Reasons for Judgment

Court File No.: CV-24-00728024
Date: 2025-04-25
Ontario Superior Court of Justice

Between:
Figaro Dominion Ltd. and Figaro Gate Ltd., Applicants
and
The Incumbent and Churchwardens of St. Nicholas' Church and Nova Ridge Development Partners Inc., Respondents

Appearances:
Howard D. Gerson, for the Applicants
Christopher Cosgriffe, for the Respondent Nova Ridge Development Partners Inc.
Kevin Sherkin and Mitchel Lightowler, for the Incumbent and Churchwardens of St. Nicholas' Church

Heard: January 10, 2025

Papageorgiou J.

Overview

[1] The Applicants are commercial landlords who together own 1450, 1458, 1462, 1466 and 1472 Kingston Road (the “Figaro Properties”), all on Plan M-588. They have nine tenants.

[2] There is a right-of-way over a laneway (the “Laneway”) that the Applicants enjoy “in common with others entitled thereto” (the “ROW”).

[3] The two Nova Ridge Manderley Respondents are developers (the “Developer”) who own 1478 to 1496 Kingston Road on Plan M-588 (the “Development Lands”). They benefit from the same ROW. They are building a 12-storey condominium tower on their neighboring properties.

[4] The Respondent Church (the “Church”) has owned the property burdened by the ROW since 1967.

[5] On September 17, 2021, the Church entered into a “Tie Back Construction and Crane Swing Agreement” (the “Agreement”) with the Developer, which licensed the Developer to use the Laneway as a “construction staging area” to store materials, supplies, and equipment; to install a site trailer; erect site fencing; and to park. The Developer paid the Church $67,000.

[6] The Applicants say that the Developer’s actual use of the Laneway infringes the ROW. The Church agrees.

[7] The Applicants have joined the Church as a necessary party and contend that the Church should have taken greater steps against the Developer. They, however, do not seek any relief against the Church.

Decision

[8] For the reasons that follow, I grant a permanent injunction restraining the Developer from allowing its delivery trucks and workers to obstruct the Laneway. I also grant a permanent injunction restraining the Developer’s construction workers from parking in the spots directly behind the Applicants’ units. Further, if the Applicants contact the Developer to advise that any such delivery trucks or workers have indeed blocked passage over the Laneway or that its construction workers parked directly behind the Applicants’ units, the Developer shall request that they move within 5 minutes. The definition of blocking passage over the Laneway is by failing to leave a passage of 4.25 meters in width.

Issues

• Issue 1: Do the Developer’s activities infringe the ROW?
• Issue 2: Have the Applicants demonstrated injury?
• Issue 3: Should the court grant a permanent injunction, and if so, what particular injunction should it grant?

Analysis

Issue 1: Do the Developer’s activities infringe the ROW?

[9] I am satisfied that the Developer’s activities infringe the ROW.

The Law

[10] The test for determining whether conduct infringes a right-of-way is the “substantial interference” test, which requires the consideration of “whether practically and substantially the right of way could be exercised as conveniently as before” the interference (Weidelich v. de Koning, 2014 ONCA 736, para 10).

[11] This requires consideration of the reasonable use that the dominant owner benefitted from prior to the alleged obstruction and if the right-of-way can be substantially and practically exercised as conveniently as before. This is a fact-driven inquiry and focuses on the interpretation of the instrument creating the easement according to the intention of the parties based on the words they used in the context of the circumstances that existed when the easement was created (Weidelich, paras 15, 33; Wilson v. McQuade, 2022 ONSC 847, paras 28, 36, 46; Fallowfield v. Bourgault, para 33; Markowsky v. Verhey, 2020 ONCA 471, paras 26-28).

[12] The easement does not exist in the abstract. It is granted for a purpose (Khazai v. Disante, 2020 ONSC 2152, para 21).

[13] A party “is not precluded from placing chattels or erecting a fence or gate on an easement, as long as what is done does not substantially interfere with the other party’s use of the easement that was granted” (Fallowfield, para 33). A party is not even precluded from building permanent structures on an easement as long as this does not substantially interfere with the use of the easement (Weidelich, paras 20-26). Notably, this would apply to the servient tenement who owns the property on which the easement exists. This law would not mean that a party who benefits from the easement (and who does not own the land) can build structures on the easement that do not comply with the purpose of the ROW, absent agreement from the servient tenement.

