Court File and Parties

Court File No.: CV-20-00644510-0000

Date: September 26, 2025

Superior Court of Justice – Ontario

Re: Michelle Moyal, Executor and Trustee of the Estate of Claude Bitton, CB 33 Ontario Inc., Merces Medeiros, Charles Suen Lee, Jennifer Lee (Lai-Ping), Yung Oi Lan Lee, Wai Man Lee, Elisa Lee, and CB 23 Ontario Inc., Plaintiffs

And: 2636676 Ontario Inc., Defendant

Before: Parghi J.

Counsel:

• Ryan C. Sadler, for the Plaintiffs
• Micah I. Ryu, for the Defendant

Heard: September 26, 2025

Endorsement

Introduction

[1] The Plaintiffs are property and business owners in Kensington Market in Toronto. In 2020, they commenced proceedings against the Defendant, 2636676 Ontario Inc. ("263"), which owns the property at 17 St. Andrew Street. The Plaintiffs seek to have 263 recognize what they say is their right of way over a roughly 100-metre long laneway that runs immediately adjacent to 17 St. Andrew Street and is owned by 263 (the "Laneway"). The Plaintiffs use the Laneway to access the area to the rear of their respective properties, where they park their cars.

[2] 17 St. Andrew Street is currently under development to become a five-storey residential rental building. The development project is permitted by the City of Toronto. In September 2025, 263 blocked off the Laneway temporarily as part of the development project. 263 states that it had to block off the Laneway temporarily for three reasons. First, constructing the shoring systems requires vertical drilling, which requires the use of a portion of the Laneway, such that cars cannot drive past. Second, it is a safety hazard to have motor vehicles driving past the shoring systems while they are being constructed. Third, the Defendant is required by the City to maintain a short-term water discharge tank, and, temporarily, there is no place to put the tank anywhere but in the Laneway.

[3] The Plaintiffs now bring this urgent motion for an interlocutory injunction. They say that their access to their parking spots is blocked. The motion was initially brought in writing and ex parte, on an urgent basis. The Plaintiffs were ordered to serve 263. A case conference was held on September 18, at which this hearing was scheduled.

[4] For the reasons below, I dismiss the Plaintiffs' motion. Additionally, because of significant concerns I have regarding the conduct of some of the Plaintiffs and regarding their solicitor's affidavit, I award substantial indemnity costs to 263.

The Legal Test for an Injunction

[5] A party may seek an interlocutory injunction pursuant to s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 40 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] The test for interlocutory injunctive relief is well-established: the moving party must establish that their action raises either a serious issue to be tried or a strong prima facie case, that they will suffer irreparable harm if an injunction is not granted until the completion of the trial, and that the balance of convenience favours granting the relief sought because they would suffer greater harm than the responding party if the injunction is not granted (RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 348-349; R. v. Canadian Broadcasting Corporation, 2018 SCC 5, [2018] 1 S.C.R. 196, at paras. 12-13). The three criteria are not to be viewed as self-contained: they are interrelated considerations, and weakness in one may be compensated for by strength in another (Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.)).

No Strong Prima Facie Case

The Applicable Standard

[7] The parties agree that the standard to be applied to the first part of the RJR-MacDonald test for injunctive relief is the more onerous "strong prima facie case" standard, under which the Plaintiffs must show "a case of such merit that it is very likely to succeed at trial" based on the law and the evidence presented (Canadian Broadcasting Corporation, at para. 17).

Analysis

[8] The Plaintiffs have not demonstrated a strong prima facie case that they have a right of way over the Laneway. As such, I am not satisfied that there is a strong likelihood on the law and the evidence presented that, at the hearing of the action, the Plaintiffs will succeed in proving their case against 263.

Easement by Deed

[9] The Plaintiffs have not established a strong prima facie case that they have acquired an easement over the Laneway by deed. The Plaintiffs rely in part on a legal instrument from 1927 that they say granted an easement over the Laneway. As I read the instrument, it refers only to an easement over the portion of the Laneway in which there is no construction, and which is not blocked off by 263. The portion of the Laneway at issue is not, according to this instrument, subject to an easement. This is underscored by the parcel maps in the record before me, which indicate that the parcel of land containing the easement is not the parcel containing the portion of the Laneway that has been blocked off.

[10] The Plaintiffs also rely on a survey that refers to a right of way over the entire Laneway. I am not persuaded that this survey is correct, given what the 1927 instrument expressly does and does not say regarding the easement. When considering whether there is an easement by deed, the 1927 instrument is far more instructive than the survey. The instrument is the document that purportedly grants the easement. The fact that it does not grant an easement over the portion of the Laneway in dispute must carry the day.

[11] Even if an easement over the relevant portion of the Laneway had been granted by the 1927 instrument, it would have expired in 1967, unless the easement claim was preserved within the notice period by a notice of claim under the Registry Act, R.S.O. 1990, c. R. 20. No notice of claim was ever registered, and the notice period has passed. Any easement has therefore long since expired.

[12] I therefore do not find that there is a strong prima facie case that the Plaintiffs have an easement by deed over the Laneway.

