COURT FILE NO.: CV-21-00670802-00 DATE: 2023-02-27
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOHN PATTISON
Applicant
Ryan Sadler, for the Applicant
- and -
McGINLEY BROS INC., BRENDAN CHARTERS and JIM CUNNIGHAM
Respondents
David J. Olevson and Glen Bushi, for the Respondents
HEARD: June 28, 2022, at Toronto, Ontario
Madam Justice T. J. Nieckarz
Decision On Application
OVERVIEW:
1The Applicant and the Respondent McGinley Bros Inc. (“McGinley”) own adjacent properties in the City of Toronto. They share a mutual driveway with a mutual right-of-way easement.
2The Applicant alleges numerous incidents of unlawful interference, trespass and encroachment on his property by the Respondents over a period of approximately 12 months during a construction project at McGinley’s property.
3The Applicant seeks the following relief:
a. An Order directing the Respondents to recognize and abide by the limits of the right-of-way easement they share;
b. An Order directing the Respondents to remove any and all items they have caused to be situated on the Applicant’s property that constitute unlawful and improper encroachments on the lands and premises;
c. An injunction restraining the Respondents from interfering with the Applicant’s occupation of his lands, or otherwise unlawfully and improperly encroaching on those lands in the future;
d. An Order directing that the foregoing orders be registered on title to the lands;
e. Special and punitive damages; and
f. Costs of this application.
4The Respondents deny that there has been any nuisance, trespass, or actionable encroachment. They argue that any nuisance or trespass has been trivial and temporary, and that there has been no substantial interference with the Applicant’s enjoyment of the easement. They argue that the actions of the Applicant, and this Application, are driven by his upset that the home next to his was sold to developers. They argue that he has fought their plans for the home at every step of the way. They allege that this Application is merely an extension of his upset at being unsuccessful in his efforts to thwart their development of the property.
5For the reasons set out below I find that:
a. There has been nuisance and trespass suffered by the Applicant that is not trivial, fleeting or de minimus;
b. There has not been any actionable encroachment on the easement; and
c. The Applicant is entitled to relief in the form of an injunction to prevent trespass against his property and to remedy damages suffered to date. Damages are also payable.
THE FACTS:
6The Applicant owns a home located 33 Roslin Avenue, Toronto, Ontario. He is a long-term resident of the neighbourhood.
7The Respondents, Brendan Charters (“Charters”) and Jim Cunningham (“Cunningham”) are the corporate directors and controlling minds of McGinley.
8On or about November 29, 2019, McGinley purchased 31 Roslin Avenue, Toronto, Ontario. The property was purchased with the intention of renovating and turning it into a triplex complex, with the Respondents as the landlords. It had previously been a single-family home.
9The Applicant and a group of other local residents were opposed to the development. They wrote letters and organized a successful dispute to the necessary by-law amendments sought by the Respondents. They went so far as to hire an expert.
10The Respondents appealed the Committee of Adjustment decision not to grant the zoning amendment they sought. The case was heard by the Toronto Local Appeal Body (“TLAB”) in December 2020. Both sides hired lawyers. The Respondents were successful in securing the zoning amendment but not some other items requested (such as extra parking spaces). McGinley then sought and received a building permit from the City of Toronto for the construction work required. The City of Toronto also granted McGinley two street parking permits.
11The Respondents’ plans for the property and the Applicant’s opposition to them appears to have created a level of animosity between the neighbours that has contributed to the events giving rise to this litigation.
1231 Roslin Avenue and 33 Roslin Avenue share a mutual driveway. They each enjoy a right-of-way that grants mutual access to the common driveway situated between the two properties. The right-of-way allows each neighbour passage of 3 feet and 6 inches on to the other’s land, for a total driveway width of 7 feet and 2 inches. The driveway is used to access the back of each property. There is no dispute as to the existence of the right-of-way, the location, or the boundaries. The right-of-way is registered on title to each property.
13The Applicant alleges that concerns arose from the beginning of McGinley’s construction work. He estimates upwards of 100 incidents of trespass and interference with his enjoyment of the mutual right-of-way.
14In December 2019, even before the Respondents knew the project could go ahead, they began some demolition work. The Applicant alleges that a dumpster and various materials were left in the mutual driveway for at least a week to 10 days, with “significant refuse” placed on his parking spot on his side of the right-of-way. This was done without his permission. He hoped that the situation would not persist and he moved the items back onto the McGinley property.
