2010 QCCA 2205, 2010 QCCA 2205

Yazedjian c. Hassan 2010 QCCA 2205 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-018731-083 (500-17-031761-060) DATE: NOVEMBER 30, 2010 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A. NICHOLAS KASIRER, J.A. GUY COURNOYER, J.A. (AD HOC) STEPHAN YAZEDJIAN and ÉLOÏSE GRATTON APPELLANTS/INCIDENTAL RESPONDENTS – plaintiffs/cross-defendants v.

EDWARD HASSAN and STELLA HASSAN RESPONDENTS/INCIDENTAL APPELLANTS – defendants/cross-plaintiffs and CITY OF MONTREAL, borough of Outremont IMPLEADED PARTY – impleaded party JUDGMENT [ 1 ] THE COURT: On appeal from a judgment of the Superior Court, District of Montreal, rendered on May 6, 2008 (the Honourable Mr. Justice Roger E.

Baker), which dismissed the petition by the appellants for a declaration that a reciprocal servitude exists charging the immovable owned by them and the immovable owned by the respondent Edward Hassan; dismissed the petition by the appellants to determine the site of the servitude; declared that the appellants' property is not enclosed and refused the application for a right of way for access to their garage; allowed in part the cross demand; declared there to be no servitude encumbering the immovable owned by Edward Hassan; and ordered the appellants not to encroach on the respondent Edward Hassan's property; the whole without costs; [ 2 ] After having examined the file, heard the parties and deliberated on the whole; [ 3 ] For the reasons of Kasirer, J.A., with which Dalphond, J.A. and Cournoyer, J.A. ( ad hoc ) agree: [ 4 ] ALLOWS the appeal; [ 5 ] DECLARES that the immovable lot 1 352 939 (upon which the building bearing the civic number 1844 [Street A]) is enclosed within the meaning of

article 997 C.C.Q.; [ 6 ] ORDERS the respondents to allow the appellants a right of way on the common driveway, including the right to encroach on the respondent Edward Hassan's land in so far as necessary to enjoy adequate access by automobile to the street; [ 7 ] ORDERS that the site of the right of way be fixed according to the plan prepared by the land surveyor Claude Simard, dated July 18, 2006, and attached as a

schedule to this judgment so as to form a part hereof; [ 8 ] DISMISSES the incidental appeal; [ 9 ] The whole with costs.

PIERRE J. DALPHOND, J.A. NICHOLAS KASIRER, J.A.

GUY COURNOYER, J.A. (AD HOC) Mtre Azim Hussain OGILVY RENAULT For the appellants/incidental respondents Mtre Patrick Dubé McDONALD DESCHÊNES DUBÉ For the respondents/incidental appellants Mtre Armand Poupart Jr POUPART & POUPART For the impleaded party Date of hearing: October 26, 2010 REASONS OF KASIRER, J.A. [ 10 ] Stephen Yazedjian and Eloïse Gratton claim a servitude or some other right of way allowing them to use a common driveway between their home, located at 1844 [Street A] in Outremont, Quebec, and the home owned by Edward Hassan, their immediate neighbour, who lives with Stella Hassan at 1838 [Street A].

The common driveway runs from [Street A] to the back yards of both houses. It has a total width of about 17 feet, eight inches between the two houses and, in at least one place, it is several inches less in width. The property line between the lots on which the houses are built runs down the middle of the asphalt driveway. There is no visible division between the two properties except at the back, where the Hassans have built a fence part way along the property line. [ 11 ] The parties park their cars on their own lots, at the back of their respective properties.

Both have acknowledged that while proceeding up the driveway from [Street A] to park, they have regularly overstepped the centre line that delineates ownership in the past. Over the years, owners of the two homes have shared the cost of maintenance and snow removal of the driveway in the spirit of good neighbourly relations. [ 12 ] Mr Yazedjian and Ms Gratton bought their property on May 17, 2004. Mr and Mrs Hassan have lived at the house next door since 1984.

In the fall of 2004, the Hassans built a fence along the common property line from the back of their property to a point near the rear of the two houses on the common driveway. A permit for this fence was issued by the borough of Outremont. In the spring of 2006, Mr Yazedjian and Ms Gratton obtained a building permit to tear down an annex at the back of their house, near which they had parked their cars, and build a new garage. This new garage would have a door opening to the east, towards Mr and Mrs Hassan’s property, rather than southwards as it had before.

While they did not show the plans to the Hassans, they did share the general parameters of the garage project with them and Mr Hassan initially complimented them on the idea. [ 13 ] After the start of the construction of his neighbours’ new garage in May 2006, Mr Hassan obtained a permit from the borough for a 14-foot extension to the existing fence. Permission to build the new fence, which would extend forward further towards [Street A], was granted.

On June 13, 2006, Mr Hassan sent a demand letter to the appellants asking them to change the location of the garage door from an eastward to a southerly orientation in order to protect his land from encroachment when his neighbours park in the new garage. [ 14 ] Following an unsuccessful mediation attempt, Mr Yazedjian and Ms Gratton brought proceedings for an injunction to prevent the Hassans from building the extension to the fence.

They said that the extended fence would compromise access to the new garage by limiting their ability to manoeuvre their car across part of the Hassan's land onto their own in order to park.

