ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-315-09
DATE: 20120110

BETWEEN:

Rodney Newton and Deborah Newton Plaintiffs – and – Cecile Roussel Defendant

Denis A. Michel, for the Plaintiffs
Marc A.J. Huneault, for the Defendant

HEARD: December 12, 2011

REASONS FOR JUDGMENT

Del Frate J.:

[ 1 ] The defendant is seeking summary judgment dismissing the plaintiffs’ claim in its entirety.

Background

[ 2 ] Prior to May of 2005, Gerard and Cecile Roussel were the owners of a large parcel of land situated on Secord Road in the Greater City of Sudbury.

[ 3 ] They decided to sever this property. They retained the services of S. J. Gossling to survey the property so that a reference plan could be registered on title. On May 3, 2005, Plan 53 R-17768 was received and deposited by the land registrar for the land titles division of Sudbury. This particular parcel was registered as pin number 73470 and was to contain 71 acres plus or minus. On this property were situated a house, a garage, and other out buildings.

[ 4 ] Shortly after the registration, the Roussels listed the property for sale. The listing attracted the attention of Robert and Deborah Newton. They proceeded to view the property in the presence of the Roussels and their respective agents.

[ 5 ] All parties agree that they walked about the property together. The evidence then differs as to where the boundary line was situated. According to Mr. Roussel, the boundary line was visible by the survey markers that had been placed by Mr. Gossling. These were obvious since they were bright and freshly painted.

[ 6 ] According to the Newtons, these markers were not obvious. They assert that Mrs. Roussel indicated that the boundary was situated much further to the east than where Mr. Roussel indicated the survey markers were placed. The Newtons also claim that they were assured that they would have access to the trail area which was situated some distance from the supposed markers.

[ 7 ] The Newtons liked what they were shown and eventually an agreement of purchase and sale for the property situated at 2239 Secord Road in the Greater City of Sudbury was entered into for the sum of $224,900.

[ 8 ] One of the conditions of the purchase was that the Roussels were to provide to the Newtons, prior to closing, a property survey which “is in their possession or establish with the buyer the actual survey stakes indicating the boundaries of the subject property”. Nothing was done to establish an actual survey other than the initial walkabout.

[ 9 ] Since the Roussels did not have a survey, further negotiations followed as to who was going to pay for the survey. When the Roussels refused to pay for the survey, the Newtons decided to conclude the transaction without the benefit of one.

[ 10 ] Prior to closing the transaction in July 2005, the Roussels erected a fence on what they thought was their property. Lately, it was determined that the fence had been erected on the Newtons’ property and thus steps had to be taken to remove it.

[ 11 ] The Newtons eventually made a claim to the title insurance company who requested a survey to determine the size of their purchased property. The Dorland survey disclosed that the property was comprised of 68.641 acres.

[ 12 ] Prior to the Dorland survey, the Newtons had been deprived access to the trails which they believed were situated on their property. Further disagreements ensued as to where the boundary line between the two properties was situated.

[ 13 ] The relationship between the parties deteriorated to the point that the police were called. Their relationship has not improved with time.

[ 14 ] The end result is that the Newtons instituted an action against the Roussels claiming the following:

a) A declaratory order that the Newtons are the rightful owners of a further 2.3 acres of land presently registered in the defendants name;

b) A vesting order pursuant to s. 100 of the Courts of Justice Act , R.S.O. 1990, c. C. 34 ;

c) Damages in the sum of $150,000 for trespass; and

d) Damages in the sum of $150,000 for the wrongful conversion of property.

[ 15 ] The Roussels contend that regardless of what may have been stated or understood by the respective parties, it is not disputed that the Roussels conveyed all of the land that was described in the Gossling survey. Since this parcel of land is registered under the Land Titles Act , R.S.O. 1990, c. L.5, the Newtons are now precluded from contesting the size of the parcel. Accordingly, the declaratory relief and the vesting order requested by the Newtons cannot be granted and thus, summary judgement ought to follow.

[ 16 ] The Newtons on the other hand, submit that the real issue is where the boundary line is situated and that because of the misrepresentations made by the Roussels, the Newtons were enticed into purchasing a property that did not turn out to be what they had bargained for.

Should summary judgment be granted on all or parts of the relief being requested?

[ 17 ] Rule 20.04(2) of the Ontario Rules of Civil Procedure , R.R.O. 1990, Reg 194, states the court shall grant summary judgement if:

a) The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;

b) The parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgement.

[ 18 ] In the recent decision of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 , the Court of Appeal addressed the powers of the motion judge under the new rule 20.04(2.1) of the Rules of Civil Procedure . The powers are:

a) Weighing the evidence;

b) Evaluating the credibility of a deponent; and

c) Drawing any reasonable inference from the evidence.

[ 19 ] The Court of Appeal stated, at para. 50, that during a motion for summary judgment, the motion judge:

In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: Can the full appreciation of the evidence and issues that is required to make this positive finding be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?

[ 20 ] The court then described the full appreciation test as follows, at para. 55:

Thus, in deciding whether to use the powers in rule 22.04(2.1), the motion judge must consider if this is the case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact finding process first hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record - as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.

[ 21 ] The court continued by noting the distinction between “achieving familiarity with” and having a “full appreciation of” the evidence. The court cautions at para. 53:

Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of the evidence that has been put before them.

