Stinson J.

Introduction

[1] In 2012, Emil and Sophia Mihaylov bought a commercial waterfront property fronting on Sturgeon Lake, in the Kawartha Lakes region of Ontario. (For ease of reference I will call it "Parcel A".) Parcel A adjoins a property owned by 1165996 Ontario Limited (“Parcel B”). Parcel B has no lake access.

[2] For almost 50 years, a galvanized water pipe buried beneath Parcel A has supplied water from Sturgeon Lake to Parcel B. The pipe crosses Parcel A along its entire length, from the lake to Parcel B.

[3] In 2014 the pipe sprang a leak. The owner of 116, Donald Abel (who runs a general store, trailer park and cottage rental business on Parcel B) tried to fix it. He was unable to do so because a mobile home structure on Parcel A had been placed above the buried pipe in the vicinity of the leak. To solve the problem, Mr. Abel ran a PVC pipe, above ground, across Parcel A, from his land to the lake.

[4] Mr. Abel did not obtain permission from the Mihaylovs before he went onto their land to attempt the repair and to run the PVC pipe. He says he was unable to contact them.

[5] The Mihaylovs objected to Mr. Abel's conduct. They complained that he trespassed on their land. They want the PVC pipe removed. However, Mr. Abel says that 116 has an easement over Parcel A that allows it to run a water pipe to the lake.

[6] The Mihaylovs dispute the validity of 116’s easement. They have come to court seeking a declaration that they are right. 116 and Mr. Abel ask the court to declare that the easement is valid.

[7] Their dispute raises two basic issues. The first is whether a series of legal documents signed by various owners of the two parcels at various times in the past had the effect of creating an easement. The second issue is whether the easement remains valid. I will expand on these topics below.

Ownership history and legal documents

[8] Over the past 50 years a series of land transactions and legal documents have affected the ownership of the lands and the water pipe easement. Not all are relevant to the current dispute. I will set out below the ones that are.

(1) The 1966 document

[9] In approximately 1966 the then-owners of Parcel A and Parcel B agreed in writing (the "1966 Document") to permit the owner of Parcel B to install a water line across Parcel A to draw water from the lake. The galvanized water pipe (that has now failed) was installed as a result.

[10] The 1966 Document was never registered on title to either parcel. It cannot be located and thus was not in evidence.

(2) The 1968 Document

[11] In 1968, the then-owners of Parcels A and B signed a document (the “1968 Document") by which they agreed that the water pipe could be “left in its present position” and the owners of Parcel B would be permitted to draw water from the lake.

[12] The 1968 Document contained the following features:

a) the owners of Parcel B had the right to enter onto Parcel A to make any repairs to the pipe, provided that they would repair any damage done to Parcel A as a result;

b) the owners of Parcel B were to pay $10 annually “in each and every year during the currency of this agreement."

c) it did not purport to be binding on successors and assigns.

[13] The 1968 Document was not registered formally against title to Parcel A. It was, however, deposited in the Registry Office where it was referable to Parcel A.

(3) The 1979 Document

[14] By 1979 there were new owners for each of Parcel A and Parcel B. In 1979 the then-owners signed a document entitled "Water Pipe Easement" (the "1979 Document"). The 1979 Document referenced the 1968 Document and mentioned that it “granted a water pipe easement" over Parcel A.

[15] The 1979 Document contained the following features:

a) "if [the owners of Parcel B] should have to enter on [Parcel a] to make any repairs which the [owners of Parcel A] agree that they may do, that they will repair any damage done to [Parcel a] as a result of such repairing."

b) that the owners of Parcel B “will continue to pay for this easement the sum of $10 per year.”

c) it would enure to the benefit of and be binding on the parties' heirs, executors, administrators, successors and assigns.

[16] The 1979 document was registered on title as Instrument R147470.

(4) Subsequent changes in land ownership and registration

[17] In subsequent years, various parties came to own Parcel A and Parcel B. Mr. Abel's company, 116, purchased Parcel B in 1998. As purchased by 116, the legal description of Parcel B includes instrument R147470 – the 1979 document entitled "Water Pipe Easement".

[18] In 2010, Parcel B was transferred from the Registry system to the Land Titles system. The property description of Parcel B in the Land Titles parcel register includes R147470.