[14] If the obstruction is fleeting and remedied promptly upon request, it will not likely result in damages. However, parties enjoying a right-of-way over a laneway should not obstruct it without the permission of the other, except for the brief obstruction that is inevitable when a party is using the laneway to access their property (Khazai v. Disante, para 40).

The Laneway

[15] The following survey shows the ROW and the parties’ properties.

[16] The Developer’s lots are along the right-hand bottom side. The Applicants’ lots are along the left-hand bottom side. The ROW is the space above these lots outlined in yellow.

The Language of the Grant

[17] The original wording of the ROW, granted on September 21, 1949, was as follows:

Together with a right of way in common with all others entitled thereto including the Grantee, his executors and assigns, and his servants, his agents, tenants and occupants of the said lands and premises in, over, along and upon Block “A” as shown on said Plan, M.588 and for the purpose of parking motor vehicles thereon by anyone doing business with the grantee.

[18] It is uncontradicted that the ROW was misdescribed when the easement was put into the Land Title System such that it was recorded as follows:

T/W A ROW IN COMMON WITH ALL OTHERS ENTITLED THERETO IN FAVOUR OF THE GRANTEE, THEIR SUCCESSORS AND ASSIGNS THEIR SERVANTS, WORKMEN, AGENTS, THE TENANTS AND OCCUPANTS OF THE SAID PROPERTY & ALL OTHERS DOING BUSINESS WITH HIM OVER, ALONG & UPON BLK "A" PL M588; T/W A RIGHT IN COMMON WITH ALL OTHERS ENTITLED THERETO TO THE USE OF SAID BLK "A" FOR THE PURPOSE OF PARKING MOTOR VEHICLES

[19] There is one significant difference in the wording. The misdescribed ROW included “workmen” which is not in the original wording. The Church intends to bring an application to the Land Registrar to correct same.

The Past Use of the ROW

[20] The Church gave evidence that historically the ROW was used as a parking space for the tenants of the various lots entitled to use it pursuant to the easement. At the time when the land was first developed, based upon Church records, the unit currently used as a Dollarama, was a Loblaws with the ROW being used for parking presumably for store customers and staff.

[21] This is the only evidence relating to the use at the time of the grant of the easement. There is no evidence that the ROW was ever historically used to service the construction of a 12-storey building, with all that entails, or the kind of usage being made by the Developer.

[22] I also infer that at the time of the grant, the lots were commercial lots and the ROW served these businesses. I say this because the language of the grant makes a reference to those doing business with the easement holders.

The Scope of the ROW

[23] The language of the original grant includes passage “over, along & upon” the easement and “the parking [of] motor vehicles”. This language appears in the original wording as well as the misdescribed wording.

[24] Given the broad wording and language of the grant and the fact that the easement served commercial properties, I conclude that the ROW permits the Applicants and the Respondents and their tenants, agents, servants and occupants, and those with whom they do business to drive over the ROW and also park on it. This would logically include their employees, customers and suppliers.

[25] Further, as the ROW served commercial businesses, I agree that the ROW permitted those who benefitted from it, to receive deliveries within the ROW. Notably, because of the significant width of the ROW at the time it was made, the receipt of deliveries would not have included disruption of passage over the ROW. This is because the ROW was so wide when made (approximately 13 meters or 42 feet at the narrowest point according to the Developer), that even if a delivery truck stopped for hours, I infer that it would not have obstructed passage.

[26] Given the nature of the property in question, I also accept that the ROW permitted the owners and their tenants to park directly behind their units. This makes logical sense given that these were businesses lined up in a row. It is implicit that if there were parking spots directly behind the units in question, those spots would be for those owners or their tenants etc. who would arrive at the beginning of the day before customers parked to frequent these businesses. This is the logical way that the grant of the easement would have been used at the time it was made.

[27] In my view, the ability to park directly behind the units and the ability to receive deliveries are ancillary to the ROW. These are reasonably necessary to the enjoyment of the ROW of a commercial property (Weidelich, para 33).