They also sought a declaration that a servitude or other right of way exists in favour of their immovable allowing them to encroach on the Hassan's portion of the common driveway in order to proceed by car up the driveway to park. [ 15 ] The Hassans answered with a defence and cross-demand in which they sought, among other things, an order that Mr Yazedjian and Ms Gratton be precluded from driving backwards on the driveway and an application that the borough allow them to extend the fence all the way along the property line to the street.

They petitioned the court as well for "damages caused to them by abusive procedure" by Mr Yazedjian and Ms Gratton including extrajudicial fees, experts' costs and damages for inconveniences suffered. At trial, the Hassans sought additional conclusions, by amendment to their proceedings, for an order that the appellants cease using their garage to park altogether and that they remove the doors from the east side of the structure completely.

The trial judge dismissed the motion to bring these latter two amendments. *** [ 16 ] The Superior Court dismissed the Mr Yazedjian and Ms Gratton's application for an injunction. There was no need to stop the erection of the fence, ruled the trial judge, because the Hassan's building permit had expired. The trial judge also dismissed, however, Mr Yazedjian and Ms Gratton's plea for a declaration that a servitude benefited their land or that a reciprocal right of servitude provided

both parties with a right of passage over the common driveway. He further held that there was no right of way based on an enclosure that would allow the appellants to pass onto their neighbour's land as they proceeded up the driveway. He ordered them not encroach on the Hassan's lot in any way, including on their portion of the common driveway. The judge made no order as to costs and did not award the Hassans damages for abuse of procedure. *** [ 17 ] Mr Yazedjian and Ms Gratton argue that the trial judge erred in dismissing the request for a servitude.

While they contended at trial that a reciprocal servitude existed in favour of both lots, the appellants only asked that a declaration that a servitude by destination of proprietor existed in their favour in their conclusions to their factum on appeal. In the alternative, they say the judge erred in finding that their land is not enclosed. Furthermore, they should have a right of way to remedy enclosure or, at the very least, they should be permitted to encroach on the Hassan's land because that encroachment is simply an ordinary neighbourhood annoyance.

The Hassans present an incidental appeal in which they seek authorization to erect the new fence according to the plans set forth in the expired building permit. They also seek judicial and extrajudicial fees from the appellants at trial and on appeal. [ 18 ] The appellants advance several arguments as a means of establishing a right of way on the property owned by the Hassans which I propose to regroup and reorder as follows. First, they allege that the trial judge neglected to rule on the conclusion in their proceedings soliciting a declaration for a servitude by destination of proprietor, pursuant to

article 1183 C.C.Q., which they say exists in favour of their immovable (I). Second, they argue that even in the absence of an enclosure,

article 976 C.C.Q. justifies their claim for a right of way allowing them to encroach on their neighbours’ property (II). Third, they argue that they should enjoy a right of way by operation of law, pursuant to

article 997 C.C.Q., because their land is economically enclosed to the street (III). Fourth, whatever the basis for their right of way in law, the appellants contend that its site extends along the common driveway and allows them to manoeuvre their car on a triangular portion at the back of the respondent's land to park (IV). In answer to the Hassan's incidental appeal, Mr Yazedjian and Ms Gratton contend there is no basis in law for an extension of the fence and that the respondents cannot ask the Court for an injunction because they have shown bad faith throughout the dispute.

The Hassan's claim for extrajudicial fees fails to meet the test established in the relevant decided cases (V). I propose to deal with each of these five points in turn. *** I. Servitude by Destination of Proprietor [ 19 ] Mr Yazedjian and Ms Gratton base their claim for a servitude by destination of proprietor on a deed of sale executed by a predecessor in title, on July 28, 1923, who purchased the lot they now own. [ 20 ] That deed records a declaration by the purchaser that he did not need a right of way because he already enjoyed one giving him the desired access to the public thoroughfare.

The deed states: "Article 540 of the Civil Code [of Lower Canada] shall not apply in this case, as the Purchaser declares to have already a right of way to said subdivision One hundred and eighty-seven". [1] On the basis of this statement in the deed, the appellants submit in their factum that "whatever right of way that the purchaser of lot 44-187 […] claimed to have at the time of buying the said lot, [it] must have been exercised on the third party’s property and, more specifically, in the present instance, on that of the predecessor in title to the Respondents".

In the event that the deed is understood to be ambiguous, such as the one in this case, argue the appellants, a court may construe it to divine the necessary elements of a servitude by destination of proprietor. [2] [ 21 ] The trial judge offered no specific analysis of this deed in his reasons.

Without specifically analyzing the requirements for a servitude by destination of a proprietor, he summarily dismissed the claim that such a servitude existed. [ 22 ] Mr Yazedjian and Ms Gratton have not demonstrated that a servitude by destination of proprietor benefits their land allowing them passage over the Hassan's land or that the judge was mistaken in dismissing their petition to recognize a servitude. [ 23 ]

Article 1183 C.C.Q. requires evidence in writing emanating from the owner of land who, in contemplation of its future partition, immediately establishes the nature, scope and situation of a servitude on one part of his or her land in favour of other parts. The appellants have brought no such evidence in support of their claim except the clause of the 1923 deed in which a predecessor in title declared that he enjoyed some unspecified right of way.

