COURT FILE NO.: 278/13 DATE: 2016/09/30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

London Medical and Dental Building Limited Plaintiff – and – Middlesex Condominium Corporation No. 83 and Gannon Medicine Professional Corporation Defendants

Counsel: Laura M. McKeen, for the Plaintiff Mavis J. Butkus, for the Defendant Gannon Medicine Professional Corporation John D. Goudy, for the Defendant Middlesex Condominium Corporation No. 83

HEARD: May 25, 2016

GRACE J.

A. Factual Background

[1] London Medical and Dental Building Limited (“LMDB”) owns lands municipally described as 450 Central Avenue, London, Ontario (“450”). Built in the early 1960’s, the original structure is a four storey building. It contains office units or suites that are leased to physicians, dentists and other persons involved in the health industry.

[2] In the 1970’s, LMDB constructed a seven storey building immediately to the west of 450. That building is now municipally described as 440 Central Avenue (“440”). [1]

[3] Prior to 440’s construction, LMDB entered into a development agreement with the Corporation of the City of London (the “City”). In that document LMDB acknowledged its obligation to comply with “the requirements for the physically handicapped being part of the City Building by-law.” [2] The terms of the development agreement were expressly stated to run with the land and to bind any successor owner and occupier of 440. [3]

[4] The parties seem to agree that the City’s by-laws required at least one principal entrance to and one elevator within 440 to be accessible from the sidewalk level or a ramp leading to the sidewalk level. [4]

[5] 440’s principal entrance is on the west side of the building. It opens into a parking lot that services 440. The parking lot slopes downward from the rear toward Central Avenue. The west entrance was constructed mid-level between the ground and second floor.

[6] 440’s elevator is not accessible at the level of the west entrance. To access the elevator those entering through that door must descend several stairs to the main floor.

[7] Unless able to negotiate stairs, persons using walkers, wheelchairs, scooters and similar devices (collectively “mobility devices”) cannot access 440’s elevator from the west entrance. Those persons must use an alternate route.

[8] The principal entrance to 450 is crucial to those unable to use stairs. The street level floors of 440 and 450 are connected.

[9] 450 stands to the east of 440. 450’s main entrance is on the south side facing Central Avenue. It is at the same level as the sidewalk and 440’s elevator. Persons using mobility devices may access 440’s elevator with ease by traversing 450’s lobby and the connecting corridors. No stairs stand in the way.

[10] LMDB owned 440 and 450 for many years. Most of the units within 440 were and are used for residential purposes. However, 440 contains one non-residential unit on the seventh floor. For many years Drs. Sweeney and MacKenzie conducted their medical practice from that location.

[11] Needless to say, 440’s elevator was and is used to access 440’s seventh floor.

[12] In 1986, the residential units on the second through sixth floors and the non-residential unit on the seventh floor were converted into condominiums. [5] 440’s elevator was conveyed by LMDB to the newly incorporated Middlesex Condominium Corporation 83 (“MCC 83”).

[13] However, LMDB has continued to own 440’s west entrance, its main floor and basement. LMDB also continues to own 450.

[14] Shirley Mae Harrison, a current director of MCC 83, describes the project in this way at para. 35 of her affidavit sworn September 29, 2015 (the “Harrison affidavit”):

As created by LMDB in the Condominium Declaration, 440 Central is essentially a floating apartment building tied to the ground level by its elevator and accessible only by a series of rights-of-way and easement over portions of the 450 Central property.

[15] Promotional materials distributed before the conversion advised prospective purchasers that:

The main entrance to the residential suites is from the west side of the building and will be appropriately redesigned and rebuilt to give the building its proper identity.

[16] While there may have been other changes to the main entrance to 440, its elevator continues to be inaccessible to persons unable to descend or climb stairs.

[17] LMDB executed a declaration under the Condominium Act, 1998, S.O. 1998, c.19 on May 16, 1986 (the “Condominium Declaration”). It described the portion of 440 that was to be governed by that statute together with the rights-of-way LMDB had granted and received.

[18] The Condominium Declaration made no mention of 450’s main entrance, lobby or corridors leading to 440’s elevator.

[19] LMDB began transferring residential units within 440 to purchasers, including Ms. Harrison in July, 1986. LMDB transferred the non-residential unit to the spouses of Drs. Sweeney and MacKenzie on September 3, 1986.

