Drumonde v. Moniz, (1997) 105 O.A.C. 295 (CA)

• Judge: Abella, Austin and Charron, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 01, 1997
• Jurisdiction: Ontario
• Citations: (1997), 105 O.A.C. 295 (CA)

Drumonde v. Moniz (1997), 105 O.A.C. 295 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. DE.045

Antonio Drumonde (plaintiff/respondent) v. Nicolau Moniz and Dionisia Moniz (defendants/appellants)

(C19348)

Indexed As: Drumonde v. Moniz

Ontario Court of Appeal

Abella, Austin and Charron, JJ.A.

December 1, 1997.

Summary:

The defendants appealed from a judgment enjoining them from erecting a fence in their backyard on the boundary line between their property and the property next door.

The Ontario Court of Appeal allowed the appeal.

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - Drumonde's son entered Moniz's property when he turned his "larger" car around to proceed frontwards on a drive­way on which Drumonde and Moniz had a right of way - Moniz wanted to stop this by erecting a fence - Drumonde argued interference with the right of way and difficulty for an average driver to navigate the driveway and sought an injunction - Drumonde called expert evidence in the person of a driving instructor - The driv­ing instructor's evidence was admitted - The trial judge granted the injunction - The Ontario Court of Appeal reversed this decision - The court held that expert evi­dence should not have been admitted be­cause the criteria of necessity in assist­ing the trier of fact and a properly qual­ified expert were not met - See paragraphs 13 to 17.

Real Property - Topic 7077

Easements, licences and prescriptive rights - Rights of way - Extent of - Drumonde and Moniz enjoyed a right of way on a common driveway that ran between their houses - The right of way extended 70 feet from the street - The properties extended further back - Drumonde and Moniz parked their families' cars at the back - Drumonde's son, when exiting, preferred to turn his "larger" car around and proceed forward on the driveway - This caused him to enter Moniz's property - To stop this, Moniz wanted to build a fence on the boundary line, starting from the end of the right of way - Drumonde argued inter­ference with the right of way and sought an injunction - The Ontario Court of Ap­peal, on appeal, dismissed the application.

Real Property - Topic 7220

Easements, licences and prescriptive rights - Interference or obstruction - Interference with right of way - [See Real Property - Topic 7077 ].

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402; 114 D.L.R.(4th) 419; 29 C.R.(4th) 243, consd. [para. 13].

Pettey v. Parsons, [1914] 2 Ch. 653, refd to. [para. 22].

Lewis v. Wakelin (1923), 54 O.L.R. 647, refd to. [para. 23].

National Trusts for Places of Historic Interest or Natural Beauty v. White, [1987] 1 W.L.R. 907, not folld. [para. 25].

Todrick v. Western National Omnibus Co., [1934] Ch. 561, refd to. [para. 25].

Counsel:

L.A. von Bogen, for the appellants;

Jeffrey W. Kramer, for the respondent.

This appeal was heard on November 3, 1997, by Abella, Austin and Charron, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Austin, J.A., and released on December 1, 1997, with supplementary reasons released on January 9, 1998.