Court File and Parties

COURT FILE NOs.: CV-21-00670759, CV-22-00682595

DATE: 20221125

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HAYLEY IDA CORDA FROMSTEIN and JAMES LEWIS ALBIEZ, Applicants/Respondents by Counter-Application

– and –

RITA DI MICHELE-KING, Respondent/Applicant by Counter-Application

BEFORE: Justice E.M. Morgan

COUNSEL: Catherine Allen, for the Applicants/ Respondents by Counter-Application James Davies, for the Respondent/Applicant by Counter-Application

HEARD: November 24, 2022

APPLICATION TO ENFORCE EASEMENT

[1] The Applicants and Respondent are neighbours who share a mutual driveway, documented by reciprocal easements.

[2] The Applicants own the northerly property at 17 Northcliffe Blvd., Toronto, while the Respondent owns the southerly property at 15 Northcliffe Blvd. The driveway runs east-west between the two houses; it is 2.29 metres (approximately 7.5 feet) in width and 28.96 metres (approximately 95 feet) in length. The driveway is not paved, but has two concrete strips that run the length of the driveway and are spaced to fit the wheels of a car.

[3] Both properties were converted to Land Titles on November 25, 2002. The reciprocal easements are both registered along with the property titles.

[4] The Applicants bring this proceeding in order to enforce their understanding of their rights to use of the easement. The Respondent has responded with a Counter-Application similarly seeking to enforce what they view as their rights over the area of the easement.

[5] The Respondent has in recent years begun obstructing the front of the mutual driveway by parking their car and on occasion placing garbage cans, recycle bins and other obstructions there. The Respondent has also fenced off a portion of the mutual driveway at the rear of the two houses, depriving the Applicants access to that portion of their easement.

[6] The Respondent brings a Counter-Application seeking a determination that the Applicants’ right-of-way over the easement has been abandoned and that the Applicants are estopped from enforcing their rights. The Respondent seeks to amend the Applicant’s registered easement restricting access to the portion of the driveway that runs between the two houses to pedestrian access only.

[7] Counsel for the Applicants say that the issue here is whether the Respondent has interfered with the reasonable use of the easement by the Applicant. Counsel for the Respondent says that the Applicants no longer have the easement rights that they assert that they have.

[8] The registered description of the Respondent’s property states that it is subject to Instrument CA760498. Instrument CA760498 is the transfer/deed for 15 Northcliffe dated February 26, 2002, and describes the property as follows:

All of Lot 15, registered Plan D-1364 east side of Northcliffe Boulevard.

City of Toronto Registry Division of the Toronto Registry Office No. 66.

Subject to a right-of-way over, along and upon the northerly 5 feet 6 inches of the westerly 95 feet of the lands above described/ AND TOGETHER WITH a right-of-way over, along and upon southerly 2 feet of the westerly 95 feet of Lot 14, the lands immediately adjoining to the north of the lands above described more particularly described in Instrument No. CA 5 87620.

[9] Similarly, the registered description of 17 Northcliffe states that the property is subject to Instrument CT1223 1 1. Instrument No. CT1223 1 1 is the property deed for 1 7 Northcliffe dated April 23, 1 975, and describes the property, as follows:

ALL and Singular that certain parcel or tract of land and premises situate lying and being in the City of Toronto, in the Municipality of Metropolitan Toronto, being composed of Lot 14, on the east side of Northcliffe Boulevard, as shown on a plan registered in the Registry Office for the Registry Division of Toronto as No. D-l 364.

TOGETHER with a right of way over, along and upon the northerly five feet six inched (5’6”) of the westerly ninety-five feet (95 ’) of the lands adjoining immediately to the south of the lands above described being part of Lot 15; [being the Easement]

AND SUBJECT TO a right of way over the southerly two feet (2) of the westerly ninety-five feet (95) of the lands herein described.

[10] Historically, the driveway was used by the successive owners of 15 and 17 Northcliffe to access parking garages located in the rear of their properties. There is no access to either 1 5 or 17 Northcliffe from the east (the rear of the properties) as each property abuts directly onto the properties that face onto to the residential street just east of Northcliffe Boulevard.

[11] There are no longer garages located at the rear of either property. However, there is some indication of where the old garages, which were apparently taken down several years ago, from outlines on the ground. There are also permeable concrete stones which form a parking pad intended for, and until recently occasionally used as, backyard parking for 17 Northcliffe. There is, or at least at one time was, a similar parking pad in the back of 15 Northcliffe.

[12] The evidence in the record shows that from about 1975 until about 2016, Luis Paliao, one of the prior owners of 17 Northcliffe, used the driveway and easement to access the rear of his property, occasionally in order to park his car in the back of 17 Northcliffe. The evidence also shows that in or about August 2018, the Respondent erected a wooden fence approximately along the property line between 15 and 17 Northcliffe at the rear of the two properties. The fence, which still stands today and is prominently displayed in photographs in the record, obstructs the Applicants’ easement in a way that renders it impossible for them to access the rear of their property with a vehicle.

