Court of Appeal for Ontario
Before: MacFarland, LaForme and Lauwers JJ.A.
Between:
Reid Lester and Carol Jones Applicants (Appellants)
and
James William Chanwell Bond and Mary Elizabeth Bond Respondents (Respondents in Appeal)
Counsel: Reid Lester, acting in person Evert Van Woudenberg, for the respondent
Heard and released orally: October 10, 2014
On appeal from the judgment of Justice John A. B. MacDonald of the Superior Court of Justice, dated December 23, 2013.
Endorsement
1The application judge carefully reviewed the evidence before him including three surveys one from 1986 and two from 2012 having been commissioned by the parties. He found that the low retaining wall, which is the subject of the appellant’s complaint, encroaches at most .74 meters and at its least .64 meters, into the right of way. He reviewed the lengthy affidavits of the parties including the exhibits to those affidavits and the cross-examinations upon them.
2The application judge concluded that the 1998 retaining wall, which replaced and continued an earlier wall in the same location, part of which was built by the City on its property, did not create a substantial obstruction to the appellants’ rights pursuant to the 1916 grant. The real problem, he found, was created by the “pinch point” at the north end of the right of way on City property. His findings are well-supported in the evidence and as such, are owed deference in this court.
3The application judge followed the law as set out in this court’s decision in Devaney v. McNab (1921), 1921 CanLII 557 (ON CA), 69 D.L.R. 231 (Ont. C.A.) as Middleton J.A. noted: “(i)n each case it appears to me that it must be regarded as a question of fact, …”
as to whether or not there has been a substantial inference with the dominant tenement holders’ rights.
4We see no error and the appeal is dismissed.
Cross-Appeal
5The respondents seek leave to appeal the costs order of MacDonald J. wherein he denied the respondents costs of the application.
6This was a property dispute between two parties – where neither have particularly “clean hands”. We are not persuaded that there was any error in principle or other error in the costs decision – we would not grant leave to appeal.
Disposition
7The appeal is dismissed. The cross-appeal is dismissed. Costs of the appeal are awarded to the respondent in the sum of $10,000 inclusive of disbursements and H.S.T.
8The cross-appeal is also dismissed with costs fixed to the respondent by cross-appeal in the sum of $1,000.
9Accordingly, the appellant will pay the respondent the net amount of $9,000.00.
“J. MacFarland J.A.”
“H. S. LaForme J.A.”
“P. Lauwers J.A.”
