CITATION: Stella Psarakis Medicine v. Catharine and Carl Gonnsen, 2015 ONSC 25

COURT FILE NO.: 13-41075

DATE: 2015-01-16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Stella Psarakis Medicine Professional Corporation

Derek Schmuck, for the Applicant

Applicant

and -

Catharine Gonnsen and Carl Gonnsen

Herbert Huffman, for the Respondents

Respondents

HEARD: July 9, November 3 & 10, 2014

REASONS FOR JUDGMENT

WHITTEN, J.

I. Introduction

[1] The area surrounding lots 40, 39 and 38 and others of Registered Plan 74, the William Buntin’s Survey (Exhibit 1), immediately to the south west of the intersection of Brant Street and Lakeshore in the City of Burlington is a treasure trove of Victorian era buildings. Many of the original structures are still there, although in some cases modified. The area itself has evolved from a residential area in the early 1900’s to the present area of mixed residential, professional and light office use.

[2] The applicant, Stella Psarakis Medicine Professional Corporation (Psarakis), owns lot 40 and a 14 foot width which traverses lots 39 and 38, municipally known as 1418 Ontario Street. The respondents, the Gonnsens, own lot 39 with a right of way across the 14 foot width of Psarakis’ property part of lots 39 and 38. The use by these parties of their properties illustrates the evolution referred to below. Psarakis’ property has been used for almost 30 years as a medical office. The Gonnsen property has been used for slightly less time as a law office, a residence with the Gonnsens as both residents and a planning/engineering office.

[3] Originally all of these properties were owned by William Kearns. By instrument number 3013, Kearns on February 3, 1909, conveyed to Ephraim Burns what is presently the Gonnsen property and the right of way referred to above. By instrument number 3229, Kearns on June 9, 1909 conveyed to Ephraim Burns lot 40 and parts of lots 39 and 38, subject to the right of way referred to in 3013.

[4] The vitality of that right of way is the subject of the litigation between the present owners’ issues.

II. Issues

[5] The analysis commences with an understanding of what exactly was the nature of the easement which created this right of way. Whether or not it exists today is determined by the behaviour of the parties and their predecessors. Was the behaviour of either group of owners such that one can say that the right of way was abandoned? Can we determine if either group has utilized the right of way in a way inconsistent with its purpose, such that its use could be at one extreme characterized as “over burdening” the right of way, or at another extreme, at odds with the original intention of the creators of the right of way?

[6] During the course of the evolution of this litigation, Justice Nightingale ordered on August 28, 2014, that Psarakis be enjoined from continuing with the construction of a fence across lots 39 and 38 which would restrict the right of way thereon to less than 14 foot. This Court, depending upon its decision with respect to the above, will by necessity rule as to the future and extent of the fence commenced by Psarakis.

III. Applicable Law

A: The nature of right of ways and an approach to interpretation

[7] Black’s Law Dictionary, 7th edition., Bryan A. Garner Editor-in-Chief: West Group, St. Paul, Minn, 1999, defines an “easement” as the following:

An interest in land owned by another person consisting in a right to use or control the land…for a specific purpose (such as to cross it for access to a public road). The land benefiting from an easement [i.e. the Gonnsen property] is called the dominant estate [some of the case law employs the term tenement], the land burdened by an easement is called the servient estate.

[8] According to Black’s, one of the “primary recognized easements” is a right of way.

[9] The author, Diana Ginn, in Anger and Honsberger Law of Real Property, 3rd edition, loose leaf (Aurora, Ontario, Canada, Law Book 2011) states:

The essential characteristics of an easement are:

a) there must be a dominant and a servient tenement,

b) an easement must accommodate the dominant tenement,

c) the dominant, servient owners must be different persons, and

d) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

…A positive easement allows the dominant landowner to do something in relation to the servient land. One of the most common positive easements is the right of way. A private right of way is an easement which permits an owner of the dominant land to pass over some defined portion of the servient land in order to gain access to, or egress from the dominant tenant for some purpose connected with the better enjoyment of the dominant tenement. (Referenced to by Macpherson, J. in McCormack v. Ciampanelli, 2012 Carswell 6259, 2012 ONSC 1702, at para. 28.

[10] The characteristics of an easement are in a way a balancing of the interests of the dominant and servient tenements. Neither interest can be detrimental to the other; however, an easement does to some extent detract from the rights of the servient tenant in that it reduces the right of that tenement to exclude others from the property owned (Seaton J.A in Grant v. MacDonald. 1992 5969 (BC CA), [1992] B.C.J. No. 1359; (1992) Carswell 179 (B.C.C.A.), at para. 15).

