Court File and Parties

COURT FILE NO.: CV-22-20 DATE: 2023 11 27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

William Kranenburg Applicant/ Respondent by Counter-Application

- and -

Brice and Donna Grice Respondents/ Applicants by Counter-Application

COUNSEL: Julia Fischer, for the Applicant/ Respondent by Counter-Application Anya Shahabi, for the Respondents/ Applicants by Counter-Application

HEARD: November 23, 2023

Reasons for Judgment

MANDHANE J.

Introduction

[1] William Kranenburg and Brian and Donna Grice (“the Grices”) are neighbours. Their properties set beside each other along the shores of the winding Saugeen River. The parties both operate businesses on their properties: the Grices rent out their land to local farmers, while Mr. Kranenburg operates “Hidden Valley Campground.” By all accounts, the spot is fertile and idyllic, which makes it appealing to both farmers and recreational users, who have peacefully co-existed for generations…until this litigation.

[2] At the heart of the parties’ dispute is a deeded right-of-way that is best-described as a shared laneway (“the Laneway”). The Laneway winds its way through the Grices’ property and terminates at the entrance to the Kranenburg property. The Kranenburg property is landlocked and is only accessible by travelling the length of the Laneway, while the Grices also use the Laneway to access their property. The Laneway is a single-lane, gravel road, 800 feet long and 30 feet wide, which includes sharp turns and steep hills. It has no winter maintenance, no lighting, and no permanent signage. Mr. Kranenburg maintains the Laneway during the camping season. The Grices live on their property during the warmer months, while Mr. Kranenburg lives in Walkerton.

[3] Mr. Kranenburg sues the Grices for nuisance because: (1) they erected a swinging metal gate at the entrance to the Laneway, (2) they installed a metal chain across the Laneway at another juncture—past the Grices’ residence but before the entrance to the Kranenburg property, and (3) they planted new trees along the side of the Laneway. Mr. Kranenburg says that the Grices have purposefully restricted his customer’s access to the campground. He asks for punitive damages in the amount of $100,000.

[4] In their defence, the Grices say that have not impeded access to the Laneway because they do not lock the gates. They say the gates have become necessary due to the increased traffic on the Laneway and the impact it has had on their cattle operations and overall safety. The Grices say that, since 2020, Mr. Kranenburg has overburdened the Laneway by operating a come-and-go trailer park and event space on a property that had historically always used as a youth summer camp. They ask for an injunction restraining aspects of his use. They also seek $100,000 in damages for the trees they say Mr. Kranenburg cut down along the Laneway. While Mr. Kranenburg admits to cutting down the trees, he said that he did so to allow access over the Laneway. He admits that sold the cut-up trees as firewood at his campground.

Issues

[5] The issues I must decide are as follows:

a) Has Mr. Kranenburg overburdened the Laneway? b) Have the Grices committed nuisance by installing gates and planting trees along the Laneway? c) Has Mr. Kranenburg committed nuisance by cutting trees down along the Laneway?

Short Conclusion

[6] Mr. Kranenburg has overburdened the Laneway.

[7] Neither party has committed nuisance.

Analysis

[8] Because the factual issues I must decide all have their genesis in Mr. Kranenburg’s use of the Laneway, I start there before going on to consider the issues revolving around the gates and trees.

Has Mr. Kranenburg overburdened the Laneway?

[9] The Grices estimate that there has been a 25-fold increase in traffic on the Laneway since 2020. Before that, Brian Grice say that the Kranenburg property had always been a youth summer camp, that included a few seasonal trailers for staff, family, and friends. As of 2020, the Grices say that Mr. Kranenburg began marketing “Hidden Valley Campground” as a come-and-go trailer park and event space. While the Grices readily admit that buses and trailers used the Laneway in the past, they say that the number of trailers and the overall volume of traffic has increased dramatically since the Kranenburg property transformed from a youth summer camp to a campground that caters to short-term and daily users. Overall, the Grices say that larger vehicles are entering and exiting more frequently which has overburdened the Laneway and created road maintenance issues, safety issues, negatively impacted their farm operations, and impeded the enjoyment of their property.

[10] Mr. Kranenburg denies overburdening the Laneway. He says that he is using the Laneway the way it has always been used: as a means of entering and exiting the recreational campground on the Kranenburg property. He says that there have always been a mix of trailers, buses, and cars travelling the Laneway. Mr. Kranenburg admits that his business model changed over the pandemic but says that the Grices have not proven that there has been an excessive or significant increase in traffic on the Laneway. He says that he has adequately maintained the Laneway by grading it, laying down gravel, trimming and cutting down dead and hazardous trees, and mowing a few turn-around areas to allow for passing vehicles.

[11] To determine whether Mr. Kranenburg has overburdened the Laneway, I must apply the legal test outlined in Sunnybrae Springbrook Farms, 2010 ONSC 1123. In that case, Lauwers J. (as he then was) considered whether a group of cottagers’ year-round use of a private laneway would overburden it. In finding that it would not, he explained that: “Overburdening of a right-of-way occurs when it is used excessively or significantly beyond the rights and nature conveyed in the grant of easement”: para. 93. To determine its extent and nature of the easement, I must look at the instrument creating it, as well as all of circumstances present at the time it was made: para. 94. A grant for a right-of-way with no express restrictions will generally imply that the parties contemplated that the use of the land could change over time, such that the relevant question is whether the change in the use goes beyond the reasonable ambit of the right-of-way.

