Court File and Parties

COURT FILE NO.: CV-21-87726 DATE: 2024-11-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Melynda Layton, Plaintiff

– and –

Canadian Dental Hygienists Association, Defendant

Counsel:

Self-Represented (for the Plaintiff) Craig O’Brien and Rebecca Akong (for the Defendant)

HEARD: September 16, 17, 18, 19 and 20, 2024

Judgment

M. SMITH J

[1] This simplified trial is about a dispute between neighbouring commercial properties regarding a right-of-way of a laneway.

[2] In November 2007, the Plaintiff, Melynda Layton, purchased with her husband, Sean Terris, a mixed commercial-residential property known as 1110 – 1116 Wellington Street West (“Layton property”). At the rear of this property, there is an area being used as a parking lot by the tenants of the Layton property.

[3] In January 2014, the Defendant, Canadian Dental Hygienists Association (“CDHA”), a not-for-profit organization who represents the interests of the dental hygienist profession, purchased a commercial property known as 1122 Wellington Street West (“CDHA property”).

[4] The laneway in question runs perpendicular to Rosemount Avenue for 61.97 feet to the property line between the CDHA property and the Layton property. The laneway is owned by the CDHA.

[5] Initially, the relationship between both parties was cordial. By agreement, the CDHA allowed Ms. Layton to access the Layton property via the laneway. The CDHA would remove the snow in the rear of the building and Ms. Layton would allow the CDHA employees to park three vehicles behind the Layton property. The tenants of the Layton property used the laneway by car to access and park in the rear of the Layton property.

[6] Within a few years, the relationship between both parties soured and turned extremely toxic. Access to the laneway was eventually denied by the CDHA.

[7] Ms. Layton alleges that there is a right-of-way over the laneway that allows her and her tenants to park their cars behind the Layton property and allows contractors to access her building for repairs and maintenance.

[8] The CDHA takes the position that they own the laneway and that Ms. Layton’s right-of-way only extends partially over the laneway. In 2002, the Land Registrar issued an order making it clear that the right-of-way does not extend all the way to the backyard of the Layton property. That said, the CDHA has no intention of preventing Ms. Layton from carrying out necessary repairs or improvements to the Layton property.

[9] Both parties are seeking damages against one another.

Introduction

[10] The issue in this trial is very straightforward. Is there a right-of-way, yes or no?

[11] I remind the parties that the simplified procedure was created to foster access to justice for simple and modest claims. Unfortunately, since the issuance of the Statement of Claim, the parties have been embroiled in lengthy court proceedings, likely fueled by animosity and hostility. It has become, for no reason, complex and cumbersome.

[12] In Case Centre, there were over 10,000 pages filed by the parties: several affidavits of documents and supplementary affidavits of documents, three affidavits of Mr. Sean Terris with duplicative evidence, one affidavit from Ondina Love, one affidavit from Merredith MacLennan, and over 250 videos of the laneway and the interaction between Ms. Layton and the CDHA. This volume of evidence was entirely unnecessary.

[13] That leads me to the damage claims advanced by both Ms. Layton and the CDHA. Ms. Layton seeks the following damages:

(a) damages in the amount of $15,000 on account of out-of-pocket expenses and loss of revenue; (b) general and/or moral damages in the sum of $30,000; and (c) punitive damages in the sum of $30,000.

[14] Conversely, the CDHA seeks the following damages:

(a) damages in the amount of $45,000 on account of out-of-pocket expenses and loss of revenue; (b) general damages in the sum of $30,000; and (c) punitive and/or exemplary damages in the sum of $30,000.

[15] It is clear to me that as tension rose between the parties, Ms. Layton and some employees of the CDHA conducted themselves in a very inappropriate manner, ranging from childish behaviour to egregious conduct such as theft, damage to property and assault at varying degrees. Both parties disrupted the quiet enjoyment of each others’ properties. It was entirely unbecoming to professionals and business individuals. While it may be argued that one person may have conducted herself in a more appalling way than others, I am not going to entertain a measuring of fault. Both parties are responsible for escalating this simple property dispute into an outright neighbourly war. Cooler heads should have prevailed.

[16] I am therefore dismissing all damage claims for Ms. Layton and the CDHA on the basis that both parties are equally at fault for any breach of contract, damages and/or out-of-pocket expenses incurred by the other party. Also, I am not persuaded that either party suffered a financial loss. Both parties failed to treat each other with respect and civility. Both parties failed in their duty of good faith and fair dealing. And, although the conduct of Ms. Layton and some employees of the CDHA was outrageous at times, it is not, in my opinion, deserving of an award of punitive and/or exemplary damages.

