ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-193-00
DATE: 201508

BETWEEN:

Robert Spence and Anne Spence

Applicants

– and –

John Dennis Wayne Laverdure,
Barbara Anne Laverdure,
Paul D. Beseau, W. Brent Collette
and Collette Surveying Ltd.

Respondents

Colin Wright, for the Applicants

James L. McDonald, for the Respondents

Heard: April 9, 2015 at Kingston

RULING ON MOTION

QUIGLEY, J

[1] The Applicants are seeking the following relief from the Court:

1.1 As against the respondents Joseph Dennis Wayne Laverdure and Barbara Anne Laverdure (“the Laverdure Respondents”), an order:

1.1.1. declaring that the Laverdure Respondents have no interest in the property owned by the Applicants described in Schedule “A” attached hereto (“remainder of the property”), other than the interest shown in Schedule “A”;

1.1.2. that the notice under section 71 of the Land Titles Act, R.S.O. 1990, c.L.5, registered on behalf of the Laverdure Respondents on May 14 2012 as instrument FC136610 against the remainder of the property (“the notice”) be deleted;

1.1.3. amending the thumbnail description in Parcel Register 36323-0013 (LT) (the parcel register for the Laverdure Respondents) to read as follows:

PT LT 17 CON NORTH RANGE HOWE ISLAND as in FR359818, T/W 704039;

1.1.4. granting the Applicants their costs of these proceedings, including any costs which may be awarded against them as a result of their abandoning the relief requested in paragraph 1.2; and

1.1.5. granting the Applicants such further and other relief as to this Honourable Court may appear just.

1.2 In the alternative, as against the respondent Paul D. Beseau (“Beseau”) and both the respondents W. Brent Collett and Collett Surveying Ltd. (“the Collett respondents”), an order:

1.2.1. that Beseau and the Collett defendants are liable for failing to duly notify the applicant Robert Spence (“Mr. Spence”), in his capacity as president of 548740 Ontario Limited (“the 548 company”), that the Laverdure Respondents had an interest in the remainder of the property other than a right-of-way over Parts 2 and 6 Plan 13R 14172 and, in particular, that the Laverdure Respondents had a 66-foot right-of-way running to the St. Lawrence River over Part 7 Plan 13R 14172;

1.2.2. that there be a trial of the issue of the quantum of the damages suffered by the Applicants, as the non-arms-length successors of the 548 company, as a result of the liability described in paragraph 1.2.1;

1.2.3. granting the Applicants their costs of these proceedings, including any costs which may be awarded against them as a result of their failure to prevail in the relief requested against the Laverdure Respondents; and

1.2.4 granting the Applicants such further and other relief as to this Honourable Court may appear just.

[2] This Application proceeded only against the Laverdure Respondents, John Dennis Wayne Laverdure and Barbara Anne Laverdure, and this decision relates only to the Applicants and to the Laverdure Respondents.

[3] The Applicants own Part 1 Plan 13R14172 (“the Spence property”). Part 7 describes the approximately 300 feet of waterfront they have on the St. Lawrence River.

[4] The Spence property has the Property Identifier Number (PIN) 36323 and is illustrated on the electronic map attached at Page 43 of the Application Record of the Laverdure Respondents. The same map also illustrates the adjoining property which is owned by the Laverdure Respondents and which has PIN 36323-0013 (the Laverdure property).

[5] In the early 1960s both the Spence property and the Laverdure property were owned by Howe Island Development Company Limited (“the Development Company”).

[6] The Development Company had planned to build a hotel and golf course, and to sell off water lots on the St. Lawrence River as well as interior lots behind the water lots.

[7] Between 1961 and 1965 the parents of the Respondent Joseph Laverdure acquired an interior lot under a long term agreement of purchase and sale. They received a deed in 1965 (“the 1965 deed”).

