Ontario Superior Court of Justice

Court File No.: CV-23-0092130
Date Heard: January 14, 2025
Date of Judgment: January 23, 2025

Between:
Sunset Lakes Owners Association
Applicant
– and –
Todd Gingras and Erika Gingras
Respondents

Applicant Counsel: Albert Brunet
Respondent Counsel: Gregory Gryguc

Judge: Jillian McVey

Decision on Application

Overview

[1] The Applicant, Sunset Lakes Owners Association, is the homeowners’ association for a residential community in Greely, Ontario, known as “Sunset Lakes.” SLOA is responsible for controlling, managing, and administering the community's common elements. Each property in Sunset Lakes is the subject of restrictive covenants registered on title. The restrictive covenants require homeowners to secure written approval from SLOA before making landscaping changes to their properties. SLOA is entrusted with enforcing these covenants. When doing so, SLOA seeks to maintain the open-concept nature of the Sunset Lakes development and ensure that all homeowners can observe the machine-made lakes and shorelines in the community. SLOA also holds title to various pieces of land within the community that it maintains for the use and benefit of all its owner-members.

[2] The Respondents moved to Sunset Lakes in August 2020. They are the registered owners of 6906 Lake Park Drive. SLOA owns two properties bordering the Respondents’ lot. The first property encompasses a machine-made lake and surrounding shoreline located at the back of the Respondents’ property. This area is available to all homeowners in Sunset Lakes. The second is a three-meter-wide pathway that runs down the side of the Respondents’ lot and connects Lake Park Drive to the shoreline area. Other residents in the community access the lake and surrounding nature trails via this footpath.

[3] In addition to owning the pathway, SLOA benefits from a three-meter-wide easement over the Respondents’ property that runs the length of the pathway. SLOA can use the property to provide “trails to the residents of Sunset Lakes for recreational pedestrian use.”

[4] Shortly after moving to the neighbourhood, the Respondents wished to make landscaping changes. On August 23, 2020, they held a meeting at their home with SLOA’s then president, Daniel Weslake, to discuss the project. The precise details of what was discussed at that meeting are somewhat in dispute.

[5] Following the meeting, Mr. Weslake sent emails to the Respondents on August 27, 2020, and September 12, 2020, in which he referred to the Respondents’ anticipated project and emphasized that “as discussed at their meeting,” before the Respondents could commence construction, they needed to secure approval for the project from SLOA’s design review committee. The DRC is a two-member committee, comprised of members of the SLOA Board, responsible for reviewing written proposals submitted by members for exterior modifications.

[6] The Respondents neither formally sought nor received DRC approval for their project. Nonetheless, in October 2020, the Respondents moved forward with their outdoor renovations. Specifically, they moved a shed in their backyard to a portion of the property subject to the easement, constructed a seven-foot-high cedar fence that borders the pathway owned by SLOA, and built a chain link fence on the shoreline area owned by SLOA.

[7] SLOA raises numerous issues with respect to these changes. First, given the proximity of the fence to the waterfront, the height of the fence breaches one of the restrictive covenants. Second, the Respondents built the fence and moved the shed without prior written approval from the DRC, in breach of a restrictive covenant. SLOA maintains that it would never have approved the seven-foot-high solid wooden fence because it undermines the open-concept nature of the development and sets a dangerous precedent. Finally, not only does the wooden fence block SLOA’s access to the three-meter-wide easement, but a survey subsequently completed by SLOA confirms that some of the wooden fence extends onto SLOA-owned property.

[8] SLOA seeks an order requiring the Respondents to remove the fence and shed at their own expense because (1) portions of the wooden and chain-link fence sit on SLOA-owned property without SLOA’s consent; and (2) the shed and the remaining portions of the fence constitute an actionable encroachment upon the three-meter-wide easement. SLOA argues that the fence and shed should be removed on the above bases alone. However, in addition, SLOA asserts that the Respondents’ violation of the restrictive covenants constitutes an alternative and independent basis to justify the removal of the shed and fence.

