Court File and Parties
COURT FILE NO.: CV-16-0473-00 DATE: 2017, May 18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: JEREMIAH BLAKE and MEGAN WILLIAMS, Applicants – and – BRIAN LAING and CHRISTINE LAING, Respondents
COUNSEL: M. Swindley, counsel for the Applicants T. Pochmurski, counsel for the Respondents
HEARD: May 11, 2017
BEFORE: Tausendfreund, J.
REASONS
Overview
[1] The Applicants bring this application to clarify the registered Right of Way over the property of the Respondents.
[2] The Respondents acknowledge that their property is subject to a Right of Way, but state that it is limited for use only during the winter months. The available documents do not assist to determine the start and end date for such a winter period. The Applicants assert that the registered documents granting them the use of this Right of Way is not limited in the manner stated by the Respondents.
Facts
[3] The Applicants’ property is municipally known as 91 Gore Street, Kingston Ontario. It is the middle unit of a triplex. The property has no driveway fronting on Gore Street.
[4] This triplex is situated at the corner of Gore and Wellington Streets. The unit immediately adjacent to the property of the Applicants is 45 Wellington Street. This property is owned by the Respondents. It fronts on both Gore Street and Wellington Street.
[5] The Applicants’ backyard is landlocked. Access to it is limited to a Right of Way over the Respondents’ property leading to Wellington Street.
[6] In 1988, the respective owners of 91 Gore and 45 Wellington Streets were Sarah Robinson Mara and Nadia Khalaf that year. These two then owners of these properties came to an arrangement outlined in an affidavit by Geraldine Rose Tepper, who then was and still is a Barrister and Solicitor practicing in Kingston. I will now refer to excerpts of Ms. Tepper’s affidavit of August 13th, 2014, filed as part of the Application Record:
“1) I was retained by Nadia Khalaf, the owner of 45 Wellington Street Kingston, Ontario to negotiate and settle a Right-of-Way issue.
My client, as owner of 45 Wellington Street, Kingston, Ontario, was informed that a next door neighbour, the owner of 91 Gore Street, Kingston, Ontario, had a Right-of-Way through her property.
Notwithstanding that my client had a completely fenced lot and there had been no use of the Right-of-way, it was determined that to extinguish a Right-of-Way places an extremely heavy onus on the owner of a property. Rather than litigate, a Right-of-Way was recognized over my client’s property for the benefit of the owner of 91 Gore Street, who at that time was Sarah Robinson Mara, a predecessor on title to the current owners [the Applicants].
The description of the original Right-of-Way would have placed the same next to a limestone wall and kitchen at 45 Wellington Street. By mutual consent, the Right-of-Way was moved to its present location at the rear of the property.
To effect the change, Sarah Robinson Mara, owner of 91 Gore Street, quit-claimed the original Right-of-Way to my client. My client then provided Ms. Mara with a 10 foot Right-of-Way at the rear of the property. The Right-of-Way was fully described in a Deed registered on the 25th day of April 1988 as Instrument No. FR474189…
I am advised that Ms. Khalaf and do verily believe that when she resided at 45 Wellington Street, Ms. Mara, the owner of 91 Gore Street, drove over the Right-of-Way each and every day.
An arrangement was made with Ms. Mara, the owner of 91 Gore Street, that when the Right-of-Way was used in the winter months, boards would be placed over my client’s property to avoid destruction of her garden.
A notice of this arrangement was registered on title as Instrument No. FR492016. I prepared the document…this was not the original grant of Right-of-Way.”
Paragraph 6 of Ms. Tepper’s affidavit contains hear-say evidence. However, it found itself before me on this Application. As part of the Applicant’s record, I will accept it. I have instructed myself that such acceptance into evidence will be subject to the degree of weight I may attach to it. That said, I note that there is no evidence in the record on this Application to challenge the veracity of this paragraph in Ms. Tepper’s affidavit. Although this evidence was not challenged, but despite that it is hear-say evidence, I am prepared to accept it and so find that Ms. Mara drove over the new Right of Way once it had been granted to her. However, I find that it was likely not each and every day, but on a regular basis of about 3-4 times per week.
