ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-0418-SR
DATE: 2013-09-04

B E T W E E N:

Richard Hugh Joseph, Mary Theresa Joseph, Peter Herbert Crooks, Mary Louise Crooks, Robert Wayne Thomas Workman, Elizabeth Margaret Workman, Calvin Laurence Kramble, Lillian Margaret Kramble and Katherine Jane Sylvester,

Robert Edwards and Nicole Richmond, for the Plaintiffs (Respondents on the Motion),

Plaintiffs (Respondents on Motion)

• and -

Michael Peter Poling and Simone Marian Poling,

Rosalie A. Evans, for the Defendants (Moving Parties)

Defendants (Moving Parties)

HEARD: March 5, 6 and 8, 2013,
at Thunder Bay, Ontario

J. dep. Wright, J.

Reasons For Judgment

[1] This action arises from a dispute over the plaintiffs’ claim to a right to cross the defendants’ land.

[2] This motion is brought by the defendants for summary judgment expunging a Notice registered against their land under s. 71 of the Land Titles Act and otherwise dismissing the action. It was argued over three days in March. Immediately after the conclusion of the argument those parties who were in court accepted Madam Justice Pierce’s offer to meet with her and discuss a possible resolution. Unfortunately, some plaintiff’s were out of the country and could not participate in the discussion that took place. Counsel asked me to withhold judgment until further notice to allow discussions to continue. On May 24 I was notified that I should continue with the disposition.

[3] The plaintiffs entered into an oral agreement with each other and with the defendants’ predecessor in title with several intentions:

They wanted the right to cross each other's property,

They did NOT want this right to be in the form of an easement or other interest in the land involved. They wanted to avoid the provisions of the Planning Act. (Resp. Motion Record Vol I pg.24(letter); Vol I pg 27 (Minutes); Vol I pg 45 (Instructions to Solicitor); Motion Record pg. 119 (letter); Motion Record pg. 70(letter))

[4] Upon their written instructions (Resp. Motion Record Vol I, pg. 45) the plaintiffs’ solicitor registered a Notice of unregistered right, interest or equity on the title to all of the properties involved. (Motion Record pg. 116). The plaintiff’s had legal advice and were warned of the dubious enforceability of their agreement against subsequent owners. (Motion Record pg. 70(letter)). As Mr. Marostica deposed “I understood that the registered Notice document was nebulous. The right of way was undefined and unenforceable, as I understood it”. (Motion Record Tab 3 pg.115, ¶9) Mr. Poling deposed that he believed that when no agreement could be produced “unregistered” meant that the access was something acknowledged by his neighbours but was not legally binding. (Motion Record pg.7, ¶ 9) For the reasons that follow I conclude that the opinions of Mr. Marostica and Mr. Poling were correct.

[5] The plaintiffs were totally successful in the latter intention but only partially successful with respect to the former. The right to cross each other’s land was not in the form of an easement or other interest in land. However the defendants now argue that if there was an agreement the permission to cross each other’s land was personal to the parties to the agreement and did not bind subsequent purchasers such as themselves.

[6] Having taken pains, with the assistance of their lawyer, to effect these two intentions the plaintiffs now ask the court:

(1) to declare that the plaintiffs in fact created an easement or other interest in land in spite of their intention not to do so ; or, alternately, if they did not create an easement,

(2) then they ask the court to award them such an easement or other interest in land from the defendants out of fairness.

[7] In addition the plaintiffs seek damages against the defendants for conspiring with other neighbours in blocking the roadway.

MOTION UNDER RULE 20

[8] The defendants move for summary judgment asking that the action be dismissed on the grounds that there is no genuine issue requiring a trial. The plaintiffs argue that this matter cannot be disposed of at this stage, that the full appreciation of the evidence and issues required to make a dispositive finding on the equities of the situation and on the elements of conspiracy, can only be gained through a trial.

``[53] We wish to emphasize the very important distinction between "full appreciation", in the sense we intend here, and achieving familiarity with the total body of evidence in the motion record. 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.