[9] The Respondents maintain that (1) the President of SLOA granted them verbal permission to build the shed and fence in their existing locations and form; (2) the restrictive covenants are unenforceable because they are too vague; and (3) the fence and shed do not substantially interfere with SLOA’s easement rights.

[10] For reasons given below, I grant the relief sought by SLOA. The Respondents must move the fence and shed at their own expense.

Issues

[11] This Application raises the following issues:

1. Did Mr. Weslake approve the Respondents’ construction project on behalf of SLOA at the August 2020 meeting?
2. Do the shed and fence constitute actionable encroachments over the easement granted in favour of SLOA?
3. Should the Respondents be ordered to remove the fence and shed because the Respondents breached the restrictive covenants registered on title?

Did Mr. Weslake approve the Respondents’ construction project on behalf of SLOA at the August 2020 meeting?

[12] The Respondents maintain that at the August 2020 in-person meeting, Mr. Weslake approved their project. For his part, Mr. Weslake deposed that he discussed the project with the Respondents at the August 2020 meeting but made plain to them that they would have to secure approval from the DRC before starting construction. I accept Mr. Weslake’s evidence on this point.

[13] First, the restrictive covenant at issue requires that a project proposal be made and approved “in writing.” The requirement of a written record makes good sense as having a paper trail avoids misunderstandings in terms of the precise nature of what modifications have been approved, if any. The requirement of a written record in these circumstances protects both SLOA and the homeowner. The Respondents’ position that Mr. Weslake verbally approved the project is at odds with the requirements of the restrictive covenant.

[14] Second, Mr. Weslake did not bring a copy of the restrictive covenants to the meeting, nor did he educate himself in advance on the particulars of the easement. This supports his assertion that he had no intention of approving any form of construction project during that meeting. He testified in cross-examination that the meeting was solely introductory in nature given that the Respondents were new to the neighbourhood. He testified that the goal of the meeting was simply to gain a general sense of the project and to advise the Respondents of the proper process to secure approval. I am satisfied that is what occurred.

[15] Third, Mr. Weslake was very much aware of the DRC approval process. He described in cross-examination that in the early stages of a project, one of the two DRC members would take the lead in terms of communicating with the homeowners and providing them direction on procedure, but that once a proposal was submitted in writing, both DRC members would have to review it for approval. In short, the decision to approve the project was not Mr. Weslake’s sole decision to make. As such, he could not and would not have approved the project at the August 2020 meeting. Further, Mr. Weslake took no notes of his meeting with the Respondents. If Mr. Weslake had approved an extensive construction project, which contemplated a large fence at odds with the look and feel of the neighbourhood and the erection of a fence on SLOA-owned property, one would reasonably expect Mr. Weslake to have kept detailed notes of those discussions. The fact that he made no notes of the meeting despite being accountable to the Board and the community writ large supports his evidence that the meeting was only introductory in nature and that he told the Respondents to submit a written, detailed proposal to the DRC.

[16] Fourth, Mr. Weslake’s communications with the Respondents after the August meeting but before construction commenced corroborate his version of events. In an email dated August 27, 2020, though Mr. Weslake advised the Respondents that he did not anticipate the DRC having a concern regarding the removal of trees given that the tree roots posed a risk to the foundation of the Respondents’ home, he made no similar assurances in terms of other aspects of the project. Instead, Mr. Weslake sought additional details from the Respondents about their proposed changes like the anticipated location and eventual height of the cedar hedges. He also reminded the Respondents about the applicable restrictive covenants. Further, Mr. Weslake specifically mentioned the DRC’s obligation to evaluate the proposal's specifics. The August 27 email completely undermines the proposition that Mr. Weslake had already approved the project.

[17] Further, Mr. Weslake sent a similar and even lengthier email to the Respondents on September 12, 2020. He reminded the Respondents that before they could begin construction, they had to submit a formal proposal to the DRC. He provided the Respondents a link to the required form. He also asked the Respondents to submit a detailed sketch of the project that included the height and type of any fencing contemplated. Clearly, Mr. Weslake did not already have those details. Finally, Mr. Weslake advised the Respondents that any fence erected on the property would have to meet the height requirement set out in the restrictive covenants. Mr. Weslake ended the email by stating that the DRC looked forward to receiving their “formal project submissions.” Again, the substance of Mr. Weslake’s email flies in the face of a conclusion that he already had the details of the project and had approved it weeks earlier.

