COURT FILE NO.: CV-22-1673 DATE: 20231128

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

1711811 Ontario Ltd., and Olga Maria Paiva, operating as Adline Plaintiffs/Defendants by counter claim – and – Buckley Insurance Brokers Ltd., Robert Buckley, 1730849 Ontario Ltd., The Corporation of the Town of Newmarket, Lake Simcoe Region Conservation Authority, Defendants and 1979286 Ontario Inc. Defendant/Plaintiff by counter claim

Counsel: Sara Erskine, Fraser Dickson for the Plaintiffs Jonathan Rosenstein, Counsel for the Defendant, Buckley Insurance Brokers Ltd., Robert Buckley, and 1730849 Ontario Limited J. Murray Davison, Counsel for the Defendant, The Corporation of the Town of Newmarket

Heard: May 24-30, 2023

REASONS FOR JUDGMENT

Leibovich J.

OVERVIEW

[1] The plaintiff, defendant by counterclaim, Olga Maria Paiva, is the owner of 1711811 Ontario Ltd. 171811 Ontario Ltd. is the registered owner of a mixed commercial residential building located at 255 Main Street South, Newmarket, Ontario. For ease of reference, I will hereinafter refer to the plaintiffs collectively as “Ms. Paiva” or “the plaintiffs”.

[2] The defendants, plaintiff by counterclaim, Robert Buckley, is the owner of Buckley Insurance Brokers Ltd. and 1730849 Ontario Ltd. 1730849 Ontario Ltd. is the registered owner of an adjacent commercial building located at 247 Main Street South, Newmarket, Ontario, which property is subject to an easement in favour of the plaintiffs. The easement is necessary so that the plaintiffs can access their loading dock. Access to the loading dock is achieved through a tunnel located on the Buckley defendants’ property. It is the tunnel that forms the subject matter of the easement. For ease of reference, I will hereinafter refer to Mr. Buckley and his related companies as “Mr. Buckley” and/or the “Buckley defendants”. The terms “right of way” and “tunnel” were used interchangeably to reference the easement throughout the trial.

[3] Use of the easement by the plaintiffs has been the subject of a long dispute between the plaintiffs and the Buckley Defendants. Ms. Paiva asserts that Mr. Buckley has substantially interfered with her easement rights and this interference has been enabled by the Town of Newmarket, whom Ms. Paiva has named as a defendant (the “Newmarket defendant”).

[4] Mr. Buckley’s company, 1979286 Ontario Inc, bought 253 Main St. in 2017. Mr. Buckley counterclaim against Ms. Paiva asserts that Ms. Paiva has intentionally interfered with his property rights at 253 Main St. by illegally parking on his parking pad. In response, Ms. Paiva asserts that her ability to park is ancillary to her easement rights.

[5] It is Ms. Paiva’s position that Mr. Buckley has overloaded the tunnel with traffic resulting from changes he has made. In addition, Ms. Paiva states that Mr. Buckley has made changes to the size of the tunnel and has also blocked the tunnel by parking there and allowing other tenants to park there. Furthermore, Ms. Paiva points to numerous times that Mr. Buckley has breached court orders designed to settle the dispute between them.

[6] Mr. Buckley agrees that there should be no parking in the tunnel. He disagrees that he has overtaxed the tunnel and submits that their conflict is due to Ms. Paiva’s false belief that he has no right to use the tunnel. Mr. Buckley submits that he has not substantially interfered with Ms. Paiva’s easement rights and that Ms. Paiva has not pointed to any actual interference with her ability to access her shipping docks.

[7] As noted, Ms. Paiva also sued the Town of Newmarket. The basis for Ms. Paiva’s action against the Newmarket defendant relates to a June 30, 2010, memorandum of understanding that Newmarket entered with Mr. Buckley. This memorandum allowed Mr. Buckley to make changes to the use of the tunnel which, Ms. Paiva submits, substantially interfered with her easement rights. Ms. Paiva asserts that neither Newmarket nor Mr. Buckley consulted her prior to the memorandum being signed and further that Newmarket continues to issue construction permits to Mr. Buckley that permits him to make changes to the tunnel which substantially interfere with her easement rights.

THE ISSUES

[8] This trial raises the following issues:

(a) What are Ms. Paiva’s easement rights with respect to the tunnel? (b) Have the Buckley defendants substantially interfered with Ms. Paiva’s rights? (c) If the Buckley defendants have substantially interfered with Ms. Paiva’s rights, is the Town of Newmarket also liable? (d) If there has been substantial interference with Ms. Paiva’s easement rights, what are the appropriate remedies? (e) Does the easement granting the plaintiffs a right-of-way over 253 Main St. allow the plaintiffs to park on the parking pad at 253 Main St.?

DETERMINATION OF THE ISSUES

[9] For the reasons set out below, the answers to the above questions are:

a. Ms. Paiva has the right to an uninterrupted right-of-way through the tunnel to her property at 255 Main St. This right-of-way means that Ms. Paiva cannot be blocked from accessing her property apart from transitory interruptions that naturally occur when sharing a right-of-way with others. Given the width of the tunnel, no one can park in the tunnel, as doing so would cause at least a partial obstruction. b. Mr. Buckley did not substantially interfere with Ms. Paiva’s easement rights by increasing his use of the tunnel or by making changes to the tunnel that allowed more shipping and receiving and garbage pick ups from the tunnel. Mr. Buckley did substantially interfere with Ms. Paiva’s right-of-way on the various occasions that he parked in the tunnel and allowed others to park in the tunnel. c. The Town of Newmarket is not liable for any interference to Ms. Paiva’s easement rights resulting from Mr. Buckley parking in the tunnel or allowing others to park in the tunnel. d. The appropriate remedy in this case is an injunction preventing parking in the tunnel and requiring Mr. Buckley to remove any cars parked in the laneway. It is not an appropriate case for monetary damages; and e. The easement granting the plaintiffs a right-of-way over 253 Main St. does not include a right to park in the tunnel or on the 253 Main St. parking pad.

THE FACTS

The Easement

[10] Mr. Buckley’s building, 247 Main St., runs from Main Street west to east down across an elevation change and then further across to the other (east) side of the Holland River. The building spans the river. Ms. Paiva’s building, at 255 Main St., is two doors south of Buckley’s building at 247 Main St. and also descends a level, but does not cross the river. On the west side of the Holland River, there is a tunnel through the lower level of Mr. Buckley’s building that allows for vehicular traffic to pass through the middle of Mr. Buckley’s building and access Ms. Paiva’s building. The tunnel is the sole means of preserving access to Ms. Paiva’s shipping/loading docks at 255 Main St.

[11] The location of the easement rights regarding Ms. Paiva’s building (building 255 Main St.) was set out in Mr. de Rijcke’s report. Mr. de Rijcke was qualified on consent as an expert in investigating and determining the existence, location and boundaries of easements, rights-of-way, instruments, properties and boundaries of water. His report was accepted by the defence. He concluded that the land at 255 Main St., Newmarket, is the dominant owner of an easement in the nature of a right-of-way, in common with others entitled thereto, over a strip of land about 20 feet wide, extending north from the north boundary of 255 Main St. lands, to the south end of a lane leading further north to Timothy Street. The two walls of the easement are not perfectly parallel. The right-of-way can be seen in the yellow strip in Appendix A.