15The Applicant alleges the following encroachments on the right-of-way that he says have interfered with his enjoyment of it, by preventing its use for virtually the entire time that construction has been ongoing at the Respondents’ property:
a. In July 2020 the Respondents stacked heavy metal fencing units in the mutual driveway for approximately one week, somewhat blocking access to the back of the properties. No work was happening at the property. The fencing units were just left sitting in the driveway.
b. In July 2021, the driveway was again almost completely blocked with a wooden structure left in the driveway.
c. On numerous other occasions the mutual driveway has been blocked with vehicles, machinery, dumpster bins and construction materials. The Applicant alleges that the driveway has been at least partially blocked for most of the time that construction has been ongoing.
d. The Respondents erected fencing that completely blocked the entirety of the mutual driveway.
e. The mutual driveway has sustained several cracks from the weight of heavy machinery being used by the Respondents.
f. Scaffolding was set up in the mutual driveway on various occasions, which obstructed passage. The Applicant did not take issue with the scaffolding being up if it was necessary, but rather that it was left up for days or weeks with no work happening.
g. In September 2020, the Respondents erected a temporary construction fence in the front of the house that extends to the passable part of their side of the mutual drive. This fence remains. This has reduced the passable part of their side of the property from 3 ft to 1 ft, making it more difficult for the Applicant to access the right-of-way as conveniently as before it was installed.
16The Applicant argues that the Respondents are treating the driveway as a space for storage, rather than its granted purpose. He further argues that there is no need for this as there is adequate storage space in the front and rear of the property. He feels that this is an intentional act of antagonism, potentially as retribution for his vocal opposition to their development.
17The Respondent argues that any interference with the mutual driveway caused by them has been fleeting. They further argue that it is the Applicant who has interfered permanently with the use of the mutual driveway by building a fence in November 2020 that now precludes the Respondents from using the mutual driveway for vehicles.
18The Applicant acknowledges that he no longer uses the mutual driveway to access the backyard for parking but may wish to do so in the future at some point. He states that the Respondents’ actions prevent him from traversing the mutual driveway with large objects, which can only be brought in from the rear of his house.
19The Applicant alleges the following acts of nuisance and trespass:
a. On a regular, ongoing basis the Respondents have placed materials and refuse against a fence he built between the two properties. This has increased in frequency and severity since April 2021. The Respondents even, at one point nailed items on to the Applicant’s fence (a tarp and some wood). The fence sustained some damage in August 2021 when heavy boards were leaned against it and the Applicant’s house. On another occasion the Applicant found hundreds of pounds of the Respondents’ boards and doors leaning on the fence. This caused the fence to buckle. A bracing system was set up by the Respondents that blocked the Applicant’s gate. Snow has been shoveled and piled up against the fence. The fence was built in November 2020, 3 to 4 inches in the Applicant’s property line, to attempt to prevent interference with his property. Because the fence is 3 to 4 inches inside of the Applicant’s property line, he argues that there should be no reason for the Respondents to use it or interfere with it.
b. On various occasions in the Spring/Summer 2021 the Respondents’ workers came onto the Applicant’s property to use his water. On one occasion the tap was left running for 4 – 5 hours and flooded the front lawn. The Applicant had to shut the water off to prevent ongoing interference.
c. In June 2021 the Applicant’s home was damaged from diesel exhaust from the Respondents’ equipment that was operating in the mutual driveway.
d. The Respondents’ agents have parked their vehicles in the Applicant’s driveway parking pad at the front of the house on various occasions. The Applicant attempted to block his parking pad to prevent use by the Respondents, which is entirely on his property, but the Respondents’ workers have removed the objects to they could use the parking pad to move equipment and construction materials to their construction site. They have also parked their vehicles such that the Applicant’s access to his parking pad has been blocked and have been photographed sitting in his parking pad. Even when access is not blocked the Applicant is too afraid of his vehicle being damaged with the Respondents’ materials and equipment to use his parking pad.
e. The Respondents’ agents have used the Applicant’s side of the driveway (and not the portion subject to the right of way) to move wheelbarrows. The wood wall of the Applicant’s front porch has been scratched by the wheelbarrows.
f. Large objects have been leaned up against the Applicant’s house and cups of coffee placed on his windowsill.
g. The Applicant’s house has been splashed with ready-mix concrete while mixing it in the mutual driveway. The house will need to be repainted in that area to fix it.