[54] The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words and without the assistance of counsel as the judge examines the record in chambers. (Combined Air Mechanical Services Inc v. Flesch 108 O.R. (3d) 1, 2011 ONCA 764)

[9] I have concluded that a full appreciation of the evidence and issues in this case does not require a trial.

BACKGROUND

[10] The plaintiffs claim a right to cross defendants’ land which consists of lot 42 plan 720 and the land between lot 42 and the lake. Prior to 2007 an unopened road allowance (“The Avenue”) existed on the land separating the lands of the parties from the lake. (See Motion Record tab 2 Ex L pg. 53; and Motion Record tab 2(Ai) pg.16). The Plaintiffs claim that this right arises from an agreement between the plaintiffs and the defendants’ predecessor in title by which, it is submitted, the defendants are bound. In the alternative, they ask the court to intervene and, in the exercise of its equity jurisdiction, grant them that access.

[11] The plaintiffs expressly note that they do not base their claim upon prescription, the Road Access Act, proprietary estoppel or necessity. The plaintiffs all have access to their properties by their own driveways behind their residences which run to the public road. When this little subdivision was established in 1922 the plaintiffs had access using the unopened road allowance along the shore. Abutting property owners and members of the public drove up and down an unimproved single lane which was called "the Avenue" locally (shown on “L” above). This gave access to the homes of the plaintiffs from the front (Motion Record tab 2 ex N(i), pg.61). Some of the “Avenue” on the west of the defendants is still municipal land and the “Avenue” to the east of the defendants is still being used with the consent of the abutting land owners.

[12] In 2004 the plaintiffs became concerned about the increased use of "the Avenue" by members of the public. They consulted a solicitor with the intent that he would seek a closing of the road allowance by the municipality and a conveyance of the road to the abutting landowners. They were also agreed that they should each retain the right to cross their neighbor’s property to get to their own.

[13] The Plaintiffs’ solicitor informed them that they could proceed in one of two ways with respect to a right of way and he asked for express instructions as to which way he should proceed.

[14] He could either;

(a)

i. obtain a mutual Easement or right of way agreement from other present applicants for shoreline allowance property,

ii. make application for a Consent under the Planning Act, and

iii. register the Easement or right of way on all the adjoining properties;

or he could:

(b)

register on all the adjoining properties a Notice of unregistered right of way, with each party consenting to registration of such Notice on their property and the property to be acquired from the Municipality of Shuniah upon the closing of the road allowance.

[15] Some of the Plaintiffs seem to have been under the impression that they had a “right of way which has existed over this roadway for many years” and that they simply had to give notice of it to make it effective.

[16] In a memo recording a meeting of the plaintiffs (Responding Motion Record tab 1(F) pg. 27) their solicitor is recorded as saying that the Notice on their titles “would simply inform anyone searching the Title that people cross your property”. He gave them the two options set out above but declined to give an opinion as to which option to choose.

[17] The plaintiffs elected not to proceed by way of formal easement, (a) above, but rather by way of registration of a Notice of Unregistered Interest under S 71 Land Titles Act, (b) above, (Motion Record tab 3(A) pg. 116).

[18] In his reporting letters to each of the plaintiffs their solicitor was careful to tell them “no opinion is being provided as to the enforceability of the right-of-way” which, he said “has existed over this roadway for many years other than to advise that it is not protected against arbitrary closure by the provisions of the Road Access Act because alternative road access is available to each owner”. (Motion Record tab 2(O) pg.70).

[19] This is an “upscale” neighborhood. The plaintiffs are ladies and gentlemen. They considered that it would be enough to have a notice on title “which would simply inform anyone searching the Title that people cross your property.” (Motion Record tab 3(c) pg.122) As Peter Crooks deposed (Responding Motion Record Vol 1 page 58 ¶ 63): “I never thought that I would seek to have a court define what the rights are, as I trusted that my neighbours would act respectfully.”

