COURT OF APPEAL FOR ONTARIO
DATE: 20001101
DOCKET: C32324
RE: BERT WHITMELL and JUDITH WHITMELL (Respondents)
v. WILLIAM TUCKER (Appellant)
BEFORE: MORDEN, CHARRON, and BORINS JJ.A.
COUNSEL: John Weingust, Q.C
for the appellant
Clemens Eggert
for the respondents
HEARD: October 27, 2000
On appeal from the judgment of Mr. Justice Douglas M. Belch dated June 8, 1999 made at Kingston, Ontario.
E N D O R S E M E N T
[1] The well-established conditions for the admissibility of fresh evidence are not satisfied and the motion for its admission is, accordingly, dismissed.
[2] Regrettably, this is the fourth occasion on which the dispute between the parties relating to the access road has been before this court.
[3] The parties are agreed that their respective rights and duties are set forth in the order of Mr. Justice Marchand dated December 21, 1995 as follows:
THIS COURT ORDERS that the access road to the applicants’ [the Ritchies’] property be made accessible by means of motor vehicle access, in that the respondents or the applicants be allowed to repair and maintain same.
THIS COURT ORDERS that the respondents [the Whitnells’] be restrained from preventing the applicants from fixing the access road for the purpose of making same accessible for motor vehicle use.
[4] From this it is clear that Mr. Tucker, acting under the authority of the Ritchies, was entitled to attend on the Tucker’s property “for the purpose of making [the access road] accessible for motor vehicle use”. Mr. Justice Belch in his reasons said that what was done by Mr. Tucker “went well beyond the maintaining of the access road”. He then ordered Mr. Tucker to remove the gravel “in order to restore the property to its former state as a lawn”.
[5] It is far from clear to us that the latter state is what was contemplated by the order of Mr. Justice Marchand in that there was evidence that some gravel might be necessary in the area in question.
[6] With respect to Mr. Justice Belch, we do not think that the materials before the court were sufficient to enable summary judgment to be granted under rule 76.06(14), i.e., to decide whether what was done was in compliance with Marchand J.’s order.
[7] Before concluding we might usefully observe that the interests of the Ritchies clearly appear to be affected by these proceedings and we do not see how the court could adjudicate effectively and completely on the issues in the proceeding unless they are made parties to it. This should receive the serious consideration of the parties.
[8] In the result, we allow the appeal with costs, set aside the order of Mr. Justice Belch and make an order dismissing the motion with costs.
“J.W. Morden J.A.”
“Louise Charron J.A.”
“S. Borins J.A.”