The 1923 deed did not establish the "destination" fixed by the proprietor that is a requirement for a single person to constitute a servitude prospectively in contemplation of the parcelling of his or her land. [3] The deed does record a right of way, but makes no discernable mention of a right of way over what is now the Hassan's land. The conditions in law for the constitution of a servitude by destination of proprietor are not present here. [ 24 ] The trial judge was therefore correct in dismissing the appellants' claim made pursuant to

article 1183 C.C.Q. II. A Right of Way Founded upon

Article 976 C.C.Q. [ 25 ] Are the Hassans bound to suffer the encroachment on their land on the common driveway as a "normal neighbourhood annoyance" as that idea is contemplated in

article 976 C.C.Q.? [ 26 ] Mr Yazedjian and Ms Gratton urge the application of this rule that serves to limit the right of ownership of immovables in an unusual manner. Their encroachment on the Hassan's land must, they say, be tolerated as an annoyance within the limits of what the neighbours owe each other according to the nature and location of their land and expectations for behaviour in the neighbourhood.

Article 976 C.C.Q. provides as follows:

976. Les voisins doivent accepter les inconvénients normaux du voisinage qui n'excèdent pas les limites de la tolérance qu'ils se doivent, suivant la nature ou la situation de leurs fonds, ou suivant les usages locaux. 976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom. [ 27 ] It bears mentioning that the appellants advance this argument separately from their claim for a right of way based on enclosure. At the hearing, the Court pressed counsel for the appellants to explain whether the claim he made under

article 976 C.C.Q. depended on their land being enclosed from the street. No, he said: enclosure is the basis for the argument for the a right of way under

article 997 C.C.Q., but it is not necessary to justify an order for a right of way under

article 976. [ 28 ] Ordinarily,

article 976 C.C.Q. is invoked to prevent the owner of land from exploiting one of the prerogatives associated with ownership in a manner that causes harm to his or her neighbour. [4]

Article 976 C.C.Q. is thus typically deployed by a neighbour as a shield against injury caused by the offending owner, rather than, as the appellants would have it, as a sword enabling one neighbour to obtain from another the enjoyment of a right that his or her correlative right of ownership does not afford. Mr Yazedjian and Ms Gratton thus invoke

article 976 C.C.Q. as the source of a right of enjoyment for themselves in the land owned by the Hassans. We are entitled, they say, to encroach on our neighbours' land in the absence of having any real right that would justify the encroachment. Good neighbourly relations alone require the Hassans to tolerate the encroachment pursuant to

article 976 C.C.Q. It is wrong, they say, for the Hassans to insist on the strict respect of their property right in light of the modest annoyance caused by cars trespassing on their driveway. As good neighbours, they say, the Hassans must allow us to come on to their land. [ 29 ] In substance, Mr Yazedjian and Ms Gratton argue that by not allowing the encroachment, the Hassans have created a neighbourhood disturbance for which they must provide a right of way under

article 976 C.C.Q., even in the absence of an enclosure. Citing the cases of St. Lawrence Cement Inc. [5] and Gourdeau [6] as authority for this proposition, they say that the Hassans have forced them to suffer an abnormal or excessive inconvenience that calls for the specific remedy of a right of way. [ 30 ] The claim is far-reaching and, in my view, not justified on the evidence. The appellants cannot have something akin to a right of servitude over the land of the Hassans because their encroachment is a "normal neighbourhood inconvenience" within the meaning of that expression in

article 976 C.C.Q.

Article 976 C.C.Q. does not afford a right of way as a remedy in the present appeal. In Lanart Sales , [7] this Court has expressed its hesitation to grant a court-ordered servitude in broadly analogous circumstances: [6] La Cour supérieure a semblé impressionnée par la tolérance passée de l’appelante à l’égard de l’intimé son voisin et par son refus subséquent de convenir d’un règlement à l’amiable malgré les invitations pressantes du juge de première instance. [7] Il paraît utile de rappeler qu’une servitude ne s’établit que par contrat, testament, destination du propriétaire ou par la loi ( art. 1181 C.c.Q. ).

La tolérance, l’usage même prolongé ou la possession immémoriale ne suppléent pas à l’absence de titre. [8] Il n'est pas du ressort des tribunaux de créer des servitudes judiciaires même pour des raisons d'équité ( Hamel c. Bellefeuille , [1997] R.D.I. 4 (C.A.) ). De même, un tribunal ne peut s'autoriser de l'

article 976 C.c.Q. pour créer une servitude de passage. Les voisins doivent accepter les inconvénients normaux du voisinage.