[18] Fifth, I reject the notion that Mr. Weslake verbally approved, absent discussion with the Board or his DRC partner, the construction of a fence on SLOA-owned property.

[19] Sixth, in her affidavit, Erika Gingras repeatedly refers to “discussions” with Mr. Weslake about the project during the August 2020 meeting. However, “discussions” do not amount to formal approval. To the extent that the Respondents may have misapprehended that Mr. Weslake verbally approved the project, that misunderstanding would have been exposed and resolved by Mr. Weslake’s subsequent emails, wherein he made plain that the Respondents had to file a formal proposal with detailed particulars before commencing their project.

[20] Ms. Gingras also deposed that Mr. Weslake advised her at the August 2020 meeting that the Respondents had exclusive access to the lake behind their home. In my view, however, this exchange does not equate to permission to build a fence on SLOA’s property. Mr. Weslake testified in cross-examination that he told the Respondents that they had exclusive access to the waterfront to explain why they were responsible for keeping it clean. He described this as a “quid pro quo.” It is unclear to me whether the Respondents are arguing that Mr. Weslake implicitly authorized them to build the chain link fence when telling them that they had “exclusive access” to the waterfront or whether they are asserting that Mr. Weslake explicitly and specifically approved the construction of a chain-link fence during the August 2020 meeting. In any case, I reject either proposition for the reasons given above.

[21] Finally, in cross-examination, Mr. Weslake stressed that he repeatedly told the Respondents on August 23, 2020, that they would have to submit a formal proposal for review. Mr. Weslake testified that he was in no position to approve or deny the project at the time of the in-person meeting; therefore, he could only provide the Respondents direction on the applicable process. His evidence makes complete sense when viewed alongside the totality of the record.

[22] In summary, I find that Mr. Weslake’s actions and communications with the Respondents after the August 2020 meeting run entirely counter to the notion that he had approved their project. I accept Mr. Weslake’s evidence that though he did not necessarily voice objection to whatever preliminary project details the Respondents shared with him in August 2020, he told the Respondents that they would have to seek formal approval for their project by way of a written, detailed proposal submitted to the DRC. The Respondents failed to secure that permission.

[23] As a result, I find that the Respondents had no authority to build a fence on SLOA-owned property and its ongoing presence on SLOA’s lands constitutes an actionable wrong: see Lombardo v. 2672140 Ontario Inc., 2021 ONSC 5523, para. 36. The appropriate remedy is a mandatory injunction requiring the Respondents to remove any portion of the wooden and chain link fence that extends onto SLOA-owned property as reflected in the survey commissioned by SLOA dated 25 January 2023.

Do the shed and fence constitute actionable encroachments over the easement?

[24] As noted above, some segments of the Respondents’ fence sit on SLOA-owned property. Those portions will have to be removed. The remaining parts of the fence, as well as the shed, reside on property subject to a three-meter-wide easement registered in favor of SLOA. SLOA also wishes to have those structures removed because they substantially interfere with its dominant owner easement rights.

[25] The Respondents acknowledge that the land upon which the fence and shed reside is subject to an easement in favour of SLOA. The question is whether those structures constitute an actionable interference with the usage rights contemplated by the easement. An encroachment is actionable “only where the encroachment substantially interferes with the dominant owner’s ability to use the right-of-way for a purpose identified in the grant”: Weidelich et al. v. de Koning et al., 2014 ONCA 736, para. 10. With that said, a dominant owner is entitled to “every reasonable use” of the easement for its granted purpose: Weidelich, para. 15. The test is one of convenience, not necessity.