[8] The Development Company had two competing proposals for giving the interior lots access to the St. Lawrence River. One plan was simply to grant them a 66-foot-wide right-of-way over an undetermined portion of Part 7, which was about 300 feet wide. This plan was embedded in the 1965 deed, which reads materially:

TOGETHER WITH a right-of-way 66 feet perpendicularly wide, to and from the herein described parcel of land and the Main Township Road and the St. Lawrence River [“the unsurveyed grant of right-of-way”]

The Laverdure Affidavit, para. 21, Application Record of the Laverdure Respondents, Tab 1;

The Tchegus Affidavit, Exhibit “N”, Application Record of the Laverdure Respondents, Tab 2-N;

The Collett Affidavit, Exhibit A & D, Application Record of the Collett Respondents, Tabs A & D

[9] The Development Company's second plan for giving the interior lots water access involved the whole of Part 7. It would become a “communal waterfront land and water access [,] ... essentially a waterfront lot that was not going to be sold or developed and would remain as vacant land and a green space.” The second plan was embodied in at least four unregistered surveys made during the 1906s – one as late as 1969 – and all of which show Part 7 being treated as a single unit with no right-of-way over a portion of it.

The Laverdure affidavit, paras 7 – 10, Application Record of the Laverdure Respondents

The Tchegus affidavit, Exhibit N, Application Record of the Laverdure Respondents

The Collett affidavit, Exhibits A, B, C & D, Application Record of the Collett Respondents

[10] In 1970 the Development Company sold the Spence property, with other lands, to Ernst Wilhelm Tiedemann and Sofie Marie Tiedemann. That deed did not indicate it was subject to the unsurveyed grant of right-of-way across Part 7. Although the deed did describe other rights of way to which the Spence property was subject, it did not include the Laverdure property.

[11] In 1978 Ernst Tiedemann and Sophie Tiedemann transferred the Spence property, with other lands, to Ernst Tiedemann (“Mr. Tiedemann”). In 1998 Mr. Tiedemann sold the Spence property, with other lands, to 548740 Ontario Inc. (“the 548 company”). Both deeds included the whole of Part 7, but did not indicate it was subject to the unsurveyed grant of right-of-way. The 548 company was controlled by the applicant Robert Spence (“Mr. Spence”).

The Tchegus Affidavit, paras 15 & 24, Application Record of the Laverdure Respondents, Tab 2.

[12] The Laverdure Respondents registered their parents' deed in June 1982 as instrument FR359817. They obtained a deed for the Laverdure property from the senior Laverdures which was registered in June 1982 as instrument FR359818 (“the 1982 deed”). They also obtained a Quit Claim for the Laverdure property from Mr. Tiedemann which was registered in November 1983 as instrument FR381486 (“the 1983 deed”).

[13] With respect to the right-of-way, both the 1982 deed and the 1983 deed simply repeated the wording for the unsurveyed grant of right-of-way in the 1965 deed.

The Tchegus affidavit, paras 11 & 12, and Exhibits “D”, “E” & “F”, Application Record of the Laverdure Respondents, Tabs 2, 2-D, 2-E & 2-F.

N.B. Exhibit “D” is clearly meant to be a copy of the 1965 deed as registered as instrument FR359817. Apparently through inadvertence, it is a copy of the 1983 deed, so that Exhibits “D” and “F” are, in fact, identical.

[14] After 1982, the Laverdure Respondents did begin to make use of some of Part 7. According to the Respondent, Joseph Laverdure,

[S]ince acquiring title to the Laverdure Property in June 1982…our principal use… has been to use the right-of-way to access the area that was intended as communal land and from it gain access to the St. Lawrence River. … The actual area of where [sic] one might access the waterfront after leaving the travelled laneway is very defined. … we have used this area of land a [sic] launching point for access to the St. Lawrence River. Over the years we and our guests have launched canoes from the area of access to the water and have also travelled across the area in winter with skidoos. … our use has been consistent and uninterrupted throughout the years. …Our use of the land and the roadway that leads to it has always been in an open and notorious manner.

The Laverdure Affidavit, paras 25, 27, 29, 30 & 31. Application Record of the Laverdure Respondents, Tab 1.

[15] In 1998 the 548 Company paid $75,000.00 for the Spence property, as well as other lands.

[16] Before the purchase Mr. Spence inspected the property and a sketch of the property. He knew that the lot of the Laverdure Respondents existed, and that it enjoyed a right-of-way to the public road where the 548 company was buying. However, he deposes that he had no idea that the Laverdure Respondents were claiming that a right-of-way ran over an undetermined portion of Part 7. There was no mention of the unsurveyed grant of right-of-way in the deed that the 548 company received and no sign of it on the ground.

[17] The Applicants claim that they did not learn of the Laverdure claim until after their purchase transaction closed.