20The Applicant argues he has tried to resolve these issues directly with the Respondents and also through counsel, but his concerns have not been treated seriously. Concerns were not addressed in a timely manner and the offending conduct continued. He states that he is concerned that the Respondents’ lack of respect, disregard, and interference with his property will continue even after the construction is finished and the Respondents’ tenants take occupancy.
21The Respondents state that the majority of the construction on the Applicant’s side of their property has concluded, and that they have made attempts to limit any impact or inconvenience to the Applicant by limiting the number of workers and contractors working at any given time. They acknowledge that at times, the construction activity required heavy machinery and large amounts of materials to be moved around the property, which may have resulted in a fleeting and temporary interference with the right of way, or intrusion onto the Applicant’s property.
ANALYSIS:
Has there been trespass and/or nuisance?
General Legal Principles:
22The Applicant argues that he has suffered both trespass and nuisance.
23Trespass to land occurs when a person enters onto the land of another without legal justification: Perdue v. Vanderham, at para. 106.
24In Grace v. Fort Erie (Town), at para. 86, the elements required for trespass were said to be:
a. Direct and physical intrusion onto land that is in the possession of the Applicant (indirect or consequential interference is not trespass);
b. The Defendant’s act must be voluntary, but need not be intentional;
c. Some form of physical entry onto or contact with the Applicant’s land is essential for trespass and may be satisfied with the placing or propelling of an object or discharging a substance onto the Applicant’s land; (see Plaunt v. Renfrew Power Generation Inc., 2011 ONSC 4087, at para. 53; and
d. No proof of damage is required for trespass to be actionable.
25The defences to trespass to land are consent, necessity, and legal authorization: Perdue, at para. 107.
26“Nuisance” is “an unreasonable interference with the use and enjoyment of land”: Grace v. Fort Erie (Town), at para. 59.
27“Unreasonable” means that the interference is such that it would not be tolerated by the ordinary occupier: Grace v. Fort Erie (Town), at para. 60.
28Nuisance is a strict liability tort. Nuisance does not depend on the nature of the offending conduct or on proof of intention or negligence. What is important is the nature and extent of the interference caused to the applicant: Grace v. Fort Erie (Town), at para. 67.
29At para. 68 of Grace v. Fort Erie (Town), the factors to be considered in deciding whether there has been nuisance are said to be:
a. The type and severity of the harm (i.e. has there been physical damage, or interference with enjoyment and comfort of land).
b. Duration of the harm.
c. Intrusiveness of the harm.
d. Character of the neighbourhood.
e. Nature and utility of the offending conduct.
f. Any abnormal sensitivity on the part of the applicant/plaintiff.
30The difference between trespass and nuisance is that trespass involves the direct placement of material objects on another’s land, while the latter involves something consequentially entering or interfering with the enjoyment of another’s property. Nuisance must originate outside property occupied by the Applicant: Smith v. Inco, 2010 ONSC 3790, at para. 38; Grace v. Fort Erie (Town), at paras. 61 and 63.
31Actual damage must be proved for nuisance, whereas trespass is actionable without proof of damage: Grace v. Fort Erie (Town), at para. 62.
Nuisance:
32With respect to nuisance, the Applicant claims the following as examples of unreasonable interference with the use and enjoyment of his property:
a. In June 2021 the Respondents’ agents came onto his property to use his garden hose, leaving the water running for 4-5 hours and flooding his front lawn (the “water incident”).
b. In December 2021 the Respondents splashed his house with ready-mix concrete while mixing it in the middle of the mutual driveway (the “cement incident”). The concrete dried on the side of his house and requires re-painting to repair.
33I find that the water incident is not an example of nuisance, but rather trespass. The Respondents’ agents entered onto the Applicant’s property and turned on his water tap. This was a direct intrusion on to the Applicant’s land, and not indirect. This is not nuisance.
34With respect to the cement incident, I find that the Applicant has satisfied his onus of demonstrating that there was interference with his land and that this interference caused physical damage to his property. The question is whether the interference was unreasonable. The Respondents bear the onus of demonstrating the reasonableness of their actions. I find that the interference was unreasonable and that even though this Applicant has a heightened sensitivity to the actions of the Respondents, this interference and the damages caused is not something an ordinary occupier would tolerate. There appears to be no justification for why the cement was mixed where it was mixed. Given the close proximity of the Applicant’s house to the location where the cement was mixed, the Respondents’ workers knew or ought to have known for the possibility of splashing and damage to the Applicant’s property. There is no reason I am aware of as to why the cement could not have been mixed in either the front or rear of the house where the potential for interference and damage to a neighbouring property would be minimized.
