Court of Appeal for Ontario
Date: June 28, 2018 Docket: C64185
Justices: Pepall, van Rensburg and Paciocco JJ.A.
Parties
Between
Terence Berg and Matilda Berg Plaintiffs (Respondents)
and
Marilyn Susan Marks Defendant (Appellant)
Counsel
For the Appellant: Allan Rouben
For the Respondents: Eric O. Gionet and Joshua A. Valler
Hearing and Appeal
Heard: May 23, 2018
On appeal from: The judgment of Justice Mary E. Vallee of the Superior Court of Justice, dated July 26, 2017, with reasons reported at 2017 ONSC 4520.
Decision
Pepall J.A.:
[1] Introduction
[1] The trial judge declared that the respondents had a right of way in, over, and upon a portion of the appellant's property. The appellant, who was self-represented at the trial of this Simplified Procedure action, asserts that the trial judge erred by failing to provide her with adequate assistance. In addition, she submits that the trial judge improperly interpreted the scope of the easement and that, as a result of these errors, the judgment should be set aside. For the reasons that follow, I would dismiss the appeal.
Background
[2] The appellant and the respondents are neighbours.
[3] The appellant has owned 7 Mill Street East in New Tecumseth, Ontario, since 1991, first as co-owner and then as sole owner since 1995. She carries on a restaurant/bar business at the premises.
[4] The respondents have owned 9 Mill Street East since 1997. Their property consists of a pizza shop in the front, an upper level apartment, and three apartment units in the back.
[5] A laneway runs between the two properties. It is described as Part 5 on the Reference Plan. It abuts the building at number 7 on the east and number 9 on the west. At the end of the laneway lies a catch basin, which is connected by a lateral pipe that runs north to Mill Street East and connects to a municipal storm sewer. The catch basin was built in approximately 1980.
[6] The appellant owns the laneway, but the respondents have a right of way "in, over and upon" the laneway. It is undisputed that the respondents have a right of way for ingress and egress to their property. What is in dispute is the extent of the easement. Does it extend to permit the respondents to maintain the existing drainage infrastructure, including a catch basin and a drainage pipe, to be located under the surface of the laneway? The trial judge found that it did.
[7] The parties had been living in a state of peaceful co-existence until 2006, when Harold Clifford, the appellant's partner, prevented Terence Berg, one of the respondents, from attempting to repair parts of the catch basin. Things got worse in 2010 when Clifford poured a concrete pad over the catch basin. Apparently, the appellant was worried that the catch basin was a safety hazard due to an ill-fitting lid and that it exposed her to potential liability for personal injury, hence the decision to cover it with concrete.
[8] Not surprisingly, the concrete pad rendered the catch basin inoperable. The respondents' property experienced flooding. Water pooled in the rear parking area and the laneway and entered the building that housed the three apartment units in the back.
[9] In 2011, the respondents commenced an action against the appellant under the Simplified Procedure seeking a declaration of entitlement to a right in, over, and upon Part 5 and damages for the cost of reinstating the catch basin, the cost of repair work for the basement apartment, and loss of rental income.
Pre-Trial Proceedings
[10] The action proceeded to trial but not before the parties had participated in five pre-trials. On April 14, 2015, Master Brott addressed various pre-trial issues including ordering the respondents to deliver will-say statements. She also directed that an engineer be retained to report on the optimal solution for the location of the catch basin to eliminate the pooling of water on the parties' property.
[11] The parties retained an engineer, William Heywood, who prepared a report, dated August 18, 2015.
[12] At a subsequent pre-trial on November 2, 2015, Master Brott ordered that the respondents undertake certain work on their property to minimize the ponding.
[13] Prior to the trial of the action that began on May 16, 2017, the appellant brought a motion for disclosure of certain documents and production of the respondents' affidavit of documents. In an endorsement, dated May 15, 2017, McCarthy J. dismissed the motion. He wrote that affidavits of documents had been served, and discoveries had taken place. He also wrote that undertakings were given and answered, and the action had been pre-tried five times.
[14] Master Brott had ordered that the mode of trial be by ordinary rather than the summary trial procedure.