[20] A number of issues were addressed in an agreement between LMDB and MCC 83 dated September 9, 1986 (the “1986 Agreement”). Dr. Sweeney was the president of both companies at the time. [6]

[21] Paragraph 1 of the 1986 Agreement related to 440’s elevator. It serviced the basement which LMDB continued to own. That paragraph provided:

London Medical agrees that it shall be responsible for one-half of all costs with respect to the maintenance and repair of the elevator which forms part of the common elements of Middlesex Condominium.

[22] Paragraphs 2 and 12 of the 1986 Agreement addressed the issue of access to 440 through 450 in these terms:

2. It is understood and agreed that the main entrance, the lobby, the two washrooms, the storage and the mail room which are located on London Medical Lands shall be used by both London Medical and Middlesex Corporation…

3. London Medical agrees to allow the owners, occupants and guests of Middlesex Condominium to use interior access through the lobby located on the London Medical Lands whenever London Medical is making access available to the general public through such lobby.

[23] The chronology can fast forward to late January, 1989. That was when Ronald Laskey acquired the shares of LMDB. He became and still is its president.

[24] The relationship between LMDB and MCC 83 ebbed and flowed for more than a decade before the parties entered into a further agreement dated November, 1999 (the “1999 Agreement”). The provision relating to the elevator within 440 was similar but not identical to the 1986 Agreement. LMDB continued to be obligated to pay one-half of the monthly maintenance costs associated with 440’s elevator but a cap of $150 per month was inserted.

[25] Access to 440 through 450 was also addressed in the 1999 Agreement. Its terms largely mirrored para. 12 of its predecessor. Paragraph 7 of the new arrangement provided as follows:

Medical Dental agrees to allow the owners, occupants and guests of Condo 83 to use interior access through the lobby located in the main Medical Dental Building whenever the Medical Dental Building is making access available to the general public through such lobby.

[26] The 1999 Agreement provided that its provisions were to benefit and bind the parties and their successors and assigns. It does not specify a term. It does not contain any provision dealing with termination.

[27] The 1999 Agreement was registered on title on December 23, 1999.

[28] In the years that have followed LMDB and MCC 83 have periodically discussed making 440’s western entrance barrier free. No agreement was ever reached. Stairs must still be negotiated in order to reach 440’s elevator from there.

[29] In early 2012, Gannon Medicine Professional Corporation (“Gannon”) purchased the non-residential unit in 440. It had been briefly owned beforehand by Tara Ann Thomas (“Thomas”). Gannon’s president, Dr. Kathleen Gannon, is a family physician. She conducts her medical practice from that location in association with two colleagues.

[30] On May 28, 2012, Mr. Laskey advised Dr. Gannon by letter that she was obligated to pay $300 per month plus H.S.T. as “common area charges” for a total of thirteen items including use of 450’s main floor lobby and public washrooms.

[31] Other letters followed. Lawyers were retained. More correspondence flew. Positions were taken. LMDB’s solicitors addressed para. 7 of the 1999 Agreement in a September 4, 2012 letter. They outlined LMDB’s position in these terms:

This clause clearly relates to the residential uses and does not include access for the use of patients for the medical operations located on the 7th floor at 440 Central.

[32] Gannon’s position was well summarized in a January 21, 2013 letter from its solicitors. In part, the author wrote:

… [LMDB] was both the declarant and the owner of 440 Central. [LMDB], in fact, created the commercial unit currently owned by Dr. Gannon, in the full expectation that it would be accessed by clients of whomever owned the unit from time-to-time.

[33] Gannon continued to refuse to make any monthly payment to LMDB. Gannon and LMDB were at an impasse. A February 1, 2013 letter from the solicitors for LMDB to Gannon’s solicitors advised that:

…effective immediately, [LMDB] is removing Dr. Gannon’s signage from its premises at 450 Central and will inform patients and clients of the commercial operations at 7-440 Central that they are prohibited from access to that operation through 450 central [sic].

[34] This action was initiated by LMDB a few days later. LMDB’s claims against MCC 83 and Gannon include damages, a declaration and an injunction restraining the defendants from permitting others from entering, accessing or using 450.

