DATE: 20051222

DOCKET: C41923

COURT OF APPEAL FOR ONTARIO

RE:

DANNY BOWLIN LUM and MARGARET LUM (Plaintiffs/Respondents) – and – JEAN FAULDS (Defendant/Appellant)

BEFORE:

BORINS, FELDMAN and ARMSTRONG JJ.A.

COUNSEL:

Andrew C. Lewis

for the appellant

Evert Von Woudenberg

for the respondent

HEARD & ENDORSED:

December 21, 2005

On appeal from the judgment of Justice Bruce C. Hawkins of the Superior Court of Justice dated January 28, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] To draw the eastern boundary of the traversing easement in a north‑south direction from the location of the old chain link fence reflected the historical use of the property. Therefore, the trial judge erred in drawing the easterly limit of the traversing easement adjacent to the appellant’s house and over part of her front law.

[2] Accordingly, we would allow the appeal and vary the judgment to limit the easterly boundary of the traversing easement as shown in the pink area of the survey at Tab C of the appellant’s factum. We further vary the judgment in respect to the possessory title as shown in the yellow portion of the same survey. Costs to the appellant on a partial indemnity scale fixed at $15,000.00 inclusive of disbursements and GST.