CITATION: Hoggarth v. MGM Farms and Fingers Limited, 2015 ONSC 2494
BARRIE COURT FILE NO.: CV-14-1219
DATE: 20150417
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RONALD HOGGARTH, COLIN TAYLOR and JIM SARJEANT
Applicants
– and –
MGM FARMS AND FINGERS LIMITED, LAWRENCE WESTREICH, IRINA MIRZOKANDOV, DAVID STEINBERG and ANTOINETTE STEINBERG and THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
Respondents
E. Marshall Green/Sarah Hahn, for the Applicants
David Cherepacha/Kyle Gossen, for the Respondents MGM Farms and Fingers Limited, Lawrence Westreich, Irina Mirzokandov, David Steinberg and Antoinette Steinberg
Christopher J. Williams for the Respondent The Corporation of the Township of Oro-Medonte
HEARD: April 8, 2015
REASONS FOR DECISION
DiTOMASO J.
THE APPLICATION
[1] The Applicants are some of the owners who own lots on a Plan of Subdivision, Plan 993, in the Township of South Orillia and now in the Township of Oro-Medonte (“the Plan”), originally registered in 1950. The Respondents also own lots on that Plan. A dispute has arisen between these parties as to whether a notation on the Plan binds all of the lot owners including the Respondents. The Applicants claim that the notation is binding. The Respondents say whatever rights granted in 1950 have long since expired.
[2] The Corporation of the Township of Oro-Medonte (“the Township”) is aligned with the Applicants as the former Township of Orillia constructed swales and culverts on some of the lots in issue to insure proper drainage of the subject lots and surrounding properties. The Applicants have abandoned their relief as against the Township on the strength of the Township’s undertaking to provide appropriate notice to all property owners should any application be brought regarding the subject lands.
[3] The Applicants seek an order declaring that the subject lands are and remain subject to the rights of the Applicants. Further, the Applicants seek an order declaring that the Respondent owners of the fee simple of the subject lands are prohibited from taking any action that would interfere with or derogate from the rights of the Applicants or others who are owners of the lots on the Plan, in those lands.
OVERVIEW
[4] The Applicants and Respondents are some of the owners of lots on Plan 993, a subdivision of lands in the Township of Oro-Medonte, formerly in the Township of Orillia, County of Simcoe.
[5] The Plan was registered on September 23, 1950.
[6] The Plan contains an inscription on its face stating:
Note: lots numbered 1, 11, 23, 33, 41, 51, 59 and 77 are hereby dedicated as area of user, common to each property owner in the subdivision.
With the exception of lot number 1, these lots are described as the “subject lands” and are also described as the “Slivers”.
[7] Over the years, the fee simple in the Slivers were routinely sold, often to owners of one of the abutting lots. Also, at one time, the lots also passed through an Estate.
[8] On August 14, 1968, by order of His Honour Judge A.M. Carter, and on the consent of various parties, Lot 1 was “deleted from the dedication”. At the same time, the dedication of the other lots as “user in common” to the other lot owners of Plan 993 was confirmed.[^1]
[9] The owners of the subject lands or Slivers as of today are as follows:
Lots 11, 23, 33 and 41 - MGM Farms and Fingers Limited
Lot 51 - Lawrence Westreich and Irina Mirzokandov
Lot 59 - David Steinberg
Lot 77 - Antoinette Steinberg
[10] During the entire period from the registration of the Plan to the date of application, no one has challenged the rights of the owners of other lots on the Plan to have use of the subject lands or Slivers for all usual purposes related to their “user in common”.
[11] The subject lands are also used by the Township for drainage of various other parcels of land on and off the Plan.
[12] The subject lands have served and continue to serve as a facility for launching of boats, for access to various properties, for parking vehicles and other storage for surrounding properties, for access to Lake Simcoe for swimming and for various recreational purposes.
[13] On June 20, 2013 an application was heard by the Committee of Adjustment of the Township which had been submitted by Antoinette Steinberg, the owner of Lot 76 on the Plan and the owner of Lot 77, one of the Slivers. The application was for permission to move the boundary between Lots 76 and 77 so that the home on Lot 76 could be demolished and there would then be sufficient frontage under the Township’s zoning by-law for the construction of two homes. The entirety of Lot 77 would become part of the lot on which a new home would be built.
[14] The Committee of Adjustment refused the application to move the boundary for various reasons, including that there was a legal question as to whether Ms. Steinberg had the right to build on any part of Lot 77, effectively extinguishing the rights in common of the other owners of the lots on the Plan.
[15] Ms. Steinberg has appealed that decision to the Ontario Municipal Board which has scheduled a hearing for April 22, 2015.