[35] MCC 83 and Gannon have defended the action. In its counterclaim MCC 83 seeks declaratory relief and an injunctions of its own. At the risk of oversimplification, MCC 83 seeks to entrench rights of access to 440 through 450’s lobby at all hours of the day without interference by LMDB.

[36] Despite the fact the matter was before the court, on August 20, 2014 LMDB purported to terminate the 1999 Agreement effective December 18, 2014.

B. The Motions

[37] MCC 83 and Gannon seek summary judgment dismissing the action. MCC 83 also seeks summary judgment on its counterclaim. [7]

C. Analysis and Decision

i. The Test for Summary Judgment

[38] Jurisdiction to grant judgment without a trial is conferred by rule 20.04 of the Rules of Civil Procedure. Summary judgment shall be granted if the court is satisfied there is no genuine issue requiring a trial with respect to a claim or defence.

[39] The moving party bears the onus of meeting that test: Meditrust Healthcare Inc. v. Shoppers Drug Mart (2002), 61 O.R. (3d) 786 (C.A.) at para. 23.

[40] Summary judgment may be granted in whole, in part or not at all: rule 20.04. If a trial is necessary, directions may be given and terms imposed: rule 20.05.

[41] In determining whether to grant the relief sought in whole or in part, certain powers may be exercised by the motion judge unless it is in the interest of justice they be exercised only at trial. Weighing and drawing reasonable inferences from the evidence and evaluating the credibility of deponents are the powers rule 20.04(2.1) confers.

[42] A mountain of interpretive case law has developed. The unanimous decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 14 (“Hryniak”) is the centrepiece.

[43] Benotto J.A. provided the following useful and concise abridgement of the applicable principles in Re Trotter Estate, 2014 ONCA 841 at paras. 72 and 75:

In Hryniak, the Supreme Court established a two-step process that motion judges must follow on a summary judgment motion. First, a motion judge must determine – based only on the evidence before her – whether there is a genuine issue requiring a trial. If not, then summary judgment should be granted. There will be no genuine issue requiring a trial when the written record (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 49.

At this point, a motion judge may, at her discretion, move to step two of Hryniak, where she must consider whether a trial can be avoided using the powers granted under rules 20.04(2.1) and (2.2) to weigh the evidence, evaluate credibility, draw reasonable inferences and call oral evidence. These discretionary powers are presumptively available unless it is in the interest of justice to exercise them only at trial.

ii. MCC 83’s Motion for summary judgment

[44] I start with LMDB’s claim against MCC 83.

[45] Central to every cause of action raised by LMDB is the allegation that persons have trespassed onto or caused a nuisance on its lands.

[46] LMDB filed the affidavits of Ronald Laskey sworn January 13 and April 11, 2016 (the “Laskey affidavits”) to support its allegations.

[47] It is trite to say that those involved in a summary judgment motion must introduce evidence to support their positions. The motions judge is entitled to assume the record contains all the evidence that would be introduced at trial. [8]

[48] Gillese J.A. offered this summary in Ramdial v. Davis, 2015 ONCA 726 at paras. 27 and 28:

Each party had to “put its best foot forward” with respect to the existence or non-existence of material issues to be tried…

Further, in Corchis v. KPMG Peat Marwick Thorne, [2002] O.J. No. 1437 (C.A.), at para. 6, this court affirmed that the responding party to a motion for summary judgment has an obligation to “lead trump or risk losing”.

[49] The Laskey affidavits contain vague, unattributed allegations that do not provide any basis for a finding that a single person has trespassed or caused a nuisance. I can and do draw an adverse inference from LMDB’s failure to provide evidence from a person having personal knowledge of the alleged wrongs: rule 20.02(1).

[50] 450 is a building containing non-residential units. Its door and lobby are open to the public during business hours. Who trespassed? When? Is the allegation based on personal observation? I simply do not know.

[51] The claims in nuisance are similarly flawed. Mr. Laskey’s affidavit refers to “complaints from existing tenants of 450 Central”. None are identified. There is simply no evidence that anyone has substantially and unreasonably interfered with LMDB’s use and enjoyment of its lands.