[28] However, I do not find that the ROW includes the ability of the Developer’s “workmen”, or construction workers, to use the ROW and park their cars there. This is an important point because the Applicants’ complaint relates to the Developer’s workmen who are not covered by the ROW. It is uncontradicted that the word “workmen” was mistakenly placed into the ROW and as noted the Church intends to bring an application to fix this. As noted, there is no evidence that at the time of the grant there was any ongoing construction with construction workers frequenting the ROW and parking there. Servants typically means employees. Tenants means those who rent the premises. Agents could mean things like plumbers or others servicing the units. I disagree that agents at the time of the grant would have been understood to include construction workmen engaged in the kind of significant work being done, because there is no evidence of any such usage at the time.

The Applicants’ Use of the ROW

[29] The Applicants’ tenants, and the tenants’ employees and customers, benefit from the ROW to park, to access the rear of the Figaro Properties (i.e., from Warden and Manderley), and to receive deliveries. The Applicants’ tenants are Dollarama, Little Bugs Nursery, Vintage and Antiques, Sisaket Thai Kitchen, and Birchcliff Convenience Store. Little Bugs Nursery uses the ROW for the drop off and pick up of children in the morning and evening.

The Manner in Which the Applicants say the Developer’s Use Causes Substantial Interference

[30] The Applicants provided evidence from the property manager, Mazian Ahanin, two commercial tenants, and the Church (the servient tenement), all of whom have provided evidence supporting the conclusion that the Developer’s use substantially interferes with the Applicants’ use of the ROW as follows:

• The Developer has used the Laneway for a construction staging area, construction access, a site office, and the storage and delivery of materials and construction equipment including a large crane. This has substantially reduced the usable parts of the ROW.
• The Developer has put up a fence along 1/3 of the ROW substantially narrowing it.
• The ROW used to be approximately 13 meters at its narrowest before but it is now approximately 4.25 meters at its narrowest as a result of the staging area and fence.
• The Developer has permitted construction workers to park their cars along the Laneway. The Applicants’ tenants used to park their vehicles behind their units but they often cannot do so because construction workers park directly behind their units. When one tenant approached these workers, who have spots they can use designated by the Church, the workers said they could park wherever they want. However, other parts of the ROW are mucky and it is easy to get stuck. One tenant has been forced to park on the road rather than the Laneway at times.
• The tenant that operates Little Bugs daycare says that she has personally witnessed unauthorized parking and other activities have interfered with the drop-off and pick up of children. She has contacted the Developer who has ignored her complaints. She knows that these individuals were the Developer’s workers because she has seen these individuals walk by foot to the construction site. She has also asked these workers not to park there to no effect. [1]
• The Developer’s delivery trucks obstruct the Laneway by lining up to load and unload materials at the construction site on the east end of the Laneway.
• The Developer’s contractors and their workers litter on the Laneway, resulting in tenants having to pick up trash.
• The Developer’s construction vehicles interfere with traffic on the Laneway.
• The property manager says that ongoing construction activities and parking make passage along the Laneway only intermittently possible.
• The Applicants have provided specific examples where the ROW has been completely blocked sometimes for several hours by the Developer’s activities.
• There are pictures, video stills, and complaints taken at various points in time that support these concerns.
• The tenants, Little Bugs and Dollarama, have made recent complaints outlining the above issues and indicating that this is damaging their respective businesses.
• On one occasion, when the property manager tried to record the interference, he was subjected to abuse. While he was photographing a large container in the middle of the Laneway, one of the Developer’s workers tried to grab his phone and then followed and berated him while photographing his car’s license plate. Since this incident, he has only taken pictures from inside his car to avoid conflict.

[31] The Church has also provided affidavit evidence outlining issues caused by the Developer and its efforts to have the Developer comply with the Agreement. In summary, it has provided examples of concerns raised in respect of the Developer’s activities.

[32] The Church confirms its position that the Developers are in breach of the Agreement and the ROW. The Agreement with the Church specifically stated that the Developer’s use would be “limited to only a portion of the rear lane forming part of the North Lands and shall not prohibit or prevent ingress and egress thereover to all persons requiring the use of the laneway and provided that the said lane shall at all times be able to continue to service the properties having the use thereof.”

