NEWMARKET COURT FILE NO.: CV-15-122145-00 DATE: 20170421 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

OWEN RONALD HUISMAN Plaintiff – and – LUIGI MORRA and LUCIA MORRA Defendants

COUNSEL: S. Fienberg, for the Plaintiff M. Cooper, for the Defendants

HEARD: January 13, 2017

REASONS FOR DECISION

MULLIGAN J.:

[1] This is a summary judgment motion brought by the plaintiff about an easement. The plaintiff, Owen Ronald Huisman, commenced this action by way of Statement of Claim against the defendants, Luigi Morra and Lucia Morra (the Morras). The Morras defended the claim and opposed this summary judgment motion. Affidavits were filed by the parties. In addition, both parties retained expert lawyers to review the conveyancing history of these properties which have now been converted to Land Titles Qualified Conversion (LTQC).

The Properties

[2] The plaintiff and the defendants have abutting parcels of land within Lot 16, Concession 2, Township of King. The pin map attached as Schedule “A” to these Reasons assists in situating these two parcels. The Morra parcel fronts on Graham Sideroad. This parcel was previously made the subject matter of a Reference Plan prepared by R.A. Garden Limited, registered as Instrument 65R-5801. The westerly limit of this parcel, described as Part 4 on this Reference Plan, is 33.24 feet wide, and runs along the entire west limit of the Morra’s property. It is this strip of land over which the plaintiff alleges it has a right-of-way. The Morra property consists of rural acreage, together with a residence. The land was previously rented out by the Morras. They now have a sheep farm on the property.

The Huisman Property

[3] The Huisman property is a 30-acre parcel of rural land without any structures. As the pin map indicates, it does not front on Graham Sideroad and appears to be landlocked. Its westerly boundary appears to be a drainage ditch. The easterly boundary abuts, in part, the northwest portion of the Morra property. The plaintiff’s claim is that he enjoys a right-of-way over Part 4 on Reference Plan 65R-5801, being one of the parts of the Morra lands. The Morras state that there is no right-of-way. If a written right-of-way existed previously, it has expired, 40 years having passed. Further, the right-of-way was not properly recorded on their title in the registry system, nor was it carried forward on their parcel on conversion into the Land Titles Qualified system.

[4] Several years ago, the issue of whether or not there was a right-of-way became contentious between these owners. The Morras attempted to fence their property and block Mr. Huisman. Mr. Huisman attempted to unblock the property so that he would have access to his lands. The police were involved on more than one occasion. The plaintiff then issued a Statement of Claim on March 16, 2015 against the defendants. The plaintiff claimed that he had an easement over Part 4 and it was his only legal access to Graham Sideroad. The plaintiff sought a declaration that he had a valid easement, or in the alternative, he had an easement of necessity, being his only access to the public road. In the alternative, the plaintiff pleaded that he had an easement by way of adverse possession, the easement having been used for at least 20 years prior to the conversion to Land Titles.

[5] The Morras filed a Statement of Defence claiming that the plaintiff trespassed on their lands, and sought a declaration that no right-of-way existed. The Morras further pleaded that the plaintiff’s claim was statute-barred.

[6] As noted previously, both parties hired leading real estate lawyers to provide expert opinions as to the history of conveyancing, the land registry system, and the land registry conversion process to assist the court in a determination of these issues. Both lawyers are certified as specialists in real estate law by the Law Society of Upper Canada. Both lawyers signed Form 53 indicating their compliance with Rule 53.03 of the Rules of Civil Procedure.

[7] Sidney H. Troister provided an opinion letter dated August 13, 2015 for the defendants. His letter provided a detailed chronology of the conveyancing that occurred with respect to both parcels of land. As Mr. Troister states in para. 3 of his letter:

Until the properties were converted to the Land Titles system in 1998, the records or history of title to both properties were recorded in two abstract books in the Registry system, one book for each of the east and west halves of Lot 16.

As Mr. Troister further notes at para. 4:

Until conversion to Land Titles, the properties were subject to the Registry Act, the statute that governed land according to the Registry system. Records were maintained in abstract books which recorded each Instrument registered or affecting land in a particular portion of the province. Two books applied to the Morra and Huisman properties: one for the east half of Lot 16, Concession 2, and one for the west half of Lot 16. If an Instrument affected land that was in both the east and west halves of a lot, it would usually be recorded in both books.

[8] Prior to the purchase of their respective properties by Huisman and Morra, their properties had been converted into the Land Titles system. The Huisman property was transferred into the Land Titles system on October 23, 1998, when it was owned by Mr. Huisman’s predecessor in title. A few days later, on October 26, 1998, the Morra property was converted to the Land Title system when it was owned by Mr. and Mrs. Morra’s predecessor on title.