[52] LMDB’s amended statement of claim goes further than the Laskey affidavits. However, that is insufficient. A responding party may not rely solely on allegations in a pleading. Specific facts showing there is a genuine issue requiring a trial must be set forth in an affidavit or other evidence: rule 20.02(2). LMDB has not fulfilled that basic, but essential, requirement.

[53] Even if there was evidence of an actual complaint by one of 450’s tenants, on what possible basis could LMDB claim damages for a nuisance that affected the business or premises of one of its tenants?

[54] Mr. Laskey alleges Laskey Properties Inc. has incurred “liability with respect to patients, clients, and invitees”. For what? When? He does not say.

[55] In any event, Laskey Properties Inc. is not a party to this action and MCC 83 does not have any “patients” or “clients”. Any allegation concerning “invitees” is answered by the documents I will discuss in some detail below.

[56] The genesis of this action was Gannon’s refusal to contribute to costs LMDB alleges it bears because of the traffic attributable to the medical clinic on the top floor of 440.

[57] MCC 83 was not a party to a single communication concerning that issue. Nor is there any evidence MCC 83 has any relationship with, influence on or control over Gannon or its medical practice.

[58] LMDB’s action is premised on an allegation that the defendants instructed, allowed or permitted patients of Dr. Gannon and her colleagues to enter into and exit from LMDB’s premises. Yet, there is not a shred of evidence to indicate that MCC 83 has done any such thing.

[59] Furthermore, LMDB’s claims ignore rights of access evidenced by or contained in the Condominium Declaration and the 1999 Agreement.

[60] I have touched on those documents before. More context is now required.

[61] I start with the Condominium Declaration. Schedule “A” to that document describes the lands that were to be subject to the Condominium Act. It refers to various parts of Reference Plan 33R-6777 (the “Plan”).

[62] LMDB retained professional Ontario land surveyor Jeremy Matthews to colour code the Plan for the purposes of these motions.

[63] His efforts were helpful because, as Mr. Matthews aptly explained in the affidavit he swore, 440 is a “unique site”. Mr. Laskey agrees. His first affidavit referred to “the unique design of the buildings”.

[64] As mentioned, the condominium covers floors 2 through 7 of 440 and includes the elevator.

[65] The issues in this case relate to the ground floor of 440 and 450 which are owned by LMDB. LMDB also owns the main entrance on the west side of 440.

[66] This action also involves the elevator within 440. It is owned by MCC 83.

[67] As mentioned earlier, there are two paths to the elevator located within 440. The obvious one is through the west entrance to 440. The corridor that links the elevator and the west entrance is described as Part 11 on the Plan. The legal description appended to the Condominium Declaration records the fact that LMDB granted a right-of-way in, along and through that part “at all times”.

[68] No cause of action could conceivably exist in relation to that entrance.

[69] The other entry point is through the main door on the south side of 450 and the lobby and corridors into which it leads. Those are all owned by 450.

[70] The Condominium Declaration did not address that manner of ingress and egress.

[71] I have already mentioned the 1986 Agreement and the 1999 Agreement that seems to have replaced it. Given that LMDB’s complaints relate to the period after Gannon acquired the non-residential unit in 2012, I will start with the access provision in the latter document.

[72] I have already reproduced the wording found in para. 7 of the 1999 Agreement. For ease of reference its content is reproduced below:

Medical Dental agrees to allow the owners, occupants and guests of Condo 83 to use interior access through the lobby located in the main Medical Dental Building whenever the Medical Dental Building is making access available to the general public through such lobby.

[73] Mr. Laskey deposed that he “personally drafted most of the 1999 Agreement”. I find that difficult to accept. After receiving a draft of the contract, Mr. Laskey wrote to MCC 83’s solicitor on November 17, 1999. He said, in part, the “agreement presented to me today seems to be going in the proper direction.” He asked MCC 83’s lawyer to add wording to various paragraphs consistent with the “intent” he expressed.

[74] Clearly MCC 83’s lawyer had a hand – or more - in the drafting of the 1999 Agreement.

[75] Mr. Laskey’s focus is on the meaning of the word “guests” in para. 7. He alleges he did not intend that word to include Gannon’s patients.

