Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Citation: 2023 ONCA 477 Date: 2023-07-07 Docket: C70585

Before: Fairburn A.C.J.O., Simmons and Zarnett JJ.A.

Between: Primont (Castelmont) Inc. Applicant (Respondent/Appellant by way of cross-appeal)

And: Friuli Benevolent Corporation, Famee Furlane Toronto and Friuli Long Term Care Respondents (Appellant/Respondent by way of cross-appeal)

Counsel: Colin P. Stevenson, for the appellant/respondent by way of cross-appeal Friuli Long Term Care Daniel A. Schwartz, Scott McGrath and Jessica DeFilippis, for the respondent/appellant by way of cross-appeal Primont (Castelmont) Inc. Eddy J. Battiston, for the respondent Friuli Benevolent Corporation [1] G.G. Piccin, for the respondent Famee Furlane Toronto [2]

Heard: January 23, 2023

On appeal from: the judgment of Justice Frederick L. Myers of the Superior Court of Justice, dated April 4, 2022 and April 22, 2022.

Reasons by: Simmons J.A.

A. Introduction

[1] The issues on appeal arise out of an application for a declaration that an easement registered against the title to certain land does not include the right to park on the land.

[2] In September 2020, the respondent, Primont (Castelmont) Inc. [3], agreed to purchase real property (the “Property”) owned by the respondent, Famee Furlane Toronto. Primont is a residential real estate developer. As of September 2020, Famee was using the Property for a banquet hall and social club.

[3] Primont’s agreement of purchase and sale (the “APS”) was conditional on Famee obtaining a release of reciprocal easements registered against the Property and the lands of two adjoining landowners, Friuli Benevolent Corporation (“Benevolent”), the owner of an apartment building for seniors, and Friuli Long Term Care (“LTC”), the owner of a long-term care facility.

[4] The APS also permitted Primont to bring a court application to interpret the easements registered against the Property.

[5] As a release of the easements was not available, Primont commenced an application prior to closing the APS, seeking a declaration that the easements registered against the Property do not include the right to park on the Property and certain other relief. The parties agreed to an expedited hearing. Famee supported Primont’s position on the application that the easements do not include parking rights. Benevolent was not opposed. A primary issue therefore was whether the easement over the Property (the “Easement”) included parking rights in favour of LTC.

[6] The Easement stated it was “for the purposes of vehicular and pedestrian access and egress”. The application judge determined that “the rights granted by the Easement do not include the right to stationary parking on the Property.” [4]

[7] In an endorsement settling the formal judgment, the application judge refused Primont’s request to add a further declaration (the “Proposed Additional Declaration”) that the Easement does not prevent redevelopment of the Property provided a minimum of one access to a public highway is maintained. Among other reasons, the application judge said the proposed limitation of LTC’s dominant right to use the Property to a singular public access was inconsistent with his reasons for judgment and the words of the easement. The application judge also ordered Primont to pay LTC’s costs relating to settling the formal judgment.

[8] On appeal, LTC submits that Primont’s application should have been dismissed because it was speculative and hypothetical. The parking issue also depended on the interpretation of a Site Plan Agreement, Tripartite Agreement, and Zoning By-law governing the Property as well as the lands owned by LTC and Benevolent. Confining the application to an interpretation of the Easement did not have any practical effect in resolving the dispute between the parties. The issue before the court was also hypothetical because Primont failed to put forward a development plan for the Property.

[9] In the alternative, LTC submits that the application judge erred by failing to hold that its rights under the Easement included parking rights. The adjoining landowners had always agreed that parking rights were necessary for the operation of the long-term care facility. This court should substitute a declaration to that effect or remit the matter for a trial of the issues.

[10] By way of cross-appeal, Primont submits that the application judge erred in law in refusing to include the Proposed Additional Declaration in the formal Judgment. Primont also asks that the application judge’s costs award concerning settling the formal judgment be reversed.

[11] For the reasons that follow, I would dismiss the appeal and cross-appeal.