35While not cited in the Applicant’s factum or argument as an example of nuisance, I find that the diesel exhaust from the Respondents’ digger machine operating in the mutual drive causing oily, sooty exhaust to be sprayed over the Applicant’s house is an incident of nuisance. Similar to the cement incident, the Respondents have failed to demonstrate reasonableness.
Trespass:
36With respect to trespass, the Applicant argues he has been subject to the Respondents’ voluntary and direct physical intrusion onto his property on numerous occasions, by both persons and objects. On some of these occasions his property has been damaged.
37The Respondents submit that any incidents of trespass have been temporary, fleeting and trivial. They cite the following as examples:
a. With respect to the truck blocking his parking pad and mutual driveway (Exhibit J), the Applicant acknowledged that it was there for only a few hours, and he was parked on the street at the time.
b. The white van parked on his parking pad on another occasion was there for only an hour and a half, and his vehicle was already parked in the street and not in the driveway. The driver of the van moved his vehicle when asked.
c. The blue pick-up truck parked on his parking pad was only there for a half an hour and again, the Applicant was not using his driveway at the time.
d. The Applicant has acknowledged in cross-examination that the pallets of wood that spilled over from the Respondents’ property to the Applicant’s property only did so by “a little bit”. They were placed there September 18th, 2021 (Saturday) and moved by Monday.
38The Respondents further argue that it is not feasible to expect that there would be no interference or inconvenience on the Applicant’s property during the construction period. The two properties share a mutual driveway that is only 7 feet and 2 inches wide. They maintain that their actions did not prevent the Applicant’s use of his parking pad, prevent him from accessing his property, or from using the right of way. Any inconvenience was temporary and transitory. Any time that an issue was raised with the Respondents, they swiftly and promptly addressed it with their employees and contractors.
39I agree with the Applicant that the acts complained of constituted trespass on his property in more than a fleeting and trivial way. The Respondents’ agents entered onto or placed items onto the Applicant’s portion of the driveway, his home (i.e. placing coffee on his window sills or leaning objects against his home, and the water incident), his land (i.e. the portions of the Respondents’ side of the fence that still constituted property of the Applicant, including leaning items against the fence and attaching or affixing items to the fence that was wholly on the Applicant’s property), and committed repeated intrusions onto his parking pad. These were not involuntary intrusions. These were not occasional or incidental intrusions. While each individual intrusion may have been fleeting in the sense that it lasted either hours or a few days, it is the number of intrusions over a protracted period of time that causes me to reject the Respondent’s arguments that any interference was temporary and transitory.
40I also find that the Respondents have failed to establish any defence for the trespass. It is acknowledged by them that they had no authorization or consent for any of the intrusions. With respect to necessity, I take the Respondents’ argument to be that these multiple intrusions were required because of the nature of the urban neighbourhood, the work undertaken, and the close proximity of the houses. I would be more inclined to accept this argument had there only been an occasional and incidental intrusion onto the Applicant’s property, but that was not the case. There was no justification provided as to why the Applicant’s water was used and left running, why his home was used for the Respondents’ workers to place coffee cups and other items, why garbage and other debris needed to be piled against the fence as opposed to elsewhere in the yard, or why multiple vehicles frequently needed to use the Applicant’s parking pad instead of the street or Respondents’ pad. I am left with the impression that the Applicant’s property was simply treated as an extension of the Respondents’ property, regardless of the fact that the Respondents were aware of the Applicant’s sensitivities and displeasure with the intrusions. It is of no consequence to me that certain of the intrusions did not inconvenience the Applicant. For example, the Respondents argue that the Applicant was parking on the street and therefore there was minimal impact on him to the intrusions on his parking pad. The Applicant should have been able to use his parking pad when he chose, and it is irrelevant that he may have periodically made other choices. I find that trespass has been established.
Has there been unlawful obstruction of the right-of-way?
41Encroachment on a private right-of-way is actionable only where the obstruction substantially interferes with the grantee’s ability to use the right-of-way for the purpose identified in the grant: Weidelich v. De Koning, 2014 ONCA 736, at para. 10.
42The test for substantial interference is whether after the interference, the right-of-way can be used substantially as conveniently, as before the interference: Weidelich v. De Koning, at paras. 9 & 15.
43The Applicant argues that the right-of-way is for passage over land. He further argues that there has been substantial interference with his right to pass over the Respondents’ land in the mutual driveway, and therefore the interference is actionable. He argues that the right-of-way has been obstructed on numerous occasions by the Respondents such that he cannot use it as conveniently as he did before the obstructions existed.
