Dispute over a property line fence stirs up a costly battle in Superior Court

Oct 17, 2020 | 2020 Toronto Star Property Law Column

By Bob Aaron
Toronto Star contributing columnist

Bob Aaron bob@aaron.ca

Keep your neighbour disputes off the Internet.

A decision from Superior Court in May provides a compelling lesson about why disputing neighbours should keep their differences off the internet. The case ended with a $70,000 judgment against an online activist who interfered in the dispute.

The plaintiff, Tina Duncan, owns a house on Wells St., in Aurora. Her neighbour to the south, Marnee Buckles, owns a house eight inches from the lot line between the two properties.

After Duncan purchased her house in 2017, she constructed a wooden fence on the property line. Buckles objected to the height of the fence, saying it blocked the view from some of her windows.

When Buckles complained to the town of Aurora, by-law inspectors inspected and advised Duncan that the fence was too high but they found no by-law infractions. Duncan reduced the height of the fence.

Since Aurora would not require the removal of the fence, Buckles then went public with her complaints to the local media, and on Facebook and other social media platforms.

In January 2018, Buckles engaged Bob Lepp to assist in her dispute. In his online blog, Lepp described himself as a “trusted street view photographer and municipal activist.”

Lepp made numerous negative and disparaging comments about Duncan in blog posts, emails and YouTube videos. He also launched an online petition signed by at least 300 people.

Buckles then took Duncan to Small Claims Court for nuisance and trespass damages. The judge found the fence was legal and did not constitute a nuisance or trespass.

After Duncan served Buckles and Lepp with a notice under the Libel and Slander Act, Buckles removed her online posts but Lepp continued with his.

Duncan then sued Buckles and Lepp for defamation. Lepp did not defend the action, and was noted in default in the litigation. He continued his online campaign against Duncan.

After a delay, Lepp applied to Superior Court to allow him to file a defence to the lawsuit, but he was turned down and ordered to pay $18,000 in costs.

In January 2020, Duncan applied to Superior Court Justice Lise Favreau for a default judgment against Lepp for defamation. Since Lepp had not filed a defence, the judge ruled that there was no need for a trial and all Duncan had to do was to prove her claim for defamation.

The law in Canada is that in order to succeed in a claim for defamation, a plaintiff must demonstrate that:

  • the words used by the defendant were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person
  • the words in fact referred to the plaintiff; and
  • the words were published, meaning that they were communicated to at least one person other than the plaintiff.

The judge ruled that Duncan’s claim met the three tests for defamation and that Lepp’s words had indeed defamed her. She found that Lepp accused Duncan of deliberately acting illegally, that his statements suggested she received preferential treatment from the town because of political connections, and that she was a liar.

Lepp was ordered to pay Duncan $50,000 in general damages, $10,000 in aggravated damages for conduct which was high-handed and oppressive, and $10,000 in punitive damages for actions that were malicious and unfounded.

Lepp has appealed the decision.


Duncan v. Buckles et al., 2019 ONSC 5044 (CanLII), <http://canlii.ca/t/j2t2f>

Duncan v. Buckles et al., 2019 ONSC 6003 (CanLII), <http://canlii.ca/t/j31c7> $18000 costs award

Duncan v. Buckles, 2020 ONSC 3219 (CanLII), <http://canlii.ca/t/j7xdf> motion for default judgment and award of $70,000 in damages


Contact Bob Aaron

Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.

Aaron & Aaron specialize in Real Estate Law, specifically Sale of Rental, Condominium, Residential, Rural Recreation, Offer to Lease, Commercial, and New Construction

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