Good fences don’t always make good neighbours

A dispute over a fence between two previously friendly Toronto neighbours became a two-year court battle that ended when a judge took the rare step of hearing the matter by way of application, Law Times has learned.

Bruce Baron, who represented the applicants, says he was able to convince Superior Court Justice Ellen Macdonald to take the unusual route by referring to a rule of civil procedure that says an application may be made when you’re looking for a declaration of interest under land.

“Typically when you have a he-said, she-said, you have to proceed by statement of claim,” says Baron of Gaertner Tobin LLP. “One of the nasty things about that is, if you’re a competent defence counsel, you can drag out a statement of claim for years, literally.”

Baron notes most cases in which facts are disputed must proceed via trial. “Here, it was kind of rare, because in this case there were substantial factual issues in dispute . . . but I was able to persuade [Macdonald] that it was simple enough to be adjudicated by way of application,” he says.

“To do justice for my clients, you almost can never do that by way of statement of claim. It’s just so costly.”
 “I think it’s very unfortunate that we needed to go this route,” says Baron’s client Sharon Zorz, who won the case against neighbour Katherina Attard.

The dispute surrounds the construction of a fence that Attard erected in the fall of 2006 in the midst of renovations to her home, according to court documents obtained by Law Times.

The Zorz family has lived at Baby Point Road since 1990, while Attard moved to the street in 2002. The fence separating the two parties’ backyards was erected some 80 years ago, when both homes were built.

The old fence was not built on the registered property boundary, but rather one foot and three inches west of Attard’s actual property boundary. The Zorz family had a right-of-way over one foot and three inches of Attard’s property.

But in September 2006, Attard “unilaterally removed the old fence and replaced it one foot and three inches to the east of the location of the old fence, thereby annexing lands subject to the applicants’ registered right of way and subject to what the applicants allege is title by adverse possession,” Macdonald wrote in her Jan. 29 decision.

She added that, “The respondent aggravated matters in this dispute by constructing a large gate in the fence between the applicants’ garage and the north east corner of the new addition to the respondent’s home,” which gave access to the Zorz’s backyard that didn’t previously exist.

The Zorz family was issued an application regarding the matter in November 2006, and it was set for an interim hearing that month. At the hearing, an interim order was granted forcing Attard to move the disputed part of the fence. The application was set for hearing in March 2007.

But Attard re-erected a new fence contrary to the November order, and between that time and January 2007 did not present materials or agree to cross-examinations. The parties agreed to a timetable on Jan. 28, 2007.

Attard “failed to produce herself in accordance with the consent order,” and the Zorz’s brought a contempt motion that was heard March 9, 2007, wrote Macdonald. The hearing was adjourned to June 13, 2007; Attard was ordered to serve an affidavit, move the re-erected fence by March 21, 2007, and pay the Zorz’s $2,000 for disobeying the order of Nov. 20, 2006. The matter was ordered to be heard June 13, 2007, peremptory on Attard.

The matter was eventually heard June 14, 2007. In her judgment Macdonald ruled:
•    Declarations be ordered that the Zorz’s acquire possession of the one foot and three inch strip of land, and that they have a registered right of way to that area.
•    A declaration be made that Attard trespassed on the Zorz’s property, damaged it, and interfered with the right-of-way.
•    Damages be awarded on account of trespass, nuisance, and invasion of privacy, in the amount of $7,500. An order also be made requiring the removal of the new fence. Costs were awarded on a partial indemnity basis.
•    Attard must replace the old fence removed by her, with a new one “of equal quality with no gate or opening and in the same location as the fence” she removed.
•    Attard must also remove flagstones she placed and reroute a downspout away from the Zorz’s property.
Zorz says she was pleased with Macdonald’s ruling, but adds the prolonged dispute was hard on her family.
“It’s been a very stressful time,” she says, adding she was previously on good terms with her neighbour.

“This is a person we were friendly with before,” she says. “We weren’t like nasty neighbours prior to this. We got along well; we were in each other’s houses almost every day.”
Also in her Jan. 29 ruling, Macdonald noted her original concern that the matter was not proceeding by way of trial.

“Disputes such as this between neighbours over property lines are not uncommon,” she wrote. “They are usually highly charged with opposing parties committed to opposite views as to what is relevant in the determination of the issues raised in an application such as this.”

But after neither party presented further submissions to her regarding the need to proceed to trial, Macdonald decided, “having carefully considered all of the materials,” to give her reasons by way of application.

Jack Copelovici, who represented Attard, told Law Times he is awaiting instructions from his client on how to proceed with the matter.

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