[12] Mr. de Rijcke’s report helpfully sets out the history of the various deeds that led up to the 1957 deed that granted the easement at issue.

[13] On September 6, 1933, an indenture between the then-owners on the land granted a right-of-way through the property that lies between 247 Main St. and 255 Main St. On June 9, 1954, the then-owners of 247, 253, and 255 Main St. agreed that the then-owner of 247 Main St., Charles Bondi, could erect a second story that could extend over the right-of-way over the easterly 20 feet of the westerly 100 feet of the lands in the rear of the building at 247 Main St., provided that the addition would cover the rights-of-way 12 feet above the existing grade and interfere in no other way.

[14] On August 12, 1954, the then-owner of 247 Main Street, Charles Bondi, sold 247 Main St. to Loblaws Groceterias Co., Limited (“Loblaws”). The indenture of sale provided that the conveyance to Loblaws of the lands was subject to the rights-of-way over the lands to a clearance of twelve feet from ground level.

[15] The second story erected on 247 Main St. extended over the rights-of-way in favour of each of 255 and 253 Main St.. The second story created the tunnel through Mr. Buckley’s building directly to the shipping dock of Ms. Paiva’s building at 255 Main St.

[16] The last deed that addressed the easement was Instrument 16344A dated December 18, 1957, from Loblaws to Frank Bondi. It provided:

…their servants, agents, workmen and all other persons by them duly authorized, a free and uninterrupted right-of-way in common with all other persons entitled thereto for persons, animals, and vehicles, in, over, along and upon that certain parcel of land described as follows…

[17] The height of the easement is expressed as:

The said right-of-way shall be limited upwards in height to the bottom face of the building erected by the grantor in the year 1957 where the said building extends over part of the said right-of-way as shown on sketch of survey dated November 18, 1957, prepared by WS Gibson & Sons, OLS, and attached hereto.

[18] The maintenance of the right-of-way is expressed as follows:

The grantor for itself, its successors and assigns covenants and agrees with the grantee, his heirs, executors, administrators and assigns that the said grantor shall at all times maintain the said right-of-way in its present condition and location.

[19] The property at 253 Main St., just north of 255 Main St., was granted the exact easement.

[20] On October 31, 2006, Ms. Paiva purchased 255 Main St. In the fall of 2008, Mr. Buckley purchased the property at 247 Main St. On September 11, 2017, Mr. Buckley bought the property at 253 Main St.

The history of the litigation between Ms. Pavia and Mr. Buckley

[21] Ms. Paiva bought the building at 255 Main St. on October 31, 2006. She and her husband live there and run their business from there. In the fall of 2008, Mr. Buckley purchased the property at 247 Main St. Ms. Paiva swore in her affidavit that in April 2009, she and her husband, Glenn Wilson, noticed that there was construction work being done around the tunnel. Mr. Wilson testified that he spoke with Mr. Buckley. Mr. Buckley told him that they intended to close off the area and turn it into a storage space and parking garage. Mr. Buckley testified that he did not recall this conversation. It may or may not have happened. Mr. Wilson also said that in response to a letter from their lawyer around this time, Mr. Buckley told him, “Glenn got your lawyer’s letter today; hope you have lots of money. It’s gonna be fun.” Mr. Buckley testified at trial that he did not think he would have said such a statement.

Justice Pollak’s order

[22] Mr. Buckley sent Ms. Paiva a fax on May 12, 2009, stating that repairs to the tunnel would begin that day and that the tunnel would be blocked. Mr. Buckley agreed during cross-examination that he knew more than 24 hours in advance when construction was to start. He agreed that in May 2009, he provided less than one day notice.

[23] Ms. Paiva brought an injunction on May 15, 2009, to block the construction. On May 20, 2009, Justice Pollak made an on-consent order that allowed the construction but that required Mr. Buckley to maintain the tunnel’s width and height. Ms. Paiva maintains that Mr. Buckley disobeyed the order and changed the grade of the tunnel affecting the height of the tunnel which has prevented larger trucks from going to their dock. Mr. Buckley also installed vents and fixtures along the tunnel’s walls. Ms. Paiva submits that this has narrowed the tunnel as well. Counsel for the plaintiffs submitted at trial that they could live with Justice Pollack’s order, which stated:

1. THIS COURT ORDERS that the clearance height and width of the right of way described as Parts 3, 4, and 5 on Plan 65R-7394 remains the same as existed prior to construction work on the Janeway by the Respondents.
2. THIS COURT ORDERS there will be no material change to the right of way that will restrict access to 255 Main Street by delivery/courier cube-vans and smaller vehicles, as existed prior to the said construction work on the right of way by the Respondents.
3. THIS COURT ORDERS construction of the right of way by the Respondents will be carried out in a way to preserve vehicular access to 255 Main Street by delivery/courier cube-vans and smaller vehicles during business hours (9:00 a.m. to 5:00 p.m.), Monday to Friday.
4. THIS COURT ORDERS that the Respondents shall provide the Applicants with written notice not less than 24 hours in advance, of any interruption of the said vehicle access during business hours, which shall not exceed 120 minutes and shall not exceed one interruption per day.

Justice Himel’s order

[24] Ms. Paiva brought an October 2012 motion seeking to find Mr. Buckley in contempt of Justice Pollack’s May 2009 order and to enforce their right to have uninterrupted access to their building. Justine Stitson made an interim order in December 2012. In May 2013, Justice Himel heard the motion. The order was favourable to Ms. Paiva but was set aside on appeal. However, Justice Himel also gave Mr. Buckley four months to voluntarily fix the height of the tunnel, failing which Ms. Paiva could return to court to seek that aspect of injunctive relief. This aspect of Justice Himel’s ruling was never set aside. The plaintiffs seek to have the height of the tunnel raised. This request is addressed in the section entitled “Changes to the height of the tunnel” below.

Justice O’Marra’s order

[25] On April 11, 2014, Ms. Paiva brought a motion for an interim and interlocutory injunction. On consent Justice O’Marra made the following order:

(a) The parties are not allowed to park in the laneway, except: (i) while it is taking a delivery from or making a delivery to either the Adline Building or the Buckley Building; and (ii) parked as reasonably close to the laneway walls; and (iii) for no longer than 30 minutes; and (iv) after a delivery has been made no other vehicle can begin a delivery until any vehicle waiting to leave the area immediately south of the laneway has driven through the laneway northward; or 2) any vehicle waiting to access the area immediately south of the laneway has driven through the laneway southward.

[26] Justice O’Marra also set out a detailed schedule, on consent, regarding when, irrespective of whether the above conditions were complied with, Mr. Buckley was allowed to receive deliveries. Justice O’Marra also required Mr. Buckley to provide Ms. Paiva with 72 hours notice for construction to the laneway structure. In addition, Justice O’Marra ordered that Mr. Buckley shall not perform any construction to the laneway structure which has the effect of materially diminishing the size of the laneway.