[17] Turning to the real issue at hand, namely the property dispute, in addition to the affidavits filed, seven witnesses testified at trial: Sean Terris (Ms. Layton’s husband), Angela Daoust (Director of Marketing and Communication at CDHA), Emma Osgoode (tenant at 1114 Wellington Street West), John Corner (Administrative Assistant for the finance and administrative team at CDHA), Michelle Charest (employee at CDHA responsible for the cameras), Merredith MacLennan (partner at Merovitz Potechin LLP) and Ondina Love (CEO of CDHA). In my view, on the issue of the property dispute, the evidence of Ms. Daoust, Ms. Osgoode, Mr. Corner and Ms. Charest was not required, as it is not relevant to my determination of the right-of-way.

[18] Mr. Terris provided the evidence for Ms. Layton. The cross-examination revealed that he did not have a complete understanding of the contents of his three affidavits. In his affidavits, Mr. Terris often uses the pronoun “we”, referring to himself and Ms. Layton. Many times, he was not present for an event described in his affidavits but was told by Ms. Layton as to what transpired. Some of the inconsistencies in his evidence, as set out in detail at paragraphs 60 to 103 of Ms. Love’s affidavit dated September 6, 2024, were uncovered during his cross-examination. I find that some of Mr. Terris’ evidence was not credible.

[19] Ms. MacLennan represented the prior owner of 1110-1116 Wellington Street West with respect to a Land Titles Hearing relating to the properties at issue in this action. While some parties attempted to elicit an opinion from Ms. MacLennan, she was merely a fact witness. I found her to be very credible.

[20] Ms. Love was cross-examined very briefly. I do not find that her affidavit evidence or her credibility was challenged whatsoever.

Findings of Fact

[21] Based on the evidence that I have received, I make the following findings of fact, which I believe are particularly important to consider in deciding whether Ms. Layton has a right-of-way over the laneway:

i. 1098 Wellington Ltd. (“1098 Wellington”) was the prior owner of the Layton property. ii. The Bank of Nova Scotia (“BNS”) was the prior owner of the CDHA property. iii. On March 3, 1995, a Document General described as a “Right-of-Way Agreement” was registered on title. The parties to the agreement were 1098 Wellington and BNS. The agreement provided, amongst other things, the following provision: “ The parties hereto shall enjoy full rights of reasonable access onto the property of the other for the purpose of maintaining and repairing the structures, fences and the like respectively owned by them and nothing herein shall limit or reduce the rights of access presently enjoyed by each of the parties hereto upon the lands owned by the other of them. ” iv. Parcel Register PIN 04093-0038 was associated with 1116 Wellington Street West, owned by 1098 Wellington. On April 25, 1996, it was re-entered as PIN 04093-0220. v. On February 27, 2002, the Land Registrar registered a Caution as instrument number OC47069 (“2002 Caution”), relating to an error in the legal description of certain rights associated with the then BNS property (PIN 04093-0021), the then 1098 Wellington property (PIN 04093-0038) and a neighbouring property at 11 Rosemount (PIN 04093-0028). vi. The 2002 Caution reflected the Land Registrar’s intention to delete the reference to title being “S/T [subject to] and T/W [together with instrument] N481723 and to insert a reference to title being “together with a right-of-way over only the southerly 11 feet to the westerly 25.3 feet of PIN 04093-0021”. Instrument N481723 is the transfer by which 1098 Wellington obtained title to the lands in PIN 04093-0038. vii. 1098 Wellington filed an objection to the 2002 Caution. viii. A Land Titles Hearing was held on October 2, 2002 before Louis Arki, Deputy Director of Titles. The following orders were made on July 16, 2003 under the Land Titles Act, R.S.O. c. L.5, (“Land Titles Act Order OC427110”): I HEREBY ORDER that PIN 04093-0021 is subject to a right-of-way over only the southerly 11 feet of the westerly 25.3 feet of said PIN, in favour of PIN 04093-0038 only. I FURTHER ORDER THAT PIN 04093-0038 is together with a right-of-way over only the southerly 11 feet of the westerly 25.3 feet of PIN 04093-0021. AND I FURTHER ORDER THAT THE CAUTION registered as No. OC47069 be deleted from said PINs. ix. The Land Titles Act Order OC427110 was obtained when 3992021 Canada Inc. owned 1122 Wellington Street property (PIN 04093-0021). x. The Land Titles Act Order OC427110 was registered on title on January 25, 2005. xi. On October 11, 2006, PIN 04093-220 was divided into PIN 04093-0223 and PIN 04093-0224. On October 27, 2006, PIN 04093-0224 was further divided into PIN 04093-0225 and PIN 0493-0226. xii. PIN 493-0226 is the active property registered number associated with the Layton property. xiii. PIN 04093-0021 is the active property registered number associated with the CDHA property. xiv. On June 7, 2007, a Land Registrar’s Order was registered on title to the Layton property as instrument number OC726434 to correct the legal description by removing Part 3 on Plan 4R-21320 from the legal description and adding references to several rights of way, including a right of way over Part 3 on Plan 4R-21093. xv. Part 3 on Plan 4R-21093 is the portion of the CDHA property that are subject to the right-of-way in favour of the Layton property. xvi. On November 19, 2007, Ms. Layton and Mr. Terris purchased the Layton property. The legal description includes the following: PART OF LOTS 1 AND 2 PLAN 16 AND PART OF LOT 1 PLAN 95 BEING PARTS 1 AND 2 ON PLAN 4R-22360; OTTAWA SUBJECT TO AN EASEMENT AS IN OC647487. T/W A RIGHT OF WAY OVER PART 3 ON 4R21093 AS IN OC427110. S/T A RIGHT OF WAY AND EASEMENT OVER PART 2 PLAN 4R21320 IN FAVOUR OF PARTS 1, 3 AND 4 PLAN 4R21320 AS IN OC654163. T/W A RIGHT OF WAY AND EASEMENT OVER PART 1 PLAN 4R-21320 AS IN OC654163. xvii. On January 6, 2014, the CDHA purchased the CDHA property. The legal description includes the following: PT LTS 1 & 2, PL 16, AS IN CR261425 & CR149287 EXCEPT PART 1, 4R9752, S/T ROW OVER ONLY THE S’LY 11 FEET OF THE W’LY 25.3 FEET AS IN CR360514; OTTAWA/NEPEAN. xviii. The laneway measures 61.97 feet in length and is divided in two parts: the first 25.3 feet of the laneway is Part 3, Plan 4R21093 and the remaining 36.67 feet is known as Part of Part 5, Plan 5R8345. By virtue of Land Title Act Orders OC427110 and OC726434, the Layton property only enjoys a partial right-of-way across Part 3, Plan 4R21093, and not Part of Part 5, Plan 5R8345. xix. Ms. Layton was aware that her right-of-way was partial and only extended to the first 25.3 feet of the laneway. xx. From January 6, 2014 until August 31, 2021, the parties had an on-off agreement whereby the CDHA employees would have access to three parking spots in the back of the Layton property, and in exchange, the owners and tenants of the Layton property would have access over the laneway. Also, the CDHA would pay for snow clearance on both parties’ properties. xxi. The CDHA had every right to terminate the agreement with Ms. Layton regarding access over the laneway.