[11] In the case at hand, the right of way was prescribed in the original deed to Ephraim Burns, namely instrument number 3013. That deed or transfer is, in essence, a contract. The wording associated with the creation of the right of way is typically referenced in the legal description of the property conveyed. Conveyances use standardized terminology, but the description of a right of way is unique and is the starting point for determining the extent of the easement or its particular use.

[12] The actual phraseology of the easement may be quite specific, or in some instances vague. A contextual approach is required. Justice Feldman in Fallowfield v. Bourgault, 2003 4266 (ON CA), [2003] O.J. No. 5206; (2003) Carswell On. 5194 (O.C.A.), at paragraph 10 spoke of an easement created by an express grant (which is the case at hand), “the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created.”

[13] Those circumstances include the known circumstances and those within “the reasonable contemplation of the parties” (Ibid).

[14] With a general grant; for example, a simple right of way, the permissible use of the right of way is “not limited to the original use. Although the owner of the dominant tenement cannot alter the type of the use of the right of way beyond its original scope, the burden on the servient tenement can be reasonably increased as long as the use is of the same general nature” (such that it would have been within the reasonable contemplation of the parties) Almel Inc. v. Halton Condominium Corporation No. 77, 1997 14498 (ON CA), [1997] O.J. No. 824, 1997 CanLII14498, at para. 3 (O.C.A.).

[15] Justice Feldman by reference to Halsbury’s Laws of England, 4th ed., vol. 14 (London, Butterworths, 1980), at 10, para. 20, opined that an easement would include “those ancillary rights reasonably necessary for the exercise or enjoyment.”A typical example of an ancillary right possessed by the dominant tenement would be the right to enter and repair to prevent any material interference with or the making of the exercise of the right more difficult or expensive.” Courts refrain from such interference by granting an injunction as Nightingale J. did in this case.

[16] This contextual approach to contracts was recently commented upon by the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53. It is a practical common sense approach in which the jurist seeks to determine the mutual and objective intentions of the parties as expressed in the words of the contract.

[17] There is a part of this context or surrounding circumstances which is statutorily defined. The Conveyancing and Law of Property Act. R.S.O. 1990, c. C.34 includes within the definition of “land.” a tenement. The effect of a conveyance without words of limitation means that the conveyance “passes all the estate, right, title, interest and claim and demand that the conveying parties have in, to, or on the property conveyed, or expressed or intended so to be” (section 3) of Conveyancing and Law Property Act. Section 15(1) of the statute provides that a conveyance would include amongst other things, an easement. Section 23(1) speaks of an implied covenant in a conveyance, namely i) the right to convey; ii) quiet enjoyment; and iii) freedom from encumbrances. The actual transfer of a right of way is valid even though the transferee does not execute the transfer document.

[18] The Land Titles Act, R.S.O. 1990 c. L.5 has created the present Land Title systems in our province. This system has been described by G. Thomas Johnson in Anger and Honsberger to be based on three principles. Firstly, “the mirror principle requires that the register of title reflect accurately and completely all the facts material to the title.” Secondly, the curtain principle means “the register is the sole source of information and purchasers need not concern themselves with trusts and other equities beyond the curtain.” Thirdly, the insurance principle requires that if the application of the legislation causes a loss to a person, there is an insurance fund which can be tapped into to address the loss (referred to by MacPherson J. in McCormack v. Ciampanelli, (at para. 41).

[19] Section 159 of the Land Titles Act provides that where a court of competent jurisdiction finds that a person has an interest in land and that rectification is required, the court may make the appropriate order of rectification. Section 160 provides if a person is aggrieved by a particular entry, that individual can apply to the court for rectification.

[20] As a consequence of these sections:

Where a bona fide purchaser for value succeeds in becoming a registered owner, the fact of registration is conclusive. Indefeasibility of title is a consequence or incident of registration. Accordingly, the court does not have jurisdiction to rectify the register if to do so would interfere with the registered interests of a bona fide purchaser for value in the interest as registered. (Epstein J. in Durrani v. Augier, 2000 22410 (ON SC), [2000] O.J. No. 2960 (Ont. S.C.) at para. 49 (referred to by MacPherson J. in McCormack v. Ciampanelli).

[21] Justice Epstein as she was then, remarked that a precondition to having a valid title “is that the purchaser must be a bona fide purchaser for value without notice.” The burden of proof of lack of notice is upon he or she who asserts it (McCormack v. Ciampanelli, at para 44).

[22] Salhany J. has defined “actual notice” as “actual notice of the nature of the prior agreement and its legal effect. There is no requirement that there be actual notice of the precise terms of the agreement…The test in my view is whether the registered instrument holder is in receipt of such information as would cause a reasonable person to make inquiries as to the terms and legal implications of the prior instrument” (Canadian Imperial Bank of Commerce v. Rockway Holdings Ltd, (1996) 1996 8007 (ON SC), 29 O.R. (3d) 350 (Ont. Gen. Div), referred to by MacPherson J. McCormack v. Ciampanelli, at para 45).

