Case information

Property — Real property — Easements — Torts — Nuisance — Courts — Judges — Self—represented litigants — What is extent of duty of trial judge to assist self-represented litigant? — What is effect on fairness of trial involving a self-represented litigant of party calling witnesses at trial contrary to Simplified Procedure Rules? — What is extent of trial judge's gatekeeper function in relation to introduction of hearsay evidence at trial involving self-represented litigant?

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The parties have been adjoining commercial property owners in New Tecumseth, Ontario, since 1991. Ms. Marks carries on a restaurant/bar business on her property. The Bergs have a pizza shop in the front, an upper level apartment, and three apartment units in the back. There is a laneway that runs between the two properties at the end of which there is a catch basin, which is connected by a pipe to a municipal storm sewer. Ms. Marks owns the laneway, but the Bergs have a right of way “in, over and upon” the laneway for ingress and egress to their property. The extent of that easement was in dispute between the parties, and in particular, whether it extended to permit the Bergs to maintain the existing drainage infrastructure, including the catch basin and drainage pipe, located under the surface of the laneway.
In 2010, Ms. Marks’ partner poured a concrete pad over the catch basin due to concerns about an ill-fitting lid for the catch basin that Ms. Marks believed was hazardous and exposed her to potential liability for personal injury. After the concrete pad was constructed, water pooled in the rear parking area. The Bergs’ property was damaged by pooling of water. They commenced an action, seeking a declaration of entitlement to a right in, over, and upon the laneway and damages for the cost of reinstating the catch basin, the cost of repair work for their basement apartment, and loss of rental income. Ms. Marks was unrepresented at trial. The trial judge found for the respondents and awarded damages. The decision was upheld on appeal.