The historical usage of the Kranenburg and Grice properties

[12] Brian Grice was born and grew up on the Grice property; it has been in his family for generations and always been an agricultural property and seasonal residence. Brian and Donna Grice purchased the Grice property from Brian’s father, Larry Grice, for $1 in 1999. The Grices use the Grice property as their residence during the warmer months, including allowing one of their adult daughters to set up a seasonal trailer on the property. The Grices rent out some of the land to local farmers who use it for grazing cattle and haying. The Grices, their daughters, and the farmers all use the Laneway to access to the Grice property during the warmer months.

[13] In relation to the Kranenburg property, the land registry documents before me only go back to 1994. As of that year, Shekinah Christian Centre owned the Kranenburg property and operated it as youth summer camp. In December 1994, Larry Grice purchased the Kranenburg property and also operated it as a youth summer camp. Over the nine years that he owned the property, Larry invested in infrastructure to support up to twenty recreational trailers. Mr. Kranenburg remembers setting up a trailer on the Kranenburg property for five years while Larry owned it, and said that there usually four or five trailers parked there for the whole season (“seasonal trailers”). Mr. Kranenburg and Brian Grice both testified that operating a youth summer camp requires buses to transport the children, food delivery trucks, and garbage trucks.

[14] Larry Grice sold the Kranenburg Property to Crossroads Christian Communications (“Crossroads”) in 2003. The sale included all the chattels associated with the campground, including tables and chairs for about one hundred people. Crossroads also operated the Kranenburg property as a youth summer camp with a focus on equestrian activities. Brian Grice says that Crossroads had a few seasonal trailers parked on the property each summer that were used exclusively by the operator’s family and friends. He said that a few camp staff, and visiting friends and family would regularly travel along the Laneway. The parties agree that Crossroads never operated a seasonal trailer park on the Kranenburg property.

[15] Mr. Kranenburg bought the Kranenburg property in 2009. Between 2009 and 2020, he operated it as a youth summer camp on it. However, after the pandemic hit in 2020, Mr. Kranenburg started using the property as a come-and-go trailer park. More recently, he has expanded the business to include meetings, conferences, concerts, and events.

The historical use of the Laneway

[16] Neither party was able to locate the instrument that created the right-of-way (i.e., the Laneway), but they both agree that it existed prior to 1994 because the transfer documents from that time refer to it. The parties also agree that the legal instruments that reference the right-of-way do not speak to any limitations or restrictions on its use, and that the purpose of the right-of-way is to allow ingress and egress to the Kranenburg property.

[17] Going back at least fifty years, Brian Grice recalls a youth summer camp operating on the Kranenburg property, and a cattle farm operating on the Grice property. Mr. Kranenburg does not challenge this evidence. The parties agree that, as a result of both of these business operations, there would regularly be buses, food trucks, garbage trucks, private vehicles, and farm equipment travelling the Laneway.

[18] When it comes to determining the Laneway’s historic use, the parties disagree about two things: the extent to which the Laneway was used by recreational trailers, and the overall volume of traffic. At the outset, I note that none of the previous owners gave evidence, nor did any of the camp employees or any of the tenant farmers.

[19] Weighing the evidence before me, I find that the Laneway’s use was historically restricted to ingress and egress to the Kranenburg property for the following vehicles: buses carrying youth campers to and from the campsite, food and garbage trucks servicing the campground, up to twenty seasonal recreational trailers, a few passenger vehicles and trucks used by residents, guests and staff, and tractors and large farm equipment required for the Grices’ cattle and haying operations. This type and volume of traffic was consistent with the nature of the Laneway, that is, a single-lane gravel road with limited opportunities for two larger vehicles to pass one another or turn-around.

Overburdening of the Laneway

[20] Given its historic usage, I find that Mr. Kranenburg has overburdened the Laneway by increasing the traffic beyond the reasonable ambit of the right of way. My conclusion rests on Mr. Kranenburg’s own evidence, and the reasonable inferences that flow directly from it.

[21] Mr. Kranenburg testified that, since 2020, the following customers have all been using the Laneway to access Hidden Valley Campground:

• Ten to twelve come-and-go weekend campers with recreational trailers whose entry and exit times have to be scheduled to avoid two trailers meeting each other on the Laneway and being unable to turn around;
• Fifty to eighty weekend conference or camp attendees who arrive by private vehicle rather than by bus; and
• Two hundred and fifty attendees of an annual electronic music festival that arrive by private vehicle, such that festival organizers had to hire security with walkie-talkies to direct traffic.