[26] To decide whether the encroachment is actionable, I must first determine the nature and extent of the easement by interpreting the wording of the instrument creating it, with regard to the circumstances existing at the time: Fallowfield v. Bourgault, para. 10. I must then assess whether the encroachment constitutes a substantial interference with the use and enjoyment of that easement given its intended purpose: Oakville (Town) v. Sullivan, 2021 ONCA 1, para. 15. There is no mathematical formula that governs this assessment. Each case must be decided on its own facts.

[27] The instrument conferring the easement over the Respondents’ property states that the easement is for “the provision of trails to the residents of Sunset Lakes for recreational pedestrian use.” The easement grant easily contemplates SLOA accessing the property when required to manage the pathway next to the Respondents’ home, as well as the lake and shoreline area behind the Respondents’ property. Further, one can easily foresee that such maintenance could require access to the property via large vehicles and other machinery. For example, the current President of SLOA deposed that dredging operations will have to be completed in the next 2-4 years on the machine-made lake behind the Respondents’ property.

[28] In my view, the issue of substantial interference in this case can be resolved relatively summarily. Clearly, the easement contemplates some degree of use by SLOA to maintain the trails and machine-made lake behind the Respondents’ home, yet the shed and the fence cumulatively block all access to the land. I fail to see how a complete barrier to land access can constitute anything but a substantial interference with the dominant owner’s interests. This is not a situation where SLOA’s access to the property has been limited in some way and I must determine whether SLOA can still use the property as conveniently notwithstanding the encroachment. The evidentiary record before me establishes that SLOA can no longer access the property. I find this to be a substantial interference.

[29] Though not strictly necessary to address given my finding above, I am also satisfied that the trail easement covenant registered on title drives the same conclusion. This specific covenant explicitly bans any construction on the easement without the express written consent of SLOA. SLOA argues that this restrictive covenant sets out the parties’ expectations on what will constitute a substantial interference with the rights conferred by the easement, and deference should be paid to it: see Oakville, at para. 24.

[30] I appreciate that in Oakville the ban on construction was explicitly set out in the instrument granting the easement. In contrast, in the present matter, the outright prohibition on construction is found in a restrictive covenant also registered on title. However, in my view, this is a distinction without a difference in terms of interpreting what constitutes a substantial interference with SLOA’s easement rights. The Respondents purchased the property after being placed on notice that an easement existed over a three-meter-wide portion of the property, and a restrictive covenant was in place that explicitly set out what would constitute a substantial interference with that easement. The parties effectively agreed that any “plantings, structures, fence, hedge, or improvements” constructed on the easement would substantially interfere with SLOA’s rights. The erection of a seven-foot-high fence and a shed on the easement clearly breaches that agreement.

[31] In summary, the fence and shed substantially interfere with SLOA’s ability to use the property on a factual level because they effectively restrict all access to the property. Second, they would otherwise have constituted a substantial interference because that is what the parties agreed to via the restrictive covenant. For those reasons, the fence and shed constitute actionable encroachments over the easement and must be removed.

Should the Respondents be ordered to remove the fence and shed because the Respondents breached the restrictive covenants registered on title?

[32] My findings above are dispositive of the application. Therefore, I need not necessarily address the impact of the Respondents’ breach of the restrictive covenants. With that said, I would have ordered the Respondents to remove the fence and shed on this basis as well.

[33] The overall design of Sunset Lakes provides for community access to the machine-made lakes and shorelines and unimpeded views of those areas for all owners. The restrictive covenants registered on title help preserve the neighbourhood's character by granting SLOA the discretion to limit exterior alterations. The restrictive covenants placed the Respondents on notice when they purchased their home in Sunset Lakes that they would be subject to the building scheme, including the condition that SLOA must approve all exterior modifications. Unfortunately, the Respondents chose to disregard those rules when they became inconvenient to them.

[34] The Respondents seek to justify their conduct partly on the basis that a fence was required to address what they say are unique privacy and safety concerns that arise from the location of their home within the community, i.e., their property borders a walking path and a separate housing development. I cannot accept this argument.

[35] First, other properties in the development face similar challenges regarding their location. Yet, the building scheme still applies to those owners, who have not been permitted to erect seven-foot-high solid wooden fences.