[19] The Mihaylovs purchased Parcel A in 2012. By that time Parcel A was already under the Land Titles system. The transfer to the Mihaylovs describes the property they were acquiring – Parcel A – as being "subject to R147470.”

[20] The next event of significance was the 2014 leak in the pipe, which led to Mr. Abel's actions and the present dispute.

Positions of the parties

[21] The Mihaylovs submit that the 1966 Document and the 1968 Document were, at best, licenses that were personal to the parties at the time and created no interest in Parcel A, in favour of the owners of Parcel B. They make the same submission in relation to the 1979 Document. In the alternative, they argue that the 1979 Document is invalid because it was granted in contravention of the subdivision control sections of the Planning Act. They further argue that the 1968 Document and the 1979 Document are invalid because they do not contain a legal description of the easement, as required by the Registry Act.

[22] Mr. Abel and 116 submit that both the 1968 Document and the 1979 Document contain the legal elements necessary to create an easement, and that the easement remains valid. In relation to the 1968 Document, they argue that the Planning Act subdivision control provisions had no application to the lands at the relevant time. In relation to the 1979 Document, they rely on a curative provision of the Planning Act which they say remedies any alleged violation of that Act. They further argue that the Registry Act provision relied upon by the Mihaylovs no longer applies because the properties are now registered under the Land Titles Act.

The legal elements of an easement

[23] An easement is defined in Anger & Honsberger, Law of Real Property, 3rd ed., La Forest, editor, looseleaf (Toronto: Canada Law Book, 2012) at para. 17:20 as follows:

An easement is a right which one land owner has with respect to the lands of another – either the right to do something on the other's land, or the right to prevent the other owner from using their land in the particular way. The lands which benefit from the easement are the dominant lands, and the lands over which the easement is exercised are the servient lands.

[24] At para. 17:20.10, the same text sets out the essential characteristics of an easement, as follows:

(a) there must be a dominant and a servient tenement;

(b) an easement must accommodate the dominant tenement;

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

[25] With reference to the distinction between an easement and a license, the same text states as follows (at para. 17:20.10(b)):

a) Unlike a license, which is personal to the holder of the right and is not seen as connected to the use of any lands which may be owned by the holder of license, the exercise of an easement must be for the use and benefit of the dominant tenement. An easement must be both attached to the dominant tenement and reasonably necessary to the normal enjoyment of the dominant tenement. A frequently quoted statement on this point holds:

… a right of way enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and is reasonably necessary for the better enjoyment of that tenement, for if it has no necessary connexion therewith, although it confers an advantage upon the owner and render his ownership of the land more valuable, it is not an easement at all, but a mere contractual right personal to and only enforceable between the two contracted parties.

Issue 1: Did the prior owners intend to create an easement?

[26] Both the 1968 Document and the 1979 Document satisfy all four requirements listed above. Parcel B was the dominant tenement and Parcel A was the servient tenement; the easement accommodated the dominant tenement by providing it with water from the lake; the owners were different persons; and permitting the installation and use of a water pipe across or under the servient tenement is a right that can form the subject-matter of a grant.

(1) The 1968 Document

[27] I am alert to the submission of the Mihaylovs that there was no “enurement” clause in the 1968 Document and that there are some references contained in it to “this agreement” and “the currency of this agreement.” That said, in light of the context in which the document was created - in order to permit the owner of Parcel B to secure a supply of water through a pipe buried under part of Parcel A – the 1968 Document plainly reflected a legal arrangement that was connected to the use of Parcel B. Put another way, the right conferred upon the grantee had no purpose save to enable the grantee’s land, Parcel B, to enjoy a supply of lake water; the agreement was of no use to a non-owner of Parcel B.

[28] To use the language quoted above, the arrangement “accommodated and served” Parcel B and was “reasonably necessary for its enjoyment”, since it provided a reliable source of water that did not depend on a well. This suggests that the 1968 Document was not a mere personal license. Importantly, although the 1968 Document included a requirement to pay $10 annually “during the currency of this agreement’ the rights conferred under it were not expressed to be time limited.

[29] I attach no significance to the fact the 1968 Document was filed in the Registry Office as a “deposit” and not formally registered as an instrument. The lack of formal registration at the time does not (for present purposes, at least) detract from the legal significance of the document. Moreover, when the 1979 Document was prepared, it made express reference to the 1968 Document. The 1979 Document was formally registered on title to Parcel A (as instrument R147470). Thus, anyone who searched the title had notice of the existence and intent of the 1968 Document.

