



COURT OF APPEAL FOR ONTARIO

CITATION: Weidelich v. de Koning, 2014 ONCA 736

DATE: 20141024

DOCKET: C58597

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Colin Weidelich, Shawn Boire, Cecilia Mo, Joe
    Gilinsky, Yvonne Gilinsky, Ken Baldin and Pam Leeworthy-Baldin

Applicants (Appellants)

and

Pieter de Koning and Rachna de Koning

Respondents
    (Respondents)

Harvey J. Ash, for the appellants

Rahul Shastri and David Winer, for the respondents

Heard: August 13, 2014

On appeal from the judgment of Justice David G. Stinson of
    the Superior Court of Justice, dated December 5, 2013, with reasons reported at
    2013 ONSC 7486.

Doherty J.A.:

[1]

This litigation arises out of a dispute between neighbours over a right-of-way
    that runs behind a block of six row houses on the south side of Cottingham
    Street in Toronto. Cottingham Street runs east to west. The respondents own the
    easternmost house in the block (No. 69). The appellants own four of the other
    houses (Nos. 71, 73, 77 and 79). The owners of the sixth home (No. 75) are not parties
    to the litigation.

[2]

Each of the six properties backs onto a private laneway. Six garages
    (one for each home) stand on the south side of the laneway. Entrance to the
    laneway runs south from Cottingham Street directly to the east of the
    respondents home. The laneway traverses lands owned by each of the six
    homeowners, and those lands are subject to a right-of-way described in each
    propertys title documents. For example, the respondents deed provides that their
    ownership is:

SUBJECT to a right-of-way in favour of the owners and occupants
    from time to time of [the other five properties]  over, along and upon  Part
    19  for the purpose of vehicular ingress and egress.

[3]

The part of the laneway that passes over the respondents property,
    identified as Part 19 in the deed, is 3.6 metres at its narrowest point. The
    laneway continues west onto the appellants properties where its narrowest
    point is 3.5 meters.

[4]

In 2012, the respondents began a home renovation (the Addition). They
    intended to add a three-story structure, an outdoor balcony on the second floor
    of the new structure, a ground floor patio, and an outdoor planter. The
    Addition was largely complete when this application was heard in November 2013.

[5]

The Addition encroaches upon Part 19. However, the right-of-way remains
    at least 4.4 metres wide wherever the Addition encroaches on it.  Schedule B of
    the application judges reasons depicts the right-of-way and the encroachment
    (the cross-hatched section).  I have appended a copy of that Schedule to these
    reasons.

[6]

The appellants applied for a declaration that the respondents not
    obstruct the right-of-way and sought an order requiring the respondents to
    remove all structures built on the right-of-way. They also sought a declaration
    that they had certain ancillary rights  for example, the right to use the
    right-of-way for snow removal.

[7]

The application judge found, at para. 11:

[T]he Encroachments caused by the Addition do not create a
    real or substantial interference with the use of the laneway for vehicular
    access: it remains as accessible and passable now as it was before the
    construction, subject to the obvious result that the portion of Part 19 on
    which the Addition has been constructed can no longer be driven over.
Despite
    that limitation, however, it is still possible for vehicles (including delivery
    trucks) to traverse across the remainder of Part 19 unimpeded for purposes of
    accessing the remainder of the laneway. [Emphasis added.]

[8]

The appellants do not challenge the finding that the respondents
    Addition does not affect the appellants ability to drive to and from their
    garages along the laneway. Counsel contends, however, that the encroachment is
    actionable even if it does not interfere with the appellants ability to use
    the right-of-way for the purpose identified in the deed. Counsel submits that
    the appellants have a right to use the right-of-ways entire width for the
    purpose of vehicular ingress and egress. He maintains that the erection of a
    permanent structure on any part of the right-of-way necessarily compromises the
    right granted because the appellants cannot pass over that part of the right-of-way.
    In counsels submission, the encroachments practical effect on the appellants
    ability to use the right-of-way for its granted purpose is irrelevant.

A: Is There An Actionable Encroachment
?

