sept. 27. 2020

COURT OF APPEAL SUMMARIES (September 21 – September 25, 2020)

Walker v. Coldin, 2020 ONCA 603 (CanLII)

[Doherty, Hoy and Jamal JJ.A.]

COUNSEL:

B. D. Coldin, for the applicants (respondents) 1387881 Ontario Inc.

A. M. Mae, for the respondents (appellants) J.A.W., S.J.W., K.B.A.S., M.S, and B.S.

Keywords: Real Property, Prescriptive Easements, Civil Procedure, Remedies, Injunctions, Applications, Factums, Rules of Civil Procedure, Rule 38.09(4), W. (D.) v. White, [2004] 189 O.A.C. 256, leave to appeal refused, [2004] S.C.C.A. No. 486, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

FACTS:

This appeal arose out of a dispute concerning road access to five cottage waterfront properties that are landlocked. The respondents own three of the properties and access their cottages through an easement, creating a right of way over the property (“the Resort Property”) owned by 1387881 Ontario Inc.

In June 2018, the respondents brought an application for various forms of relief, including a declaration of a prescriptive easement over the Resort Property. The appellants conceded that there were rights of way over the Resort Property, however they argued that these rights were seasonally limited so that the respondents have no access during the winter.

The application judge held that the easement was not seasonally limited, and directed that the land registrar amend the property records for the Resort Property and the respondents’ properties to reflect the easement and enjoining the appellant from interfering with the respondents’ access.

ISSUES:

The appellants raised six grounds of appeal:

(1) Ineffective assistance of counsel;

(2) The application judge erred in concluding that the easement is not seasonally limited;

(3) The application judge erred in concluding that she could not determine whether the easement should be moved to the new road the appellants built on the Resort Property;

(4) The application judge used an incorrect authority in determining whether the injunction sought by the respondents should be granted;

(5) The effect of the injunction is overly restrictive and disproportionate; and

(6) The application judge erred by permitting the application to proceed in the absence of a factum on the application from the respondents.

HOLDING:

Appeal dismissed.

REASONING:

(1) Ineffective assistance of counsel.

The court held that this case does not fall within one of the exceptional types of cases where ineffective assistance of counsel can form a ground for a new trial in a civil action. The court affirmed that this is only available in rare circumstances, such as cases involving some overriding public interest or interests of vulnerable persons.

(2) The application judge erred in concluding that the easement is not seasonally limited.

The court held that the application judge was correct in determining that the easement is not seasonally limited. The court referred to the deeds produced that set out the easement. The deeds set out a right of way for both foot and vehicular traffic and contain no temporal or other restrictions and limitations. Because the deeds are unambiguous, the court stated it was unnecessary to consider any extrinsic evidence.

(3) The application judge erred in concluding that she could not determine whether the easement should be moved to the new road the appellants built on the Resort Property.

The court held that the application judge was correct in determining that, in the circumstances, an alternative location for the easement could not be given effect. The appellants did not bring a motion seeking this relief and the other cottagers that rely on the easement would require notice.

(4) The application judge used an incorrect authority in determining whether the injunction sought by the respondents should be granted.

The court held that although the 3-part test in RJR-MacDonald is the test for an interlocutory injunction, rather than a permanent one, the application judge’s citation was not an error. The court stated that due to the landlocked nature of the properties, damages would not be an adequate alternate remedy in this case.

(5) The effect of the injunction is overly restrictive and disproportionate.

The court was not persuaded that the injunction is overly restrictive or disproportionate.

(6) The application judge erred by permitting the application to proceed in the absence of a factum on the application from the respondents.

The court held that rule 38.09(4) of the Rules of Civil Procedure allow an application judge to dispense with the requirement that an applicant file a factum. There was also no indication that the appellants opposed the application judge in continuing to proceed without a factum from the respondents.

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