ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NOS.: 07-CV-335562 and 08-CV-357888
DATE: 20130425

BETWEEN:

BEAUX PROPERTIES INTERNATIONAL INC.

Plaintiff

– and –

THE ESTATE OF THE LATE FRITZ HEINRICH LAMPE AND THE ESTATE OF THE LATE WOLFGANG BARTHOLD UMLAND

Defendants

Elliot Birnboim and Erica Young, for the Plaintiff
Ronald Birken and Jennifer Warford, for the Defendants

AND BETWEEN:

THE ESTATE OF THE LATE FRITZ HEINRICH LAMPE and
THE ESTATE OF THE LATE WOLFGANG BARTHOLD UMLAND

Plaintiff

– and –

BEAUX PROPERTIES INTERNATIONAL INC.

Defendants

Ronald Birken and Jennifer Warford, for the Plaintiffs
Elliot Birnboim and Erica Young, for the Defendant

HEARD: January 21, 22, 23, 24, 25, 28, 29, 30 and 31, 2013

sTINSON J.

[1] This case involves a dispute between owners of two adjacent apartment buildings. It centers on their respective rights and obligations in relation to an outdoor swimming pool and a garbage disposal facility. Both the pool and the garbage facility are physically located on land owned by the defendants. The plaintiff claims rights of use and access which are contested by the defendants. It is those disagreements that have brought the parties to court.

[2] These two actions, involving the same parties, were tried together. For ease of reference throughout these reasons, I shall refer to Beaux Properties (the plaintiff in Action 07-CV-335562 and the defendant in Action 08-CV-357888) as the "plaintiff" and to the two estates (the defendants in Action 07-CV-335562 and plaintiffs in Action 08-CV-357888) as the "defendants".

background

[3] The plaintiff is the owner of a seven storey, 140 unit, residential apartment building located on the east side of Yonge Street in the Town of Markham, having a municipal address of 7471 Yonge Street. I will refer to the plaintiff's building and grounds in these reasons as the "Yonge Site". The defendants jointly own an almost identical seven storey residential apartment building located immediately to the east of the Yonge Site, with a municipal address of 170 Dudley Avenue (the "Dudley Site"). In the vicinity of the Yonge Site, Yonge Street is a major north-south six-lane thoroughfare. Dudley Avenue is a two-lane residential street that runs north-south, east of and parallel to Yonge Street.

The physical site

[4] The Yonge Site and the Dudley Site were originally a single, more or less rectangular, undeveloped parcel, with a frontage on Yonge Street of approximately 100 meters and a depth of roughly 175 meters from Yonge Street east to Dudley Avenue. The topography of the parcel is such that the elevation of the Yonge Street frontage is approximately one storey higher than that of the Dudley Avenue frontage.

[5] The two apartment buildings were constructed more or less simultaneously in 1968, pursuant to a single design. Due to the downhill slope of the parcel from west to east, the ground floor, surrounding grounds and surface parking lot on the Dudley Site were constructed approximately one storey below the ground floor, surrounding grounds and surface parking lot of the apartment building on the Yonge Site. Each building has a one level underground parking garage. A one storey retaining wall runs along the west edge of the Dudley Site, separating it physically from the Yonge Site.

[6] When the apartment buildings were constructed, an outdoor swimming pool was built. The pool, pool deck and pool access staircases are all located on the Dudley Site, with the western edge of the pool deck abutting the retaining wall/property line. The elevation of the pool deck is approximately halfway below the ground level of the Yonge Site and halfway above the ground level of the Dudley Site. As built, the pool deck is accessible via a staircase that descends down from the Yonge Site and by a second staircase that ascends up from the Dudley Site. The pool complex includes changing rooms that are located on the Yonge Site side of the property line, in space that would otherwise form part of the Yonge Site underground parking garage. The changing rooms are on the same level as the ground floor of the Dudley Site and are only accessible via doors that open onto the Dudley Site, through the retaining wall that separates the two properties.

