Fence Bylaw Dispute

The Following is a record of all communication with the owners of 13 Collahie St. beginning on July 29th 2022, when we requested that the fence height adhere to the City Bylaws.  ** The correspondence is presented chronologically

From: Brian Kieller <[email protected]>
Subject: A note: re fense and concent
Date: July 29, 2022 at 8:13:11 PM EDT
To: Jonathan Poole <[email protected]>, Alana Cundy <[email protected]>
Cc: Brian Hewlitt <[email protected]>

Jon, 

I just wanted to document the fact that you decided to proceed with building the fence in violation of the 2 metre height restriction without my consent.

Although I’m certain that was painfully obvious to everyone present 😉

Brian Kieller
15 Collahie St.
Toronto M6J 1T6 

From: Brian Kieller <[email protected]>
Subject: Re: A note: re fense and concent
Date: July 31, 2022 at 9:07:32 AM EDT
To: Jonathan Poole <[email protected]>, Alana Cundy <[email protected]>
Cc: Brian Hewlitt <[email protected]>, Cristine Giampaolo <[email protected]>

All, 

Regrettably, since we were unable to come up with a suitable compromise, I’ve been advised that the most fair coarse of action is to set the fence to code.

This should be easy to accomplish, since the code is entirely understandable, the fence should free standing and not to exceed a height of 2 metres.

Sadly, I realize that this still leaves us to address any privacy concerns (sans fence).  I recall Alana expressed some ideas around using ‘plantings’ that sounded feasible.

I’ve also cc’ed Cristine who has kindly offered to bring both her viewpoint and work efforts in order to ensure we have a beautiful outdoor environment that we all can enjoy.

Please confirm receipt of this email prior to proceeding on any other work (I would hate to have Craig have to undo any more then what was already done).

Thank you,

/Brian

From: Brian Kieller <[email protected]>
Subject: IMMEDIATE REPLY REQUIRED, RE: COLLAHIE FENCE
Date: August 1, 2022 at 2:46:37 PM EDT
To: Jonathan Poole <[email protected]>, Alana Cundy <[email protected]>
Cc: Brian Hewlitt <[email protected]>, Cristine Giampaolo <[email protected]>, Craig <[email protected]>

WITHOUT PREJUDICE

Alana and Jonathan

I have received no reply from either of you to my earlier emails re: the fence between our two properties. Rather, it has come to my attention that, not withstanding our inability to mutually agree on the height of the finished fence, which is the current cause of issue at present, you have unilaterally decided that the fence should in fact be moved from the line legally established by the previous (and now current) fence; and have already directed the contractor (cc’ed) to relocate the fence so as to materially encroach on my property.

It is apparent that your current decision and intended course of action is both spiteful and inflammatory on your part, borne out of a reasonable request on my part to lower the total height of the fence from its already considerable 8-1/2 feet by an almost inconsequential 4’ to 5 inches.

As you well know, any deviation of fence height above the 2 metre bylaw limit does require the mutual agreement of both parties involved. I am left to conclude that your previous refusal to agree and now this most recent decision to direct the fence be moved over the property line established by the current fence, are not in any way a good-faith effort to come to agreement and in fact are wholly punitive actions on your part in an effort to coerce and intimidate me to allow this clear impingement on my legal property.

It was suggested by you that you would be approaching the City of Toronto to seek a ruling / judgement as to the legal location of the fence. I not only fully support your undertaking to seek such ruling / judgement from the City, but in fact insist that you do so before any further work on or changes to the fence is advanced.

Therefore, I propose that all work on the fence cease immediately, until such ruling and clarity from the City can be sought and evidenced. I require your immediate reply in writing confirming your intentions consistent with this undertaking, no later than tomorrow August 2nd, 2022 at 9am.

Failure to do so will result in you forcing me to seek a stop work order from City and/or any necessary injunction to work proceeding until an inspection and ruling from the City can be obtained.

I regret that the current situation has precipitated from our inability to come to a mutual agreement on the fence height – a matter I still feel could have and still can be reasonably reached, notwithstanding your unnecessarily aggressive, reactionary and unfounded actions.

Please advise immediately so that we may avoid additional escalation to an otherwise straightforward process of agreement.

Respectfully,

Brian Kieller, Owner
15 Collahie Street,
Toronto, ON

On Aug 2, 2022, at 3:24 AM, Jonathan Poole <[email protected]> wrote:

Dear Brian and Christine,

Our delay in reply resides solely in the fact that it is a holiday weekend and we’ve been occupied with prior plans.