B. The appeal

(1) Background

(a) The lead-up to the reciprocal easements

[12] A predecessor of Famee (hereinafter collectively referred to with Famee and any other Famee predecessors as “Famee”) and Benevolent were at one time the owners of adjacent parcels of land. Famee built a banquet hall and social club on part of its land, which left ample room for parking. Benevolent built a nine-storey 113-unit apartment building for seniors on its land.

[13] In about 2001, Famee decided to build a seven-storey 168-bed long-term care facility on land between its social club and Benevolent’s apartment building. A new lot was severed and eventually transferred to LTC. However, the new lot was landlocked with no access to surrounding streets and inadequate parking.

[14] Benevolent required all of its parking spaces for users of its seniors apartment building. However, although Famee’s banquet hall and social club was busy at night, many of its parking spaces could be available for the use of LTC visitors and staff during the day.

[15] Ultimately a plan was developed whereby the three lots owned by Famee, LTC and Benevolent would function as a single campus with mutual access to adjacent roadways and shared parking between Famee and LTC.

[16] The City of Vaughan (the “City”) was involved in the planning process for the development of the new lot and addressing parking and access issues. A planning report submitted to a Committee of the Whole meeting dated December 9, 2002 noted that existing zoning standards required 435 parking spaces for the three proposed uses: 238 spaces for the social club, 113 spaces for the 113-unit seniors apartment building, and 84 spaces for the 168-bed long-term care facility. Although only 325 parking spaces were proposed, the report noted that “[g]iven the different peak times for the different on site uses, some shortfall is acceptable.” The City Engineering Department would confirm adequacy based on a parking study.

(b) The March 2003 zoning by-law

[17] On March 17, 2003, the City passed a zoning by-law to permit the development of the long-term care facility “as a complimentary use to the existing seniors apartment building and banquet hall facility”. The zoning by-law directed that the Famee, LTC and Benevolent properties be “deemed to be one lot as defined in the City’s Comprehensive Zoning By-law” and that the minimum number of parking spaces be 311: By-law 84-2003, section 2, amending s. 9(78) of By-law 1-88 by adding subsections (ai) and (di).

(c) The June 2003 Site Plan Agreement

[18] On June 20, 2003, the City, Famee, and two builder corporations entered into a Site Plan Agreement, which was registered against substantially all of the Famee, LTC, and Benevolent lands (collectively, the “Lands”).

[19] Section 2 of the Site Plan Agreement requires that the Lands be developed in accordance with the Schedules attached and not be used “for any purpose other than the use designated on the said Schedules.”

[20] Section 5 of the Site Plan Agreement required parking as shown on the Schedules to be completed within a specified time frame. A legend on Schedule A1 to the Site Plan Agreement reflected a total of 319 parking spaces associated with the “total site” on which the long-term care facility was to be constructed.

[21] LTC filed affidavit evidence indicating that an LTC employee compared a site plan drawing eventually attached as Schedule A1 to the Site Pan Agreement to a Google image of the Lands and tabulated the number of spaces on each party’s portion of the Lands. The employee concluded there were 323 parking spaces on the Lands, 17 of which were partially on LTC lands and partially on the Property. His tabulation indicated the following allocation of parking spaces: Famee, 180 spaces; LTC, 20 spaces; LTC/Famee, 17 spaces; Benevolent, 106 spaces.

(d) The September 2003 Tripartite Agreement

[22] On September 17, 2003, LTC, Benevolent and Famee entered into an agreement (the “Tripartite Agreement”) to establish “the manner in which [their respective lands] are to be utilized and the manner in which related costs are to be shared.”

[23] In paragraph 4(a) of the Tripartite Agreement, LTC agreed to construct “reconfigured parking areas and internal roadway systems” at its expense.

