WELLAND COURT FILE NO.: 3407/11

DATE: 2012/05/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEE N:

ROBERT DONALD MCCORMACK and MARK DAVID MCCORMACK

Robert W. Dowhan, for the Applicants

Applicants

• and -

ANTHONY CIAMPANELLI, ROYTON INDUSTRIES LTD., STIPAN GROUP INC. and PENFINANCIAL CREDIT UNION LIMITED

Wolfgang J. Pazulla, for the Respondent, Royton Industries Ltd. and Stipan Group Inc.

Respondent

HEARD at Welland: February 21, 2012

The Honourable Madam Justice W.L. MacPherson

INTRODUCTION

[ 1 ] This application involves two parcels of land. The Applicants own the property designated as PIN 64106-0111 and municipally known as 85 Dorothy Street, Welland, Ontario ("dominant land"). The only Respondent that filed a response to the Application was Royton Industries Inc. ("Royton"), which owns the property directly adjacent and to the west of the dominant land and municipally known as 81 Dorothy Street, Welland, Ontario ("servient land"). The property owned by Royton is currently designated as PIN 64106-0142.

[ 2 ] In 1964, a right of way was created over the servient land to the benefit of the dominant land. Over the years, there have been various transfers of each of the lands. There have also been amendments to the descriptions on each of the properties both by transfers and by conversion to Land Titles in October 1998, such that the current description shows that the dominant land is subject to a right of way. There is currently no specific reference to the right of way in the description of the servient land.

[ 3 ] The Applicants seek a declaration that title to the land of the Respondent is subject to a right of way in favour of the Applicants and for an order directing the Land Registrar to rectify the Register by amending the legal description of the respective lands to include "together with a right of way" on the dominant land and "subject to a right of way" on the servient land.

FACTS

[ 4 ] It is not disputed that the right of way was created by Instrument No. 19808B which was registered on December 23, 1964. In that instrument, Mary Elizabeth Smith split Lot 8 by granting the westerly 35 feet to Thomas Ferguson reserving a right of way. The description read as follows:

The westerly 35 feet from front to rear of Lot 8 on the south side of Dorothy Street, according to Thomas Burgar plan for the said city, retaining a right of way to be used in common with the grantee over the easterly nine feet (9) from front to rear of said lands for the purpose of ingress and egress by foot and by vehicles.

[ 5 ] Mary Elizabeth Smith passed away on January 18, 1970, and her estate conveyed the property to William Dennis and Margaret Ann Dennis through Instrument No. 116899 registered on February 26, 1970. The description of the property conveyed was the entirety of Lot 8, except the portion previously granted to Thomas Ferguson. It included the express provision of the right of way as follows:

The grantor grants to the grantee a right of way for the purpose of ingress and egress by foot or by vehicle over the easterly nine feet of the westerly 35 feet from the front to the rear of said lot and the lands in the said Deed No. 19808B in common with others entitled to use the said easterly nine feet for such right of way.

[ 6 ] The dominant lands were converted to Land Titles on October 19, 1998. At that time, the description of the land was modified to read:

PT LT 8, PL 553 S/S DOROTHY ST AS IN R0116899, S/T R0116899; WELLAND

[ 7 ] This was significant as the dominant lands no longer referred to the right of way as being "together with a right of way" but was now shown as "subject to a right of way."

[ 8 ] The next transfer of the dominant land took place on June 25, 2002 by Instrument LT214485 wherein the lands were conveyed to Eugenio Meo. The description of the land was:

PT LT 8, SUBJECT TO R0116899, PIN 64106-0111

[ 9 ] The dominant land was transferred by Eugenio Meo to Robert James Parsons and Katharine Ann Parsons on June 29, 2005, by Instrument No. SN81536. The description of the property was, as set out above, subject to RO116899.

[ 10 ] The dominant land was sold under Power of Sale by Wells Fargo Financial Corporation to the applicants on February 15, 2011, pursuant to Instrument No. SN306039.

[ 11 ] The Land Registrar made an order which was registered on title on February 9, 2011, as Instrument No. SN305523 which stated as follow:

In the matter of the title of the selected PIN, the Land Registrar orders pursuant to Section 158(2) of the Land Titles Act, that the description of the property be amended by deleting "S/T RO116899". Inadvertently, at the time of the conversion of the said PIN, it was determined that RO116899 created an easement over PIN 64106-111 when it actually gave PIN 64106-011 the benefit of an easement over an adjoining property. Because the easement cannot be verified by title documents on the Servient Land "T/W RO116899" cannot be added to PIN 64106-0111. The description of PIN 64106-011 is amended to "PT LT 8, PL 553 S/S DOROTHY STREET AS IN RO116899, except the easement therein.

