2021 NLSC 169, 2021 NLSC 169

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Stairs v. Baker , 2021 NLSC 169 Date : December 17, 2021 Docket : 202106G0105 Between: Anthony Stairs First Applicant And: Catherine Stairs Second Applicant And: Roger Baker First Respondent And: Debbie Baker Second Respondent And: Wayne Whalen Third Respondent And: Raina Lambert Fourth Respondent And: Bonnie Dean Fifth Respondent And: Anthony Dean Sixth Respondent

Before: Justice Peter A. O'Flaherty Edited Reasons for Judgment Given Orally Place of Hearing: Clarenville, Newfoundland and Labrador Date of Hearing: November 23, 2021 Date of Oral Judgment: December 8, 2021

Summary: An interlocutory injunction was granted to restrain continuing interference with the Applicants’ use of land over which they claimed a prescriptive easement. Appearances: Vanessa M. Laite Appearing on behalf of the Applicants Roger Baker Appearing on his own behalf Debbie Baker Appearing on her own behalf Wayne Whalen Appearing on his own behalf Raina Lambert Appearing on her own behalf Bonnie Dean Appearing on her own behalf Anthony Dean Appearing on his own behalf Authorities Cited: CASES CONSIDERED: RJR-MacDonald Inc. v. Canada (Attorney General) 1994 SCC 117; Coady v.

Dicks , 2004 NLSCTD 139 ; Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 , 68 A.P.R. 431 (Nfld. Dist. Ct.) ; Franklin v. St. John’s (City) , 2012 NLCA 48 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D REASONS FOR JUDGMENT O'Flaherty, J. : INTRODUCTION [ 1 ] Anthony and Catherine Stairs (the “Applicants”) have lived at 6 Whalen’s Way in the community of Caplin Cove, Newfoundland and Labrador, since September 27, 2012, when the property was acquired from Stanley Whalen and Woodrow Whalen by Catherine Stairs’ parents. The Applicants have owned the property since May 30, 2017.

[ 2 ] Since they moved to 6 Whalen’s Way in September 2012, the Applicants have used a parking area across the road from their property for parking their vehicles and the front half of an adjacent shed for the storage of their personal property and firewood. The Applicants say that at the time 6 Whalen’s Way was purchased they were present when Catherine Stairs’ parents were told by Stanley Whalen that the parking area and front half of the shed were for the use of the owners of 6 Whalen’s Way.

They claim that, by virtue of the acquisition of 6 Whalen’s Way and their open use of the parking area and the front half of the shed since 2012, they have acquired a prescriptive easement over the land. [ 3 ] The Respondents are three members of the Whalen family and their spouses. Debbie Baker (nee Whalen) and her husband Roger Baker lived at 8 Whalen’s Way, immediately west of the Applicants’ property, from March 2010 until March 31, 2021. Ms. Baker’s brother, Wayne Whalen, and his spouse Raina Lambert, live at 2 Whalen’s Way, and on June 1, 2021, they were conveyed 8 Whalen’s Way by the Bakers.

Bonnie Dean (nee Whalen) and her husband Tony Dean live in Southport, Newfoundland and Labrador. The Respondents say the parcel of land containing the parking area and the shed belongs to the owner of 8 Whalen’s Way, or is family land. They claim the Applicants had permission to use the parking area and the front half of the shed in September 2012, but only until the Bakers wanted to develop their land across the road. They argue that Mr. and Mrs.

Stairs are overreaching and attempting to use the court process to acquire rights over the land that Stanley Whalen did not and could not have granted. [ 4 ] The issue of whether the Applicants have the permanent right to use the land or merely had a permission revocable by the Bakers came to a head on April 26, 2021. Citing the removal of a wheelbarrow from the back half of the shed, the Bakers gave the Applicants written notice that their right to use the parking area and half of the shed was terminated as of May 10, 2021.

The Applicants rejected the notice, pointing out that the Bakers have no registered title to the land across the road. On May 20, 2021, Wayne Whalen blocked the Applicants’ access to the parking area by placing boulders down the middle of the parking area and across the top using an excavator. A potentially dangerous stand-off then took place when Anthony Stairs stood in front of the excavator to stop it proceeding and ultimately the Royal Canadian Mounted Police (RCMP) had to be called to restore the peace.