Trial Judge's Reasons for Decision
[15] In considering whether the respondents' easement included drainage infrastructure, the trial judge considered the applicable legal principles and the history of the creation of the right of way.
[16] She noted that in 1980, the Village of Tottenham (which has since been amalgamated and now forms part of the Town of New Tecumseth) created an easement by grant, being a right of way "in, over and upon" Part 5 for itself and the benefit of the owners of Parts 1, 6, and 12. Thus, the respondents, being the owners of Part 6 (9 Mill Street East), had a right of way over Part 5.
[17] The mechanics associated with the creation of the right of way consisted of two deeds, dated July 15, 1980, in which 341949 Ontario Limited transferred ownership of Part 5 to the Village. 341949 Ontario was the owner of Part 5, and its signing officers were Anne Golden and Peg Feehely, the spouse of James Feehely, the lawyer who prepared the legal documents creating the right of way. On the same date, the Village transferred back to 341949 Ontario Limited Part 5 but reserved "a right of way in favour of the [Village] for municipal purposes, in, over and upon" Part 5 and subject to a right of way in favour of the owners from time to time of Parts 1, 6, and 12 "in, over and upon" Part 5. Mr. Feehely registered the documents on August 7, 1980.
[18] The trial judge relied on evidence of Mr. Feehely. Mr. Feehely has practised law in Tottenham/New Tecumseth since 1975, and his office is located at 5 Mill Street East, next door to the appellant. He testified that the right of way was granted to provide access to parking at the rear of numbers 5, 7, and 9 Mill Street East. Those properties required drainage because the level of the land at the rear was lower than that of the street. Mr. Feehely obtained municipal permission to have a catch basin and lateral pipe installed in the laneway that would connect to the municipal storm sewer on Mill Street East. He had been the lawyer for the Town of New Tecumseth since 1991, and he believed there to be no written record of the work done in 1980.
[19] By 1995, the co-owners of 7 Mill Street East, which included Part 5, were the appellant and the appellant's husband at the time, Mr. J. Marks. On January 25, 1995, he transferred the property to the appellant, subject to the right of way. Mr. Feehely was the appellant's lawyer on the transaction.
[20] Mr. Feehely testified that he saw the catch basin in the laneway working for its intended purpose because, in the early 1980s, he often used the laneway to access the back of his property for parking. Water drained to the catch basin from the rear of numbers 5, 7, 9 and possibly 11 Mill Street East, and it had been a collecting point for water since 1980. At the time of trial and with the advent of the concrete pad, the catch basin area had become a little pond, and he would no longer drive on it for fear of what might be under the water.
[21] The trial judge concluded that the laneway was used to access parking, and the catch basin and lateral pipe located within the laneway provided drainage from approximately 1980 until 2006, when Mr. Clifford first prevented the respondents from doing repairs.
[22] The trial judge also interpreted the language of the grant using a contextual approach. She determined that "in, over and upon" provided for the drainage infrastructure to be located under the surface of the laneway. Similarly, she also concluded that the language "upon" permitted the owner of 9 Mill Street East to use the laneway to make repairs to the west side of the building and to access the apartments.
[23] The trial judge then addressed whether the appellant had substantially interfered with the respondents' right to use the laneway. She traced the history and described how Mr. Clifford had first covered the catch basin lid with gravel in 2009 and then, in November 2010, poured a concrete slab on top of it. She found that he intended to make the catch basin inoperable for surface drainage from the respondents' property and that he substantially interfered with the respondents' right to use the laneway. She found that his interference began in 2006 when he ordered the respondent, Terence Berg, to stop doing work that was required to maintain the laneway and catch basin and that the interference lasted for 11 years.
[24] She therefore granted a declaration that work be performed to reinstate the catch basin so that the drainage function was restored and a declaration that the appellant not block the laneway. She also awarded $211,491.60 in damages to the respondents. As the action was commenced as a Simplified Procedure action, the damages were limited to $100,000.
Grounds of Appeal
[25] The appellant advances two main grounds of appeal, which I will address in turn.
(a) Procedural Fairness
[26] First, she submits that the trial judge erred in failing to provide adequate assistance to her as a self-represented litigant, and as such, she was denied a fair trial. The appellant's procedural fairness argument is two-fold.
