Court of Appeal for Ontario

Date: 2017-01-27 Docket: C62162

Judges: Doherty, Brown and Miller JJ.A.

Between

Francine Szymanski Applicant (Appellant)

and

Giuseppina Alaimo and Francesco Alaimo Respondents (Respondents)

Counsel

Corinne A. Muccilli, for the appellant

Gwendolyn L. Adrian, for the respondents

Heard and released orally: January 27, 2017

On appeal from: the judgment of Justice Douglas K. Gray of the Superior Court of Justice, dated April 14, 2016, with reasons reported at 2016 ONSC 2527.

Endorsement

[1] Counsel advance three arguments on the main appeal. First, she argues that the application judge erred in holding that the right-of-way provided the appellant only with access to the garage along the existing laneway. She argues that the right-of-way, properly interpreted, extended to access to the appellant's property from any point along the established laneway.

[2] In his reasons, the application judge properly instructed himself on the controlling legal principles. He was required to examine both the terms of the document that created the right-of-way and the surrounding circumstances. His determination as to the nature and scope of the right-of-way is a finding of fact. In our view, the application judge made no legal error and did not misapprehend the evidence in coming to his conclusion as to the nature of the appellant's right-of-way. Absent any such error, we must defer to the application judge's finding of fact and we do so.

[3] Counsel's second argument relates to the erection of certain posts as part of a fence which was constructed by the respondents along the pathway and led to this litigation. The application judge found that the posts did intrude, to a small extent, on the right-of-way. He made no finding that the posts in any way interfered with the use of the right-of-way as a means of getting into and out of the garage.

[4] More to the point, however, this issue is moot. The posts are gone and there is no reason to say anything more about the effects of those posts on the right-of-way.

[5] The third point raised by counsel relates to the nature of the order made by the application judge. The application judge accepted certain undertakings from the respondents. The undertakings were, first, not to reinstall the gates that had been removed and, second, to move the fence posts. These undertakings were referred to in the recitals to the order, but were not made part of the formal order and were not part of any declaration made by the application judge.

[6] The form of the order is a matter for the discretion of the application judge. Some judges might have included the substance of the undertakings as part of a formal declaration and others would not. In our view, when it comes to enforcing the order, there is no significant difference between the two options.

[7] The fresh evidence placed before us at the start of the oral argument does not suggest that the undertakings are not being complied with by the respondents. In the circumstances, we see no reason to interfere with the manner in which the application judge chose to frame the order. This ground of appeal fails.

[8] In the result, the main appeal is dismissed.

[9] As explained to counsel, we cannot determine the costs question raised by the appellant without seeing the written submissions that were made before the application judge. Counsel have indicated that those submissions can be provided to the court within two weeks. We will address the costs appeal when we have those written submissions. If for any reason they are unavailable, we will address the costs submissions on the basis of the record we now have. Counsel should file the written submissions in a single compendium as soon as they are available.

"Doherty J.A."

"David Brown J.A."

"B.W. Miller J.A."