On June 4, 2021, a boulder placed by Wayne Whalen in front of the Applicants’ vehicles was removed by the Department of Transportation and Works, and the Applicants resumed their prior use of the parking area and the front half of the shed. [ 5 ] Claiming ongoing interference with their enjoyment and use of the parking area and front half of the shed based on the Respondents’ pattern of conduct from May 21, 2021, a proceeding was commenced by the Applicants on August 26, 2021, for a prescriptive easement and for a permanent injunction restraining the Respondents from interfering with their rights of use of the parking area and the front half of the shed.

On the same date, they brought an Interlocutory Application for an injunction prohibiting the Respondents from interfering with the Applicants’ use of the parking area and the front half of the shed or disturbing their survey pins until the legal dispute over the nature of their rights to the land is finally disposed of at trial. [ 6 ] On November 23, 2021, the Interlocutory Application for an injunction was heard. For the reasons that follow, I have decided that the Applicants are entitled to an interlocutory injunction pending a final decision after trial.

THE ISSUES I MUST DECIDE [ 7 ] An interlocutory injunction is an equitable remedy. While its availability is referenced in Rule 22.01 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D , the authority to grant injunctive relief is part of the inherent jurisdiction of a judge of the Supreme Court of Newfoundland and Labrador.

An interlocutory injunction is not a legal claim or cause of action, it is a remedy granted from the date it is ordered until the legal claim or cause of action raised in a proceeding is finally decided by the court, provided the moving party can satisfy certain legal and evidentiary prerequisites. [ 8 ] The question of the Applicants’ entitlement to an interlocutory injunction in this case must be decided based on the Application of the legal test for the granting of an interlocutory injunction outlined in RJR-MacDonald Inc. v. Canada (Attorney General) , 1994 SCC 117.

The three issues I must decide under the test are: 1. Have the Applicants established there is a serious issue (as opposed to a frivolous claim) to be tried in the main proceeding? 2. Have the Applicants established they are suffering or will suffer irreparable harm from the conduct they seek to restrain pending a final decision? 3.

Does the balance of convenience favor granting or refusing the injunction? [ 9 ] In addition, to justify the issuance of an interlocutory injunction, a final requirement is that the Applicants must file with the Court an undertaking to abide by any order concerning damages that the Court may make against them in the event they are unsuccessful in establishing their claim to a prescriptive easement at trial.

THE EVIDENCE [ 10 ] The Applicants have filed an Interlocutory Application supported by the Affidavit of Anthony Stairs and Catherine Stairs dated August 3, 2021, and an Affidavit in Support of Application of Anthony Stairs dated October 6, 2021. Anthony Stairs was cross- examined on his Affidavits by Respondent Debbie Baker. [ 11 ] The Respondents have filed an Affidavit of Debbie Baker dated October 25, 2021, an Affidavit of Wayne Whalen dated October 25, 2021, and an Affidavit of Bonnie Dean dated October 25, 2021. Each of the Respondents was briefly cross-examined on their Affidavits. [ 12 ] Attached as

Schedule B to the Affidavit of Debbie Baker is a letter from Stanley Whalen dated May 15, 2021, which addresses

an issue that he describes as “some discrepancy regarding the Whalen land, which is located across the road from the house that was purchased from me, Stanley Whalen.” Suffice it to say that Stanley Whalen’s version of the discussion he had about the use of the shed and the land across the road when Catherine Stairs’ parents purchased the house in September 2012 is markedly different from the Applicants’ recollection. The Court was advised by the Respondents that Mr.

Whalen was available to be called as a witness on the Interlocutory Application however, as I explained to the Respondents, the resolution of any credibility issues relating to the merits of the Applicants’ claim to a prescriptive easement and the defence raised by the Respondents is an issue for the trial of the matter when the viva voce evidence of the witnesses can be heard by a trial judge. ANALYSIS 1. Serious Issue to be Tried [ 13 ] In the proceeding, Mr. and Mrs.