(1) Mr. Feehely
(i) The Appellant's Position
[27] First, the appellant asserts that the trial judge erred in permitting Mr. Feehely to testify, thus subjecting the appellant to a "trial by ambush".
[28] The appellant submits that under r. 76.03(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, governing affidavits of documents in Simplified Procedure actions, a party may not call as a witness a person whose name has not been disclosed in the party's affidavit of documents, unless the court orders otherwise. Mr. Feehely was not disclosed in Schedule D of the respondents' affidavit of documents. That Schedule is to list the names of persons who might reasonably be expected to have knowledge of the matters in issue. He was listed in Schedule D of the appellant's initial affidavit of documents but not in the appellant's fresh as amended affidavit of documents delivered at trial. The appellant was alerted by counsel for the respondents some two weeks before trial that Mr. Feehely might be called as a witness at trial.
[29] The appellant raised the issue of Mr. Feehely's evidence and the respondents' failure to comply with rr. 76.03(2) and (3) at the commencement of trial and again on day two of the trial. The trial judge indicated that she would address the appellant's objection, but she never did. The appellant submits that she suffered prejudice as a result.
[30] Moreover, the appellant submits that Master Brott had ordered the respondents to deliver will-say statements by October 26, 2015 and that no will-say statement for Mr. Feehely, or indeed any other witness, was ever delivered. The trial judge relied heavily on the evidence of Mr. Feehely, particularly with respect to determining the scope of the right of way.
[31] The appellant also submits that much of Mr. Feehely's evidence was hearsay with no documentary evidence in support. Had she known that he would be testifying, she could have obtained information from the Town, which is now the subject matter of her fresh evidence application. It is her position that the evidence of Mr. Feehely ought to have been excluded.
(ii) The Respondents' Position
[32] The respondents acknowledge that, although they served an affidavit of documents, Mr. Feehely was not listed in any Schedule D. That said, they submit that the appellant was already aware prior to trial that Mr. Feehely was a person "who might reasonably be expected to have knowledge of matters in issue in the action". He was the author of the registered instruments that created the right of way; he was, at the time of her purchase of the property, the appellant's own lawyer; and he was listed in Schedule D of the appellant's original affidavit of documents.
[33] Moreover, on May 1, 2017, two weeks prior to the commencement of the trial, the respondents had advised the appellant of anticipated witnesses, which included Mr. Feehely. There was no surprise.
[34] As for the will-say statements, the respondents submit that although directed to do so, neither of the parties exchanged will-say statements. The matter was pre-tried three more times after Master Brott's direction, and the issue was never raised again. Master Brott does not refer to will-say statements in any subsequent pre-trial conference reports. The respondents note that the first time the appellant raised any complaint regarding the absence of will-say statements was in her appeal materials.
(iii) Analysis
[35] I am not persuaded that the appellant was denied a fair trial as a result of the admission of Mr. Feehely's evidence.
[36] The Simplified Procedure rules are designed to reduce the cost of litigating claims of modest amounts by reducing the amount of procedure available in such cases: Derek McKay & Michael McGowan, eds., Watson & McGowan's Ontario Civil Practice 2018 (Toronto: Thomson Reuters, 2018), at p. 1503. An affidavit of documents under the Simplified Procedure requires a list of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action. Rule 76.03(3) provides that at the trial of the Simplified Procedure action, a party may not call as a witness a person who has not been disclosed in the party's affidavit of documents or any supplementary affidavit of documents, unless the court orders otherwise. With a summary trial under the Simplified Procedure, the examinations-in-chief of witnesses are provided by affidavit, and cross-examinations and oral argument are time limited. Typically, a summary trial takes one day. A Simplified Procedure action may also proceed by ordinary trial, as it did in this case.
[37] For the Simplified Procedure Rules to operate effectively, it is imperative that parties comply with r. 76. Due to the failure to include Mr. Feehely as a witness in Schedule D of the respondents' affidavit of documents, there was non-compliance with the rule.
[38] Arguably, this might be fatal. However, as I will explain, given the circumstances surrounding the admission of Mr. Feehely's evidence and the lack of any real prejudice, there was no miscarriage of justice.