I find that operating a come-and-go trailer park, along with a day-use conference and event space, has overburdened the Laneway which was historically restricted to buses, service vehicles, and up to twenty seasonal trailers. I am able to draw a reasonable inference that the change in usage of the Kranenburg property has resulted in a change in the nature and volume of traffic on the Laneway. The Laneway now regularly has up to twelve recreational trailers coming and going every weekend, along with multiple passenger vehicles entering and exiting on the same day. The increased traffic has created safety concerns that have an impact on the Grices as the servient tenement. The most significant safety concern is that two larger vehicles (or a long line of passenger vehicles) that meet oncoming traffic on the Laneway cannot pass or turn around without reversing some distance to a designated turnaround area. This is not always feasible given the nature of the Laneway. I also find that the increased traffic has a direct impact on the Grices’ enjoyment of their recreational property because the Laneway (and therefore the traffic) cuts right through the Grice property and would be visible and audible from most vantage points.

[22] On this basis, I would grant the Grices’ injunction such that Mr. Kranenburg is limited in his use of the Laneway to the following: buses carrying campers and conference attendees, up to twenty seasonal recreational trailers, food and garbage trucks servicing the campground, and passenger vehicles and trucks belonging to the parties and to campground staff.

Have the Grices committed nuisance by installing gates and planting trees along the Laneway?

[23] Mr. Kranenburg says that the Grices have sought to impede access to the campground by installing a large swinging metal gate at the entrance to the Laneway, and a metal chain at a second location (“the gates”). Both gates are at locations where there already pre-existing in-ground cattle grates (also referred to as “Texas-Gates”), which the parties agree were installed sometime in the 1970s or 1980s. The gates effectively require people who are travelling along the Laneway to exit their vehicles twice—first to open the gate, and then a second time to close the gate behind them. Mr. Kranenburg says that the gates, along with trees that the Grices have planted, create safety and accessibility issues that have had a negative impact on his business. There is no independent evidence to confirm these concerns.

[24] The Grices say that the erected the gates because the increased traffic has caused more frequent contact between the cows and humans such that the gates for needed for safety and to deter cattle from escaping. Again, there is very little independent evidence to confirm these concerns. The Grices admit to planting trees alongside the Laneway but say that they were planted to replace the ones that Mr. Kranenburg cut down.

[25] To support a claim in private nuisance, the interference with an owner's use or enjoyment of land must be both substantial (i.e. non-trivial) and unreasonable: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, paras. 18-19. Where the initial threshold of the inference being “substantial” is met, I must go on the consider whether the nontrivial interference was also unreasonable in all of the circumstances: para. 19.

[26] Based on the limited evidence before me. I do not find the gates to be a “substantial interference” with Mr. Kranenburg’s use of the Laneway. At its highest, the gates are the type of everyday inconvenience that one would expect when an agricultural and recreational property abut one another share a roadway. Mr. Kranenburg’s has not established on a balance of probabilities that the gates impede ingress and egress or otherwise create safety hazards. There is no cogent evidence that anyone has been unable to access the campground, or that they have injured themselves while operating the gates.

[27] Even if I did find that the installation of the gates was a “substantial interference” with Mr. Kranenburg’s use of the Laneway, I would still conclude that the inference was reasonable in all the circumstances. Given the higher volume of vehicles travelling long the Landway in recent years, it was reasonable for the Grices to take steps to ensure that the livestock on their property do not escape and cause damage. The installation of the gates is also consistent with the historic usage of the property as an agricultural property, as evidenced by the pre-existing cattle grates.

[28] In relation to the claim for nuisance in relation to the planting of trees, in the absence of a survey indicating the location of the trees at issue, there is insufficient evidence before me to find that they impede the Laneway or otherwise constitute a nuisance.

Has Mr. Kranenburg committed nuisance by cutting down trees along the Laneway?

[29] Again, in the absence of any survey indicating the location of the trees that the Mr. Kranenburg cut down, there is insufficient evidence before me to find that doing so constituted a nuisance. That said, in the future, I would expect Mr. Kranenburg to speak to the Grices before cutting down trees as part of his maintenance of the Laneway. In the event of dispute, it would be prudent for Mr. Kranenburg to obtain a survey and advice from an arborist. This is because his rights as dominant tenant are limited to the Laneway itself, and do not extend to the land abutting the Laneway which is owned by the Grices on both sides.

[30] Indeed, many of the issues in this litigation could have been avoided if the parties had adopted more proactive communication strategies. It would have been prudent for Mr. Kranenburg to have discussed his plans to change the usage of the Kranenburg property with the Grices, and to have obtained a traffic impact study and followed the advice contained therein. Similarly, it would have been prudent for the Grices to have discussed the possibility of installing gates on the Laneway prior to doing so. The tranquility of these special properties and the harmonious co-existence of their owners over a half century might have been preserved had the parties treated one another as friendly neighbours rather than adversaries. With this litigation behind them, the parties have an opportunity to reset their relationship going forward.

Final Order and Costs

[31] The parties shall endeavour to agree on the terms of the final order, including in relation to the costs payable to the Grices as the successful party. If they are unable to do so, both parties shall both email to my assistant (Aleisha.Salim@ontario.ca) their draft final order, written submissions (maximum 5 pages, double-spaced, 12-point font), Bill of Costs, and relevant offers on or before December 8, 2023.

[32] I am seized of this matter pending issuance of my final order.

Mandhane J.

Released: November 27, 2023