44The Respondents argue that none of the encroachments caused by their actions have caused substantial interference with the Applicant’s enjoyment of the right-of-way. The Respondents acknowledge there have been periods when there have been materials or other items in the mutual driveway, but they take the position that the right-of-way remained usable to access the rear of the two properties. This, the Respondent argues, was the purpose of the right-of-way. In any event, the Applicant does not use the right-of-way for this purpose, instead preferring to park in the front of the house.
45The Respondent further argues that the Applicant himself has blocked the right-of-way with scaffolding and equipment that extended to the Respondent’s side of the mutual driveway when he has had contractors working on his property. The Applicant acknowledged this in cross-examination. The Respondents did not take issue with this, and merely hoped for the same “neighbourly latitude” when they commenced their work. The Applicant notes this was one occasion and it has not occurred repeatedly as with the Respondents’ encroachments. His interference is a true example of not being a substantial interference.
46The Respondents suggest that the Applicant’s attitude is somewhat hypocritical given that he has engaged in the same behaviour he complains of. In fact, if anyone has caused a substantial interference with the right-of-way, it is the Applicant through his construction of a fence that now prevents a vehicle from getting through to the back of his property.
47I find that the purpose of the right-of-way was to create a mutual driveway for access, by each of the two homes, to the rear of their properties. This access could be for any of the purposes suggested by the parties, including the passage of vehicles and items from the front of the property to the back.
48The evidence supports a conclusion that there were encroachments on the right-of-way by the Respondent. This includes temporary obstructions by construction materials and a partial encroachment from the construction fence. At times, had the Applicant wished to do so, he would have been unable to pass a vehicle through the mutual driveway or been unable to bring large items to his back yard (his primary complaint) because of the items left in the mutual driveway. The actions of the Respondents persisted, even when the parties were in litigation, which similar to the incidents of trespass, strikes me as somewhat antagonistic. There is nothing to suggest that certain of the encroachments, such as when materials were left in the driveway, was necessary. There is no explanation as to why they could not have been moved to the front yard or rear. Other encroachments such as the scaffolding may have been necessary for the period of time for which certain work was ongoing.
49The bigger issue is the numerous temporary encroachments onto the right-of-way by the Respondents during the course of construction, and whether they have created substantial interference with the Applicant’s ability to use the right-of-way for the purpose identified in the grant.
50In Fallowfield v. Bourgault, at para. 33, the Court of Appeal noted that a party is not precluded from placing chattels or erecting a structure on an easement, as long as what is done does not substantially interfere with the other party’s use of the easement that was granted to that party.
51Neither party pointed me to caselaw dealing with temporary impediments/interference with the use of a right-of-way, but over a period of time.
52While the Respondents have created some temporary impediments to the purposes for which the right of way was granted, I do not find that the actions of the Respondents have created a real or substantial interference with the use of the mutual driveway. The construction fence is temporary and does not appear to prohibit or restrict access to the mutual driveway by vehicles or otherwise. The construction materials, scaffolding and other such items were present for brief times, albeit frequently, during construction. While the Respondents’ use of the mutual driveway for placement of these items was not neighbourly, and if they had demonstrated greater consideration items such as materials (not scaffolding that was necessarily in the driveway) should have been stored within the construction fence in the front yard or in the back yard, I cannot find that the encroachments were actionable in the circumstances of this case. This does not mean that they may not be if they persist. The Respondents should exercise caution in continuing to place items in the mutual driveway. While to date this has not substantially interfered with the Applicant’s enjoyment of his property, it could in the future.
53The greatest impediment to the Applicant in using the right-of-way substantially and practically as conveniently as before, may be the fence built by the Applicant. This fence prevents the driveway from being used by the Applicant to get vehicles or large items into the back of his property. The fence is built entirely on his property and does not interfere with the right-of-way, but during the period of construction by the Respondents, it has prevented the driveway from being used by the Applicant to drive his vehicle from the front to the back of the property.
What is the Appropriate Remedy?
Injunction:
54To obtain a permanent injunction, a party is required to establish:
a. Its legal rights; and
b. That an injunction is an appropriate remedy.
1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, at paras. 77-80.
