Subsequent agreement doesn't necessarily cancel out pre-existing prescriptive easement

"Good fences do not always make good neighbours." 

I wonder how many court decisions begin with that line or something like it - it seems like it must be a lot.  Madam Justice Gomery of the Ontario Superior Court opens her reasons with that line in a recent case involving a claim for a prescriptive easement in Ottawa.  Neighbours were in court disputing the space between their houses, each built sometime prior to 1928.  The houses are just over 14 feet apart, and a shared driveway runs between the houses.

Neighbour E had lived in the one house since 1980.  Neighbours P moved into the other house in 2003.  Notwithstanding that the driveway had been between the houses for the entire time Neighbours P had occupied their property, they went ahead in November, 2016 and built a fence down the middle of the driveway, just inside their own property line.  Of course, they were still able to use the driveway with the fence in place because they had sufficient space on their side.  On Neighbour E's side, a retaining wall was in place and the space between that wall and the fence was insufficient to allow him to use the driveway.

As noted above, the actual property line ran down the middle portion of the shared driveway.  Neighbour E brought an application for an order recognizing his right to use the full width of the (previously) shared driveway and requiring Neighbours P to remove their fence.  Neighbour E claimed that he had a prescriptive easement (one that arises through use over a period of time) over the driveway.  At issue was whether Neighbour E's enjoyment of the driveway (and that of his predecessors in title) had been with the permission of Neighbours P (and their predecessors in title).  In order for an easement to arise by prescription, the use of the land must be without the permission or objection of the owner of the land involved. 

To succeed in his claim, Neighbour E had to show that the owners of his property had used the shared driveway for a period of at least 20 years prior to 1996 (when the lands were converted into the Land Titles System, which no longer permits the creation of easements by prescription), with the knowledge of the neighbouring landowners, and without their objection or permission.  While Neighbour E had evidence showing such use prior to 1996, he had to deal with the fact that a previous owner had entered into an agreement in 1980 in which each neighbour (predecessors in title to the current owners) had given the other a right to use the shared driveway, and had agreed to share expenses, for a period of 21 years less a day.  Did this agreement mean that use of the driveway was with permission and could not, therefore, give rise to a prescriptive easement?  If an easement had been established prior to 1980, did the agreement cancel the easement out?

Justice Gomery found that the agreement did not erase the prescriptive easement that she found to have existed prior to the agreement made in 1980.  She reasoned that where parties neglect to record an easement on title, that does not defeat the claim for the easement where the Court finds that it exists.  Likewise, the failure by the parties to have recognized the pre-existing easement in the 1980 agreement did not extinguish the pre-existing prescriptive easement.  Justice Gomery ruled in favour of Neighbour E.

Read the decision at: E et al. v. P et al.

Court grants injunction to Enbridge over interference with maintenance digs

Back in March, 2017, Enbridge Pipelines Inc. ("Enbridge") was in court seeking injunctions against two individuals to prohibit them from interfering with maintenance work being conducted on Lines 10 and 11, two adjacent oil pipelines near Hamilton, Ontario.  Enbridge asserted that the individuals had been regularly interfering with its work crews since January, 2017, including the tearing down of snow fences and gates and verbally demanding that work be shut down.  Enbridge also alleged that, after two weeks of obstruction, the individuals placed rabbit traps to obstruct access to the dig sites and then asserted treaty hunting rights.

In their defence, the individuals involved in the case alleged that they are Haudenosaunee citizens with the ability to exercise rights upon Haudenosaunee traditional treaty territory.  They served Notices of Constitutional Question stating their intention to question the constitutional validity of the following: 1) the Trespass to Property Act as it may apply to a Haudenosaunee person undertaking harvesting activity pursuant to treaty rights; 2) any interim or interlocutory injunction which would directly or indirectly impair, infringe and/or interfere with the exercise of treaty rights where the Crown has not discharged its obligations to uphold the Honour of the Crown (duty to consult and accommodate); and, 3) the granting of any easement (i.e. Enbridge's pipeline easements) where treaty rights would be impaired, infringed and/or interfered with where the Crown has not discharged its obligation to uphold the Honour of the Crown (duty to consult and accommodate).

Justice Broad of the Ontario Superior Court of Justice reviewed the constitutional arguments and concluded that, "the question of whether the Crown has made efforts to comply with its duty to consult and accommodate is not relevant to the exercise of the court's decision to deny an injunction sought by a private party such as Enbridge with an interest in land on discretionary grounds."  Also, Justice Broad noted, "The defendants have been unable to point to any cases where a precondition involving the exhaustion of efforts to consult and find negotiated or legislated resolutions has been recognized or applied where an injunction is sought at the instance of a private property owner where aboriginal treaty rights are claimed or exercised."

Having disposed of the constitutional issues, Justice Broad reviewed Enbridge's request for injunctive relief on the basis of the standard three-part test for injunctions:

1)      the plaintiff must establish a serious question to be tried;

2)      the plaintiff must show that it will suffer irreparable harm if the injunction is not granted; and

3)      the balance of convenience favours the granting of an injunction. This involves a consideration of which party will suffer greater harm if the injunction is granted or refused.

Justice Broad ruled in favour of Enbridge on all three parts of the test.  With respect to the defendants' treaty right claims, he concluded: "The defendants' claim to relevant interests or rights may be advanced by appropriate parties or groups having the requisite standing through lawful avenues.  The defendants' resort to unlawful self-help should not, however, be countenanced ...".

Read the decision at: Enbridge Pipelines Inc. v. Williams et al.

Neighbour loses claim for damages from biosolid application on field next door

The Plaintiff in this case sued her neighbour over concerns that her well water had been contaminated by the agricultural field application of municipal sewage waste or biosolids.  The neighbour actually leased the land to a farm operation, so he commenced third party claims against both his tenant (the farm operation) and the company that applied the biosolids.  The Plaintiff's claims were based on nuisance and negligence.

Justice Heeney of the Ontario Superior Court of Justice dismissed the Plaintiff's claim on the basis that the application of biosolids did not cause the Plaintiff's well to become contaminated.  Put another way, the Plaintiff failed to prove, on a balance of probabilities, that the application of the biosolids caused contamination of the well.  In his decision, it was not necessary for Justice Heeney to address the question of who might be liable for what.

Evidence in this case was heard over 6 days of trial, and included testimony concerning the application of the biosolids.  The application project had been approved by the Ministry of the Environment ("MOECC") following extensive soil testing and other measures.  The biosolids were to be applied to 90 acres of wheat stubble.  The Plaintiff had a 14-foot dug well just a few feet north of the southerly boundary of her property, in close proximity to the neighbouring field.  On the day that the biosolid application commenced, the Plaintiff said water from her shower was "brown and stinky", and smelled like "vomit material".

The Plaintiff's water was tested following the application of the biosolids.  There was some detection of coliform, but there had been positive readings of coliform in the well water prior to the biosolid application project.  No e.coli was detected.  The absence of e.coli in the water was, in Justice Heeney's opinion, the single most significant fact in the case.  There was opinion evidence that, if biosolids had entered the well, there would have been a very high level of e.coli in the water that would have been detectable when the water was tested.  E.coli is specifically used in water testing as "being the most accurate indicator of fecal contamination - sewage or fecal contamination".  Justice Heeney concluded that the biosolid application did not contaminate the Plaintiff's well.

Read the decision at: Marshall v. Shaw.

Ontario Court has dismissed challenge to provincial neonicotinoid regulations

I'll post a link to the court decision as soon as I can find a copy.  In the meantime, here is a link to the cbc.ca story: Law to reduce use of bee-killing pesticides upheld in court.