[ 22 ] The Court of Appeal confirmed at para. 42 that cases where claims or defences are shown to be without merit can still be decided by summary judgment without exercising the new powers.

[ 23 ] As I will discuss, I find that the first two issues of this motion can be resolved without using the new powers under rule 20.04(2.1) . However, the issues of damages cannot be fairly and justly resolved by way of summary judgment motion, even if I exercised the powers of rule 20.04(2.1) .

Discussion

[ 24 ] In the present case, the relief being sought is a declaratory order that the Newtons are the rightful owners of a further 2.3 acres of land presently registered in the Roussels name, a vesting order pursuant to s. 100 of the Courts of Justice Act , damages for trespass, and damages for wrongful conversion of property.

Declaratory relief and vesting order

[ 25 ] The declaratory relief and the vesting order, if available, would have to be determined on the conflicting evidence outlined in the cross examinations of the deponents. The content of their testimony will be about what statements were made by the respective parties when they toured the property and discussed its boundaries. Although credibility is an issue, in my view, it is not relevant in this particular case as I find that the declaratory relief and a vesting order are not available.

[ 26 ] The subject property is registered under the Land Titles Act . Section 78(4) of the Land Titles Act states:

When registered, an instrument shall be deemed to be embodied in the register and to be effective according to its nature and intent and to create, transfer, charge or discharge, as the case requires, the land or estate or interest therein mentioned in the register.

[ 27 ] In Moisan v. Antonio Sanita Land Development Ltd. , 2010 ONSC 339, at para. 36 , Justice P.V. Kane stated:

The title of a registered owner in Ontario who is a bona fide purchaser for value, is undefeasible under the Land Titles Act , R.S.O. 1990, c. L.5. The court does not have jurisdiction to rectify the register if to do so would interfere with the registered interest of the bona fide purchaser for value in the interest as registered. The powers of the court to order rectification are limited by the rights acquired by the registration under the Land Titles Act .

[ 28 ] Justice Kane then goes on to quote Durrani v. Augier (2000), 2000 22410 (ON SC) , 50 O.R. (3d) 353 (S.C.J.), at para. 49 :

It is significant that both sections dealing with the power of the court to rectify the register start with the words “subject to any estates or rights acquired by registration under this Act”. These words relate back to the concept of indefeasibility of title and to the fundamental objectives of the land titles system discussed earlier. Their imports are as follows. Where a bona fide purchaser for values succeeds in becoming a registered owner, the fact of that 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 interests of the bona fide purchaser for value in the interest as registered.

[ 29 ] The Newtons are seeking rectification by way of a vesting order for an additional portion of land which would properly belong to them if their evidence is accepted by the trial judge.

[ 30 ] The property that was transferred in July of 2005 was the remainder of the larger parcel that the Roussels owned. It was what was described in Plan 53 R-17768 which was registered on May 3, 2005, as pin number 73470-0423 (LT). This property is municipally described as 2239 Secord Road in the Greater City of Sudbury.

[ 31 ] Although the dispute appears to be on where the boundary is situated and the amount of acreage, the Newtons, as bona fide purchasers for value, acquired whatever acreage remained as a result of the severance which is described as pin number 73470-0423 (LT).

[ 32 ] In my view, this legal issue can be determined on the information that is included in the affidavits filed for this motion. There is no need to exercise the powers under rule 20.04(2.1) as the claim has no merit.

[ 33 ] Whether the size of the acreage is accurate or not is irrelevant at this stage since with the closing of the transaction in July of 2005, any outstanding title objections that the Newtons have merged. Accordingly, pursuant to s. 78(4) of the Land Titles Act , the Newtons acquired the acreage that comprised that particular parcel.

[ 34 ] Although there were discussions about obtaining a survey, the Newtons did not avail themselves of that opportunity. A survey would have disclosed the exact acreage that they were acquiring and if this constituted a material factor in their decision to purchase the property then the appropriate requisitions could have been made in accordance with the provisions of the agreement of purchase and sale.

[ 35 ] The statement of claim seeks declaratory relief as well as a vesting order. In my view, s. 78(4) of the Land Titles Act precludes any such relief unless fraud is proven.

[ 36 ] The statement of claim does not allege any fraud but merely misrepresentations. Accordingly, the claim has no merit and summary judgment ought to dismiss the relief of a declaratory order and a vesting order.

Damages

[ 37 ] The statement of claim also claims damages for trespass and wrongful conversion. The Roussels have admitted that the fence was erected on the Newtons’ side of the property. There is also an allegation that topsoil was removed from a portion of the property. These two issues were not canvassed at this motion with great detail. Nor was any evidence on damages lead by either party. With this lack of evidence, I would be unable to have a full appreciation of the evidence even by exercising the powers of rule 20.04(2.1) . In my view, those are triable issues and accordingly, the summary judgment requested under those heads of damages is not granted.

Conclusion

[ 38 ] In summary, order to issue that the claims for the declaratory relief and the vesting order be dismissed and that the claims for the damages for trespass and the wrongful conversion of property proceed to trial.

[ 39 ] If it is necessary for the parties to address me on the issue of costs, counsel can make arrangements through the trial coordinator on or before 15 days from the release of this decision.

Del Frate J.

Released: January 10, 2012

COURT FILE NO.: C-315-09
DATE: 20120110

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Rodney Newton and Deborah Newton – and – Cecile Roussel REASONS FOR JUDGMENT Del Frate J.

Released: January 10, 2012