55In deciding whether an injunction is an appropriate remedy, the following considerations are relevant:
a. Has the claimant proven that all the elements of a cause of action have been established?
b. Has the claimant satisfied the court that the wrong that is proven is sufficiently likely to occur or recur in the future, such that it is appropriate for the court to grant an injunction?
c. Is there an adequate alternate remedy that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong?
d. Are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) that would justify denying the remedy?
e. Are there any terms that should be imposed as a condition of granting an injunction?
f. What should the scope of the terms of the injunction be to ensure that only such actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven?
NunatuKavut Community Council Inc. v. Nalcor Energy, 2014 NLCA 46, para. 72.
56The three-part test for an interlocutory injunction (serious issue to be tried, irreparable harm and balance of convenience) is irrelevant to determining whether a permanent injunction should be granted: Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, at para. 27.
57Injunctive relief is strongly favoured as the remedy for an interference with property rights such as trespass or nuisance as damages are often presumed inadequate: 778938 Ontario Limited v. Annapolis Management Inc., 2020 NSCA 19 (“Annapolis”), at para. 18.
58The presumption of the remedy of a permanent injunction is stronger for the tort of trespass than nuisance. If, however, the trespass is temporary, trivial, unintentional, inadvertent or is unlikely to be repeated, courts have declined to award an injunction: Annapolis, at paras. 17 and 20.
59The Applicant argues that an injunction is the only way to keep his real property from being trespassed upon by persons (or objects) and from further nuisance being committed. He argues that the Respondents actions have demonstrated that this has been a continuous problem that is likely to be repeated. It has gone on for more than a year, and there is no indication it will stop once construction ceases. While there are some quantifiable damages, the bulk of the harm caused to the Applicant is not financial and damages are inadequate to protect the Applicant’s right and prevent further harm from continuing. In fact, the Applicant fears the situation will get worse once the Respondents tenants begin occupying the property.
60The Respondent argues that this case is akin to Annapolis. In that case, the Applicant claimed nuisance and trespass. An injunction was rejected on the grounds that the trespass had ceased by the time of the hearing, no harm had been done to the Applicant’s property, and there was no evidence that trespassing was ongoing or likely to reoccur. The court found that these conclusions favoured a remedy in damages: Annapolis, at para. 15.
61In Annapolis, at para. 31, citing Shelfer v. City of London Electric Lighting Company, [1895] 1 Ch. 287 (C.A.), the court confirmed that injunctions for nuisance may be refused where:
a. The injury to the applicant is small;
b. Damages to the applicant can be estimated in money;
c. A small damages payment would be adequate compensation for the applicant; and
d. It would otherwise be oppressive to grant an injunction.
62Similar principles have been applied in the context of trespass cases: Bellini Custom Cabinets v. Delight Textiles Limited, 2007 ONCA 413; Vaz v. Jong, [2000] O.J. No. 1632 (Ont. S.C.J.); Pagliuca v. Paolini Supermarket Ltd., [2006] O.J. No. 4887, aff’d 2007 ONCA 617; Annapolis, at para. 30.
63In this case, the Respondent argues that the Applicant’s concern of nuisance or trespass to be cause by future tenants is strictly speculative and cannot form the basis for a permanent injunction. They further argue that any trespass or nuisance has been trivial, unintentional, inadvertent and is unlikely to be repeated because the outside construction work is materially complete. Any incidents of trespass have been temporary, being of short duration spanning a few hours to a couple of days. Trespass or encroachment on the right-of-way are unlikely to occur in the future as construction on the side of the right of way has been almost completed as of the date the case was argued. The Respondents argue that any damage arising out of the incidents of trespass, nuisance, or encroachment have been quantified by the Applicant and can be remunerated. In the circumstances of this case, the Respondents argue that an injunction would be oppressive.
64I agree that no injunction should issue to remedy the incident I have found of nuisance. It was a one-time event, with the damage caused relatively insignificant.
65With respect to trespass, the Applicant has proven his cause of action and that it is sufficiently likely that trespass will continue to occur while construction remains ongoing. I find that an injunction is warranted to prevent further trespass during the remaining construction on the property. While the Respondents argue that the construction on the Applicant’s side of the harm is virtually complete, this does not mean that as of the date of argument of this case construction overall was almost complete. The inside work and possibly other outside work (not on the Applicant’s side of the Respondent’s property) still needed to be completed. Based on the Respondents’ actions to date, there is no indication that further workers of the Respondents that are completing inside work or deliveries of items for inside construction will respect the Applicant’s property. I cannot find that this disrespect extends only to outside workers. Presumably there will still be construction debris from the inside work and past patterns suggest there is a significant possibility this too will be piled up against the Applicant’s fence.