[36] Second, the Respondents would have been aware when they purchased the home that their backyard bordered a walking path and a separate housing development. Reduced privacy was not an unforeseen development when they moved into their home. The Respondents nonetheless chose to purchase the property, appreciating that their ability to address the foreseeable and apparent privacy issues brought about by its location within the community would be subject to SLOA’s discretion.

[37] Third, the Respondents' concerns regarding privacy and safety are relevant and legitimate. But they were arguments the Respondents could and should have raised with the DRC in their written proposal. SLOA is the entity charged with balancing the varying interests of homeowners in Sunset Lakes, not the courts. Members of SLOA are not permitted to violate the restrictive covenants whenever those rules run contrary to their plans, even well-intentioned ones. If that were the case, the covenants would cease to bear any weight as homeowners would be free to erect whatever structures they wished on their properties, regardless of the impact those amendments had on the aesthetics of the community. This would be unfair to other members of the development who may have purchased homes in Sunset Lakes because of its open-concept design.

[38] Fourth, the restrictive covenants render prospective members of the Sunset Lakes community aware that SLOA oversees balancing the rights and interests of all homeowners as it relates to exterior alterations. SLOA had the authority to decide whether the Respondents' interests outweighed the interests of other homeowners. If members of SLOA do not like the decisions made by the Board, those members are free to vote for different representation in the following election. However, no member can be permitted to go their own way and do what they wish because they have unilaterally concluded that their proposed modifications are justified.

[39] Fifth, there is no reason to think that SLOA would not have worked with the Respondents to try and address their concerns in a manner consistent with the building restrictions. For example, SLOA has approved many rod iron fences in the community because that style of fence does not compromise the views of the shoreline and lake areas. Though a rod iron fence may not address all the privacy and safety concerns held by the Respondents, the fact remains that they chose to buy the home in its current location.

[40] Finally, I disagree with the Respondents that the restrictive covenants are too vague to be enforced. SLOA has been interpreting and enforcing these building restrictions for decades. The Respondents draw comparisons with Lone Oak Properties Ltd. v. Baillie et al., 2019 ONSC 4667. In my view, that case is distinguishable. There, the Respondent purchased a vacant lot subject to a restrictive covenant that required homeowners to secure approval from the “developer” before erecting any outbuildings. The developer denied the Respondent’s request to build a shed despite having approved the construction of other sheds, driveways, and structures within the development. The developer conceded that no formal process was in place for requesting or approving variances to the building restriction.

[41] The Court declined to enforce the restrictive covenant because the lack of a formal approval process exposed homeowners to the “whims” of the developer, particularly as there were no explicit factors set out in the covenant that informed the exercise of the developer’s discretion.

[42] The facts before me are quite different. First, a formal approval process is in place concerning exterior modifications in Sunset Lakes. A form is available online that must be completed and submitted to a two-person design review committee comprised of duly elected members of the SLOA Board who are themselves member-owners in the community. If the DRC withholds approval for the project, the matter is directed to the full Board's attention for consideration. If community members are unhappy with the direction taken by the DRC or the Board, they may seek new representation during the next Board election. This process can hardly be equated with that in Lone Oaks, where homeowners were subjected to the “whims” of one individual whom they had no power to displace as the decision-making body.

[43] Second, unlike the development in Lone Oaks, Sunset Lakes is a valid building scheme. Under such a scheme, all owners share similar burdens and enjoy benefits relating to limitations on property use. The interpretation of a restrictive covenant that forms part of a building scheme must reflect this community of interests: Chapadeau et al. v. Devlin et al., 2018 ONSC 6456. And while there are no explicit factors set out in the restrictive covenants that govern SLOA’s exercise of discretion, its decision-making is informed by its goal of maintaining the open-concept nature of the development. By contrast, in Lone Oaks, the restrictive covenant was not part of a building scheme; therefore, the decisions made by the developer were not driven by any common goal or design, a factor that raised natural concerns regarding arbitrariness.