As always, we value direct & respectful communication and have worked hard for consensus which was achieved with Brian in June 2022 prior to construction of the fence. The values set forth by us and Brian were privacy and a reasonable and comfortable height for both households.

Please consider the following points and facts discussed openly with Brian over the past several years regarding the fence:

1. The fence was built on our side of the property before we bought #13 Collahie street. We often discussed the matter with Brian and clarified numerous times that when the fence was replaced it will move back to the property line. A survey was conducted in October, 2017. The survey was made available to Brian & our eastern neighbor, Janice, in 2018 via email along with the house plans for the renovation. In addition, prior to the renovation construction in April, 2019, Brian was briefed in person with a hardcopy of the survey demonstrating the misalignment of the fence and the property line. Brian expressed cooperation and understanding that this was reasonable and fair. The survey cost 3 400$ and it speaks to our intentions to be precise and fair on matters concerning our home and that of our neighbours. The survey is attached below.

2. As a gesture of goodwill, we offered to pay for the construction of the fence given that the 2019 renovation would be long and extensive. Please note our extensive renovation was undertaken due to toxic levels of mold found in our dwelling despite having completed a full and professional mold remediation in 2013. At the time, Brian and Janice conducted themselves with courtesy and respect which we appreciated.

3. Brian has cited many times over the years his preference that we not see into his yard. We reciprocated his value for privacy as our feelings on the matter are mutual. Brian erected a privacy curtain for several years (see pic below). Brian chose to hang his privacy curtain 10 feet 4 inches (3.15 M) above grade and 8 feet 4 inches (2.54 M) above our deck.

Early conversations about Brian’s preferences for the fence began with the height of his privacy curtain. We did not feel that a height of 10 feet 4 inches (3.15M) above grade was necessary to achieve privacy and Brian agreed. From there, discussions about our new exterior light ensued. Light from our property had been a problem for Janice in the past and when we renovated the house we remedied the issue. We did not want to repeat light issues along Brian’s side. Brian said light seeping into his kitchen from our new exterior lights was not an issue and we mutually agreed the fence could finish below the light. When Brian removed his privacy curtain, as we approached the construction of the fence, we got out a tape measure. We measured out, with Brian, from the deck to a height of 6 feet. It was agreed by all parties that 6 feet (1.83M) from our deck was too low to allow for privacy on both sides of the fence. It was mutually agreed by both parties that 7 feet (2.13M) was too high and that the fence height should sit somewhere in between, give or take a few inches. It was agreed that Craig, the contractor, could use the width of the cedar boards to help determine the final height of the fence so that each board in the fence was equal to each other.

4. To clarify, we have not offered to call the city as the design of the fence falls directly in line with the by-laws of the city and are compliant with standards and precedence from local community councils for households where a neighbouring property’s exit is higher and/or in cases where there is a permitted deck. In Brian and Christine’s case, their exit is both higher and is adjacent to a permitted deck. We never felt it was necessary to pursue a fence exemption because Brian was willfully and cooperatively working with us and reaching consensus.

5. When discussing the possibility of stepping the fence, Brian was agreeable and positive about the idea. Craig explained the aesthetic benefits of such a design and we expressed our concerns over privacy given that Brian and his guests can see directly into our house when they enter Brian’s yard from the garage and this makes us uncomfortable and impacts the enjoyment of our home especially when Brian has a party in his backyard. This has always been the case since we moved in and we explained the importance of reducing the sight lines from Brian’s property directly into our living room. Brian offered no objections and agreed a stepped approach was a good solution and compromise. He expressed that he did not want the height of the fence at the deck to extend the entire length of the fence. We agreed. Brian continued to echo in a positive way our desire to match the steps of the fence on both sides of our property. Consensus was reached.

6. Craig was given the survey but instead of following the survey he made an honest mistake and misjudged where the property line and Brian’s garage meet. This was a genuine mistake on Craig’s part and is not part of an aggressive and unfounded action on our part to punish Brian. Further, we are confused by the accusation as Brian has been in possession of the survey since 2018 and it clearly shows where the property line and the dilapidated fence stood. See detailed survey attached.