[13] The evidence also shows that the Respondent consistently parks a car – identified as her spouse’s car – at the front of the mutual driveway, blocking access to the driveway except by pedestrians who manage to squeeze by. The photographs in the record show that the Respondent also keeps her garbage and recycle bins in the mutual driveway, further blocking access.

[14] The Applicants purchased 17 Northcliffe in 2020. They were aware of the registered easements and purchased under the logical assumption that the mutual driveway was indeed mutual. Since acquiring the property, the Applicants have asked the Respondent on numerous occasions to remove the portion of the fence encroaching on the easement, to remove the bins placed on the easement, and to cease parking their vehicle on the easement. The Respondent has not agreed to these requests, although she has explained that the bags of garden waste sometimes stored by her on the driveway have been temporary as a convenience while she works in the garden.

[15] The Respondent’s legal position is most clearly set out in the Counter-Application. She contends that: a) the easement has been abandoned by the Applicants and their predecessors in title; b) the Respondent has acquired a prescriptive easement over the entire driveway negating the Applicant’s easement rights; c) the Respondent has a right to the driveway by promissory estoppel; and d) the terms of the easements should be modified to restrict the Applicants’ use to pedestrians only.

[16] This last argument – partial modification of the easements – is presented by Respondent’s counsel as a consequence of the Respondent’s first argument that the easement has been abandoned (or partially abandoned). That is, the Respondent contends that since a portion of the easement – use of the driveway for cars to pass between the two houses – has effectively been abandoned by the parties (or by their predecessors in title), it is no longer an operative part of the easement and the written easements should be modified to reflect this change in practice.

[17] In making this argument, Respondent’s counsel references Bialkowski v. Cowling, 2015 ONSC 1744, at para 59 for the proposition that abandonment can be implied by the conduct of the parties. That idea represents a distinct change from the historical view that abandonment of an easement or right of way that originates in an express grant can only be abandoned by an express act and not by implication of unexpressed conduct: Bison Realty Ltd. v. Athersych, [1998] OJ No 2358 (SCJ).

[18] Respondent’s counsel submits that abandonment by implication is an apt way to describe the part of the easement that runs between and behind the two houses. That portion of the driveway originally led to two garages in the rear of the houses and was a necessary path for accessing the garages. However, both garages are long gone, and so Respondent’s counsel submits that the raison d’être for the easement between the two houses (as opposed to the easement over the portion of the mutual driveway in front of the two houses) has vanished. It is the Respondent’s proposal that in order to match current practice, the easements over the driveway between the two houses be modified so as to be limited to pedestrian traffic only.

[19] I do not agree with Respondent’s counsel’s reading of the law or of the facts on the ground here. While the Bialkowski case does indeed make a modification to the previously strict rule that the intent to abandon a written easement/right-of-way must be expressly stated by the parties, the modification is a rather small one. In Bialkowski, the right-of-way was made inaccessible to the parties by erecting a chain link fence blocking all vehicles from accessing it. The court determined that after 10 years the right-of-way had been abandoned, since there was no other way to understand what the parties intended by having fenced it off. The abandonment implication was a natural conclusion from the physical barrier that the parties had put in place, and realistically it took no great inference at all for the court to see that.

[20] In the case at bar, the facts are nowhere near as clear. Indeed, the Applicants have presented evidence that even after the garages were torn down, the Applicants’ predecessors in title continued to park cars in the back of the house and to use the driveway between the houses to get there. While Applicants’ counsel concedes that this was only an infrequent use, mostly when they had guests rather than when they were home only with there own car, it was nevertheless a continuing if sporadic use over the years. That type of continuing usage is a long way from the Bialkowski scenario, and is enough to rebut any inference that the parties never intended to use the mutual driveway between the houses again.

[21] As for Respondent’s counsel’s argument that the easement has been terminated by virtue of the Respondent having achieved her own prescriptive easement over the driveway, the evidence likewise does not support this alleged development. If I understand Respondent’s counsel, this refers to the fact that the Respondent has for many years parked her (or her spouse’s) car at the front end of the driveway. According to this theory, this has become so well established that the Respondent now has a right to do so against the Applicants’ will.

[22] There is nothing in the record that would support this far-reaching claim. While it is true that the bottom of the driveway has been used for parking, that has historically been on a strictly permissive, cooperative basis.

[23] The evidence is that the party who parked their car on the bottom of the driveway (i.e. in front of the two houses) would give the other their car keys. In that way, a workable regime was established so that no one would block the other’s access to the driveway. That arrangement is to be commended as good neighbourliness, but it does not form the basis of an enforceable prescriptive easement. If the Respondent has not worked out an agreement to this effect with the Applicants as the current owners of 17 Northcliffe, then the Respondent does not have a right to park in a way which blocks the driveway.

[24] The same must be said of Respondent counsel’s argument that parking is an ancillary right to the easement. Counsel produces a number of cases that seem to say that parking can be an ancillary right to various property arrangements, and I do not doubt that is the case. But each such case stands on its own facts.

