SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 161/12 (Guelph)
DATE: 2012 05 08
RE: ROYAL ON GORDON RETIREMENT RESIDENCE INC.
Applicant
AND
ALBERT EDWARD PATERSON and MARY EDITH PATERSON
Respondents
BEFORE: Langdon J.
COUNSEL:
J. Melia, for the Applicant
C. Davis, for the Respondents
HEARD: May 1, 2012
ENDORSEMENT
[ 1 ] The parties own abutting lands that have access by means of a kind of service road to Gordon Street in the City of Guelph. The juxtaposition of the parcels can be seen in the application record at Tab F.
[ 2 ] The applicant operates retirement residences on its larger parcel of land, municipally known as 1671 - 91 Gordon Street. In the fall of 2010, it made application to the City of Guelph in connection with a planned expansion. Guelph and Royal entered into a site plan agreement to facilitate it. Paragraph 4 of this agreement reveals the City’s intention, at some future date, to alter the means by which both parties’ properties will gain access to Gordon Street. Paragraph 5 of the agreement obliges Royal to construct an access road that will enable the property owners, including the respondents, to have a different connection/right-of-way to Gordon Street as it will be after it is reconstructed.
[ 3 ] The right-of-way that Royal must dedicate is located entirely on Royal’s property. However, in order to create a valid easement, it, as the servient tenement, must be annexed to a dominant tenement by deed. The respondents’ premises are that dominant tenement. If the deed is registered, the respondents and their successors in title will enjoy the right to use the easement to gain access to Gordon Street as it will be after it has been reconstructed. The creation of the easement places no burden on respondents’ lands or title. It merely confers an additional right to pass over the right-of-way, a right that respondents are not obliged to exercise.
[ 4 ] If the registration of the easement is not perfected on time, the Committee of Adjustment’s consent will expire and, at a minimum, the whole application process will have to be repeated. But the failure to register the easement places Royal in breach of paragraph 5 of the site plan agreement with the City.
[ 5 ] The Planning Act of Ontario requires that the creation of an easement be approved by the Committee of Adjustment. Royal initiated an application for permission to create the easement. Although the respondents do not admit that they were notified of the application, the material filed satisfies me that the respondents received all appropriate notices of the hearing, the decision and of the relevant appeal periods. The respondents took no part whatsoever in the Committee of Adjustment process. The Committee approved the creation of the easement. The appeal period has expired.
[ 6 ] The Committee’s decision is time limited in effect. The effect of this deadline is that the deed creating the easement must be registered on title within 2 years of the Committee’s decision, or by November 30, 2012.
[ 7 ] In order for the deed to be registered, the Land Titles Act requires that any landowner whose land is affected by the deed must authorize registration by signing an acknowledgement and direction. Such a document was prepared by Royal’s solicitors and sent to the respondents. Indeed, because of a corporate name change, two such documents were sent to the respondents. The more recent was in November 2010. Respondents have not responded in any way to the request by Royal to execute the authorization and direction.
[ 8 ] Royal applied to the City to waive the requirement for registration of the easement but the City demurred. Royal is thus between a rock and a hard place. They must get the deed registered or be in breach of the site plan agreement and perhaps imperil their expansion.
[ 9 ] Royal has applied for an order under s. 100 of the Courts of Justice Act which provides:
A court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed.
[ 10 ] Respondents purchased their lands in 1958. Since then they have occupied them as their residence. They acknowledge that many nearby properties have been developed for commercial use. Royal is their neighbour on the south and their neighbouring property on the north, formerly a residence, has been bought for use as a medical clinic. The dwelling house now stands vacant. Respondents declined an offer from the medical clinic developers to buy their lands.
[ 11 ] Respondents are quite content with the status quo. They disapprove of the City’s plan eventually to alter their means of access to Gordon Street. They say the redeveloped street will significantly reduce their frontage. They simply want to be left alone to live in their residence, as they have for some 54 years.