66If construction was complete, I would be inclined to agree with the Respondents’ that any argument about tenants possibly trespassing on the Applicant’s land would be speculative. The issue seems to be with construction and the Respondents failing to take the appropriate measures to ensure that their employees or contractors and subcontractors demonstrate the requisite respect for their neighbour’s property. I appreciate the argument of the Applicant that he is concerned that this same disrespect will not be discouraged by the Respondents with their tenants but agree with the Respondents that this is speculation. The scope of the injunction may be limited, and terms imposed to ensure that the injunction is not overly broad and enjoins only the offending conduct and parties.
67I also find that damages are insufficient to remedy the trespass. While damages will be awarded for physical damage suffered to the Applicant’s property, the damage done to the Applicant’s peace of mind and inability to enjoy his property without fear of ongoing intrusion and interference is immeasurable.
Damages:
68The Applicant argues that the Respondent’s actions have caused the damage to his property, including his side of the mutual driveway totalling $5,125.00. This was as of January 12, 2022.
69There were additional damages to the date of the hearing of the Application, but the quotes were not disclosed until the weekend prior to the matter being heard (argument scheduled for Monday). The quotes were not contained in an affidavit properly before the court, the Applicant did not intend to call the authors of the quotes as witnesses to give viva voce evidence, and unlike the other quotes in the record there had been no opportunity for the Respondents to cross-examine on them. This evidence was not properly before the court and as such, it was not considered as part of this decision.
70The $5,125.00 is attributable to the following:
a. $1,695 for damage to the Applicant’s side of the mutual driveway caused by the Respondents spilling Varsol on the driveway (consequence of the diesel exhaust nuisance);
b. Estimated $1,046.66 architect fees for assessment of damage to the house;
c. $2,034 estimate for the damage to the side of the Applicant’s house caused by the diesel exhaust, damage to the wall caused by wheelbarrows, and repainting required for the concrete splash ($2,949.30 paid); and
d. $350 invoice to repair damage to the fence.
71I agree with the Respondents that the Applicant has failed to establish why the architect fees were reasonable. They are not allowed.
72The Respondent also argued that damages are not recoverable in an application. They argue that damages are not ancillary to the injunctive relief sought, and otherwise are not encompassed by Rule 14.05(3). This issue was not raised in the Respondent’s factum. It was raised in argument, although no caselaw provided. It was not addressed by the Applicant in argument.
73The parties have proceeded with this Application knowing that damages were claimed. The Factums address the principles relative to damages. Rule 1.04(1) of the Rules of Civil Procedure requires the rules to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. It strikes me as a waste of money for the litigants and resources of the court to have to separately now, at this late stage, have a proceeding that deals with damages. In the absence of any authority from the Respondents to suggest that I am prevented from ordering damages in this proceeding, I am inclined to do so.
74The damages, other than architect fees, are reasonable, are directly attributable to the trespass and nuisance caused by the Respondents and shall be awarded.
Are Punitive Damages Appropriate?
75The Applicant seeks $25,000 in punitive damages.
76Punitive damages are reserved for exceptional cases, to punish, deter, and denounce wrongful acts that are so malicious, outrageous, oppressive and high-handed that they offend the court’s sense of decency and are deserving of punishment on their own: McCabe v. Roman Catholic Episcopal Corporation, 2019 ONCA 213, at para. 39; Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 36.
77The following are some of the relevant considerations in determining an award of punitive damages:
a. While not limited to particular categories of wrongs, by their nature punitive damages will be largely restricted to intentional torts.
b. The general objectives of punitive damages are punishment, deterrence of the wrongdoer and others, and denunciation.
c. Punitive damages should be resorted to only in exceptional cases and with restraint.
d. Punitive damages are often imposed only if there has been “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.”
e. The overall award should be rationally related to the objectives for which punitive damages are awarded, with the court asking itself what is the lowest award that would further those objectives.
f. The court should not focus on the Applicant’s loss, but on the Respondent’s misconduct.
Whiten, at paras. 67-76.
78In Epstein v. Cressey Development Corp. (1992), at para. 39, high-handed conduct was found in the context of an intentional trespass that continued:
39The high-handedness really is in two aspects in this case. The first aspect is in not taking sufficient care before work was begun to ensure that the work could be completed without the trespass. The second aspect of high-handedness was in deciding, when the time came where it was crucial to go ahead in order to stop further damage to the plaintiff’s property through a possibility of erosion, to do so without contacting the plaintiff…in my view constituted the kind of arrogant and high-handed conduct for which an award of punitive damages is appropriate.”