[ 12 ] With regard to the servient land, there have been a number of conveyances that have taken place since the 1964 transfer from Mary Elizabeth Smith to Thomas Ferguson.

[ 13 ] On June 23, 1972, Thomas Ferguson and Hamilton Ferguson Limited transferred the lands to Andrew Liptak and Sophie Liptak by Instrument No. 166458. The description in this Deed was Part of Lot 7 and Part of Lot 8 and included a reference to a right of way as follows:

Subject to a right of way for the purpose of ingress and egress by foot or by vehicle, said right of way being more particularly described as follows:

COMMENCING at a point in the northerly limit of said Lot 8, 35 feet easterly therein from the west corner of said Lot 8;

THENCE southerly and parallel to the westerly limit of said Lot 8, 99 feet more or less to a point in the southerly limit of said Lot 8;

THENCE Westerly in and along the said southerly limit of said Lot 8, 9 feet to a point;

THENCE Northerly and parallel to the westerly limit of said Lot 8, 99 feet more or less to a point in the northerly limit of Lot 8;

THENCE Easterly in and along the northerly limit of said Lot 8, 9 feet to the place of beginning.

[ 14 ] On June 8, 1977, a Reference Plan was deposited on title to Lots 7 and 8 on Dorothy Street, which included the servient land. Plan 59R-2058 referenced three separate parts as follows:

Part 1 - easterly portion of Lot 7

Part 2 - westerly portion of Lot 8

Part 3 - the nine foot right of way

[ 15 ] In addition to stating that Parts 1, 2 and 3 were "all in Instrument No. 166458" the Reference Plan referred to Part 3 as "Subject to a Right-of-Way."

[ 16 ] On December 24, 1986, Sophie Liptak conveyed the servient land to Frank DeGazio and Julie Rita DeGazio pursuant to Instrument No. 489517. The description in the Transfer was as follows:

Firstly, part of lot 8, south side of Dorothy Street, Thomas Burgar Plan, now Plan 553, City of Welland, Regional Municipality of Niagara, being Part 2 and 3 on Reference Plan 59R-2058;

Secondly, part of lot 8, north side of East Main Street, Thomas Burgar now Plan 553, City of Welland, Regional Municipality of Niagara, being Part 2 on Reference Plan 59R-5125.

[ 17 ] The second half of the description refers to the fact that Sophie Liptak had purchased the lot adjacent and to the rear of the servient land and those lands had merged with the servient land into a larger parcel. Reference Plan 59R-5125 was registered on December 23, 1986, the day prior to the transfer from Sophie Liptak to the DeGazios.

[ 18 ] There was no specific reference in the legal description that title to the servient land was subject to a right of way, although "Part 3 on Reference Plan 59R-2058" was included in the description.

[ 19 ] The servient land was next conveyed on April 29, 1987, being transferred from the DeGazios to 700888 Ontario Limited pursuant to Instrument No. 497621. The same two part description was used.

[ 20 ] The next conveyance of the servient land took place on April 29, 1988, wherein title was conveyed to William Wicharyk by Instrument No. 525045. The same two part description was used.

[ 21 ] On October 19, 1998, the property was converted to Land Titles. The description of the property was shown as follows:

PT LT 8, PL 553 S/S DOROTHY ST, PTS 2 & 3 59R2058,

PT LT 8, PL 553 N/S EAST MAIN ST, PT 2 59R5125; WELLAND

[ 22 ] The next transfer after conversion conveyed the property from William Wicharyk to Dinh Huynh Holding Ltd. by Instrument No. SN164523 which was registered on May 18, 2007. The above referenced two part description was used.

[ 23 ] Dinh Huynh Holding Ltd. transferred the property to Royton on July 2, 2008, as Instrument No. SN213164. The above referenced two part description of the servient land was used.

[ 24 ] On December 22, 2008, a new Reference Plan was deposited on title to the servient land. This Reference Plan was 59R-13888. As designated on the plan, the formerly merged property returned the servient land to its original dimensions (Part 1) and severed that portion of land that fronted on East Main Street that had been added by merger when Sophie Liptak acquired both parcels.