[30] Finally, when the title to Parcel A was transferred to the Land Titles system, it was expressed to be subject to instrument R147470, which in turn references the 1968 Document. Thus, all subsequent purchasers – including the Mihaylovs – have had express notice of the easement created by the 1968 Document

(2) The 1979 Document

[31] The 1979 Document does not suffer from the deficiencies alleged by the Mihaylovs in the 1968 Document. It meets the four prerequisites for an easement. It is self-described as an instrument concerning an easement. It is expressed as binding on successors. It is not expressed to be time limited. It also expressly refers to the 1968 Document, thus indicating that it was continuing rights that already existed. Finally, it was registered on title.

[32] I therefore conclude that both the 1968 Document and the 1979 Document were designed and intended to convey to the grantees – the predecessors in title to the current owner of Parcel B - an easement over Parcel A for purposes of the installation, use and maintenance of the water pipe.

Issue 2: Was the intended easement somehow ineffective in law?

(1) The Planning Act arguments

[33] The Planning Act issues arise only in relation to the 1979 Document. As I will explain in more detail, this argument is founded on the premise that the 1979 Document breached the subdivision control sections of the Planning Act; as a result it was ineffective to create an interest in land in the grantee; as a consequence no valid easement was created.

[34] This argument has no application to the 1968 Document. At the time the 1968 Document was prepared and deposited in the Registry Office, the subdivision control provisions of the Planning Act did not apply to the lands in question. As a result, the rights created under the 1968 Document cannot be defeated on this basis.

[35] Despite the foregoing, and my preceding conclusion that the 1968 Document was effective to create an easement, I will address the Mihaylovs’ alternative submission that a Planning Act violation somehow invalidated the 1979 Document. The argument is based upon alleged non-compliance with the requirements of the Planning Act, R.S.O. 1970 c. 349 s. 29(2).

[36] The parties agree that the subdivision control provisions of the Planning Act applied to both properties by 1979. They also agree that, in relation to instrument R147470, there was no registered plan of subdivision that provided for an easement and no consent from the local land division committee. At the time, s. 29(2) of the Planning Act prohibited any conveyance that did not meet these (or other inapplicable) requirements, where the grantor retained an interest in abutting land.

[37] The Mihaylovs submit that, since the grantors under Instrument R147470 (the owners of Parcel A) retained title to the land through which the easement passed, they retained an interest in land that abutted the easement. Therefore, the argument continues, the conveyance of the easement was caught by s. 29(2). It follows that, by itself, the 1979 Document/Instrument R147470 breached s. 29(2). It was, therefore, ineffective to create an easement or any other interest in land in favour of the grantees. Counsel for 116 and Mr. Abel, after some probing by me, conceded this point, agreeing that the 1979 Document by itself would require Planning Act approval and that a breach of s. 29(2) meant that this purported conveyance of the easement was void.

[38] Despite the foregoing, in reliance on s. 50(22) of the Planning Act, R.S.O. 1990 c. P.13, 116 and Mr. Abel contend that the 2012 transfer to the Mihaylovs, and a previous transfer of Parcel A in 2004, had the effect of curing any defect in title to the water pipe easement. (The full text of s. 50(22) of the Planning Act, R.S.O. 1990 c. P.13, is reproduced in Appendix A to these reasons.)

[39] In essence, s. 50(22) is a curative provision that can serve to remedy historical breaches of the subdivision control sections of the Planning Act, where subsequent deeds or transfers contain certain specified statements. Where the deeds or transfers contain the prescribed statements, s. 50(22) declares, in effect, that any previous contravention of the subdivision control sections “does not and shall be deemed never to have had the effect of ever preventing the conveyance of any interest in the land…"

[40] Subsequent to the enactment of what is now s.50(22) of the Planning Act, the various pre-printed forms of transfers, deeds, etc. that are used to convey real property in Ontario, have included passages that contain the statements contemplated in the statute, so that they may be signed or completed by the parties. These are intended, when completed, to trigger the application of s. 50(22).