[20] The hard fact is that any right-of-way which may have existed over this roadway had ceased to exist with the closing of the road allowance. It was not enough that a subsequent purchaser of land should buy it knowing of his neighbours use of the land. If the plaintiffs did not have a right to use the land, a right that bound a subsequent purchaser, such a purchaser was free to stop that use.

[21] Unfortunately, several years later "there arose a new king who knew not Joseph" as the Bible records sadly (Exodus 1:8). The defendants purchased lot 42 (Motion Record tab 2(L) pg. 53). Much has been made of the fact that the defendants must have had actual notice or constructive notice of the right of way and therefore they should be bound by that notice. I am satisfied that the defendants had either actual or constructive notice that the neighbours claimed to have an unregistered right in their land. The issue is whether this “right” existed in fact and if it did, was it was a personal license or an easement? A licence would simply bind the parties to the agreement. An easement would “run with the land” and bind subsequent purchasers who had notice of it. There was no mention of an easement in the Notice registered by the plaintiffs’ solicitor. Not by misadventure but by conscious decision of the plaintiffs and their solicitor.

[22] The solicitor for the defendants questioned this Notice when the defendants purchased the land. The vendor of their land provided them with a sworn declaration in which he deposed that other than the registered easements for services there were no encumbrances or easements whatsoever affecting the said lands and that he was unaware of any persons having any claim or interest in the said land etc. (Motion Record tab 2(F)pg. 35). In the agreement of purchase and sale (Motion Record tab 2(D) pg. 23 @ 29) signed by the defendants the vendor promised to provide a copy of the “registered notice of right of way for the road allowance [for the neighbours only] to the buyers within the conditional period”. Section 71 (2) Land Titles Act provides that where a (proper) Notice is registered under that section the registered owner of the land “shall be deemed to be affected with notice of any unregistered estate, right, interest or equity referred to therein.” (emphasis mine)

[23] Under the circumstances, despite some deficiencies alleged regarding the Notice, Mr. Poling must be taken to have had notice of the plaintiffs’ claims. He admits this but says he understood from the information given to him by his vendor that this was a neighbourly thing that was not legally binding. I do not see this as an issue of credibility requiring a trial for determination!

[24] But the really crucial question is not whether the defendants had notice of an unregistered claim. The central issue is the nature of that claim.

[25] What was the nature of that claim? A simple permission given to existing neighbours or an easement binding subsequent neighbours?

• The plaintiffs had advised their solicitor that they did not want an easement.(Resp. Motion Record Vol.1pg.45)

• Their solicitor had advised the municipality that the plaintiffs did not want an easement.(Resp. Motion Record Vol.1 pg.24)

• The solicitor had taken no steps to create an easement which might have been done simply.

• One of the parties to the agreement with the plaintiffs, the defendants’ predecessor in title, had given the defendants sworn evidence that the claim was NOT for an easement or other interest in the land. (Motion Record pg.35).

• The notice registered against the land made no specific reference to an easement.(Resp. Motion Record Vol 1pg.46)

[26] The defendants could make all the inquiries they wanted. There was no obvious evidence that the claim was based upon an easement or other interest in the land. The plaintiffs had been careful NOT to create any documentation that would support such a claim. No formal easement. No informal memorandum of agreement. No registration of notice of easement.

[27] The plaintiffs were content to give notice of a status quo, to simply inform “anyone searching the Title that people cross your property”, in the hopes that no one would challenge this. (Resp. Motion Record Vol I pg.27).

[28] The defendants proceeded to lay down sod on the former right-of-way so that their lawn ran directly from their house to the Lakeshore.

[29] The plaintiff’s ask the court to hold that they have a right to cross the defendants’ land as a result of an agreement between the plaintiffs and the defendants’ predecessor in title which should bind the defendants. In the alternative, the plaintiffs ask the court to give them a right to cross the plaintiff’s land out of “fairness”. They also seek damages for conspiracy for illegally impeding access along the road.

[30] The defendants call upon the plaintiffs to explain the basis of their claim to use their property, failing which they ask that the Notice be expunged from the parcel register and the action be otherwise dismissed.

