Weidelich et al. v. de Koning, 2014 ONCA 736

• Judge: Doherty, Laskin and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 13, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 736;(2014), 325 O.A.C. 344 (CA)

Weidelich v. de Koning (2014), 325 O.A.C. 344 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. OC.025

Colin Weidelich, Shawn Boire, Cecilia Mo, Joe Gilinsky, Yvonne Gilinsky, Ken Baldin and Pam Leeworthy-Baldin (applicants/appellants) v. Pieter de Koning and Rachna de Koning (respondents/respondents)

(C58597; 2014 ONCA 736)

Indexed As: Weidelich et al. v. de Koning

Ontario Court of Appeal

Doherty, Laskin and Epstein, JJ.A.

October 24, 2014.

Summary:

A right-of-way ran behind a block of six row houses. The respondents owned one of the houses. The appellants owned four of the other houses. The laneway traversed lands owned by each of the six homeowners, and those lands were subject to a right-of-way described in each property's title documents. The respondents' deed provided that their ownership was "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". The part of the laneway that passed over the respondents' property, identified as Part 19 in the deed, was 3.6 metres at its narrowest point. The respondents added a three-story structure (the Addition) on their property. The Addition encroached upon Part 19. However, the right-of-way remained at least 4.4 metres wide wherever the Addition encroached on it. 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.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 7486, dismissed the application. The appellants appealed.

The Ontario Court of Appeal dismissed the appeal.

Real Property - Topic 7215

Easements, licences and prescriptive rights - Interference or obstruction - Obstruction of right of way - [See Real Property - Topic 7220 ].

Real Property - Topic 7220

Easements, licences and prescriptive rights - Interference or obstruction - Interference with right of way - A right-of-way ran behind a block of six row houses - The laneway traversed lands owned by each of the six homeowners, and those lands were subject to a right-of-way described in each property's title documents - The respondents' deed provided that their ownership was "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" - The part of the laneway that passed over the respondents' property, identified as Part 19 in the deed, was 3.6 metres at its narrowest point - The respondents added a three-story structure (the Addition) on their property - The Addition encroached upon Part 19 - However, the right-of-way remained at least 4.4 metres wide wherever the Addition encroached on it - The appellants (owners of four of the other houses) 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 - The application was dismissed - The application judge held that an encroachment on a right-of-way was actionable only if there was a substantial interference with the use of the right-of-way as granted - He found that the encroachments caused by the Addition did not create a real or substantial interference with the use of the laneway for vehicular access - The Ontario Court of Appeal dismissed the appellants' appeal - The appellants had not persuaded the court that encroachment by a permanent structure was actionable absent actual, substantial interference with the granted right - On the trial judge's factual findings, the appellants could not meet that burden.

Cases Noticed:

West v. Sharp (1999), 79 P. & C.R. 32 (C.A.), refd to. [para. 9].

Clifford v. Hoare (1874), L.R. 9 C.P. 362, refd to. [para. 11].

Pettey v. Parsons, [1914] 2 Ch. 653 (C.A.), refd to. [para. 11].

Keefe v. Amor, [1965] 1 Q.B. 334 (C.A.), refd to. [para. 11].

Celsteel Ltd. v. Alton House Holdings Ltd., [1985] 1 W.L.R. 204 (Ch.), revd. [1986] 1 W.L.R. 512 (C.A.), consd. [para. 11].

B & Q Plc. v. Liverpool and Lancashire Properties Limited, [2000] E.W.H.C. 463; 81 P. & C.R. 20 (Ch.), refd to. [para. 11].

Devaney v. McNab (1921), 69 D.L.R. 231 (Ont. C.A.), consd. [para. 11].

Voye et al. v. Hartley (2002), 247 N.B.R.(2d) 128; 641 A.P.R. 128; 2002 NBCA 14, refd to. [para. 11].

Donohue et al. v. Robins et al., [2012] O.T.C. Uned. 2851; 2012 ONSC 2851, refd to. [para. 11].

Lester v. Bond, 2013 ONSC 7888, refd to. [para. 11].

Albiston v. Liu, [2013] O.J. No. 3685 (Sup. Ct.), refd to. [para. 20].

Chester v. Roch and Roch (1975), 20 N.S.R.(2d) 536; 27 A.P.R. 536 (T.D.), refd to. [para. 21].

Spencer et al. v. Salo et al. (2013), 303 O.A.C. 374; 114 O.R.(3d) 226; 2013 ONCA 98, leave to appeal refused (2013), 464 N.R. 399 (S.C.C.), refd to. [para. 27].

Fallowfield v. Bourgault et al. (2003), 180 O.A.C. 101 (C.A.), refd to. [para. 33].

Authors and Works Noticed:

Gale on Easements (19th Ed. 2012), generally [para. 19]; para. 13-06 [para. 10].

La Forest, Anne, Anger & Honsberger Law of Real Property (3rd Ed. 2006) (Looseleaf), vol. 2, para. 17:20.30(b) [para. 22].

Counsel:

Harvey J. Ash, for the appellants;

Rahul Shastri and David Winer, for the respondents.

This appeal was heard on August 13, 2014, before Doherty, Laskin and Epstein, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Doherty, J.A., and was released on October 24, 2014.