Le passage continuel, répétitif et perpétuel d'un véhicule sur une propriété ne constitue pas un inconvénient normal qu'un propriétaire peut imposer à son voisin. [ 31 ] I agree. There is, I think, a qualitative difference between a claim that an owner must limit the exercise of his or her right of ownership in favour of a neighbour pursuant to

article 976 C.C.Q. and the claim that an owner must grant a right of enjoyment to a neighbour pursuant to the same rule. [8] Mr Yazedjian and Ms Gratton ask the Court to impose much more than a limit on the Hassan's right of ownership. They seek an order requiring the Hassans to confer upon them the benefit of a right of way as a remedy for the inconvenience that denying encroachment causes them. This form of redress falls outside the proper purview of corrective justice which would call upon the Hassans to answer only for the injury they cause and no more; in that sense, it may be said that the appellants' claim stands outside the natural vocation of

article 976 for which a limited range of remedies lie. [9] In principle, orders made pursuant to

article 976 C.C.Q. do not extend to requiring an owner to confer an advantage on his or her neighbour. Courts merely oblige the owner to limit the exercise of an incident of the right of ownership when it amounts to an actionable disturbance. [10] [ 32 ] In seeking that a right of way be ordered pursuant to

article 976 C.C.Q., Mr Yazedjian and Ms Gratton ask that the Court impose upon the Hassans what amounts to

an act of disposition of a parcel of the right of enjoyment associated with ownership of their land in their favour. In this sense, the petition for an order of a right of way, in the absence of an enclosure, is like an application for a forced servitude, which would amount to an alienation of property imposed by a court on the owner of servient land. It is of course possible for a court to enforce the existence of a right of way established by operation of law when in the presence of an enclosure, based on authorization of the legislature at

article 1183 C.C.Q. But in the absence of an enclosure,

article 976 C.C.Q. does not empower courts to force

an act of disposition of property on an owner in circumstances such as those in this appeal. [ 33 ] Moreover, the cases cited in support of this argument by Mr Yazedjian and Ms Gratton present the relevant neighbourhood annoyances in a different light. In St. Lawrence Cement , [11]

article 976 C.C.Q. was invoked as a shield, not a sword, when the owner exercised a property right in a manner held to have caused a disturbance and, by that fact, harm to the neighbour. It might be said that the Hassan's insistence to build a fence is a source of harm and that the appellants should be shielded from that on the basis of

article 976 C.C.Q. But here, quite differently, Mr Yazedjian and Ms Gratton seek to use the provision aggressively, as a means of securing a benefit for themselves against an owner who is simply asking them not to encroach on his land. In this sense, St. Lawrence Cement provides no comfort for the appellants' argument. [ 34 ] In Gourdeau , [12] it is true that the Court made an extraordinary order for an owner's offending wall to be taken down because it constituted a disturbance that grounded liability pursuant to

article 976 C.C.Q. One might argue that the forced demolition of a wall resembles a court-ordered act of disposition and, as such, presents helpful authority for the appellants here. But in Gourdeau , the walls

built by the owner were held to be a disturbance because they were built too high and it was this height that caused harm to the neighbour. This is unlike the present case in which the Hassans have done nothing with their land to cause harm. All they have done is to ask that their portion of the driveway not be encroached upon. Gourdeau , like St. Lawrence Cement , cannot sustain the argument that Mr Yazedjian and Ms Gratton deserve a right of way in the absence of an enclosure. [ 35 ] The petition under

article 976 C.C.Q. for a right of way must therefore be dismissed. [ 36 ] As a final note on this point, it should be recorded that the appellants did not urge that an order be made under

article 976 C.C.Q. based on a mutual right of encroachment whereby the parties would simultaneously concede similar rights to one another. This was one argument made at trial in Lanart Sales , [13] it would seem, but the question does not present itself as such here. In this appeal, reciprocal concessions may not be possible because the Hassan's need to encroach on the land of the appellants appears to be lesser in scope than that of their neighbours. This would preclude on the facts some kind of neighbourly quid pro quo to be ordered under

article 976 C.C.Q., on the hypothesis – untested here – that the provision lends itself to that use by the courts. In any event, I prefer to leave consideration of that possibility to another day. III. Right of Way Based on an Economic Enclosure [ 37 ] Mr Yazedjian and Ms Gratton do, however, have a right of way over the Hassan's portion of the common driveway because their land is enclosed to the public road. With due respect for the trial judge’s contrary view, I am of the opinion that their property is enclosed within the meaning of

article 997 C.C.Q. and, as a result, they are entitled to require that the Hassans provide them with the necessary right of way so that they can properly use their land. [ 38 ] The trial judge found that Mr Yazedjian and Ms Gratton's land was not enclosed and, as a consequence, that they were not entitled to a right of way on that basis. He wrote the following: 54.

The evidence discloses that the Plaintiffs suffer from a self inflicted wound; that is, the construction of an annex with full knowledge that access by them to the garage with its doors facing east thus opening onto the driveway, would make entering and exiting with vehicles difficult possibly requiring an encroachment upon Defendants /Cross-Plaintiffs’ property. As is evident from the Report of Plaintiffs’ architect Humenny, they were well aware that no right of passage existed, and that furthermore it would be necessary to constantly drive over the line separating the parties’ properties.

