Court of Appeal for Ontario

Date: 2017-11-14 Docket: C63441

Judges: MacFarland, Watt and Brown JJ.A.

Between

H. Baur Investments Limited Plaintiff (Respondent)

and

Vincent Tangredi Defendant (Appellant)

Counsel

Harvin D. Pitch, for the appellant

Brendan Clancy, for the respondent

Heard and released orally: September 29, 2017

On appeal from: the order of Justice Edward P. Belobaba of the Superior Court of Justice, dated February 8, 2017.

Reasons for Decision

[1] This is an unfortunate dispute between the owners of adjacent properties on Hawthorne Gardens in the City of Toronto. The appellant and respondent jointly own this private roadway that runs east to a dead end at numbers 5 and 6 Hawthorne, and west to Castle Frank Road.

[2] The respondent has owned 4 and 6 Hawthorne since about 1980. The appellant acquired 5 Hawthorne in 2015 but did not move in, pending renovations to the property, until the fall of 2016.

[3] As part of his purchase of the property at 5 Hawthorne, the appellant took an assignment of, and agreed to be bound by, the agreement between the respondent and the appellant's predecessor in title, Ms. Handeles, that governs the use and care of the private roadway. And, having signed that agreement in 2015, any conduct from 1990-2015 becomes irrelevant.

[4] The material part of that agreement, for present purposes, provides "Hawthorne Gardens shall be used only for pedestrian and vehicular access by each of the parties hereto and none of them shall use or permit any act upon Hawthorne Gardens in such a manner as to unreasonably interfere with or obstruct the reasonable use thereof by any of the other parties, their tenants, agents, employees, invitees, tradesmen and contractors."

[5] The appellant, his tradesmen and contractors parked on the roadway during the renovations after he acquired the property. This resulted in complaints to the respondent, who rented out his property to tenants. Before the motion judge, the appellant took the position that he was entitled to park his vehicles on the roadway provided he did not block egress or ingress. The motion judge held that the agreement clearly prohibited parking on the roadway. We agree with that interpretation.

[6] In this court, the appellant raises new arguments. He now concedes that the agreement prohibits parking, but argues, for the first time in this court, that the parties explicitly amended their agreement to permit parking on the brick pad adjacent to their respective homes. The pad covers a part of the roadway, as well as small portions of the properties of 5 and 6 Hawthorne. This argument was not raised before the motion judge. Without deciding whether the appellant can or cannot raise the argument now, we reject it in any event.

[7] The June 10, 1991 letter upon which he relies does not, as he argues, give him the right to park his vehicle on that part of the pad nearest his house but which covers the jointly-owned road. His evidence related to past practices is all hearsay and, on this contentious issue, is inadmissible. There is no direct evidence from the appellant in this regard.

[8] As for the appellant's own use of the pad, the respondent has rejected this usage from the time that the respondent acquired his property in 1991. The agreement is clear on its face as the motion judge found. Parking is not permitted on the road, including that portion covered by the brick pad.

[9] The site plan application was a necessary and incidental part of the injunction order. It was fully canvassed before the motion judge, and the appellant had a full opportunity to advance his position at that time. The motion judge made no error in requiring the appellant to sign the application.

[10] The appeal is dismissed. Costs are awarded to the respondent fixed in the sum of $20,000, inclusive of disbursements and HST.

J. MacFarland J.A.

David Watt J.A.

David Brown J.A.