Justice Akhtar’s July 16, 2015 order

[27] Ms. Paiva brought a contempt motion on the basis that Mr. Buckley was not complying with the terms of Justice O’Marra’s order. On July 16, 2015, Justice Akhtar ruled on the 2015 contempt motion. He continued the above restrictions regarding parking and the requirement that notice be given for any construction work. Justice Akhtar also ordered that:

1. Mr. Buckley shall reasonably advise all of the Buckley People of the terms of this order.
2. Mr. Buckley shall be responsible for ensuring compliance with the terms of this order by all Buckley Persons.
3. That garbage collection in the laneway is permitted so long as it occurs no later than 10:00 a.m. and so long as Ms. Paiva is notified; and
4. Mr. Buckley shall prohibit all Buckley Persons from using the fire door at the south end of the eastern wall of the laneway for any purpose other than emergency uses, including for garbage removal or shipping/receiving.

[28] In November 2017, Mr. Buckley brought a motion to stop Ms. Paiva from parking on the parking pad at 253 Main St. and to require Ms. Paiva to pay for the easement’s upkeep out of their own pocket. Ms. Paiva brought a cross-motion from obstructing or altering the right-of-way and requiring the removal of all obstructions and modifications to the 253 Main St. right-of-way. On January 16, 2018, Mr. Buckley’s motion and the plaintiff’s cross-motion were heard by Justice Pollak, who elected to preserve the status quo until the then-upcoming trial in April 2018.

[29] Ms. Paiva and Mr. Wilson swore in their affidavits and testified that over the years, Mr. Buckley has ignored their easement rights and blocked access to the back of their building. They complained of the following:

(1) The tunnel was blocked by the construction itself, the condition of the pavement, and the storage of construction materials. While cars could sometimes pass, the tunnel often remained obstructed from vehicular access even when construction was taking place in non-tunnel areas, and the couriers were impeded from accessing the loading dock to pick up goods. (2) In the months following the construction Mr. Buckley would allow others to park in the tunnel. (3) Mr. Buckley’s employees begin to use the doorway on the west wall of the tunnel as an entrance. This caused an increase in foot traffic and the presence of vehicles waiting to pick these employees up parking or waiting in the tunnel while waiting for employees to finish work. (4) Mr. Buckley began taking deliveries at the employee entrance in the east side of the tunnel, blocking the entrance to the tunnel. Deliveries used to occur on the opposite side of the building. (5) Contrary to the consent order, Mr. Buckley frequently failed to provide the plaintiffs with 24 hours written notice of any interruption to vehicle access to 255 Main St. during business hours. (6) The memorandum with the Town of Newmarket allowed Mr. Buckley to have internal garbage facilities. The garbage facilities opened into the tunnel and obstructed the easement. (7) Mr. Buckley obtained a permit and built an emergency exit on the east wall of the tunnel in March 2014.

[30] The plaintiffs filed a voluminous book of pictures documenting what they say were interferences with their use of the laneway. I will reference the material in the section below.

[31] Ms. Paiva described the total impact that all the obstructions and court violations have had on their lives:

Taken individually, the blockages to our customers, tenants, deliveries, and to our own access to our property might appear to be regular annoyances of the kind that we all have to deal with in everyday life. However, collectively, they represent a 13-year pattern of making it more difficult to operate our business and get in and out of our home on a regular basis. Everything is slower and no amount of coordination or pre-planning will alleviate the situation because Mr. Buckley does not abide by the rules that are agreed to in court orders. Our businesses, our lives, and the value of our property have suffered accordingly.

LAW AND ANALYSIS

a) What are Ms. Paiva’s easement rights with respect to the tunnel?

[32] Both parties agree that the easement was set out in Instrument 16344A dated December 18, 1957, from Loblaws to Frank Bondi. Both parties also agree on the applicable caselaw with respect to how one interprets the nature and extent of an easement. As stated by the Court of Appeal in Raimondi v. Ontario Heritage Trust, 2018 ONCA 750 at para. 11:

Where, as here, an easement is expressly created by written agreement, the scope of the easement is to be determined by interpreting the text. What is the agreement that the original parties made that now binds their successors? The basic interpretive methodology was stated by this court in Fallowfield et al. v. Bourgault et al. (2003), 68 O.R. (3d) 417 (C.A.), at para. 10: "[w]here an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created.

Also see Oakville (Town) v. Sullivan, 2021 ONCA 1 at para. 14.; Yekrangian v. Boys, 2021 ONCA 629.

[33] The right conveyed in the language of this easement is:

…their servants, agents, workmen and all other persons by them duly authorized, a free and uninterrupted right-of-way in common with all other persons entitled thereto for persons, animals, and vehicles, in, over, along and upon that certain parcel of land described as follows… [emphasis added]

[34] The height of the easement is expressed as:

The said right-of-way shall be limited upwards in height to the bottom face of the building erected by the grantor in the year 1957 where the said building extends over part of the said right-of-way as shown on sketch of survey dated November 18, 1957, prepared by WS Gibson & Sons, OLS, and attached hereto.

[35] The maintenance of the right-of-way is expressed as follows:

The grantor for itself, its successors and assigns covenants and agrees with the grantee, his heirs, executors, administrators and assigns that the said grantor shall at all times maintain the said right-of-way in its present condition and location.

[36] Counsel for Ms. Paiva submits that when interpreting the scope of the easement you must clearly look at the words set out in the grant but also must consider the historical context in which the grant was created. Counsel for Ms. Paiva submits that when you look at the historical context in which the easement was granted, it is clear that 255 Main St. ran a commercial business and the easement was needed in order to gain access to their shipping docks. Counsel for Mr. Buckley takes no issue with this assertion. I agree that it is an accurate observation.

[37] Counsel for Ms. Paiva submits that when you look at the evidence, it is clear that at the time of the grant, Loblaws had a metal loading door on the east side of the river in 1984 and Loblaws took deliveries on the other side of the Holland River and not in the tunnel. I agree that this this factually accurate.

[38] Counsel for Ms. Paiva submits that with this historical backdrop, the words “free and uninterrupted” convey a broad right-of-way. Ms. Paiva submits that given that there was no reserve clause in the grant for 247, Mr. Buckley is not allowed to use the tunnel in a way that it was not used in 1957 at the time of the grant. Therefore, Ms. Paiva submits, Mr. Buckley is not allowed to have any shipping or receiving (apart from the occasional delivery) in the tunnel since Loblaws did not use the tunnel in that manner in 1957.

[39] I disagree. The law is clear that the servient tenement (Mr. Buckley) still maintains his ownership rights over the property that is subject to the easement: Raimondi v. Ontario Heritage, at para. 17; Bibieffe International Holding B.V. v. York Region Condominium Corp. No. 838, [2000] O.J. No. 3579 (Ont. C.A) at paras. 4 and 5. Furthermore, the instrument setting out the easement explicitly states that the grantee will acquire free and uninterrupted right-of-way “in common with all other persons entitled thereto,” which clearly includes the owner. Counsel for Ms. Paiva does not submit, nor could she, that the grant provided Ms. Paiva with exclusive use of the tunnel. This, of course, would be contrary to established law in this area: Raimondi v. Ontario Heritage; Bibieffe International Holding B.V. v. York Region Condominium Corp; Square-Boy Limited v. The City of Toronto, 2017 ONSC 7178.

[40] Furthermore, at the time the easement was granted to 255 Main St., an exactly worded easement was granted to 253 Main St. to allow their use of the tunnel. Therefore, the concept of sharing the tunnel existed at the outset when the grants were established. This understanding was verified by Ms. Pavia’s spouse, Mr. Wilson, who testified that he assumed when the building was purchased that they would have to share the laneway.