[24] Paragraph 4(b) of the Tripartite Agreement contemplated mutual easements between Famee, Benevolent and LTC. Paragraph 4(b) stipulated that “notwithstanding that [the parties] enjoy an easement for vehicular and pedestrian access and egress over the lands of the other parties … such right shall not permit the owner of the dominant tenement … to change, alter or modify the lands of any servient tenement or expand those parts of the servient tenement actually being used for the purposes of the easements … without the prior written consent of the owner of the servient tenement, which may not be arbitrarily withheld but which may be subject to reasonable terms including that the proponent of the change … agreeing to pay for all costs relating to same”. [5]

(e) The September 2003 reciprocal easements

[25] The reciprocal easements referred to in the Tripartite Agreement were registered against the title to the Property and the LTC and Benevolent lands on September 22, 2003. The reciprocal easements created a property interest in favour of each of LTC, Famee and Benevolent in all of the Lands and gave each the right to use the other parties’ lands “for the purposes of vehicular and pedestrian access and egress”.

[26] However, each party’s use of the other parties’ lands was restricted to the portion of the other parties’ land “as may be unencumbered by buildings or structures from time to time and as may be improved from time to time by the owner thereof”.

[27] The easement granted by Famee to LTC, which is the subject of the formal judgment, reads as follows:

A non-exclusive easement for the purposes of vehicular and pedestrian access and egress over and along [Property legal description omitted], as may be unencumbered by buildings or structures from time to time and as may be improved from time to time by the owner thereof to accommodate vehicular and pedestrian access and egress, being the servient tenement.

(2) The Application Judge’s Reasons

[28] After reviewing the background facts, the application judge described the issue before him as narrow:

The issue before me is narrow. Are parking rights property rights that are included in the easements or are they contractual rights under the various agreements alone?

[29] The application judge noted that Primont did not, “for present purposes”, deny its obligation to provide parking as agreed. It accepted that under the Site Plan Agreement it could not unilaterally change the agreed upon parking area and that under the Tripartite Agreement any future redevelopment of the Property would likely require a municipal rezoning process.

[30] Concerning whether the contractual rights were also property rights, the application judge concluded that the outcome is “clear and unambiguous”. He said the easements deal with access and egress only; they ensure that all three owners have rights to enter the campus, drive or walk over each other’s lands and leave at the other end. They do not confer parking rights, which are contractual. He reached these conclusions for several reasons. Among other things, he said:

• LTC’s acknowledgement that it has no right to park on Benevolent’s lands is inconsistent with its claim that that the easements include a parking right;
• the easements are to be interpreted in accordance with the words used first and foremost, while reference can be had to objective surrounding circumstances, they cannot overwhelm the words used;
• nothing in the City development documents, planning reports, zoning by‑laws, or the parties’ agreements allows the words “vehicular and pedestrian access and egress over and along” to be construed to mean “parking”;
• parking was an issue for the City and the parties, and they dealt with it as they wished and to the satisfaction of all at the time.

[31] The application judge rejected LTC’s argument that granting the easements over the whole of each party’s lands made no sense if the easements do not include parking rights. He said the “parties anticipated future redevelopment … as long as future development allowed for some roadways, they can be anywhere and the easements would not need to be changed.”

[32] The application judge concluded there was no easement of necessity on the facts of this case and that proprietary estoppel would not apply.

[33] Concerning an easement of necessity, he noted that the newly created lot was landlocked. Access and egress was therefore dealt with by the easements. On the other hand, “[p]arking was desired for the uses contemplated by the owners of their land. And that was the subject of agreements among them and with the City”.

[34] Concerning proprietary estoppel, he said there were contractual rights agreed upon by the parties and no indication of a promise not to redevelop the Property or never to propose a revision to the parking plan.

[35] The application judge concluded by saying:

The long-term care facility is trying to bring before the court its issues for use and zoning that may ultimately be for the Land Planning Appeal Board. Its current day need for parking will be dealt with in any redevelopment process that may be proposed. At this stage, no one knows what Famee or its buyer will propose for redevelopment or how any such proposal will affect the long-term care facility if at all.

(3) Discussion

(i) Should Primont’s application have been dismissed because it was speculative or hypothetical?