B: The Behaviour of the Tenements and the Impact upon the Existence of a Right of Way

Abandonment

[23] Aitken J. in 2108133 Ontario Inc. v. Kabcan Foods Ltd., [2009] O.J. No. 951; 2009 Carswell Ont 1218, has summarized the applicable principles with respect to abandonment in the following precise fashion (similar to that described by Osborne J. in 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 5 (1981) Carswell Ont. 513 (High Court of Ontario):

Abandonment is a question of fact. (455645 Ontario Ltd. V. Rousseau at para. 25).

The onus of establishing the loss or extinction of an express right-of-way by abandonment or non-user rests upon the party asserting it. (Liscombe v. Maughan, (1928) 1928 450 (ON CA), 62 O.L.R. 328 (S.C.App.Div.) at para. 28; 455645 Ontario Ltd. v. Rousseau, at para. 31; Peters v. Palmer, [2000], O.J. No. 2560; (2000), 34 R.P.R. (3d) 143 (Ont. S.C.J.), at para. 21).

The only way in which a right-of-way can be extinguished by the act of the parties interested is by release, actual or presumed. (Liscombe v. Maughan, at para. 28).

In the absence of an actual release, non-user is essential to abandonment (455645 Ontario Ltd. v. Rousseau, at para. 27; Peters v. Palmer, at para. 22).

Non-user and nothing more, however, is not sufficient to permit a conclusion of abandonment (455645 Ontario Ltd. v. Rousseau, at para. 27).

When a right of way has its origin in an express agent, it is not lost by mere non-user; there must be some intention to abandon this property right (Closs v. Ferguson, (1923), 24 O.W.N. 199 (Div. Ct.); Peters v. Palmer, at para. 21). The intention to abandon means that the person entitled to the right-of-way has knowingly, and with full appreciation of his rights, determined to abandon it (Liscombe v. Maughan; Peters v. Palmer).

In some circumstances, evidence of a non-user may lead to a finding of acquiescence on the part of the holder of title to the right-of-way. (455645 Ontario Ltd. v. Rousseau, at para. 29). A non-user will not have the effect of establishing abandonment unless a release can be implied from such non-user and the surrounding circumstances. (Liscombe v. Maughtan, at para. 28).

All of the evidence bearing upon the issues of a non-user, acquiescence and abandonment must be considered.

Including the express right-of-way in a registered conveyance is evidence that abandonment was not intended by the owner of the dominant tenement or not presumed by the owner of the servient tenement (Liscombe v. Maughan, at para.32). (See also: Peters. v. Palmer, at para. 30; Jacuniak v. Tamburro, 2002 49467 (ON SC))

[24] The last principle enumerated by Aitken, J. makes perfect sense given what is expected of a solicitor representing a purchaser. The solicitor obtains his/her clients’ instructions, must raise the merits of purchasing title insurance, searches the title of the property, in some instances, the solicitor recommends a survey, discusses with the client the location of any easements, sends out letters of requisition, reviews all transfers and related documents, and ultimately, reports out to the client/purchaser as to the nature of the transfer/conveyance (Real Estate Practice in Ontario, 6th Edition by D. J. Donahue, P.D. Quinn and D. C. Grandilli, Lexis Nexus Canada Inc. 2003).

[25] All of this standard competent practice is designed to keep the purchaser fully informed of what was acquired and is necessary given the implications of registration as contemplated by the Conveyancing and Law of Property Act and the Land Titles Act.

Substantial Interference

[26] As Feldman J. A. noted in Fallowfield v. Bourgault, in paragraphs 32 to 35, after discussing ancillary rights to an easement, there is some latitude to the use of the land subject to the right of way by the servient tenement. That latitude, however, is limited to those uses which do not substantially interfere with the other party’s use of the easement that have been granted. To allow otherwise would effectively eliminate the right of way.

[27] This possibility of interference, by the servient tenement, as in the construction of a fence, may be to preclude use of the right of way. The continued presence of such an obstruction may well play into acquiescence on the part of the dominant tenement, such that abandonment could be presumed (as referred to by Aitken J. above.)

[28] Again, a finding of presumed acquiescence or abandonment would be fact driven in that it would depend upon the degree of obstruction upon the enjoyment of the right of way and its duration.