79The Applicants argue that the Respondents engaged in similarly high-handed behaviour by engaging in intentional trespasses or obstructions on the Applicant’s land in furtherance of their construction project. He argues it has been constant and unyielding, even in the face of multiple requests to stop, including letters from his counsel. He argues that the Respondents’ conduct has gone past careless and negligent to constituting a deliberate, wanton, and heavy-handed assault on the Applicant’s property and peace of mind. They have proceeded with their construction project in a manner that is convenient to them, without any regard for the Applicant. They have intentionally antagonized him and have even bullied an individual hired to do remedial work for him.
80The Respondents reject any allegation that their conduct has been high-handed, deliberate or wanton. They argue that since acquiring the property in November 2019, they have attempted to reach out to the Applicant in a neighbourly manner on numerous occasions to discuss issues that may have arisen. They argue that it has been the Applicant who has been unwilling to be reasonable.
81I find that the Respondents have engaged in high-handed, deliberate conduct that warrants the exceptional granting of punitive damages. In Epstein v. Cressey Development Corp., at para. 39, the British Columbia Court of Appeal noted that “…going ahead with an intentional trespass is, in my opinion, arrogant or high-handed conduct.” It is even more so in the circumstances of this case.
82In this particular case the Respondents knew they were dealing with a neighbour that did not want them there. There clearly was bad blood between the two. The Applicant refused attempts to secure their consent. When trespasses or encroachments on the right-of-way (the later of which I am not awarding damages for) did occur, the Applicant brought them to the attention of the Respondents and complained. They were dismissive in the approach they took, which did not remedy the ongoing incidents of trespass. They were asked to cease the trespasses by counsel for the Applicant but still continued. I find their conduct to be at best a complete disregard for the interests of the Applicant that in of itself demonstrates an arrogance for which punitive damages are awarded, and at worst, it was intentionally antagonistic. While the Applicant could have demonstrated a greater level of cooperation and civility towards the Respondents, the fact is they knew what the situation was and continued with construction with their own interests in mind and a disregard for those of the Applicant. More should have been done after the Applicant’s initial complaints. I do not accept that all complaints were remedied. Had they been remedied there would not have been ongoing trespass suffered by the Applicant. Such conduct is worthy of denunciation and deterrence by this court I find that in the circumstances of this case, given the sensitivities of the Applicant also, the amount of $10,000 is appropriate. In reducing the amount claimed by the Applicant I have taken into consideration those measures set out in the Respondents’ affidavit they said were taken to try to minimize the impact on the Applicant.
83It does appear that the actions are those of the corporation and/or its agents. Neither party made submissions as to why it would also be appropriate to make this award or any damage award against the principals of the corporation. In the absence of further submissions, I decline to do so.
ORDER:
84For the foregoing reasons, it is ordered that:
a. An injunction is granted restraining the Respondents from interfering with the Applicant’s peaceful occupation of his lands and premises located at 33 Roslin, or otherwise unlawfully and improperly encroaching upon these lands for the duration of their construction of the neighbouring property. For clarity, this injunction does not prevent the Respondents from using the right-of-way over the Applicant’s lands that is referenced in this decision, for the purpose for which it was granted.
b. The injunction shall be registered on title to both 31 Roslin and 33 Roslin.
c. The Respondent, McGinley Bros Inc., shall pay to the Applicant damages on account of nuisance and trespass in the amount of $4,078.34.
d. The Respondent, McGinley Bros Inc., shall pay to the Applicant punitive damages in the amount of $10,000.
e. If the parties cannot agree on costs:
i. The Applicant shall file his costs submissions, limited to 5-pages double-spaced (excluding bill of costs, caselaw, offers to settle and other necessary attachments) within 30 days of release of this decision, failing which costs shall be deemed to have been resolved;
ii. The Respondents shall deliver their costs submissions, limited to 5-pages double-spaced within 30 days of receipt of the Applicant’s submissions; and
iii. Any Reply shall be limited to 2-pages double-spaced and shall be delivered within 15 days of receipt of the Respondents’ submissions.
85As there were no arguments at the hearing of the application pertaining to scope or terms of the injunction, if anything further is required than what is ordered, or if after considering these reasons counsel feel different terms should be ordered than set out above, if further submissions need to be made as to liability of the individual Respondents for damages, or if there are ancillary orders I have failed to address, counsel may take out a further appointment before me for maximum 1 hour in duration.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: February 27, 2023