Issue

[22] The only remaining issue in this action is whether there is a right-of-way over the laneway in favour of the Layton property.

Analysis

Ms. Layton’s Position

[23] Ms. Layton provided detailed written and oral submissions, which I have considered. The arguments that are deserving of consideration are summarized below.

Right-of-Way

[24] It is argued by Ms. Layton that she has the right of reasonable access for maintenance and repair. A “Right-of-Way Agreement” was registered on title, and it is only conditional upon compliance with the Planning Act, R.S.O. 1990, c. P.13. Also, the easement arises because it is necessary for the use and enjoyment of the Layton property.

[25] The easement for maintenance and repair is a prescriptive easement because it was enjoyed for over 20 years without interruption or consent by the servient landowner and it arose under the registry system.

[26] Despite that changes were made to the legal description by way of the Land Titles Act Order OC427110, it is nonsensical that a right-of-way is only over part of the laneway. The right-of-way was incorrectly registered reflecting only the easterly 25.3 feet as opposed to the full length of the driveway being 61.97 feet. The previous owners of the CDHA property and Layton property chose not to correct the error on title, but rather they entered into a second agreement with respect to parking.

City By-Laws

[27] Zoning By-Law No. 2008-250 provides for land-use as described in the City of Ottawa’s Official Plan. This by-law regulates Traditional Mainstreet properties. It applies to the laneway and the parking lot behind the Layton property. The by-law requires, amongst other things, the following:

i. A driveway leading to parking be set aside for the purpose of accessing parking. ii. All motor vehicle parking spaces and queuing and loading spaces must have unobstructed access directly to a public street by way of (a) a driveway or private way; (b) a public lane; (c) an aisle leading to a driveway, private way or public lane; or (d) some combination of (a), (b) and (c). iii. A parking lot need not have its driveway or aisle located on-site, provided that access to the parking lot is provided from another lot in the Traditional Mainstreet. iv. The driveway providing access to the parking lot cannot be obstructed.

[28] Property owners, operators and occupants are required to comply with Property Maintenance By-Law No. 2004-208. The CDHA’s snow removal practices are contrary to this by-law.

Nuisance

[29] The CDHA’s obstruction to the laneway is a nuisance and they have caused a substantial and unreasonable interference with the Layton property.

[30] The CDHA’s interference with the use and enjoyment of the Layton property is unreasonable when one considers the following nine factors:

(a) the character of the harm; (b) the character of the neighbourhood; (c) the intensity of the interference; (d) the duration of the interference; (e) the time of day and day of the week; (f) the zoning designation; (g) the nature of the CDHA’s conduct; (h) the utility of the CDHA’s conduct; and (i) the sensitivity of Ms. Layton.