Overburdening and Non-Contemplated Use of a Right of Way

[29] As referred to in the discussion regarding the scope of an easement, its usage is contextual, reasonably and objectively contemplated. A mere increase in usage is distinguishable from a use of a different kind or for a different purpose. The latter can be of such a magnitude that the rights of the servient tenement to use this land is substantially interfered with and is beyond the scope of the right of way (Granfield v. Cowichan Valley Regional District [1996] B.C.J. No. 261; 1996 356 (BC CA), 71 B.C.A.C. 81, at paras. 45, Malden Farms v. Nicholson, [1956] O.J. No. 616; 1955 117 (ON CA), 3 D.L.R. (2d) 236.

[30] “Overburdening” a right of way by a dominant tenement is closely akin to non-contemplated or excessive use. It is a usage which is destructive of or impairs the use by the servient tenement.

IV. Evidentiary Foundation

Documents

[31] There are numerous documents with respect to the property which had been registered in the Registry System and the Land Titles System. Counsel for the respondents served upon counsel for the applicant, a Notice to Admit pursuant to Rule 51.03 with respect to these registered documents. That request contains two elements, a request to admit the truth and a request to admit the authenticity. If either is refused or disputed, the applicant must set out the specific reasons for the refusal. Otherwise, there is a deemed admission. The underlying purpose of the rule is to economize or rationalize the evidence to be presented.

[32] Counsel for the respondent in this matter combined with the Notice to Admit, notice pursuant to Section 35 of the Ontario Evidence Act R.S.O. 1990 c. E.23 to admit certain records made during the usual and ordinary course of business. This blended notice as it were, would result in certain documents being admissible into evidence as well. Otherwise, documents which are subject to a Notice to Admit are not necessarily admissible into evidence. These documents are still subject to the laws of evidence in terms of admissibility (Canpotex Ltd. v. Graham, [1985] O.J. No. 587; 1985 CarswellOnt 603 (Ont. Supreme Court, High Court); Wunsche v. Wunsche, 1994 548 (ON CA), [1994] O.J. No. 816 CarswellOnt 838 (OCA).

[33] It is also possible that counsel can agree that certain documentation is admissible, as was the case here, with the creation of a two volume document brief. Included in this brief is a Response to the Request to Admit. Reading the Request and Response together one learns the following:

i. Out of the 45 documents submitted by the respondents, Psarakis refused to admit the authenticity of instrument number HR1050456, a transfer from the predecessors in title of the Gonnsen property, i.e. the Joneses to the Gonnsens, but fails to give a specific reason for so doing. Pursuant to the operation of the rule and Section 35 of the Evidence Act, this instrument is admissible. Frankly, this refusal presents as absurd and unnecessarily wasteful of litigation effort.

ii. Psarakis admits on both counts the fact of her offer with respect to the Gonnsen property, May 18, 2007. Regrettably, the production of this documentation and documentation with respect to her purchase of 1418 Ontario Street had to be ordered by Justice Carpenter-Gunn. In any event, all this documentation would be admissible as business records and indeed were made exhibits in the cross-examination of Psarakis on her affidavit.

iii. Psarakis refuses to admit the truth of the Request to Admit that every registration for both the dominant and servient tenement has from the time of its inception referred to the fact of the right of way.

[34] Isolated in this refusal as proof is instrument number 729870. This instrument registered on April 1, 1998 and, is a transfer from Jill Bates to James and Joanne Walker (the predecessors in title to the Gonnsen property). Psarakis claims that the document did not transfer the right of way in question. It is true that the legal description has scratched out a specific reference to the right of way, but the description continues to say “as described in instrument number 633779.” That instrument, an interspousal transfer between Noel and Jill Bates registered January 7, 1986, does in its property description identify or specifically refer to the right of way. Therefore, by its reference to this latter instrument, the impugned instrument number 729870 does in fact refer to the right of way.

[35] Psarakis refers to similar logic to point out when her predecessor in title Jane Carruthers acquired the Psarakis property by instrument number 623036 registered July 25, 1985; the legal description gave Psarakis’ property a right of way over lots 38 and 39. As would be established by the correcting deed that Psarakis’ lawyer insisted upon when she purchased this property, the legal description was erroneous as it in effect made Psarakis a dominant tenement along with the Gonnsen property over the 14 foot of lots 38 and 39, which in fact was owned by Carruthers’ predecessors. In other words, that misdescription blended the two tenements and was offensive to the Planning Act. R.S.O. 1990 c. P.13. Psarakis in the Response to Admit states that the lawyer for Carruthers erroneously referred to the description in instrument number 729870. There was never any proof asserted of this rationale for the error in this process. Furthermore, as mentioned above, 729870 did refer to the right of way correctly by incorporating reference to number 633779.

[36] It is disingenuous to advance this assertion as proof of a lack of reference to a right of way in title, one, because it is not accurate and two, because Psarakis’ lawyer, on her purchase, insisted upon correction before closing of the legal description to include the right of way.