[ 25 ] The merged property was given a new PIN No. 64106-0143. The servient land was given a new PIN designated as 64106-0142. The legal description of the servient land was changed to:

PT LT 8, PL 553 S/S DOROTHY ST, PT 1 59R13888 CITY OF WELLAND

[ 26 ] In May 2009, Royton transferred the merged property to Anthony Ciampanelli and inadvertently included the servient land in the conveyance. This error was corrected by Instrument No. SN293619 registered on September 21, 2010, by way of a Transfer from Anthony Ciampanelli to Royton. The property conveyed was described as:

PT LT 8, PL 553 S/S DOROTHY ST, PTS 2 AND 3 59R2058, WELLAND, WHICH IS NOW DESCRIBED AS PART 1 ON PLAN 59R13888

THE ISSUES

[ 27 ] These facts give rise to the following issues:

(1) Has the right of way created in 1964 been extinguished?

(2) If not, should the Parcel Register be rectified to reflect the existence of the right of way?

1. Has the right of way created in 1964 been extinguished?

THE LAW

[ 28 ] Diana Ginn in Anger & Honsberger Law of Real Property, 3 rd ed. Looseleaf (Aurora, Ont.: Canada Law Book, 2011) states as follows:

At common law, the essential characteristics of an easement are:

a) There must be a dominant and a servient tenement;

b) An easement must accommodate the dominant tenement;

c) The dominant and servient owners must be different persons; and

d) A right over the land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

Easements can be created by statute, express grant or reservation; implied grant or reservation, prescription (where this is not precluded by statute) or proprietary estoppel.

A positive easement allows the dominant landowner to do something in relation to the servient land.... One of the most common positive easements is the right of way.... A private right of way is an easement which permits an owner of the dominant land to pass over some defined portion of the servient land in order to gain access to or egress from the dominant tenement for some purpose connected with the better enjoyment of the dominant tenement.

[ 29 ] An easement may be extinguished in one of three ways: by express release, implied release, or operation of law. An implied release may occur through abandonment or prescription.

[ 30 ] There was no suggestion that there had been an express release by the dominant land owners. Further there was no argument made that the right of way had been extinguished by operation of law. Rather, the Respondent's position focused on an implied release based on abandonment by the dominant land owners.

[ 31 ] The law of abandonment of an express right of way has been summarized by Aitken J. in 2108133 Ontario Inc. v. Kabcan Foods Ltd. , [2009] O.J. No. 951 (S.C.) , as follows:

8 The law regarding abandonment of an express right-of-way is well settled. The following principles apply:

• Abandonment is a question of fact. ( 455645 Ontario Ltd. v. Rousseau (1981), 19 R.P.R. 1 (Ont. H.C.) at para. 25 ).
• The onus of establishing the loss or extinction of an express right-of-way by abandonment or non-user rests upon the party asserting it. ( Liscombe v. Maughan (1929), 1928 450 (ON CA) , 62 O.L.R. 328 (S.C. App. Div.) at para. 28 ; 455645 Ontario Ltd. v. Rousseau , supra , at para. 31; Peters v. Palmer (2000), 34 R.P.R. (3d) 143 (Ont. S.C.J.) at para. 21 ).
• The only way in which a right of way can be extinguished by the act of the parties interested is by release, actual or presumed. ( Liscombe v. Maughan , supra , at para. 28 ).
• In the absence of an actual release, non-user is essential to abandonment. ( 455645 Ontario Ltd. v. Rousseau , supra , at para. 27; Peters v. Palmer , supra para. 22).
• Non-user and nothing more, however, is not sufficient to permit a conclusion of abandonment. ( 455645 Ontario Ltd. v. Rousseau , supra , at para. 27).
• When a right-of-way has its origin in an express grant, it is not lost by mere non-user; there must be some intention to abandon this property right. ( Closs v Ferguson (1923) 24 O.W.N. 199 (Div Ct) ; Peters v. Palmer , supra , at para. 21). The intention to abandon means that the person entitled to the right-of-way has, knowingly and with full appreciation of his rights, determined to abandon it. ( Liscombe v. Maughan , supra ; Peters v. Palmer, supra ).
• In some circumstances, evidence of non-user may lead to a finding of acquiescence on the part of the holder of title to the right of way. ( 455645 Ontario Ltd. v. Rousseau , supra , at para. 29). Non-user will not have the effect of establishing abandonment unless a release can be implied from such non-user and the surrounding circumstances. ( Liscombe v. Maughan , supra , at para. 28 ).
• All of the evidence bearing upon the issues of non-user, acquiescence and abandonment must be considered.
• Including the express right of way in a registered conveyance is evidence that abandonment was not intended by the owner of the dominant tenement or not presumed by the owner of the servient tenement. ( Liscombe v. Maughan , supra , at par. 32 ).