7. As for hedges along the fence line, Alana misspoke and referenced an old landscaping plan that involved hedges similar to Brian’s cedars. Logistically, this plan is now impossible as there is no soil in that area of the yard and we cannot accommodate Brian and Christine’s request that we plant hedges on our property. Further, the destructive nature of the Virginia Creeper to Brian’s eaves and shingles on his garage and the vine’s current spreading onto their cedar hedges will invite the vine to cover and destroy any hedges we plant alongside the fence. Looking ahead, we will have a shed in the back with a green roof and do not wish to have the vine grow onto our side of the fence, our shed, or our house. The cost to repair subsequent damage from the vine is too high, as nice as the vine is. Also, please keep in mind that Brian was advised by our landscapers that Virginia Creeper is the preferred food of raccoons and that we frequently observe raccoons in Brian’s chimney from our 3^rd floor deck.

8. Our understanding is that Brian and Christine are upset and feel their rights are being compromised. We also understand that Brian believes the fence’s location is grandfathered-in and that he has legal claim to property beyond his side of the property line. Is this correct? Naturally, fence building is a “give and take” but our experience as of Thursday July, 29^th, 2022, is that Brian and Christine share little regard for our needs yet will gladly agree to use our money. Perhaps we have misunderstood and we welcome any clarifications via email so long as they are respectful, truthful and fair. For future reference, we do not respond to emails during weekends as we set that time aside for our kids.

9. The fence being built by Craig is designed to be as short as possible while allowing for privacy on our side as well as yours. Brian’s passionate stance that the fence should come down 4”-5” (remove one board) will sacrifice our privacy. Please see the picture below demonstrating the varying heights of the 3 stepped sections of the fence. Where an elevated deck is concerned, height recommendations are measured by the city from the deck and not grade. This design is fair and has been negotiated over a long period of time with Brian’s involvement. Going forward, please continue to reach out to us via email but desist from sending us threatening ones. Further, please do not misinterpret this long and detailed email as an invitation to pursue renegotiations on terms that were already settled.

10. Given the newfound difficulties regarding the fence and Brian’s communication style we feel it is best to minimize shared projects going forward. We’ve asked Craig to return Brian’s 40% contribution towards the shared drainage and downspout that has allowed Brian’s runoff to drain on our property since we bought the house. To be clear, this is a choice that has nothing to do with Craig. He is a consummate professional and is available to get you a quote to install a downspout on your own property. Craig does great work and we highly recommend him as we know he will do a great job and that he offers competitive rates. We feel this is the best way forward long term.

Please keep in mind that the delays imposed on Craig are costly, both to him and us. As you are not contributing financially to any aspect of the fence you are not impacted by holding the project hostage. We feel it is only fair that you notify us by Thursday, end of day, if you decide to pursue a course of action that will delay the construction of the fence beyond this week so that we can calculate our losses and mitigate further losses in materials, time and resources. Naturally, our hope is that Brian will honor and respect the time and effort and finances going into his enjoyment of the new fence which is to sit on the property line as per the survey and to reflect the heights he negotiated and participated in designating and that he provide us with adequate privacy that allows us to enjoy the interior of our home as well as our backyard as much as he and Christine do.

Regards,

Jon & Alana

On Aug 2, 2022, at 9:43 AM, Brian Kieller <[email protected]> wrote:

Thank you for your reply.

For clarity, will you be calling the city or shall I?

Please advise,

/Brian

From: Brian Kieller <[email protected]> 
Sent: Wednesday, August 3, 2022 1:21 PM
To: Jonathan Poole <[email protected]>; Alana Cundy <[email protected]>
Cc: Cristine Giampaolo <[email protected]>

Subject: Re: Fence 

Alana and Jonathon,

Upon further refection, both Cristine and I agree that the fence should be moved to exactly bisect or straddle the property line in order to ensure that there are no further disputes or misgivings by any party.

In order to do this, a surveyor is required to specifically locate and demark the property line at both the beginning and end of the fence so that Craig has a clear, unambiguous start and endpoint on which he can accurately locate the fence, as well as ensure it is compliant with all municipal codes. This is the only reasonable way for us to insure that there are no future issues or disputes over property boundary.

/Brian & Cristine

On Aug 4, 2022, at 12:47 PM, Jonathan Poole <[email protected]> wrote:

Dear Brian and Christine,

Straddling a fence over the property line in the city of Toronto requires both property owners to agree. Brian agreed to these terms already. Then changed his mind when the fence was ¾ built and has been on the warpath ever since.

Building a fence on the property line is for neighbours who choose to work together for their mutual benefit. It’s cost effective – especially if your neighbour is footing the entire bill.

Building a fence on your own property (and NOT on the property line) is the norm.

Brian led us to believe that he opted for the former, not the latter. We can’t speak to Christine’s intentions as she was never present at any of the design meetings nor did Brian, on any occasion, mention her preferences or desires. Or mention her at all.