[18] The Applicants claim that their lawyer, Paul Beseau reported to them that the property came subject to a right-of-way over other parts of Plan 13R-14172 but Part 7 was not mentioned. Similarly, the Applicants claim that surveyor, Collett respondent who prepared Plan 13R-14172, noted on it that other parts were subject to a right-of-way, but Part 7 was not mentioned.

[19] In 2001, the Spence property with other lands, was transferred to Mr. Spence. In July 2010, it was transferred to the Applicants and assigned PIN 36323-0124.

[20] In 2012, the Laverdure Respondents registered a notice against the Spence property and the Laverdure property under section 71 of the Land Titles Act R.S.O. 1990 Chapter L.5, claiming an unregistered interest in the Spence property pursuant to the 1982 deed.

Issues and Law

[21] The Applicants claim that the unsurveyed grant of right-of-way over Part 7 contained in the 1982 deed and/or the 1983 deed is rendered invalid as against the 548 Company by section 23 of the Registry Act R.S.O. chapter 445.

[22] It is submitted by the Laverdure Respondents that, in order for the Applicants to avail themselves of section 23(2), they must satisfy the Court:

(i) that they did not have actual notice of the Laverdure Respondents’ right-of-way; and

(ii) that the description of the right-of-way in the Quitclaim Deed is not a “local description” as understood by the Act.

For the reasons that follow, the Applicants cannot succeed on either issue.

[23] Section 23 of the Registry Act, R.S.O. 1980, chapter 445 reads materially:

23. (1) In this section, “easement”…[includes a] right of way… .

(2) … An instrument purporting to convey an easement, made after the 1st day of January, 1967, does not, as against a bona fide purchaser who, for valuable consideration and without actual notice, purchases the servient tenement after registration of the instrument, convey to the grantee any interest in the easement unless a local description of the affected part of the servient tenement is contained in the instrument by which the conveyance is made.

[24] Given the failure of the intended development, by the late 1970s Joseph Laverdure’s parents no longer intended to develop the Laverdure property and offered it to their son. Thereafter steps were taken by the Laverdure Respondents to have the unregistered deed properly registered and the lot conveyed into their names, namely:

(i) the Laverdure property was created pursuant to a Transfer/Deed of Land registered on June 15, 1982 as Instrument No. FR359817, from Howe Island Development Company Limited to Lynus Gordon Laverdure and Catherine Laverdure, as Joint Tenants (“the Originating Deed”); and

(ii) that same day, Lynus Gordon Laverdure and Catherine Laverdure, as Joint Tenants, conveyed the Laverdure property to the Laverdure Respondents by way of a Transfer/Deed registered as Instrument No. FR359818 (the “Laverdure Deed”).

Laverdure Affidavit, Laverdure Responding Application Record, Tab 1, p. 5 to 7, at paras. 17 to 24

Tchegus Affidavit, Laverdure Responding Application Record, Tab 2, p. 27 at paras. 7 to 12

[25] Both Instrument Nos. FR359817 (i.e., the Originating Deed) and FR359818 (i.e., the transfer to the Laverdure Respondents) contain a metes and bounds account of the land conveyed and the following description:

TOGETHER WITH a right-of-way 66 feet perpendicularly wide, to and from the herein described parcel of land and the Main Township Road and the St. Lawrence River.

Originating Deed, Exhibit “D” to the Tchegus Affidavit, Laverdure Responding Application Record, Tab 2-D, p.47

Laverdure Deed, Exhibit “E” to the Tchegus Affidavit, Laverdure Responding Application Record, Tab 2-E, p. 55

[26] Owing to the fact that the Howe Island Development Company had transferred its ownership interest in the lands subject to the right-of-way, the Laverdure Respondents also sought and obtained an acknowledgement of their interest from Ernst Wilhelm Tiedemann and Sofie Marie Tiedemann. In the result, a Quitclaim Deed was registered on June 16, 1983 as Instrument No. FR381486, providing in part as follows:

… he the said Party of the First Part hath granted, released and quitted claim and by these presents DOTH GRANT, RELEASE AND QUIT CLAIM unto said Party of the Second Part, his heirs, executors, administrators, successors and assigns forever;

All the estate, right, title, interest, claim and demand whatsoever both at law and in equity or otherwise however and whether in possession or expectancy of him the said Party of the First Part of, in, to or out of

THOSE lands and premises located in the following municipality, namely…

TOGETHER WITH a right-of-way 66 feet perpendicularly wide, to and from the herein described parcel of land and the Main Township Road and the St. Lawrence River.