CDHA’s Position

Right-of-Way

[31] The CDHA acknowledges that previous owners had agreements on how to use their respective lands. However, these agreements are personal and do not run with the land.

[32] The land title documents clearly demonstrate the parties’ ownership of the land and their respective rights and obligations. The Land Titles Act Order OC427110 sets out the property rights of the parties and Ms. Layton has failed to provide any evidence to support that these property rights should be fundamentally changed.

[33] The CDHA relies upon the bulletins of the Government of Ontario’s Title and Survey Services Office to say that private agreements, such as the February 1994 “Right-of-Way Agreement”, are not binding on the creation of easements. In other words, a private agreement can be registered but it does not create an easement.

[34] In terms of Ms. Layton’s contention of the existence of a prescriptive easement, CDHA submits that there were previous agreements whereby permission was given to utilize the laneway.

City By-Laws

[35] The CDHA denies that the City By-Laws are applicable.

[36] The purpose of Zoning By-Law No. 2008-250 is to govern access to “parking, queuing and loading spaces and all driveways and aisles leading to those spaces.” Considering this purpose and text of the by-law, it is inapplicable in the circumstances.

[37] The Property Maintenance By-Law 2005-208 is equally inapplicable. The purpose of this by-law is to establish a regulatory scheme to be adhered by property owners, not a means to substantiate private parties’ claims against each other.

Nuisance

[38] The CDHA denies that they have caused a substantial and unreasonable interference with the Layton property.

[39] They submit that there is nothing unreasonable about asserting and protecting their property rights. The CDHA blocked the laneway for the purpose of preventing any further trespass on their property.

Discussion

[40] Ms. Layton seeks the following:

i. An order preventing the CDHA from building a fence or in any way encumbering the laneway providing access to the south side of the Layton property. ii. An order preventing parking in the driveway/laneway providing access to the Layton property. iii. A permanent injunction against parking in the driveway/laneway or in any way encumbering the laneway providing access to the Layton property.

[41] For reasons set out below, I decline to grant a permanent injunction or any orders that would prevent the CDHA from using their laneway.

Right-of-Way

[42] It is undisputed that in March 1995, a “Right-of-Way Agreement” was registered on title. This agreement was entered into between two parties, namely 1098 Wellington and BNS. The grant was personal, and it was limited to using the laneway for the sole purpose of maintenance and repairs. The right-of-way is not described as providing egress or ingress from and/to the lands. Considering the nature of the agreement and the absence of evidence to the contrary, I am of the view that it was not the intention of the parties to make this right-of-way run with the land and be binding on all future owners in title to the two properties owned by 1098 Wellington and BNS.

[43] Ms. Layton has not provided any compelling evidence or reasons that the 1994 Right-of-Way Agreement as between two previous property owners is binding upon the current or future owners of the Layton property and the CDHA property. I find that the evidence presented by Ms. Layton falls short of creating a positive and perpetual right-of-way which runs with the land.

[44] In any event, private agreements are not binding on the creation of easements. On March 3, 2005, the Government of Ontario’s Title and Survey Services Office published Bulletin 2005-02 which provides at ss. 1.0 and 2.0.1 the following restriction:

“…the land registration system will not acknowledge any attempt to create an easement in another document type, such as a charge, agreement , or lease. The document may be registered, however no reference to the easement will be made on the parcel [emphasis added].

[45] The properties were converted from the Land Registry System to the Land Titles System. In accordance with the Land Titles Act, R.S.O. 1990, c. L.5, a Director of Titles has the authority to deal with any matter relating to titles of land by way of a hearing. In the case at bar, such a hearing was held, resulting in the predecessor of the Layton property being granted a partial right-of-way over only the southerly 11 feet of the westerly 25.3 feet of the laneway owned by CDHA. This was done by way of Land Titles Act Order OC427110 several years before the purchase of the Layton property. At the time of the purchase of the Layton property, Ms. Layton knew that the right-of-way was restricted to 25.3 feet, and it did not extend over the full length of the laneway measuring 61.97 feet. During Mr. Terris’ cross-examination, he acknowledged that the title documents referred to a partial right-of-way.

[46] In Mr. Terris’ affidavit dated February 23, 2023, he swears to the following:

“When we purchased 1110 to 1116 Wellington Street West we were particularly concerned with access to the back parking area. We spoke to the Real Estate Agent along with the owner of 1122 Wellington Street West (Tom Ionella). Tom was principal of 3992021 Canada Inc. which owned 1122 Wellington Street West. He verbally confirmed there was an existing right-of-way over 1122 Wellington Street in favour of 1110 to 1116 Wellington Street West.”