[41] The predecessor of this provision was discussed by Killeen J. in Reeve-Burns v. Pelkman (1979), 1989 CanLII 4078 (ON SC), 70 O.R. (2d) 113 (Dist. Ct.) at pp. 117 ff. as follows:

The effect of [now s. 50(22)] has been the subject of some concern or debate within the legal profession. It provides for what I would call a sort of amnesty with respect to past violations of [the subdivision control sections of the Planning Act] if a new deed on title contains certain "statements", signed in prescribed forms by both the grantor, the grantor's solicitor and the purchaser's solicitor, confirming that such parties all had an honest belief that there were no prior contraventions of [the Planning Act] down through the chain of title. The body of [s. 50(22)] provides that, where these three statements are signed on a deed, any prior contravention of this section or a predecessor section or a by-law passed under a predecessor section "... shall be deemed never to have had the effect of preventing the conveyance of any interest in land ..."

[42] In interpreting and applying the provision to the case before him, Killeen J. went on to say as follows:

… First, one must remember the general canon of construction contained in s. 10 of the Interpretation Act, R.S.O. 1980, c. 219:

Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

Each Ontario Act is, under this canon, deemed to be remedial and its provisos are to be given that liberal interpretation which will achieve its purposes. There is no ambiguity in the 1984 amendment which might justify my giving it some narrow or specialized reading. Equally, I conclude that the amendment does not allow a court to go behind the signed statements in a deed absent, perhaps, a showing of fraud -- something not suggested here.

[43] The transfer/deed by which 116 came to be the owner of Parcel B was in Form 1 under the Land Registration Reform Act, R.S.O. 1990, c. L.4 and it contained the appropriate blank statements to be signed. Although the statements by the transferor and the transferor's solicitor were completed, the statement of the solicitor for the transferee was not. As a result, 116 cannot take the benefit of s. 50(22) by reason of its own deed.

[44] In relation to Parcel A, however, the relevant transfers reveal a different pattern. A 2004 transfer of Parcel A to a previous owner contains statements under s. 50 of the Planning Act signed by the transferors and their solicitor as well as a statement under s. 50 signed by the solicitor for the transferee. As well, when Parcel A was conveyed to the Mihaylovs in 2012, the transfer contained statements by both the transferor and the transferor's solicitor as well as a statement of the solicitor for the transferee. The latter statement was as follows:

I have investigated the title to this land and to abutting land where relevant and I am satisfied that the title records reveal no contravention as set out in the Planning Act, and to the best of my knowledge and belief this transfer does not contravene the Planning Act.

[45] The Mihaylovs argue that the foregoing statement by their solicitor and the effect of s. 50(22) of the Planning Act can be read no further than to cure any potential defect in the title to Parcel A.

[46] Mr. Abel and 116 argue that the Mihaylovs’ solicitor (and their predecessor’s solicitor) confirmed he had examined title to both Parcel A and Parcel B and had determined that they revealed no past or existing contravention of the subdivision control provisions of the Planning Act. They further argue that the effect of the solicitor’s statement and thus the application of s. 50(22) triggered the operation of the closing language in that subsection, with the result that the 1979 contravention of the Planning Act “does not and shall be deemed never to have had the effect of preventing the conveyance" of the water pipe easement.

[47] In addressing these competing arguments, I can do no better than adopt and apply the analysis of Quinn J in Jacuniak v. Tamburro (2002), 2002 CanLII 49467 (ON SC), 59 O.R. (3d) 236 at paras 63 and 66, as follows:

63 I find this particular issue to be a prickly one. In the case at bar, anyone examining the title to the dominant and servient tenements between 1971 and 1991 would have been correct in concluding that the 1971 conveyance of the right of way was a nullity due to non-compliance with the Planning Act. In particular, a purchaser of the servient tenement between 1971 and 1991 would feel secure in assuming that his or her property was not encumbered by a right of way. When, in 1992, the deed conveying the dominant tenement to [a previous purchaser] was registered, with boxes 13 and 14 therein completed, it gave life to the right of way which had been stillborn in 1971. A right of way that, in law, had not existed for 20 years, suddenly was created. Initially … this struck me as unfair to [the current owner of the servient tenement] who, it will be remembered, acquired the servient tenement in 1980. However, I have now come to a different view. When the respondent purchased the servient tenement, a search of title should have revealed the right of way. Although the respondent would have been correct to conclude that the grant of the right of way was legally ineffective, it was imprudent to leave the matter in that state. An application should have been commenced seeking a declaration that the right of way was invalid. Undoubtedly, a declaratory judgment would have been forthcoming and this judgment would have fallen within the exception to s. 50(22) found in its concluding words: "... but this subsection does not affect the rights acquired by any person from a judgment or order of any court given or made on or before the day the deed or transfer is registered."