[37] Independent of the comments above with respect to the Response to the Request to Admit, the following documents stand out as germane to the factual analysis which will follow:

a) Instrument number 3013 which as indicated, created in 1909 the right of way over the southeasterly 14 foot over lots 39 and lots 38 “in common with the said party of the first part” (i.e. the grantor, William Kearns, merchant).

b) Instrument number 196046 dated December 6, 1966 is a declaration from Dorothy Helen Angus and Mary Elizabeth Belchamber, widow and daughter respectively of John Arthur Angus, a successor in title to Ephraim Burns with respect to lot 40 (the Psarakis property). The declaration referred to the fact there had always been from August 26, 1919 a wide farm gate at the entrance to the lands subject to the right of way at Braithwaite Lane, for the last five years of that period the gate had been wired shut. The lands had always (with the gate) been enclosed. In the same period, no one exercised nor assumed the right of way. In September 1948, Mary Elizabeth had married and moved out of the residence in which her mother remained.

c) Instrument number H857233 registered on title (Psarakis’ property) August 2, 2007 is a series of documents to facilitate the registration of the Psarakis property in the Land Titles System. The principle document is an affidavit by Todd Christopher Chernecki (unsworn but in keeping with the correspondence and in particular the letter of requisition submitted by solicitor Ralph Ionico, all of which has been accepted as “authentic”) wherein it is stated that an error in the legal description was made when Psarakis’ predecessor in title Carruthers acquired the subject property. The error being that Carruthers acquired the right of way instead of “fee simple” ownership of the land in question. In support of his assertions, solicitor Chernecki referred to instrument number 633779 (referred to above). It was this declaration that led to Psarakis’ property being registered pursuant to the Land Title System.

[38] Additionally, as a result of the Request to Admit and Response thereto, Exhibit 7 to the examination of Psarakis, namely, copies of the documentation filed on behalf of Stella Psarakis to the City of Burlington by her agent G. Griffiths with respect to an application for a plan variation in August 2008, were accepted for its truthfulness and authenticity.

V. Factual Analysis

Stella Psarakis

[41] The applicant’s title to lot 40 and parts of lot 39 and 38, the latter subject to the right of way, is by transfer number HR591820 dated August 2007. Ms. Psarakis did not take immediate possession but allowed the spouse of her predecessor in title, Dr. Carruthers, to continue his medical practice into 2008. As previously mentioned, in order for the applicant to be registered as owner, it was necessary for her solicitor on the purchase to requisition a correcting deed, as her predecessor had received a defective transfer in which she was described as having the right of way as opposed to being subject to the right of way, i.e. Ms. Carruthers was given a transfer/conveyance in which she was a dominant tenement versus the servient tenement.

[42] Psarakis in 2008 started to clear the land in parts of lots 39 and 38. In her affidavit of April 30, 2013, she minimalizes the actual width of this area by describing it as 12 feet versus the 14 feet that has been referred to effectively in every deed and registered plan to date.

[43] In the summer of 2008, Psarakis applied on behalf of her medical practice management corporation, for a minor site variance. She retained as her agent in this process G. Griffiths and Associates. In her application, she describes a practice which is only open at the site two and a half days per week. Exhibit B to her affidavit is the minutes of the Committee of Adjustments of August 18, 2008. In the minutes, her agent, Mr. Griffiths is quoted as saying that “regarding the laneway another neighbour has a legal right to use ‘the laneway’ as well.” This reference to a laneway was also made in the staff report of the Planning Department at page 19 of the document entitled Agenda. Committee of Adjustments August 18th, 2008 (Exhibit 5 to the examination of Psarakis of August 22nd, 2013) which spoke of an existing laneway.

[44] Psarakis deposes that the predecessors in title to the Gonnsens, the Joneses, were not in attendance at the actual Committee of Adjustments meeting. She opines that they would have received notice of the meeting. Her sister, Ms. Vastis, made similar comments. There has been no evidence addressed to establish that the Joneses did receive such notice before this meeting. There is no evidence to counter their assertion that they were out of the country at the time and were not aware of this meeting.

[45] Vastis, the sister, in her own affidavit with respect to this meeting deposes she stated that she “would look into it” with respect to the neighbours, i.e. the Joneses having a “right of way.” There is no evidence as to what this “looking into” consisted of, if anything.

[46] Psarakis deposes in her affidavit at paragraph 10 that one of the conditions imposed by the Committee of Adjustments was that this traffic on the laneway be one way. There is no such reference in the minutes (Exhibit B); there is however, a reference in the follow up communications with the City.