[33] To contradict the above, the Developer has provided only an affidavit of Brett Llewellyn-Thomas, its Vice President, who gave evidence saying that these things are not happening. At the beginning of his affidavit, he states that he has been involved with the development on an almost daily basis and as such has knowledge of the matters. He also states that he is responsible for managing all contracts, consultants and groups working on the development. He did not describe what his role is in terms of whether this involves being on the site or in some other capacity in an office off-site. In that regard, Mr. Llewellyn-Thomas also states that “admittedly I am not at the construction site all the time that construction is taking place” but that he has not “observed” and was not aware of any alleged persistent and regular blocking-off of the Laneway or ROW. He provided no evidence as to how often he is at the site or how he informed himself of what is occurring or not occurring there. He did not indicate that he had made inquiries or that he spoke to workers or management on site to inform himself.

[34] The Applicants raised concerns about the quality of the Developer’s affidavit evidence. They argued that parts of this affidavit should be struck for a variety of reasons, but they did not bring a motion to strike. As such, I do not strike any paragraphs of the Developer’s affidavit.

[35] The Developer also criticizes the Applicants’ evidence because not all the tenants have provided affidavits. However, the absence of some tenant evidence does not mean that those who have given evidence have not validly documented the issues that are occurring.

[36] Overall, the Developer’s evidence is not as persuasive as the tenants’ and property manager’s evidence. Their evidence is based upon things they have actually seen or experienced and the tenants are on site too.

[37] The evidence of Mr. Llewellyn-Thomas being unaware of something, does not contradict direct evidence of what these witnesses saw, and experienced, particularly since he does not indicate whether and how he informed himself and not even whether he asked anyone on site about the specific issues and interactions raised by the Applicants.

[38] The Developer could have, but failed to, provide evidence from someone who is always or mostly there, (e.g. the site manager) or at least usually on the site, and who could better contradict the Applicants’ evidence of specific interactions and observations. It references the general contractor Wilkinson Construction Ltd. and yet provides no affidavit from it and no evidence on information and belief as to what if anything, Wilkinson has said about these issues.

[39] While Mr. Llewellyn-Thomas baldly states that none of his sub-trades park in or use the west end of the Laneway, he does not provide any basis for this belief. Again, he does not indicate that he has made inquiries, whereas the Applicants’ evidence includes specific references to construction workers. Although the workers are not individually identified, which is another complaint raised by the Developer, the only construction happening in the Laneway on this record is the Developer’s construction.

[40] The images taken on various occasions show that the construction workers wear bright red and yellow vests. Therefore, I infer that the tenants and the property manager would have been able to identify who were the construction workers based on these very prominent vests. Therefore, I infer that the construction workers they identified as parking on the Laneway are the Developer’s construction workers.

[41] As well, the property manager gave evidence that he spoke with the Developer’s site manager who told him that the Developer was entitled to use the space and that it refused to take any steps to address the Developer’s use of parking spaces or to prevent Laneway blockage. This has not been contradicted and there is no affidavit from the site manager. Notably, the property manager did not say that the site manager denied that its sub-trades used the space to park, or that they were not blocking the ROW at times, even though Mr. Llewellyn-Thomas baldly states they don’t. Had they not actually been using the space for parking as Mr. Llewellyn-Thomas states, or not actually blocking it at times, then one would have expected that to be the response from the site manager instead of a refusal to take steps to address the concerns. Mr. Llewellyn-Thomas could have asked the site manager if this interaction occurred and did not even do this. Therefore, this evidence from the property manager is uncontradicted.

[42] Much of the Applicants’ evidence is uncontradicted and it is no answer to say that it could not be because the names of individuals were not set out. The Developer knows who its workers are. It could have made inquiries and provided evidence of the results or even direct evidence from its workers denying that any of them have been involved in any of the interactions set out.

[43] The Developer emphasizes the width of the Laneway, at any particular point, which it says is still 4.25 metres in width at its narrowest point even taking into account the fence and the staging area. Although the Applicants complain that there is nothing supporting this width, the Applicants did not do their own measurements. Therefore, I accept the Developer’s evidence on this even though it is bald. It points out that the City of Toronto has published guidelines for how wide a lane has to be which is between 3 and 3.5 metres which means the Laneway is wide enough even at its narrowest point to allow a car to pass.