Stairs claim a prescriptive easement over a parcel of land containing the area where they park their vehicles and the front half of the shed, and a permanent injunction preventing the Respondents from interfering with the Applicants’ right to use the land. [ 14 ] In the law of property an easement is considered an incorporeal hereditament, which means that the associated rights of use are of a nature that are considered to “run with the land” when it is conveyed to a new owner. A “prescriptive” easement is a type of easement acquired by the open use of another’s land without the express permission of the owner.

As Justice Handrigan stated in Coady v. Dicks , 2004 NLSCTD 139 , relying on the ratio of the decision of Steele, J. in Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 , 68 A.P.R. 431 (Nfld. Dist. Ct.) : 49 … Prescriptive easements are established by "user as of right", practiced nec vi ("without violence"), nec clam ("not secretly") and nec precario ("without permission")24. 50 "User as of right" is the antithesis of permitted user in the discussion of prescriptive easements. Express permission defeats prescriptive easements.

Prescriptive easements will be established if the owner of the servient tenement acquiesces in the use of his property. Acquiescence is silent or passive assent or submission, or submission with apparent content. It is to be distinguished from avowed or express consent on the one hand, and from opposition or open discontent on the other. It might be appropriately called "quiet satisfaction".

The servient owner cannot be said to "acquiesce" in the dominant owner's use if he has given the dominant owner express permission, the dominant owner has used force to obtain or to sustain the use or the servient owner has not known that the dominant owner was using his property. [ 15 ] In Franklin v. St.

John’s (City) , 2012 NLCA 48 , Wells, C.J. confirmed the rule that evidence of uninterrupted user for a period of twenty years with acquiescence of the servient owner will be required to establish a prescriptive easement: 35 In this province, therefore, the fictional presumption of lost modern grant has now matured into a clear rule, on analogy with limitations legislation: that evidence of uninterrupted user, of the nature described in Henley v.

Ryan , for a period of at least twenty years with acquiescence (knowledge of the user, coupled with the power to stop it or sue in respect of it, and abstinence from such action or suit) of the owner of the land, will result in an easement by prescription. [ 16 ] In determining whether the Applicants have established that there exists a serious issue to be tried with respect to their claim to a prescriptive easement, or to put it another way, that theirs is not a frivolous claim to a prescriptive easement, it is necessary to make a preliminary assessment of the evidentiary basis advanced for the Applicants’ claim and of the evidence placed before me by the Respondents on the Application in defence of the claim.

It is not necessary at this stage, nor is it my role, to decide the merits of either the Applicants’ claim or the defence raised by the Respondents. Those are clearly matters for trial. [ 17 ] As to their open use of the parcel of land, the Applicants allege that the space for their two vehicles to park and the front half of the shed have been openly and continuously used by them since September 2012.

The Stairs further allege that the parking area and front half of the shed were also used by the former owner of 6 Whalen’s Way, Stanley Whalen, in the same means the Applicants now use them, and that Stanley Whalen ran an electrical power line to the front half of the shed from 6 Whalen’s Way. The Applicants claim that Stanley Whalen’s open use of the land across the road dates back to the early 1990s from the time when he inherited the property from his father, Ebenezer Whalen.

The Respondents did not directly challenge these factual assertions in cross-examination of Anthony Stairs. [ 18 ] As to the Applicants’ use of the land across the road without permission from the servient owners, at this stage the evidence of who has beneficial ownership of the servient land is incomplete. There was no abstract filed of the title to the parcel of land.

The evidence filed on the Interlocutory Application confirmed that the Applicants’ title to 6 Whalen’s Way was acquired through Stanley Whalen and that the Bakers’ title to 8 Whalen’s Way was acquired through Stanley Whalen’s brother, William Whalen, who lived next door; however, neither deed references the land across the road.

The evidence filed by the Respondents claims that the parcel of land across the road is now owned by Wayne Whalen, through the Bakers, or alternatively that the parcel of land is still “family land” of the Whalens that was owned by Ebenezer Whalen and was then passed to his son, William Whalen.

Presumably these evidentiary gaps will be addressed at trial. [ 19 ] In so far as the Bakers claim that they were the beneficial owners of the parcel of land from 2012 until 2021, when they lived at 8 Whalen’s Way, Anthony Stairs provided evidence of the Applicants’ use of the land across the road without their permission and in effect with their acquiescence. [ 20 ] Mr. Stairs deposed that the Bakers have parked their vehicles in a separate area of the parcel from the Applicants, and instructed visitors to 8 Whalen’s Way not to park in the area used by the Applicants.