[41] I also do not interpret “uninterrupted” as meaning that there could never be a temporary blockage of the tunnel. As stated by McLeod J. in Khazai v. Disante, 2020 ONSC 2152, at para. 3:

[…] Neither party may significantly impair the right of access by the other but mere temporary or trivial interference is not a violation of those rights. It is simply a fact of life. Two vehicles cannot use the same laneway at the same time. The owners of the land must live with the burden of the right of way including reasonable wear and tear and reasonable amounts of traffic. The beneficiary of the right must recognize that she is passing over her neighbour's land.

[42] I reject the plaintiffs’ assertion that Mr. Buckley is limited to using the tunnel as it was used when the easement was granted in 1957. The easement affects the owners of the property’s right to unfettered access to the property. It does not, however, otherwise affect their substantive property rights provided that such rights do not impact the easement rights. The law is clear that the servient tenement retains its ownership rights, “except to the extent that those rights are inconsistent with the rights of the grantee granted by the deed” or put another way:

It is clear that the respondent must exercise its residual rights as owner of the servient tenement in a manner consistent with the rights accorded by the easement.

Bibieffe International Holding B.V. v. York Region Condominium Corp, at para. 47, Raimondi v. Ontario Heritage, at para. 17.

Parking and stopping in the tunnel

[43] I will address in the next section whether Mr. Buckley has, over the past 13 years, substantially interfered with the use and enjoyment of the easement.

[44] But both sides do agree on the issue of parking. Counsel for Ms. Paiva submits that parking cannot be allowed in the tunnel. Counsel for Mr. Buckley agrees. The concession is well made. The tunnel is only 20 feet wide. Parking in the tunnel, depending on how it is done, will either block or partially block access to Ms. Paiva’s loading dock and would substantially interfere with her right-of-way. I agree that even a car parked close to a wall is extremely difficult to manoeuvre around. I also agree that it is Mr. Buckley as the servient tenement’s responsibility to keep the tunnel clear of parked cars. To be clear, when I speak of parking, I do not mean the temporary parking that is inherent in a car or delivery truck receiving or delivering items. These vehicles must stop their cars to deliver or obtain the items in question. They are clearly allowed to do that. Permanent parking that goes beyond this is simply incompatible with the plaintiffs’ easement rights.

[45] 255 Main St. is at the south end of the tunnel. Cars that are stopped, delivering or receiving items for 253 or 247 Main St. will block, or at least partially block, access to 255 Main St. In these circumstances, it is consistent with the plaintiffs’ easement rights that Ms. Paiva ask for those cars to move if at that moment another vehicle that is attempting to reach the loading dock at 255 Main St., cannot in fact reach 255 Main St. It is not consistent with the plaintiffs’ easement rights that Ms. Paiva ask that a car that is temporarily stopped to move because there is a risk that a future delivery person may not be able to access 255 Main St.

Conclusion on the scope of the easement

[46] Ms. Paiva has the right to an uninterrupted access through her tunnel to her property at 255 Main St. This right-of-way means that Ms. Paiva cannot be blocked from accessing her property apart from transitory interruptions that naturally occur when sharing a right-of-way with others. Given the width of the tunnel, no one can permanently park on the laneway.

b) Have the Buckley defendants substantially interfered with Ms. Paiva’s rights?

[47] The test for an actionable encroachment is whether there is a “substantial interference” with the use and enjoyment of the easement for the purpose identified in the grant: Oakville (Town) v. Sullivan; Weidelich v. de Koning, 2014 ONCA 736, 122 O.R. (3d) 545, at paras. 9-11; Fallowfield, at paras. 40 and 41. The dominant owner may only sustain a claim predicated on substantial interference with reasonable use. Furthermore, as stated by the Court of Appeal in Weidelich v. de Koning, at para. 15:

The significance of an encroachment depends on its impact on reasonable use. The dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose. I would adopt as correct the inquiry captured in the following passage in B & Q Plc., at 257:

In short, the test, . . . is one of convenience and not necessity or reasonable necessity, Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?

[48] There is no mechanical way to determine what constitutes an unreasonable demand upon an easement or a substantial interference with the rights conferred by a granted easement. Each case depends upon both a proper construction of the instrument creating the easement and the factual circumstances: Ma v. Abdullah, 2019 ONSC 6781 at para. 63; Przewieda v. Caughlin, 2015 ONSC 3770, [2015] OJ No 3776; Laurie v. Winch, [1953] S.C.R. 49, [1952] 4 D.L.R. 449, at p.455; MacKenzie v. Matthews, [1999] O.J. No. 4602 (C.A.), at para. 12; and Weidelich v. De Koning, at para. 14.

[49] Counsel for Ms. Paiva has submitted that Mr. Buckley has substantially interfered with Ms. Paiva’s easement rights by changing the dimensions of the tunnel and by the manner in which he now uses and allows others to use the tunnel.

Changes to the height of the tunnel

[50] Mr. Buckley cannot materially change the height and/or dimensions of the tunnel. Ms. Paiva submits that he has done so and, in accordance with Justice Himel’s original order, requests that I order that the tunnel be restored to its original height of 12 feet. Counsel for Ms. Paiva submits that:

(1) If you look at the history of the deeds the tunnel was supposed to be a minimum of 12 feet high; (2) The May 2009 construction on the tunnel resulted in the tunnel being lowered by at least two inches; and (3) The difference is important because some larger trucks need a higher clearance in order to reach the Paiva’s shipping dock.

[51] I disagree that any changes that might have been made to the height of the tunnel substantially interfered with the plaintiffs’ easement rights.

[52] I agree that on August 12, 1954, the then-owner of 247 Main Street, Charles Bondi, sold 247 Main Street South to Loblaws Groceterias Co., Limited. The indenture of sale provided that the conveyance to Loblaws of the lands was subject to the rights-of-way over the lands to a clearance of 12 feet from ground level. However, the 1957 instrument granting the easement in this case specifically did not set a specific height for the ceiling of the tunnel. The instrument said that it was “limited upwards in height to the bottom face of the building”. The drafter could have easily put a specific height if they had wanted.

[53] Mr. Wilson testified that back in 2009, he made some measurements and took photos to establish that the grade has been changed and raised by perhaps up to six inches. Those photos are in the plaintiffs’ book of documents. They are not helpful. One photo presumed where the new floor would be. The second photo has the new floor but Mr. Wilson said that it is only helpful when comparing it to a pre-construction photograph which was never shown to the witness or filed at the trial. He testified that he made measurements after the renovations. He believed the clearance was only 10.5 feet. But when looking back at his discovery evidence, he realized he might have misremembered, and the clearance was 11.5 feet. He took measurements of the tunnel in August 2006, but he has no notes of it. I am not prepared to accept Mr. Wilson’s measurement. I am not questioning his veracity, simply the reliability of his evidence. The measurements are simply too inexact.

[54] Mr. Buckley accepted in his examination that according to George, his contractor, the height was lowered by two inches. Even though George has not testified, the defendants are prepared to accept that the height was lowered by two inches. However, even accepting that the plaintiffs are entitled to a tunnel that is 12 feet high and even accepting that the defendants lowered it by two inches, this is not, in my view, a substantial interference in their use of the right-of-way. As stated in Weidelich: “The significance of an encroachment depends on its impact on reasonable use”. In this case, Mr. Wilson stated that he understood that a standard truck needs a 12-foot clearance. This was simply his view. He did not have any information to support this and he was not a trucking expert. Ms. Paiva agreed in cross-examination that she was not aware of any truck that could not reach her dock because it was too tall for access.