66 In the end, I am left with the clear wording of s. 50(22) and the judgment of Killeen J. which compel me to find that the 1992 deed … triggered s. 50(22) and cured all prior contraventions of the Planning Act. The right of way, therefore, is valid.

[48] Applying the logic of Quinn J in Jacuniak, when the 2004 conveyance of Parcel A took place, and the relevant boxes in the form of transfer were completed, it gave life to an easement that had been “stillborn” in 1979. In other words, quite apart from the legal effect of the 1968 Document, the easement conveyed by the 1979 Document became legally valid by reason of the previous conveyance in 2004, well before the Mihaylovs purchased Parcel A.

[49] In addition, the transfer by which the Mihaylovs came to be owners of Parcel A expressly described the property being transferred as being subject to the water pipe easement. When they purchased Parcel A, a review of the parcel register should have revealed the easement. Their solicitor confirmed that he had investigated title to their land and to abutting land (i.e. both the servient and the dominant tenements) and had satisfied himself that the title records revealed no contravention of the Planning Act (the same conclusion that had been reached by the solicitor who completed the prior conveyance in 2004).

[50] There is no unfairness to the Mihaylovs arising from the application of s. 50(22) to these facts; they were on notice of the existence of the water pipe easement when they completed their purchase.

[51] I therefore conclude, consistent with the findings of Killeen J. in Reeve-Burns, and Quinn J. in Jacuniak, that s. 50(22) is applicable to validate the otherwise defective creation of the easement over the Mihaylovs’ lands.

(2) Are the grants of the easement deficient due to noncompliance with s. 26(2) of the Registry Act?

[52] The Mihaylovs also argue that the 1968 Document and the 1979 Document (Instrument R147470) are deficient due to noncompliance with s. 26(2) of the Registry Act, R.S.O. 1990, c. R.20. That provision states as follows:

26 (2). Despite section 15 of the Conveyancing and Law of Property Act or any rule of law, an instrument purporting to convey an easement, made after the 1st day of January, 1967, does not, as against a purchaser in good faith who, for valuable consideration and without actual notice, purchases the servient tenement after the 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.

[53] Based on this provision, the Mihaylovs submit that, as against them, the 1968 Document and the 1979 Document are of no effect since they fail to contain “a local description of the affected part of the servient tenement.”

[54] It is true that those documents do not contain a legal description of the affected part of Parcel A, as required by s. 26(2). The Mihaylovs are not in a position to rely on that provision, however, in light of s. 3 of the Registry Act. That provision states as follows:

Subject to the Land Titles Act, after a certificate of the first registration of the owner under that Act has been registered as specified by that Act, this Act ceases to apply to the land mentioned in the certificate.

[55] Both Parcel A and Parcel B were converted from the Registry system to the Land Titles system by the end of 2010. As such, the Registry Act ceased to apply to the lands in question before the current dispute arose. In the result, s. 26(2) is inapplicable.

[56] I therefore conclude that the Mihaylovs have failed to persuade me that the respondent 116 has no interest in Parcel A. To the contrary, I conclude that 116 has a valid easement for a water pipe in the location of the galvanized water pipe that was the subject of the 1968 Document and the 1979 Document.

Subsidiary issues

[57] Two subsidiary issues require attention. The first concerns the right of 116 and Mr. Abel to make repairs to the water pipe. This topic is expressly addressed in both the 1968 Document and the 1979 Document. The latter document states that “if [the owners of Parcel B] should have to enter on [Parcel A] to make any repairs which the [owners of Parcel A] agrees [sic] that they may do, that they will repair any damage done …as a result of such repairing.”

[58] The Mihaylovs argue that the right of repair is limited to “any repairs which [the Mihaylovs] agree that [116] may do.” I disagree. That interpretation would grant an unintended and inappropriate veto to the Mihaylovs over 116’s right of repair; in effect, it would leave it up to the discretion of the owner of Parcel A to decide whether a repair (on a buried pipe supplying water to its neighbour) was necessary and could be carried out. A more logical interpretation would be to read the words “which the [owners of Parcel A] agree] that they may do” as merely an express, advance acknowledgement by the grantor (the owner of Parcel A) that the grantee has the right to carry out repairs, subject to the requirement that it repair any damage done.

