March v Evans, 2017 ABQB 200

Court of Queen’s Bench of Alberta Citation: March v Evans, 2017 ABQB 200 Date: 20170324 Docket: 1601 17300 Registry: Calgary Between: Thomas Harry March Applicant - and - Derek Evans and Janet E. Dawson Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L.

Kenny _______________________________________________________ [ 1 ] This is an application by the Applicant for an injunction requiring the Respondents to comply with a Restrictive Covenant (“RC”) registered by the CPR in 1944 that prohibits placing a dwelling house “at a distance less than 30 feet from the Avenue fronting same.” Background [ 2 ] There is a RC registered against 14 lots in a one block parcel in the area of Mount Royal, Calgary. Seven lots face (current) Hillcrest Avenue and seven lots face (current) Earl Grey Crescent.

The Applicant (Lot 3) and the Respondents (Lot 5) own lots on Earl Grey Crescent. [ 3 ] The Respondents obtained approval for a development permit in May 2015. This permit was appealed to the Development

Appeal Board. A number of issues were raised at the appeal, including the RC. The Board opined that the RC was not a relevantplanning consideration but rather a civil issue between property owners, and that from a planning perspective the front setback of theproposed development was appropriate. The Board made some adjustments, particularly to the building height, and approved thedevelopment subject to the adjustments. The Respondents demolished the previous house and commenced building in accordance withthe development permit. [4] The Applicant took exception to this and reminded the Respondents about the RC.

As work continued, the Applicant broughtthis application to the court seeking an injunction. The Respondents stopped all construction until this matter could be resolved by thecourt. History of the Restrictive Covenant [5] On June 21, 1944, the CPR registered a subdivision plan with respect to lots 1 to 14. On July 7, 1944, the CPR registered theRC by way of caveat against the title to each of the 14 lots. The RC contains a number of restrictions. The only one that is the subject ofthis application is the following: (

e) That no dwelling house shall be placed on any one of said Lots at a distance of less than Thirty Feet (30') from the Avenue frontingsame, and in the case of Lots One (1), Seven (7), Eight (8) and Fourteen (14) in said Block ninety-five (95), no building shall be erectedon any one of same which shall be nearer than fifteen (15') to the Street adjoining same. [6] In 1984, the RC was discharged from Lot 11 without notice.

In 1989, the RC was amended on Lot 8 to a 20 foot “setback” (Iput this word in parentheses as it is not a word referred to in the RC but rather a word used in planning law) and in 1992, on notice to theimmediate surrounding neighbours, the side-yard “setback” was amended. [7] One issue before this court is to determine whether there has been a breach of the RC. If there is no breach, then that is theend of the matter.

Whether there is a breach depends on what was meant by the words “Avenue” and “Street” in the RC. [8] If measured from the property line, currently all four corner lots (Lots 1, 7, 8, 14) do not comply with the RC. In addition tothat, it is agreed that 4 other lots (Lots 9, 10, 11, 12) do not comply. There is a dispute as to whether or not one lot (Lot 13) complies withthe RC. This means that between 57% and 64% of the lots do not comply with the RC if measured from the property line. If measuredfrom the curb of the Avenue or the Street, all of the properties comply with the RC.

Injunctive Relief [9] In Canada, there is a tripartite test for the granting of an injunction, RJR MacDonald Inc. v Canada (AG), (SCC), [1994] 1 SCR 311: a. There must be a serious question to be tried. This can also be referred to as a strong prima facie case or clear breach of a covenant; b. The applicant must prove that he would suffer "irreparable harm" if the application is refused; c.

The balance of convenience must favour the applicant. [10] Where a party seeks to enforce a negative covenant, such as in this case, it is not necessary to prove “irreparable harm”. [11] There are two issues to deal with to determine if there is a serious issue to be tried: 1) Whether the provision in the RC “30 feet from the Avenue and 15 feet from the Street” is measured from the face of the curb of theAvenue or Street or from the property line. 2) Even if the correct

interpretation is that the measurement should be from the property line, I must determine whether the RC hasbeen amended, discharged or just ignored since its inception in 1944. Location of the Avenue [12] It should be noted that these properties are all faced with a curb at the edge of the Avenue or Street. There are no sidewalks.The properties all front the curb although there is, on the plans, a strip of land that belongs to the city between the Avenue or Street andthe property line. [13] The Respondents argue that the RC refers to “Avenue” and “Street”, not property line.

The words must be looked at in thecontext of the factual matrix at the time. Any ambiguity is to be resolved in favour of the “free use of the land”: see Anderson v Dickie(1915), 84 LJPC 219 (HL) and Goodwin v Ridley, 2006 BCCA 581. [14] The Applicant argues that there is no ambiguity regarding the boundaries of the Avenue and Street and that the legal boundaryof the Avenue is clearly the property line. In their view, everything not titled is roadway. [15] The subdivision plan to which the RC refers was registered immediately before the RC itself.