Easement by Prescription

[13] The Plaintiffs have not made out a strong prima facie case that they acquired an easement by prescription or continuous use.

[14] The law on prescriptive easements has been summarized by this court in Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff'd 2018 ONCA 521. I will not address the requirements for a prescriptive easement under the common law in detail. It is sufficient to say that, to demonstrate a prescriptive easement, the Plaintiffs must show a "continuous, uninterrupted, open and peaceful use of" the right of way "without objection by the owner" and "as of right," meaning without secrecy and without permission (Carpenter, at paras. 43-44). The Plaintiffs must "actually manifest an ownership right; i.e., an entitlement to use the easement," and the owner must have had actual or constructive knowledge of their use and consented to or acquiesced in their acquisition of the easement (at paras. 47-48). I am to proceed "with caution before finding that a landowner's ownership interest has been diminished or lost by prescriptive right" (at para. 52).

[15] The only evidence the Plaintiffs offer in support of their claim of a prescriptive easement is a statement in their solicitor's affidavit that during examinations for discovery, the residential owner Plaintiffs all gave evidence that "the Laneway is how they have historically accessed the rear of their properties for vehicular access and parking." This evidence does not address the business owner Plaintiffs' use of the Laneway. It provides only a brief hearsay summary of the residential owner Plaintiffs' discovery evidence. Their actual discovery evidence is not before me. I therefore am unable to understand the context in which this evidence was given, or to verify or assess its actual content. Moreover, the hearsay evidence from counsel does not speak to various elements of the easement by prescription test, including whether the Plaintiffs' use of the Laneway was continuous, uninterrupted, without objection, or without permission.

[16] The record also contains evidence that undermines the claim of easement by prescription, in the form of a declaration of possession provided by the prior owner to 263. In the declaration, dated July 16, 2018, the former owner confirmed that they had been in undisputed possession and occupation of the property with no unregistered encumbrances, easements, claims, or adverse possession. The declaration, in my view, makes clear that the previous owner had no intention to ever acquiesce or consent to the Plaintiffs establishing some form of ownership interest in the Laneway, contrary to the requirements for a prescriptive easement.

[17] As such, I do not find that there is a strong prima facie case that the Plaintiffs have an easement by prescription over the Laneway.

Easement by Necessity

[18] Nor have the Plaintiffs established a strong prima facie case that they acquired an easement by necessity.

[19] The Court of Appeal for Ontario, in Depew v. Wilkes, at paras. 18-19, cited with approval the following description of easements of necessity from Gale on Easements, 16th ed. (London: Sweet & Maxwell, 1997), at p. 148:

A way of necessity, strictly so called, arises where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the part so left inaccessible is entitled, as of necessity, to a way over the other part.

[20] There is no such necessity here. It is clear on the record that even with the Laneway blocked, there are two alternative paths the Plaintiffs can take to their parking spots.

[21] The Plaintiffs claim that one of those alternative paths, which is accessible from Glen Baillie Place, is not available to them because it has been blocked off. That is true. But it is one of the Plaintiffs, CB23 Ontario Inc., who blocked it off. The Glen Baillie Place path did previously afford access to the Plaintiffs' parking spots. Video evidence before me confirms this. After the video was taken and included with 263's responding motion materials, CB23 Ontario Inc., which owns two of the lots through which the Glen Baillie Place path passes, put up a chain fence to prevent the use of the path. The Plaintiffs now submit, with a straight face, that they do not have access to their parking spots via the Glen Baillie Place path.

[22] I reject this argument altogether. I am surprised that it was advanced before me. The Plaintiffs cannot intentionally block off alternative routes to their parking spots, and then throw their hands up and complain they have no alternative routes to their parking spots.

[23] I am also troubled by what the Plaintiffs' solicitor's affidavit does and does not say on this issue. The affidavit simply notes that the Glen Baillie Place path "is presently blocked by a chain fence." That is, it describes the chain fence but omits the material fact that it was one of the Plaintiffs who erected the fence. The effect of this is to mislead the court. A deliberate and misleading omission of a material fact is not proper in any affidavit. It is particularly improper in an affidavit from a solicitor.

[24] The second alternative path to the Plaintiffs' parking spots is referred to by the Plaintiffs as the Kensington laneway. The Plaintiffs say they cannot drive through the Kensington laneway, even occasionally and temporarily, because it is privately owned. They say they need permission to use the Kensington laneway. They have taken no steps to seek permission. They state that the Kensington laneway is too narrow for a car to drive through and that access to it is impeded by a telephone pole. These claims are undermined by the video evidence before me of cars driving through the Kensington laneway.

[25] As such, the Plaintiffs have not made out a strong prima facie case that they have an easement by necessity over the Laneway.

Irreparable Harm

[26] I must also assess whether irreparable harm will result if the injunction is not granted. The burden is on the Plaintiffs to place sufficient evidence before me to show that they will suffer irreparable harm, which is harm that "either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other" (RJR-MacDonald, at p. 341). The word "irreparable" describes the nature of the harm, rather than its magnitude (RJR-MacDonald, at p. 341). I am to consider the question of irreparable harm in the context of the specific facts of this case. That context includes my assessment that the Plaintiffs have not demonstrated a strong prima facie case in respect of their easement claim.