[16] The Applicants and other owners of lots on the Plan, with the exception of Ms. Steinberg, do not consent or acquiesce to the release of any the rights in common granted by the dedication under the Plan. Further, the Applicants state that there has been continuous use and enjoyment of the subject lands or Slivers by the owners of lots on the Plan since the dedication was established.
[17] The Applicants ask the court to confirm their rights to decades-old “user in common” rights set out on Plan 993. The Respondent owners assert that any such rights have long since expired and seek an order dismissing this application.
THE ISSUES
[18] The issues for determination are as follows:
(a) What is the nature of the rights that were given to the Applicants and other owners of the Slivers by virtue of the dedication noted on Plan 993?
(b) What, if any, effect do the provisions of the Land Titles Act with respect to “Land Titles qualified” designation, and the predecessor provisions of the Registry Act on limitations on claims for user have on these rights?
POSITION OF THE PARTIES
Position of the Applicants
[19] The Applicants submit that Plan 993 which was registered in 1950 contained an endorsement which identified eight lots (now seven lots described as the Slivers) which were “dedicated as area of user, common to each property owner in the subdivision”. The granting of this “user in common” was a condition of the approval of the original plan of subdivision. The purchasers of the lots on the Plan and their successors relied on their rights to use the Slivers when they purchased. It was admitted that the Slivers have been continuously used by the owners of the lots on the Plan. Adjoining owners have used them for access to their lots, for vehicle parking and for boat storage. Owners generally have used them for access to Lake Simcoe. The Township has adapted several of the Slivers with culverts and swales in order to drain the Township road and other surrounding lands.
[20] The Applicants submit that the rights given to them pursuant to the Plan dedication survived and continued during the time that the Plan was registered pursuant to the provisions of the Registry Act.
[21] The Applicants further submit that their rights continue to survive the conversion of registration from the system of registration under the Registry Act to the system of registration under the Land Titles Act.
[22] Lastly, the Applicants submit that as a matter of fundamental justice, they possess decades old property rights regarding which there has been open and continuous use. Those rights should not be extinguished without notice to them. Therefore, they seek the declaratory relief set out in this application.
Position of the Respondent Owners
[23] The Respondent owners submit that the “area of user” is not a true dedication. Rather, the area of user is in the nature of an easement. That easement expired in 1990 by operation of the Registry Act, namely on September 23, 1990 being 40 years from the registration of the Plan on September 23, 1950. In 2002, all of the lots on Plan 993 were converted from the Registry system to the Land Titles system. It is submitted that such conversion took place without the benefit of the area of user, making it impossible for the area of user to be restored. No notice of claim in respect of the easement or any other right or interest of any kind was registered pursuant to s.113(1) of the Registry Act. Further, it is submitted that as the area of user expired in 1990, it did not exist as a right on the conversion date. As such, the Slivers are not subject to the area of user. Therefore, the application should be dismissed
ANALYSIS
(a) What is the nature of the rights that were given to the Applicants and other owners of the Slivers by virtue of the dedication noted on Plan 993?
[24] Plan 993 was registered on September 23, 1950 with the endorsement of dedication signed by the owner-subdivider: “Lots 1, 11, 23, 33, 41, 51, 59 and 77 are hereby dedicated as area of user common to each property owner in the subdivision.” By court order of Judge Carter dated August 14, 1968, Lot number 1 was released from the restriction but the restriction was confirmed for the remaining Slivers.
[25] The granting of “user in common” was a condition of the approval of the original plan of subdivision as evidenced by the Letter of Approval given on October 24, 1949 by the Provincial Department of Planning and Development, which contained the words:
…the conditions and amendments to the approval of the final plan for registration of the subject subdivision are as follows:
… 3. That five percent of the land included in the Plan abutting on Lake Simcoe be designated on the final plan with the words “Area of User Common to Each Property Owner in the Subdivision”, in view of the fact that the draft plan does not show an adequate area set aside for bathing purposes.[^2]
[26] The imposition of this condition was consistent with the then statutory authority, the Planning Act, R.S.O. 1950 s.26(5) being the authority to impose conditions including for parkland.
[27] The Application Record contains a number of affidavits in support of the relief sought by the Applicants. The Respondent owners have not cross-examined on any of these affidavits nor have the Respondent owners filed any affidavits of their own in opposition to the relief being sought. Also, counsel for the Respondent owners submitted that as the questions to be determined by this court were purely legal questions, no such affidavits were required. While there are legal questions to be determined, there is no doubt that the affidavits filed in support of the Application as well as the affidavits filed by the Township were all useful, persuasive and uncontroverted evidence which I have accepted and relied upon in support of my findings in determining the outstanding issues.