He claimed that the Applicants removed a rotten timber structure in front of the shed replacing it with fill to make an additional parking space. As to the shed, which the evidence showed has two doors and a divider in the middle, Mr. Stairs testified the Bakers allowed the back half to fall into disrepair. He deposed

the Applicants repaired and maintained the front half of the shed by such acts as replacing the door and lighting in the shed, and they always insured and paid for the electricity in the front half of the shed. The electricity was connected by a line run from 6 Whalen’s Way by Stanley Whalen when he was in occupation of 6 Whalen’s Way and ran uninterrupted until November 2021 when the Applicants were required to disconnect the line because Wayne Whalen reported the line to the authorities. Finally, Mr.

Stairs testified that when the Bakers wished to run a septic service line under the front of the shed they identified the Applicants as the owners of the front half of the shed to Service NL, and the Applicants refused to allow the placement of the line. [ 21 ] The Respondents did not directly challenge any relevant factual assertions regarding the Applicants’ use with acquiescence of the Bakers in cross-examination. In fact, while questioning Mr.

Stairs, Debbie Baker confirmed that the parking space was excavated and the fill was placed by the Applicants without “ask[ing] me or my husband.” She questioned Anthony Stairs about why the Applicants “did not agree to pull [the entire shed] down” due to the dilapidated condition of the back half of the shed, and she referred to the front of the shed in questioning Mr.

Stairs as “your half of the shed.” During her own cross-examination she agreed she would not enter the front half of the shed without permission. [ 22 ] The claim advanced by the Applicants is to a prescriptive easement over the land containing the parking area and front half of the shed. The defence raised by the Respondents is that the use of the land was by permission of the Bakers.

Based on the record before me, there is sufficient evidence based on the open use by the Applicants of the land in question, without the express permission of the Bakers who claim to be the servient owners, and the same open use of the land in question by Stanley Whalen, without the express permission of the servient owners, to establish that there is a serious issue (as opposed to a frivolous claim) to be tried in the main proceeding, namely whether the Applicants have a prescriptive easement. 2.

Irreparable Harm [ 23 ] The second requirement for the granting of an interlocutory injunction is that the Applicants show they are suffering, or will suffer, irreparable harm if the conduct that the injunction seeks to restrain is not prohibited pending trial. The Applicants submit that they are suffering or will suffer irreparable harm because they have no other place to park their vehicles or store their wood, personal items, and tools.

They further submit that they are being disturbed in the peaceful enjoyment of property and that in cases involving interference with important property rights an injunction is the preferred remedy as damages are presumed inadequate. [ 24 ] In RJR-MacDonald , supra at paragraph 64, the Supreme Court of Canada explained what must be demonstrated to establish that a claimant is suffering, or will suffer, irreparable harm if the court does not intervene to prevent the conduct of which is complained.

The court stressed that the focus is on the nature and intensity of the harm, not its magnitude, and famously defined irreparable harm as “harm that either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.” It is now well-accepted that the first category of irreparable harm in the RJR-MacDonald definition is properly reformulated as “harm that (either) cannot be readily quantified in monetary terms,” which means that irreparable harm can be established by evidence that shows that damages are difficult to ascertain rather than impossible to ascertain. [ 25 ] In this case the conduct that the injunction seeks to restrain pending trial is set out in paragraph 17 of the Interlocutory Application, which recounts a pattern of interference with property rights and harassment of the Applicants from May 21, 2021, forward, which Anthony Stairs deposes in paragraph 16 of his Affidavit has caused Ms.

Stairs “extreme anxiety to the point where she’s had a panic attack and is afraid to be alone in the house.” The evidence establishes that the RCMP have been called to the location and the Applicants have now commenced a Peace Bond Application. The Applicants allege that they have no other realistic place to park their vehicles, or store their wood, without a significant redevelopment of their property.