ANALYSIS

[ 32 ] In the case before me, the easement was created by an express reservation as the transfer in 1964 by Smith to Ferguson retained a right of way over the easterly 9 feet of Lot 8 for purpose of ingress and egress. The subsequent transfer of the dominant land by Smith's Executors to Dennis in Instrument No. 116899 confirmed by description what was being conveyed, specifically excluding the lands conveyed to Ferguson, but including a right of way over the easterly 9 feet of the Ferguson land.

[ 33 ] While the Respondent point to the 2002 transfer (from Dennis to Meo) with the description (Part Lot 8 Plan 553 S/S Dorothy Street as in RO116899; S/T RO116899, City of Welland) and all subsequent transfers as evidence of the abandonment of the right of way, to do so completely ignores the obvious intervening factor; the error which was made when the property was converted to Land Titles in October 1998. Up until that point the descriptions had clearly indicated that the property being conveyed included a right of way over the servient land, but instead of recording it as "T/W" or "together with" a right of way, it was described by the Land Registrar on conversion as "S/T" or "subject to" a right of way.

[ 34 ] The Respondent also rely upon the fact that when they acquired title to the servient land in 2008, there was no specific reference in the legal description that title was subject to a right of way. Rather the description was simply Parts 2 and 3 59R-2058, which is a Reference Plan deposited June 8, 1977, prior to the conversion to Land Titles. As conceded by the Applicants' counsel a Reference Plan does not create an interest in land. However, the Respondent takes that one step further and submit that as there is no reference to the right of way in the property description, their title is not affected by any such right of way.

[ 35 ] The Respondent also relies on various indicators of non-use by the dominant land owners. It was clear from photographs and from subsequent Reference Plans (Plan 59R5125 dated December 23, 1986, and Plan 59-13888 dated December 22, 2008) that a board fence had been constructed at some point in time, which arguably would have prevented the dominant land owners from easily utilizing the right of way. They also rely on the undisputed fact that since the Respondent acquired the property in July 2008 the Parsons, who acquired the dominant land in June 2005 and were the owners of the land prior to the Applicants acquiring same under Power of sale had made enquiries to the Respondent about purchasing the vacant strip of land to provide a wider side yard to the west of their property.

[ 36 ] The Respondent also pointed to the fact that he had taken various steps in 2008 in his dealings with the servient land that made it clear that the right of way had been abandoned. This included obtaining a severance and making an application to the Committee of Adjustments for a variance to permit the creation of a new undersized lot so as to be able to construct a dwelling on the property. The Application was served on abutting landowners, which would have included the dominant land owners at the time (the Parsons). As no objection was taken by them, this was further evidence that they had no intention or interest in preserving the right of way.

[ 37 ] There was no evidence provided by the Applicants as to the historical use of the right of way. They rely on the fact that there has never been a release of the right of way and that an express grant of a right of way cannot be extinguished simply by non-use. I agree.

[ 38 ] In order to abandon an express grant of a right of way, the person entitled to the benefit of the easement must have been aware of that entitlement and must have made an informed decision to abandon it. Given the Land Registrar's error in incorrectly describing the property as being subject to a right of way instead of having the benefit of the right of way, the dominant land owners did not knowingly, with full appreciation of its rights, intend to abandon the right of way.

[ 39 ] Further and while at first glance, the actions of the Parsons in inquiring about purchasing the Royton property might appear to support an abandonment of the right of way, it is important to note that a right of way is an easement only and must be distinguished from the fee simple in the land over which the right is exercised.

[ 40 ] After considering all of the evidence, I find that the Respondent has not met the onus of proving abandonment of the right of way created in Instrument No. 19808B registered December 23, 1964 and as such, the right of way has not been extinguished.

2. If not, should the Parcel Register be rectified to reflect the existence of the right of way?

THE LAW

[ 41 ] G. Thomas Johnson in Anger & Honsberger describes the Land Titles System in Ontario as follows:

It has been said that land titles legislation operates on three principles. These are the mirror, curtain and insurance principles. The mirror principle requires that the register of title reflect accurately and completely all facts material to the title. The curtain principle means that the register is the sole source of information and purchasers need not concern themselves with trusts and other equities that lie behind the curtain. Finally, the insurance principle requires that if the application of the legislation, through some error or flaw, causes loss to a person, that person be compensated from an insurance fund created under the legislation. Thus the system is a state system of registration of title with a limited guarantee of title by the state.