[39] Counsel for the respondents understood that the respondents' former counsel had advised the appellant of the witnesses in anticipation of the November 2016 trial sittings. At the commencement of the trial in May 2017, he so advised the trial judge and indicated that he would endeavour to produce evidence of this on day two of the trial. He confirmed that he himself had sent the appellant a list of witnesses two weeks before the May 2017 trial commencement date.
[40] Certainly, the appellant knew that Mr. Feehely was a person who had knowledge of the subject-matter of the action as she included his name in her original affidavit of documents.
[41] Prior to the trial resuming on day two, the respondents' counsel had a discussion with the appellant and Mr. Clifford. When the trial resumed, counsel advised the trial judge that the appellant was ready to proceed and to finish with Mr. Feehely's evidence. In these circumstances, counsel did not file any evidence of any advice by the respondents' prior counsel that was given to the appellant. In any event, no such correspondence forms part of the trial record. When the appellant again raised the issue of notice with the trial judge, the trial judge asked the appellant to remind her after the appellant completed her cross-examination of Mr. Feehely as a witness and "we can address it then." The appellant never raised the issue again during the remainder of the trial nor in her closing submissions. Neither did the trial judge.
[42] It would have been preferable had the trial judge reminded the appellant of the issue. That said, the appellant never said she needed more time to prepare and her willingness to proceed with the examination of Mr. Feehely on day two suggests that an adjournment was not required. More importantly, based on the transcript, it would appear that the appellant's desire had been to obtain discovery rights against the respondents' witnesses including Mr. Feehely, a right which was unavailable to her in any event.
[43] Furthermore, there was no real prejudice that arose from Mr. Feehely being a witness.
[44] As stated by this court in MacKenzie v. Matthews (1999), 46 O.R. (3d) 21 (C.A.), at para. 8, "[T]he grant of an easement includes a grant of ancillary rights which are reasonably necessary to the use and enjoyment of the easement which was contemplated by the grantor." In that case, the court found that both the installation and maintenance of a dock and parking were ancillary rights that were reasonably necessary to the use and enjoyment of a right of way.
[45] In this case, the grant of the easement was for self-evident ingress/egress along the laneway and to access parking spaces. A submerged laneway a right of way does not make. Maintaining an operational driveway easement that is unimpeded by significant pools of water is an ancillary right that is reasonably necessary to the use and enjoyment of the easement. As such, the drainage infrastructure, including the catch basin and lateral drainage pipe, would similarly constitute an ancillary right that was reasonably necessary for the use and enjoyment of the right of way.
[46] Moreover, the language of the grant in favour of the respondents – "in, over and upon" – is broad and allows for such a construction. See Kendrick v. Martin, 2012 ONCA 711, 23 R.P.R. (5th) 1. Similarly, the trial judge found that the language of the grant "upon" permitted the owner of 9 Mill Street East to use the laneway to make repairs to the west side of the building and to access the apartments.
[47] Mr. Feehely's evidence was not essential to reach any of these determinations. Accordingly, quite apart from the fact that the appellant knew Mr. Feehely was a person who might reasonably be expected to have knowledge of the matters in issue as she had originally included him in Schedule D of her Affidavit of Documents, the appellant suffered no prejudice from the failure to include Mr. Feehely's name in the respondents' Affidavit of Documents.
[48] The trial judge also cannot be faulted for failing to deal with the absence of any will-say statements because this was never mentioned at trial and she did not possess the Master's order that addressed this issue. There would have been no reason for the trial judge to raise this issue with the appellant, and furthermore, the appellant herself had also not delivered any will-say statements.
[49] I also reject the submission that the trial judge improperly relied on hearsay evidence from Mr. Feehely. Mr. Feehely testified on his personal observations and discussions in the drafting and registration of the easement; his involvement with the construction of the catch basin; and his personal experience with the laneway.
[50] In conclusion, I do not accept this element of the appellant's procedural fairness ground of appeal. The trial judge tried to assist the appellant in this Simplified Procedure action. Indeed, the trial took ten days to complete, and much time was consumed in providing guidance to the appellant.
(2) Master Brott's Orders
[51] The second issue relating to procedural fairness is the appellant's assertion that the trial judge erred in her treatment of Master Brott's pre-trial orders.