[28] I accept the evidence of Paul Fountain, real estate law clerk employed by the Applicants’ counsel, that in the days of early subdivision plans common use by particular owners of a plan of subdivision were dedicated to the specific owners of lands on the Plan. This was very common in plans that dealt with waterfront lands where it was intended to provide benefit to owners of lands on the Plan for the purposes of swimming, boat launching etc.[^3]
[29] I also accept the evidence of Jim Sarjeant and Colin Taylor where they depose that purchasers of the lots on the Plan and their successors, relied on their rights to use the Slivers when they purchased.[^4]
[30] I accept the evidence of the Applicants and find that the Slivers have been continuously used by the owners of the lots on the Plan. Adjoining owners have used them for access to their lots, for vehicle parking and boat storage. Owners generally have used them for access to the lake. The Township has adapted several of them with culverts and swales in order to drain the Township road and other surrounding lands.[^5]
[31] Mr. Edwards has resided on Lot 89 since 1975. He has lived in the area since 1958. He has personal knowledge from his own 54 year experience living in or near this subdivision. Upon the purchase of his lot, he understood that certain lots on the Plan were “user in common” to all of the owners on the Plan. He was aware that the subdivision relies on swales and culverts that had been built into some of the Slivers for proper drainage from the subdivision into Lake Simcoe. He is unaware of any claim made by any of the owners of the subjects lots or Slivers to extinguish or limit the rights of the Applicants prior to the matter coming before the Ontario Municipal Board. He is aware of no consent by any of the owners, other than those owners of the Slivers, to the extinguishing or limiting of these rights. He is aware that the Slivers have been used continuously by others in the subdivision. The Slivers continued to be used by owners on the Plan for various uses “in common” and have been in very large part maintained by the owners of the lots that abut same and have always been considered “in common parcels” and an important asset relied upon when purchasing or selling these lots.
[32] Mr. Edwards’ evidence in respect of drainage and the evidence of Mr. Hoggarth on the same question is confirmed by Jerry Ball, Director of Transportation and Environmental Services for the Township in his affidavit. He agrees with Mr. Hoggarth’s statements regarding the use of the Slivers for overland flow by the Township. The swales and culverts had been built by or for the former Township of Orillia to ensure the proper drainage of the Slivers and surrounding properties. Further, he confirms that it is a Township issue to deal with drainage water regardless where the water originates.
[33] The text of the order of Judge Carter dated May 14, 1968 also warrants consideration. On consent, Plan 993 was amended as follows:
Lot number 1 shall be deleted from the dedication (my emphasis) on Registered Plan No. 993 for the Township of Orillia so that the said dedication (my emphasis) shall now read as follows: -
Lots numbered 11, 23, 33, 41, 51, 59 and lot 77, are hereby dedicated (my emphasis) as area of user, to each property owner in the Subdivision.
[34] I find that at the very least, on May 14, 1968 the area of user, to each property owner in the subdivision was still subject to the dedication (my emphasis) as worded on the face of Plan 993 and referred to by Judge Carter in his order.
[35] I find that the dedication on the face of the Plan created and endowed the owners of lots on Plan 993 with certain rights regarding the Slivers as area of user, common to each owner in the subdivision. Those rights are consistent with condition number three in the Letter of Approval from the Department of Planning and Development dated October 24, 1949. From reading condition number three, there was compliance by the owner-developer at the time, Arthur Quinlan, where its wording was set out on the Plan to provide a percentage of the land fronting on Lake Simcoe intended for bathing purposes.
[36] The use of the various owners as evidenced by their affidavits is entirely consistent with the notation on the Plan. The Slivers have been used continuously and openly since 1950 to at least the date that this matter came before the Ontario Municipal Board.
[37] Upon review of all of the evidence set out in the affidavits in support as well as the affidavits of Jerry Ball and Andrea Leigh, Director of Development Services, of the Township (Professional Planner), I find the rights created by the notation on Plan 993 and originating from that source have both a private aspect as well as a quasi-public aspect.
[38] It is argued by counsel for the Respondent owners that the area of user is not a dedication in the sense that it is a grant of rights in land to the public. In this regard he relies upon Narbo Investment Corp. v. St. Leonard (City) for the proposition that dedication must rest upon intention. Any litigant alleging it has the burden of establishing it and this burden is not a light one, since dedication “necessarily implies … an unequivocal decision on the part of the owner of the land to abandon this land to the public”. The evidence must not be ambiguous, it must be clear. The courts do not easily presume the existence of the animus dedicandi which is a form of liberal interpretation.[^6]
[39] Nevertheless, counsel for the Respondent owners has described the area of user as an easement. He submits that the law of public dedications does not apply to the area of user. However, the rights created on the Plan comply with the four characteristics of an easement.[^7]
[40] While I appreciate the submission of counsel for the Respondent owners, I disagree that there is no dedication in this case of any rights granted to the public at large and rather the rights are solely in the nature of an easement granted to owners of the subdivision lots over the lands of the original owner. Section 57 of the Surveys Act provides:
Public roads, etc.