[36] LTC’s primary submission is that the application should have been dismissed as speculative and hypothetical because, as framed, it could have no practical effect in resolving the dispute between the parties about parking rights. Moreover, and in any event, the application was always hypothetical because Primont did not put forward any development plan indicating what it intends to do with the existing parking spaces or where it intends to locate any new buildings or parking spaces.

[37] LTC submits that the question whether it is entitled to parking rights on the Property has to be determined based not only on the easements, but also on the planning history of the Lands, the zoning by-law, and the Site Plan Agreement and Tripartite Agreement made by the parties. Confining the issue to an interpretation of the express terms of the easements in the abstract will not resolve the parties’ dispute about parking rights. Further litigation will be required.

[38] According to LTC, the application judge failed to appreciate that the application would have no practical impact because he misapprehended, or was misled, about Primont’s true position. His reasons demonstrate that he understood the parties’ agreements conferred parking rights and that the issue for him was whether these contractual rights were also property rights. Primont’s appeal factum makes clear Primont’s true position that the Site Plan Agreement and Tripartite Agreement “do not even purport to grant a right to park to LTC on the [Property]”.

[39] Relying on Re City of Burlington and Clairton Village, (1979), 24 O.R. (2d) 586 (Ont. C.A.), at p. 590, LTC also submits that that the application judge should not have attempted to interpret the scope of the Easement where Primont failed to put forward a redevelopment plan.

[40] LTC submits that although courts have authority under rule 14.05(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to determine rights that depend on the interpretation of deed, contract or other instrument, this procedure should not be used where the subject instrument is not the only relevant document and where its interpretation will not finally end the litigation. Given that Primont did not put forward a redevelopment plan, whether its plan will fall within the ambit of the Easement cannot properly be determined.

[41] I would not accept this submission for several reasons.

[42] As a starting point, LTC did not raise any issue in the court below concerning whether proceeding by application was appropriate in this case and did not ask that the application be dismissed as speculative and hypothetical. Instead, it requested a declaration that the Easement conferred parking rights [6].

[43] Second, I am not persuaded that the application judge misapprehended Primont’s position on the application in any way.

[44] LTC appears to assert that the application judge understood Primont to be conceding that the Site Plan Agreement and Tripartite Agreement conferred a contractual right on LTC to park in specific parking spaces, or at least in a specific number of parking spaces, on the Property and interpreted the Easement based on that misunderstanding. According to LTC, had the application judge appreciated Primont’s true position, he would have dismissed its application or at least directed a trial of an issue concerning the interpretation of all of the Easement, the Site Plan Agreement and the Tripartite Agreement taking account of the planning process.

[45] I disagree. I do not read the application judge’s reasons as misunderstanding Primont’s position. LTC and Primont clearly have a different understanding of the proper interpretation of the Site Plan Agreement and the Tripartite Agreement (collectively, the “Agreements”). While LTC interprets the Agreements as conferring on it a right to park on the Property, Primont interprets the Agreements as imposing an obligation to create and maintain parking spaces according to the Schedules attached to the Site Plan Agreement.

[46] The specific paragraphs of the application judge’s reasons on which LTC relies are paras. 20, 23, 24 and 27:

[Primont] says that the easement just allows access and egress over the [Property] for the land-locked long-term care facility. Parking is dealt with separately in the agreements between the parties. For present purposes, [Primont] and Famee do not deny their obligations to provide parking as agreed. They accept that under the Site Plan Agreement they cannot change unilaterally the use of the parking area as agreed. They know that any future changes to redevelop the [Property] will likely require a municipal rezoning process. They accept that under the tripartite agreement, if they (as dominant tenement) propose changes to the long-term care facility lands, then the long-term care facility will have a consent right as described. None of that is in issue. The narrow issue for this application is simply whether the contractual rights are also property rights included in the easements. Parking rights between and among these parties are contractual. [Emphasis added.]