[76] Mr. Laskey’s subjective intention – even if honestly held – is irrelevant. Weiler J.A. articulated the applicable principles in McLean v. McLean, 2013 ONCA 788 at para. 54 when she wrote:

When the issue before the court is simply a question of contractual interpretation, and rectification is not involved, the question is what an objective reasonable bystander would think the agreement meant based on the parties’ intentions…The court begins with the words of the contract and presumes that the parties intended what is written in the contract. In construing the intention behind a particular provision, the court must consider, among other things, the contract as a whole, the factual matrix underlying it, and the need to avoid commercial absurdity. But the court does not consider the subjective intention of the parties… [Citations omitted]

[77] The court’s task is to determine the parties’ mutual intention. The words chosen are, of course, exceedingly important. The surrounding circumstances that existed at the time of execution must also be considered to deepen the court’s understanding of the parties’ objective intentions as expressed in the contract: Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, [2014] 2 S.C.R. 633 at paras. 50 and 57.

[78] Paragraph 7 outlines three categories of persons: “owners”, “occupants” and “guests”. Owners seems obvious enough: the persons registered as owners of the residential units and the non-residential unit 440 contains. Occupants seems clear too: a person who is not the owner but resides in a residential unit and a person carrying on business in the non-residential unit.

[79] It seems clear from what I have said so far that Dr. Gannon and her colleagues would be contemplated by the language the parties chose.

[80] What does “guest” encompass? It seems to me to be catch-all for everyone else who has a lawful reason to enter 440. That would include a daytime or overnight visitor, a person performing a requested service or delivering something that had been ordered. It would apply to the residential units and to the non-residential unit too.

[81] What about Dr. Gannon and her colleagues’ patients?

[82] The suggestion the parties intended to exclude them at the time the 1999 Agreement was signed borders on the absurd.

[83] The word “guests” appeared in the comparable, nearly identical provision, found in the 1986 Agreement. It seems obvious to me that the parties intended to include “patients” when they used the word “guests” in the access provision.

[84] Dr. Sweeney was the president of LMDB and MCC 83 at the time of execution. Dr. Sweeney and Dr. MacKenzie were practising medicine from the non-residential unit in 440. In fact, their office had been located there for many years. Their business involved seeing patients. It could not be conducted without them.

[85] I have no doubt LMDB and MCC 83 agreed that patients would have the convenience of accessing 440’s elevator from the west entrance or through 450.

[86] Furthermore, there was another reason for the parties to intend that “guests” encompass persons having medical appointments. As now, ambulatory patients could reach 440’s elevator from the west entrance or through 450’s lobby. However, those using mobility devices did not have a choice. They could only reach the elevator by entering 450’s main entrance. Given those background facts it is inconceivable that LMDB and MCC 83 intended to limit the access provision to persons visiting a residential unit.

[87] The same word was used in the 1999 Agreement. Why would the parties have any different intention? I cannot think of a reason. Dr. Sweeney continued to practice medicine from the non-residential unit. He continued to see patients.

[88] Mr. Laskey’s concern has never related to the presence of such persons on the premises.

[89] His worry was and is financial. Mr. Laskey deposed that pursuant to an oral agreement Dr. Sweeney paid a monthly amount to ensure that his patients had “a right to…access and use of the common areas of 450 Central.” At para. 31 of his first affidavit. Mr. Laskey deposed that:

In my experience, the customers, clients and/or patients of the Commercial Unit make significantly more use of the common areas of 450 Central than the guests of the Residential Units. The Commercial Unit Owner’s contribution to CAM charges compensates the tenants of 450 Central for increased maintenance costs resulting from the increased use of 450 Central by the clients of the Commercial Unit Owner.

[90] The Laskey affidavits demonstrate that LMDB was not attempting to negotiate the terms of an agreement which would allow Gannon’s patients to access the 440 elevator through 450. That agreement already existed.

[91] LMDB was attempting to compel Gannon to enter into a separate agreement to compensate LMDB for access LMDB had already agreed to provide: Nordlund Family Retreat Inc. v. Plominski, 2014 ONCA 444 at para. 66.

[92] Mr. Laskey alleges he was successful in negotiating an oral agreement with Dr. Sweeney. He concedes LMDB did not seek a similar arrangement with Thomas because of the nature of the business she briefly operated and its modest clientele. This is the first time LMDB has not gotten its way. It now seeks to compel a financial accommodation by denying a contractual obligation it voluntarily incurred.