The Plan shows the roadwaylabelled Dorchester Ave. (now Earl Grey Crescent). The measurement of the avenue is shown on the plan as 66 feet wide. The Applicantargues that the avenue clearly encompasses all of the land between the avenue and the property line. This, they argue, is the legal avenue.It does not appear to me that this is the case.

[16] Section 78(1) of the Land Titles Act, RSA 1942, c 205, required a subdivision plan to show all roads, streets, passages,thoroughfares, squares or reservations appropriated or set apart for public use, with the courses and widths thereof respectively….(emphasis added). [17] The strip of land between the roadway, as set out on the plan, and the property line is clearly public land; however, that doesnot mean it is roadway. The roadway is separately identified as required on the plan and by the Act.

Public use land, the land between theroadway and the property line, is also clearly set out and the measurements are shown on the plan. [18] The context at the time is important in interpreting the RC. The Bylaw then in force, Bylaw 2835, was from 1934. It talksabout “Sites” and describes “Site Lines” as the lines bounding a site. It would appear they are referring to what we now know as propertylines.

A “Street” is defined as a public way that affords a principal means of access to a site, and shall include “Avenues”. “Place” meansan open, unoccupied space common to two or more Sites permanently reserved as the principal means of access to such Sites, and notbeing a Street or lane (emphasis added). [19] It would appear from the bylaw in force at the time, that Sites are defined, Street and Avenue are defined, and Place isdefined.

In looking at the plan as filed in 1944, “Sites” (lots) are set out, “Streets and Avenues” are delineated and measured, and“Place”, being the space between the Street/Avenue and the Site Line/property line is set out and measured. [20] The Applicant argues that to accept a definition that would measure the “setback” from the Avenue would lead to uncertaintyas no one would know from where to calculate the "setback" distance, as the boundaries of the roadway may change whereas it isunlikely that the property lines would change.

There is no evidence before the court that the boundaries of the roadway, as shown on thesubdivision plan filed in 1944, have changed. A photograph of the subdivision in about 1948-1950 shows a dirt road. The road appears tohave a clear boundary, although it does not contain the cement curb that clearly marks the edge of the roadway today. [21] The Respondents refer to the decision in Howarth v Canadian Red Cross Society, (AB KB), [1943] 2WWR 692 (Alta Sup Ct).

In that case, a Canadian Pacific Railway restrictive covenant stated that any dwelling house shall be at least 25feet from the…"Street or Avenue at front…and rear of the said Lot". The building was more than 25 feet from Royal Avenue at thefront. There was no lane or street at the rear of the property. It was argued that because there was no street or avenue at the rear of theproperty, the court should use the rear boundary line and enforce the restriction such that no dwelling house would be within 25 feet ofthe rear boundary line. The building was in fact less than 25 feet from the rear boundary line.

The court held that there may be goodreason to require a dwelling be 25 feet back from the front street or avenue but that the court could not assume the same reasons wouldapply to the rear of the lot where there was no street or avenue or that the words “boundary line” should be substituted for “street oravenue”. [22] The other decision referred to by the Respondents involves a restrictive covenant from 1948, some four years after the subjectRC.

In Trawick v Mastromonaco, 1983 CarswellAlta 33 (QB), the court considered a very similar restrictive covenant, in which therewas to be no building within 25 feet of any street or avenue. The court found that the measurement was from the wall of the dwelling tothe boundary of the street.

The court did not interpret street or avenue but simply accepted that the measurement was from the boundaryof the avenue. [23] The Respondents refer to other cases with restrictive covenants from 1951, 1953 and 1954, in which it appears theterminology has changed: Vallieres v Vozniak, 2014 ABCA 290; Lindner v Chittick, 2010 ABQB 819, Crump v Kernahan (1995), (AB KB), 173 AR 123 (QB), and Jukes v 1735560 Alberta Ltd., 2014 ABQB 131. In those cases the restrictive covenantrefers to a “setback” from the property line.