[55] The plaintiffs have not established that this change, if it occurred, had any affect on their use of the laneway.

Other work on the tunnel

[56] There is no dispute that Mr. Buckley made other changes to the tunnel, such as:

(1) He installed double steel exit doors at the north end of the laneway, in the portion which is not enclosed in the tunnel. When fully opened, the north doors projected approximately 3 feet into the Laneway. The doors were converted into roll-up doors to avoid any intrusion into the laneway; (2) He converted a large glass block window into a delivery bay with a roll-up door; and (3) He put in an emergency exit, that exits on to the laneway. The door does not project out on to the laneway; it is recessed into the building.

[57] The issue is not the changes per se, but the resulting use of the tunnel from those changes. I will address that issue below.

Use of the laneway

[58] The plaintiffs submit that Mr. Buckley has overburdened the tunnel by increasing the shipping and deliveries from the tunnel, having the garbage pick-up be done in the tunnel, parking in the tunnel, leaving construction materials in the tunnel and using the emergency doors to the tunnel for non emergencies. The plaintiffs submit that the cumulative affect from all this has resulted in a substantial interference with her use of the right-of-way.

[59] The defendants submit that the term “overburden” is misplaced and that it applies to actions done by the dominant tenement. I agree with the defendants that the term “overburden” does not apply to this situation. As stated in York Region Condominium Corp. No. 890 v. Market Village Markham Inc., 2020 ONSC 3993:

Overburdening of an easement occurs when an easement is used excessively or "significantly beyond the rights and nature conveyed in the grant of easement". The reasonable use of an easement balances the land ownership interests of the servient owner with the rights granted through the easement to the dominant owner. When this balance is lost, through excessive use by the dominant owner in a manner that unreasonably compromises the rights of the servient owner, the easement is breached through overburdening. [Emphasis added.]

[60] However, that does not settle the issue. Both sides agree that it is possible that one could overtax the tunnel with traffic and thus substantially interfere with the easement rights. The defendants submit that this is not what happened in this case. The plaintiffs submit that it did.

Affects of the increase usage by Mr. Buckley.

[61] The plaintiffs have filed a large book of pictures with some videos. Plaintiffs’ book contains 365 tabs from 2009 to 2021 illustrating what they say are examples of the laneway being blocked or partially blocked. The book was filed digitally. A paper index of the plaintiffs’ book would by itself total in excess of ten pages. Even though only some of the photos and videos were identified in Ms. Pavia’s affidavit and only some were discussed during the course of the trial, I have reviewed and considered all the photographs and videos in arriving at my decision.

[62] Ms. Paiva swore in her affidavit that:

Since purchasing 247 Main, Buckley has obstructed, impeded, and generally overburdened my lawful access to my property through the Tunnel by, inter alia, parking vehicles in the Tunnel to prevent ingress and egress by ourselves and our tenants, customers, couriers, and deliveries; by altering the function and exits of his building to increase traffic through the narrow Tunnel easement; and by engaging in construction to alter the Tunnel easement and surrounding environment without authorization and in violation of several Court orders.

[63] Ms. Paiva states that Mr. Buckley’s actions have caused a 13-year nuisance for her and her husband.

[64] There is no dispute that Mr. Buckley has used the laneway more than the previous owner. Apart from increased shipping and delivery, the garbage is picked up from the laneway and Mr. Buckley has done more construction work on the tunnel. As a result, more trucks and cars have been in the laneway. Ms. Paiva’s affidavit and supporting photographs show numerous instances of trucks and construction items in the laneway. The following is a few examples taken from Ms. Paiva’s affidavit:

A) On November 20, 2011, a delivery truck attempted to deliver to the plaintiffs loading dock but a vehicle was parked in the tunnel blocking access. The plaintiffs emailed Mr. Buckley asking him to move his vehicle. Mr. Buckley denied that the vehicle had anything to do with his operation and suggested that other neighbours may be doing renovations; B) On June 15, 2012, one of Ms. Paiva’s customers was prevented from leaving for 30 minutes because a car was parked in the tunnel. Mr. Wilson emailed Mr. Buckley and asked if he could move. Mr. Buckley responded, “Relax. Your customer is parked on my property. Should I send you a pic?? We are taking a delivery. I forgot, did you want to sell?” C) On June 29, 2012, Mr. Wilson emailed Mr. Buckley to give him advance notice of an impending delivery and to request the removal of a parked vehicle which would impede the delivery’s access. Mr. Buckley replied, “We are taking a delivery. Sorry, but we need to also take and receive product. T shirt delivery will have to wait.”. Mr. Wilson emailed and spoke about the need to coordinate deliveries. Mr. Buckley replied, “Glenn, stop acting like a lawyer. Have your lawyer send me a letter rather than you pasting and cutting his comments. Do me a favour, stop emailing me. You’re an ass and I’d appreciate less communication. We will do our best to keep the laneway open. Remember, we also need to accept deliveries. And, tell your wife to stop swearing at my workers. They don’t speak English!” Mr. Buckley testified at trial that he was getting emails and texts constantly so he boiled over and was rude. He agreed that his responses to Mr. Wilson were not very nice. D) On July 4, 2012, there were more vehicles parked in the tunnel blocking the delivery access. This happened twice in the same day; E) For two weeks, between August 6 and 20, 2012, Mr. Buckley allowed a neighbour at 245 Main St. to pursue construction activities, which blocked access to the plaintiffs’ right-of-way. F) On September 21, 2012, the plaintiffs were expecting a time-sensitive delivery. There were trucks parked in the laneway. No evidence was led at trial that this affected the time-sensitive delivery. G) On November 9, 2012, Mr. Buckley had a scissor lift delivered to 247 Main St, which was left parked in the middle of the right-of-way, blocking delivery access to 255 Main St. Scaffolding was also erected that separately encroached upon the width of the right-of-way. A Purolator truck could not make a timely delivery as a result; H) On November 14, 2012, Mr. Buckley had vehicles parked on the north side of 247 Main St. encroaching upon the right-of-way. This frustrated the Purolator delivery driver and again obstructed and delayed a delivery. I) On September 4, 2014, Mr. Buckley allowed a communications vehicle to be parked in the tunnel blocking access to the premises for more than two hours; J) On October 7, 2014, there were three further encroachments by Mr. Buckley. Individuals used the southern “emergency exit” – which is restricted to emergency use – for regular ingress and egress. A delivery was also made at the emergency exit door instead of the loading door to the north from 10:40 to 11:32 a.m. Another delivery was made at the “emergency exit” door instead of the “loading” door to the north at 11:36 a.m. K) On October 27, 2014, Mr. Buckley was videotaped speaking to the driver of a vehicle parked in the tunnel. L) On November 7, 2014, another delivery was made at the “emergency exit” door instead of the “loading” door to the north at 5:43 p.m. M) On December 24, 2014, Mr. Buckley had a delivery parked in the tunnel, without notice and for far longer than 30 minutes, between approximately 4:37 p.m. and 6:06 p.m., breaching one of the court orders. N) On February 18, 2015, the plaintiffs were blocked with no notice by a van parked directly in the middle of the tunnel. O) On Thursday, February 19, 2015, the plaintiffs observed deliveries being made to Mr. Buckley’s building during the plaintiffs’ exclusive time pursuant to the O’Marra Order; P) The plaintiffs were waiting for a time-sensitive delivery on March 17, 2015, and it did not show up. Ms. Paiva swore in her affidavit that she was unable to confirm whether or not a driver had passed by because there was no access. Q) On March 18, 2015, the plaintiffs observed a vehicle park in the middle of the right-of-way and the driver go inside the Buckley Building, leaving the vehicle unattended; R) On April 6, 2015, a garbage truck parked in the tunnel opening to pick up garbage from the Buckley Building during the plaintiffs’ exclusive time under the O’Marra Order. The plaintiffs were unable to access her property during the pick-up. S) On April 17, 2015, a beer truck parked in front of the tunnel opening to make a delivery to the Buckley Building. The truck was parked in such a way that the tunnel was completely blocked. The delivery persons left the vehicle parked in this manner while they went inside the Sparro Restaurant; T) On July 3, 2015, GFL employees picked up trash from the tunnel at approximately 12:10 p.m., after the time prescribed by a court order. The GFL employees parked one pickup truck at an angle which completely blocked the tunnel, and the second was parked north of the tunnel. This effectively blocked passage through the entire tunnel; U) On July 20, 2015, a vehicle delivered a beer keg to the shipping door on the west side of the building and parked in the middle of the tunnel, as opposed to one side as required by a court order. Grant Buckley, Mr. Buckley’s son, was present at this time; V) On multiple occasions during the week of June 6, 2019, Mr. Buckley parked vehicles or permitted vehicles to park in the tunnel and at the rear of 253 Main St., blocking the plaintiffs access to their property; W) On October 27, 2020, Mr. Buckley had an industrial size garbage removal bin placed directly in the tunnel and left it there for several days, in breach of paragraph 4 of Justice Akhtar’s Order. Mr. Buckley himself placed garbage in that bin and Mr. Buckley’s son used the emergency exit for ingress and egress.