[25] The idea that parking in a way that blocks a mutual driveway from the other party’s use is somehow ancillary to the mutual right-of-way established by the easements is so contradictory to the meaning and intent of the easements that it can be dismissed out of hand. A mutual right-of-way is, to put it simply, mutual. If one party blocks the driveway from the other’s use, they are not establishing an ancillary right; they are breaching the other party’s rights.

[26] Likewise, where the Applicants’ predecessor in title agreed to the Respondent parking on the front of the driveway in return for having ready access to the car keys to move the vehicle when necessary, that does not establish an ancillary right that binds the next owner of 17 Northcliffe. It was a laudable agreement that the Respondent had with the previous owner and that the Respondent is free to explore with the Applicants and the Applicants are free to agree to or not, as they see fit.

[27] Respondent’s counsel’s promissory estoppel argument is equally unsupported by the evidence. The Respondent’s view is that, having taken down the garages, the parties in effect promised each other that there would be no cars using the mutual driveway to reach the back of the houses. That is contrary to the depositions of historic owners that are in the record. The record shows that after the garages came down, the owners of 17 Northcliffe continued to park cars, albeit only occasionally, at the rear of the house. The removal of the garage came with no promise, and any interpretation such as that proposed by the Respondent could not give rise to reasonable reliance on the Respondent’s part. Removing the garage behind 17 Northcliffe was not a promise to stop vehicular access to the driveway between the houses, and cannot be relied on as such by the owner of 15 Northcliffe.

[28] In recent years – approximately in 2018 – the Respondent has erected a fence blocking the Applicants’ access to the rear portion of the driveway. More recently the Respondent has extended that fence further down the driveway. Applicants’ counsel advises that during the course of the litigation the Respondent agreed to remove the new portion of the fence, but never agreed to remove the entire fence that has been there now for nearly five years.

[29] It is obvious to me, and it should have been obvious to the Respondent all along, that a fence that blocks any portion of the mutual driveway as configured and described in the easements is impermissible. The disappearance of the garage behind 17 Northcliffe is not a reason for the owner of 15 Northcliffe to fence off the portion of the mutual driveway that used to access the garage. The easements themselves are unchanged.

[30] At the hearing before me, Respondent’s counsel acknowledged that the entire fence blocking off the rear portion of the driveway must come down. He did not defend any portion of that fence, including the 2018 portion. He was wise not to do so. It must come down and I have no hesitation ordering it to be taken down if it is not done voluntarily.

[31] Respondent’s counsel summed up his client’s position as wanting to maintain the status quo that has always existed between the neighbouring houses. That is an admirable sentiment, but it is not what the Respondent has been demonstrating by her behaviour.

[32] To maintain any semblance of the legal status quo, the Respondent is obliged to adhere to the terms of the two easements that govern the mutual driveway between their house and the neighbouring house. The Respondent is not permitted to unilaterally change the easements by declaring that the change reflects a longstanding practice that she would like to continue. The historical record does not support the Respondent’s view that those terms have been modified over time.

[33] At this point, the terms of the easements can only be modified by actual agreement of the owners of 17 Northcliffe and 15 Northcliffe. Modification of the registered easements cannot, as put forward by the Respondent, be imposed on the owners of 17 Northcliffe. The Applicants’ predecessors in title made no agreement to modify the easements and no intention to modify the easements can be inferred from their actions.

[34] The legal arrangement between the parties’ properties, and the record before me, do not support the Respondent’s imposition of a fence at the top end of the driveway or uncooperative parking at the bottom end of the driveway. The fencing must be entirely removed and parking on the front end of the driveway must cease unless the two neighbours can reach an actual agreement.

[35] The legal arrangement and record likewise do not support the Respondent’s habit of storing their recycling and trash bins on the mutual driveway or otherwise prohibiting access to vehicular traffic between the two houses. These acts impede the Applicants’ use of the driveway in a way which violates their property rights as established in the registered easements.

[36] The Applicants shall have an Order containing the following directions and mandatory orders:

• a declaration confirming that the Applicants are entitled to exercise a right-of-way along the easement for pedestrian or vehicular use;

• an order compelling the Respondent, at her own cost, to remove the 2018 fence and the more recent extension of the fence from the driveway at the rear of the houses;

• an order restricting the Respondent from obstructing the easement by parking a vehicle on it, storing bins on it, or by otherwise preventing the owners of 17 Northcliffe from using the easement as a right-of-way, including for vehicular access to their backyard;

• an order dismissing the Counter-Application.

[37] The Applicants are entitled to their costs. Counsel for both parties have provided me with bills of costs, which they may now supplement with brief written submissions. I would ask counsel for the Applicants to send her submissions by email to my assistant within two weeks of today’s date, and for counsel for the Respondent to send his submissions by email to my assistant within two weeks thereafter.

Date: November 25, 2022 Morgan J.