COURT FILE NO.: 240/08
DATE: 20081215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, LEDERMAN AND SWINTON JJ.
B E T W E E N:
TAL MACDONALD
Applicant
(Respondent in Appeal)
- and -
CAROL ANNE ROBSON
Respondent
(Appellant)
Adam Stephens, for the Applicant (Respondent in Appeal)
Michael G. Emery, for the Respondent (Appellant)
HEARD at Toronto: December 15, 2008
CARNWATH J.: (Orally)
[1] The appeal will be dismissed.
[2] We find that the Judge below applied the appropriate test, that of Stefanovska v. Kok (1990), 1990 6848 (ON SC), 73 O.R. (2d) 368, that is, the question that must be determined is whether the existence of the easement materially affects the use of the property.
[3] The Judge found that the existence of the large easement significantly compromised the use Mr. Macdonald wished to make of the property, both now and in the future. She concluded by saying that the easement materially affects the present use of the property. In arriving at that conclusion, she looked first at the sworn evidence of Mr. Macdonald, as well as his evidence on cross-examination. That look persuaded her that one of the most important factors to Mr. Macdonald in deciding to purchase the Blackberry property, was the fact that it enabled him to indulge in his passion for building and that he had specific plans to construct the drive shed in the area where the easement was located.
[4] This was a conclusion that she was entitled to come to on the evidence. We find that she made no palpable and overriding error in so concluding.
[5] The endorsement reads: “The appeal is dismissed for oral reasons given by Carnwath J. in Court. Costs to the respondent fixed at $3,500.00, inclusive of fees, disbursements and GST. Partial indemnity payable 30 days”.
[6] Mr. Emery, the panel wants you to know that they find it difficult to imagine that anyone could have made a more effective presentation on behalf of your clients than you did today.
CARNWATH J.
LEDERMAN J.
SWINTON J.
Date of Reasons for Judgment: December 15, 2008
Date of Release: December 17, 2008
COURT FILE NO.: 240/08
DATE: 20081215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, LEDERMAN AND
SWINTON JJ.
B E T W E E N:
TAL MACDONALD
Applicant
(Respondent in Appeal)
- and -
CAROL ANNE ROBSON
Respondent
(Appellant)
ORAL REASONS FOR JUDGMENT
CARNWATH J.
Date of Reasons for Judgment: December 15, 2008
Date of Release: December 17, 2008