SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-418063
DATE: 20130627

RE: SANJAY LAKHANI, et al., Respondents/Plaintiffs.

AND:

VILLAGE OF WESTON PROPERTIES INC., Applicant/Defendant.

BEFORE: Mr. Justice John Macdonald

APPEARANCES: The Respondents/Plaintiffs did not appear.

Sean Zeitz, for the Applicant/Defendant

HEARD: June 27, 2013.

ENDORSEMENT

[1] Neither respondent (plaintiff) appears personally. Their father Mr. Ramnik Lakhani appears, assisted by a law clerk who is present in her personal capacity, Ms. K. Bains. Neither Mr. R. Lakhani nor Ms. Bains requests that she make submissions to the Court. Mr. R. Lakhani confirms that he is fluent in English, and that he has occasional hearing difficulties, and that he wants Ms. Bains to help him know what is being said, if needed, because of those difficulties.

[2] Mr. R. Lakhani requests the opportunity to address the Court on behalf of both respondents. He does not have anything in writing to confirm that either respondent has requested or authorized him to advise the Court of either respondent’s position herein. Nor is he authorized by 812374 Ontario Inc., the company which, on the applicant’s evidence, owns the lands and premises which the respondents claim to own, in part, in their Statement of Claim.

[3] I have granted leave to Ms. Bains to assist Mr. R. Lakhani as he may require, and have advised both that, if anything cannot be heard, either should let me know so that that may be rectified. I have granted leave to Mr. R. Lakhani to advise the Court of the purported positions of the respondents in respect of this motion.

[4] Mr. R. Lakhani has advised me that both respondents have told him to advise the Court that they want to abandon their claims to the land in issue and do not want to pay costs. The respondents have had legal counsel, but do not want to pay counsel herein. Mr. R. Lakhani also gave me an explanation of why the respondents have asserted a claim to the land in issue. This explanation got into the merits. I note that neither respondent has filed materials to establish the factuality of the assertions made, apparently, on their behalf. Lastly, I note that Mr. R. Lakhani did not assert that either respondent is requesting an adjournment of this hearing date.

[5] From a formal procedural perspective, I have nothing before me to confirm that the respondents or either of them wishes to discontinue the action. Rule 23’s provisions have not been followed. The letter asserting this position and signed by “Dharmesh Lakhani” is on the letterhead of 812374 Ontario Inc. In these circumstances, I will proceed on the basis that there is no effective discontinuance or abandonment of the claims asserted by either respondent. Consequently, I am dealing with a motion hearing date on which the applicant wishes to proceed and the respondents do not appear, and do not formally take any position in respect of the relief sought.

[6] I am satisfied that both respondents have proper notice of this hearing date, which was fixed by Low, J. in Motions Scheduling Court with their concurrence and a timetable put in place, also with their concurrence. I have proceeded to hear the motion on its merits.

[7] The applicant moves for summary judgment dismissing the action and granting judgment in its favour on the counterclaim, plus costs. The test on a summary judgment motion is whether the full appreciation of the evidence and issues which is required to make dispositive findings can be achieved by way of this summary judgment motion, or whether it can only be achieved by means of a trial. If the aforesaid full appreciation can be achieved in this motion, then I may weigh the evidence, evaluate credibility and draw reasonable inferences for the purpose of determining whether there is a genuine issue requiring a trial. If the Court is satisfied that there is no genuine issue requiring a trial, then summary judgement shall be granted. Otherwise the issues should proceed to trial: Combined Air Mechanical Services v. Flesch et al., 2011 ONCA 764.

[8] The respondents do not have to prove that summary judgment should not be granted. The applicant is obliged to satisfy the Court that it should be granted. But, the respondents also bear the responsibility of putting forward evidence, which they have not done.

[9] Having reviewed the evidence tendered by the applicant, I am satisfied that a full appreciation of the evidence and issues can take place on the basis of this evidence such that safe and reliable dispositive findings can and will be the result of this motion. I am therefore entitled to weigh the evidence and to evaluate its credibility for the purpose of determining whether there is a genuine issue requiring a trial. Having done so, I conclude that, in both the action and counterclaim, there is no genuine issue requiring a trial.

