COURT OF APPEAL FOR ONTARIO

CITATION: Wesley v. Iles, 2013 ONCA 8

DATE: 20130111

DOCKET: C55076

LaForme and Watt JJ.A. and Lederman J. (ad hoc)

BETWEEN

William Wesley

Plaintiff (Respondent)

and

Michael Iles and Julie Sunday

Defendants (Appellants)

AND BETWEEN

Michael Iles and Julie Sunday

Plaintiffs by Counterclaim

(Appellants)

and

William Wesley and Pamela Eisenhauer

Defendants by Counterclaim

(Respondents)

Morris Cooper, for the appellants

D. Kenneth Gibson and Ryan E. Flewelling, for the respondents

Heard: December 13, 2012

On appeal from the order of Justice John A. McMunagle of the Superior Court of Justice, dated February 1, 2012, reported at 2012 ONSC 629; and on cross-appeal from his order as to costs dated March 26, 2012, reported at 2012 ONSC 1557.

ENDORSEMENT

THE APPEAL

[1] Michael Iles and Julie Sunday (the appellants) are adjoining neighbours of William Wesley and Julie Eisenhauer (the respondents). There is an easement that lies between their respective homes, but which is on the property of the respondents. The appellants believed that because it is possible to park more than one vehicle on the easement, and because they have done so in the past; they should be permitted to do so for the foreseeable future. The respondents disagreed, and as often occurs in such disputes between neighbours, the matter ended up in court for resolution.

[2] The appellants moved for partial summary judgment for a determination of their right to park on the easement. At the same time the respondents moved for partial summary judgment to restrict their parking to a single car, and to eliminate or substantially reduce the area permitted for parking on the easement.

[3] The motion judge ordered that: (i) parking be limited to one car only; (ii) the appellants are to park their car in such a way that the respondents may have access to their backyard; and (iii) the easement on title be amended to add a restriction that the vehicle shall not be parked so as to restrict backyard access. Mr. Iles and Ms. Sunday appeal the decision.

[4] The motion judge’s decision should remain undisturbed. He committed no errors of law and his conclusions are reasonable ones supported by the evidence. The appeal has no merit.

Background

[5] In 1993, 16 Noel Street was severed to create an infill parcel of land that became 14A Noel Street. The parcel was registered under the Land Titles Act, R.S.O. 1990, c. L.5. At the time the lawyer for the promoter of the severance made the following representation to the Committee of Adjustments:

The other part of the variance is for the parking space for the old house that is being sold, which will be partly on the lot that goes with the new house that is being created. That is the easement that is being applied for as part of the severance application. So that 1.34 meters of that required parking space will be on this easement. It will not change the parking space and it will be a standard size parking space. (Emphasis added)

[6] On March 31, 1994, Dr. and Mrs. Reesor purchased 14A Noel Street as a vacant lot and developed it. They purchased it seven months after the easement was concluded with full knowledge that the title was subject to a parking easement. At the time, the Reesors understood their obligation was to provide an easement for parking one car. The grant of right-of-way and the easement on the Reesor's transfer/deed is worded as follows:

Together with a right-of-way for access and egress and a right to park a motor vehicle over part of Lot 23, Registered Plan No. 68, City of Ottawa, Regional Municipality of Ottawa-Carleton, more particularly described as Part 3, on deposited Reference Plan 4R-9422. (Emphasis added)

[7] On September 15, 2004, the respondents purchased 14A Noel Street. On September 15, 2005, the appellants purchased 16 Noel Street and knew about the easement when they purchased. The parties therefore are immediate neighbours.

[8] The dispute between the parties arose in 2008 because of the appellants’ practice of parking two cars on the easement right up against the house wall and a retaining wall of 14A Noel Street. As a result, the respondents cannot access their backyard via the easement.

Analysis

[9] While the appellants raise numerous grounds of appeal, we do not, as already noted, see any merit to any of them. The motion judge applied the correct law; he made no palpable and overriding errors in his findings of fact; and he properly applied those facts to the law. The following brief comments will sufficiently demonstrate the reasons for our decision.

[10] First, contrary to the appellants’ submission, the motion judge did not order an impermissible derogation from the original grant of easement. Rather, he interpreted the original grant according to its plain and ordinary meaning and after consideration of all the circumstances surrounding the grant.