This is not an enclosure within the meaning of

article 997 C.C.Q. [ 39 ] I am of the view – mindful as I am of the manifest advantages of hearing the parties on the matter first-hand – that this conclusion discloses a palpable and overriding error of fact. The evidence shows that Mr Yazedjian and Ms Gratton's land is enclosed. [ 40 ] The judge’s view of the relevant facts rests on a mistake. Said respectfully, I am of the view that he failed to isolate inadequate access to the public road as the guiding criterion for an enclosure pursuant to

article 997 C.C.Q. He fixed instead on the conduct of Mr Yazedjian and Ms Gratton and their choice to build a new garage. While this conduct, on the facts, is relevant to determining the site of the right of way, it was an inappropriate criterion for deciding that there was no enclosure. [ 41 ] Unlike the right of way arising as a result of a conventional or testamentary servitude or a servitude by destination of proprietor, the right recognized by

article 997 arises not by

an act of will but by operation of law. The law recognizes a right of way both as a result of, and by way of remedy for, an enclosure.

Article 997 C.C.Q. sets forth the prerequisites for the factual finding of enclosure: 997. Le propriétaire dont le fonds est enclavé soit qu'il n'ait aucune issue sur la voie publique, soit que l'issue soit insuffisante, difficile ou impraticable, peut, si on refuse de lui accorder une servitude ou un autre mode d'accès, exiger de l'un de ses voisins qu'il lui fournisse le passage nécessaire à l'utilisation et à l'exploitation de son fonds. Il paie alors une indemnité proportionnelle au préjudice qu'il peut causer. 997.

The owner of land enclosed by that of others in such a way that there is no access or only an inadequate, difficult or impassable access to it from the public road may, if all his neighbours refuse to grant him a servitude or another mode of access, require one of them to provide him with the necessary right of way to use and exploit his land. Where an owner claims his right under this article, he pays compensation proportionate to any damage he might cause. [ 42 ] As

article 997 C.C.Q. makes plain, Mr Yazedjian and Ms Gratton did not need to show an absolute enclosure to benefit from a right of way. It was sufficient for them to demonstrate "inadequate, difficult or impassable access" [14] from their land to the public road. This meant that the judge was required to examine the appellants’ quality of access to [Street A] along the length of the common driveway leading to its entrance to the street. If the access to that point was "inadequate" or "difficult" within the meaning of

article 997 C.C.Q., there was enclosure, irrespective of the situation at the back part of the driveway. [ 43 ] In reviewing the proceedings, the exhibits and transcripts of the testimony at trial, one understands that it was the encroachment at the back of the driveway that was the principal source of dispute between the parties at trial, and again on appeal. Had it not been for the encroachment by the appellants on the Hassan property in a triangular area at the back part of the driveway necessary to access their garage, the dispute might not even have arisen.

The years of mutual tolerance in respect of the constant practice of both homeowners trespassing on one another’s land at the entrance and on the way up the driveway might well have continued. The Hassans took offence at the encroachment by Mr Yazedjian and Ms Gratton when the new garage threatened, in their eyes, the status quo. [ 44 ] Because the choice to build the new garage was that of the appellants, it took on the shape of what the judge called a "self- inflicted wound" that moved him to deny the right of way.

But in point of fact, the advent of the new garage – which was, to be sure, voluntarily undertaken by Mr Yazedjian and Ms Gratton – should have had no bearing on the question as to whether their land has

inadequate access to [Street A]. Access to the public road should have been the guiding criterion pursuant to

article 997 C.C.Q. [ 45 ] Whether or not the appellants suffered what the judge called a "self-inflicted wound" was thus not directly relevant to the measure of whether their land was enclosed. [ 46 ] Under

article 997 C.C.Q., the judge should have analyzed separately, on the one hand, the factual situation along the driveway to the point of access to [Street A] and, on the other, the triangular portion at the back of the common driveway. The quality of the access to the entrance of the driveway should have dictated whether or not the land was enclosed "from the public road" as

article 997 C.C.Q. specifies. If at that point, considered alone, there was enclosure, the judge was bound to observe the existence of a right of way pursuant to

article 997. The further matter as to whether there was also an encroachment at the back of the driveway, and whether this was a "self-inflicted wound" or not, was relevant to the site or assiette of the right of way, but not to the existence of the enclosure that justifies the right of way itself. This error in measuring the requirements of

article 997 in respect of the configuration of the land meant that his conclusion on the presence of an enclosure was mistaken. [ 47 ] It is my respectful opinion that this finding, and the trial judge’s conclusion that the appellants are not enclosed, are incorrect. This led him to infer therefrom, also incorrectly, that no right of way is established by operation of law: [For these reasons, the Court ...] 63.

DECLARES that there is no enclosure (or " enclave ") and REFUSES the request for a " droit de passage " to enable Plaintiffs’ access to their garage; […]. [ 48 ] The evidence discloses that in the portion of the driveway running down to [Street A], Mr Yazedjian and Ms Gratton are enclosed because they can only traverse their land onto the public road with the greatest of difficulty.

The Hassans may well suffer the same enclosure on their side of the property line in respect of their access to the public road even if, for obvious reasons, they did not press the point in this appeal and notwithstanding the fact that they have removed some stairs to enlarge their access. As that may be, I am respectfully of the view that the judge’s finding that there was no enclosure for the appellants' land was a palpable and overriding error of fact.

This error justifies the intervention of the Court. [ 49 ] The evidence plainly reveals that there is inadequate access on the half of the 17-foot, eight-inch driveway that belongs to the appellants for a ordinary-sized car to pass onto the public road, especially in the winter months. The parties do not dispute that in the past they have both regularly overstepped the dividing line between their properties as they proceeded from [Street A] up the common driveway towards the areas, on their own lots, in which they park their respective cars.