- Subject to the Land Titles Act or the Registry Act as to the amendment or alteration of plans, every road allowance, highway, street, lane, walk and common shown on a plan of subdivision shall be deemed to be a public road, highway, street, lane, walk and common, respectively. R.S.O. 1990, c.S.30, s. 57 [emphasis added]
[41] Pursuant to s.57 of the Surveys Act, every common shown on a plan of subdivision shall be deemed to be a public common.
[42] Further, numerous authorities stand for the proposition that quasi-public rights arise out of dedications where rights are afforded to a group but not to the public in general.
[43] In Lorne Park (Re) [1913] O.J. No. 26 (Ont.S.C.) at para. 16, Middleton J. states:
It may be that the term “dedicate is only appropriate where the right conferred upon the public; here no public right was contemplated, nor do I think it was given, because those to be benefited were not the public but the purchasers of the different lands; indeed, I think it would be unprofitable to enter into a discussion to ascertain whether the right claimed can properly be called an easement, or whether it created an implied obligation in the nature of a restrictive covenant, because it seems to be that all this is more a question of terminology than of real substance. The main question remains: was it the intention of the parties that these three parcels should be set apart and held as recreation grounds for the use of those who might buy lots upon the faith and strength of the scheme put forward by the vendors?
[44] I agree with the reasoning of Middleton J. that at the heart of this issue is not a lengthy debate over the nomenclature of the rights created but rather a determination of the real substance relating to those rights. Not what the rights are called but rather what the rights are.
[45] Again, at para. 24 of the same case, Middleton J. went on to hold:
… When this is shewn, either by indications found upon a plan used in making the sales or otherwise, the vendors cannot depart from the plan or scheme which was the foundation of the sales. This may be regarded as an implied covenant, an implied grant of an easement, an equity in the nature of an easement, or it may rest on the principles of estoppel. In any case, the property so dedicated or quasi-dedicated is rendered subject to the rights held out to the purchaser as an inducement to purchase. These rights may exist in perpetuity.
[46] On appeal, the decision of Middleton J. was upheld and that there can be privileges created of a semi-public character. See para. 28. [^8]
[47] At para.37, the appellate court held that:
Having regard to the building scheme here inaugurated and put upon the market, the covenant giving to the purchasers the rights in respect of what are called the commons clearly created an obligation on the part of the vendors that this right should not be encroached upon by them or purchasers from them.
[48] In Wright v. Long Branch (Village)[^9] the Supreme Court of Canada cited the decision in Lorne Park with approval:
The full applicability of the doctrine of dedication to parks and public squares and commons is now generally recognised, and where land is dedicated for a public square without any specific designation of the uses to which it can be put, it will be presumed to have been dedicated to such appropriate uses as would under user and custom be deemed to have been fairly in contemplation at the time of the dedication.
[49] Again, in determining whether there has been dedication or the creation of rights, in our case, one must look to the condition number three on the Letter of Approval of the draft plan from the Department of Planning and Development dated October 24, 1949. Clearly, Mr. Quinlan was not going to have his draft plan of subdivision approved unless he complied with condition number three. The exact wording was provided by the Department of Planning and Development which, in turn, Mr. Quinlan included verbatim on the face of Plan 993.
[50] In Gibbs et al v. Corporation of the Village of Grand Bend 1996 2835 (ON CA), [1995] 26 O.R. (3d) 644 the Ontario Court of Appeal held:
… In my opinion, the trial judge properly concluded that the appellants had not proved that Charles A. Gibbs and/or his successors in title intended to dedicate the ownership or fee in the beach to the public. This conclusion cannot be successfully attacked in this court.
With respect, this conclusion does not dispose of the separate claim made by the public that there had been a dedication of the beach to the use of the public for recreational purposes. A claim of dedication of the beach for recreational use presupposes that Charles A. Gibbs and his successors in title retain the fee, but that the fee would be subject to the use for which the beach was dedicated.
[51] As in our case, while Ms. Steinberg owns Lot 77, that lot is imbued with the rights granted to her and the other owners of lots on Plan 993 in accordance with the plan notation.
[52] In Audze v. Innisfil (Twp.) 1973 516 (ON SC), [1973] 2 O.R. 228 the Township contended that a shore allowance dedicated on a plan of subdivision transferred to the Township was public. On the registered plan, there was a notation, “area of user common to each property owner in the subdivision”. The deeds to the cottage owners and the municipality did not contain covenants in respect of area of user common to each property owner in the subdivision. The issue was whether the cottage owners were entitled to use Block A on the registered plan that had the designation for the purposes of swimming and boating. The court held that the transfer to the municipality of the Block A after the sale of cottage lots did not take away the individual rights afforded to the cottage owners. The Township took title subject to those rights.