[44] The Developer fails to appreciate the Applicants’ position and evidence. The Applicants concede that the Laneway is still wide enough for a car to pass even with the Developer’s staging area. The Applicants’ position is that it is the combination of the narrowing of the Laneway and construction activities, movement of trucks, positioning of trucks and the lining up of cement trucks to deliver materials, that results in substantial and practical interference with the ability of cars to pass at various points in time and also park.

[45] The Applicants have recorded occasions when the combination of the various features of the Developer’s activities have completely blocked the Laneway. I agree that the Applicants are not required to provide evidence that each day for 24 hours, the Laneway is blocked. In my view, it has provided sufficient evidence that at various points at time, the Developer’s use completely blocks the ROW and any passage through it.

[46] The construction site is in a constant state of flux and sometimes there are problems that last minutes or hours. Examples of times where there are no problems do not displace the evidence of the times when problems do exist. I accept the Applicants’ evidence that these are not isolated and fleeting instances but represent regular and ongoing occurrences. Although the Developer focuses on photographs and says there is no evidence as to how long the Laneway was blocked, as noted above, the Applicants provided evidence that some of these blockages lasted several hours in their affidavits.

[47] The Applicants and their tenants are businesses. Being subject to unpredictable and complete blockage of the ROW at times, over the lengthy period of this construction cannot be considered fleeting. It affects their business and it is the unpredictability that is significant in my view.

[48] I also reject the Developer’s position that the problems were only caused by municipal infrastructure improvements being carried out on Lynn Road and Manderley Drive. This closure was from July to August 2024, and the Applicants’ evidence relates to a time period greater than and after this.

[49] Although the Developer has provided evidence that a large orange truck in some of the photos does not belong to it, the Applicants placed this evidence in the record before it knew that this truck did not belong to the Developer. The Developer focused on this at the hearing, even though the Applicants did not reference this evidence after learning that the truck was not the Developer’s.

[50] The fact that there may be isolated instances when unidentified parties have improperly used the ROW does not mean that the Developer’s activities have not also blocked the ROW and impeded parking and thoroughfare.

[51] Furthermore, even if other vehicles unrelated to the Developer have caused problems at times, it is unlikely that such vehicles would have caused problems in the absence of the significant reduction in the width of the ROW which is because of the Developer. Recall it has been reduced from 13 meters (42 feet) at the previous narrowest point to approximately 4.25 meters at the current narrowest point. Therefore, the Developer’s narrowing of the ROW is still the cause of the problems caused by other vehicles. That is, if the ROW was 13 meters (or 42 feet) wide and a car or truck improperly parked, it was unlikely that it would have obstructed the ROW. The reason it does so now is because the ROW has already been so significantly reduced in width by the Developer.

[52] Further, as noted, the grant must be construed in light of the situation of the property and the surrounding circumstances, in order to ascertain and give effect to the intention of the parties. There is no evidence that at the time of the grant anyone was storing construction materials or constructing fences that narrowed the Laneway, using the Laneway for extensive parking for construction workers, or that there were any of the kinds of items placed in the middle of it, or that there was any usage by another party that had a right to the easement similar to what the Developer has engaged in.

[53] I also reject the Developer’s argument that the easement grant includes a right to park on its behalf and that that right extends to its workers. As I have found, “workmen” is a mistranscription in the easement. The original grant does not include “workmen”. There is also no evidence that at the time of the grant, “workmen” were using the ROW to park. Therefore, the Developer’s workmen are not permitted to park within the ROW according to the terms of the grant at all.

[54] If the Developer was permitted to do what they are now doing based upon the wording of the grant of the easement, they would not have needed to enter into the Agreement with the Church.

[55] In fact, the right of the workmen to park is something set out in s. 4(b) of the Agreement and specifies that such workmen are permitted to park during the week and not weekends “using the parking pad area within the North Lands.” What is set out in the Agreement is the only place the construction workers can park since the workmen do not benefit from the ROW. Therefore, the construction workers may not lawfully park directly behind the Applicants’ units even if the ROW did not give the Applicants and their tenants ancillary rights to park directly behind their units. They may only park on the parking pad.

[56] Thus, I reject the argument that the ROW expressly permits the Developer to engage in these activities.