[47] During his cross-examination, Mr. Terris could not recall if he was provided the “Right-of-Way Agreement” by Mr. Ionella. He maintained however that they had a right-of-way because this agreement was in place.

[48] I do not find Mr. Terris’ evidence regarding his exchange with Mr. Ionella to be credible. According to the evidence presented at trial, Mr. Ionella was the owner of 1122 Wellington Street at the time of the Land Titles hearing. It is reasonable to assume that Mr. Ionella was aware that on July 16, 2003, Deputy Director Arki made an order regarding the right-of-way of the laneway and that it was only limited to 25.3 feet of access. Given the Land Titles Act Order OC427110, I find it highly unlikely that Mr. Ionella would have confirmed to Mr. Terris that there was a right-of-way in favour of the Layton property.

[49] Ms. Layton argues that it is nonsensical that she only enjoys a right-of-way over part of the laneway. Also, Mr. Ferris testified that there was no rhyme or reason why they only have a partial right-of-way on the first part of the laneway and not the remaining part. While it might appear illogical or an oddity to only have a partial right-of-way, the evidence nonetheless reveals that the Land Titles Act Order OC427110 dated July 16, 2003 was issued following a hearing involving the previous owners of both the Layton property and the CDHA property. There is no evidence before me to know what type of right-of-way that Deputy Director Arki wanted to grant or not grant in regard to the laneway. Any attempts to do so would be speculation on my part. In the absence of conclusive evidence, it would not be appropriate to grant more rights to Ms. Layton on the only basis that the Land Titles Act Order OC427110 may be an oddity. Ms. Layton has not presented any evidence to persuade me that this limited right-of-way on title should be rectified or that her rights should be expanded upon. The Land Titles Act Order OC427110 is clear, and it was not appealed. In my view, the existing right-of-way remains valid and enforceable.

[50] Ms. Layton submits that she is not seeking to gain an additional right, but rather maintain what she currently has, namely an easement over the full length of the laneway, and that this easement cannot be extinguished. I disagree. In my view, there is no easement to extinguish because it does not exist. The evidence establishes that Ms. Layton does not have a right-of-way that extends over the full length of the laneway to the back to the Layton property. It is limited to the first 25.3 feet of the laneway.

[51] At best, the previous owners of the Layton property previously enjoyed a right-of-way with the only permissible use of the laneway being to gain access for the limited purpose of maintenance and repairs. However, the “Right-of-way Agreement” was a private agreement, and based on the evidentiary record before me, I am not satisfied that this private agreement runs with the land.

[52] Given the express right-of-way described on title, and my conclusion that the “Right-of-way Agreement” does not run with the land, I find that it would be an injustice in ordering the rectification of title in this case.

[53] Having concluded that there is no right-of-way granted to Ms. Layton to traverse over the full length of the laneway, I must now determine if there are any other reasons that would support the granting of a right of-way over the full length of the laneway. In the text that follow, I explore four possible reasons: (a) prescriptive easement; (b) zoning and property by-laws; (c) fire code violations and (d) nuisance.

Prescriptive Easement

[54] Ms. Layton argues that the Layton property enjoys a prescriptive easement over the laneway.

[55] Ms. Layton submits that the laneway has provided access to the parking lot in the rear of the Layton property since at least 1955. In support of this assertion, she refers to a building permit for 1116 Wellington Street West when it became a restaurant and a take-out restaurant in 1957. Ms. Layton says that there was a by-law requirement that this restaurant have two parking spaces.

[56] Then, in 1989, the previous owner of 1110-1114 Wellington Street West applied for and received permits to convert the property from a single dwelling unit to multiple dwelling units. Ms. Layton states that City of Ottawa By-law AZ-64, which is a historical by-law that deals with zoning, required that any dwelling of three units or more had a minimum requirement for parking. She submits that the owner of 1110-1114 Wellington Street West was required to have four parking spaces.

[57] Ms. Layton argues that there is no reason to believe that the owners of 1110-1114 Wellington Street West failed to comply with the parking requirement set out in City of Ottawa By-law AZ-64, and as such, they had uninterrupted use of the laneway since 1989 until at least 2014, when the CDHA purchased the property.

[58] As an aside, despite Ms. Layton’s argument regarding the requirement for parking, the evidence establishes that on June 26, 2014, in an email exchange with Ms. Love, Ms. Layton stated unequivocally that the back of her property was not intended to be used for parking and that none of her tenants need access to parking. Ms. Layton is attempting to distance herself from this statement and argues that the court should take a contextual approach to this email, in that it was written in response to the CDHA’s failure to remove the snow in accordance with their agreement. A contextual approach does not lead me to conclude any differently. Ms. Layton’s belief regarding the use of her backyard was clear. It was not meant to be used for parking.

[59] In any event, Ms. Layton bears the burden of establishing that the alleged prescriptive rights were acquired in the 20 years prior to the date upon which the property was registered under the Land Titles Act, R.S.O. 1990, c. L.5: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, at para. 91.