[59] I would therefore interpret this provision to permit 116 to enter onto the Mihaylovs’ lands to carry out necessary repairs, without securing the further agreement of the owners of Parcel A, subject to the proviso that 116 must repair any damage done. To put the matter beyond doubt, I would interpret the repair provision as permitting 116 to repair the galvanized pipe, if appropriate, by installing a buried PVC pipe in its place.

[60] The final point concerns the obligation of 116 to pay $10 per year for the easement. Apparently neither side was aware of this requirement until it was raised in 2014 by the Mihaylovs. In view of the current controversy, no payments have since been made or accepted. Now that the controversy is resolved, I direct 116 to pay the annual sum due to the Mihaylovs, retroactive to the date when they became the owners of Parcel A.

Conclusion and Disposition

[61] For these reasons, the Mihaylovs’ application is dismissed and the counter-application is granted. If the parties are unable to agree on costs or if they require my assistance in settling the form of order, they may contact my assistant to request a telephone conference to address those issues.

Stinson J.

Date: February 25, 2016

APPENDIX A - s. 50(22) of the Planning Act, R.S.O. 1990 c. P.13.

50(22) Where a deed or transfer,

(a) contains a statement by the grantor, verifying that to the best of the grantor’s knowledge and belief the deed or transfer does not contravene this section;

(b) contains a statement by the grantor’s solicitor, verifying that,

(i) he or she has explained the effect of this section to the grantor,

(ii) he or she has made inquiries of the grantor to determine that the deed or transfer does not contravene this section,

(iii) based on the information supplied by the grantor, to the best of the solicitor’s knowledge and belief, the deed or transfer does not contravene this section, and

(iv) he or she is an Ontario solicitor in good standing; and

(i) he or she has investigated the title to the land and, where relevant, to abutting land,

(ii) he or she is satisfied that the record of title to the land and, where relevant, to abutting land, reveals no existing contravention of this section or a predecessor thereof or of a by-law passed under a predecessor of this section or of an order made under clause 27 (1) (b), as it existed on the 25th day of June, 1970, of The Planning Act, being chapter 296 of the Revised Statutes of Ontario, 1960, or a predecessor thereof, that has the effect of preventing the conveyance of any interest in the land,

(iii) to the best of his or her knowledge and belief, the deed or transfer does not contravene this section, and

(iv) he or she acts independently of the grantor’s solicitor and is an Ontario solicitor in good standing; and

(d) is registered under the Land Titles Act or the Registry Act,

any contravention of this section or a predecessor thereof or of a by-law passed under a predecessor of this section or of an order made under clause 27 (1) (b), as it existed on the 25th day of June, 1970, of The Planning Act, being chapter 296 of the Revised Statutes of Ontario, 1960, or a predecessor thereof, does not and shall be deemed never to have had the effect of preventing the conveyance of any interest in the land, but this subsection does not affect the rights acquired by any person from a judgment or order of any court given or made on or before the day the deed or transfer is registered.

CITATION: Mihaylov v. 1165996 Ontario Inc., 2016 ONSC 1379

COURT FILE NO.: CV-15-530371

DATE: 20160225

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EMIL MIHAYLOV and SOFIA MIHAYLOV,

Applicants

– and –

1165996 ONTARIO INC. and DONALD ABEL

Respondents

REASONS FOR JUDGMENT

Stinson J.

Released: February 25, 2016

Mihaylov v. 1165996 Ontario Inc., 2016 ONSC 1379

Case Summary

Stinson J.

Introduction

Ownership history and legal documents

(1) The 1966 document

(2) The 1968 Document

(3) The 1979 Document

(4) Subsequent changes in land ownership and registration

Positions of the parties

The legal elements of an easement

Issue 1: Did the prior owners intend to create an easement?

(1) The 1968 Document

(2) The 1979 Document

Issue 2: Was the intended easement somehow ineffective in law?

(1) The Planning Act arguments

(2) Are the grants of the easement deficient due to noncompliance with s. 26(2) of the Registry Act?

Subsidiary issues

Conclusion and Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 5