[9] A right-of-way which is now described as Part 4 on Reference Plan 65R-5801 was first created on October 17, 1958, when the Huismans’ lands were transferred to a predecessor in title, together with a right-of-way, 33 feet wide, along the westerly boundary of property now owned by Morra. As Mr. Troister’s opinion letter indicates, many transfers occurred thereafter. Mr. Troister also expressed the view that the easement expired on October 17, 1998, by reason of the 40-year rule under the Registry Act.

[10] After considering the various Instruments as registered on both parcels of land, together with the effect of the Land Titles conversion, Mr. Troister concludes:

In my opinion, as a matter of statute law, the easement no longer exists. Specifically, there is no registered right-of-way that benefits the Huisman property, and the Morras’ property is not subject to any such right-of-way… As of the date of conversion to the Land Titles, under the Registry Act, and even without conversion, the right-of-way had expired.

[11] The plaintiff also retained an expert to review the conveyancing and provide an expert opinion. Craig Carter had an opportunity to review Mr. Troister’s opinion letter. I take it from both opinions that these properties were subject to poor conveyancing over the years. As Mr. Carter states in his letter:

The title to the Servient Lands, which are the lands subject to the Easement, were clouded by poor conveyancing as is clear from Mr. Troister’s Title Summary. The conveyances of the Morra chain of title were not expressed and made subject to the Easement. This is poor conveyancing.

[12] Mr. Carter concludes, after reviewing the conveyancing and the legislative provisions, that the easement has not expired.

Opinion of Experts

[13] There is no doubt that an expert opinion can be of assistance to the court in determining issues at trial. Rule 53.03 provides guidance with respect to expert reports and requires that experts acknowledge their duty to the court. Rule 4.1.01 of the Rules of Civil Procedure provides:

Duty of Expert

4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is far, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

[14] Recently, the Supreme Court of Canada considered the role of an expert in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. As the Court stated at para. 30:

The formulation in the Ontario Rules of Civil Procedure is perhaps the most succinct and complete statement of the expert’s duty to the court: to provide opinion evidence that is fair, objective and non-partisan (Rule 4.1.01(1)(a)). The Rules are also explicit that this duty to the court prevails over any obligation owed by the expert to a party (Rule 4.1.01(2)).

[15] As previously noted, these experts come to diametrically opposite conclusions. Mr. Carter had an opportunity to review and comment on the report of Mr. Troister. There is no expert report in reply from Mr. Troister. One of the purposes of Rule 53.03 is to give each side an opportunity to review the expert’s report prior to trial. It also gives the party opposite an opportunity to prepare for an effective cross-examination of the expert in light of their own expert report. Because this matter has not proceeded to trial, that opportunity has not taken place. Further, because the matter has not proceeded to trial, the experts have not had the opportunity to provide the assistance contemplated in Rule 4.1.01(1)(c) which states: “to provide such additional assistance as the court may reasonably require to determine a matter in issue”.

Summary Judgment Motion

[16] There is no doubt that the court now enjoys expanded powers to deal with matters by way of summary judgment motion. Rule 20.04(2) provides:

The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purpose of exercising any of the powers set out in sub-rule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[17] The Supreme Court of Canada had an opportunity to provide guidance with respect to the summary judgment rules in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, as Karakatsanis J. stated at para. 68:

While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate. There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense. In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above.

As the Court continued at para. 73:

A motion for summary judgment will not always be the most proportionate way to dispose of an action. For example, an early date may be available for a short trial, or the parties may be prepared to proceed with a summary trial. Counsel should always be mindful of the most proportionate procedure for their client and the case.

Conclusion

[18] In my view, this is not a case where the plaintiff ought to be granted a summary judgment motion on the record before me. Although the two experts, both highly qualified, provided opinion letters to the parties, they have not been cross-examined in the crucible of a trial. Specifically, Mr. Troister, who provided an opinion for the defendant, has not provided any response with respect to the opposite conclusion of Mr. Carter.

[19] It appears that neither expert was asked to provide an opinion on the issue of “easement of necessity” or an unregistered right-of-way. In my view, these require a judicial determination after hearing the evidence of the plaintiff, the defendants, and such other witnesses that may assist the court in determining these issues.

[20] I am satisfied that this case requires the full machinery of a trial, which may well exceed the limits of a mini-trial suggested in Rule 20.04(2.2). However, I am prepared to act as case management judge to assist counsel to determine the number of witnesses that may be required and the potential length of trial time so this matter can be effectively tried at a future civil trial sittings within Central East Region.

Trial Management

[21] If counsel wish to have me assist with respect to trial management issues, they may contact the Trial Coordinator at Barrie to arrange a brief appearance or telephone conference.

Costs

[22] The plaintiff has been unsuccessful in his motion for summary judgment. If the parties are unable to resolve the issue of costs, I will receive brief costs submissions not exceeding three pages, together with a Costs Outline from the defendants within 20 days of the release of this decision. Thereafter, the plaintiff will have 10 days to file a brief reply, not exceeding three pages.

MULLIGAN J.

Released: April 21, 2017

Schedule “A”