[53] At page 7 the court held:
In the present case, although there were no covenants in the deeds, there was specific reference to the lots according to their lot numbers on registered Plans 911 or 1066. I would apply the reasoning of Smith, J.A., in the Nantais case and hold that the specific reference to the registered plans was sufficient to pass with the lots the right of each property owner in the subdivision to use the common block areas for swimming, boating, etc; this was throughout the intention of the subdivider, the purchasers from the subdivider and the officers of the township who were brought into the picture by the officers of Shoreacres. I also rely on Re Peck and Town of Galt (1881), 46 U.C.Q.B. 211.
[54] Further, in Audze at page 8 the court held:
… The defendant argued that a municipality did not have power to accept dedication of lands as trustee for private proposes but was only empowered to accept lands “dedicated as a public park for the use of the inhabitants of the municipality” under s.352, para. 69 of the Municipal Act, R.S.O. 1970, c.284.
In my opinion, therefore, a declaration should be made that the plaintiffs and all other property owners in the subdivision have the exclusive right to use the blocks in question and that the deeds to the defendant corporation are subject to that right.
[55] I find that the wording on the face of Plan 993 is a dedication sufficient in and of itself to create the common rights which the Applicants request to be honoured.
[56] The dedication encompasses a bundle of rights. I find that those rights include an easement and much more. Not only do the rights confer passage over the Slivers to other lot owners and others who wish to swim in Lake Simcoe, but also those rights contemplate the various uses open and continuous deposed to by the various affiants supporting this application. Again, more than that, the water drainage uses including the construction of swales, ditches and culverts on some of the Slivers by the Township or its predecessor benefits all of the lot owners and the public at large. Those drainage works not only serve to drain water from the Slivers and abutting lots but also drainage of water from the surrounding lands including drainage of water from the municipal road marked as Woodland Drive on Plan 993 into Lake Simcoe. Again, the nature of the rights created must find its source in the intention to dedicate which has been clearly established through the letter of the Department of Planning and Development in 1949 and carried through by Mr. Quinlan on the face of Plan 993 in 1950.
[57] The cases show that there can be creation of quasi-public rights. It cannot be said that the original owners have unequivocally abandoned their rights in favour of the public. This would fly in the face of condition of approval number three and the dedication on the plan. I reject any suggestion by the Respondent owners that they may use their lots for their own purposes without being restricted whatsoever by the rights and interests created by the dedication or notice (howsoever called) originating from Plan 993.
[58] The rights and interests created by Plan 993 have not been diminished by any evidence as submitted by the Respondent owners. There was no evidence to contradict the Applicants’ evidence or the evidence contained in the affidavits of Jerry Ball and Andrea Leigh. This evidence is unchallenged and uncontroverted and was not tested by cross-examination in any way.
[59] I find that the Slivers were used by the Applicants and other lot owners of Plan 993 and the Township in common for a quasi-public and public purpose. Those uses have been open and continuous since 1950 and continue to this day. Those uses have been fully described in all of the affidavit material that I have referred to and which evidence I accept.
(b) What, if any, effect do the provisions of the Land Titles Act with respect to “Land Titles qualified” designation, and the predecessor provisions of the Registry Act on limitations on claims for user have on these rights?
[60] The Respondent owners submit the rights created effecting the lands on Plan 993 whether described as an easement or by some other description, those rights have long since expired by virtue of the Registry Act s.113(1). That interest in land and bundle of rights cannot be revived or resurrected by s.113(5)(a)(iv) of the Registry Act. More specifically, those rights expired on September 23, 1990 being 40 years from the registration of Plan 993. Further, those rights were extinguished long before the lands in question were converted to “Land Titles conversion qualified” on January 21, 2002.
[61] With respect, I disagree. An examination of relevant sections of the Registry Act and the Land Titles Act against the following timeline brings me to a different conclusion.
[62] The relevant timeline in this case is as follows:
• September 23, 1950 - Plan 993 is registered
• May 14, 1968 - Judge Carter’s order releases lot 1 and confirms rights against the other Slivers
• September 23, 1990 - 40 years from the registration of the Plan
• January 21, 2002 - land converted to “Land Titles conversion qualified” or “LTCQ”
[63] Counsel for the Applicants submits that as at January 20, 2002 (the day before conversion to Land Titles) the Applicants’ rights were still preserved pursuant to the provisions of the Registry Act.