[44] Finally, on this application, the Respondents tendered emails from members of the community who support the location and look of their fence. In my view, the fact that some unspecified percentage of Sunset Lakes homeowners support the Respondents in this litigation is irrelevant. If most of the homeowners wish to change the look of the community, it is within their power to elect a new Board and seek to make those changes through a newly appointed DRC. That is the process that all homeowners agreed to follow when they purchased their properties in Sunset Lakes. Permitting the Respondents to maintain their fence and shed in their current form would implicitly endorse an approach where each homeowner can simply do what they wish regardless of the covenants and then seek to justify it afterwards by an informal community petition or vote. That is not the process through which homeowners in Sunset Lakes have agreed to resolve their potentially competing interests.

[45] In my view, the Respondents circumvented the rules that applied to their landscaping project. These rules are in place to protect the interests, financial and otherwise, of all the homeowners in the community. A seven-foot-high solid wooden fence that blocks the sightline to the lake is clearly at odds with the general character of the neighbourhood. For that reason, the DRC has never approved a similar project, even for properties that border walking paths.

[46] For the above reasons, I would have ordered the removal of the shed and fence on this basis as well.

Conclusion

[47] Any portion of the fence on SLOA-owned property must be removed at the Respondents’ expense. The Respondents had no legal authority to build a permanent structure on lands owned by SLOA. Any remaining segments of the fence that extend onto the three-meter-wide easement must also be removed as the fence constitutes an actionable interference with SLOA’s easement rights. The shed must also be removed for the same reasons.

[48] I would also have ordered the removal of the shed and fence on the basis that the Respondents disregarded the review procedure mandated by the restrictive covenants registered against their property.

[49] Finally, the parties did not make submissions regarding a deadline for the removal of the structures. I am mindful that I am releasing my decision regarding the removal of a shed and fence in the dead of winter in Ottawa, Ontario. If the parties cannot agree on an appropriate deadline to be incorporated into a draft Order, the parties may submit supplemental submissions on this issue in writing within 21 days of the release of these reasons. Submissions shall not exceed three pages in length.

Costs

[50] SLOA is the successful party and entitled to costs. SLOA seeks costs of $28,033.52 on a full indemnity basis. SLOA argues that a restrictive covenant entitles it to costs on a full indemnity scale. The Respondents maintain that the Court retains discretion on the issue of costs and SLOA’s conduct in misinforming the Respondents regarding the nature of the easement should result in costs being awarded on a lesser scale.

[51] The restrictive covenants entitle SLOA to “all costs” incurred by it to enforce the covenants including legal and court costs. I must defer to this contractual right unless I have “good reason” to depart from it, for example, where the successful party has engaged in inequitable conduct or where special circumstances justify awarding costs on a lesser scale notwithstanding the contractual agreement: Chapadeau v. Devlin, 2019 ONSC 241, para. 12.

[52] In my view, there is no evidence that representatives of SLOA acted inequitably or unfairly such that I should deviate from the contractual right set out in the restrictive covenants. Though Mr. Weslake fairly conceded that he did not have knowledge of the specific details of the easement when he met with the Respondents, I am satisfied for the reasons given above that he advised the Respondents repeatedly of their obligation to follow the proper process so that the details of the project could be fully assessed. Mr. Weslake advised the Respondents of this in person and in writing before they commenced construction. Regrettably, the Respondents failed to follow his direction.

[53] With that said, I appreciate there is some evidence that the Respondents sought to work collaboratively with SLOA with respect to their project, at least in the early stages. I am also mindful of the financial losses they will incur by having to remove the fence and shed, and that the Respondents moved the pre-existing shed at the request of SLOA because its original location, through no fault of the Respondents, also ran afoul of the restrictive covenants.

[54] Finally, I find that the time spent on the litigation set out in SLOA’s Bill of Costs was reasonable and the work was appropriately delegated to counsel and law clerks of varying levels of experience who charged appropriate hourly rates for the jurisdiction.

[55] Ultimately, I find that fixing costs in the amount of $24,000, all inclusive, is fair, proportional, and satisfactorily reflects the terms of the restrictive covenants in these regrettable circumstances.

Released: January 23, 2025