[93] Had there been any doubt about the parties’ intention when they signed the 1999 Agreement, it was eliminated by their post-agreement conduct. I reiterate that LMDB did not complain when Dr. Sweeney saw patients. LMDB had no objection when clients visited the yoga studio Thomas briefly operated.

[94] Initially, LMDB did not object to the presence of Gannon’s patients on its premises either. It simply advised Gannon there would be a common area charge for them doing so. As Laskin J.A. said in 2123201 Ontario Inc. v. Israel Estate, 2016 ONCA 409 at para. 41:

The parties’ later conduct may show what meaning they gave to the Agreement after it was made, which in turn may show the parties’ intent when the Agreement was made…

[95] Had I any doubt concerning the scope of the access clause contained in the 1999 Agreement, it would have been extinguished by the parties’ conduct after the fact.

[96] It is clear that LMDB seeks to involve MCC 83 in a dispute in which it has no place.

[97] Simply put, LMDB does not have a cause of action against MCC 83 for trespass, nuisance, breach of contract, negligence or unjust enrichment. There is no genuine issue requiring a trial with respect to those claims. The action is dismissed insofar as MCC 83 is concerned. [9]

[98] I turn briefly to MCC 83’s counterclaim. MCC 83 seeks a declaration that it is entitled to an easement along the path from 450’s main entrance to 440’s elevator.

[99] LMDB and MCC 83 negotiated and executed the 1999 Agreement. It contains an access provision which is binding and, at least for the present, non-terminable. In my opinion it endures despite the attempt by LMDB’s solicitors to terminate the 1999 Agreement in a letter dated August 20, 2014.

[100] The right of access was conferred on MCC 83, the owners, occupants and guests of all of the units contained in 440. That phraseology includes the patients of Gannon. MCC 83 negotiated that term on behalf of the owners of the units – whether residential or non-residential - and LMDB intended and agreed to be bound by it.

[101] The times at which access can be exercised is, however, limited. 450 is a medical and dental building. Its front door and lobby service 450’s tenants. If a resident of 440 requires access to the elevator through 450 outside of their business hours, individual arrangements are required. Those appear to have been made in the past and should, of course, be made in the future in favour of those unable to utilize the stairs near 440’s west entrance as contemplated by the development agreement referred to at the outset of these reasons. [10]

[102] I observe in passing that making the west entrance to 440 accessible is not a solution MCC 83 can implement on its own. LMDB owns that entrance.

[103] Paragraph 6 of MCC 83’s notice of motion seeks a declaration that the right of access the 1999 Agreement confers constitutes a licence with an interest in the nature of an easement: Loblaws Inc. v. Singco Ltd., (1991), A.C.W.S. (3d) 1032 (Ont. C.A.). It also asks the court to declare that the licence and easement could not and cannot be terminated by LMDB unilaterally.

[104] The access provision in the 1999 Agreement applies to all who have a lawful reason to enter 440, including Gannon’s patients. LMDB’s purported termination of the 1999 Agreement on August 20, 2014 was of no force or effect given the fact persons using mobility devices have no other means of accessing 440’s elevator.

[105] I will go no further on this motion. Whether and to what extent MCC 83 is entitled to an easement, rather than what Ms. Harrison describes as “a grant of permission” [11] is a genuine issue for trial.

[106] As noted, the 1999 Agreement has already been registered on title. In those circumstances I do not believe it necessary to grant leave to MCC 83 to issue a certificate of pending litigation at this time.

iii. Gannon’s motion for summary judgment

[107] Much of what I have already written applies to Gannon’s motion for summary judgment.

[108] Allegations of trespass and nuisance are not supported by the evidence LMDB marshalled.

[109] In any event, the 1999 Agreement created rights of access to 440’s elevator through 450 during the hours the lobby is open to the public. Gannon’s patients are “guests” and entitled to exercise the same rights of access as an owner or occupant of a unit 440 contains.

[110] LMDB’s purported termination of the 1999 Agreement was ineffective. The west entrance to 440, which LMDB also owns and controls, cannot be used to access 440’s elevator by those unable to descend or ascend stairs.