Welcome to the conversation Christine. It’s high time we hear your voice and we heard it loud & clear last week from your not so private backyard. You hate the fence.

We are really happy that Brian and Christine have, upon further reflection, found common ground and now wish for the fence to be rebuilt onto the property line but it sounds like you might need time to figure out what you actually want going forward.

Here are a few things to consider:

1. Sharing a fence with us down the property line is not an option. That ship sailed when we and our contractor lost time and money. Brian’s insults, Christine’s hatred of privacy, overall misinformed demands and 100% reneging on his word was an eye opener and profoundly unexpected. We were all waiting for the two of you to come back to earth, Brian usually does. Instead, we received threatening emails, had our weekend destroyed and a well planned and super fun project turned into a nightmare. No sharing. It’s better this way.

Besides, Craig recuperates some of his losses and definitely won’t waste more time if he doesn’t have to move the fence. Major bonus. Money matters or maybe you think it grows on trees? We like Craig. We don’t like how Craig has been treated. Our feelings, not his. 

He’s a good guy and offered to move the fence to the property line. Thanks, but no thank you.

2. You do not need our permission to hire a surveyor. We already hired a surveyor and, therefore, don’t need one. Please read our previous email which details out and mentions the survey 10 times. There is no dispute over the location of the property line. Because we hired a surveyor. Already. 

3. Read the survey. 

4. The previous fence was on our property. What remains of the new fence is on our property. You can’t hang planters or grow a vine up it. You can’t use the posts for your own fence. You can’t tell us what materials to use. You can 100% call the city if we build it above 2M. That’s real. Hmmmmm, a 2M fence that offers inadequate privacy that costs us 5k and we still get to watch Brian eat breakfast in his underpants. Sounds like a bad deal. It is. Exactly what do we lose by having no fence? Nothing.

5. Retrades are bad. Retrades indicate you aren’t trustworthy and that you can’t stick to decisions.

6. Drop us a line when the grown-ups are back in the room. No prob if they never show up, you kids can build your own fence just the way you like it. 2M high, of course.

See you in your underwear.

JP + AC forever

From: Brian Kieller <[email protected]>
Subject: Surveyors Real Property Report Scheduled for 15 Collahie
Date: August 4, 2022 at 1:31:45 PM EDT
To: Alana Cundy <[email protected]>, Cristine Giampaolo <[email protected]>, Craig <[email protected]>, Brian Hewlitt <[email protected]>, Jonathan Poole <[email protected]>
Bcc: Graham Barrett <[email protected]>

All, 

Because the survey suppled by Alana and Jonathan was conducted previous to the construction at 13 Collahie St. I have scheduled a Surveyors Real Property Report to be conducted for 15 Collahie St. (I’m still awaiting the exact date that it will be conducted).

Once completed, we will have an exact positioning of where the real property lines are and the true placement of the existing structures which will allow Craig to complete his work. (And it should supply BH with what you will need as well)

Have a great afternoon,

/Brian

On Aug 8, 2022, at 12:12 PM, Cristine Giampaolo <[email protected]> wrote:

Jonathan and Alana,

While I found your last email mildly amusing, it’s evident that I need to clear up a few misconceptions.

Craig told us the morning of Monday August 1, 2022 that he was there to move the fence onto the property line as directed by you the night of Sunday July 31, 2022. With that in mind, when Brian stated that he and I were in agreement, he was saying that both he and I independently agree with YOU that the fence should be moved onto the property line.

Regarding privacy: Brian has already stated that privacy remains a concern, but I’m happy to say it again. Privacy remains a concern to both of us, and we will find decorative, non-intrusive ways to achieve this on our property.

Regarding the vine: I’ll take this opportunity to note that the vine, which is entirely blameless in all of this, pre-dates Brian’s purchase of 15 Collahie in 2000.

Regarding the shared fence, which also pre-dates Brian’s purchase of 15 Collahie in 2000, and was damaged over the course of your renovation, and which you were required to fix: it seems that your new proposal is that, rather than fixing what existed as is your obligation, you will now build a new fence entirely on your own property, wholly and exclusively owned by you.

Please explain how you feel that this approach makes us whole sufficient to the position we were in prior to your construction, ie. a beautifully green, jointly-owned, sided fence.

Lastly, since finances seem to be a running theme, we have in fact contributed to a new shared fence meant to replace an existing shared fence, which was damaged by your construction.

Hope that helps!