[47] Although the application judge spoke of Primont acknowledging parking rights being dealt with in the agreements between the parties and parking rights being contractual, I do not read him as interpreting Primont’s position concerning the nature of those rights as being anything different than Primont’s position on appeal. In particular, he specified that Primont’s understanding was that it could not unilaterally change the use of the parking area or redevelop Property. The question of the proper interpretation of the Agreements was not before the application judge and he did not decide that question.

[48] Finally, I reject LTC’s submission that, in the absence of a redevelopment plan, Primont’s application to interpret the Easement was hypothetical. The issue before the application judge was whether the Easement conferred on LTC, the dominant tenement owner, a proprietary right to park on the servient tenement, namely, the Property. Primont was entitled to know that before it completed its purchase of the Property. Unlike the City of Burlington case relied on by LTC, there was no issue on the application concerning whether a redevelopment plan by the dominant tenement owner exceeded the scope of its easement.

(ii) Did the application judge err in failing to hold that LTC’s right under the Easement included parking rights?

[49] LTC argues that the application judge erred in failing to consider whether ancillary rights included parking rights in circumstances where the parties had always agreed that parking rights were necessary. LTC also argues that the application judge erred in holding there is no easement of necessity on the facts of this case and further erred in holding that proprietary estoppel does not apply.

The ancillary rights issue

[50] Before turning to his analysis, at paragraphs 7 and 12 of his reasons, the application judge noted that all parties recognized from the outset that additional parking was needed for the new long-term care facility and the planning process required it.

[51] As noted in the planning report submitted to the City in December 2002, prior to the March 2003 zoning by-law being passed, the applicable City zoning by-law required that the long-term care facility have a minimum of 84 parking spaces. However, the LTC lot apparently provided only 20 full parking spaces and another 17 partial spaces extending across its boundary with the Property.

[52] In these circumstances, LTC submits that the application judge erred by failing to even consider the ancillary rights doctrine in his reasons and by failing to hold that ancillary rights under the Easement include parking rights on the Property.

[53] Relying on MacKenzie v. Matthews, [1998] O.J. 5342 (Ont. Gen. Div.), at paras. 30 and 31, aff’d, [1999] O.J. No. 4602 (Ont. C.A.), and Moncrief v. Jamieson, [2007] U.K.H.L. 42, LTC submits that even where an easement does not expressly refer to “parking”, if parking rights are reasonably necessary to the enjoyment of an easement, they may be found to be ancillary to the express terms of the easement.

[54] Here, according to LTC, the Easement will effectively be rendered useless without parking rights. At paragraph 34 of his reasons, inexplicably says LTC, the application judge described parking as being “desired” rather than necessary as he had said previously. However, that conclusion is inconsistent with the parties’ treatment of the parking issue as a necessity. It is also inconsistent with the reality that staff, visitors, suppliers using the loading dock, and contractors to the long‑term care home require parking daily to enjoy the easement effectively.

[55] I would not accept these submissions.

[56] Where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created. The grant of an express easement includes such ancillary rights as are reasonably necessary to use or enjoy the easement. However, to imply a right ancillary to that which is expressly granted, the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable: Fallowfield v. Bourgault, (2004), 68 O.R. (3d) 417 (C.A.), at paras. 10‑11.

[57] Read fairly, the application judge’s reasons exclude the possibility that parking rights were included as an ancillary right to the Easement.

[58] In particular, as the application judge correctly noted, “easements are to be interpreted in accordance with the words used, first and foremost.” Here, the purpose of the Easement, as expressly stated in the grant, was for “vehicular and pedestrian access and egress”. Without the Easement, the LTC lands were landlocked. The Easement was necessary to remedy that problem. Moreover, as the application judge observed, the reciprocal easements exchanged among the original owners ensured all could enter on and traverse all of the unencumbered Lands, which had been envisaged as one campus.

[59] The application judge also noted that parking rights were dealt with by the City and the parties “as they wished and to the satisfaction of all at the time.” Parking rights could not therefore be construed as reasonably necessary for the enjoyment of the easement when it was created. The fact that the Agreements may not be interpreted in the manner LTC submits they should be interpreted does not undermine this conclusion. As I have said, I am not satisfied that the application judge misapprehended Primont’s position on this issue.