This is most emphatically the case for the appellants at the place, about half way up the driveway, where their stone stairs limit even further the amount of their own land on which they can drive without encroaching on the land belonging to the Hassans. Evidence from the report of appellants’ architect Orest Hummery dated February 15, 2007 confirms that even if they were to remove their stone steps near the mid-point on their side of the driveway, they would be still obliged, especially in the winter months, to encroach on their neighbours’ land as they proceed up the driveway in a standard-sized car.

Access by a larger vehicle would most likely be impossible. [ 50 ] Evidence from Dr François Primeau, a previous owner of the appellants' lot, indicated that this issue of access from the public road and up the driveway had been a feature of relations between the neighbours for many years before Mr Yazedjian and Ms Gratton moved in at 1844 [Street A] in 2004.

Mr Hassan's affidavit of November 27, 2006 recorded that he and his wife had always tolerated this encroachment and, reciprocally, that the owners of 1844 [Street A] had always tolerated that the Hassans encroach on their land at that same point of entry. [ 51 ] As the trial judge himself observed in his reasons, "[e]ach side acknowledges that while driving down the driveway they have consistently gone over the central line which delineates ownership". [15] In respect to the point of entry to the common driveway and for the portion leading up to the back of the driveway, the trial judge made several further observations to similar effect, noting that it was agreed that both the parties encroached on each other's land, by necessity and not just by convenience, in proceeding to their respective parking areas by car and that had been a longstanding state of affairs. [16] [ 52 ] This is an economic enclosure as that concept is understood in the decided cases. [17] Adequate access to the public road by automobile in a residential neighbourhood such as the one on [Street A] is understood to be a normal aspect of home ownership. [18] Courts have noted that winter conditions, which would bring increased difficulty in negotiating this already narrow driveway, are relevant to the measure of economic enclosure. [19] There is evidence in the record that inclement weather even caused the respondents to trespass onto the appellants’ side of the driveway.

As I have noted, the architect Orest Hummeny’s report recorded the particular difficulty of proceeding by car from [Street A] up the driveway. Mr Hassan acknowledged this in his own testimony, even though he insisted that it is technically possible for a car to pass within the property line, including in the place where the steps made the driveway especially narrow. [20] [ 53 ] The Hassans freely admit that they tolerated this encroachment on their land until recently but no longer wish Mr Yazedjian and Ms Gratton to drive on their portion of the driveway.

While the encroachment was tolerated, it was not necessary to seek out the recognition of a right of way, but it plainly is now.

It is a well-known principle that as long as an encroachment is tolerated, there is no enclosure because "l'insuffisance du passage doit être effective". [21] But when the Hassans refused to allow cars owned by Mr Yazedjian and Ms Gratton to continue encroaching on their land in 2006, as construction of the new garage became a reality, the land became enclosed to the public road. [22] [ 54 ] Rather than measuring whether the appellants were economically enclosed at the point of entry of the common driveway and at the narrow point corresponding to the stone stairs, the trial judge misdirected himself by focusing principally on the back portion of the common driveway.

Because he felt that the encroachment at the back was caused by the voluntary choice of the appellants to expand their garage, he ignored the evidence that the appellants were claiming to be enclosed from the public road. [ 55 ] Given the finding of an enclosure is a prerequisite for a right of way to be established pursuant to

article 997 C.C.Q., the judge wrongly decided to dismiss their application. He further ordered Mr Yazedjian and Ms Gratton to stay on their side of the driveway at

all times: 66. ORDERS Plaintiffs not to encroach on the Defendants/Cross-Plaintiffs’ property, lot #1,352,979; [ 56 ] With due deference to the trial judge, the foregoing order enjoining the appellants not to encroach on the respondent's land cannot be correct. A right of way exists onto the public road by operation of law, based on the evidence that the appellants’ land is enclosed onto [Street A], pursuant to

article 997 C.C.Q. Whether it extends to the whole of the contested portion at the back of the property, and whether some or all of that portion is excluded because it results from a "self-inflicted wound", is properly a matter for consideration in respect of the scope of the right. IV. The Site of the Right of Way [ 57 ] It remains to be determined what is the proper site of this right of way. [23] Plainly, the appellants must encroach on their neighbours' land as they turn into the driveway from the street and proceed up towards the southwest end of their lot to park.

But does the site also allow them to encroach on the Hassan's land at the back of the driveway in order to enter their new garage? [ 58 ] The nub of the dispute concerns the triangular portion of the driveway on the Hassan’s land nearest to the entrance of Mr Yazedjian and Ms Gratton's new garage. In particular, the question is whether the site extends to the portion of the Hassan's land at the top of the common driveway in such a way as to permit the appellants to manoeuvre a car into their new garage and to bar the Hassans from extending the fence.

It is plain that if the Mr Yazedjian and Ms Gratton cannot encroach on this land, they will be precluded making appropriate use of the new garage. [ 59 ] Yet as the judge rightly suggests, the restriction presented by an enclosure cannot originate in

an act of the person enclosed. [24] It would be inappropriate to fix the site of the right of way based on the emplacement of the new garage that Mr Yazedjian and Ms Gratton chose to build as a replacement of the former annex near which they previously parked.