That was not the terminology used in the RC in this case. [24] The court must consider the actual wording of the RC in the context of the factual matrix at the time the covenant wasregistered: ▪ The RC uses the words “Street” and “Avenue” when referring to the “setback”. ▪ The filed subdivision plan to which the RC refers delineates property lines, Avenues, Streets, and public places. ▪ Somewhat later restrictive covenants refer to “property lines” not “Avenues” or “Streets”. ▪ Howath, supra, was decided in 1943 and dealt with exactly the same wording as the subject RC. ▪ The bylaw in force at the time of the RC defined “Street” and defined “Place” as separate from “Street”. ▪ The Act required the subdivision plan to show all roads, streets... squares or reservations appropriated or set apart for public use, withthe courses and widths.... [25] If there is ambiguity, that ambiguity should be interpreted in the least restrictive manner and in favour of the free use of land. [26] An

interpretation that measures the “setback” from the Avenue or Street curb is a more consistent approach because none ofthe 14 houses would be in breach of the RC. If it is measured from the property line, 8 and possibly 9 of the 14 houses would be inbreach of the RC. [27] I find that the wording of the RC favours an

interpretation such that the “setback” of 30 feet is to be measured from thefoundation to the edge of the Avenue or Street and not the property line. Therefore, there is no serious issue to be tried; the Respondents’property complies with the RC and the injunction application is dismissed. In the alternative, does the RC fail from lack of compliance and

enforcement? [28] The Respondents argue, in the alternative, that if the Applicant’s

interpretation is accepted there are 8 and possibly 9 homesout of 14 that are in breach of the RC. These numbers include the lot where the RC was removed and the lot where the RC was amended.These also include a home that was constructed on lot 9 in 1948 and one on lot 7 in 1955 that did not comply with the RC, therefore non-compliance with the RC has been longstanding. [29] A RC can become unenforceable through violations and lack of enforcement: Potts v McCann, 2002 ABQB 734; Berrigan vHiggins, 1984 CarswellNS 226 (SCTD); and, Turney v Lubin, (BC SC), [1980] 1 WWR 35 (BCSC).

A party, by theiracts and omissions, may have impliedly waived enforcement of the RC. It is arguable that having acquiesced in past breaches, a partycannot then, sometime later, seek to enforce the RC. [30] The Applicant purchased his property in 1985. According to his evidence, since that date, redevelopment has occurred on lots8, 10, 11, 12, 13, and14 in breach of the original RC. The Applicant indicates that he was not aware of the removal of the RC on lot 11 orof the amendments to the RC on lot 8.

Since this was the case, the Applicant would have assumed the RC was still in place on those lotsas well and he raised no objection to any of those developments in violation of the RC. These properties represent almost half of the lotsin the 14 lot subdivision. The Applicant argues that discharge of a covenant or breach of a covenant by a few owners does not underminethe entire covenant: Potts, supra.

While this may be true, it does not address the issues of non-compliance and lack of enforcement withrespect to anywhere from 57% to 64% of the properties. [31] The Applicant further argues that the subject development is different and the RC should be enforced here, even if it has notbeen enforced on other properties because this block, Earl Grey Crescent, other than the corner lots has complied with the RC to date.The Applicant says it is understandable that the corner lots would be in breach, as they have far less land upon which to build their homeif the RC was enforced.

He also says that all of the breaches on Hillcrest Avenue are on a different street, which is busier and faces otherproperties so the RC is not as important there. By contrast, Earl Grey Crescent has a view, is a quieter street, and does not face otherproperties, so it is more important to enforce the RC on that street. It does not seem appropriate for the court to pick and choose againstwhich lots to enforce a RC and which to ignore. The law of enforceability at common law is much broader than that. [32] The past chair of the Mount Royal Community Association planning committee presented evidence.

He was a member of thatcommittee from 1995 to 2005. The committee reviewed development proposals, offered opinions, provided input to city planners andadvised as to rights. They were very familiar with the planning rules in place and the RC agreements throughout the community. Theaffiant acknowledged that members of the committee advised all relevant parties that although the City of Calgary land use rulesstipulated a setback as measured from the property line, the CPR RC was to be measured from the street edge or road curb on the day theagreement was registered on a particular property.

Some of the non-compliant properties subject to the RC were redeveloped during thisperiod. There appeared to be no ambiguity in the community or with the affected owners, at least during this period of time, as to whatthe meaning of 30 feet from the Avenue in the RC meant – it meant from the actual Avenue, not the property line. [33] It should be noted that the property complies with the current direct control land use by-law and all zoning requirements withsome minor modifications set out by the Development Appeal Board.

The Board indicated these minor modifications do not negativelyimpact the property or the surrounding neighbours or neighborhood. [34] I am satisfied that even if the “setback” set out in the RC is to be measured from the property line, rather than the edge of theStreet or Avenue, the “setback” from the Avenue in the RC on this subject property is unenforceable due to lack of compliance andimplied waiver of the RC by a majority of the owners. The application for the injunction would also be dismissed on this ground. Heard on the 21st day of March, 2017.

Dated at the City of Calgary, Alberta this 24th day of March, 2017. C.L. Kenny J.C.Q.B.A. Appearances: Churyl Elgart and Matti Lemmens for the Applicant

Christopher Davis and Susan Trylinski for the Respondents