[111] The only means of reaching the elevator is through 450’s main entrance and lobby. As long as that is the status quo, LMDB cannot unilaterally terminate the access arrangement: 1397868 Ontario Ltd. v. Nordic Gaming Corp., 2010 ONCA 101 at paras. 13 and 14.

[112] The real issue is whether Gannon has any legal obligation to make the financial contribution LMDB has demanded. LMDB has attempted to use the 1999 Agreement as leverage. It should not have done so.

[113] The first Laskey affidavit referred to and appended some documentation with respect to “Tenant Operating Costs” and “Expense Distribution”. For some reason the documentation provides information that pre-dates Gannon’s acquisition of the non-residential unit.

[114] LMDB alleges Gannon has been unjustly enriched by virtue of the use of 450’s lobby, public washrooms and corridors by some of its patients without contribution to costs incurred by LMDB, its tenants and their clients.

[115] I know of no basis on which LMDB could assert a claim on behalf of one of its tenants or their clients.

[116] LMDB can, of course, assert its own claim. The evidence LMDB filed did not attempt to allocate costs to Gannon. However, I am not satisfied LMDB had to go that far. Gannon has not proven there is no genuine issue requiring a trial with respect to the unjust enrichment claim.

[117] Gannon has met the onus of establishing that the rest of LMDB’s claims are without merit. No genuine issue requiring a trial exists insofar as the causes of action founded on trespass, breach of contract, negligence, nuisance and interference with economic relations are concerned. Those claims are dismissed.

[118] I note in passing that the unjust enrichment claim is very likely within the jurisdiction of the Small Claims Court.

D. Conclusion and Costs

[119] For the reasons given, the action is dismissed insofar as MCC 83 is concerned. The balance of its motion for summary judgment is dismissed except to the extent of the findings set forth in para. 104 of these reasons.

[120] Gannon’s motion for summary judgment is granted in part. The unjust enrichment claim against Gannon may proceed. All other claims asserted by LMDB against Gannon are dismissed.

[121] Gannon and LMDB have not been given an opportunity to address the issue of directions or terms as contemplated by rule 20.05. If requested by LMDB or Gannon, arrangements for a further attendance to consider same may be made through the trial coordinator.

[122] If the parties are unable to resolve the issue of costs, brief written submissions not exceeding seven pages may be provided by MCC 83 and by Gannon by no later than the close of business on October 17, 2016. Subject to the same page restriction LMDB may make brief written cost submissions by no later than the close of business on November 1, 2016.

“Justice A. D. Grace” Justice A. D. Grace Released: September 30, 2016

COURT FILE NO.: 278/13 DATE: 2016/09/30 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: London Medical and Dental Building Limited Plaintiff -and- Middlesex Condominium Corporation No. 83 and Gannon Medicine Professional Corporation Defendants REASONS FOR JUDGMENT Grace J. Released: September 30, 2016

Footnotes

[1] I have included the roof level because of the medical practice conducted from a unit located there.

[2] See paras. 9 and 21 of the development agreement dated June 29, 1973.

[3] Ibid. at para. 22.

[4] See by law no. B-56-269, article 3.2.7.1 as amended by by-law B-56(d)-291.

[5] The condominium comprised parts 2, 9, 13 and 14 of Reference Plan 33R-6777 together with rights of way and easements over parts 1, 3 and 12 of that reference plan.

[6] Dr. Sweeney’s signature only appears in the space provided for MCC 83 and not underneath the reference to LMDB. LMDB argued that was significant. I disagree. The 1986 Agreement was referenced in and attached to the share purchase agreement Ronald Laskey signed in January, 1989. The binding nature of the 1986 Agreement is evident from the terms of the share purchase agreement and Mr. Laskey’s initial communications to MCC 83. In any event, the 1986 Agreement was superseded by a later agreement that is addressed later in my reasons.

[7] The notice of motion did not seek injunctive relief although the factum of MCC 83 was prepared as if it did.

[8] Curoc Construction Ltd. v. Ottawa (City), 2015 ONCA 693 at para. 26.

[9] LMDB conceded that there was no substantiation for the claim set forth in para. 33 of the amended statement of claim.

[10] See para. 79 of the Harrison and para. 30 of the first Laskey affidavit.

[11] That phrase is used in para. 41 of the Harrison affidavit.