Court of Appeal for Ontario

Citation: Grunwald v. Le Marchant, 2020 ONCA 442

Date: 2020-07-07

Docket: C67925 & C67926

Before: MacPherson, Juriansz and Benotto JJ.A.

C67925

Between

Fela Grunwald

Applicant (Respondent)

and

Edwin Le Marchant and Laura Fiset

Respondent (Appellants)

C67926

And Between

Edwin Le Marchant and Laura Fiset

Applicants (Appellants)

and

Fela Grunwald

Respondent (Respondent)

Counsel:

Michael Farace, for the appellants

Gabrielle Kramer and Julie Lesage, for the respondent

Heard: in writing

On appeal from the judgment of Justice Paul Perell of the Superior Court of Justice, dated December 27, 2019, with reasons reported at 2019 ONSC 7513.

Reasons for Decision

[1] The appellants and the respondents live on adjoining properties on a Toronto residential street. There is a mutual driveway between the properties.

[2] In 1975, the then owners of the two properties entered into an agreement setting out their intention to grant each other a right-of-way (“ROW”) over a small portion of both properties for the purpose of establishing a joint passageway. The 1975 Agreement was registered on title to both properties. A year later the owners entered into the ROW Agreement with virtually identical terms. The owners obtained the consent of the Committee of Adjustment to the creation of the easement as required by the Planning Act, R.S.O. 1970, c. 349.

[3] The ROW documents granted:

(a) the owners of the (now) Le Marchant property a right-of-way over the northernmost three feet of the (now) Grunwald property for a length of 98 feet commencing from Wychwood Avenue; and

(b) the owners of the (now) Grunwald property a right-of-way over the southernmost six feet of the (now) Le Marchant property for a length of 98 feet commencing from Wychwood Avenue.

[4] The ROW documents also state:

It is intended that the two above described strips of land shall form a joint passageway of nine feet (9 feet) in width by a depth of Ninety-eight feet (98 feet) westerly from the westerly limit of Wychwood Avenue for the use and benefit of the owners and occupiers from time to time of the house and lands immediately adjoining thereto on the North and South thereof. [Emphasis added.]

[5] The current owners disputed each other’s use of the ROW. They brought duelling applications to the Superior Court of Justice. The application judge essentially found in favour of the respondent on all issues.

[6] On the crucial overarching issue – whether the ROW Agreement bound successor owners of the two properties – the application judge found that it did. On this issue, the appellant contends that the application judge erred because there was no formal enurement clause in the ROW Agreement granting rights to successor owners of the two properties.

[7] We do not accept this submission. On this issue, the application judge said:

[I]t is not necessary to use any particular words to create an easement so long as the words used show an intention to create an easement that is recognized in law. Where, on the face of the deed there appears a manifest intention to create an easement, that intention will be given effect if the words of the deed can bear that construction.

In the immediate case, the Right-of-Way Agreement states that it is “for the use and benefit of the owners and occupants from time to time of the house and lands immediately adjoining thereto on the North and South thereof”, which refers to 182 Wychwood and 180 Wychwood. The agreement indicates that the parties intended to create a right-of-way that would run with the lands and be binding on all successors in title to the two properties.

[8] We agree with this analysis and conclusion.

[9] The other legal arguments raised by the appellant – rectification of one word in the ROW Agreement sought by the respondent and rectification of parcel registers pursuant to ss. 159 and 160 of the Land Titles Act, R.S.O. 1990, c. L. 5, are essentially derivative of the main issue. And on grounds of appeal relating to factual issues – vehicular access, storage of materials, and whether the garden was a substantial interference – we see no basis for interfering with the application judge’s findings and conclusions.

[10] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $20,000 inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“R.G. Juriansz J.A.”

“M.L. Benotto J.A.”