[65] The plaintiffs have led a significant amount of evidence of trucks being stopped in the tunnel. However, apart from a handful of instances over the past 13 years, there is very little evidence of these deliveries affecting Ms. Pavia’s business. For example, Ms. Paiva stated in her affidavit at paragraph 120:

On February 26, 2015, a vehicle parked in the tunnel at approximately 2:36 p.m. to make a delivery to the Buckley Building, during our exclusive time under the O’Marra Order.

[66] She agreed during cross-examination that this did not actually interfere with her usage of the tunnel but that it happened during her allotted time. She agreed in cross-examination that she did not know if she missed a delivery because people could not get access to her loading dock. She was concerned that if a car parked in the laneway, it was possible that a delivery person would leave. She agreed that she did not list one customer who was actually blocked from her place in her affidavit. She also agreed that she did not list one lost customer because of her access issues, in her affidavit.

[67] It is evident that it is Ms. Paiva’s view that she should not have to worry about her customers gaining access. It is reflected in her trial testimony as referenced above and in her out of court cross-examination where the following exchange took place:

Q. So, I take it May 2nd, when this was happening, you didn't actually have a delivery which couldn't get in, right? A. I would have to check to see if I missed any deliveries that day. But that's not the point. The point is when they show up, they should be able to get in. Q. No... A. I shouldn't even be burdened with all this nonsense. This is ridiculous.

[68] Concern that your right-of-way may be encroached upon in the future or hindered in the future when required does not mean that there has been a substantial interference in that right-of-way. Ms. Paiva was never granted, nor could she be granted, exclusive use of the tunnel. Use of the tunnel was always going to have to be shared. The fact that increased coordination is now required to ensure proper access again does not equate with there being a substantial interference in that access.

[69] Ms. Paiva’s aggravation that she has to engage in this coordination is in my view, based, in part, on her misunderstanding of Mr. Buckley’s rights. Ms. Paiva filed an affidavit in support of an earlier motion. She was cross-examined and the following exchanges ensued:

Q. And I think it's fair to say that in your view anything that Buckley does in that space, other than literally walk through it, or drive through it, interferes with the right that you have, and you have a right to stop him from doing it? A. That is correct Q. Okay. So, I'm just clarifying, your evidence is your easement permits you to block Buckley's employee door with a truck, if you choose to? A. If I choose to, yes. Q. Okay. For any length of time? A. That is correct. Q. Okay. And you are allowed to do this only while you are loading and unloading the truck, though, right? A. No. I can actually leave it there if I want to. Q. But if it interferes with the owner, Buckley, that's okay? A. Interferes how? Q. Blocks his laneway. A. It's not his laneway. He owns that property. That's not his laneway. He can...he doesn't have the right to have any kind of commercial. He can't utilize that for any commercial purposes. Q. Well, any purposes, personal and commercial or otherwise, right? A. Well... Q. I'm asking you to tell me what you believe to be the case. A. That's exactly what I believe.

[70] Ms. Paiva swore in her affidavit filed at this trial that she understands that her above comments were incorrect. She stated:

However, I recognize that Mr. Buckley does have legitimate rights to make fair and reasonable use of the shared easement in the Tunnel and his property, as long as those rights do not alter or overburden the Tunnel or otherwise impede the free and uninterrupted access rights my property has been expressly granted.

[71] However, it was evident in cross-examination that she hadn’t quite accepted this. For example, she testified that in her view, Mr. Buckley was not allowed to make any modification of the tunnel, no matter how small.

[72] Ms. Paiva is correct that Mr. Buckley cannot prioritize his use over hers as he did in June 2012 because otherwise it would render the easement meaningless. When notified on June 15, 2012 that one of the plaintiffs’ customers was prevented from leaving the loading bay because Mr. Buckley was receiving a delivery, Mr. Buckley was required to stop the delivery and allow the plaintiffs’ customer to leave (unless Mr. Buckley’s delivery was to be concluded within a reasonable time). I accept counsel for Mr. Buckley’s submission that this was the only instance when Mr. Buckley told the plaintiffs to wait.

[73] Mr. Buckley owns the tunnel. He is also required to maintain it. He is allowed to complete construction on the tunnel as long as he does not materially alter its dimensions. There is no evidence that he has done so. I agree with the plaintiffs that Mr. Buckley is required to provide the plaintiffs with reasonable notice of any construction and must also ensure that the construction materials do not block access which has happened on occasion. I do not view those isolated incidents as substantially interfering with the plaintiffs’ easement rights.

Violation of court orders

[74] Counsel for Ms. Paiva submits that the construction of the emergency door has resulted in more traffic into the laneway. In addition, counsel submits that Justice Akhtar’s order is quite clear that the emergency exit can only be used for emergencies.