[47] Regrettably, there is no clear cut evidence as to what legal description the City of Burlington had at the time of this application. The material released by Griffiths (Exhibit 7 to the examination of Psarakis) presents as being the same description that Psarakis’ predecessor, Jane Carruthers submitted, which as referred to above was erroneous and Psarakis’ solicitor in her purchase, corrected.

[48] Psarakis deposes generally that her patients are “concerned.” One notes that there is no means of verifying this generalized concern. Psarakis deposes as to a fence across the backyard of the Gonnsen property existing as far back as 1916, without any source references which would aid a person who purchased the property in 2007 to make such a declaration.

[49] Psarakis in her affidavit adds various photographs as evidence of cracks in the asphalt she eventually put down after the Committee of Adjustments meeting in August 2008, caused by “overburdening” by the Gonnsens and their predecessors, the Joneses. One notes that the asphalt in question is not buttressed by any concrete strip or otherwise, to inhibit such cracking, nor is there any direct evidence of causation relative to these users of the Gonnsen property or the patients of Psarakis. Ironically, some of the photographs, for example number 5, reveals a laneway that two vehicles could traverse.

[50] In paragraph 30 of her affidavit of April 30, 2013, Psarakis deposes that her registration under the Land Titles Act does not include the right of way. Presumably, the hope was that the court would not read the documentation to show that there was indeed such a reference (the Parcel Register, Exhibit E to her affidavit states “ST (subject to) ‘r. of w.’”).

[51] The PIN number that Psarakis gives in this paragraph is not referenced in the Parcel Register of Exhibit E. There is a reference to a re-entry from 07082-0118.

[52] Psarakis in paragraph 38 deposes that the Gonnsen usage is different from that contemplated. That determination is actually for the court to decide; whether the usage of laneway was not contemplated in 1909.

[53] Reference has already been made to the deposit, instrument number 196046 dated December 6, 1966, the Angus-Belchamber declaration. As was noted, the daughter Elizabeth Belchamber had moved out of the property on September 11, 1948, so her observations beyond that would be limited. It is hard to imagine that her mother Dorothy was watching this tract of land constantly to see if there were any pedestrians. The declaration itself contains the same formalistic language so much in evidence in that era of conveyancing. That said, it is entirely possible that during this tenure “the laneway” was inert, unused, even though throughout there was a “farm gate.” Interestingly enough, there is no reference in this declaration of trees and undergrowth in the “laneway” area.

[54] In her second affidavit of July 16, 2013, Psarakis acknowledges in paragraph 8 that in May 2007, before submitting an offer on her present property she submitted an offer on the Gonnsen property (then owned by the Walkers who were the immediate predecessors to the Joneses who ultimately sold to the Gonnsens). According to her nobody told her about that property having a right of way, yet the agreement of purchase and sale dated the May 18, 2007, Tab 42, Volume 2 of the document brief, speaks of “ROW of approximately 14 foot across back of property, part lot 39. Pl.74 as in 633779.” Schedule A to this agreement refers to the fact that “The Buyer acknowledges that there is a legal right of way through property approximately 14 foot wide.” This agreement is both signed and initialed by Psarakis.

[55] Psarakis seeks throughout her July 16, 2013 affidavit to portray herself as ignorant of the right of way for the property she ultimately purchased. At paragraph 22, she acknowledges receipt of a reporting letter which was ultimately made Exhibit 1 in her examination which referred to the right of way. The accompanying title insurance made reference to the right of way.

[56] Psarakis would have the court believe that suddenly after she started to develop the property she became aware of the right of way. Her assertions of ignorance, despite her advanced training and intelligence are nonsensical; there is an ample paper trail which demonstrates she knew from early May 2007 when she sought to capitalize upon the right of way in her offer to purchase from the Walkers. She reluctantly admitted during her examination that she was advised of the existence of the right of way by her own lawyer at the time of the purchase.

[57] This examination reveals that she was quite aware of the usage of the laneway by the Joneses after she cleaned out the undergrowth. The Joneses put gravel down on their backyard and starting using the laneway to park in their back yard. The Joneses mounted a sign to keep her patients from parking on their property.

[58] The overall inevitable conclusion based on Psarakis’ affidavits and examination is that she was well informed as to the existence of the right of way from the time before she purchased the property. Notwithstanding this knowledge, Psarakis did not like the existence of the right of way, it “irked her.”

[59] As mentioned there are additional affidavits from neighbours attesting to the increase in traffic over the laneway which used to be overgrown and impassable. Ruth Timney lived on Blaithwaite lane for forty eight years, as did Ms. Dorothy Angus. Would a neighbour be watching this property 24/7? Could the neighbour distinguish between the traffic volume created by the busy Psarakis practice or the clientele of the Gonnsen’s?

