CITATION: BCM International (Canada) Inc. v. Joannette, 2008 ONCA 156
DATE: 20080229
DOCKET: C45150
COURT OF APPEAL FOR ONTARIO
LANG, MACFARLAND and LAFORME JJ.A.
BETWEEN:
BCM INTERNATIONAL (CANADA) INC.
Applicant/Respondent to the Counter-Application (Respondent in Appeal)
and
NELSON JOANNETTE
Respondent/Applicant by Counter-Application (Appellant)
Jonathan F. Lancaster and William C. Hoskinson for the appellant
Ian Gerald T. Smits for the respondent
Heard: February 28, 2008
On appeal from the judgment of Justice J.W. Quinn of the Superior Court of Justice dated February 24, 2006.
APPEAL BOOK ENDORSEMENT
[1] In our view, there was ample evidence to support the findings and conclusion of the trial judge. The trial judge was correct to focus on giving the clause at issue “its plain, ordinary and grammatical meaning.” We agree with the trial judge that the clause was unambiguous and that the habendum could not be used to bolster its effect. As the trial judge recognized, the unconditional right of way is specifically set out in the description of the land conveyed. In contrast, the clause, which allowed the grantee “herself and her guests” a limited use of the facilities was a “stand-alone” provision, which on its face did not make any grant to heirs and assigns.
[2] The appellant also appeals the trial judge’s finding of trespass. The trial judge had the opportunity to observe the witnesses, weigh the animosity in the relationship of the parties at the time, and make a determination about the claim of acquiescence. It was open to the trial judge on the basis of the evidence to find that the appellant did not have the respondent’s permission to use the facilities for the purpose of his 40-50 person reunion.
[3] The parties agree that the trial judge made an inadvertent error in granting a declaration in accordance with para. 1(a) of the application because it is conceded that the appellant has two easements to gain access to his property, one to the south as described in the deed and another to the north of the cemetery on a basis of a prescriptive easement. The parties agree that the two easements are as described in para. 56(b)(ii) of the appellant’s factum.
[4] Accordingly, the appeal is dismissed except to the extent that the judgment is varied to delete paragraph 1(a) thereof.
[5] Costs to the respondent in the amount of $5,000, inclusive of disbursements and GST.