[ 42 ] The jurisdiction of the Court to rectify the Parcel Register is outlined in ss 159 and 160 of the Land Titles Act :

159 . Subject to any estates or rights acquired by registration under this Act, where a court of competent jurisdiction has decided that a person is entitled to an estate, right or interest in or to registered land or a charge and as a consequence of the decision the court is of opinion that a rectification of the register is required, the court may make an order directing the register to be rectified in such manner as is considered just. R.S.O. 1990, c. L.5, s. 159 .

160. Subject to any estates or rights acquired by registration under this Act, if a person is aggrieved by an entry made, or by the omission of an entry from the register, or if default is made or unnecessary delay takes place in making an entry in the register, the person aggrieved by the entry, omission, default or delay may apply to the court for an order that the register be rectified, and the court may either refuse the application with or without costs to be paid by the applicant or may, if satisfied of the justice of the case, make an order for the rectification of the register. R.S.O. 1990, c. L.5, s. 160 .

[ 43 ] As noted by Epstein J. in Durrani v Augier 2000 22410 (ON SC) , [2000] O.J. No. 2960 (ON S.C.), at para. 49 :

It is significant that both of these sections begin with the words "subject to any estates or rights acquired by registration under this Act". ...Their import is as follows. Where a bona fide purchaser for value succeeds in becoming a registered owner, the fact of registration is conclusive. Indefeasibility of title is a consequence or incident of that registration. Accordingly, the court does not have jurisdiction to rectify the register if to do so would interfere with the registered interest of a bona fide purchaser for value in the interest as registered.

[ 44 ] However, Epstein J. confirms that a necessary precondition for valid title is that the purchaser must be a bona fide purchaser for value without notice. As was made clear by Justice Spence in the Supreme Court of Canada decision of United Trust Co. v. Dominion Stores Ltd. 1976 Carswell 383 (SCC), at p. 98, the provisions of the Land Titles Act do not abrogate the equitable principles of actual notice. As noted by Epstein J. the burden of proving the absence of notice is on the person alleging that he or she is a purchaser for valuable consideration without notice: McDougal v. MacKay (1922) 1922 52 (SCC) , 64 S.C.R. 1; Toronto (City) v. Rudd 1952 69 (ON SC) , [1952] O.R. 84 (H.C.J.); Pitcher v. Shoebottom 1970 524 (ON SC) , [1971] 1 O.R. 106 (H.C.J.); Fort Garry Trust Co. v Sutherland (1980) 1980 4456 (NS SC) , 14 R.P.R. 270 (N.S.S.C.)

[ 45 ] Epstein J. then references Salhany J. in Canadian Imperial Bank of Commerce v Rockway Holdings Ltd . (1996), 1996 8007 (ON SC) , 29 O.R. (3d) 350 (Ont. Gen. Div.) who defined actual notice as follows:

[T]he term "actual notice" means actual notice (as opposed to constructive notice) of the nature of the prior agreement and its legal effect. There is no requirement that there be actual notice of the precise terms of the agreement, such as the amount of the consideration passing between the parties or the term of the agreement. The test, in my view, is whether the registered instrument holder is in receipt of such information as would cause a reasonable person to make inquiries as to the terms and legal implications of the prior instrument.

ANALYSIS

[ 46 ] Both the dominant and servient lands were converted to Land Titles on October 19, 1998. The Respondent submits that when he acquired title to the servient land in July 2008, there was no reference to the right of way in the property description of the Parcel Register for PIN 64106-0110 (LT) and as such he was a bona fide purchaser for value without notice.

[ 47 ] In theory, the Land Title system of registration means that one need not look behind the entries in the Parcel Register as confirmed by Epstein J. in Durrani v. Anger . However, even this is not always an absolute guarantee of title. This is evident from s. 44 of the Land Titles Act which confirms that Certificates of Title are subject to certain claims and require further searches to be conducted with respect to a right of way, watercourse, right of water and other easements, as well as any encroachment or possessory rights that an owner of an adjoining land has acquired before the lands were brought into the Land Titles system

[ 48 ] This is also clear from the reference in the Parcel Register for PIN 64106-0110 (LT) and most other Parcel Registers, that the Estate is Fee Simple LT Conversion Qualified and there is a specific note that reads "Adjoining properties should be investigated to ascertain descriptive inconsistencies, if any, with description represented for this property."