[31] In this motion they submit that there is no genuine issue requiring a trial and they ask that the Notice be expunged and the action dismissed without trial.

ANALYSIS:

WAS THERE AN AGREEMENT

Privity Of Contract

[32] There was no direct agreement for the use of land between the plaintiffs and defendants.

Privity Of Estate:

[33] If the plaintiffs have any rights based upon an agreement they must arise from an agreement between themselves and the defendants’ predecessor in title. That agreement must be one which is enforceable in a court of law. It must not have been simply a “Gentleman’s Agreement”.

[34] I am satisfied that the defendants’ predecessor in title was a party to the actions of the plaintiffs when they discussed closing the road and taking a conveyance of the road allowance. I am satisfied that the defendants’ predecessor in title was privy to the discussions about reserving to themselves a mutual right of way over the road. I am satisfied that he acted in concert with the plaintiffs and gave a consent to their common solicitor to register the Notice of unregister right etc. against his land. The defendants concede for the purpose of this motion that he signed a copy of the instructions to the solicitor. (Resp Motion Record Vol I, pg. 45)

[35] I have no doubt that the plaintiffs and the defendants predecessor in title wanted to preserve to themselves the right to use the existing driveway even though it now meant they would have to cross their neighbor’s property.

[36] I have no doubt that they acted in concert. Each signed the instructions to the solicitor (Resp Motion Record Vol I, pg. 45). Each took a conveyance of that portion of the road allowance which abutted their property, each shared the cost of closing the road and registering the notice.

[37] Yes, there was an informal agreement between the plaintiffs and the defendants’ predecessor in title granting the parties permission to cross each other’s land.

WAS THAT AGREEMENT ENFORCEABLE AGAINST A SUBSEQUENT PURCHASER IN A COURT OF LAW?

Consideration:

[38] There was a suggestion that this agreement would be unenforceable because there was no consideration, that is that the people seeking the benefit of the agreement had given nothing in return, that there was no “quid pro quo”. I accept that the mutual promises exchanged amongst the original parties is a complete answer to this objection.

Vagueness:

[39] The defendants say that any attempt to enforce such an agreement founders upon it’s vagueness.

[40] I agree.

[41] The courts require a basic degree of certainty before they will grant an order enforcing an agreement. How far did permission extend? Was it applicable to the public? Was it limited to the current land owners or was it to include subsequent landowners?

[42] Some thought that it was simply permission for neighbours that could be revoked or changed in the future and was unenforceable. (Motions Record tab 3, ¶ 9, pg 115), others thought that it continued the public use of the road (Examination of Workman pg. 48, Q.227), others considered that the permission was limited to the landowner’s “family, necessary [?] visitors and service vehicles” who were to proceed “in a careful and reasonable manner”. (Resp. Motion Record Vol I, tab 3, ¶65 pg. 58; Resp Motion Record Vol II pg. 57, ¶28).

[43] Where were they to cross? One would automatically assume that they would keep to the travelled portion of the dirt road already in existence. But the Notice purported to apply not only to the travelled road itself but also to the entire former road allowance and indeed to the whole of each person’s property. Given the proximity of houses to the travelled road (see Resp Motion Record Vol II pg. 28) knowledge of the property affected is vital. There was no attempt to define this. Nor was there any attempt to define size of vehicle or frequency of passage. Was it permission to blast a more convenient road across a neighbour’s property at the rear? We have no way of settling these issues.

[44] How long were these rights to remain in force? The notice suggested an indeterminate period (Motion Record Pg. 118.)

Statute Of Frauds?

[45] Assuming we were to consider that the essential details of the agreement had been settled, the defendants submit that the plaintiff’s must fail because of the Statute of Frauds.

[46] I agree.

[47] The Statute of Frauds is a very old statute. It was enacted to avoid the very thing we have here: Disputes concerning rights in land arising because of insufficient evidence of the terms of agreement. In effect this statute says that rights can only be acquired in land if:

“they are created by a writing, and

that writing is signed by the parties creating the rights”.

