ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 25009/09
DATE: 2012-10-05
BETWEEN:
Nordlund Family Retreat Inc. Plaintiff (Defendant by Counterclaim)/Applicant – and – Ben Plominski Defendant (Plaintiff by Counterclaim)/Respondent
Frederick J. Skeggs, for the Plaintiff (Defendant by Counterclaim)/Applicant
Paul A. Johnson, for the Defendant (Plaintiff by Counterclaim)/Respondent
HEARD: September 20, 2012
E.J. koke J.
REASONS FOR JUDGMENT
[ 1 ] This is a motion for Summary judgment by the plaintiff.
[ 2 ] In its statement of claim the plaintiff requests a declaration that an agreement it entered into for an easement over the defendant’s lands is binding on the defendant and for a vesting order of the easement. The defendant counterclaims for an order requiring the plaintiff to sever a parcel of land from its property and transfer it to the defendant, or in the alternative to pay him damages equal to the value of such parcel of land, estimated to be in the range of $150,000.00 together with exemplary and general damages.
[ 3 ] In its motion, the plaintiff requests an order granting it the relief claimed in its statement of claim, and an order dismissing the defendant’s counterclaim.
Background
[ 4 ] The properties which are the subject matter of these claims are located on the south side of Basswood Lake. Basswood Lake is located about 100 kilometres east of Sault Ste. Marie, Ontario. The lake is popular for the fishing and boating opportunities it provides. Much of the land surrounding the lake is owned by the Ministry of Natural Resources (the “Crown” or the “Province”). There are a number of cottages located on the lake but the provincial and municipal governments have now limited the number of lots available for development in order to ensure that the wilderness quality of the lake and the surrounding area is preserved.
[ 5 ] Some of the properties located on the lake are accessed by driveways and bush roads which are connected to a municipal or provincial road. Many of the properties do not border on municipal or provincial roadways however, and the owners of these properties must arrange to access their properties by way of easements through provincial lands or through lands which are privately owned. Those property owners who are not able to arrange for easements or who do not wish to incur the cost of constructing a road to their properties must access their properties by boat. Naturally, a property which can be accessed by way of a road is considerably more valuable and desirable than a property which is boat access only.
[ 6 ] This dispute arises out of an alleged agreement by the parties and their predecessors, whereby the plaintiff claims that the defendant is obligated to provide an easement over its lands to the lands owned by the plaintiff.
The Properties
[ 7 ] The plaintiff attached a map to its statement of claim which identifies and shows the locations of the various properties which pertain to these claims. This map is of considerable assistance in understanding the nature of this dispute and the various ownership interests involved and I have attached a modified copy of this map to this judgment.
[ 8 ] With reference to the map, the various properties and ownership interests can be described as follows:
Lot 9
Lot 9 is located on the southern shore of Basswood Lake. The southern part of this lot is owned by the Crown and the northern strip of land which borders Basswood Lake is owned by the plaintiff, the Nordlund Family Retreat Inc. (“Nordlund”). The Nordlund property comprises 2650 feet of lake frontage on Lot 9 and an additional 2650 feet of frontage on the adjacent Lot 8. The Nordlund property therefore stretches for a distance of approximately one mile along the south shore of Basswood Lake.
The Nordlund property was purchased by the late Donald Nordlund and members of his family in September, 2004. In August, 2007, ownership was transferred to Nordlund Family Retreat Inc. (“Nordlund”). Donald Nordlund, who lived in Illinois, U.S.A., passed away on October 13, 2009. The shares in the corporation continue to be owned by members of his family. Donald Nordlund’s daughter, Sarah Nordlund, is the president of the corporation.
Lots 9 and 8 are landlocked. An arrangement is in place with the Crown whereby Nordlund is entitled to construct an access road through Crown land from the eastern border of Lot 10 to the south shore of Basswood Lake.
Lot 10
Lot 10 is also located on the southern shore of Basswood Lake, and it borders Lot 9 to the west. The southern part of this lot was originally owned by Brian Hooey. There is a strip of land located along the north side of the lot which borders Basswood Lake. This strip of lakefront land is owned by the Crown, with the exception of a narrow piece of land which juts through this strip of land and connects the southern part of the lot to the lake. This narrow piece of land is identified as Part J on the map. Bryan Hooey sold his part of lot 10, including Part J, to the defendant, Ben Plominski (“Plominski”) and two of his friends, Zenon Zator and Krystyna Dominska (the co-owners”) in November, 2005, for the sum of $140,000. This transaction took place a little more than a year after Donald Nordlund purchased the adjacent Lot 9. Plominski also lives in Illinois.
Plominski has access to Part J and the lake by way of a driveway through Lot 10 identified on the map as “Existing Private Road”.