Laverdure Affidavit, Laverdure Responding Application Record, Tab 1, p. 5 to 7, at paras. 17 to 24

Tchegus Affidavit, Laverdure Responding Application Record, Tab 2, p. 28 to 30 at paras. 15 to 23

Quitclaim Deed, Exhibit “F” to the Tchegus Affidavit, Laverdure Responding Application Record, Tab 2-F, p. 63

[27] The reason for the Quitclaim Deed from the Tiedemanns to the Laverdures (i.e., Instrument No. FR381486) was to expressly confirm and recognize a 66 foot right-of-way to the St. Lawrence River. It also had the effect of avoiding any controversy related to the fact that the Originating Deed, that is the transfer to the Laverdures’ parents, was transacted by a cancelled or inactive corporation.

Tchegus Affidavit, Laverdure Responding Application Record, Tab 2, p. 30, at para. 23

[28] Since acquiring title to the Laverdure property in June 1982, the Laverdure Respondents have used the right-of-way for access to the St. Lawrence River, including launching canoes and traversing the area in the winter with skidoos. Prior to that, the Laverdure Respondents had attended on Howe Island for country drives and picking apples in the general area of the Laverdure property and in so doing made use of the right-of-way.

Laverdure Affidavit, Laverdure Responding Application Record, Tab 1, p. 5, 7 to 9, at paras. 18, 25 to 34

[29] The Applicant Robert Spence is the president of 548740 Ontario Ltd.

The Affidavit of Robert Spence, sworn May 7, 2014 (the “Spence Affidavit”), Application Record, Tab A, at para. 2

[30] In 1997 the then owner of the Spence property, Ernest Tiedemann, entered into an Agreement of Purchase and Sale with 548740 Ontario Ltd. The property was described in the Agreement of Purchase and Sale, in part, as follows:

North Range Howe Island, Part Lot 17, right of way to river through property, property also to include waterfront on Johnson Bay

Agreement of Purchase and Sale, Exhibit 1 to the Spence Affidavit, Application Record, Tab A-1

[31] Robert Spence, on behalf of 548740 Ontario Ltd., acknowledges he was aware of the Laverdure property at the time of the purchase, but now denies any knowledge that the Laverdure Respondents had a right to access to the St. Lawrence River.

Spence Affidavit, Application Record, Tab A, para. 4 to 6

[32] By Instrument No. FR676923, being a Transfer/Deed of Land registered on February 5, 1998, Ernst Wilhelm Tiedemann conveyed title to the Spence property to 548740 Ontario Ltd. for consideration of $75,000.00 (the “Corporation's Deed”). The description of land in the Deed reads, in part, as follows:

Part of Lot 17, in the North Range of Howe Island, …shown as Parts 1 to 7 inclusive on Reference Plan 13R-14172. Subject to a right of way over Parts 2 and 6 on Plan 13R-14172.

As (sic) previously described in the remainder of 306933

Tchegus Affidavit, Laverdure Responding Application Record, Tab 2, p. 31, at para. 24

Corporation’s Deed, Exhibit “H” to the Tchegus Affidavit, Tab 2-H, p. 81

[33] The Spence property and Laverdure property were converted to the Land Titles Act Conversion Qualified land registry system effective September 21, 2009. At the time of the purchase by 548740 Ontario Ltd. the property was in the Registry Act system of land registration.

Tchegus Affidavit, Laverdure Responding Application Record, Tab 2, p. 27, at para. 8

Spence Property PIN, Exhibit “L” to the Tchegus Affidavit, Tab 2-L, p. 93

[34] There is no dispute that the present day Spence property (formerly owned by the Tiedemanns who received it from the Howe Island Development Company) shares the same root of title as the Laverdure property, being Instrument No. FR137955 and being a deed registered on June 5, 1962 in favour of the Howe Island Development Company.

Tchegus Affidavit, Laverdure Responding Application Record, Tab 2, p. 28, at para. 13

[35] Given the Deeds referred to herein, in my view there can be no dispute that a forty-year search under the Registry Act, extending back to February 1958 would reveal the existence of the right-of-way enjoyed by the Laverdure property.