[9]

The application judge, referring to Canadian and English authority, found
    that there was not an actionable encroachment.  He held that an encroachment on
    a right-of-way is actionable only if there is a substantial interference with
    the use of the right-of-way as granted. Quoting from
West v. Sharp
(1999), 79 P. & C.R. 32 (C.A.), the application judge said, at para. 24:

There is no actionable interference with a right of way if it can
    be substantially and practically exercised as conveniently after as before the
    occurrence of the alleged obstruction.

[10]

I
    agree with the reasons of the motion judge. The authorities he cites and others
    fully support the conclusion that an encroachment on a private right-of-way is
    actionable only where the encroachment substantially interferes with the
    dominant owners ability to use the right-of-way for a purpose identified in
    the grant.
Gale on Easements
, 19th ed. (London: Sweet & Maxwell, 2012),
    the leading English text on the topic, puts it this way, at para. 13-06:

As regards the disturbance of private rights of way, it has
    been laid down that whereas in a public highway any obstruction is a wrong if
    appreciable,
in the case of a private right of way the obstruction is not
    actionable unless it is substantial
. Again, 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.
In Hutton v Hamboro, where the obstruction of a
    private way was alleged, Cockburn C.J. laid down that the question was whether
    practically and substantially the right of way could be exercised as
    conveniently as before
. [Emphasis added.]

[11]

Lord
    Cockburns language echoes through the English and Canadian case law: see, e.g.,
Clifford v. Hoare
(1874), L.R. 9 C.P. 362;
Pettey v. Parsons
,
    [1914] 2 Ch. 653 (C.A.), at 662, 665-6, 667-8;
Keefe v. Amor
, [1965] 1
    Q.B. 334 (C.A.), at 347;
Celsteel Ltd. v. Alton House Holdings Ltd.
,
    [1985] 1 W.L.R. 204 (Ch.), at 216-18, revd on other grounds, [1986] 1 W.L.R.
    512 (C.A.);
B & Q Plc. v. Liverpool and Lancashire Properties Limited
,
    [2000] E.W.H.C. 463, 81 P. & C.R. 20 (Ch.);
Devaney v. McNab
(1921), 69 D.L.R. 231 (Ont. C.A.);
Voye v. Hartley
, 2002 NBCA 14, 247 N.B.R. (2d) 128,
at
    para. 25;
Donohue v. Robins
, 2012 ONSC 2851, [2012] O.J. No. 2133, at
    para. 58;
Lester v. Bo
nd
, 2013 ONSC 7888, [2013] O.J. No. 6006,
    at paras. 30-33.

[12]

The
    requirement that the dominant owner prove substantial interference to maintain a
    claim reflects the nature of the dominant owners right. He or she does not own
    the right-of-way or the land upon which the right-of-way runs, but only enjoys
    the reasonable use of that property for its granted purpose. The dominant owner
    may only sustain a claim predicated on substantial interference with that
    reasonable use. The distinction is between the rights of ownership and the
    right of reasonable use for an identified purpose.

[13]

Lord
    Brett, in
Clifford v. Hoare
, focused on the distinction between the rights
    of ownership and the right of reasonable use for an identified purpose in
    explaining why a dominant owner had no claim even though a building encroached
    some two feet onto the 40-foot right-of-way:

[T]hat which is granted to the plaintiff by
    the conveyance of the 2nd of August, 1872, was, not a forty-foot road, nor the
    exclusive use of a forty-foot road; but a right to use it in common with
    others. He was to have an easement in the nature of an access or right of way
    over the road, by himself and his friends and servants, and nothing but an
    easement. If this were a grant of the road itself, any interference with the
    plaintiffs enjoyment of it would, no doubt, give a right of action. But all
    that is granted here is a right to a reasonable use of the road by the
    plaintiff in common with others, who have equal rights with him; and I am of
    opinion that no substantial interference with his exercise of that easement has
    been made out.

[Emphasis added.]

[14]

A
    court, when deciding whether an encroachment results in a substantial
    interference with the claimants use of the right-of-way, will have regard to
    the terms of the grant and the nature of the encroachment. The determination is
    a factual one and will turn on the specific circumstances of each case.