[11] The appellants underpin much of their arguments on their contention that the motion judge failed to properly consider all the relevant circumstances surrounding the September 1, 1993 easement grant. For example, they argue that the motion judge failed to consider the fact that the easement in 1993 was paved and was 11.4 metres in length, which was double the length of a single parking space under the existing City of Ottawa by-law thereby providing space for parking two cars. They contend that he relied almost exclusively on the representations made to the Committee of Adjustment in 1993. They point particularly to para. 26 of his reasons on the summary judgment motions:

While I agree that the purpose of the easement was to preserve the ''historical parking rights of 16 Noel Street", when one carefully reviews the Committee of Adjustment’s evidence and the documents that are on title, references made are for a singular parking space. Had it been the intention of various parties involved to create more than one space, then clearly the Committee’s decision would have reflected that and the documents on title would have referred to spaces, plural. That is not in fact the case.

[12] They also rely on para. 12 of the motion judge’s costs endorsement where he observes: “As I indicated in my endorsement, essentially this case came down to whether or not the word ‘a’ parking space could constitute more than one parking space and I found that ‘a parking space’ means ‘one’ parking space”.

[13] The appellants’ arguments and the narrow reading of the motion judge’s reasons ignore the interpretation to be given to them when read as a whole. When considering the motion judge’s reasons in this fashion, together with the record, as we are bound to do, it is clear that he relied on all the evidence presented on these summary judgment motions, to which process the parties agreed. This included the representations to the Committee of Adjustment, the evidence of the Reesors, who were prior owners and developers of 14A Noel Street, and the language of their transfer/deed.

[14] After reviewing the evidence, the motion judge, at para. 22 of his summary judgment reasons, found that:

The evidence does not support the [appellants’] position that an easement was granted in favour of 16 Noel Street to allow the owners of 16 Noel Street to continue to park on the entirety of the driveway. In fact, the evidence is to the contrary that the easement was granted to provide a sufficient space to park a vehicle.

[15] The decision of the motion judge was clear that the intention of the parties was to create a right to park one vehicle. This is amply supported by the evidence and the language of the documents he relied on.

[16] Second, contrary to the appellants’ submissions, the motion judge did not err in his reliance on the evidence of Dr. Reesor. Dr. Reesor’s evidence was relevant as it related to the creation of the easement, and the history of its use. Indeed, his evidence was relevant to both party’s arguments. Clearly the motion judge found Dr. Reesor’s evidence credible and such decisions are entitled to significant deference and no reasons have been established in this case that would require us to interfere.

[17] Third, the motion judge did not err by failing to resolve any ambiguities in accordance with the rule in Wheeldon v. Burrows, (1879) Ch. D. 31 (C.A.) and in failing to apply the law of the implied grant. While this issue does not appear to be one that was raised with the motion judge, nevertheless, it has no application here. Very briefly, Wheeldon v. Burrows is an English property law case on the implying of grant easements. Put simply, there is nothing to imply in this case because the finding of the motion judge was that the intention of the parties was to create a right to park one vehicle and there was an express grant to this effect.

[18] Fourth, the motion judge did not exceed his jurisdiction and err in law by revising the grant of easement to add a restriction. His decision is well within the wide discretion afforded him by s. 159 of the Land Titles Act, which allows him to make any order directing the land register be rectified in such a manner as is considered just.

[19] Fifth, the motion judge did not err by ordering a judgement inconsistent with a city by-law. The easement was established before the by-law that prohibits parking in front of the front wall of a house. The easement is a legal non-conforming use and the motion judge was not required to interpret the grant in a way that was consistent with it. The relevant considerations were the language of the express grant and the context of its creation.

Disposition

[20] For these reasons, the appeal is dismissed.

THE CROSS-APPEAL

[21] The respondents cross-appeal on the issue of costs. They ask that the cost award of the motion judge - $20,000 plus disbursements and HST - be varied to $80,000. This cross-appeal is also dismissed.

[22] We see no error in the findings and decision of the motion judge. He referred to the correct statutory principles and applied the factors correctly to the facts before him. He properly considered the defendants’ offer to settle and the complexity of the case. His decision, absent an error in law, or unless his decision is plainly wrong, is entitled to deference.

COSTS

[23] The respondents are awarded costs of the appeal fixed in the amount of $7,500 inclusive of disbursements and HST. The appellants are awarded costs of the cross-appeal fixed in the amount of $3,000 inclusive of disbursements and HST. In the result, the respondents are entitled to costs from the appellants in the all inclusive amount $4,500.

“H.S. LaForme J.A.”

“David Watt J.A.”

“S. Lederman J. (ad hoc)”