Laverdure Affidavit, Laverdure Responding Application Record, Tab 1, p. 9, at paras. 35 to 37

[36] In this proceeding Robert Spence, on behalf of 548740 Ontario Ltd., has denied any knowledge in 1997/1998 of the Laverdure Respondents' right-of-way. It is difficult to reconcile this evidence with the Agreement of Purchase and Sale entered into by 548740 Ontario Ltd. where it expressly cautions that there is a “right of way to river through property” (emphasis added).

Agreement of Purchase and Sale, Exhibit 1 to the Spence Affidavit, Application Record, Tab A-1

[37] While acknowledging he viewed a sketch of the property which depicts the only water frontage included with the property (i.e., now described as Part 7 on Plan 13R1417), Robert Spence nevertheless denies any knowledge that a right of way extended “to the river”. In effect, Robert Spence is admitting knowledge of the right-of-way enjoyed by the Laverdure property (as it is an island in the middle of the Spence property), but denying the full extent of the right-of-way.

[38] I find there is no issue that Robert Spence was informed by the Laverdure Respondents of the existence of the right-of-way to the St. Lawrence River, following the purchase of 548740 Ontario Ltd., and prior to his acquisition of the property in June 2001. With this knowledge Robert Spence took title to the Spence property personally in June 2001, and subsequently with his wife Anne Spence in July 2010.

Laverdure Affidavit, Laverdure Responding Application Record, Tab 1, p. 9 and 10, at paras 35 to 39

[39] With knowledge of the history of the creation of the Laverdure property, I find that common sense dictates that the Tiedemanns and 548740 Ontario Ltd. would expressly note a “right of way to river through property” in the Agreement of Purchase and Sale because the Quitclaim Deed had been registered on title after registration of the Tiedemann Deed. As such, the sketch included with the Tiedemann Deed, which Robert Spence believes he viewed, was an incomplete picture of the easements affecting the Spence property.

[40] The Laverdure Respondents submit that the Agreement of Purchase and Sale is sufficient notice of their interest in the Spence property and that section 23(2) of the Registry Act is therefore not applicable.

[41] What is actual notice? The conclusions of Justice Aitkens in Bison Realty Ltd. v. Athersych, [1998] O.J. 2358 paras 61 to 92 were subsequently affirmed by the Ontario Court of Appeal, who wrote at paragraph 3 of their decision:

With respect to the grounds of appeal raised by the appellant, it is our view that the reasoning and conclusions of the trial judge regarding the interpretation of s. 15 of the Conveyancing and Law of Property Act R.S.O. 1990, c. C.34 and s. 26 of the Registry Act R.S.O. 1990, c.R.20 and the doctrines of extinguishment and abandonment were correct.

Bison Realty Ltd. v. Athersych, [2000] O.J. No. 1229 (C.A.) at paragraph 3

[42] At paragraphs 67, 70 and 71 in Bison Realty, Justice Aitkens wrote, in part, as follows:

Although the meaning of s. 26(2) of the Registry Act was not specifically canvassed in Jansons v Iwanczuk (1991), 17 R.P.R. (2d) 308 (Ont. Gen. Div.), one assumes from the result arrived at in that case by Boland J. that she considered the registration of a document within the 40-year search period containing a description of a right of way affecting the servient tenement “actual notice” of this right of way to subsequent purchasers even if they had not received actual notice of its existence from any other sources or observations.

The case of Van Leeuwen v. Kuzenko, [1994] O.J. No. 42…also stands for the proposition that registration of an instrument containing a description of a right of way equals “actual” notice to anyone claiming an interest in the servient tenement subsequently…

In summary, the Order of Hurley J. established a right of way over all or at the least all but the most northerly 18.7 feet of Part 3 on Plan 13R-6650. Numerous deeds registered subsequent to this Order confirmed this right of way. In fact the deed to Athersych’s predecessor on title referred to a right of way over all of Part 3. All of these documents were registered on title well within the 40 year chain of title. Pursuant to section 74(1) of the Registry Act, their registration is assumed to have given notice to subsequent purchasers of the existence of this right of way and I conclude that such notice is included under the term “actual notice” in section 26(2) of the Registry Act.

Bison Realty Ltd., supra, at paragraphs 67, 70 and 71

See also Khamsi v. Meredith, [1988] O.J. No. 1775 (District Ct.)