(i) The Appellant's Position
[52] The appellant asserts that the respondents failed to undertake the work ordered by Master Brott, and when the appellant sought to introduce Master Brott's orders into evidence, the trial judge refused the request and declined to consider them. The trial judge also declined to permit the appellant to cross-examine the respondent, Mr. Berg, on Master Brott's orders.
(ii) The Respondents' Position
[53] The respondents' position was that the Master's orders were made with a view to settlement and therefore inadmissible.
(iii) Analysis
[54] The trial judge accepted the respondents' position. The trial judge had concerns that the orders were made to help the parties reach a settlement and, as such, should not form part of the record. This was a reasonable concern. In her November 2, 2015 report, the Master ordered that the case be removed from the trial list, stating, "The parties are taking steps over the next 6 months to try to resolve their differences." She then proceeded to outline remedial and maintenance work the parties were to undertake on their properties and she appointed an engineer "to report on the optimal solution" for the location of the catch basin so as to eliminate the pooling of water. The trial judge determined that the Master did not have authority to appoint an expert to testify at trial, and so she assumed that he was appointed to assist the parties in settling the matter. At trial, the appellant acknowledged that Master Brott was attempting to get the parties to resolve the matter.
[55] Recognizing that the appellant was self-represented and that she had expected the engineer, Mr. Heywood, to testify at trial, the trial judge felt that there would be trial unfairness if Mr. Heywood was not permitted to testify. She therefore permitted Mr. Heywood to give evidence on what he considered to be the optimal solution for the catch basin. Mr. Heywood did deliver a report; he did testify at trial; and he did provide his engineering opinion regarding the question that Master Brott had requested that he answer, namely, the optimal location for the catch basin.
[56] In addition, as a reasonable compromise, the trial judge permitted the appellant to conduct extensive cross-examinations of the respondent (Terence Berg), the respondents' expert (Mr. Kuntze), and Mr. Heywood on the work that the respondents did or did not do to enhance the condition of the respondents' property but all without reference to the specifics of the Master's orders.
[57] In her submissions, the appellant stressed that she relied on Mr. Heywood's evidence. In his testimony, Mr. Heywood agreed that Mr. Kuntze's approach would provide positive drainage from the easement to drain the water. And when asked what the optimal solution was, he responded, "[T]he simplest solution is Mr. Kuntze's connection of a catch basin to the town's sewer". He was then asked:
Q. And taking all the circumstances, not just the simplest, but looking at the contours, the topography, the existing catch basin, taking those considerations into account, is Mr. Kuntze's proposal the optimal solution in all the circumstances of this case?
A. Yes.
[58] Accordingly, even if one accepted that the trial judge ought to have permitted evidence of Master Brott's orders, they would have had no impact, in that Mr. Heywood's and Mr. Kuntze's opinions were the same: the optimal solution was to keep the catch basin in the existing location with connection to the Town's sewer.
[59] In conclusion, I do not accept the appellant's submissions on trial fairness as they relate to Master Brott's orders.
(b) Interpretation of Easement
[60] The second issue raised by the appellant is that the trial judge erred in failing to recognize that the criteria for establishment of the right of way that includes a right to drainage have not been met. She submits that the dominant and servient owners were not separate.
[61] I see no error on the part of the trial judge. The evidentiary record established that, when the right of way was created, the dominant and servient owners differed. Furthermore, this defence was never pleaded.
Fresh Evidence
[62] I would also dismiss the fresh evidence application. The appellant proffers fresh evidence from the Village to show an absence of evidence surrounding the 1980 transactions with the Village of Tottenham. Mr. Feehely testified that there was no written record and that, with the amalgamation, many documents were lost. The tests in Palmer v. R., [1980] 1 S.C.R. 759; and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, are not met. The information would have no impact on the outcome of the appeal.
Disposition
[63] For these reasons, I would dismiss the appeal with costs of $35,000, inclusive of disbursements and applicable tax, to be paid by the appellant to the respondents as agreed.
Released:
"SEP" "S.E. Pepall J.A."
"JUN 28 2018" "I agree K. van Rensburg J.A."
"I agree David M. Paciocco J.A."