The trial judge should have established the site of the right of way based on the situation of the land prior to the construction of the new garage. [ 60 ] Was there encroachment in the disputed triangle on the land of the respondents prior to the construction of the new garage? [ 61 ] In the conclusions to his judgment, the trial judge did not rule on the parameters of the site of the right of way.

As noted above, he concluded that the appellants' land was not enclosed by reason of their choice to build the new garage – the "self-inflicted wound" – which led him to the erroneous conclusion that there was no right of way. He made several allusions to evidence in respect of the state of affairs in the back portion of the common driveway prior to the construction of the new garage. But in the end, because of his finding that there was no enclosure, he made no formal finding of fact on this point.

On appeal, however, the Court is compelled to decide the matter given that there is an enclosure. [ 62 ] The evidence on point is uneven. The appellants say that this land was used when cars were parked in the old garage at the back of the house. The old garage was entered after taking a wide turn on the driveway in order to manoeuvre around the now demolished annex. The appellants claim to be merely continuing this past encroachment on the Hassan's land established through a longstanding use.

Ms Gratton testified that the triangular portion of land was used prior to the construction of the new garage and that, if anything, the encroachment is lesser now than it was previously because the new garage is slightly set back from the house, thereby allowing for some more room to manoeuvre. Mr Yazedjian testified to the same effect. The architect's report, prepared at the request of the appellants, confirms their testimony that the Hassan's land was encroached upon previously.

The report includes diagrams indicating the estimated encroachment at the time of the old annex and the projected encroachment, which the architect estimated to be lesser, when the new garage is built.

The judge quotes from this report at length in his reasons but draws no final conclusion on the narrow point concerning the appellants' encroachment prior to the construction of the new garage. [ 63 ] At paragraph 43 of his reasons, the trial judge paraphrased evidence brought by Dr Primeau, the previous owner, who testified that "on occasion [Dr Primeau] used to back into the Hassan's courtyard, and then go forward to get to [Street A].

He also said that sometimes cars from the Hassan's house undertook a similar manoeuvre – they had to back their car onto his side of the driveway and then drive forward to proceed to [Street A]". [ 64 ] The Hassans, on the other hand, claim that Mr Yazedjian and Ms Gratton and their predecessors in title did not encroach on this litigious portion of the driveway.

Mr Hassan testified that his neighbours never used this portion of his land. [ 65 ] On balance, the evidence regarding the encroachment on the Hassan's land prior to the construction of the new garage is strongly suggestive that the site of the right of way does include the triangle of land in dispute at the top of the driveway. In preferring the account on this point of Ms Gratton, Mr Yazedjian, Dr Primeau and the architect, I note that Mr Hassan was observed by the trial judge to be acting inappropriately in several instances in his effort to stop Mr Yazedjian and Ms Gratton from using the driveway.

The trial judge did not shy away from saying that the conduct of the respondents occasionally amounted to bad faith (paragraph 35) and was at other times vexatious and troublesome (paragraph 17). [25] The judge also noted Mr Hassan’s constantly changing justifications for the extension of the fence, – he described the respondents’ changing reasons for wanting a fence as "like shifting sands" at paragraph 39 – thereby suggesting that this aspect of his testimony was so self-interested as to be unreliable.

The better view is that the appellants and their predecessors in title encroached on the litigious portion prior to the construction of the new garage. [ 66 ] It is of course true that this prior use does not establish a right of way in itself given that such a right cannot be acquired by prescription.

Once an enclosure has been observed, however, and a consequential right of way established by operation of law, the site of that right of way can be established through longstanding use. [26] I hasten to say that the site of the right of way, fixed as it is to scope by the extent of the encroachment that took place at the time of the old annex, will limit the encroachment permissible with the new garage in the future.

Counsel for the Hassans contended that the use of the new garage, in particular the angle at which a second car would be obliged to enter the parking area, would necessarily occasion a greater encroachment on his clients' land than was the case under the old annex. That may or may not be – it is enough to decide here that the site is fixed by the former use and that Mr Yazedjian and Ms Gratton must respect it, whatever use they make of their new structure.

V. Claims by the Hassans in the Incidental Appeal [ 67 ] The respondents ask for an order allowing them to extend the existing fence by 14 feet, as they had planned to do pursuant to the permit granted by the borough of Outremont. They also ask for an order for extrajudicial fees given what they characterize as an abuse of process by the appellants.

A) Demand for an Injunction Authorizing the New Fence [ 68 ] The trial judge dismissed the respondents' petition to extend their fence because he was of the view that the permit had expired and because their application for a new permit made during the proceedings for a new fence, extending the full length of the driveway, superseded the initial one. [ 69 ] The respondents claim that they were wrongly denied authorization to build the new fence. The permit had expired, but the expiry had taken place during the proceedings, and after an interlocutory safeguard order suspending application of the permit.

It would be unfair to deny them the permit based on its expiry during the proceedings. Moreover, the question as to whether the new application superseded the first is a question of law on which the parties had no opportunity to plead at trial. [ 70 ] The borough of Outremont, an impleaded party in the proceedings at trial and on appeal, takes a confounding position in this case. At trial, the borough filed a proceeding stating that the new permit solicited by the Hassans cannot be issued because it does not meet municipal by-laws.

