Court File and Parties

COURT FILE NO.: 450/02

DATE: 2003-12-04

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: ROBIN LEWIS and RIKA LEWIS (Appellants/Applicants) v. THE CITY OF TORONTO (Respondent/Respondent)

BEFORE: DUNNET J.

COUNSEL: Vusumzi Msi, for the Appellants (Applicants) Roberto E. Zuech, for the Respondent (Respondent) City of Toronto J. Douglas Crane, for the Respondent 697836 Ontario Limited

HEARD: DECEMBER 3, 2003

ENDORSEMENT

DUNNET J.:

[1] The applicants seek leave to appeal to the Divisional Court that part of the order of the Ontario Municipal Board made on July 19, 2002 denying the request for consent to the grant of an easement over Part 4 of Registered Plan 64R-17101.

[2] On a motion for leave to appeal from a decision of the Board, there must be a point of law of sufficient importance to merit the attention of the Divisional Court and there must be some reason to doubt the correctness of the decision.

[3] The applicants’ property is landlocked and consequently, they sought to use of the right of way over Part 4 of property owned by 697836 Ontario Limited, municipally known as 378 Cleveland Street in the City of Toronto, to enable utility services to access the rear of the Virag property at 382 Cleveland Street in order to install and repair services to the applicants’ property.

[4] In determining that the application for consent to convey the easement over Part 4 was not properly before it, the Board stated that “under these particular circumstances, only the owner of Part 4 can apply to the Committee of Adjustment for consent to grant an easement or a right of way over Part 4 in favour of the owners of [the applicants’ property]. The owner of Part 4 does not consent to a conveyance of the right of way.

[5] The applicants submit that the Board erred in deciding that they were not “owners of land”, pursuant to s. 53(1) of the Planning Act, R.S.O. 1990, c. P.13.

[6] The applicants submit further that the Board failed to exercise its jurisdiction when it stated: (a) that it makes no comment on whether the existing right of way over Part 4 attaches by operation of law, or runs with a conveyance of any interest in any part of the dominant tenement lands and (b) that it takes no position on whether the benefiting owners of the easements on the Virag property are entitled to continue the use of the existing right of way over the Part 4 lands.

[7] The Board has the jurisdiction to determine who is the owner of land. Contrary to the submission of counsel for the applicants, the Board did not conclude that as a matter of law, an owner under s. 53 of the Act must be the registered owner in fee simple.

[8] The cases cited by the applicants – Re Edgeley Farms Ltd. And Uniyork Investments Ltd. (1970), 1970 ONCA 327, 3 O.R. 131 (C.A.); Re AAF-LTD. and Committee of Adjustment of the Borough of Etobicoke (1977), 1976 ONSC 629, 13 O.R. (2d) 666 (H.C.J.) and Mike’s Food Stores (Hearst Ltd.) v. 480346 Ontario Ltd.(1983), 15 O.M.B.R. 122 – are distinguishable from the facts of the present case. In the words of counsel for the respondent City, the applicants in those cases were “on the cusp of fee simple ownership”. That is not the situation here.

[9] The right-of-way proposed to be granted is not for the benefit of the Virag property. The applicants in effect seek to have the Board give away the rights of the servient tenement (the numbered company’s property) and convert the easement into one for the benefit of the applicants’ property. The use to which the Virags have agreed fundamentally changes the use to which they agreed at the time they purchased their property.

[10] In other words, the original right-of-way for a mutual drive between the Virag and the numbered company properties is different from the installation and repair of services to service the applicants’ property.

[11] In my view, the decision of the Board that the dominant tenement (the Virags) did not constitute the owner of the servient tenement (the numbered company) for the purpose of s. 53 of the Act was within its jurisdiction. I am not persuaded that there is good reason to doubt the correctness of the decision, nor, on the facts of this particular case, is there a point of law of sufficient importance to merit the consideration of the full panel of the Court.

[12] Leave to appeal is denied with costs, payable to the respondent City and the numbered company fixed at $5000 and $4000 respectively.

RELEASED:

DUNNET J.