[7] The surface parking lot for the Dudley Site is located along its northern edge. In reality, that surface parking area is located on top of the ceiling of a portion of the underground garage for the Dudley Site. The Dudley surface parking lot is more or less on the same elevation as the floor of the Yonge Site underground garage. At the western end of the Dudley surface lot, there is a large garage door-sized opening in the retaining wall between the two properties, such that, as originally constructed, a garage door permitted level access from the Yonge Site underground garage onto the Dudley surface parking lot.

[8] At the northeast corner of the Dudley Site, adjacent to Dudley Avenue and the entrances for the surface parking and underground garage for the Dudley Site, is a large concrete pad. It is (but was not originally) surrounded by a perimeter fence and gate. This concrete pad is used for garbage disposal purposes (the "garbage pad"). As I will explain below, large steel garbage bins are placed in this area, from which they are picked up and mechanically emptied by garbage trucks under contract with the Town of Markham.

[9] When the two apartment buildings were constructed, the tenants of each building used garbage chutes to dispose of their garbage. In turn, the garbage arrived at the underground garage level of each building, where it was mechanically compacted into large steel waste bins. Prior to the events of 2005 discussed below, for disposal purposes the garbage bins from the Yonge Site were moved by tractor or manually to the east end of the Yonge Site underground garage, through the garage door opening located at that point, and thence onto and across the surface parking lot of the Dudley Site, to the garbage pad.

[10] As originally constructed, the Dudley surface parking lot was finished with asphalt paving, except for a concrete strip approximately 3 meters wide that traversed the surface parking lot from the garage door opening at the west to the garbage pad at the east. For disposal, the Yonge Site bins were moved west to east along the concrete pathway and placed on the garbage pad. After the garbage was removed by the Town of Markham, the Yonge garbage bins were taken back along the concrete pathway, back to the doorway into the Yonge Street underground garage and thence to the compactor room for the Yonge Site.

[11] In the case of the Dudley Site, the bins containing its garbage were towed up the ramp from its underground garage and placed on the garbage pad for pickup, too.

Past ownership history

[12] As I have mentioned, the Yonge Site and the Dudley Site were originally a single undeveloped parcel of land. That parcel was acquired in 1965 by Flavin Construction Limited, pursuant to a deed registered under The Registry Act, R.S.O. 1960, c. 348. In 1967, Flavin entered into a construction agreement with the (then) Township of Markham. That agreement was registered on title and it required Flavin to not begin construction until a site plan had been approved for the site. The parties have been unable to locate a copy of the site plan or any site plan agreement relating to the development of the site.

[13] In July 1968, Flavin transferred the east portion (the Dudley Site) to Rondeb Development Ltd. Flavin retained the west portion (the Yonge Site). Based upon documents from the Registry and Land Titles Offices (including affidavits for purposes of The Land Transfer Tax Act, R.S.O. 1960, c. 205), I conclude that the officers of Flavin and Rondeb were the same individuals and the two companies did not deal with one another at arm's length. Thus the overall development of the parcel was controlled by a single directing mind. Shortly after the conveyance of the Dudley Site to Rondeb, the two largely identical apartment buildings were constructed on the two sites. As constructed, the development included the swimming pool and garbage facilities described above. According to the expert evidence before me, the two sites were designed and constructed as a single complex, with shared swimming pool and garbage disposal facilities. This is reflected and confirmed by, among other things, the joint access to the pool deck, the location of the changing rooms, the garage door exit to, and the concrete path across, the Dudley Site surface parking lot for use in disposing garbage from the Yonge Site, and the absence of a separate garbage disposal pad on the Yonge Site. As well, electrical power and telephone service for the swimming pool complex was supplied from the Yonge Site.

[14] Following completion of the construction, in December 1968, both the Yonge Site and the Dudley Site were first registered under The Land Titles Act, R.S.O. 1960, c. 204. The Land Titles Act registrations for the two sites and the accompanying reference plans made no mention of the swimming pool, change rooms, or garbage facilities described above.