[64] Section 1 of the Registry Act defines an “instrument” which “includes every instrument whereby title to land in Ontario may be transferred, disposed of, charged, encumbered or affected in any other way, and, without limiting the generality of the foregoing, includes … a plan of a survey or subdivision of land…”[^10] [emphasis added]
[65] Pursuant to s.1 of the Registry Act, Plan 993 is an instrument.
[66] Section 111 of the Registry Act speaks to what is a claim as follows:
Section 111.
“claim” means a right, title, interest, claim, or demand of any kind or nature whatsoever affecting land set forth in, based upon or arising out of a registered instrument, and, without limiting the generality of the foregoing, includes a mortgage, lien, easement, agreement, contract, option, charge, annuity, lease, dower right, (“réclaimation”) [emphasis added]
I find by virtue of the registered instrument Plan 993, the dedication therein falls within the definition and meaning of a claim as it includes a restriction as to the use of land or other encumbrance affecting land.
[67] Section 112 of the Registry Act deals with the title search period as follows:
112.(1) A person dealing with land shall not be required to show that the person is lawfully entitled to the land as owner thereof through a good and sufficient chain of title during a period greater than the forty years immediately preceding the day of such dealing, except in respect of a claim referred to in subsection 113(5). R.S.O. 1990, c. R.20, s.112(1). [emphasis added]
[68] The Respondent owners rely upon s.113(1) of the Registry Act which deals with the expiry of claims. This s.113(1) provides:
A claim that is still in existence on the last day of the notice period expires at the end of that day unless a notice of claim has been registered.
[69] It is submitted that no notice of claim has been registered in respect of the Applicants’ rights. As no notice of claim had been registered, it is submitted that those rights have been extinguished. Further, the Respondent owners submit that the Applicants cannot avail themselves of the saving section, s.113(5)(a)(iv) which provides:
Exceptions
(5) This Part does not apply to,
(a) a claim, …
(iv) of a person to an unregistered right of way, easement or other right that the person is openly enjoying and using; [emphasis added}
[70] I find that s.113(5)(a)(iv) does apply to the facts of our case. The Applicants do have a claim to an easement (on the Respondent owners’ preferred analysis) or other rights that they openly use and enjoy. Either by way of easement or other rights, the Applicants have overwhelmingly demonstrated that they have been openly enjoying and using those rights which this court has previously identified.
[71] I find that as of January 20, 2002, the day before conversion to registration into the Land Titles system, the Applicants’ rights by dedication or, notice, or quasi-public or public use deriving from the notation on Plan 993 were being enjoyed by the Applicants, were valid, subsisting and definitely in place. These rights were relied upon by the Applicants and other lot owners of Plan 993 and the Township in common for both a quasi-public and public purpose. These rights have not been extinguished by operation of the Registry Act.
[72] I turn now to the application of the Land Titles Act.
[73] As at January 21, 2002 there were two types of titles that deriving from conversation namely, Land Titles absolute and the Land Titles conversion qualify.
[74] Section 45 of the Land Titles Act speaks to first registration of a person as owner of land with an absolute title. Vested in that person so registered is an estate in fee simple in the land free from all estates and interests whatsoever but subject to encumbrances, if any, entered on the Register and liabilities, rights and interests that are declared for the purposes of the Land Titles Act not to be encumbrances, unless the contrary is expressed on the Register.
[75] In our case, we are dealing with a conversion to the Land Titles system – Land Titles conversion qualified, or LTCQ. Section 46 of the Land Titles Act speaks to the estate of an owner registered with a qualified title. Section 46(1) of the Land Titles Act provides:
46.(1) – The registration of a person as first registered owner with a qualified title has the same effect as the registration of such person with an absolute title, except that registration with a qualified title does not affect or prejudice the enforcement of any estate, right or interest appearing by the register to be excepted. R.S.O. 1990, c.L.5, s. 46(1) [Emphasis added]
[76] Moving backwards a step, first registration is made by application pursuant to s.30 of the Land Titles Act. Even the Crown as owner and a municipality are required to make application.
[77] This brings us to ss.41 and 42 of the Land Titles Act which provide regulations as to the examination of title upon an application. There is provision for notice, hearing and appeal. Sections 41 and 42 do not apply to LTCQ. Section 32 of the Land Titles Act empowers the Land Registrar to register land with a qualified title. In our case, all of the lots owned by the owners and all of the Slivers were converted to Land Titles conversion qualified titles.
[78] In our case, the Land Titles Act does not specify as to the effect of conversion of various rights or interests upon first registration for Land Titles absolute or registration for Land Titles conversation qualified.
[79] However, the courts have dealt with long standing property rights and what approach ought to be taken when protecting or extinguishing those rights.