[10] There is no genuine issue requiring a trial about ownership of what is asserted to be the dominant tenement in this prescriptive easement action. The owner is 812374 Ontario Inc. Neither respondent is an owner. Neither respondent has occupied personally the lands over which the asserted easement is said to run. Further, the applicant’s evidence clearly demonstrates, and proves that others, not either respondent, owned and occupied the lands in issue, and that strong efforts were made to object to, and prevent the usage of the lands in issue which are claimed to have given rise to the asserted prescriptive easement. In short, there is no genuine issue requiring a trial about whether the respondents or either of them had continuous or uninterrupted use of the lands over which the asserted easement is said to run: on all the evidence herein, they did not. And they did not for the requisite period of time pursuant to the Real Property Limitations Act, R.S.O. 1990 c L-15. This property went into Land Titles on August 27, 2001, and this claim is subject to s. 51(1) of the Land Titles Act, R.S.O. 1990, c L-5. The respondents, therefore, must have had the requisite use of the lands in dispute for 20 years immediately preceding August 27, 2001. On the applicant’s evidence, which I accept, there is no genuine issue requiring a trial in this regard: they have not.

[11] Turning to the counterclaim, the applicant’s evidence is clear and persuasive. The respondents, their agents etc, have made strong and repeated efforts to take from the applicant what the applicant is entitled to, and is determined to keep: full right and title to the property in issue, free and clear of those who seek to use or occupy it as a way to access adjacent property, or as a place to park vehicles while attending at adjacent property. There is no genuine issue requiring a trial in this regard.

[12] In both the claim and counterclaim, it is not necessary to draw inferences adverse to the respondents based upon their failures to file evidence herein. The evidence of the applicant is sufficient given its strength and clarity. Drawing inferences adverse to the respondents would make the case for granting summary judgment in both the claim and counterclaim overwhelming.

[13] In the claim (i.e., the respondents’ claim against the applicant) I grant summary judgment dismissing the action.

[14] In the counterclaim, I grant summary judgment to the applicant, as follows. Pursuant to s. 97 of the Courts of Justice Act, R.S.O. 1990 c C. 43, I grant judgment to the applicant declaring that the applicant is the owner of, and is entitled to sole and exclusive use of the lands and premises in issue, each of which shall be described in the Judgment by municipal description and by formal Land Titles lot and parcel numbers. In the exercise of my discretion, given the permanent injunction mentioned subsequently, I do not grant declaratory relief in the form requested in para. 13(a) of the Counterclaim.

[15] The applicant also seeks a permanent injunction, but has not sought this relief against 812374 Ont. Inc. In my opinion, there is no genuine issue requiring a trial about whether the applicant requires injunctive relief to assure to it its legal right to use and occupation of lands the applicant owns, free and clear of the strong and repeated efforts of the respondents, including by means of their legal action herein, to take from the applicant what it is legally entitled to have. I grant judgment to the applicant permanently restraining Sanjay Lakhani, Dharmesh Lakhani and any agent, employee, assign or successor of either or both of them, and also permanently restraining any and all persons or corporations having knowledge of this Order, from occupying, using, being upon or attempting to occupy, use or to be upon the following lands, for any purpose or reason, including occupation or use of the said lands as a driveway, passageway or access route or as a place to stop or park vehicles. The lands aforesaid are generally described as 1798 to 1804 Weston Road, Toronto, Ontario and shall, in the formal judgment, each be described individually by means of their full municipal address and also formal Land Titles lot and parcel numbers.

[16] I grant to the applicant its costs of the motion and of the action on a substantial indemnity basis, given the complete lack of merit in the respondents’ action, and attempts by them to use force to defeat the applicant’s legal rights. I fix these costs in the amount of $12,023.57 inclusive of HST and order the respondents jointly and severally to pay these costs to the applicant, forthwith.

[17] I dispense with approval of the form of Judgment by the respondents. The Registrar shall settle, issue and enter this Judgment on the application of the applicant.

Mr. Justice John Macdonald

Release Date: June 27, 2013