Court of Appeal for Ontario

Date: 20220526 Docket: C69940

Judges: Doherty, Huscroft and George JJ.A.

BETWEEN:

Florence Kozik, John Malcolm Paterson and Carol Campbell Plaintiffs (Appellants)

AND:

Robert David Partridge and Katherine Ann McClure Defendants (Respondents)

Counsel: Jonathan P.M. Collings, for the appellants Monick L. Grenier, for the respondent Katherine Ann McClure

Heard and released orally: May 24, 2022

On appeal from the order of Justice Graeme Mew of the Superior Court of Justice, dated September 22, 2021, and reported at 2021 ONSC 7304.

REASONS FOR DECISION

[1] Both parties brought motions pursuant to r. 59.06 to vary the judgment of Cosgrove J. made in 2000. The judgment arose out of a dispute over a registered right-of-way. The right-of-way ran over the respondents’ farm property and was in favour of the appellant cottagers.

[2] The judgment of Cosgrove J. provided that “all gates” along the right-of-way were to be removed with two exceptions. In the judgment, one of the exceptions was described as the “gate located at the road”.

[3] On the appellants’ r. 59.06 motion, the parties agreed, that in his reasons, Cosgrove J. correctly referred to a “gate located at the barn” as one of the gates that could remain. Unfortunately, in his judgment, he referred to “a gate located at the road”. The parties agree that the judgment, like the reasons, should have referred to “the gate located at the barn”. The parties agreed that this “slip” should be corrected pursuant to r. 59.06 and there is no appeal from that part of the order below.

[4] In addition to correcting the “slip” described above, the motion judge, on the respondents’ r. 59.06 motion, further amended the judgment of Cosgrove J. to provide that the “gate located at the lake” should also have been exempt from the judgment requiring the removal of the gates on the right-of-way. Neither the reasons, nor the judgment of Cosgrove J., make any specific reference to the “gate located at the lake”.

[5] The motion judge correctly identified the principles governing the scope of the amendment powers in r. 59.06. Those powers, include making amendments when, as a result of an omission, the order or judgment fails to reflect the full intention of the court that made the order or judgment. The motion judge was satisfied, based primarily on the reasons of Cosgrove J., which repeatedly referred to the removal of four gates on the right-of-way, that Cosgrove J. did not intend to order the removal of any gates other than the four gates referred to in the reasons. The appellant acknowledges that the gate by the lake was not one of those four gates.

[6] The interpretation of the order of Cosgrove J. arrived at by the motion judge was reasonably available to him. On that interpretation, the language of the judgment did not express the manifest intention of Cosgrove J., and r. 59.06 was properly invoked by the motion judge to correct the judgment. It was open to the motion judge to come to the conclusion he did. We will not interfere with that conclusion. The appeal is dismissed.

[7] Costs of the appeal to the respondents on a partial indemnity basis, fixed at $5,000, inclusive of relevant taxes and disbursements.

“Doherty J.A.”

“Grant Huscroft J.A.”

“J. George J.A.”