[15] Both properties continued to be owned by Flavin and Rondeb until January 7, 1974, when both were sold. On that date, the Yonge Site was purchased by Heinrich Fritz Lampe and his wife, Carola Lampe, residents of West Germany. While they were the owners of the Yonge Site, Mr. and Mrs. Lampe were passive investors, and the Yonge Site was managed by professional managers in Canada.

[16] On the same date, January 7, 1974, the Dudley Site was purchased by Fritz Heinrich Lampe (brother of Heinrich Fritz Lampe) and a business associate, Wolfgang Barthold Unland. They, too, were residents of West Germany, and passive investors for whom the Dudley Site was managed by the same professional managers in Canada. The purchase price paid for each building was identical.

[17] Although Heinrich Fritz Lampe and Carola Lampe sold their interest in the Yonge Site to the plaintiff in 1988, the Dudley Site is still owned by the estates of the two individuals who purchased it in 1974, Fritz Heinrich Lampe and Wolfgang Barthold Umland. Hence those two estates are the named defendants in Action 07-CV-335562.

[18] Commencing in 1976, both the Yonge Site and the Dudley Site were managed by Mantler Management Limited ("MML"). The principal of MML is Werner Mantler ("Mantler"). MML and Mantler continued to manage both sites through 1990. Following the 1988 purchase of the Yonge Site by the plaintiff, MML and Mantler continued to manage the Yonge Site for two more years. Since 1990 the plaintiff has assumed responsibility for managing the Yonge Site. MML continues to manage the Dudley Site.

[19] The involvement of MML and Mantler in the management of both sites, in the sale of the Yonge Site to the plaintiff, and in the ongoing management of the Dudley Site, and the relationship between MML, Mantler, and the defendants had considerable significance during the events in question and the trial. Following Mantler's retirement in 1999, his son-in-law Udo Josephi assumed responsibility for managing the Dudley Site and dealing with the German owners. Josephi was the principal witness for the defendants at the trial. Mantler did not testify; there was evidence from Josephi and from Mantler's daughter to suggest that Mantler has some slight cognitive difficulties and a failing memory, although he still drives and lives more or less independently.

conclusion and disposition

[103] For the foregoing reasons, in relation to the issues I was asked to determine in Phase 1 of this proceeding, I conclude that the plaintiff as owner of the Yonge Site has established a valid and subsisting easement in its favour concerning the use and enjoyment of both the swimming pool and the garbage facilities located on the Dudley Site. A declaration to that effect shall therefore issue. Should the parties require further direction in order to implement this decision, counsel may arrange a telephone conference with me to discuss a suitable process. The defendants' claim in action 08-CV-357888 is dismissed.

[104] In relation to damages, reserved for Phase 2, if the parties are unable to resolve those issues, a case conference should be convened to discuss further steps.

[105] Finally, in relation to costs, if the parties cannot agree, they may make written submissions as follows:

(a) The plaintiff shall serve its bill of costs on the defendants accompanied by written submissions within thirty days of the release of these reasons.

(b) The defendants shall serve their response on the plaintiff within fifteen days thereafter.

(c) The plaintiff shall serve its reply, if any, within ten days thereafter.

(d) In all cases, the written submissions shall be limited to three pages, plus bills of costs. I expressly invite counsel for the defendants to submit the bill of costs they would have tendered on the plaintiff if they had been successful.

(e) I direct that counsel for the plaintiff shall collect copies of all parties' submissions and arrange to have that package delivered to me in care of Judges' Administration, Room 170 at 361 University as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually: rather, counsel for the plaintiff will assemble a single package for delivery as described above.

___________________________ Stinson J.

Released: April 25, 2013

COURT FILE NOS.: 07-CV-335562 and 08-CV-357888
DATE: 20130425

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

BEAUX PROPERTIES INTERNATIONAL INC.

Plaintiff

– and –

THE ESTATE OF THE LATE FRITZ HEINRICH LAMPE AND THE ESTATE OF THE LATE WOLFGANG BARTHOLD UMLAND

Defendants

REASONS FOR JUDGMENT

Stinson J.

Released: April 25, 2013