[75] I agree that Justice Akhtar’s order clearly states that the emergency door can only be used for emergencies. I also agree that Mr. Buckley violated that order on numerous occasions as can be seen in the numerous photographs. Mr. Buckley testified and agreed that Justice Akhtar ordered that the emergency exit door was only to be used for emergencies. He agreed that he may have used the door for non-emergency purposes afterwards. He testified that he was unsure what his sons did. He was then shown a March 29, 2021, picture of he and his son carrying chairs through the door. He agreed that it was him and his son. I also found that Mr. Buckley was not forthright when answering questions regarding the use of the emergency exit. However, the slight increase in foot traffic by the misuse of the emergency door did not affect the plaintiffs’ use of the tunnel. Having said this - Mr. Buckley’s use of the emergency exit for non-emergency purposes is in direct contravention of a court order and (without making any formal finding) is contemptuous on its’ face.

[76] Ms. Paiva swore in her affidavit that:

I remain concerned that I or the agents or invitees of my business who may need to drive a vehicle through the Right-of-Way/Tunnel are at risk of injuring pedestrians coming out of the “fire door” or the overhead steel shipping door in the east wall of the Tunnel. These doors are recessed, and there is no way to tell if someone is exiting until they step into the Tunnel. I specifically recall one incident, on March 6, 2015, in which I nearly hit someone who jumped out of the shipping door into the Tunnel as I was driving through it.

[77] Ms. Paiva has described one safety incident of concern in the past eight years with respect to the pedestrians using the door. In my view, the evidence has not established the misuse of the emergency doors has created a safety hazard. Again, no evidence was led that this use of the emergency exit hindered the plaintiffs’ access to their shipping dock.

[78] Similarly, throughout Ms. Paiva’s affidavit, there are references to Mr. Buckley taking deliveries or having the garbage picked up outside the time allotted to him by various court orders. I agree that Mr. Buckley should have abided by the court order but that does not mean that his failure to do so was a substantial interference with Ms. Paiva’s easement rights.

Parking

[79] As explained earlier, the nature of the commercial easement in this case means that Mr. Buckley cannot permanently park in the tunnel. Mr. Buckley testified that he never purposely parked in the tunnel to block access and that he would have been upset if anyone else did. However, the evidence reveals that Mr. Buckley and his sons have parked numerous times in the tunnel:

• June 29, 2019, Mr. Grant Buckley’s white dodge was parked in the tunnel. He parked the car and walked away with stroller;
• July 8, 2019, Mr. Buckley charged his tesla in the tunnel for two hours;
• August 15, 2019 – Mr. Buckley’s son’s car was left parked in the tunnel for a week;
• July 25, 2019 – Grant Buckley parked his car mostly in the tunnel blocking access to loading bay. The same or similar things happened on July 26, 2019, July 28, 2019, July 30, 2019; and
• November 18, 2019 – Mr. Buckley parked his car in front of the shipping dock.

In addition, on October 30, 2020, a green bin was placed in front of the loading dock.

[80] The parking in the tunnel was a substantial interference with Ms. Paiva’s easement rights as was the placement of the bin. Counsel for Mr. Buckley does not dispute that the parking should not have occurred [1].

c) Is the Town of Newmarket Liable?

[81] The plaintiffs’ case against the Town of Newmarket is based on their assertion that permits issued in favour of Mr. Buckley allowed physical changes to the tunnel and permitted garbage pick-up with a resultant increase in the use of the tunnel by Mr. Buckley and allegedly a substantial interference with the plaintiffs’ easement rights. For the reasons set out above, I have found that Mr. Buckley’s increased use of the tunnel was not a substantial interference in the plaintiffs’ easement rights. The case against the Town of Newmarket is dismissed.

d) What is the appropriate remedy?

[82] The plaintiffs have asked for an injunction preventing anyone from parking in the tunnel and an injunction requiring Mr. Buckley to have parked cars removed. I agree that this an appropriate remedy: Saelman v. Hill, [2004] O.J. No. 2122, at para. 45; Blake et al v. Laing et al, 2017 ONSC 2968, at para. 16.

[83] The plaintiffs also seek damages for nuisance ($25,000 per year times 13 years) and punitive/and or aggravating damages [2] in the amount of $210,000, which the plaintiffs say reflect the decrease in value in the property as set out by their other expert, Mr. Rober.

[84] Ms. Paiva set out in her affidavit the effects of the laneway dispute on her:

Moreover, Mr. Buckley’s bullying, confrontational, and contemptuous way of dealing with this dispute, and the frequency with which we have to remain in contact with him or his and our legal representatives – and the frequency with which we have had to go to court and pay to obtain orders, that are then ignored – has exacted a significant, ongoing emotional toll on both Glenn and I over the last 13 years. It is very difficult to go outside of our property and always have to be ready to fight with our neighbour about our right to access our property or have customers or suppliers access our business without difficulty. Mr. Buckley has cameras outside our property recording both audio and video and we feel as if we are living under surveillance, which makes us feel deeply uncomfortable [3].

Since this dispute with Mr. Buckley began, we have been reluctant to go on vacation or to leave our property for long periods of time out concern that Mr. Buckley may simply make changes to the Tunnel, its surroundings, or our property while we are gone. Similarly, because we have had to put our time, energy, and financial resources towards repeated court proceedings over the last 13 years, we have not been able to undertake upgrades to our building that would have helped maintain or add to its value.

[85] Mr. Wilson’s affidavit on this point repeats the above comments.

[86] There are a number of difficulties with the plaintiffs’ request for monetary compensation. The plaintiffs’ request is connected to their claim of nuisance and their assertion that Mr. Buckley has deliberately, significantly and repeatedly interfered with their easement rights; Saelman at para. 36. I do not find that Mr. Buckley has engaged in such conduct. Rather, to be clear, I find that he was entitled to use the tunnel for shipping and receiving and picking up the garbage. However, he fell down by on occasion parking in the tunnel and allowing others to park. But to use the words set out in Saelman, I do not find that Mr. Buckley engaged in a “campaign of harassment”.

[87] I am not saying that Mr. Buckley is by any means blameless for this 13-year-old feud. I accept Mr. Wilson’s evidence over Mr. Buckley’s evidence that Mr. Buckley in 2009 mused about closing off the tunnel. I also accept that back in May 2009 Mr. Buckley only gave 24 hours’ notice for the start of construction. Clearly, Mr. Buckley has made snide comments as seen in the emails that has not assisted matters. However, it is also clear that Ms. Paiva had an unreasonable view of Mr. Buckley’s rights that clearly colored her view of Mr. Buckley’s actions. In addition, Mr. Buckley set out in his affidavit a number of things that he did to try and reduce the tension. For example,

a. He placed large signage at various spots outside and inside the tunnel noting the various court orders and the laneway rules; b. He installed an audible alarm system to alert the restaurant staff when a vehicle enters the tunnel; c. He changed the garbage room door design from opening outwards to roll up doors to help with the plaintiffs’ concern that the outward opening doors caused blockage issues. d. He painted red lines down the centre of the tunnel concrete pad to delineate the centre of the tunnel for better traffic control. e. He moved the air conditioning unit from the east wall of 253’s building to help eliminate any obstructions as you move towards 255’s building; f. He installed new LED lights at the south and north ends of the tunnel to help illuminate the entry during the evening and highlight the signage with the court order and laneway rules. He also changed the laneway interior lights to new LED’s low-profile lights to help illuminate the interior of the laneway; and g. He had his contractor change the stucco at the laneway entrance ceiling to deal with the concern with trucks not having proper ceiling heights when entering the tunnel.

