The recent Ontario Superior Court of Justice decision in Sciara v. Szpakowski, 2014 ONSC 2157, involved a dispute between neighbours over the right to use a lane between the two houses. The lane was owned by the Respondent but the Applicants allege that they were allowed continuous use of the lane to access their backyard for many years. When the neighbours had an argument over another matter, the Respondent threatened to construct a fence to restrict the Applicants’ access to the lane. The Applicants sought an interim injunction restricting the Respondent from constructing a fence until their application for prescriptive easement over the lane was heard.
In determining whether an interim injunction should be granted, the Court applied the test outlined by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, which was as follows: (i) is there a serious question to be determined, (ii) will the Applicant suffer irreparable harm if the relief sought were refused; and (iii) does the balance of convenience favour the Applicant, such that the Applicant will suffer greater harm from the refusal to grant an injunction compared to the harm the Respondent will suffer if an injunction is granted.
The Court found that the first element of the test was satisfied since there was a serious question as to whether the Applicants had a valid claim to prescriptive easement over the lane. Next, the Court found that the Applicants would suffer irreparable harm if exterior access to their backyard was restricted for maintenance and emergencies. Finally, the Court found that the Respondent would suffer minimal to no harm by being required to delay constructing the fence until the application for prescriptive easement was determined. As such, the Court granted an interim injunction against the Respondent from constructing a fence or otherwise obstructing the Applicants from using the lane to access their backyard until the application was heard.
If you require legal advice with respect to injunctive relief, please contact us for an initial consultation.
Brief informational summaries about insurance litigation, commercial litigation and family law litigation matters in the courts of Ontario and Canada are periodically published on our website. Please note that our website content is for informational purposes only, and should not be construed or relied upon to provide legal advice. If you require legal advice, please request an initial consultation with Gilbertson Davis LLP using the Request Consultation Form on this webpage or by contacting our Intake Coordinator on (416) 979-2020, ext. 223 (both subject to the Terms of Use described on our Contact page).
Comments & Opinions by Gilbertson Davis LLP lawyers and staff on its Blog, or in media interviews, appearances or publications, or in professional publications, are personal to them, and do not necessarily represent the opinions of the Firm or anyone at the Firm other than the individual expressing those comments or opinions.
About the Author