Cristine 

From: Brian Kieller <[email protected]>
Subject: Re: Fence
Date: August 8, 2022 at 1:52:39 PM EDT
To: Cristine Giampaolo <[email protected]>
Cc: Jonathan Poole <[email protected]>, Alana Cundy <[email protected]>, Brian Hewlitt <[email protected]>, Craig <[email protected]>

Thanks Cristine, 

I do think this is helpful.  Particularly the clarification around our agreement WITH Alana and Jon’s instructions to move the fence onto the property line.

What concerns me is that my statements can only be perceived as ‘unclear’ if there was a distinction between A) asking Craig the move the fence, and B) our “knowledge” that Craig was asked to move the fence.  Perhaps I misspoke, but In either case, the fact remains the same; Craig was asked to move the fence to the property line, and not by us.

/bk

On Sep 6, 2022, at 12:39 PM, Jonathan Poole <[email protected]> wrote:

Hi Brian

Can you please remove your trellis so the surveyors can gain access to the property line?

If you are out of town, can you please ask Jon to do it or please give permission to some one local.

The surveyors will be onsite tomorrow at 8am.

Regards

Jon and Alana

From: Brian Kieller <[email protected]>
Subject: Re: Surveyors and Trellis
Date: September 7, 2022 at 8:04:02 AM EDT
To: Jonathan Poole <[email protected]>
Cc: Brian Hewlitt <[email protected]>, Cristine Giampaolo <[email protected]>

Jon,

Thanks for the adequate notice.

The garage will be open should the surveyors need access to my backyard.

Also, if they require that the trellis be removed they can request it directly by contacting Mr. Hewlitt who will be onsite.

/bk 

From: Brian Kieller <[email protected]>
Subject: Notice Re: Garage Repairs
Date: September 20, 2022 at 1:44:19 PM EDT
To: Alana Cundy <[email protected]>, Jonathan Poole <[email protected]>
Cc: Cristine Giampaolo <[email protected]>, Brian Hewlitt <[email protected]>, Craig <[email protected]>

Alana & Jon,

Please find attached a Notice Re: Garage Repairs

I’ve cc’ed Craig so that he is aware of our mutual instruction – should you feel that this solution fails to meet your expectations then please let us all know so that we are on the same page and are clear about the work required.

On Sep 20, 2022, at 5:35 PM, Jonathan Poole <[email protected]> wrote:

Hi Brian,

Once our shed is in place it will restrict access to repairs on your roof and your eaves.  Given that your Virginia Creeper is currently growing up your garage again, we know it is only a matter of time before the vine takes over your garage and eaves as it did before.

We understand the importance of drainage & water management and will do what we can to help you.  However,  given the destructive nature of your vine, we cannot allow you to encroach your garage roof eavestrough over our property line as it has done in the past because we do not wish to incur the cost of repairs caused by your Virginia Creeper on our property.   Previously, your garage roof eaves were a conduit for the Virginia Creeper to attach and grow onto our old garage.  Our new shed will have a green roof and will easily be damaged by the Virginia Creeper you continue to grow in your backyard and up your garage.

One possible solution is that you inset your eaves within your roof assembly so that it drains within your side of the property line.

We are open to other options if you stop growing the Virginia Creeper permanently and replace it with non-damaging plants, especially ones that offer privacy.  If you wish to replace your vine with another vine,  Clematis is a good option. It flowers beautifully in the summer, turns red in the fall, is easier to control, and is less damaging to structures. It is often recommended on non-invasive species lists for this area.

Another condition to allowing your eaves to encroach over our property is the fence gets finished without further negotiation on heights and that your drainage at the front of the house drain onto your property as per current by-laws via an eaves/downspout on your own property.

Our wish is to complete the fence it as it is currently framed.  If you find this suitable, we would also happily give permission for you to pay Craig to finish the side of our fence facing your property with horizontal white cedar planks. Giving you permission to encroach your eaves over our property is a gesture of trust and goodwill with the understanding that you will not grow damaging vines and respect our privacy and property. However, and we are sure you agree, any arrangements going forward would need to be put in writing and formalized specifically to prevent any future misunderstandings and/or discord.

We think this proposal is fair and a very reasonable compromise ripe with mutual benefits. However, without an agreement & your cooperation we are happy to proceed with our project on our property within the by-laws of our area for which we are compliant but your proposed eavestrough is not.

If you are comfortable signing a legal document delineating terms for vines, the fence and the eavestroughs let us know and we will have our lawyer draw up an agreement. To be clear, we are not proposing a shared fence agreement but a legally binding solution for multiple longstanding issues running the course of the property line to address drainage, vine damage and respect for privacy.

