COURT OF APPEAL FOR ONTARIO

CITATION: Walker v. Coldin, 2020 ONCA 603

DATE: 20200924

DOCKET: C67125

Doherty, Hoy and Jamal JJ.A.

BETWEEN

John Arthur Walker, Susan Jayne Walker, Karen Barbara Ann Seegars, Maritza Sanchez and Barry Street

Applicants (Respondents)

and

Brian Douglas Coldin, 1387881 Ontario Inc., The Bank of Nova Scotia, Parklane Investments Inc. and Barbara Coldin

Respondents (Appellants)

Brian Douglas Coldin, acting in person and for 1387881 Ontario Inc.

Andrew M. Mae, for the respondents

Heard: in writing

On appeal from the judgment of Justice Mary E. Vallee of the Superior Court of Justice, dated May 28, 2019, with reasons reported at 2019 ONSC 3255.

REASONS FOR DECISION

[1] This appeal arises out of a dispute concerning road access to five cottage waterfront properties, three of which are owned by the respondents. The cottages are landlocked. The respondents access their cottages by way of an easement creating rights of way over the property (“the Resort Property”) of 1387881 Ontario Inc. (“138”).

[2] The respondents brought an application in June 2018 seeking various forms of relief, including a declaration of a “prescriptive easement” over the Resort Property. Before the application judge, 138 and its principal, Brian Douglas Coldin, conceded that there were rights of way over the Resort Property in favour of the respondents’ properties, but argued that these rights are seasonally limited such that the respondents have no access during the winter.

[3] Mr. Coldin and 183 appeal the judgment of the application judge ordering that there is an easement which is not seasonally limited, directing that the land registrar amend the property records for the Resort Property and the respondents’ properties to reflect the easement, and enjoining the appellant from interfering with the respondents’ access.

[4] The appellants raise six grounds of appeal.

[5] First, in what appears to be the appellants’ primary ground of appeal, they claim ineffective assistance of counsel. Ineffective assistance of counsel as a ground for a new trial in a civil action is available only in the rarest of cases: see W. (D.) v. White, 2004 CanLII 22543 (ON CA), [2004] 189 O.A.C. 256, leave to appeal refused, [2004] S.C.C.A. No. 486. Examples of the types of cases in which the ground might be available include “cases involving some overriding public interest or cases engaging the interests of vulnerable persons like children or persons under mental disability or cases in which one party to the litigation is somehow complicit in the failure of counsel opposite to attain a reasonable standard of representation”: W. (D.), at para. 55. This case clearly does not fall within the exceptional types of circumstances where ineffective assistance of counsel can form a ground of appeal in a civil action.

[6] Second, the appellants argue that the application judge erred in concluding that the easement is not seasonally limited. The application judge concluded this based on her review of the terms of injunctions granted against the respondents in 2003 and 2009, prohibiting them from interfering with the use of the right of way without qualification as to season, and the reference to a right of way over the Resort Property “at all times” contained in the transfer of a property to one of the respondents from their predecessor in title.

[7] The deeds pursuant to which 138’s predecessor in title granted the rights of way to the respondents’ predecessors in title were not produced in the application materials. With the consent of the parties, this court ordered that the deeds could be produced on appeal. The application judge’s conclusion that the rights of way were not seasonally limited is verified by the deeds produced on appeal. The deeds are unambiguous. The rights of way are for both foot and vehicular traffic and contain no temporal or other restrictions or limitations. Because the deeds are unambiguous, it is unnecessary to consider extrinsic evidence, such as the letter written in 2003 by a prior owner of the Resort Property or the previous injunctive orders. We agree with the application judge that the easement is not seasonally limited.

[8] Third, the appellants argue that the application judge erred in concluding that she could not determine in the application whether the easement should be moved to the new road the appellants have built on the Resort Property.

[9] The application judge concluded that moving the easement, as suggested by the appellants in their factum, may be a common-sense solution, but they did not bring a motion seeking this relief. Other cottages also rely on the easement. All the cottagers would require notice because it would affect their rights substantially and they should have the opportunity to respond. Further, the new road had not yet been surveyed.

[10] The application judge properly determined that in the circumstances she could not give effect to the alternative location for the easement that the appellants proposed.

[11] Fourth, the appellants argue that the application judge incorrectly cited RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 as the authority governing the test to be applied in determining whether the injunction sought by the respondents should be granted. The application judge also found that two injunction orders had already been made, remained in force, and that Mr. Coldin was not complying with them. The appellants argue that neither injunction remains in force because the injunctions were interlocutory and the related actions have been abandoned.

[12] The appellants are correct that the three-part test in RJR-MacDonald is the test for an interlocutory injunction, not a permanent one. But neither the status of the previous injunctions nor the application judge’s citation error is of any moment. The respondents’ properties are landlocked. The application judge found that Mr. Coldin continues to impede the respondents’ use of the easement. Her findings are amply supported by the record. There is no question that damages would not provide an adequate alternative remedy in this case.

[13] Fifth, the appellants argue in effect that the injunction, which permits them to erect only one gate across the road, is overly restrictive and disproportionate. Mr. Coldin asserted that the three gates he has installed on the road are needed for the safety and security of the resort and its guests and the application judge should have accepted his opinion. The application judge was entitled to reject Mr. Coldin’s opinion. We are not persuaded that the injunction is overly restrictive or disproportionate because it only permits the installation of one gate.

[14] Finally, the appellants argue that the application judge erred by permitting the application to proceed in the absence of a factum on the application from the respondents. Rule 38.09(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that an application judge may dispense with the requirement that an applicant serve and file a factum. There is no indication that the appellants opposed the application judge proceeding in the absence of a factum from the respondents.

[15] The respondents concede that an error in their application found its way into the judgment, which refers to a “prescriptive” easement. The respondents’ rights are deeded; the easement is not a prescriptive easement. They ask that the court order that the judgment be modified, by deleting the work “prescriptive” in several paragraphs, to correct this and avoid confusion. The appellants made no objection to this request.

[16] Accordingly, the judgment shall be amended by deleting the word “prescriptive” in numbered paragraphs 1, 2 and 10.

[17] The appeal shall otherwise be dismissed. The respondents shall be entitled to their costs of the appeal, fixed in the amount of $10,000, including HST and disbursements.

“Doherty J.A.”

“Alexandra Hoy J.A.”

“M. Jamal J.A.”