[27] I find that irreparable harm will not result if I refuse to grant the injunction. This finding flows necessarily from my finding that there is no strong prima facie case in respect of the Plaintiffs' claim that they have a right of way over the Laneway.

[28] Additionally, I am not persuaded that the Plaintiffs will experience harm of the nature that cannot be quantified in monetary terms. Despite their claims to the contrary, the Plaintiffs do have alternative access to their parking spots. I do not doubt that these alternative routes are less convenient. But that inconvenience can be compensated for in monetary damages. So too can any out of pocket costs the Plaintiffs might incur as a result of this inconvenience. The Plaintiffs, in their materials and in argument before me, are unable to point me to a single form of harm they have experienced or could experience that would not be compensable by damages.

[29] I note, in addition, that the evidence indicates that 263 has the means to satisfy a judgment for damages.

[30] I therefore conclude that the Plaintiffs will not experience irreparable harm if the injunction is not granted.

Balance of Convenience

[31] Finally, I must assess the balance of convenience. The Supreme Court of Canada has held that the question to be asked at this stage of the inquiry is which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits (Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at p. 129).

[32] I find that the balance of convenience favours not granting the injunction. I am not persuaded that there is a strong prima facie case that the Plaintiffs have a right of way over the Laneway. Moreover, if an injunction is not granted and the Plaintiffs succeed at trial, they can be made whole via damages for whatever inconvenience they experience in the interim. By contrast, if an injunction is granted, 263 will be unable to proceed with the project in compliance with the building permit. This will be a meaningful and significant hardship that far outweighs any inconvenience to the Plaintiffs arising from the status quo.

[33] It is therefore appropriate for the parties to continue on as they are, pending trial.

Conclusion

[34] For the reasons above, I find that the Plaintiffs have not demonstrated a strong prima facie case that they have an easement over the Laneway. I further find that irreparable harm will not result if the injunction is not granted and that the balance of convenience does not favour granting the injunction. Accordingly, I dismiss the Plaintiffs' motion.

Other Considerations

[35] The Plaintiffs have not provided an undertaking as to damages, despite the mandatory language in rule 40.03 that they do so. No explanation is given for the failure to provide the undertaking and no assurance is given by counsel that they advised the Plaintiffs as to the damages that could result if the Plaintiffs obtained an injunction that turned out to be improper.

[36] Although I might have considered disposing of the Plaintiffs' motion based on their failure to give the undertaking, I nonetheless considered their motion on the merits.

Costs

[37] In exercising my discretion to fix costs under section 131 of the Courts of Justice Act, I may consider the factors enumerated in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Those factors include the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, and any other matter relevant to costs.

[38] In Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, at para. 60, the Court of Appeal for Ontario restated the general principles to be applied when courts exercise their discretion to award costs. The Court held that, when assessing costs, a court is to undertake a critical examination of the relevant factors as applied to the costs claimed, and then "step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable".

[39] Applying these criteria here, I note the following:

a. 263 was successful on the motion. It is therefore appropriate that it recover its costs, based on the principle of indemnity.

b. The issues in the proceeding were of significant importance to 263, which would have been unable to proceed with the project had the injunction been granted.

c. 263's costs are within the reasonable expectation of the Plaintiffs. In fact, they are lower than those of the Plaintiffs, even though, given the timing of the motion, 263 had roughly one week in which to assemble its materials, including an affidavit, a factum, and photographic and video evidence. The tight timeline on which things unfolded, at the insistence of the Plaintiffs, presumably resulted in higher costs for 263 than would have been incurred with an ordinary motion. The fact that 263's costs are nonetheless lower than those of the Plaintiffs underscores that its costs are within the Plaintiffs' reasonable expectations.

d. 263's materials on this motion were of assistance to the court.

e. 263's counsel's hourly rates are reasonable. Work was appropriately allocated among counsel team members having regard to their seniority.

[40] 263 seeks costs on a substantial indemnity basis. In my view, it is appropriate to grant costs on that scale. As discussed above, I am troubled by both the Plaintiffs' conduct, in blocking off an alternative route to their parking spots and then arguing before me that that alternative route was not available to them, and by their solicitor's affidavit, which omits the material fact that it was one of the Plaintiffs who blocked off the route. Litigants should not engage in this kind of self-sabotage. Their counsel should not countenance the sabotage, or conceal it from the court. Such conduct, in my view, is reprehensible and merits an award of substantial indemnity costs (Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555, [2011] O.J. No. 3689, at para. 34).

[41] I therefore grant 263 its costs on a substantial indemnity scale, in the amount sought of $9,794.87, inclusive of HST and disbursements. Stepping back and viewing the matter as a whole, I consider this a fair and reasonable result.

[42] This amount is to be paid within 30 days of the date of this order.

Parghi J.

Date: September 26, 2025