[ 12 ] Respondents have some issues with Royal. They complain that Royal changed some elevations that blocked them from making a sewer connection with City sewers and interferes with storm water disposal. They claim that Royal did not adhere to its storm water disposal drawings and that excess storm water now accumulates on their lands and may affect their septic system. They claim that the easement/sub road that has been physically constructed by Royal is causing harm to trees on respondents’ premises. They claim that Royal has constructed a fence on respondents’ lands and that the fence is unfinished.
[ 13 ] Respondents have decided not to consent to registration of the easement. Unless the court vests the easement in the respondents, contrary to their wishes, it cannot be created.
[ 14 ] For Royal, Mr. Melia argues that the easement has already been created with the full approbation of the City and the Committee of Adjustment. The physical structure may have been created but the easement, as a legal entity, has not been created and cannot be created until registration of deeds that create both the dominant and servient tenements.
[ 15 ] The leading authority on the interpretation of s. 100 of the Courts of Justice Act is the decision of Trick v, Trick . [^1] In that case, under the authority of s. 100 of the Courts of Justice Act , the motions judge ordered the vesting of a debtor husband’s pension in his wife to secure payment of over $225,000.00 in support arrears and almost $118,000.00 in costs. The Court of Appeal for Ontario set aside the order. At paragraph 16 of the judgment, the court said:
16 …s. 100 of the CJA does not provide stand-alone jurisdiction to grant the relief claimed. Section 100 only provides a mechanism to vest title to a property in respect of which there is a separate, valid claim to ownership.
The starting point referenced by the motion judge is s. 100 of the CJA, which provides a court with jurisdiction to vest property in a person but only if the court also possesses the “authority to order [that the property] be disposed of, encumbered or conveyed.” Thus, s. 100 only provides a mechanism to give the applicant the ownership or possession of property to which he or she is otherwise entitled; it does not provide a free standing right to property simply because the court considers that result equitable.
Accordingly, the question is whether, at law or in equity, the motion judge had that necessary authority to dispose of, encumber or convey the appellant’s interest in his pension.
[ 16 ] What may be somewhat confusing or distracting in the facts of the present case is that Royal seeks, not to have some portion of respondents’ lands conveyed to itself, but rather to convey or to confer a supposed benefit upon the respondents or to add a supposed benefit to respondents’ title.
[ 17 ] If I postulate that if the site plan agreement had required Royal to secure a right-of-way over a portion of the respondents’ lands and that the Committee of Adjustment had somehow approved the conveyance, how would s. 100 of the Courts of Justice Act operate? Could I order the vesting in Royal of a right-of-way over a portion of the respondents’ lands, the dominant tenement being the lands of Royal? The plain answer is no. The reason is that Royal has no claim to ownership or possession of the respondents’ property. I cannot create a freestanding right.
[ 18 ] Royal is asking the court to vest an interest in land, or a bundle of rights in the respondents’ lands that would constitute the respondents’ lands as the dominant tenement. Royal has no claim to ownership or possession of respondents’ lands. Absent such a right of ownership, the court has no freestanding right to vest any interest in respondents’ lands – any more than it has a right to divest the respondents of any interest in their property.
[ 19 ] That is an end to the matter. This boils down to the simple example of a would-be donor attempting to force an unwilling donee to accept a gift. No such right exists in law. A donor may say that he wishes to give me a valuable horse, perhaps worth tens of thousands of dollars. I, as the prospective donee, may believe that a horse is nothing but a bundle of obligations that I do not wish to assume. The donor may have the intention to give; he may make delivery of the property; but if I am unwilling to accept the gift, it cannot be made in law.
[ 20 ] I am acutely aware of the great trouble and toil to which Royal has gone in order to pursue its expansion. It may well be that the balance of convenience might favour Royal, if that were a relevant consideration. However, here the only relevant consideration is jurisdiction. I have none.
[ 21 ] Application dismissed with costs.
“original signed by Langdon J.”
Langdon J.
Date: May 8, 2012
[^1]: 83 O.R. (3d) 35 . O.C.A. per Lang J.A.