COURT OF APPEAL FOR ONTARIO

CITATION: Hoggarth v. MGM Farms and Fingers Limited, 2015 ONCA 908

DATE: 20151222

DOCKET: C60508

Doherty, van Rensburg and Miller JJ.A.

BETWEEN

Ronald Hoggarth, Colin Taylor and Jim Sarjeant

Applicants

(Respondents in Appeal)

and

MGM Farms and Fingers Limited, Lawrence Westreich, Irina Mirzakondov, David Steinberg and Antoinette Steinberg and the Corporation of the Township of Oro-Medonte

Respondents

(Appellants in Appeal)

David E. Lederman and Joseph Hoffman, for the appellants

E. Marshall Green and William M. Thomson, for the respondents Ronald Hoggarth, Colin Taylor and Jim Sarjeant

Christopher J. Williams and David P. Neligan, for the respondent Corporation of the Township of Oro-Medonte

Heard and released orally: December 16, 2015

On appeal from the order dated April 17, 2015 and the costs order dated June 5, 2015 of Justice Guy P. DiTomaso of the Superior Court of Justice.

ENDORSEMENT

[1] The appellants are the legal owners of certain lots in a subdivision on Lake Simcoe in the Township of Oro-Medonte, referred to as the “Slivers”, which they acquired in 2012. The respondents (other than the Township) are owners of other lots located in the same subdivision but claim user rights in the Slivers. The Slivers are narrow parcels of land fronting the lake.

[2] The application judge determined that the subject lots “are and remain subject to the rights of the applicants and other who are owners of lots on Plan 993” and enjoined action that would interfere with or derogate from the rights of such owners.

[3] There were three issues before the application judge. First, what was the nature of the interest claimed by the respondents in the subject lands now owned by the appellants? The respondents are successors in title to lots that were included in a plan of subdivision. A notation on the plan stated that the subject lots, as well as lot 1, which was deleted by court order in 1968, were “dedicated as area of user, common to each property owner in the subdivision”.

[4] The application judge characterized the interest as a right of user in common. This conclusion is not at issue in the appeal, although the appellants do take issue with the extent or description of any rights the respondents have.

[5] Second, the application judge considered whether any rights conferred under the notation in the registered plan had expired 40 years after registration or whether the respondents came within the open use exception under s. 113(5)(a)(iv) of the Registry Act.

[6] Third, the application judge considered the effect of the conversion to Land Titles in 2002 and whether there was, at the time of conversion on January 21, 2002, any existing right of way or other easement as per s. 44(1)2 of the Land Titles Act.

[7] The application judge considered the affidavit evidence filed by the respondents. This was the only evidence before him as no evidence had been filed by the appellants and they had conducted no cross-examinations. His conclusions with respect to the use of the subject lands were set out in his reasons, including at para. 36 where he stated:

The use of the various owners as evidenced by their affidavits is entirely consistent with the notation on the Plan. The Slivers have been used continuously and openly since 1950 to at least the date that this matter came before the Ontario Municipal Board. [He was referring here to a pending appeal to the OMB of a decision respecting one of the subject lots by the Committee of Adjustment of the Township.]

and at para. 59 where the application judge stated:

I find the Slivers were used by the applicants and other lot owners of Plan 993 and the Township in common for a quasi-public and public purpose. Those uses have been open and continuous since 1950 and continue to this day. Those uses have been fully described in all of the affidavit material that I have referred to and which evidence I accept.

[8] There are three arguments on appeal. First, the appellants say that the application judge erred in failing to consider the evidence of user by the respondents at the material times (on September 23, 1990, 40 years after the registration containing the notation expired and on January 21, 2002 at the time of conversion to Land Titles), and that there was no evidence of the respondents’ use of the Slivers on such dates.

[9] The respondents agree that these are the relevant time periods for assessing their user but contend that the application judge was aware of the key dates and that the evidence established user at both of the relevant times.

[10] Second, the appellants say that the evidence before the application judge was insufficient to show that the respondents were “openly enjoying and using” each of the subject lots at the relevant time.

[11] Third, the appellants contend that the application judge erred in not restricting the respondent’s user of the subject lots to “bathing purposes”, as this was the use that was contemplated by the relevant authority at the time that subdivision approval was granted in 1949.

[12] We do not give effect to any of these grounds of appeal. While the appellants attempt to put their arguments higher, all three arguments are about the sufficiency of the evidence that was considered and relied upon by the application judge. While the affidavits contain references to the deponents’ information and belief without disclosing the source of information and belief in some instances, they also contain numerous references to the personal observations of the deponents, particularly the affidavits of Mr. Taylor and Mr. Edwards who acquired their lots before 1990.

[13] As noted, the appellants did not provide any evidence or challenge the affidavits by cross-examination. Indeed, as the application judge observed in his reasons, they argued that the application raised questions of law and that evidence was irrelevant. Having taken that approach in the application, the appellants’ arguments about the sufficiency of the evidence ring hollow.

[14] As for the first issue, in our view, the application judge was aware of the importance of the 1990 and 2002 dates, as they were central to the legal framework in which he decided the issues: see paras. 23 and 60-71. Further, the evidence was sufficient to meet the requirement of open user at the relevant dates. It was not necessary, as suggested but not strenuously advocated by the appellants, that there be evidence of specific activities on each lot on each of the given days.

[15] In our view, and in view of the appellants’ failure to challenge the evidence before the application judge, there is no reason to interfere with his assessment that the evidence supported the common user of all of the lots on a continuous basis by the subdivision lot owners.

[16] As for the second issue, we would not interfere with the application judge’s assessment of the evidence and its sufficiency to establish open user of each of the Slivers by the respondents.

[17] We do not give effect to the appellants’ final argument. The rights of the respondents by reason of the continuous common user of the subject lots originated with a notation on the subdivision plan. That notation referred to the lots as “an area of user common to each property owner in the subdivision.” There was no qualification or restriction as to the way in which the lots could be used. We agree with the respondents that it would be wrong to read in a restriction based on an archived letter stating the reasons for the designation.

[18] We note that the order of DiTomaso J. states that the subject lots are and remain subject to the rights of the appellants and others who are owners of lots of Plan 993 without specifying the rights. While the order may appear very general, this is understandable. The order tracks the relief sought in the application and it does not appear that argument was addressed to the court below respecting the specific types of uses that the respondents were making of the Slivers. While in our view the scope of the application addressed only the common user rights of the respondents, we decline in this appeal to make any amendment to the order that would restrict or alter its scope. Nor would we add to the order to recognize rights of the Township that were not directly at issue in the application or the appeal.

[19] The appellant shall pay costs, inclusive of disbursements and applicable taxes, to the respondent owners in the sum of $17,600, and to the Township in the sum of $5,000.

“Doherty J.A.”

“K. van Rensburg J.A.”

“B.W. Miller J.A.”