SUPPLEMENTARY REASONS FOR DECISION

BEAUDOIN J.

[1] The trial of this matter was heard by me on June 7, 8, 28 and 29, 2010 and I released my Reasons for Decision on November 30, 2010. A Decision on Costs was given on February 2, 2011 and there have been no appeals.

[2] By way of background, this matter had originally been commenced by way of an application that had been converted into an action. The parties are the respective owners, each of one half of Lot 14, Registered Plan 3, City of Ottawa. Both properties were subject to a right-of-way 10 feet in width running through the centre of lot 14. One half of that right-of-way extends 5 feet on each half of lot 14 from the front on Boteler Street to the rear of each lot. The right-of-way is described in a deed dated February 25, 1903 to give to the respective owners of the East and West halves of lot 14 a right-of-way for all purposes:

... to pass and repass either with or without horses, cattle or other animals, carts, wagons, carriages and other vehicles in along and over the said right of way. The expense of keeping and maintaining the said right of way to be borne by the said respective owners of the East and West halves of the said Lot in equal portions.

[3] The Applicant, Ms. Smith, had sought a declaration of adverse possession with respect to a portion of land contained within the right-of-way on the Respondents’ lands and a declaration that the Respondents’ right-of-way over her land had been abandoned. She was successful in part; she did not obtain a declaration of adverse possession with respect to her claims relating to a portion of the southerly limits of the right-of-way, west of her garage.

[4] The Respondents had sought a declaration that their right-of-way on the Applicant’s land continued to be in full force and effect and I determined that it had been abandoned. At para. 95 of my Decision, I noted that the Respondents had not sought a declaration that the Applicant’s entitlement to the right-of-way on their property had been abandoned but had they done so, that relief would have been granted. All parties agreed that the right-of-way relating the shared laneway remained in effect.

[5] Subsequent to my Decision, the parties were unable to agree to the terms of the Order to be taken out. They ultimately attended before me on December 12, 2011. The Respondents sought to include a term in the Order to reflect the abandonment of a part of the right-of-way previously enjoyed by the Applicant on the Respondents’ lands; namely that portion of the right-of-way that was west of the existing fence and west of the garage. The Applicant did not agree and accordingly this motion to vary the Decision has been brought by the Respondents.

The Law

[6] This motion to vary is brought pursuant to Rule 59.06(2)(d) of the Rules of Civil Procedure. It allows a variation of order to “obtain other relief then that originally awarded.” As noted by the Moving Parties, an exercise of a trial judge’s discretion to vary a judgment on the basis of Rule 59.02(d) does not require a finding of mistake, misrepresentation, fraud, unconscionability or incapacity. ( see Relco Inc. v. Carbone, [2000] O.J. No. 4540 (S.C.J.) at para. 16) In this way, it differs from what is required to vary an order pursuant to Rule 59.06(2)(a).

[7] The Respondents rely on case law that indicates that the decision to vary an Order is a discretionary one and argue that the discretion is broad. The Respondents acknowledge that they did not specifically seek the relief they now request in their Application. Nevertheless, they say the relief was open to be adjudicated as the Applicant’s use of the right-of-way as a whole was a live issue at trial. In particular, the Respondents cite specific findings in my Reasons for Decision, namely, at paras. 13, 16, 17 and 24. They say it is irrelevant whether the relief was specifically claimed or not, so long as there was sufficient evidence presented at trial to make the finding that the Applicant’s interest in the right-of-way to the south of the property had been abandoned. They argue that the lack of pleading would not have influenced the matter in which the case was presented by the Applicant nor would it have resulted in the loss of an available defence and that there is no prejudice to the Applicant.

[8] The Respondents add there is significant prejudice to them if the decision is not varied. The parties are left with no finality to their rights. This is demonstrated by letters exchanged between counsel wherein the Applicant continues to assert claims to the right-of-way that would prevent the Respondents from putting a fence along the southerly limit of their property.

[9] The Respondents conclude that the Court ought to exercise its discretion as it would be in the interest of justice to vary the Decision in the matter sought, as it will result in the finality of the dispute between the parties.

[10] The Applicant acknowledges that the Court retains the jurisdiction to vary an Order before it has been issued and entered. The Applicant also invokes the principle of finality and submits that the Court’s discretion should be exercised sparingly.

[11] The Applicant relies on two decisions, namely, 460635 Ontario Ltd. v. 1002953 Ontario Inc., 1999 CanLII 789 (ON CA), [1999] O.J. No. 4071 and Brito v. Canac Kitchens, 2012 ONCA 61 as authority for the proposition that a judgment cannot be varied with respect to matters that were not pleaded. The Applicant argues that had an abandonment by the Applicant of the right-of-way of the Respondents’ property been requested at trial, this would have been addressed at trial with evidence and legal submissions. She submits that the relief the Respondents are now seeking to have declared was abandoned. The Applicant claims access to the side and back of her garage is crucial.

Analysis

[12] In this case, neither party has provided me with transcripts of the proceedings. As I was the presiding judge, I have referred to my own notes of those proceedings as well as my Reasons for Decision. As I noted in my Decision the right-of-way in issue originally gave access to a carriage house that had been located across the southern limit of both halves of lot 14. That structure disappeared a long time ago.