Please let us know by 5pm Wednesday, September 21^st, 2022, if you are on board.

Jon & Alana

From: Brian Kieller <[email protected]>
Subject: Re: 13 Collahie St. Complaint.  Reference # 01496832
Date: September 27, 2022 at 10:53:09 AM EDT
To: Stephen Moss <[email protected]>
Cc: Brian Hewlitt <[email protected]>, Cristine Giampaolo <[email protected]>, “[email protected]” <[email protected]>, Alana Cundy <[email protected]>, Jonathan Poole <[email protected]>, Craig <[email protected]>

Hi Stephen, 

I just wanted to send a quick note (to go on the record) as I’m am being obstructed by my neighbours at 13 Collahie St. from installing the eavestrough and downspout on my garage as per your instructions.  Please advise.

Thank you,

Brian Kieller
15 Collahie St.
(416) 520-1060

Stephen Moss
By-Law Enforcement Officer
Municipal Licensing and Standards

[email protected] 

647 333-6085

David Jan
Toronto Building Inspections Unit

[email protected]

Tel: 416-338-5760 

On Sep 27, 2022, at 11:04 AM, Stephen Moss <[email protected]> wrote:

Can you not install the eavestrough from the roof?  If they refuse you entry onto their land to do it you will have to go through the right of entry bylaw but that’s a time consuming  and expensive  procedure that we do through our Division.  I would try and do it from the roof first.

Stephen  

From: Brian Kieller <[email protected]>
Subject: Re: 13 Collahie St. Complaint.  Reference # 01496832
Date: September 27, 2022 at 11:15:22 AM EDT
To: Stephen Moss <[email protected]>
Cc: Brian Hewlitt <[email protected]>, Cristine Giampaolo <[email protected]>, “[email protected]” <[email protected]>, Alana Cundy <[email protected]>, Jonathan Poole <[email protected]>, Craig <[email protected]>

Stephen,

Thanks for the quick response!  I really appreciate the advice.

I’ll see what can be done.

Cheers,

/bk 

Garfinkle Biderman LLP 1 Adelaide Street East, Suite 801, Toronto, ON M5C 2V9 Tel | (416) 869-1234 Fax | (416) 869-0547 www.garfinkle.com 

Alexander Hora 
Direct Line: 416-869-7652 
e-mail: [email protected] 

September 30, 2022 

SENT BY EMAIL: [email protected] 

And to: [email protected] 

BRIAN KIELLER 15 Collahie Street Toronto, Ontario M6J 1T6 

Dear Mr. Kieller, 

Re: 13 Collahie Street and 15 Collahie Street, Toronto, Ontario M6J 1T6______________ 

We act for your neighbours at 13 Collahie Street in relation to various matters that have become difficult as a result of an apparent breakdown in communication. We are hopeful that our involvement will help facilitate a general agreement and consensus on how to proceed going forward. We write this letter with the intent of reaching a mutual understanding in writing so that there are no complications in the future. 

More specifically, the most pressing issues with the property involve (i) the situation with your eaves and the front drainage and (ii) also a potential threat of the vines on your property. We will try keep this letter organized by subject as ease of reference. 

VINES 

Our client has discussed numerous times that the specific type of vine presently being used at the property is destructive and invasive. The vines are a continued threat to property both on your lot and theirs. The vines have already caused significant damage to your old eaves and the prior fence which collapsed as a result. You of course have the right to choose your plants on your own lot, however, you do not have a right to create a nuisance impacting your neighbouring properties. You are now being presented with an opportunity to correctly and conclusively reassess the rear situation in a more permanent matter. 

EAVES REPAIR 

On the subject of the eaves, the owners of 13 are aware that the eaves partially encroach on their air space. They wish to be very clear that their tolerance of such does not constitute consent, does not provide exclusive use to you and is in no way a waiver of their property rights. Should you wish to replace the eaves as they were, we ask that you acknowledge that you have no ownership claims and are simply being permitted this as a courtesy. September 30, 2022 Page 2 

FRONT EAVES 

The owners at 13 also ask to ensure that the drainage along the front of your roof line is addressed with an additional downspout that ensures discharge on your property and not theirs. There is no reason why the draining of your roof should lead to ice creation and build up on 13, so it makes sense to shift it to your own side. The goal overall should be to modernize the entire system and bring it into compliance with the present by-laws concerning drainage and downspouts. 