[60] The legal requirements of a prescriptive easement are that the use must be continuous for the prescriptive period, and it must be “as of right”, meaning that the use must be uninterrupted, open, peaceful and without permission: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, at paras. 94 to 97.

[61] There is no clear convincing and non-speculative evidence that the previous owners of 1110-1114 had uninterrupted, open, and peaceful use of the laneway for 20 years since either 1957 or 1989. Building permits are insufficient evidence to make any findings of fact of uninterrupted use of the laneway.

[62] More importantly, Ms. Layton does not meet the burden that the previous owners of the Layton property were using the laneway without permission. To the contrary, the “Right-of-way Agreement” is cogent evidence that as of February 1994, permission was given to use the laneway for the purposes of maintenance and repairs. If the easement had been used for several decades as alleged by Ms. Layton, there would not have been a need to seek the owner’s permission and into the 1994 “Right-of-way Agreement”. Asking for permission to use the laneway is inconsistent with using it “as of right”.

[63] The 1994 “Right-of-way Agreement” contains an express acknowledgment that since 1947, the predecessor in title had “permitted…the full right and liberty to use the easterly wall of the building…”. This is another clear indication that permission had been granted.

[64] Moreover, there is evidence that the previous owners of the properties in this action had entered into an agreement giving permission to each other to use their respective lands. At trial, Ms. Layton referred to an email written by the CDHA lawyer dated January 2, 2014 in support of her contention that there was an agreement with respect to parking and snow removal:

“Apparently, there was a dispute with a previous owner as to the length of the right-of-way. The owner to the east claimed a right-of-way over the entire length of 62 feet at the back of the property but that was not actually reflected on title. The owners resolved the issue between themselves by allowing the owner to the east to use the back for access in exchange for three parking spots.”

[65] The use of the laneway was at the will and pleasure of the previous owner of the CDHA property.

[66] In my view, there is an absence of evidence to establish that the Layton property enjoys a prescriptive easement over the laneway. The use of the laneway does not meet the definition of “as of right”. A prescriptive easement was therefore not acquired.

By-laws

[67] Ms. Layton has not persuaded me that any of the municipal by-laws have been contravened. Also, I find that the by-laws referred to by Ms. Layton are inapplicable in the circumstances of this case.

[68] First, regarding Zoning By-Law No. 2008-250, its purpose is set out in s. 100(1), namely, to govern access to “parking, queuing and loading spaces and all driveways and aisles leading to those spaces.” By Ms. Layton’s own admission in an email to the CDHA, her backyard is not intended to be used for parking. That said, I recognize that the parties had an agreement between 2014 and 2021 to use the laneway to access the backyard for parking purposes but the agreement was duly terminated by the CDHA. As of September 1, 2021, no further permission has been given to Ms. Layton to use the laneway for vehicular access for parking. Even if the backyard had been used in the past for parking, all rights have been revoked to access the parking.

[69] The term “parking lot” is defined at s. 54 of the by-law. It reads, in part, as follows:

“Parking lot means a lot or place other than a building used for the parking of four or more motor vehicles, which includes parking spaces, aisles and driveways …” The terms “laneway” and “driveway” are used interchangeably in the by-laws. Driveway is defined as: “a private way used for vehicular access from a parking space or parking lot to a public street, and includes a right-of-way, or ay land used to access other land.” [Emphasis added]

[70] The title, as it exists today, is clear. Ms. Layton’s right-of-way is only limited to the first part of the laneway, meaning that she has no vehicular access for parking. Also, the CDHA has revoked all rights of vehicular access for parking. The CDHA does not have to provide access to Ms. Layton to park a vehicle in the backyard of the Layton property.

[71] As such, because there is no vehicular access for parking, I find that Zoning By-Law No. 2008-250 is not applicable.

[72] Second, regarding Property Maintenance By-Law No. 2004-208, part of its purpose is to avoid accident hazards because of snow accumulation. Section 45 of the by-law reads “every owner or occupant of a building shall keep roofs of the building and the surrounding lands free from accumulations of snow or ice that might create an accident hazard”.

[73] Ms. Layton alleges that the CDHA is clearing snow in a manner that it is creating an accumulation of snow and ice and committing trespass to property contrary to the Trespass to Property Act, R.S.O. 1990, c. T.21. Ms. Layton further says that the residents of the Layton property live under the constant threat that they will not be able to remove their cars from parking. As noted above, Ms. Layton and her residents do not have vehicular access for parking. This by-law is therefore not applicable.

[74] In terms of the safety issue, I find that the CDHA took all reasonable steps to avoid the risk of injury. They hired a snow removal contractor to properly clear the laneway, and they instructed the snow removal contractor not to pile any snow on the Layton property. The CDHA also attempted to erect a snow fence/barrier, but it was removed by Ms. Layton. The video surveillance evidence reveals that Ms. Layton acted in an obstructionist manner when it came to the CDHA’s efforts to clear the snow. In my view, the CDHA’s actions were in full compliance with the by-law and not in contravention of the Trespass to Property Act.