[43] There is no dispute in the present proceeding that a Quitclaim Deed was registered on June 16, 1983 as Instrument N. FR381486 by 548740 Ontario Ltd.’s immediate predecessor in title to the Spence property, Ernst Tiedemann. This registration was well within the 40 year chain of title, given that the 548 company acquired the property on February 5, 1998. Pursuant to the statement of law in Bison Realty, supra, which was affirmed by the Court of Appeal, 548740 Ontario Ltd. had actual notice of the Laverdures’ easement.

[44] With respect to the Laverdure Respondent’s further claim, while not necessary to decide the matter given the registered Quitclaim Deed and the holding in Bison Realty, supra, it should also be noted that the registration of Instrument Nos. FR359817 (i.e., the Originating Deed from Howe Island Development Company) and FR359818 (i.e. the Laverdure Deed), are themselves sufficient notice to 548740 Ontario Ltd. (and, indeed, the present Applicants). See for example Jacuniak v. Tamburro where Justice Quinn concludes at paragraph 28 to 30 as follows:

The authorities consistently say that registration of a right of way on the servient tenement is unnecessary. Registration on the dominant tenement is sufficient to satisfy s. 69(1) of the Registry Act (now s. 70(1)).

The 1973 deed of the servient tenement to Pierrette Williams contained the words: SUBJECT TO A RIGHT OF WAY at all times in common with all others now or hereafter entitled thereover, along and upon the lands as hereinbefore described.” This is more than enough notice to a title searcher that there is an easement in the neighbourhood.

Even if it can be said that the right of way at bar was vaguely described in the 1973 conveyance of the servient tenement, this cannot be material because, to be valid, the right of way need not be mentioned at all.

Jacuniak v. Tamburro, supra, at paragraphs 22 to 30

[45] Given that the Applicants (and their predecessor in title 548740 Ontario Ltd.) had actual notice of the Laverdure right-of-way it is not necessary to consider the issue of “local description”.

Lywood et al. v. Hunt (2009), 2009 25312 (ON SC), 97 O.R. (3d) 520 (S.C.J.), at paragraph 25, aff’d 2011 ONCA 229

[46] That said, the treatment of “local description” in the Applicants’ Factum merits comment.

[47] Section 1(j) of the Registry Act defines “local description” to mean “a description of land drawn in accordance with the regulations”. As noted in Jacuniak v Tamburro, supra, this essentially means that a local description is merely a registerable description.

Jacuniak v. Tamburro, supra, at paragraphs 20

See also Van Leeuwen v. Kuzenko, supra, at paragraphs 25 and 26

[48] The regulation applicable in the present circumstances, being Regulation 898, R.R.O. 1980, sets out the requirements for the description of land at section 54. These requirements are tempered by section 57, where the regulation allows the Registrar discretion to accept a plan or register an instrument that does not strictly comply with the requirements of section 54, and thereby deems it a “local description”.

Registry Act, Regulation 898, R.R.O. 1980, s. 57

[49] The Registrar having accepted Instrument Nos. FR359817 (i.e., the Originating Deed), FR359818 (i.e., the Laverdure Deed) and FR381486 (i.e., the Quitclaim Deed), and not stamping the deeds as containing a legal description that does not comply with the regulations, I find that it is readily apparent that the Instruments were in fact accepted for registration and are therefore deemed a local description by section 57 of Regulation 898.

[50] The arguments put forward in the Applicants’ Factum amount to an assertion that, in order for the right-of-way described through registered Instrument Nos. FR359817 (i.e. the Originating Deed), FR359818 (i.e., the Laverdure Deed) and FR381486 (i.e., the Quitclaim Deed), to have any present-day impact on the Spence property, the Laverdure Respondents were required to have obtained a survey describing the easement. An “unsurveyed grant of right-of-way over Part 7”, the Applicants’ maintain, is rendered invalid by operation of section 23 of the Registry Act.

[51] No such requirement is found in the Registry Act, and indeed, the Applicant’s position is inconsistent with the Regulations under the Act and past judicial treatment of “actual notice” and “local description” under section 23(2). By registration of the Quitclaim Deed, 548740 Ontario Ltd. had actual notice of the right-of-way and a local description that complied with the Act.