[60] Further, although the long-term care facility had a limited number of parking spaces, it did not lack parking altogether. Accordingly, even in the absence of the other arrangements made for parking by the parties and the City, unlike the cases relied on by LTC, the Easement, which afforded users the right to access the LTC lands and, effectively the long-term care facility, was not rendered useless in the absence of ancillary rights to park on the Property.

The easement of necessity issue

[61] LTC submits that, generally, an easement of necessity will be found where land is severed and an easement or quasi easement that is necessary to the reasonable enjoyment of the land severed was used by the original owner up to the time of the severance, and was apparent at the time the severance occurred: Deforest Bros. v. Tuck, 2020 ONSC 6439, at para. 38.

[62] LTC claims that here, parking is necessary to the reasonable enjoyment of its lands, that the parking spaces at issue have only ever been used as shared parking for Famee and LTC, and that the shared parking spaces have been apparent through painted lines and use, including parking spaces partially on both the LTC lands and the Property. Accordingly, the application judge erred in failing to find an easement of necessity for parking.

[63] I would not give effect to LTC’s argument. Like the application judge, I see no basis for applying the doctrine of an easement of necessity in this case. As the application judge held, “[a]ccess and egress to the newly created lot was necessary and was dealt with expressly by easements.” Parking was the subject of the Agreements among the landowners and the City. The doctrine simply does not apply. The Easement resolved the problem of the LTC land being landlocked. Parking was dealt with through the Agreements.

The proprietary estoppel issue

[64] The application judge held that proprietary estoppel does not apply because Famee did not promise not to redevelop the Property and LTC cannot show Famee ever represented it would not rely on its right to redevelop as reflected in the Easement.

[65] LTC does not take issue with this finding. Rather, LTC submits that its claim for proprietary estoppel was premised on representations made to it that it would be entitled to a minimum of 84 parking spaces on the Lands.

[66] I would not give effect to this submission. Even assuming LTC has provided evidence of a clear representation to that effect, it does not assert a representation of a proprietary right in the form of an easement as opposed to a contractual right.

C. The Cross-appeal

[67] By way of a draft order submitted to settle the formal judgment, Primont sought the following Proposed Additional Declaration:

That the Subject Easement does not prevent the owner of the Famee Lands from encumbering the Famee Lands with buildings and/or structures, or otherwise redeveloping the Property, provided that the dominant tenements maintain a minimum of one (1) access to a public highway (as that term is defined in the Highway Traffic Act, R.S.O. 1990, c H8) via the [Property].

[68] After receiving written submissions concerning settling the formal judgment, the application judge refused Primont’s request to include the Proposed Additional Declaration. Among other things he said,

The proposed limitation of [LTC’s] dominant right to use the Famee land to a singular public access was (a) not argued; (b) inconsistent with the words of the decision; and (c) inconsistent with the words of the easement.

The proposed limitation may have been inserted into the last paragraph of [Primont’s] factum. That is neither an amendment to the notice of application nor the way to raise and argue an issue for relief (if that is what was intended). It was not mentioned in the body of the factum or at the oral hearing.

[69] Primont submits that the application judge’s decision denied Primont procedural fairness and also amounted to an error in law.

[70] While Primont acknowledges that the public highway access issue was not addressed in oral argument before the application judge, it asserts that it requested the Proposed Additional Declaration in both its notice of application and in its factum. The issue was not addressed in oral argument only because LTC did not contest it.

[71] Primont submits that the application judge’s determination that the Proposed Additional Declaration is inconsistent with his decision and the words of the Easement deprives it of the right to make substantive submissions on those issues. Moreover, it was an error in law for the application judge to find that the issue was not raised because, in fact, it requested the relief.