[48] The courts have held that for the statute to be effective the writing must disclose, either expressly or by necessary inference, all the essential terms of the concluded contract.(Hunter v. Baluke (1998) 1998 14719 (ON SC), 42 O.R. (3d) 553 (Spiegel, J) citing DiCastri: The Law of Vendor and Purchaser, pg. 4-33)

[49] In other words, not only must an agreement for an interest in land not be vague but it must be in writing and the essential terms disclosed by that writing either expressly or by necessary inference.

[50] If rights in land are not so created then some are void from the beginning, others are valid but may be retracted at will.

[51] The courts have been very careful to ensure that the Statute Of Frauds does not become an instrument of fraud itself. A common situation is the person who asks to buy a right-of-way over another’s land. The parties agree upon the price, the price is paid, then the land owner receives a better offer for all of his land and refuses to complete his transfer of a right-of-way on the grounds that their agreement was not in writing and signed. In that case the courts may compel the landowner to sign over the right-of-way even though the agreement did not comply with the statute of frauds because it would be unfair to let the landowner hide behind the Statute after he had taken the purchase money.

[52] This is not our case.

[53] As the man said, “show me the piece of paper that oral agreement is written on”.

[54] Again, over the centuries the courts have been very liberal in deciding what can constitute a writing signed by the parties which makes an agreement regarding land valid. A note scribbled on the inside flap of a cigarette package has often transferred many hundreds of acres of cutting rights in the bush.

[55] Here we have NOTHING signed by the parties, more specifically, signed by the defendants’ predecessor in title, McNeill, as a memorial that they intended to exchange rights in their lands or what those rights were. On the other hand, simple permission to cross one’s land may be granted (and revoked) by a wave of the hand.

[56] Here, the closest thing we have to a writing granting an interest in land signed by McNeill is the letter of instruction addressed to the plaintiffs’ solicitor instructing him to prepare and register a transfer from the municipality to McNeill of the land which was formerly the road allowance abutting his property, and to register a Notice of an unregistered right-of-way against his property. We do not have the actual document but the defendants do not dispute that one existed. (Resp. Motion Record Vol I pg.45) As to what these documents were meant to effect, we have McNeill’s sworn statement that, except for the service easements there was no encumbrance or easement affecting the land and that he had never heard of any claim of easement affecting the land for a right of way. (Motion Record pg. 35, ¶¶ 2 & 5)

[57] While the courts have countenanced the cobbling together of a writing from miscellaneous peripheral documents in order to satisfy the Statute of Frauds I do not accept the documents tendered here are sufficient to create an interest in land as opposed to a simple permission or licence. I do not accept that the notice registered under the Land Titles Act may be used to transform a non-existent contract into a contract. (Taylor v. Rawana (1990) 1990 6916 (ON SC), 74 O.R. (2d) 357 (Clarke, J)

[58] It seems to me that the plaintiffs were content with a simple permission, they asked their solicitor to record a simple permission, they ended up with a simple permission.

The Planning Act

[59] Assuming the agreement between the original landowners might be found to be definite enough to warrant enforcement and assuming the requirements of the Statute Of Frauds were found to be met, the defendants submit that the agreement would be void because of the operation of S.50 of the Ontario Planning Act.

[60] I agree.

[61] Section 50(3) of the Planning Act provides that grants of the use of or a right in land for a period of 21 years or more must meet certain criteria otherwise under subsection (21) no interest in the land is created.

[62] It is sufficient to say that there was never any attempt or intention of complying with these criteria. This was not an oversight. The plaintiffs’ deliberately proceeded in a manner designed to avoid compliance with the Planning Act. By doing so they ensured that their agreement would be good only as long as others adhered to it voluntarily. Even an otherwise valid agreement amongst the parties would not have conveyed an interest in land.