They allege the Respondents will, if not restrained, continue to interfere with their peaceful enjoyment of the property rights they have exercised since September 2012. [ 26 ] The question of irreparable harm can in my view be determined in this case based on the nature and intensity of the harm complained of by the Applicants. The undisputed evidence establishes that since May 21, 2021, the Applicants’ property rights have been continuously interfered with to the extent that Catherine Stairs has had a panic attack and is afraid to be alone in her own home.

The RCMP was called to the location to intervene to defuse a potentially dangerous stand-off and a peace bond has been requested. This evidence attests both to the Applicants’ subjective view of the ongoing conduct of the Respondents and the objective seriousness of the situation.

In my view, the nature and intensity of the harm being suffered when a citizen is afraid to be alone in her own home qualifies as “harm that … cannot be readily quantified in monetary terms.” I therefore find that the Applicants are suffering irreparable harm based on the ongoing interference by the Respondents. [ 27 ] Further, there is evidence before me that the interference complained of is harm that cannot be cured because the Applicants would not be able to collect an award of damages from the Respondents.

The Respondents have testified that the Bakers have vacated 8 Whalen’s Way for financial reasons and the Court was told the Respondents do not have the means to engage private legal counsel. [ 28 ] For these reasons, I conclude that the Applicants have established they are suffering or will suffer irreparable harm from the ongoing conduct they seek to restrain pending a final decision. 3. Balance of Convenience [ 29 ] In the third part of the test in RJR-MacDonald the balance of convenience, or inconvenience, must be weighed.

The question to be addressed is whether the Applicants would suffer greater harm from the refusal of the remedy pending a decision on the merits than the Respondents would suffer if I granted it. [ 30 ] The Applicants submit that if the remedy is not granted the interference with their rights will likely continue.

They submit that the Respondents will not suffer any inconvenience because they do not live in Caplin Cove or use the property, with the exception of Wayne Whalen and Raina Lambert, who live at 2 Whalen’s Way, and that their “use” of the land across the road has only started since March 2021. [ 31 ] Based on the evidence of interference to date, including the most recent actions of Wayne Whalen in November 2021 to interfere with the continued running of an electrical line from 6 Whalen’s Way to the front half of the shed on the premise that a fire

could result, I agree with the Applicants that the Respondents are unlikely to let this legal proceeding unfold without continuing to interfere with the Applicants’ peaceful occupation and use of the parking area and front half of the shed across the road.

I therefore conclude that refusal of the remedy pending a decision on the merits will likely result in inconvenience to the Applicants because their use of the property will be interfered with and disturbed. [ 32 ] In my view, the inconvenience that will result to the Respondents if I grant the remedy is that the Respondents claiming to be the beneficial owners of the land, originally the Bakers and now Wayne Whalen, will be prevented pending a decision on the merits from selling or developing the portions of the land across the road, which have been exclusively used by the Applicants since 2012.

The Respondents will not otherwise be prevented from being present on and lawfully using the land across the road, including the back half of the shed, provided of course that they do not use that opportunity to interfere with the Applicants’ use of their parking area or the front half of the shed, and do not interfere with their survey pins. [ 33 ] I have concluded that greater inconvenience will flow from the refusal of the remedy than from the granting of the remedy pending a decision on the merits, and I find that the balance of convenience favours the granting of the interlocutory injunction. 4.

Undertaking in Damages [ 34 ] On November 26, 2021, the Applicants filed a written undertaking with the Court to pay damages for the loss sustained by the granting of the interlocutory injunction if the Respondents are successful at trial. DISPOSITION [ 35 ] I have concluded that there is a serious issue to be tried, that the Applicants have suffered and likely will suffer irreparable harm if the conduct complained of is not restrained pending a decision on the merits, and that the balance of convenience favours the granting of the interlocutory injunction. [ 36 ] I therefore order: 1.

An interlocutory injunction prohibiting the Respondents from interfering with the Applicants’ use of the parking area where they have parked their vehicles; 2. An interlocutory injunction prohibiting the Respondents from interfering with the Applicants’ use of the front half of the shed; and, 3. An interlocutory injunction prohibiting the Respondents from interfering with the Applicants’ survey pins. [ 37 ] Costs of the within Application shall be costs in the cause. _____________________________ Peter A. O'Flaherty Justice