[88] This is not a case of protracted interference that was found in Krieser v. Garber, 2020 ONCA 699 at paras. 94 and 113. In saying this, I am mindful that while there were examples of occasional parking over the 13 years, there was a concentration of parking examples from the end of June 2019 to mid-August 2019, including Mr. Buckley’s son leaving his car there for a week. The parking should not have happened. But at the same time, Ms. Paiva did park on the 253 Main Street parking pad even when Mr. Buckley bought the building and told her that this was not allowed. The plaintiffs have parked their trailer in the tunnel for years. The reality is that at this stage, both parties were simply fed up with the other after a decade-long dispute.

[89] Another difficulty with the plaintiffs’ claim for punitive damages is their reliance on the report prepared by Mr. Rober.

[90] Mr. Rober was qualified as an expert in appraising commercial property in Ontario. He estimated that in his opinion the restrictions faced by 255 Main St. in accessing their loading dock has resulted in a $210,000 loss of value to the property. Mr. Rober based his conclusion on the fact that the width of the easement had been reduced from 20 feet to 18 feet. This has resulted in a 10% narrower easement. Mr. Rober had appraised the property originally at 2.1 million. He therefore reduced it by 10% to account for the reduction in size of the tunnel. There are a number of difficulties with Mr. Rober’s opinion that render it of no assistance to the court. They are:

(1) Mr. Rober agreed that part of the property was residential and that the reduction of 10 per cent to the tunnel did not affect the residential space; (2) He originally testified that blockages to the tunnel had no impact on the property value and nowhere in his report did Mr. Rober indicate that blockage was a factor in his evaluation. Yet later in his testimony, he said that while the reduction in size of the easement was a factor, the blockage of the laneway was more problematic and the more critical issue; (3) Mr. Rober agreed that his opinion was very subjective and he was ploughing new territory in determining the reduction in valuation; (4) Mr. Rober agreed that he was dealing with a unique problem; and (5) There is no evidence that the width of the laneway was in fact reduced from 20 feet to 18 feet.

e) Does the easement granting the plaintiffs a right-of-way over 253 Main St. allow the plaintiffs to park on the parking pad at 253 Main St.?

[91] Instrument 15777 is found at Exhibit G of Mr. De Rijcke’s report. There is no dispute that it is this instrument that allows the plaintiffs to use the tunnel crossing 253 Main St. to reach their loading dock at 255 Main Street. The instrument states that “the said grantee shall have quiet possession of the said lands free from all encumbrances.” The plaintiffs submit that the phrase “quiet possession” in the easement supports their position that parking is an ancillary right that is necessary to enjoy their right-of-way. As stated by the Court of Appeal in Markowsky v. Verhey, at paras. 29 and 30:

The grant of an express easement may also include ancillary rights provided they are reasonably necessary to use or enjoy the right-of-way. However, to imply a right ancillary to a right-of-way, the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable: Fallowfield, at para. 11.

In Boone v. Brindley (2003), 179 O.A.C. 50 (C.A.), at para. 2, this court held that to determine what is reasonably necessary to the enjoyment of a right-of-way, one should also look at: the language of the conveyance creating the easement, the purpose and circumstances surrounding the creation of the right of way, the history of its development and the circumstances of its use.

[92] I do not find that parking is an ancillary right necessary to use their right-of-way. The plaintiffs have demonstrated the purpose of the right-of-way was to allow vehicles to access their loading dock for shipping and delivery. However, they have not demonstrated that parking, other than transitory parking, is part of the demonstrated purpose.

[93] The ability to park on the parking pad, while convenient, is certainly not necessary for the enjoyment of the right-of-way. Not surprisingly, Mr. Wilson testified that when they bought 255 Main St., parking wasn’t a concern at the time. They parked across the river and that was their primary space for parking. After they bought the building, he realized that once he cleared the debris near the shipping area, they could park on the pad. He was not told before he bought the building that he had a right to park or that he could park on the 253 Main St. parking pad. Parking was not a consideration at the time.

[94] The plaintiffs assert in the alternative that they have a prescriptive easement to park. The test for a prescriptive easement was set out in Landry & Spleit v. Esbeit et al., 2022 ONSC 1726 at para. 393:

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

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

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

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

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

[95] The onus is on the plaintiffs. They have failed to meet their onus. Ms. Paiva testified that the prior owner of 253 Main St. allowed Ms. Paiva to park on the pad and she was parking there from 2006 until Mr. Buckley bought the building and asked her to stop in 2017. In my view, the evidence establishes that the owner of 253 Main St. simply allowed Ms. Paiva to park on the parking pad as a courtesy not as a right and there was no transfer of any interest that would grant the right to park on the pad. There was no prescriptive easement.

CONCLUSION

[96] The plaintiffs’ claim against the Town of Newmarket is dismissed.

[97] The plaintiffs’ claim against Mr. Buckley is allowed only to the extent that an injunction will be granted preventing anyone from parking in the tunnel and requiring Mr. Buckley to have any cars parked removed.

[98] The plaintiffs’ claim for nuisance damages is dismissed as is their claim for aggravating and/or punitive damages.

[99] The Buckley defendants’ claim for an injunction preventing the plaintiffs from parking on the pad at 253 Main St. is granted.

[100] Subject to any offers to settle exchanged, or any agreement respecting costs reached by the parties, if the parties cannot agree on costs, the following procedure shall be followed:

a. The Town of Newmarket shall serve and file their written cost submissions, limited to five pages, upon all other parties, within 15 days of the date of this decision, attaching thereto a bill of costs and any offers to settle that may affect costs; b. Mr. Buckley shall serve and file his written cost submissions, limited to five pages, within 20 days of the date of this decision, attaching thereto a bill of costs and any offers to settle that may affect costs; c. The plaintiffs shall serve and file their written cost submissions, limited to five pages, within 25 days of the date of this decision, attaching thereto a bill of costs and any offers to settle that may affect costs; and d. Any of the parties may serve and file a reply, limited to one page, within 30 days of the date of this decision.

The Honourable Justice H. Leibovich Released: November 28, 2023

Appendix A

Footnotes

[1] However, Counsel has provided some explanation for Mr. Buckley’s conduct. Counsel for Mr. Buckley points out that around this same time, Ms. Paiva had also been improperly parking her trailer and boat. Mr. Buckley swore in his affidavit that there are many occasions when Ms. Paiva has parked her trailer and boat in areas that block the parking pad. He swore that “Not only has she parked her trailer and boat on my property, she has also chained them up to her door and left them there for days and weeks at a time.” It does appear that Ms. Paiva’s trailer was there for extended periods. Mr. Buckley in his supplementary affidavit dated November 18, 2022, swore that the trailer was still chained to the wall and has been for years, which has blocked access to and from his parking pad. [I appreciate that the evidence also reveals that for a few months bags of sand were placed in front of the trailer which prevented it from being moved] Mr. Buckley testified that his son was unable to charge his car in the parking area next to the charging station because the trailer blocks his access. Instead, he was forced to park in the tunnel close enough to the charging port so that he is able to access the charging cable. He also swore that on many occasions, the plaintiffs have cars parked next to the trailer, which created an additional obstacle for getting to and from his parking pad.

[2] Counsel for the plaintiffs in his submissions was content that the court decide which head of damages was more appropriate.

[3] The record reveals that both sides had cameras.