Court File and Parties
COURT OF APPEAL FOR ONTARIO
LANG, MACFARLAND and LAFORME JJ.A.
BETWEEN:
ETHEL MITROVIC and VIOLET JANE VAN DUYNHOVEN Applicants (Respondents)
and
WALTER OSTOJIC Respondent (Appellant)
Counsel: Sandra L. Monger for the appellant Jack Huber for the respondents
Heard: February 26, 2008
On appeal from the order of Justice J.F. McGarry of the Superior Court of Justice dated June 4, 2007.
APPEAL BOOK ENDORSEMENT
[1]
Overview
The appeal concerns an easement between neighbouring properties.
[2]
Analysis
The application judge concluded that the respondents were entitled to an easement, but made it conditional upon the respondents providing a quitclaim to the appellant. In our view, a quitclaim is not necessary given the passage of time.
3The application judge addressed the1984 agreement. However, that agreement was breached by both parties before it was implemented and was no longer alive at the time of the sale of the property to the respondents.
4The respondents’ predecessors in title, as found by the application judge when he implicitly accepted the facts set out in the respondents’ factum, enjoyed open, continuous, peaceful, undisturbed and undisputed use of the right of way from 1982 until the appellant erected a barricade in 2006.
5The appellant argues that the respondents could not establish a prescriptive right of way because the appellant consented to its use. However, there is no evidence that the appellant consented to a limited-term use of the right of way. To the contrary, all the evidence is that the appellant consented to a permanent easement. We also find support for this result in Hill v. Nova Scotia (Attorney General), [1997] S.C.J. No.115.
6Accordingly, the respondents are entitled to the declaration and the order requested in paras. 1(f) and 1(g) of their Notice of Application.
[7]
Costs
The appellants’ challenge to the application judge’s costs award is also dismissed. The predecessors in title indemnified the respondents for their costs of this litigation in an amount up to $10,000 that was held back from the sale proceeds. Because the agreement provides for indemnification, it does not operate to deprive the respondents of the costs to which they are otherwise entitled, including the costs awarded at trial.
[8]
Disposition
In the result, the appeal on the merits is dismissed, except to the extent necessary to vary the relief granted to comply with the relief granted by this court.
9Costs of the appeal to the respondent in the amount of $5,000, inclusive of disbursements and GST.