[57] Furthermore, even if the Developer’s activities were permitted by the ROW, the law is clear that the grantee of a right-of-way may not exercise his right in such a manner as to dominate the right-of-way to the exclusion of the owner of the servient tenement, and others having a like right-of-way (Soares v. Café Regional Bar & Grill Inc., 2013 ONSC 7939, paras 54-57, 61; Richardson v. H.G. Meyers Co., [1974] OJ No 274 (H.C.J.), para 16; Bridgman v. Loblaws Groceterias Co. Ltd., (1929), 35 O.W.N. 353, aff’d 36 O.W.N. 214 (Div. Ct.), paras 6, 9, 11-12; Anthony et al v. F. W. Woolworth Co. Ltd., para 4).

[58] The case Woolworth is particularly relevant. The plaintiffs sought an injunction and damages for unreasonable obstruction of a right of way. All the litigants were commercial users of their properties. The defendant permitted the lane to be stopped or blocked for unreasonable periods of time by motor vehicles, trucks and transports loading and unloading merchandise to the premises. The court held that while the defendant had the right to have trucks come over the right of way and load and unload them, it could not allow their trucks to so use the lane in a manner that others who had the right to pass over it were deprived of their rights. He found that allowing the use in this manner for an unreasonable length of time which blocked the right of way was a real and substantial interference with the rights of the plaintiff and their tenants: paras 2, 6.

[59] This is because even where a right-of-way permits users to load and unload parked cars to receive deliveries to a premises, that right will be subject to the rights of others to use the roadway, and trucks cannot remain for unreasonable lengths of time (Woolworth, paras 2, 6).

[60] See also Bridgman where the court held that the defendant’s use of the lane, not only as a way but by occupying it with trucks who unloaded materials for varying periods of time that ranged from five minutes to an hour or more constituted substantial interference with an easement. The court stated:

A right of way is not a right to tarry; and though the doctrine of de minimus would, no doubt, prevent the general principle that interference with a right, however small, creates a cause of action, from being pushed to an absurd extremity, a right of way does not imply a right to occupy and obstruct a servient tenement for such periods as are indicated by the evidence in this case…: para 11.

[61] The Developer also argues that the Applicants are taking the position that they have better rights pursuant to the ROW than the Developer. This is not borne out by the evidence, which does not show the Applicants engaging in any kinds of activities restricting the Developer’s rights under the ROW.

[62] While it is accepted that redevelopments are a fact of life and that Toronto is evolving, that does not mean that this public interest permits developers to substantially and practically interfere with rights of way in the process of their activities.

[63] 3177719 Manitoba Ltd. v. Banquet Barons Inc and Winnipeg City (1996), 1996 18135 (MB KB), is not relevant because while it involved a reduction in surface parking which was found not to be substantial interference, the case before me does not involve a mere reduction in parking. As well, the construction workers do not benefit from the ROW here and are not permitted to park anywhere within the ROW pursuant to the Agreement but in a defined spot.

[64] I also reject the argument that the decision in Weidelich is similar. In that case, the Court did find that even though the respondent built an addition to their property that encroached on a private right of way, the right of way remained 4.4 metres wide with the encroachment. That was the case of a single encroachment that did not involve all the additional activities that have combined here to substantially interfere with the Applicant’s Laneway use by blocking it completely at times.

[65] In Weidelich, the court specifically found that the right of way was still accessible and passable as before which is not the case consistently in this case. Another distinction is that the party who built the addition was the servient tenement who owned the property burdened by the easement and it was not a business property. Here, the Developer has no ownership of it and it could not build and place things on it like the staging area absent the agreement of the Church. And the Agreement with the Church requires the Developer’s activities to not impede passage or otherwise interfere with other’s rights to use the ROW.

[66] On a balance of probabilities, I find that the Developer’s activities substantially interfere with the Applicants’ use of the ROW, such that it cannot be exercised as practically and conveniently as before the Developer’s activities. The particular issues are the workmen parking within the ROW impeding the ability of the Applicants and their tenants to park, and the blocking of the ROW completely at times so that there can be no passage during such periods.

Issue 2: Has the Applicant demonstrated any injury?

