached to the third affidavit.

III. The Oral Submissions of Counsel for Uppal

[6] Uppal has no competing survey evidence. Uppal has no law that the Respondents rely upon.

[7] Mr. Mangalwadi is working hard for his clients. He made some submissions that were thoughtful and that, as a citizen, I found meaningful. Unfortunately, they have no legal significance to them in terms of resisting the relief being sought by the Chows.

[8] Counsel for the Respondents argued that (i) there is no emergency here; (ii) the driveways are snow-covered currently; (iii) maybe Stewart Title will cover the problem; (iv) there could be a joint inspection arranged; (v) there could be another survey commissioned; (vi) the prior owner of the Uppal property may have some liability; (vii) Uppal did not build the driveway; (viii) the proceeding should be mediated; (ix) a clear copy of the survey was only recently provided to Stewart Title, so waiting for a response would be in order; and (x) this is not a very neighbourly or Canadian thing that the Chows are doing (as counsel stated, this is Canada and not Syria).

[9] I appreciate the arguments advanced by Mr. Mangalwadi. I respectfully observe, however, that they provide no justification for not granting the Application. The fact of the encroachment is not disputed other than a bald assertion in the second affidavit filed by Uppal. None of the numerous legal authorities filed by the Chows to support the legal principles that the Chows are entitled to have Uppal, at Uppal’s expense, remove the encroachment and restore the Chows’ property accordingly is quarreled with or distinguished in any way by Uppal.

[10] It would have been ideal to have resolved this dispute out of court, between neighbours, but that was not to be. The desire to have a trial is misplaced as most applications do not go to trial. That Uppal did not construct the driveway is irrelevant. That title insurance may cover the issue is not a concern of the Chows, and Uppal may continue to pursue insurance coverage despite the Application being granted. To accommodate that, this Court will make an exception from the general rule that the encroachment be removed forthwith. The rest of the arguments advanced on behalf of Uppal are, with respect, equally irrelevant in law.

IV. The Result

[11] The Application is granted.

[12] Costs submissions, if necessary, shall be filed in writing. The Chows shall file within thirty (30) calendar days of January 21, 2022. Uppal shall file within fifteen (15) calendar days of counsel’s receipt of the Chows’ submissions. No reply is permitted by the Chows. Each submission shall be limited to two pages in length, excluding attachments such as an offer to settle or bill of costs.

[13] At page 8 of their factum, the Chows outline the order sought. With reference to that paragraph, clauses 1 through 4 are granted. But the language shall be modified to stipulate that Uppal shall have 120 calendar days, commencing on January 21, 2022, to satisfy the order. That is reflective of the winter season currently and to allow Uppal’s title insurance claim to be pursued by the Respondents.

C.J. Conlan

Electronic signature of Conlan J.

Date: January 20, 2022