COURT OF APPEAL FOR ONTARIO

CITATION: Milo-Food Infrastructure & Service Inc. v. 2255300 Ontario Limited, 2014 ONCA 333

DATE: 20140428

DOCKET: C57946

MacPherson, Blair and Pepall JJ.A.

BETWEEN

Milo-Food Infrastructure & Service Inc.

Plaintiff/Appellant

and

2255300 Ontario Limited

Michael Hillhouse

Albert Testa

Defendants/Respondents

Raymond G. Colautti and Anita Landry, for the appellant

Carolyn Brandow, for the respondents

Heard and released orally: April 25, 2014

On appeal from the judgment of Justice Terrence L.J. Patterson of the Superior Court of Justice, dated November 8, 2013.

ENDORSEMENT

[1] The appellant appeals from the November 8, 2013 order of Patterson J. in which he dismissed the appellant’s action against the respondents.

[2] In our view, this appeal must be allowed.

[3] There was ample evidence that the Easement and Lake Water Supply Agreement dated December 28, 2007 (the “Easement Agreement”) was conveyed to the appellant.

[4] By an Assignment and Assumption of Contracts Agreement dated August 31, 2011, the receiver of 1033084 Alta Ltd. (“103”), the registered owner of the Milo Road property and related personal property, expressly assigned and transferred all of 103’s right, title and interest in the Easement Agreement to the appellant.

[5] This was confirmed in the affidavit filed before the motion judge on behalf of the appellant.

[6] The August 30, 2011 approval and vesting order approves and gives effect to the assumption agreement. The only assumption agreement found in the record is that which transferred the Easement Agreement to the appellant.

[7] The language of the Easement Agreement itself contemplates transfer to a successor in title such as the appellant.

[8] Any absence of registration of the easement against the appellant’s lands does not advance the respondent’s case. The estate burdened by the easement was that of the respondent.

[9] The motion judge erred in dismissing the appellant’s action on the basis that the Easement Agreement had not been transferred.

[10] Moreover, there was no genuine issue requiring a trial on the issue of the transfer of the Easement Agreement to the appellant and the motion judge erred in not granting partial summary judgment to that effect in favour of the appellant.

[11] In conclusion, the appeal is allowed, the order is set aside, and partial summary judgment is granted declaring that the Easement Agreement was conveyed to the appellant. It follows that to the extent necessary, the CPLs obtained by the appellant are reinstated.

[12] In light of his conclusion, the motion judge did not address the other issues raised by the parties. In our view, any ancillary issues that continue to be outstanding may be addressed in whatever proceedings either party considers appropriate.

[13] The appellant is entitled to costs fixed in the amount of $12,000 inclusive of disbursements and applicable tax.

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”

“S.E. Pepall J.A.”