[15]

The
    significance of an encroachment depends on its impact on reasonable use. The dominant
    owner is entitled to every reasonable use of the right-of-way for its granted
    purpose. I would adopt as correct the inquiry captured in the following passage
    in
B & Q Plc.
, at 257:

In short, the test,  is one of convenience and not necessity
    or reasonable necessity, Provided that what the grantee is insisting on is not
    unreasonable, the question is: can the right of way be substantially and
    practically exercised as conveniently as before?

[16]

The
    facts of
Celsteel Ltd.
provide an excellent example of the proper
    application of the substantial interference test. In
Celsteel Ltd.
,
    the defendant lessee of the property decided to build a car wash that
    encroached on a right-of-way the plaintiffs used to access their parking
    garages. The defendant argued that the encroachment was not substantial as it related
    to one of the plaintiffs because, although the plaintiff would have to drive
    into and reverse out of the garage, contrary to his habit of reversing into and
    driving out of the garage, the plaintiff could still access his garage.

[17]

Scott
    J. acknowledged that either approach to garage entry and exit was reasonable. He
    went on, however, to hold that the encroachment was actionable. He said, at p.
    217:

In the present case the test is not, in my view, whether the
    means of access still possible is a reasonable means of access. The correct
    test is whether insistence by the third plaintiff [the holder of the
    right-of-way] on being able to continue to use the other means of access is
    reasonable. In my opinion, it is. I do not think it is open to the defendants
    to deprive the third plaintiff of his preferred means of entry to garage 52 and
    then to justify themselves by arguing that most other people would prefer some
    other still available means of entry. Such an argument might avail the
    defendants if the third plaintiffs preference was unreasonable or perverse. But,
    in my view, it is neither of these things.

[18]

The
    application judges unchallenged finding that the laneway remains as
    accessible and passable now as it was before the construction compels dismissal
    of the appellants claim.  Counsel for the appellants, however, makes three valiant
    attempts to escape the substantial interference requirement.

[19]

First, counsel submits that an encroachment by a permanent structure
    is a substantial interference whether or not the encroachment actually
    interferes with the dominant owners reasonable use.

The
    case law does not support that proposition. Several of the cases that have set
    down and refined the substantial interference requirement involve encroachments
    by permanent structures: see, e.g.,
Clifford
;
Celsteel Ltd.
;
B
    & Q Plc.
;

Devaney
.
    Moreover, the authors of the current edition of
Gale on Easements
do
    not distinguish between encroachments by permanent structures and other forms
    of encroachment onto private rights-of-way.

[20]

The
    appellants rely on
Albiston v. Liu
, [2013] O.J. No. 3685 (S.C.), which
    does draw the appellants desired distinction.

In
    that case, the trial judge held a trivial interference by a permanent structure
    may not be substantial if the defendant inherited the encroaching structure,
    but a trivial interference by a permanent structure is substantial if the
    defendant deliberately built on the right-of-way. This decision stands alone in
    relying on the deliberateness of the defendants conduct, rather than on the
    degree of actual interference, to define substantial interference. I think
Albiston
was wrongly decided.

[21]

The
    appellants also rely on
Chester v. Roch
(1975), 20 N.S.R. (2d) 536
    (S.C.), at para. 8, and, in particular, the trial judges reference on an extract
    from the text
Anger & Honsberger Law of Real Property
. The quoted
    reference supports the appellants contention that an encroachment by a
    permanent building is
per se
actionable.

[22]

Counsel
    has, however, fairly included the latest version of the same text in his
    materials: Anne La Forest,
Anger & Honsberger Law of Real Property
,
    loose-leaf, vol. 2, 3d ed. (Aurora: Canada Law Book, 2006), at 17:20.30(b). In the
    latest edition, the author accepts that interference with a private
    right-of-way is actionable only if substantial. She notes that if an
    obstruction is permanent, it may substantially interfere with the use of the
    right-of-way even if the actual interference is not great. I have no quarrel
    with this observation, insofar as it identifies the nature of the obstruction
    as relevant to the substantial interference inquiry.  However, given the
    application judges finding that the addition does not interfere with the
    appellants use of the right-of-way for its granted purpose, the commentary
    does not assist the appellants.

[23]

Counsels
    second argument rests on Middleton J.s reasoning, at p. 237 in
Devaney v.
    McNab
. His Lordship commented:

Where the thing that is complained of is the erection of a
    substantial and permanent structure upon the land over which the grantor has
    already given a right of way, it appears to me to be almost impossible to say
    that there is not a real and substantial interference with the right conveyed.