[52] The Applicants’ complaints are more accurately characterized as an attack on the validity of the grant of easement and a suggestion that it is impermissibly vague and indefinite such that the Court cannot give effect to it. However, the Applicants’ position does not find support in the jurisprudence and has been expressly rejected by the Ontario Court of Appeal in very similar circumstances.

[53] In Jacuniak v. Tamburro, supra, at paragraph 19, Justice Quinn states: “The description is sufficient if it shows ‘the place of commencement and the place of ending of the right of way and defines its width'”.

[54] In Pharand v. Jean-Louis the Ontario Court of Appeal considered the effect of a right-of-way purportedly giving access to water. The facts involved the division of a farm property in two. The servient tenement was a parcel of land severed from the dominant tenement such that the dominant tenement reserved:

…a right of way fifty feet in width from the division line between the North Half and the South Half of said Lot Number Forty One to a spring of water situate at the distance of about five acres from the West side of said John Street, said right of way to be used by the said Grantor and his assign as owners or occupants of the South Half of said Lot Forty-one.

Pharand v. Jean-Louis, 1952 114 (ON CA), [1952] O.J. No. 455 (C.A.), at paragraph 1

[55] It was argued before the judge of first instance that “the original grant of the right of way… was not sufficiently definite to make the right enforceable”, which was rejected. On appeal, Laidlaw J.A., for the Court, upheld the decision stating as follows:

It was argued lastly that the language in the deed containing the reservation to the grantor and his assigns of the right of way in question was so vague and indefinite in description that the Court cannot properly give effect to it. That argument also fails. The description of the right of way shows sufficiently the place of commencement and the place of ending of the right of way and defines its width. It runs over a strip of land 50 feet in width in a direct course from the dividing-line between the appellant’s and the respondent’s lands to the spring situate on the appellant’s land. I think that the right of the respondent extends also to the reasonable use of the spring for farm purposes.

Pharand v. Jean-Louis, supra, at paragraphs 16 and 26

[56] The description of the right-of-way in the present circumstances is no different from that approved by the Court of Appeal in Pharand v. Jean-Louis, supra. The description provides for the place of commencement and end (the “Main Township Road and the St. Lawrence River”) and also defines its width (being “66 feet”).

[57] While a consideration of “local description” is not necessary in the present circumstances given the Applicant’s actual knowledge, the description of the right-of-way is nonetheless proper and effective.

The Laverdure’s Prescriptive Easement

[58] The Respondent John Dennis Wayne Laverdure stated as follows:

I recall from discussions at the time with my wife, and also on information conveyed to me by Barbara in advance of swearing this affidavit, that she spoke with the owner of the Spence Property in 1998 shortly after learning of the sale of the property. We had heard of the sale through our neighbours on the island and that the Applicant Robert Spence owned the property. My wife called Mr. Spence to inquire whether he was interested in purchasing the Laverdure Property and our right-of-way entitling us to access the St. Lawrence River. My wife proposed the price of $34,000.00 which was the assess [sic] value assigned to the property for real property tax purposes. My wife has advised me and I believe it to be true that the call was not a pleasant one. Mr. Spence’s tone was very rude as he advised her we “didn’t own anything”.

Laverdure Affidavit, Laverdure Responding Application Record, Tab 1, p.9, at para. 38

[59] Given the above, the only evidence now before the Court in opposition to the Laverdure Respondents’ use of the property and right-of-way to access the St. Lawrence River is a statement that the Laverdure Respondents do not “own anything”. The fact that Robert Spence did not believe the Laverdure Respondents owned certain property in 1998 has little, if anything, to do with the Laverdure Property’s prescriptive rights.

Decision

[60] For the above reasons, the Application against the Laverdure Respondents is dismissed.

[61] If the parties cannot on agree on costs, submissions may be made to me at my Brockville chambers, not to exceed two typewritten pages, on or before September 30, 2015.

The Honourable Mr. Justice M. Quigley

Released: August 6, 2015

COURT FILE NO.: CV-14-193-00
DATE: 06 Aug 2015

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

Robert Spence and Anne Spence

Applicants

– and –

John Dennis Wayne Laverdure,
Barbara Anne Laverdure,
Paul D. Beseau, W. Brent Collette
and Collette Surveying Ltd.

Respondents

RULING ON MOTION

Quigley, J.

Released: August 6, 2015