[60] Dr. Benjamin Carruthers who operated a medical practice as Psarakis’ property for 22 years makes comments similar to Ms. Timney. The laneway was overgrown. Someone who owned the adjoining (the Gonnsen property) constructed a fence (Jones deposes he tore that fence down).

[61] Graeme Littlejohn is a retired lawyer who shared an office with his wife around the corner from the Psarakis property on Burlington Street. He purchased his property on November 26, 1976. Mr. Littlejohn confirms the overall overgrown nature of the laneway. You could not drive a car down the laneway but you could walk down it.

[62] Employees of Psarakis deposed as to traffic problems incurred in the lane. There were similar dispositions from employees of the Gonnsen’s, namely Simona Nicolescu, Diana Vlasic, Theodor Cymbaly and Robert Walters who actually tried to meet these assertions with the keeping of a log between May 6 and June 25, 2013, which effectively demonstrated there were no such problems.

Roland and Laura Jones

[63] The Joneses were the predecessor owners to the Gonnsens, it was the Joneses who opened up the back yard, removed gates, and took advantage of the laneway being cleared by Psarakis. They, like every other owner, had a solicitor act for them on their purchase of 1422 Ontario Street. The efforts of that solicitor reveal the existence of right of way available to them over the laneway. They had to post signs to keep Psarakis’ patients from parking on their land. This was on or about the same time as the committee adjustment meeting in August 2008, if not before.

[64] The Joneses were ignorant of the committee of adjustment meeting, until after the fact. They were neither contacted beforehand by City representatives nor representatives of Psarakis. There was discussion between neighbours as to whether the traffic would be one way or the other. The Joneses did not care as long as they had access and egress.

[65] What the Joneses attested to was what the Gonnsens purchased; namely access across the laneway with parking in the rear of their property. The multiple listing service spoke of a “rear drive.” The Gonnsen’s solicitor on that purchase confirmed (like every other solicitor) the property had a right of way. That right of way was the deciding factor for the Gonnsen’s as to whether or not to purchase their property. Their property had at one time been a lawyer’s office for Noel Bates. It was a residence for the Joneses. For the Gonnsen’s it was a residence and an office, and possibly an office again in the future. Rear parking is important to them. A one way system would effectively preclude access over the right of way as they would not be able to go in the opposite direction. It was after the Gonnsen’s occupancy in March 2013 that Psarakis erected a gate at the entrance to the laneway from Lot 40, the principle portion of the Psarakis property independent of the laneway. That gate location according to Carl Gonnsen was to prevent Gonnsen from accessing Psarakis’ property to drive out past the Psarakis office onto Ontario Street. That gate effectively allowed the Gonnsen’s to drive in and drive out but not back, depending upon the one way configuration. That gate location, in a way, evidences use of the right of way.

Helen Vastis

[66] Helen Vastis is the sister of Psarakis and as mentioned by herself and by Psarakis in her affidavit and examination. She is a lawyer employed by the City of Hamilton in the legal department. As a result of her employment, Vastis “keeps detailed notes.” Vastis then proceeds to depose as to what her sister had told her before she bought the property, what conversation her sister had had with the Planning Department of the City of Burlington with respect to the use of the rear parking at the Gonnsen property (clearly hearsay!) and what the Carruthers had told her about the condition of the “abandoned” laneway. Vastis encouraged her sister to buy her property as she could expand access to her parking via access to Blaithwaite and so on. Vastis was present during the August 18, 2008 committee of adjustment meeting. She noted that the Joneses were not there. Vastis took it upon herself to say at this meeting that “she was not aware of any neighbours having a right of way over the lands,” (apparently she had not read the agreement of purchase and sale her sister had submitted May 18, 2007). However, Vastis was going to look into this matter. Regrettably Vastis did not make any such effort.

[67] Vastis proceeded to explain why the City of Burlington wanted to stipulate that the laneway be one way.

[68] Vastis became aware of the fact that the Joneses were entertaining selling their home. She engaged in discussions with them with respect to herself entering an offer. The Joneses never mentioned they had a right of way according to her. Vastis submitted an offer which she made Exhibit A to her affidavit. It refers to the Joneses property simply by municipal address. It had absolutely no legal description, nor is it signed.

[69] The obvious intent is that the court will somehow think, “Well, if a City solicitor is going to put in an offer which has no reference to a right of way, then there is no right of way.” Vastis clearly seeks to capitalize upon her role as a City solicitor, that somehow her deposition has more clout than laypersons, such as the respondents. It is unfortunate that they are not related to such a person who could then opine on their behalf. Vastis demonstrates a distinct lack of professionalism.

[70] Vastis became an oath helper for her sister, seeking somehow to venture a de facto legal opinion as to the existence of the right of way. Her assertions of an offer she made without legal description nor signature as proof of the absence of the right of way are nonsensical, contrived, and not credible.