[80] In 1387881 Ontario Inc. v. Ramsey[^11] the Ontario Court of Appeal considered the potential applications of individual property rights regarding section 113(1) of the Registry Act. The court held that an interpretation of this section required a strict construction. An ambiguity as to the interpretation of s.113(1) ought to be resolved in favour of preserving property rights that individuals have relied on.[^12]
[81] Further in Ramsey at para. 37 the court held:
Given the potential implications for individual property rights, s.113(1) merits a strict construction. As P. St. J. Langan states in Maxwell on Interpretation of Statutes, 12th ed. (Toronto: Carswell, 1969): “Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts” (pp.252-52). See also Sullivan and Driedger, supra, at pp. 399-403.
[82] The Court of Appeal at para. 47 also held:
It is unlikely that the legislature intended to enact legislation to eliminate rights of the way that have fallen into disuse at the expense of property owners who continue to use their rights of way on an ongoing basis. Further, the legislature could address directly any question of registered rights of way no longer in use.
[83] As in our case, the legislature could have addressed directly the expiry or extinguishing of the Applicants’ rights in common by the appropriate statutory provision. The legislature did not do so and therefore did not intend to do away with the continuing rights enjoyed by the Applicants.
[84] I have found that the Applicants’ rights subsisted on January 21, 2002. Those rights survived the 40 year rule under the Registry Act. Those rights were protected by the saving provision of s.113(5)(a)(iv) of the Registry Act. The only evidence before the court came from the Applicants enjoying their rights of easement and use for various purposes in respect of the Slivers and the Township use for strictly public purposes to protect both the Applicants and Respondents and members of the public from storm water runoff.
[85] If the rights of the lot owners subsisted on January 21, 2002, the Applicants need to show that after conversion, the test set out in s.44(1) of the Land Titles Act had been satisfied.
[86] Section 44(1) provides:
Liability of registered land to easements and certain other rights
44.(1) All registered land, unless the contrary is expressed on the register, is subject to such of the following liabilities, rights and interests as for the time being may be subsisting in reference thereto, and such liabilities, rights and interests shall not be deemed to be encumbrances within the meaning of this Act:
- Any right of way, watercourse, and right of water, and other easements. [emphasis added]
[87] I am satisfied that the Slivers were subject to the subsisting rights created by Plan 993 and enjoyed by the Applicants, Township and even the Respondents themselves regarding any right of way, watercourse, right of water and other easements per s.44(1) and (2) of the Land Titles Act.
[88] The Applicants’ evidence and evidence of the Township was unambiguous, uncontroverted and overwhelming to establish the Applicants and other lot owners of Plan 993 had subsisting rights and interests which related to any right of way, watercourse, right of water and other easements which had been created by Plan 993 benefitting all of the lot owners in the seven Sliver lots “dedicated as area of user common to each property owner in the subdivision”.
[89] I have considered the relevant provisions of the Registry Act as they pertain to the limitations on claims for user and the relevant provisions of the Land Titles Act with respect to “Land Titles qualified” designation. In conclusion, I find that the rights and interests of the Applicants and other lot owners, including the Respondents owners are not extinguished by the provisions of the Registry Act and continue to have effect under the provisions of the Land Titles Act.
[90] Counsel for the Respondent owners referred to Exhibit Q being the parcel register for Lot 77.[^13] This is the parcel register in respect of the Sliver owned by Ms. Steinberg. The pin creation date was January 21, 2002. The property is described as fee simple LT conversion qualified. Further, the title is subject, on first registration under the Land Titles Act, to subsection 44(1) of the Land Titles Act. I have already referred to this statutory provision. Counsel for the Applicants submitted that Mr. Taylor has resided on Lot 32 Plan 993 since 1987. He referred to the affidavit of Colin Taylor found in Applicant’s Application Record at Tab 5. When Mr. Taylor purchased his lot, he understood that certain of the lots of Plan 993 were “user in common” to all of the owners on the Plan. He retained a real estate lawyer to provide an opinion on the subject lots and whether they could be developed. He was concerned with maintaining privacy and maybe being able to access his house and back yard. As a result of those inquiries, he was advised that the Slivers only had a frontage of 30 feet and development was not an option. Further, the Planner from the Township of Orillia provided Mr. Taylor’s lawyer with a copy of Plan 993 on which he wrote a comment indicating his opinion that the Slivers were subject to the dedication on the Plan. There is no evidence that Ms. Steinberg took any of the steps that were taken by Mr. Taylor. Further, the court was taken to the various photographs found at Exhibit 2 to the affidavit of Ron Hoggarth and in particular photographs taken of Lot 77 on September 19, 2014. Those photographs showed the use of the property including the existence of a drainage ditch, swale and culvert. All of this evidence reinforces the existence of the subsisting rights enjoyed by the Applicants continuously and openly of which Ms. Steinberg should have been aware either on closer examination of the parcel register page for Lot 77 or by investigating what was clearly to be seen physically on the ground at Lot 77.
