Court File and Parties
Court of Appeal for Ontario
Before: Cronk, Blair and LaForme JJ.A.
Between:
BDO Dunwoody Limited, trustee of the estate of Patricia Kokoruds, deceased, a bankrupt Plaintiff (Respondent)
and
The Estate of Grant Britton, Deceased, Carol Jean Britton, Kim Colfax, also known as Kimberly Colfax, Terry Colfax, also known as Terrance Colfax, executors and estate trustees under the last Will and Testament of Laverne Colfax, deceased, Marjorie Eileen Alway, executor and trustee under the last Will and Testament of Ronald Newman Alway, also known as Ronald N. Alway, deceased, Harry C. Alway and the Corporation of the City of St. Thomas Defendants (Appellants)
Counsel:
Brian T. Daly, for the appellant Carol Jean Britton
No one appearing for the respondent
Heard and released orally: October 5, 2010
On appeal from the judgment of Justice G. I. Thomson, of the Superior Court of Justice, dated October 10, 2008.
Endorsement
1During oral argument before this court, the focus of the appellant’s challenge to the trial judgment was considerably narrowed. As argued, there are two issues: (1) whether the injunctive relief granted in paragraphs 5, 9 and 14 of the formal judgment is too broadly cast; and (2) whether the ancillary right over the right-of-way in favour of Mrs. Kokoruds, as recognized by the trial judge, is also overly broad because it permits vehicular turning at the so-called “daylight corners” of the right-of-way and, further, because this right was granted without compensation to Mrs. Britton.
2We conclude that the appeal must be dismissed.
3In our view, the challenged paragraphs of the judgment, set out above, are not overly broad or imprecise. On the contrary, given the evidence at trial of the history of the course of dealings between the parties and, on the trial judge’s findings, the multiple nature of the obstructions placed on the property, these terms of the judgment were both appropriate and advisable.
4On the issue of the scope of Mrs. Kokoruds’ ancillary right over the right-of-way, the trial judge found that the original grant of a right-of-way to Mrs. Kokoruds “was and is able to be used for motor vehicles and pedestrians”. The appellant does not challenge this finding. Rather, she argues that the ancillary right recognized by the trial judge is overly broad since it permits Mrs. Kokoruds to use the right-of-way by turning her vehicle over a triangular part of the appellant’s property.
5We do not accept this argument. It is not apparent to us that this argument was raised and developed at trial. In any event, there are no words of limitation or qualification on the scope of the right of vehicular use that the trial judge found was included in the original grant of right-of-way to Mrs. Kokoruds and her predecessors. In the absence of such a restriction, it was open to the trial judge to find, as he did, that Mrs. Kokoruds’ right-of-way necessarily included an ancillary right to use the daylight corners.
6The appeal is therefore dismissed in these respects. The parties have now agreed that paragraphs 15(a), 21 and 22(a) of the judgment should be amended to delete any reference to the appellant, Mrs. Britton, and we so order. As also agreed by the parties, there shall be no costs of this appeal.
“E.A. Cronk J.A.”
“R.A. Blair J.A.”
“H.S. LaForme J.A.”