We look forward to hearing from you concerning the above terms that are not only reasonable but also common sense. Should you have any comments or additional points, please let us know and we will gladly do so. 

Yours very truly, Garfinkle Biderman LLP Per: 

Alexander Hora 

15 Collahie Street,  Toronto, Ontario  M6J 1T6 

e-mail: [email protected] 

October 04, 2022. 

SENT BY EMAIL: [email protected] 

Mr. Alexander Hora 
c/o Garfinkle Biderman LLP 
1 Adelaide Street East, Suite 801, Toronto, ON   M5C 2V9 

Re: 13 Collahie Street and 15 Collahie Street, Toronto, Ontario M6J 1T6 

Ref: A. Letter, dated September 30, 2022 – Mr A. Hora to Mr. B Kieller. 

Dear Mr. Hora, 

Thank you for your recent letter on behalf of your clients at 13 Collahie Street. We too hope that your involvement may help re-establish reasonable discussions that rapidly eroded, almost immediately, since we voiced our first objections to some of the work unilaterally undertaken by your clients. 

In response to your letter at Ref A., please find our responses to the issues you have identified, as well as an additional item of our own, which should also be addressed as a priority. 

VINES 

1. Your client’s position that the “specific type of vine” is destructive and invasive and poses a “threat to property” is conjecture and erroneous. The “vine(s)” has not been the cause of “significant damage” to either our garage or the prior shared fence, specifically: 

1. (a) The “damage” to the eaves is simply a consequence of the building’s age, now over 20 years old; and, 

1. (b) The (previous) shared fence was, 

1. (i) not at risk of collapse, as speculated by your clients, and the fence had never appeared to be in a state of impending collapse prior to your clients’ construction;

1. (ii) damaged by your clients in the course of their construction; and, 

1. (iii) removed by your clients as it posed an impediment to their construction, with the understanding it would be replaced as their obligation to “make good repairs”.  

2. The “vine” in question, specifically Virginia Creeper, like any plant of any kind, requires proper maintenance, and this specific type of vine poses no more or less threat than any other type of vine when maintained. 

3. Contrary to your letter, it is your clients’ belief that they can dictate our choices for our own lot that constitutes nuisance, and that further legal or other threats without substantiated arguments may, by themselves, rise to the level of criminal harassment. 

EAVES REPAIR 

4. The previous garage eaves did, and the replacement eaves will, encroach on the Boundary between the two properties as before, and we acknowledge that this does not in any way waive your clients’ property rights. 

5. The eaves were situated, in place, openly, peacefully, without being contested for over 20 years, and will be replaced in their original form, in accordance with Provincial Building Code and City of Toronto Bylaw. 

6. The replacement eaves will not extend or increase the level of previous encroachment. 

7. Your clients have caused nuisance and obstructed eaves replacement by barring reasonable permission of access, and explicitly instructing our contractor not to complete the work, under threat of legal action. 

8. We consider the eaves themselves, previously and when replaced, to be for our exclusive use, until such time as your clients may wish to come to agreement on their common use. 

FRONT EAVES 

9. The water collected from the common roof between the buildings has been continuously, openly, peacefully, without being contested, for over 20 years, discharged through a downspout located on your clients’ property. 

10. The front eaves were repaired by your clients in the same configuration as part of their 2019/2020 construction activities and has not yielded any evidence of inordinate ice creation or increased run-off of which we are or have been made aware. 

11. If your clients, after more than two years, assert that there are now issues with or evidence of inordinate ice creation or increased water run-off, the cause must be a consequence of: 

1. (a) a deficient repair by your client of the original eaves; and/or, 

1. (b) your clients’ new construction and its significant re-configuration of the structure that has impacted the previous characteristics and/or volumes of water run-off from the common roof. 

12. Recently your clients approached us and insisted that the existing downspout needed to be connected to a new buried drain and catch-basin, to be located wholly on their property. 

13. With no material issues with the current configuration evident, we did not agree that this proposed new configuration was necessary for the reasons expressed.

14. Your clients decided to proceed with this installation of their own accord, without any prior agreement, with a false expectation that we would be required to contribute to the cost of this new construction for us to be “permitted” to continue to drain run-off from the common roof. 

15. We deny any requirement to pay for any portion of this construction, undertaken by your clients of their own volition and to suit their own preferences. 

16. Most recently your clients have given us notice their imminent intent to unilaterally alter the current share roof gutter in a manner that effectively cut off our drain of water from the shared roof area. 