[67] An encroachment or interference on a private right-of-way is actionable only where the encroachment causes injury (Weidelich, para 10), per Doherty J.A., quoting Gale on Easements, 19th ed. (London: Sweet & Maxwell, 2012), the leading English text on the topic:

…it has been said that for the obstruction of a private way the dominant owner cannot complain unless he can prove injury; unlike the case of trespass, which gives a right of action though no damage be proved.

[68] The Developer argues that the Applicants have not demonstrated any injury. While their tenants have complained, they have not led evidence that they have lost any money and tenants have not terminated their leases.

[69] However, the Applicants have provided multiple authorities that show that the nature of the injury need not be that a party suffers damages in the usual sense of monetary damages.

[70] In Woolworth, the court found that the neighboring property owner who also enjoyed rights under the ROW had substantially interfered with the plaintiffs’ right of way by blocking a laneway while loading and unloading trucks.

[71] In Soares, the court adopted the reasoning in Woolworth enjoining neighboring commercial property owners from parking vehicles on a laneway to load and unload goods, interfering with the plaintiff’s right of way: at paras. 56-57 and 61.

[72] In Wilson, the court held that the installation of a wood fence and an unlocked metal gate prevented the applicant from accessing her cottage as practically and conveniently as before: at paras. 47, 50-52, and 56.

[73] In Nolet v. Granger, 2024 ONSC 3134, paras 37-38, found that an unlocked gate across a lane substantially interfered in the plaintiff’s right-of-way.

[74] The Applicants have demonstrated a sufficient injury which is consistent with the cases above where the courts have awarded injunctive relief. They have received ongoing complaints from their tenants. They have had to address these complaints. This is why the Applicants are in court; because the injury to the tenants flows right up to the Applicants who are the lessors and who are obliged, as landlord, to address concerns that the tenants have about the premises they have leased.

Issue 3: Should the court grant a permanent injunction, and if so, what particular injunction should it grant?

[75] The Developer argues that even if there has been a substantial interference with the ROW, ordering a permanent injunction of the sort requested is onerous and the Applicants have not satisfied the test set out in 171181 Ontario Ltd. (Adline) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, para 79, quoting Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, paras 27-28. For this type of final injunctive relief, the test requires that: 1) a party establish its legal rights; and 2) that the court determine that a permanent injunction is an appropriate remedy.

[76] A permanent injunction is “available only when truly necessary to ensure that a party is not deprived of his or her rights” (Buckley, para 86).

[77] The Developer also argues that this court should still consider the RJR-MacDonald test for interlocutory injunctions, as per para. 79 of Buckley, where the court quoted the following from Cambie Surgeries: “some of the evidence that a court would use to evaluate those issues [irreparable harm and balance of convenience] on an interlocutory injunction application might also be considered in evaluating whether the court ought to exercise its discretion to grant final injunctive relief.” This does not mean that the RJR-MacDonald test is applicable, but that evidence of the relevant harm to the parties could be taken into account in considering the appropriateness of the injunction.

[78] I have already addressed the Applicant’s legal rights.

[79] Turning to the appropriateness of the injunction, I set out here the precise nature of the permanent injunction sought:

a) enjoining the Developer from encroaching onto and obstructing the Applicant’s registered right of way.

b) enjoining the Developer from encroaching onto and obstructing the parking areas forming part of the lane used by the Applicant and its commercial tenants for vehicular tenants and vehicular parking.

c) requiring the Developer to remove its construction office, construction equipment, and material stored on the Laneway.

[80] With respect to c), the Developer points out that the construction is projected to be complete by June 2025, weather permitting. The construction staging area as well as the fenced in area have been there since the outset. The Developer receives deliveries into the staging area. There is a hoist that supports an external elevator that is used to transport construction materials up the condominium.

[81] It argues that it is manifestly unfair for the Applicants to seek this permanent injunction that would effectively stop or significantly delay its construction since these items have been there since the outset in 2021, and the Applicants did not raise any issues until the fall of 2024.

[82] To address the delay argument, the Applicants argue that the issues experienced by its tenants are recent as the problems presented by the Developer escalated in 2024. The recent escalation is supported by some of the affidavits, but the proprietor of Little Bugs says she has been complaining since 2022.

[83] I agree in the circumstances the delay, as well as the closeness of the completion, militates against any permanent injunction requiring the Developer to remove these items. This would impact the Developer’s ability to complete the project on schedule and it is unclear how materials could be delivered if they were. I agree that after waiting almost three years to bring the Application, it would be manifestly unfair for the construction of the condominium to be impeded in this way when it is so close to completion.

