COURT OF APPEAL FOR ONTARIO
MacPherson, Watt and Pepall JJ.A.
BETWEEN
Gary Lackner Linda Lackner, Eric Thomson, Susan Dejardins and Patricia Tite
Plaintiffs (Respondents)
and
Shane Hall, 2219160 Ontario Limited, Stanley Thomas Wallace, William
Robert England, Allan Keys, Catherine Keys, and Vikki Storie
Defendants (Appellant)
Phillip G. Hunt, for the appellant
John Parr Telfer and Margot Leduc Pomerleau, for the respondents
M. Jill Dougherty, for the respondents on cross-appeal Stanley Thomas Wallace, William Robert England, Allan Keys, Catherine Keys, and Vikki Storie
No one appearing for the respondent on cross-appeal, Shane Hall
Heard: October 7, 2013
On appeal from the judgment of Justice James McNamara of the Superior Court of Justice, dated April 10, 2013.
By the Court:
1The appellant 2219160 Ontario Limited appeals from the judgment of McNamara J. of the Superior Court of Justice dated April 10, 2013, declaring that the boundaries of the Ottawa area property lots owned by the respondents extend to the edge of the Ottawa River.
2The respondents seek leave to cross-appeal from the costs endorsement of McNamara J. dated April 10, 2013. They claim that the trial judge erred by awarding costs against only the corporate defendant, and not against the personal defendants.
A. The appeal
3The dispute between the parties is about the ownership of a strip of land between the respondents’ lots and the river. The appellant contends that the trial judge erred in finding that this land belonged to the respondents. The appellant’s position is that the respondents’ properties, as shown on the relevant official plan (Plan 418), do not extend to the water’s edge and, therefore, do not include the disputed lands. The appellant advances four arguments in support of its position.
4First, the appellant submits that the trial judge erred in concluding that Plan 418 contained a latent ambiguity that permitted him to rely on extrinsic evidence to assist him in interpreting the plan.
5The leading case describing the permissible and impermissible uses of extrinsic evidence in interpreting a property deed is Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (C.A.), wherein Finlayson J.A. said, at para. 38:
A description in a deed may contain either a patent or a latent ambiguity. A patent ambiguity is one that is apparent on the face of the deed. A latent ambiguity is one that arises only when the deed is applied to the land it purports to describe. Thus while a patent ambiguity is found in the deed itself, a latent ambiguity is revealed through extrinsic evidence. Parol evidence is inadmissible to explain a patent ambiguity. Extrinsic evidence may be introduced only in the case of a latent ambiguity for the purpose of ascertaining the intention of the grantor….
6The trial judge considered Gibbs and found:
I am satisfied on the facts of this matter that there is a latent ambiguity. The ambiguity arises from the need to determine whether the transverse line which forms the waterside boundary of the lots on Plan 418 was intended by the original subdividers to be the natural boundary between their subdivision and the bed of the river, or not. Putting it another way, was it their intent to create a row of lots that extended to the Ottawa River, or was it their intention to create lots that fronted on a beach to which title was retained.
7We agree with this conclusion; it fits precisely within the proper use of extrinsic evidence for interpreting a deed set out by this court in Gibbs.
8Second, the appellant contends that the trial judge erred by focussing his analysis solely on the intent of the original subdividers, namely, the brothers John and Godfrey Armitage, who purchased the relevant lands in 1920 and registered Plan 418 in 1931.
9In support of this submission, the appellant relies on a single paragraph from a decision of this court rendered after the trial judge’s decision in this case. In Tiny (Township) v. Battaglia, 2013 ONCA 274, at para. 71, Epstein J.A. stated:
The application judge, without any legal analysis, appears to have proceeded on the basis that the intention of Aldridge and Tripp is dispositive of the question of the location of the westerly boundary of Block B. I do not wish to be taken as agreeing with this view. However, even if I were to accept, for the sake of argument, that the intention of the original developers of the lands is relevant to the determination of the boundary issue, in my opinion, the application judge’s finding that both Aldridge and Tripp intended to include all that they owned within the boundaries of Plan 656 is based on a misapprehension of the evidence. [Emphasis added.]
10We do not take the emphasized portion of this passage as a statement that the intention of the subdividers is irrelevant to the interpretation of a deed. Such a conclusion would be inconsistent with the language of Gibbs, set out above, and, in our view, is not suggested in the quoted passage from Battaglia.
11In any event, the trial judge focussed on a number of factors in reaching his conclusion, including the words of the deed, evidence about the likely intention of the Armitage brothers, evidence about how township records treated the property, and expert evidence.
12Third, the appellant submits that the trial judge made a factual error by concluding that the waterside boundary lines of the respondents’ lots were an approximation of the high-water mark.
13We disagree. The trial judge’s review of the deed, plan, and role of John Armitage, who happened to sign the plan in his role as reeve of the Township of Torbolton, is, in our view, a supportable analysis. In any event, it is far removed from being a palpable and overriding error.
14Fourth, the appellant contends that the trial judge erred by relying and placing undue weight on irrelevant and immaterial evidence in determining the intent of the original subdividers.
15We do not accept this submission. The evidence of George Kennedy and Dr. Roland Armitage was of some probative value about the intention of the original subdividers and was properly used by the trial judge.
16For these reasons, we would dismiss the appeal.
B. The cross-appeal
17The cross-appellants contend that the trial judge erred in awarding costs against only the corporate defendant and in refusing to award costs against the individual defendants.
18In his brief costs endorsement, the trial judge explained this dichotomy in this fashion:
All of the evidence at trial was geared toward this ownership dispute between the Plaintiffs and the Corporate Defendant. No evidence was adduced as to any of the named individual Defendants, nor were any submissions made.
Without the benefit of evidence or argument as to the role of the individual Defendants, I was left to speculate as to their role. I assumed they were nominal Defendants, and it would be inappropriate in those circumstances to require them to pay costs. No relief was sought from these individuals during the trial, they weren’t even mentioned in any meaningful way other than when the issue of costs arose. As far as I am aware from the evidence tendered at trial and the argument made, this litigation was not made necessary by any position they took, but rather because of the position being advanced by the Corporate Defendant.
19In our view, with the exception of Shane Hall, it was open to the trial judge to treat the respondents on the cross-appeal as nominal parties and to exercise his discretion and not award costs against them.
20That said, Shane Hall was in a different position. Contrary to the trial judge’s determination, there was both evidence at trial and submissions made that related to Shane Hall in both his personal and corporate capacities. Though not a witness at trial, he was clearly significantly involved in the scheme that provoked the litigation and significantly engaged in the court proceedings, which included filing court documents in his personal capacity. Accordingly, we would allow the cross-appeal with respect to Shane Hall.
C. Disposition
21The appeal is dismissed. The cross-appeal with respect to Stanley Wallace, William England, Allan Keys, Catherine Keys and Vikki Storie is dismissed. The cross-appeal with respect to Shane Hall is allowed. The Judgment should be amended to read:
- AND THIS COURT ORDERS that the defendants 2219160 Ontario Limited and Shane Hall pay the plaintiffs their assessed costs in the amount of $150,619.96.
22The respondents are entitled to their costs of the appeal fixed at $11,000 inclusive of disbursements and HST. The cross-appellants have achieved some success on the cross-appeal and are entitled to costs fixed at $3,000 inclusive of disbursements and HST.
Released: October 16, 2013 (“J.C.M.”)
“J.C. MacPherson J.A.”
“David Watt J.A.”
“S.E. Pepall J.A.”
