Court File and Parties

Court File No.: CV-24-3162-0000 Date: 2025-10-31 Superior Court of Justice – Ontario

Re: 1668135 Ontario Inc., Applicant And: Luigi Gino Barbieri and Filomena Barbieri, Respondents

Before: Justice R.E. Charney

Counsel: Jonathan Piccin, Counsel for the Applicant Ryan Stern, Counsel for the Respondents

Heard: October 3, 2025 - Virtually

Endorsement

Introduction

[1] The Applicant, 1668135 Ontario Inc. (hereinafter the "Applicant" or "166 Inc."), commenced this Application seeking, inter alia, an Order for the Respondents, Luigi Gino Barbieri and Filomena Barbieri (hereinafter the "Respondents" or "Barbieri"), to remove a concrete retaining wall and other encroachments, from the Applicant's property.

[2] The Applicant is a land developer, and the registered owner of a parcel of property in Vaughan, Ontario, which is being developed into fifty-seven (57) residential homes. Included within this larger parcel of land are lots 8, 9, and 10 on Plan 65M-4714.

[3] The Respondents are the registered owners of a residential home, municipally known as 12 Campania Court, in Woodbridge, Ontario (hereinafter the "Barbieri Property"). The Barbieri Property is located directly adjacent to the north of the Applicant Lands. The diagram below (not to scale), outlines the location of the properties.

Barbieri Property
Lot 8
Lot 9
Lot 10

Adjournment Request

[4] At the outset of these proceedings, the Respondents requested an adjournment of the Application until after their motion to consolidate this proceeding with their action against the Respondents (Court File No. CV-19-612799) was heard.

[5] The Respondents commenced an action against 166 Inc. and its principal, Tony Gentile, in the Small Claims Court in November 2015 for damages to their property related to the construction of the homes on the property owned by 166 Inc.. This action was later transferred to the Superior Court and a fresh as amended Statement of Claim was issued in April 2021.

[6] The Respondents contend that the two proceedings both arise from the Applicant's housing development which is adjacent to the Barbieris' home at 12 Campania Court. The Barbieris contend that the facts, issues and parties to their Action and this Application arise from the same set of facts between most of the same parties. They contend that the Application is an attempt to deal with one part of the Action without addressing the entire case. The Respondents take the position that consolidating the two proceedings would avoid duplication and inconsistent findings and save both judicial resources and legal expenses.

[7] I note that although the Respondents have provided evidence of damage to certain areas of their property (cracks on foundation wall, displacement of walkway), there is, as yet, no evidence that this damage was caused by the Applicant's construction activities. The Respondents' affidavit contains a 2016 report from Toronto Inspection & Engineering Services Inc. ("TIES"), which conducted a brief site visit and described the damage, but comes to no conclusion as to its cause. The report recommends "that the Owner retain a Structural Engineer to evaluate the structural condition of the subject property, and to provide their assessment of the cause of damage. The Structural Engineer should also determine if any ongoing construction activities may effect the subject property."

[8] Although the TIES engineering report was obtained almost ten years ago, the Respondents have never provided a report from a structural engineer. At this stage, there is no evidence that the Applicant's construction activities caused any damage to the Respondents' property.

[9] The Respondents made previous attempts to bring a consolidation motion, but the consolidation motion did not proceed for reasons that are not relevant to the present adjournment request.

[10] This Application came before Sutherland J. in Triage Court on May 20, 2025. Counsel for all parties were present and made submissions. Counsel for the Respondents argued that the consolidation motion should proceed before the Application. Justice Sutherland rejected this argument, and ordered that the Application be called for a 2 hour hearing during the first two weeks of July 2025, and that the motion to consolidate be scheduled for the September 2025 sitting for 1.5 hours.

[11] As events unfolded, the Application did not proceed until October 3, 2025, and the consolidation motion was not reached in September 2025.

[12] It is clear from Sutherland J.'s Triage Court Endorsement that he intended the Application to proceed prior to the consolidation motion. Given this direction, I declined the Respondents' request to revisit Sutherland J.'s Endorsement and adjourn the Application until after the consolidation motion was heard.

Encroachment

[13] In May 2023, the Applicant's surveyors, R-PE Surveying Ltd. ("RPE") conducted a survey and discovered a number of encroachments. The encroachments identified by RPE include the following:

a) a portion of the concrete retaining wall encroaches into Lots 8, 9, and 10;

b) A portion of the wood retaining wall (in disrepair) encroaches into Lot 10;

c) A portion of the eaves of the shed on the rear of Lot 73 encroaches into Lot 8;

d) Several metal/steel fence posts are located within Lot 8.

[14] Since June 2023, the Applicant has demanded that the Barbieris remove the encroachments, which the Barbieris have not done. This Application was commenced in June 2024.

[15] Although houses have been constructed on Lots 8, 9 and 10, construction cannot be completed until the encroachments are removed. In particular, pursuant to a subdivision agreement with the City of Vaughan, the Applicant is required to build a fence along the property line and complete final grading and sodding. The fencing cannot be done because the encroachments must be removed before the fence can be installed on the property line.