Requirements of an Easement

[63] Even if all of the impediments set out above did not exist there is another barrier in the way of the plaintiffs. A subsequent purchaser must honour an easement granted by a previous owner of the land only if that easement (e.g. rights of way running with the land) meets certain conditions. These are known in law as the “Ellenborough Park” requirements. They are set out by Perell J. in 349 Lakeshore Oakville Holdings Inc. v. Misek and Purvis 2010 ONSC 6007 at ¶ 64 ff.

a) The person claiming to exercise the right must have an interest in land which is called the dominant tenement. The person against whom the claim is made must have an interest in the land said to be bound by the easement, the servient tenement.

b) The easement claimed must better or advantage the dominant land. The right claimed must be reasonably necessary for the enjoyment of the dominant tenement.

c) Both dominent and servient tenements cannot be owned by the same person, and

d) The right claimed must be capable of being the subject matter of a grant.

[64] I accept that the requirements of a), c), & d) are met in this case. I have serious doubts whether the facts of this case would satisfy b). The plaintiffs recognize that this is not a case of an easement of necessity. As I understand their argument, however, they say that this easement is necessary for the reasonable enjoyment of their property. The defendants submit that easements for the reasonable enjoyment of property are a very limited type of easement, one which may be claimed by some people but not others. Halsbury’s Laws of England 4th ed. Vol. 14 ¶ 61, Dobson v. Tulloch (1994) 1994 7239 (ON SC), 17 O.R. (3d) 533 (Pardu, J.) I recognize that this is an issue where a proper appreciation of the evidence and issue should only be gained after a trial of this issue. Given my previous rulings it would be academic to direct such a trial of this issue.

SHOULD THE COURT INTERVENE AND IMPOSE AN EASEMENT

[65] The plaintiffs ask for an order pursuant to s. 100 of the Courts of Justice Act vesting an easement in them despite non-compliance with s. 50 of the Planning Act. From their Factum this appears to be relief claimed in the event that only the Planning Act stands between them and an enforceable interest in the defendants land. Under s. 100 the court may make a vesting order only if the court already has authority to dispose of, encumber or convey the land.

[66] In argument, however, the plaintiffs cast a wider net. I understood them to ask that in the event the court found they had no express easement then the court should consider whether, in the exercise of its equitable jurisdiction, the court should impose an easement. They argued that they had an easement implied from the facts, which facts could only be properly appreciated after a trial. Counsel frankly admitted that he was not asking for an easement based upon necessity but he argued, the category of implied easements is still open and this case called for court intervention.

[67] At this stage I have found that the plaintiffs have no easement in law. Should one be implied in Equity? Should that issue go to trial?

[68] The plaintiffs argue, in effect:

• “ For decades we, and those who owned our land before us, have crossed this land.

• We intended to preserve our right to cross this land.

• We took steps to register on title notice of our claim to an unregistered right of way.

• The road was there. The defendants could see that we were using each other’s land.

• The defendants purchased the land knowing of our claim.

• Any inconvenience the defendants might suffer is minor compared with the total inconvenience we might suffer, especially as we get older.

• The defendants are to blame for this situation and the court should do that which ought to have been done in the first place!”

CONCLUSION

[69] The plaintiffs appeal to Equity.

[70] The land in question is registered under the Land Titles Act. That act creates a system of land registry that attempts to reflect the actual title. The general rule is “what you see, based upon the parcel register, is what you get”.

“22 The court in Durrani ([2000] O.J. No.2960, 2000 22410) explained the purpose of the land titles system, in place in Ontario since 1885, at paragraphs 41 and following:

The essential purpose of land titles legislation is to provide the public with security of title and facility of transfer. ... The notion of title registration establishes title by setting up a register and guaranteeing that a person named as the owner has perfect title, subject only to registered encumbrances [my emphasis] and enumerated statutory exceptions.

The philosophy of the land titles system embodies three principles, namely, the mirror principle, where the register is a perfect mirror of the state of title; the curtain principle, which holds that a purchaser need not investigate the history of past dealings with the land, or search behind the title as depicted on the register; and the insurance principle, where the state guarantees the accuracy of the register and compensates any person who suffers loss as the result of an inaccuracy. These principles form the doctrine of indefeasibility of title and is the essence of the land titles system ...