The borough sided with the appellants in the conclusions it sought at trial, noting in its written representations before the Superior Court that the proposed fence would confirm that access to their land was enclosed: 7.

De plus, compte tenu de l'espace restreint qui restera de part et d'autre de la ligne de division, l'érection de la clôture aura ultimement pour effet de retirer tout accès praticable aux cases de stationnement des immeubles des demandeurs et des défendeurs, rendant inutilisables ces dernières, le tout contrairement à l'article 9.8 du même règlement; [ 71 ] Yet at the hearing on appeal, the borough no longer opposed the Hassan's permit for a new fence.

Mr Yazedjian and Ms Gratton were compelled, at the hearing, to contest the position of the borough that had been at their side at trial. [ 72 ] As hard as the borough’s about-face is to understand, its position on the validity of the permit is not material to the outcome of the appeal. [ 73 ] Substantively, the Hassans invoke their right, as owners, to fence in their property pursuant to

article 1002 C.C.Q. and argue that this is "in principle, an absolute right", citing the general rules on ownership of property. [ 74 ] The claim for an injunction authorizing the new fence must fail. Irrespective of the status of the permit, the respondents do not have the substantive right in the circumstances to fence in their property in a manner that would diminish the site of the appellants' right of way. As set forth above, the appellants enjoy a site for their right of way that allows them to encroach onto the portion of the common driveway that the new fence would block.

If the Hassans extended the fence, that portion of their land would become inaccessible as part of the right of way Mr Yazedjian and Ms Gratton need and the present enclosure would worsen. By extending the fence, the Hassans would be exercising a right that is an incident of ownership, to be sure, as recognized by

article 1002 C.C.Q. But they cannot do so in a manner that would create a neighbourhood disturbance for Mr Yazedjian and Ms Gratton. Here the appellants’ arguments in respect of

article 976 C.C.Q. are on firmer ground, in particular their reliance on the Gourdeau case. In that case, my colleague Thibault J.A. wrote how a raised wall caused a disturbance in the circumstances: [47] En l'absence d'une servitude de vue en faveur de l'immeuble des appelants, l'auteur des intimés disposait du droit, bien légitime d'ailleurs, de protéger son intimité. Mais ici le moyen retenu dépassait largement les mesures normales et acceptables. Par rapport à l'objectif recherché, la hauteur des murs est démesurée et excessive et leur configuration totalement inacceptable.

Le droit à l'intimité devait s'exercer dans le respect du droit des voisins d'accéder à leur propriété et d'y jouir, non pas d'un droit de vue, mais des bienfaits de l'air et de la lumière. [48] C'est précisément dans ces situations que doivent intervenir les règles de bon voisinage. Des droits opposés s'affrontent, mais personne ne doit subir les inconvénients anormaux des actes excessifs posés par un voisin.

Il s'agit, en réalité, de soupeser les inconvénients subis par chacun des voisins et de réprimer les abus, de part et d'autre en regard de l'exploitation légitime et normale de leur héritage. [27] [ 75 ] There is a plain analogy in the present circumstances. If the Hassans were to extend their fence in a manner that aggravated the enclosure of their neighbours they would create a disturbance pursuant to

article 976 C.C.Q. In anticipation of this, and by way of avoiding further unhappiness between the parties, it is appropriate to refuse permission to build the fence. [ 76 ] For this reason alone, the claim for an injunction must fail.

B) Claim for Extrajudicial Fees [ 77 ] The Hassans contend that Mr Yazedjian and Ms Gratton acted in bad faith in building the new garage in violation, they say, of municipal by-laws and knowing that they did not possess a servitude. They acted in bad faith by instituting proceedings for an injunction and by appealing the judgment in first instance, all of which constituted an abuse of procedure entitling them to a remedy. [ 78 ] The claim for extrajudicial fees should not be granted.

The conduct of the appellants is not of the order identified by the Court in Viel [28] and Royal Lepage [29] that would justify condemning them to pay extrajudicial fees. There is no evidence that they have shown bad faith in the pursuit of their proceedings. They believed that they benefited from a right of way that justified their encroachment on the driveway. They proceeded to build the garage in consequence. The municipality issued a permit for the project.

If the approved project violated municipal by-laws – and the Hassans have not demonstrated this to my satisfaction – it does not stand as an instance of bad faith on the part of Mr Yazedjian and Ms Gratton in their proceedings in the present case.

*** [ 79 ] I would allow the appeal with costs in both courts, and have the Court declare that the immovable at 1844 [Street A] is enclosed within the meaning of

article 997 C.C.Q. I would order that the respondents allow the appellants a right of way on the common driveway, including the right to encroach on the respondent Edward Hassan's land in so far as necessary to enjoy adequate access by automobile to the street. The site of the resulting right of way should be fixed according to the plan prepared by land surveyor Claude Simard, dated July 18, 2006 (minute 13826), and attached hereto to form part of this judgment. [ 80 ] I would also dismiss the incidental appeal, with costs. NICHOLAS KASIRER, J.A.