[16] The Applicant relies on the affidavit of Paul Edward, President of RPE and a member of the Association of Ontario Land Surveyors for more than 42 years. RPE's report dated June 19, 2023, is appended as an exhibit to his affidavit. He has signed an Acknowledgement of Expert's Duty under Rule 53.03.

[17] Regrettably, the RPE report does not indicate how far over the property line the retaining wall and eaves encroach into the Applicant's lots. This would have been helpful information. While the report concludes that "several metal/steel fence posts are located within Lot 8", it does not indicate the exact number of fence posts that are on the wrong side of the lot line. I assume that surveyors are able to count fence posts. This would have been helpful information.

[18] There are photographs of the encroachments appended to the report. The concrete retaining wall is a low wall made of pre-cast concrete blocks (described in the Respondent's factum as "interlocking stones"). The wood retaining wall appears to be falling over.

[19] Another report by Wynspec Engineering, dated March 17, 2022, indicates that the pre-cast concrete blocks were stacked without mortar or adhesive or bonding material between the blocks.

[20] The Respondents rely on a report by Genesis Land Surveying Inc. ("Genesis") dated March 18, 2024, which confirms the encroachments. The report is appended to the affidavit of the Respondent Filomena Barbieri. The author of the report did not provide his own affidavit. This report states:

The stone wall located along the southerly property limit is measured to be between 0.05 and 0.15 metres [approximately 2 to 6 inches] south of the southerly property limit. We also noted that this wall is leaning and measurements have been provided from the base of the wall.

[21] The Genesis report further concludes:

Distances from the fence to property lines are taken from the center of the fence posts. The post and wire fence and board fence that are located along the southerly property limit are measured to be approximately 0.3 – 0.4 metres [approximately 12 – 16 inches] south of the southerly property limit.

[22] The Genesis report was prepared after the RPE report, but does not refer to or comment on the RPE report.

Analysis

[23] Based on the evidence provided, I am satisfied that the concrete retaining wall, the wooden retaining wall and the metal fence posts encroach on the Applicant's property and that these encroachments constitute a trespass that prevents the Applicant from building a fence along the property line and completing final grading and sodding. These encroachments are not "trifling in character".

[24] The preferred remedy for trespass is an injunction, unless granting the injunction would be oppressive: Ontario Heritage Trust v. Hunter, 2025 ONSC 3379, at paras. 48 – 49; Armstrong, et al. v. Penny, et al., 2023 ONSC 2843, at paras. 78 – 79. In this case, the Applicant is entitled to have these encroachments removed or to remove these encroachments from its property: Lombardo v. 2672140 Ontario Inc., 2021 ONSC 5523, at para. 36.

[25] The onus is on the Respondent in a claim for trespass to show that it is oppressive or a burden to take a trespassing wall down: Lombardo, at para. 39, Ontario Heritage Trust, at para. 50; Armstrong, at para. 84. There is no evidence in this regard. For example, there is no evidence as to the cost involved or whether the removal of the concrete retaining wall would damage the Respondents' property. Based on my review of the photographs of the concrete and wooden retaining walls, there would be no such hardship or interference.

[26] The most permanent of the structures is the low pre-cast concrete block retaining wall, which, as indicated, was made of "interlocking stone" and was not stacked with mortar or adhesives between the blocks. Although the parties refer to this as a "retaining wall", there is no evidence that it provides structural support to anything on the property. It appears to be a decorative border along the sidewalk. Removal of the wooden retaining wall (which is in disrepair) and the metal fence posts on the Applicant's property would have little or no impact on the Respondents. None of these qualify as "lasting improvements" within the meaning of s. 37(1) of the Conveyancing and Law of Property Act, R.S.O. 1990 c. C-34. A mandatory injunction with respect to these encroachments would not be oppressive to the Respondents.

[27] In contrast, I was not provided with sufficient information about the eaves of the shed that encroach on Lot 8. I have no evidence of whether the encroachment is de minimis, nor is there any explanation as to how this overhang would prevent the Applicant from constructing the fence on the lot line or grading and sodding. Based on my understanding of the survey attached to the affidavits, it is only one corner of the eaves that slightly overhangs the lot line and appears to be de minimis. I will not order the demolition of the shed based on this record.

Conclusion

[28] This Court Orders:

a. That the Respondents remove at their own cost the following encroachments from the Applicant Lands within forty-five (45) days:

i. the concrete retaining wall encroaching into Lots 8, 9, and 10;

ii. the wood retaining wall encroaching into Lot 10; and

iii. the metal/steel fence posts located within Lot 8.

b. That if the Barbieris fail to remove the encroachments within forty-five (45) days, the Applicant is permitted to remove the encroachments, and access to the Respondents' Property for the purpose of removal.

c. If the Applicant removes the encroachments as permitted by para. (b) above, the Respondents shall not hinder or obstruct their activities.

d. That if the Applicant is required to remove the encroachments at its own cost, it may bring a short motion to my attention to have the costs of removal determined by the Court.

[29] If the parties are not able to agree on costs, the Applicant may serve and file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 30 days of the release of this Decision, and the Respondents may file responding costs submissions on the same terms within a further 20 days. Costs submissions should be uploaded to Case Center and emailed to my Judicial Assistant at: Robyn.Pope@Ontario.ca

Justice R.E. Charney

Date: October 31, 2025