[71] No weight can be safely attached to the deposition of Ms. Vastis.

VI. Factual Conclusions

[72] The original grant of the right of way of 14 feet “was in common with that of the grantor.” A farm gate was mounted at the Braithwaite lane entrance. A farm gate is wide enough to allow the passage of implements. The right of way was for the purpose of allowing access and egress by the dominant tenement (the predecessors of the Gonnsens) on a par with that of the servient tenement (the predecessors of Psarakis).

[73] In 1909, there were motor vehicles. A lot of them were vehicles which were made by persons who were originally “carriage makers.” The volume of vehicular traffic was such that by April 16, 1912, an Act to Regulate the Speed and Operation of Motor Vehicles on Highways (the Motor Vehicle Act of Edward VII a.S.1.s.1) was proclaimed. That act was in play at the time Dorothy Angus deposes there was a farm gate where it was from at least 1919 onwards. The “laneway” was enclosed by the farm gate and fencing over the years. No doubt it did become overgrown and fallow. No-one utilized the right of way, neither dominant or servient tenement had occasion to use it as a “laneway.”

[74] That being said the right of way was always referred to in the conveyances of either tenement. Given the sophistication of real estate transaction, that inclusion is not without consequence. Each purchaser wanted exactly what their predecessors had. Neither tenement relinquished or abandoned their rights to this right of way.

[75] Psarakis was a purchaser with notice as Salhany J. described. She was actually an experienced purchaser with notice as she had sought the purchase the Gonnsen property complete with the right of way before she purchased the property she enjoys today.

[76] Psarakis cleared the laneway for her own purposes, the Joneses/Gonnsens followed suit. They wanted to use and enjoy what Psarakis had, a right they had “in common.” Psarakis activated the use which was well within the contemplation of the original parties, who contemplated by the legal descriptions and the physical dimensions and location a “laneway” for access and egress. There is no inconsistent or excessive use which extinguishes the right. If anything Psarakis’s use of providing access for her patients is greater than that of the Gonnsen’s. The servient tenement (Psarakis) activated the laneway, created a volume, and the dominant tenements joined in.

[77] There is no evidence that the dominant tenement created the cracks in the asphalt. Common sense would lead one to think that if the asphalt was not shored up there is a risk it would be stressed. If anything, given the greater vehicular volume, the servient tenement probably caused the “overburdening.”

[78] The City of Burlington’s stipulation as a result of Psarakis’s application for a minor variance cannot bind or impact the right of the Gonnsen’s to their right of way. There is no evidence that the Joneses or their predecessors received proper notice. The minutes of the committee of adjustment clearly reveals that the City was not sure about the existence of the rights of the dominant tenement. The representatives of the servient tenement, Mr. Griffiths and Ms. Vastis were unsure. Vastis promised to “look into it” and never did.

VII Consequential Orders

[79] For the above reasons the Application is denied and the following orders are made:

This Court declares that the right of way created by instrument number 3013 on February 3, 1909 is a valid and subsisting right of way which has not been extinguished.
The order of Nightingale J. of August 28, 2014 enjoining the applicant from causing, or placing anything constructed or otherwise which would interfere, impede, or restrict the exercise of the right of the way of the respondents, their employees, tenants, invitees or guests of the right of way referred to in order number 1 above shall continue and be the order of this Court.
If the parties are unable to agree as to the entitlement and the quantum of costs within 30 days of this judgment, written submissions are to be exchanged and filed with the court, of a length not exceeding five pages excluding the bill of costs and costs outline.

Whitten, J.

Released: January 16, 2015

CITATION: Stella Psarakis Medicine v. Catharine and Carl Gonnsen, 2015 ONSC 25

COURT FILE NO.: 13-41075

DATE: 2015-01-16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Stella Psarakis Medicine Professional Corporation

Applicant

and –

Catharine Gonnsen and Carl Gonnsen

Respondents

REASONS FOR JUDGMENT

ACRW(vt)

Released: January 16, 2015

Stella Psarakis Medicine Professional Corporation v. Catharine Gonnsen and Carl Gonnsen, 2015 ONSC 25

Case Summary

CITATION: Stella Psarakis Medicine v. Catharine and Carl Gonnsen, 2015 ONSC 25

SUPERIOR COURT OF JUSTICE

REASONS FOR JUDGMENT

I. Introduction

II. Issues

III. Applicable Law

A: The nature of right of ways and an approach to interpretation

B: The Behaviour of the Tenements and the Impact upon the Existence of a Right of Way

IV. Evidentiary Foundation

V. Factual Analysis

VI. Factual Conclusions

VII Consequential Orders

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