[13] The evidence disclosed that over time the Smith family had completely blocked the southerly portion of the right-of-way on their half of lot 14 when they constructed a garage sometime in 1952. For a period of time, the Smith family had a fence that extended some two feet out into the Respondents’ right-of-way, from the southerly limit of the shared laneway to the rear of the lot. A section of that fence, west of the garage was taken down and some storage racks were then built along the side of the garage, roughly occupying the same space previously enclosed by the fence. This was done sometime in 1952. Those racks had been taken down sometime in the 1970’s. No other structure was placed on that section of the right-of-way for nearly 40 years.

[14] It was the Applicant’s use of the space formerly enclosed by the fence that was the major focus of the trial. After the racks were taken down sometime in the 1970’s, there was no evidence of any use by the Applicant of that strip of the right-of-way other than to walk along the side of her property in order to inspect the garage at the side and at the rear. The frequency of those inspections was not established. It is evident from the photos entered as exhibits at trial that the garage had been renovated and new siding material was applied at some point in time. Any actual repairs to the rear of the garage would have had to be completed by accessing the neighbours’ property to the south on Bolton Street since the southerly limit of the garage was located very close to the lot line.

[15] James Smith, the Applicant’s son, acknowledged that there was a large structure at the northern end of the Bolton Street property that completely blocked the entire southerly limit of lot 14. This structure and the Smith family’s construction of a garage over their half of the southerly limit of the right-of-way on lot 14 are clear evidence that the right-of-way as registered on title no longer existed for its original purpose. The Applicant relies on para. 83 of my Decision wherein I referred to the case law that indicates that non-use, in and of itself, is insufficient to establish an abandonment of a right-of-way. Here we have a 50-year history of the Applicant and her family’s use of the area in dispute. Clearly, they ignored the existence of a right-of-way when they built a garage over their half of it. The Applicant did not have a true appreciation of the right-of-way at trial; this case was triggered by the Applicant’s belief that the fence in issue was on the lot line between the two halves of lot 14.

[16] There is also evidence that a large tree had been allowed to grow on the right-of-way on the Respondents’ land. This tree grew very close to the Applicant’s garage and this would have blocked any meaningful access through the right-of-way for a period of time. The Applicant acknowledged that this tree only came down when the Respondents came into possession.

[17] The Applicant’s use of the portion of the land previously enclosed by the fence was fully canvassed at trial. She relied on the totality of that evidence to assert her claim to adverse possession and I found as a fact that this evidence was insufficient to infer an intention to exclude the true owners from title. I am not satisfied that there is any other evidence that could have been presented had the Respondents asserted a claim that her right-of-way on their property had been abandoned. There was no evidence of any use by the Applicant of the right-of-way west of the existing and former fence. I also concluded that the evidence allowed me to conclude that her right-of-way as it had been previously described had been abandoned.

[18] It was evident from this trial that the Respondents’ purchase of the western half of lot 14 provoked a bitter dispute with the Applicant. These parties require some finality with respect to the use of their respective properties. It is in the interest of justice to avoid multiple proceedings. If the Decision is not varied at this time, this will only lead to yet another application and more costs. There is no affidavit material from the Applicant to suggest that any other evidence would have been available with respect to the use of the right-of-way that was not presented at trial. In fact, any such claim would be met with a defence of issue estoppel.

[19] Although it was not specifically requested, the Respondents could have sought an amendment of their pleading to assert the relief that they now request. The same consideration would have applied, namely, the existence of any prejudice to the opposite party. I find that there is none and therefore the relief requested is granted in part. The case law cited by the Applicant that would prevent a variation of an Order is distinguishable. Those decisions turned in the evidence that was offered at trial.

[20] Here, there was evidence of a limited but continued use by the Applicant of the area previously enclosed by the fence for the purpose of inspection of her property. The Respondents acknowledge that in their Notice of Motion. The Applicant’s use can be preserved by granting her an easement over that narrow portion of the right-of-way formerly enclosed by the fence. The Respondents can maintain the fence they erected along the southerly limit of their property provided that the Applicant’s use is accommodated by installing a gate. If the gate is locked, the Applicant must be provided with a key.

[21] In these circumstances, the Respondents seek relief that they did not include in their original pleading and now seek an indulgence from the court. They were prepared to allow the Applicant a license to walk on their property to inspect her garage. Given the history between the parties, the Applicant was seeking a more secure interest that could be registered on title. This can be accomplished by granting her an easement over that strip of land previously enclosed by the fence. She did not need access to the whole of the right-of-way below the shared laneway as previously described. In view of the divided result, I am not inclined to allow either party any costs of this motion.

Mr. Justice Robert N. Beaudoin

Released: March 13, 2012

COURT FILE NO.: 09-47037

DATE: 2012/03/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MARY IOLA SMITH

Applicant

– and –

DONNA KEARNS, PETER GABY and 1168537 ONTARIO INC.

Respondents

SUPPLEMENTARY REASONS FOR DECISION

Beaudoin J.

Released: March 13, 2012

Smith v. Kearns, 2012 ONSC 1355

Case Summary

SUPPLEMENTARY REASONS FOR DECISION

The Law

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1