Lot 11
Lot 11 is owned by Brian Rawn. Historically, Mr. Rawn permitted the owners of lot 10 to drive from Basswood Lake Road over Lot 11 on what is termed the “Existing Road”. However, after Plominski purchased Lot 10, Plominski discovered that a small part of this existing road had been built on land which is described as Part 2 on the map and which is owned Mr. Kehoe. Mr. Kehoe denied Plominski and his co-owners access over his property. In February, 2007, the defendant and his co-owners therefore purchased a narrow strip of land on Lot 11 from Mr. Rawn which is described on the map as the “New Road”. With the purchase of this strip of land the owners of Lot 10 now had direct access to their property. They no longer required an easement or right of way from either Rawn or Kehoe.
The Discussions and Dealings between the Parties regarding Easement Rights to Lot 9
The Nordlund-Hooey Agreement
[ 9 ] On September 7, 2004, Brian Hooey, who at the time owned Lot 10, entered into an agreement entitled Agreement for Easement across Lot 10 Concession 4. The agreement is reproduced as follows:
Brian Hooey, sole owner of Lot 10, Concession 4, hereby agrees to grant an easement to the owners of Lots 8 and 9 present and future, across said Lot 10 on the following conditions:
Brian Hooey shall not be responsible or liable for the survey and the construction of the road across Lot 10, said road to begin at the Southwest stake and continue to the northeast stake on Lot 10. It is agreed that the expense of the survey and construction shall be borne by the owners of lots 8 and 9. It is further agreed that the exact route of the road across Lot 10 shall be determined by the survey.
The easement shall be sufficiently wide to accommodate the bringing in of power lines, the cost of which when and if brought in shall be borne by the owners of lots 8 and 9.
After the survey is completed, the owners of Lot 8 and 9 will have an official agreement for easement drafted for signature.
Upon completion of said official agreement, and after Brian Hooey has signed said agreement, the owners of Lots 8 and 9 will pay Brian Hooey the sum of $15,000.00 (Canadian).
The owners of Lots 8 and 9 will then take bids for the construction of the road and inasmuch as it is at their expense, it will be their exclusive right to select the contractor based upon their sole judgment of his capabilities and availabilities.
_______________________ ____________________
Brian Hooey Sept. 4/ 04 Witness
Donald Nordlund Sept. 7/04 Witness
[ 10 ] This agreement was signed by the parties and witnessed.
[ 11 ] The Hooey-Nordlund easement was to be situated on Lot 10 at the location designated on the map as “Proposed Private Easement”.
[ 12 ] As part of the purchase transaction whereby Plominski and the co-owners purchased Mr. Hooey’s interest in Lot 10, the three purchasers signed an Acknowledgement and an Agreement which referenced the Nordlund-Hooey Agreement.
[ 13 ] The Acknowledgement, which was signed by all three purchasers contained the following paragraph:
- Title is subject to an obligation under the agreement with Donald Nordlund dated September, 2004 and which we agree to assume.
[ 14 ] The Agreement which was dated November 1, 2005 is reproduced as follows:
AGREEMENT DATED THIS 1 ST DAY OF NOVEMBER, 2005
BETWEN; Zenon M. Zator
Krystyna Dominska
Ben J. Plominski
HEREINAFTER CALLED THE PURCHASERS
-and-
Donald Nordlund
WHEREAS DONALD NORDLUND entered into an Agreement wit Brian Hooey September 2004,
AND WHEREAS BRIAN HOOEY has now entered into an agreement with Zenon Mike Zator and Krystyna Dominska to sell the lands to which the Agreement refers.
AND FURTHER WITNESSETH that the title to the said lands shall be taken in the names of ZENON M. ZATOR, KRYSTYNA DOMINSKA and BEN J. PLOMINSKI.
NOW WITNESSETH that in consideration of the mutual covenants hereinafter expressed, the parties agree as follows;
ZENON M. ZATOR, KRYSTYNA DOMINSKA AND BEN J. PLOMINSKI agree to be bound by the terms of the agreement dated September, 2004 between Brian Hooey and Donald Nordlund, a copy of which is attached to this Agreement.
This agreement is binding upon the heirs, executors, administrators and assigns of the parties hereto.
Dated the of November, 2005
[ 15 ] The Agreement was signed by Plominski and the co-owners as purchasers of Lot 10 and by Donald Nordlund as a party to the original Hooey-Nordlund agreement.
(continued verbatim through paragraphs [16]–[105] exactly as in the source)
E.J. Koke J.
Released: October 5, 2012
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Nordlund Family Retreat Inc. Plaintiff (Defendant by Counterclaim)/Applicant – and – Ben Plominski Defendant (Plaintiff by Counterclaim)/Respondent REASONS FOR JUDGMENT E.J. Koke J.
Released: October 5, 2012