[72] I would not accept these submissions. Primont did not ask for the precise relief set out in the Proposed Additional Declaration in its notice of application. Rather than specifying that the Easement does not prevent redevelopment provided that the dominant tenements maintain one access to a public highway as defined in the Highway Traffic Act (“HTA”), in its notice of application, Primont asked for the declaration with a condition only that access to a public highway (not defined) be maintained:

A declaration that the Easement (as that term is defined below):

(a) does not include the right to park on the Famee Lands (as that term is defined below);

(b) does not prevent the owner of the Famee Lands from encumbering the Famee Lands with buildings and/or structures or otherwise redeveloping the Famee Lands, provided that the Neighbouring Lands (as that term is defined below) maintain access to a public highway. [Emphasis added.]

[73] This distinction is significant because, as of the date of Primont’s application, LTC enjoyed three access points to adjacent streets.

[74] Contrary to Primont’s submissions, seeking a declaration that the Easement did not prevent it from redeveloping the Property provided it maintained one access point to a public highway was a significant enlargement of the relief Primont requested in its notice of application. It was not entitled to enlarge the relief it originally requested without seeking an amendment to its notice of application. While the application judge undoubtedly had discretion to permit an amendment without a formal application on whatever terms he considered appropriate (such as an adjournment and costs thrown away), Primont was not entitled to unilaterally amend its notice of application by inserting a broadened prayer for relief at the conclusion of its factum and without raising the issue in oral submissions.

[75] As also stated by the application judge in his endorsement settling the formal judgment, Primont “overreache[d] in its proposed draft order.”

[76] As for Primont’s claim that it was denied procedural fairness, the application judge’s stated reasons for denying its request to include the Proposed Additional Declaration in the formal order that it was inconsistent with the words of his decision and inconsistent with the words of the Easement are not final determinations of those issues. LTC acknowledged that in its oral submissions on the appeal.

[77] The impugned reasons were simply non-binding add-ons to the application judge’s fundamental and correct reason for denying Primont’s request to include the Proposed Additional Declaration in the formal judgment. Primont did not request the Proposed Additional Declaration in its notice of application and never sought leave to amend, either formally or informally. Primont is not estopped by the application judge’s endorsement from seeking relief in the form of the Proposed Additional Declaration in the future.

D. Disposition

[78] Based on the foregoing reasons, I would dismiss the appeal and cross‑appeal.

[79] I would award partial indemnity costs of the appeal to Primont in the agreed upon amount of $20,000 inclusive of disbursements and HST and partial indemnity costs of the cross-appeal to LTC in the agreed upon amount of $2,500 inclusive of disbursements and HST.

Released: July 7, 2023 “J.M.F.” “Janet Simmons J.A.” “I agree. Fairburn A.C.J.O.” “I agree. B. Zarnett J.A.”

Appendix “A”

4. WORKS, ETC.

(a) …

(b) The parties hereto covenant and agree that notwithstanding that they enjoy an easement for vehicular and pedestrian access and egress over the lands of the other parties hereto, such right shall not permit the owner of the dominant tenement in each case to change, alter or modify the lands of any servient tenement or expand those parts of the servient tenements actually being used for the purposes of the easements from those being so used as at the date of execution of this Agreement without the prior written consent of the owner of such servient tenement, which may not be arbitrarily withheld but which may be subject to reasonable terms including that the proponent of the change, alteration or modification agreeing to pay for all costs relating to same, including the obtaining of all requisite approvals, consents, etc. and agreeing to post reasonable security for the contemplated work.

[1] Eddy J. Battiston appeared but made no written or oral submissions on behalf of the respondent Friuli Benevolent Corporation. [2] G.G. Piccin appeared but made no written or oral submissions on behalf of the respondent Famee Furlane Toronto. [3] The agreement was actually between a predecessor to Primont, in trust for a company to be incorporated. [4] This language is taken from the formal judgment. [5] The full text of para. 4(b) of the Tripartite Agreement is set out in Appendix ‘A” attached. [6] In his reasons, the application judge stated that the “application [was] therefore granted and the counter-application is dismissed.” No counter-application is included in the appeal record, nor does the formal judgment dismiss a counter-application. However, LTC’s factum in the court below requested a declaration that the Easement conferred parking rights.