17. We maintain our previous right to drain the water from the shared roof area as currently, or to be newly configured and are prepared to claim this right, seek a prescriptive right of drainage, and reserve our rights to legal remedy for any damages that may result from any prejudicial actions taken by your clients in the interim. 

BACKYARD FENCE 

18. The original fence between the buildings had existed continuously, openly, peacefully, and considered shared, without contest, for over 20 years. 

19. This fence was removed by your clients’ as it posed an impediment to their construction, with the understanding that a new fence would be: 

1. (a) sighted exactly on the line of the original fence; 

1. (b) set at a height that was mutually agreed by the parties in advance, or in the alternative, in accordance with City of Toronto Bylaws; 

1. (c) considered shared between the parties consistent with the original fence; 

1. (d) in all material respects be a reasonable substitute for the original fence; and, 

1. (e) as the removal of the original fence was necessary to facilitate your clients’ construction, replaced by your clients under their commitment to “make good repairs”. 

20. We have previously paid $1,000, to your clients’ fence contractor as a good-faith contribution to its completion. 

21. Your clients’ have failed to meet the requirements of their commitment to replace the fence and have flagrantly ignored or otherwise misrepresented prior understandings in the matter. At present the issues include, but are not limited to: 

1. (a) fence height(s) either not as previously agreed, or in the alternative, at the maximum, a height prescribed by City of Toronto Bylaws; 

1. (b) sub-par level of finish, and not in any way, reasonably consistent with the level of finish of the original fence; and, 

1. (c) your clients’ assertion that it is wholly owned by them and no longer shared, despite previous understandings, our payment of monies, and the fact that a portion of the fence does fall on our side of the Boundary; and, 

1. (d) the fence remains uncompleted. 

We agree that the overall goal should be to come to a consensus on how best to address these issues and move forward. However, based your clients’ conduct over the past three months, this does not appear to be a goal that is genuinely shared by them. 

In order to avoid continued misunderstandings and further discord, we would prefer that all future correspondence be directed through Garfinkle Biderman LLP. We feel this may offer some assurance that, unlike much of the communications to date, future claims and statements made by your clients are clear, absent spurious accusations, free of non-factual assertions, personal threat, and attempts to bully and coerce. 

Should you have any comments or questions, please let us know and we will be more than happy to respond. 

Sincerely, 

Brian Kieller 
Owner 15 Collahie St.

*PHOTOS at the bottom of the page

__________________________________________________ 

Begin forwarded message:

From: Jonathan Poole <[email protected]>
Subject: Construction
Date: January 10, 2023 at 12:43:59 PM EST
To: Brian Kieller <[email protected]>

Hi Brian 

There is loud construction in your house today. 

Given that your previous roof repair yielded an illegal refurbished attic and an illegal roof deck we feel the need to inquire. Without a heads up about today, we have to assume your intentions are potentially not forthcoming.   

I assume it is John, your contractor,  with whom we’ve maintained a courteous relationship. I knocked on your door today however nobody answered.

-Jonny 

 _____________________________________________________________________________________

From: Brian Kieller <[email protected]>
Subject: Re: Construction
Date: January 10, 2023 at 1:03:44 PM EST
To: Jonathan Poole <[email protected]>
Cc: Cristine Giampaolo <[email protected]>, Brian Hewlitt <[email protected]>, John Aukstaitis <[email protected]>

Interesting?  Given that no one is there.

You must be hearing it on your surveillance cameras? 

It’s between 7am and 7pm, so I’m not sure what the issue is?  But even so, I’m sending someone over to investigate.

Thanks for the info (I guess?).

 ____________________________________________________________________________________

From: Jonathan Poole <[email protected]>
Subject: Eavestrough
Date: March 22, 2023 at 9:48:20 AM EDT
To: Brian Kieller <[email protected]>

Hi Brian  

Our contractors whom you commissioned to install your eavestrough last year will be installing the eavestrough on the eastern side of your garage in the coming weeks.  Please let us know if you do not wish to have them install the eavestrough. Our shed is being constructed in the coming weeks at which point the access to the eavestrough will become much more difficult.  .  

We noticed you had cut back on the invasive Virginia Creeper vine and took that as a sign of co-operation to prevent the vine causing damage to our property. As the eavestrough will encroach over our property, we trust that you will respect our property and prevent property damage by keeping the eavestrough in a state of good repair and keeping it clear of vines.  

Thank you 

Neighbours at #13 

This image shows the construction of a fence much higher than the bylaw allows and the awning discharges water onto our property