[ 49 ] In this case, the Respondent submits that a review of title to the adjoining property (the dominant land) showed that it was subject to a right of way rather than having the benefit of a right of way. As such, there was no notice to any purchaser of the servient land of any obligation imposed by a right of way, particularly when this was coupled with a review of the description of the servient land, which did not specifically refer to a right of way.

[ 50 ] It is self-evident that an error in the property description of the dominant land was made by the Land Registrar when the property was converted to Land Titles. While it is apparent that the words or abbreviation for "subject to a right of way" did not appear in the property description of the servient land, what it did refer to was "Parts 2 and 3 of 59R2058." It is inconceivable that the Land Titles Act would obviate the necessity of reviewing the Reference Plan referred to. A proper review would make it apparent that Parts 1, 2 and 3 are the lands described in Instrument No. 166458 (which was the June 1972 transfer from Ferguson to Liptaks) which confirms that the transfer is "subject to a right of way" as set out in a metes and bounds description. Further on the Reference Plan Part 3 is denoted as being "subject to a right of way."

[ 51 ] A person has actual notice if he or she is aware of the existence of a legal right. It is not necessary that the person have knowledge of the precise details of that right. In this case, there was sufficient information in the property description to require additional inquiries to be made in order to determine the legal implications of the right of way denoted in the Reference Plan.

[ 52 ] As conceded by the Applicant's counsel, unlike a Plan of Subdivision, a Reference Plan cannot create an interest in land where one does not exist. However, where an easement such as a right of way does exist through an express grant as was created in Instrument No. 19808B, which is confirmed in the subsequent instrument (Instrument No.166458), which instrument is then specifically referred to in the Reference Plan, and then referred to in the Property Description, I find it is sufficient to establish that the Respondent had actual notice of the right of way over the servient land.

[ 53 ] The Respondent is not an innocent party and notwithstanding the overall objectives of the Land Titles legislation, I am satisfied of the justice of the case and that equity necessitates that an order be made requiring the Land Registrar to rectify the Parcel Registers for the dominant and servient lands as requested by the Applicant.

ORDER

[ 54 ] For the above reasons, the Application is allowed and the following Order is made:

1. A declaration that the right of way for purpose of ingress and egress by foot and by vehicles as created by Instrument no. 19808B on November 18, 1964, is a valid and subsisting right of way which has not been extinguished.

2. An order directing the Land Registrar to amend the legal description of PIN 64106-0142 (LT) as registered and recorded in the Land Registry Office for Welland (No. 59) as follows:

i. Replace: PT LT 8, PL 553 S/S DOROTHY ST AS IN RO116899, EXCEPT THE EASEMENT THEREIN; WELLAND

ii. With: PT LT 8, PL 553 S/S DOROTHY ST AS IN RO116899; T/W RIGHT OF WAY OVER PT 3 59R2058; WELLAND.

3. An order directing the Land Registrar to amend the legal description of PIN 64106-0110 (LT) as registered and recorded in the Land Registry Office for Welland (No. 59) as follows:

i. Replace: PT LT 8, PL 553 S/S DOROTHY ST, PT 1 59R13888; WELLAND

ii. With: PT LT 8, PL 553 S/S DOROTHY ST, PT 1 59R13888; S/T RIGHT OF WAY OVER PT 3 59R2058; WELLAND.

COSTS

[ 55 ] The Applicants are entitled to their costs on the Application.

[ 56 ] If the parties are unable to agree on the issue of costs, I direct that the Applicants deliver written submissions to my office at St. Catharines within 30 days of the release of this Judgment with responding submissions to be delivered to my office at St. Catharines within 15 days thereafter. The written submissions are not to exceed three typewritten, double-spaced pages, excluding the Bill of Costs and Costs Outline.

MacPherson J.

Released: May 22, 2012

Duplicate Release Block

WELLAND COURT FILE NO.: 3407/11

DATE: 2012/05/22

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ROBERT DONALD MCCORMACK and MARK DAVID MCCORMACK Applicants - and - ANTHONY CIAMPANELLI, ROYTON INDUSTRIES LTD., STIPAN GROUP INC. and PENFINANCIAL CREDIT UNION LIMITED Respondent REASONS FOR JUDGMENT MacPherson J.

Released: May 22, 2012