[91] I agree with counsel for the Applicants who submits that in this case where the Respondent owners seek to extinguish the long-standing rights of the Applicants, a strict interpretation of the statutes apply. In this regard, neither the Registry Act nor the Land Titles Act provide for the termination of the Applicants’ rights and interests. I agree that where such a result is sought, in this case by the Respondent owners, the legislation should be read expansively to protect the rights of the Applicants. Those property rights should not be taken away lightly unless there is clear evidence to do so. There is no such clear evidence adduced by the Respondent owners in this case. Nevertheless, those same Respondent owners seek to dismiss this Application which would have the effect of confirming that the Applicants’ rights do not exist and long ago expired. To come to such a result would extinguish the Applicant’s rights which they have openly enjoyed for the last 65 years. To come to a such result would also create chaos where now the Township uses portions of the Slivers for water drainage. Without the creation and maintenance of these drainage works, water would simply discharge on the properties of the lot owners without any control or management. This result was never intended by anyone including the Respondent owners. I conclude that the Respondent owners of the fee in the area of common user have no legal right to conduct themselves with respect to the Slivers in any manner that is inconsistent with the rights of the owners of lots on Plan 993 and the uses that have been made of the Slivers. The rights of the Applicants and the other owners of the lots on Plan 993 have not been extinguished by virtue of the provisions of the Registry Act, nor by the conversion of the lands from the Registry system to the Land Titles system.
DISPOSITION
[92] Accordingly, this Application is granted. There shall be an order:
(a) Declaring that the lands described herein as lots 11, 23, 33, 41, 51, 59 and 77 on Plan 993, formerly in the Township of South Orillia and now in the Township of Oro-Medonte in the County of Simcoe, are and remain subject to the rights of the Applicants and others who are owners of lots on Plan 993; and,
(b) Declaring that the Respondent owners of the Fee Simple in the subject lands are prohibited from taking any action that would interfere with or derogate from the rights of the Applicants or others who are owners of lots on Plan 993, in those lands.
[93] As to the issue of costs, costs shall be determined by way of written submissions. Costs submissions are limited to a concise Statement no longer than two pages. In addition, counsel shall prepare a Costs Outline and produce a Draft Bill of Costs together with Brief of Authorities. Counsel are to exchange their costs submissions and file same with my judicial assistant at Barrie within 14 days of this decision.
DiTOMASO J.
Released: April 17, 2015
[^1]: Plan 993 can be found in the Application Record, Affidavit of Paul Fountain sworn October 16, 2014, Exhibit 1. Application Record, Affidavit of Paul Fountain, supra, Exhibit 5. [^2]: Affidavit of Andrea Leigh, Exhibit B, Tab 2B of Township’s Responding Record. [^3]: Applicants’ Application Record, Affidavit of Paul Fountain, at para. 8, Tab 4 [^4]: Applicants’ Application Record, Affidavit of Jim Sarjeant , at para. 13, Tab 4; Affidavit of Colin Taylor, Applicants’ Application Record at paras. 5 – 9 Tab 5 [^5]: Applicants’ Application Record, Affidavit of Ronald Hoggarth, paras. 5, 7, 8, 9, 11 and 13 and Exhibit 2, Tab3; Affidavit of Jim Sarjeant paras. 5, 6, 7, 8 and 11, Tab 4; Affidavit of Colin Taylor paras. 5, 8, 10, 11, 13 and 15 and specifically 8, 10 and 11, and Exhibits 1 and 2 Tab 5; Affidavit of David Edwards paras. 5, 6, 7, 8 and 9, Tab 7 of the Application Record; Affidavit of Veronica Dollery paras. 5, 6, 7, 8, 9 and 10; Affidavit of Jerry Ball paras. 4 and 5, Tab 1 Township’s Responding Record [^6]: Narbo Investment Corp. v. St. Leonard (City), 1978 210 (SCC), [1978] 2 S.C.R. 864 at para. 4 [^7]: Depew v. Wilkes, 2002 41823 (ON CA), 2002 CarswellOnt. 2516 (C.A.) at para. 18; 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007 at para. 73 [^8]: Lorne Park (Re) 1914 O.J. No. 4 [^9]: Wright v. Long Branch (Village) 1959 6 (SCC), 1959 S.C.R. 418 [^10]: Registry Act R.S.O. 1990, c.R.20, s.1 [^11]: 1387881 Ontario Inc. v. Ramsay (2005) 2005 23211 (ON CA), 77 O.R. (3d) 666 [^12]: Para. 27 [^13]: Responding Application Record, Affidavit of Samantha Mercado, Exhibit Q