[24]

Anything
    said by Middleton J. deserves careful attention.
In the
    sentences immediately before the appellants cited passage, he writes:

It is well settled that the rights of the
    parties must be determined according to the true construction of the grant; and
    it is to be observed that the grant here is in the widest possible terms. It
    follows, I think, that the grantor must not derogate in any way from his grant.
    [Citation omitted.]


[25]

The
    right-of-way in
Devaney
was granted at all times and for all
    purposes. Middleton J. had to measure the effect of the encroachment on the
    right-of-way in the light of that very broad grant.  Given the broad purpose of
    the grant, he could not say that the obstruction (a fire escape projecting some
    three feet four inches into a 20 foot right-of-way) did not substantially
    interfere with any potential reasonable use of the right-of-way.

[26]

In
    my view, the analysis of Middleton J. is consistent with the substantial
    interference test described in the authorities cited above. Indeed, Middleton
    J. (and Latchford J. in a concurring judgment) relied on
Clifford v. Hoare
,
    one of the seminal cases in the significant interference line of authorities.

[27]

The
    third argument advanced by counsel relies on this courts judgment in
Spencer
    v. Sallow
, 2013
ONCA
98, 114 O.R.
    (3d) 226, leave to appeal refused, [2013] S.C.C.A. No. 174.
Spencer
involved a motion brought by a land surveyor to rectify a mis-description of a
    right-of-way contained in a reference plan registered on title under the
Land
    Titles Act
,
R.S.O. 1990,
    c. L-5. The appeal turned on the appellants right to a rectification order.

[28]

At
    para. 50 of his reasons, the Chief Justice observed that the territorial limits
    of easements, including rights-of-way, are boundaries in every sense of that
    word. Counsel relies on this passage to support the contention that the
    encroachment in this case was actionable.

[29]

I
    have no difficulty accepting the Chief Justices observation about the nature
    of a right-of-ways boundaries. However, this case is not about defining the
    boundaries of the right-of-way. They are clearly delineated in the deed and are
    not in dispute. Nor is there any dispute that the respondents Addition
    encroaches over the boundary line onto the right-of-way. The sole issue here is
    whether that encroachment is actionable. Nothing in
Spencer
assists in
    that determination.

[30]

The appellants have not persuaded me that encroachment by a
    permanent structure is actionable absent actual, substantial interference with
    the granted right. On the trial judges factual findings, the appellants cannot
    meet that burden.

B: The Ancillary Rights Claim

[31]

The
    application judge indicated, at para. 28, that the only ancillary right pressed
    by the applicants at argument concerned snow removal and that the respondents
    had conceded a right to use the right-of-way for the purpose of snow removal. Although
    the application judge indicated he would make a declaration to that effect, the
    judgment makes no reference to any ancillary rights, but simply dismisses the
    application in its entirety.

[32]

In
    their factum, the appellants reasserted a claim to various ancillary rights. The
    respondents argued against any declaration concerning ancillary rights in their
    factum. Neither party said much about ancillary rights in oral argument.

[33]

Ancillary
    rights are those that are reasonably necessary to the enjoyment of the right-of-way
    granted:
Fallowfield v. Bourgault
(2003), 68 O.R. (3d) 417 (C.A.), at
    para. 11.  The determination of the existence and scope of any claimed
    ancillary right is a factual one.  This record does not admit of the kind of
    factual inquiry necessary to essay a definitive declaration as to any ancillary
    rights associated with the appellants use of their right-of-way.  If
    disagreements arise in the future, hopefully common sense and neighbourly
    goodwill will find a solution.  If not, the court will have to settle the
    dispute by reference to the specific facts revealed by the evidence.

C:      CONCLUSION

[34]

For
    the reasons set out above, I would dismiss the appeal. As agreed between the
    parties, the respondents, as the successful party on appeal, are entitled to
    their costs fixed at $12,000 inclusive of disbursement and relevant taxes.

RELEASED: October 24, 2014 (D.D.)

Doherty J.A.

I agree John Laskin J.A.

I agree Gloria Epstein J.A.