Fire Code

[75] Ms. Layton argues that in the event of an emergency, the Fire Code, O. Reg. 213/07 requires two points of egress, and the laneway would provide a path for travel and escape.

[76] On February 16, 2023, Fire Inspector Mario Cau issued a Fire Inspection Order to the CDHA, which included, amongst other things, the following:

“During the inspection the building and or premises was observed to be in contravention of the Fire Code, O. Reg. 213/07 as amended as: snow pile prevents access for properly maintaining clear egress of 1116 Wellington St. W.

ACTION REQUIRED Provide access to 1116 Wellington St. W at south side of building in order for them to provide snow removal to maintain discharge passageway clear at all times of snow and debris for occupants to exit clear of area in the event of emergency.”

[77] The enforcement of this Fire Inspection Order was postponed pending the outcome of this action.

[78] The Fire Code issue was dealt with at the interlocutory motion before Rees J. (Layton v. Canadian Dental Hygienists Assn., 2024 ONSC 2627). Ms. Layton was seeking an interlocutory injunction under the Court’s equitable jurisdiction as well as statutory relief under the Fire Code, amongst others. In concluding that the Fire Code does not provide the Court with the authority to issue an injunction at the request of a private citizen, Rees J. writes, at paragraph 16: “The Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 (the Fire Code ’s enabling statute) authorizes the relevant public authority to apply to the court for injunctive relief to restrain a breach of the Fire Code , but it does not authorize a private party to do so: s. 32”

[79] I agree with Rees J. that Ms. Layton lacks standing to apply for injunctive relief.

[80] Regardless, s. 1.2.1.1 of the Fire Code states that the owner is responsible for carrying out the provisions of the Fire Code. It is Ms. Layton and not the CDHA that is in contravention of the Fire Code.

[81] Ms. Layton does not have a right-of-way providing egress or ingress from and/to the Layton property. It is not the responsibility of the CDHA to provide egress to the Layton property.

[82] Ms. Layton can provide a second point of egress to the Layton property. The evidence reveals that Ms. Layton and Mr. Terris own Part 2 of 4R-22360 subject to an easement in favour of their neighbour to the East. This alleyway is over one meter wide and runs parallel to the Layton property. While there is currently a fence on the Layton property preventing access, it could easily be removed to provide pedestrian access from the backyard of the Layton property to Wellington Street West. Ms. Layton argues that this alleyway is not compliant with the provisions of the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11. If that is the case, then Ms. Layton must make modifications to the alleyway to ensure compliance.

Nuisance

[83] Ms. Layton submits that even if I conclude that there is no right-of-way over the full length of the laneway, access over the laneway should not be prevented by virtue of nuisance.

[84] A nuisance is an interference with the plaintiff’s use or enjoyment of land that is both substantial and unreasonable: Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594, at para. 19.

[85] Ms. Layton argues that by examining nine factors of the surrounding circumstances of this case, the Court should conclude that the CDHA substantially and unreasonably interfered with her use and enjoyment of the property.

[86] The CDHA submits that they substantially and unreasonably interfered with Ms. Layton’s use and enjoyment of her property. Rather, they say it was not unreasonable for the CDHA to assert their property rights and use their land in a lawful manner.

Factor #1 – The Character of Harm

[87] Ms. Layton says that the CDHA is attempting to close all access to the Layton property through illegal means, it is preventing reparation and regular maintenance to the Layton property and there is a risk of death to her residents because of the obstruction to the laneway.

[88] First, as stated earlier, the CDHA has the right to deny access to the full length of the laneway. Second, the CDHA has not and does not intend on preventing Ms. Layton from carrying out necessary repairs or improvement to her properties. The CDHA has previously allowed contractors to traverse their land and will continue to do so in the future. Finally, there is no evidence of risk of death of the residents at the Layton property. Ms. Layton can provide a safe access and egress to the Layton property by way of the alleyway to the east of her property.

Factor #2 – The Character of the Neighborhood

[89] Ms. Layton says that in her neighborhood, it is an expectation that laneways are shared. Furthermore, it was part of the deed and agreement of purchase of 1116 Wellington Street West that occupiers be given access over the laneway, without any encumbrances.

[90] Even though at times, the previous and current owners of the CDHA property and Layton property shared the laneway, permission was required by the owner of the CDHA property. As proven by the CDHA, Ms. Layton does not have legal access to the full length of the laneway. Without permission, there is no access.

Factor #3 – The Intensity of the Interference

[91] Ms. Layton submits that the access restriction is intolerable. The CDHA have escalated its conduct by physically and verbally attacking residents of the Layton property.