[84] Furthermore, the Applicants have not established that the presence of these, on their own, are the problem. Their argument is that it is the combination of these as well as the parking and the way that the Developer is using the space, outside the staging area, that creates the substantial interference. It is an admitted fact that even with these items in the ROW, as well as the fenced off area, there would still be sufficient space for the Applicants, their tenants and customers to pass through, but for some of the other activities of the Developer.

[85] With respect to a) and b), the Developer has a ROW over the Laneway as well. A permanent injunction enjoining the Developer from encroaching onto the ROW or from using it for parking would mean that the Developer could not use it at all which would violate its rights in respect of the ROW.

[86] Further, the injunctions sought are vague; the parties could end up coming to court on a regular basis arguing that a given act did or did not obstruct or violate the injunction.

[87] These requested injunctions are not like the kinds of cases where a clear direction was made, for example, to simply remove a gate.

[88] As well, many of the problematic items have been removed. The concrete deliveries are all complete and the crane was permanently removed on September 16, 2024. There were concerns about a large pile of dirt obstructing passage, and this was also removed. Mr. Llewellyn-Thomas gave evidence that the Developer has verbally communicated with sub-trades and other trades that they could not park in certain areas. Since the beginning of October 2024, one of its sub-trades has installed signs directing where deliveries should be brought, and that certain areas of the Laneway are reserved for exclusive parking of specific tenants of the Applicants.

[89] The Developer has taken these steps but the Applicants and their tenants are businesses. They have had to come to court to achieve these results and there is no guarantee that there will not be further blockages or improper parking. Therefore, I grant the following injunctions.

[90] I grant a permanent injunction restraining the Developer from allowing its delivery trucks or other vehicles, to obstruct the Laneway during business hours from 7:00 am until 6:00 pm. I am estimating this as there is no evidence before me on business hours and the daycare may have early and late hours. If this is not the correct estimate, the parties may write to me concerning this, and I will consider whether the time should be changed.

[91] For the purpose of this order, the definition of obstructing the Laneway is the failure to leave a passage of 4.25 metres in width through which cars can pass. This is the width that the Developer says is still available at the narrowest point despite the items it has placed within the ROW.

[92] I grant a permanent injunction restraining any of the Developer’s workers from parking directly behind the Applicants’ units. As I have said, the ROW does not cover workmen, but the Developer does have the agreement from the Church that its workmen can park within the ROW, but only within the paved parking pad. For this reason, I am limiting this injunction to the spots directly behind the Applicants’ units. The parties may provide me with the specifics of how to describe this in the order.

[93] Further, if the Applicants contact the Developer to advise that any such delivery trucks or construction workers have indeed blocked the Laneway or parked within spots directly behind the Applicants’ units, I grant a permanent mandatory injunction requiring the Developer to direct that such delivery trucks or parked cars move within 5 minutes. Even though these may be third parties, they are there delivering items at the request of the Developer, or they are there because of the Developer, who thus should be in a position to request or direct that they move.

[94] If there are any issues, the parties may return before me on an urgent basis.

Costs

[95] I encourage the parties to settle costs and not expend more resources on cost submissions.

[96] If necessary, however, the parties may make submissions on costs as follows, the Applicants and Church within 10 days and the Developer within 5 days thereafter. Submissions shall be no longer than 4 pages.

[97] At the conclusion of the hearing the Church argued that it has a right of indemnification in its Agreement with the Developer. I ask the parties to address this and whether I can make a costs order in favour of the Church based on the Agreement absent any cross application or motion.

Papageorgiou J.
Released: April 25, 2025

Note

[1] Bromsgrove raised an issue regarding the evidence from Little Bugs because Little Bugs operates the daycare out of 1458 Kingston Road and 1448 Kingston Road. 1448 Kingston Road is not owned by the Applicants and there is no ROW associated with 1448 Kingston Road. This does not affect the evidence she has given because 1458 Kingston Road does have the ROW as part of the Applicants’ properties and in any event, she could provide evidence of what she had observed occurring within the ROW even if she did not have rights associated with the ROW as a witness.