The significance of all of this is that while principles of equity remain relevant to the determination of issues under the Act, the opening words of ss. 159 and 160 cannot be overlooked. In keeping with the overall objectives of the legislation, the court's ability to invoke or apply equitable doctrines is limited by the rights innocent people acquire under the Act. [emphasis mine] (719083 Ontario Ltd. v. 217412 Ontario Inc. (2012) 2012 ONSC 3815, 23 R.P.R. (5th) 159 (J.P. Moore, J))”

[71] The defendants argue, in effect:

• “We knew there was an informal right of way claimed but based upon the absence of any registered easement, the sworn declaration of the vendor that there was no such claim, and the absence of any documents which would justify such a claim we concluded that this was just a neighbourly practice that was not legally binding.

• The plaintiffs had the opportunity to register a legally binding easement. Had they done so we would not be in this situation.

• We innocently acquired the right of ownership without encumbrance under The Land Titles Act. Equity should not now encroach upon our interest.

• We were not prepared to inhibit our neighbours from reasonable pedestrian traffic across our property as can be seen from the photograph of our property found at Resp. Motion Record Vol II pg. 28 and the flagstone walkway we installed. Unfortunately not all of our neighbours have exhibited the qualities of ladies and gentlemen the judge has mentioned and their usage has been denied.

• Anyone questioning the inconvenience to us of the right of way claimed need only look at that same photograph and visualize a sewage truck rolling by our doorstep in the midst of a garden party.

• The plaintiffs are to blame for this situation and should not be entitled to extraordinary remedies.

• Besides that, this situation only arose because the plaintiffs were determined to evade compliance with the law of Ontario concerning Planning.”

[72] In summary, the plaintiffs deliberately chose a course of action that has brought the parties here. The law works best when there is certainty. The plaintiffs might have made the situation crystal clear to prospective purchasers. Instead they were content to allow the water to be muddied. They must now live with the consequences.

[73] As for the claim in conspiracy I shall simply remind the parties of the comments of Mr. Justice Perell in 394 Lakeshore Oakville Holdings Inc. v. Misek and Purvis (2010) ONSC 6007 at ¶ 131:

. . . Court proceedings were unnecessary and particularly unnecessary as against Mrs. Purvis. Having received the Plaintiff's notice of the administrative proceedings under the Land Titles Act and having exercised her statutory rights, and having exposed herself to costs consequences, Mrs. Misek, and her witness, found themselves sued for $5 million in tort claims . . . The commencement of a tort law suit against both Mrs. Misek and Mrs. Purvis has the appearance of litigation for a collateral purpose. . .

[74] More bluntly in this case, the claim for $90,000 for conspiracy to deny the plaintiffs the right to use the right of way in dispute carries with it the odour of intimidation, not an attempt to resolve an honest dispute. As such it was counterproductive.

[75] The notice that was registered against a number of properties has done enough mischief.

ORDER

[76] An order will issue directing the Master of Titles at Thunder Bay to expunge from all property against which it is registered the Notice of Unregistered claim receipted as TY59511 on 2008 02 22.

[77] This action is otherwise dismissed.

[78] An appointment may be taken out with the trial co-ordinator within 14 days to discuss costs if anyone is so inclined. Otherwise an order will issue in favour of the defendants for costs in the agreed upon amount of $15,000.

______”original signed by”

The Hon. Mr. Justice J. deP. Wright

Released: September 4, 2013

COURT FILE NO.: CV-11-0418-SR
DATE: 2013-09-04

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Richard Hugh Joseph, Mary Theresa Joseph, Peter Herbert Crooks, Mary Louise Crooks, Robert Wayne Thomas Workman, Elizabeth Margaret Workman, Calvin Laurence Kramble, Lillian Margaret Kramble and Katherine Jane Sylvester,

Plaintiffs (Respondents on Motion)

• and –

Michael Peter Poling and Simone Marian Poling,

Defendants (Moving Parties)

DECISION ON MOTION

J. deP. Wright J.

Released: September 4, 2013

/mls