[92] The interference was mutual. Ms. Layton is equally to blame. She has also escalated her conduct by physically and verbally attacking the employees of the CDHA.

Factor #4 – The Duration of the Interference

[93] Ms. Layton claims that the CDHA delayed the resolution of this matter over three years all the while breaking the regulatory and statutory framework. She argues that the CDHA has interfered with her property rights by refusing access over the laneway for maintenance and repairs.

[94] The delay is not attributable to the CDHA. Ms. Layton refused to concede that access to the laneway could only be granted by permission. To repeat, Ms. Layton does not have access over the full length of the laneway.

[95] The CDHA made efforts to work with Ms. Layton to no avail. When Ms. Layton asked for access to conduct maintenance and repairs to the Layton property, the CDHA requested that she provide the following information: (a) the repairs required; (b) the name of the contractor; (c) dates and times that access is requested; and (d) correspondence from the contractor indicating why access across the CDHA property was required. Ms. Layton refused to provide this information, despite it being a reasonable request.

Factor #5 – The Time of Day and Day of the Week

[96] Ms. Layton states that the CDHA blocked access during the day (7:00am to 6:00pm), Monday through Friday.

[97] The CDHA had the right to block access to their laneway. If access was required to carry out necessary repairs or improvements to the Layton property, the CDHA was prepared to allow access.

Factor #6 – Zoning Designation

[98] Ms. Layton submits that the laneway cannot be encumbered pursuant to Zoning By-Law No. 2008-250.

[99] As previously concluded, Zoning By-Law No. 2008-250 is not applicable to the circumstances of this case.

Factor #7 – The Utility of CDHA’s Conduct

[100] Ms. Layton says that the CDHA does not have parking, while the tenants of the Layton property regularly and continuously use the backyard for parking. The CDHA has personally benefitted by parking in the laneway.

[101] During the agreement between the CDHA and Ms. Layton, both parties mutually benefitted from the relationship. Once the agreement ended, the CDHA rightfully and lawfully used their land.

Factor #8 – The Nature of CDHA’s Conduct

[102] Ms. Layton asserts that the CDHA acted unreasonably in that they had a desire to cause annoyance, discomfort, and inconvenience to Ms. Layton. She says that the CDHA made inappropriate complaints to the police, and they resorted to violence.

[103] The CDHA makes the same allegations against Ms. Layton.

[104] The unreasonable nature of the conduct applies to both parties.

Factor #9 – The Sensitivity of Ms. Layton

[105] Ms. Layton indicates that the CDHA falsely advised the City of Ottawa and a Counsellor that they had a legal right to park in their laneway by omitting that there is a legal right-of-way over Part 3 of the laneway.

[106] I disagree. Ms. Layton’s right-of-way is limited to the first 25.3 feet of the laneway. The CDHA did not misrepresent their ownership of the laneway or any right-of-way.

[107] Also, given Ms. Layton’s own explosive conduct during this dispute, I do not find that there is evidence that she was an unduly sensitive plaintiff.

[108] In summary, considering all the circumstances of this case, I find that Ms. Layton has failed to prove that the CDHA has caused substantial and unreasonable interference with the Layton property.

Disposition

[109] For the foregoing reasons, Ms. Layton’s action is dismissed, and the CDHA’s counterclaim for damages is dismissed.

[110] The only valid and existing right-of-way on the CDHA property is the first 25.3 feet of the laneway over Part 3, Plan 4R-21093, as properly described on title. The Land Titles Act Order OC427110 is valid and binding. Ms. Layton does not have a right-of-way over the full length of the laneway, and she has no vehicular access to the rear of the Layton property. Ms. Layton is prevented from trespassing across any of the CDHA property, other than Part 3, Plan 4R-21093 or with permission of the CDHA.

[111] As mentioned a few times in this Judgment, the CDHA has made it clear that they have no intention of preventing Ms. Layton from conducting maintenance and repairs to the Layton property. This is proper and good neighbourly conduct. While title will not be rectified to grant a right-of-way to the full length of the laneway, I commend the CDHA’s intention to provide reasonable access across their lands on a reasonable basis if and when the need for maintenance and repairs arises to the Layton property. The CDHA’s request that Ms. Layton provide the following information is appropriate and will avoid that access to the laneway be used for improper purposes: (a) the repairs required; (b) the name of the contractor; (c) dates and times that access is requested; and (d) correspondence from the contractor indicating why access across the CDHA property is required.

[112] The parties are encouraged to agree on the costs of this trial and the motion before Rees J. If they are unable to do so, the CDHA may file and serve their costs submissions within 30 days of the date of this Judgment, limited to ten pages, excluding their Bill of Costs and Offers to Settle. Ms. Layton shall file and serve her costs submissions, with the same page restriction, within 30 days thereafter.

M. Smith J

Released: November 28, 2024