[7] The Notice of Right of Way was registered in the registry office on December 2nd, 1988. It was signed November 29th, 1988 by Nadia Khalaf. The wording of this notice is the following:
“Notice of Right of Way
Between Sarah Robinson Mara and Nadia Khalaf
Whereas a Right of Way has been created by Nadia Khalaf in favour of Sarah Robinson Mara; and whereas this Right of Way will be used in the winter season for car travel. When it is so used, boards will be placed on the same so that the garden of Nadia Khalaf will not be destroyed.
- Nadia Khalaf is registering this notice on title as proof of the arrangement that was made by the parties on the use of the Right of Way.”
[8] The wording of the grant of the Right of Way, registered as Instrument No. 474189 on April 25th, 1988, makes reference to the grant of a Right of Way over the property of Nadia Khalaf and for the benefit of Sarah Robinson Mara, who is noted as the owner of 91 Gore Street, Kingston, Ontario. The wording of this grant of Right of Way does not include any restrictions of the granted use.
Analysis
[9] The position of the Respondents is that the Notice of Right of Way in Instrument No. 492016 limited the Right of Way granted April 25th, 1988 by registered Instrument No. 474189, as it constrained the use of the Right of Way to the winter season only. However, there are two difficulties with that position:
- The wording of the Notice of Right of Way gives rise to another interpretation other than the one advanced by the Respondents.
- There does not appear to be any consideration for the limitation of the Right of Way, as proposed by the Respondents.
What was the Intent of the “Notice of Right of Way”?
[10] In the face of the apparent ambiguity of the meaning and intent of the “Notice of Right of Way”, it might assist to attempt to identify the intent behind it. The only evidence on this point is paragraph 7 of Ms. Tepper’s affidavit:
“…an arrangement was made with Ms. Mara, the owner of 91 Gore Street, that when the Right-of-Way was used in the winter months, boards would be placed over my client’s property to avoid destruction of her garden.”
[11] Although it appears to shed some light on the matter, in and of itself it does not resolve it. That leads me to attempt to decipher Ms. Khalaf’s possible intent in signing and registering this document.
[12] Ms. Khalaf’s April 25, 1988 grant of Right of Way was clear, unambiguous and devoid of any descriptive limitations. About seven months later on December 2nd, 1988, at the start of the expected winter season, she registered the notice, signed only by her. Had it been her objective to clarify that her initial grant of Right of Way was limited to winter months usage only, I would have expected this document to have included some explanatory wording to that effect. There is none.
[13] I conclude that in registering this notice, Ms. Khalaf had intended to put users of the Right of Way on notice that she would place boards over the Right of Way, in an effort to maintain her garden and to avoid destruction of it by vehicular traffic in the winter months. The interpretation I prefer and which I accept is that this Notice did not restrict vehicular use of the Right of Way to winter months.
Could the original grant of Right of Way be limited?
[14] The April 25th, 1988 document moved the Right of Way 10 feet away from Ms. Khalaf’s house and at the same time extinguished the former Right of Way by quit-claim. Both sides agreed and consideration flowed to each.
[15] The December 2nd, 1988 document was signed only by Ms. Khalaf. It lacked mutual consideration. Had Ms. Khalaf intended with this document to limit her earlier grant of Right of Way, absent consideration and mutual agreement, she legally failed to accomplish it.
[16] I find that the “Notice of Right of Way” signed November 29, 1988 and registered December 2nd, 1988 as Instrument No. 492016 does not restrict the year round use of the April 25, 1988 grant of Right of Way. That Right of Way granted the owners and occupiers of 91 Gore Street free and uninterrupted ingress and egress to and from their property. The Applicants are entitled to an injunction perpetually restraining the Respondents and their successors in title, their servants, agents and tenants from placing, parking, leaving or permitting any vehicle, stationary obstruction and debris to be placed or left in the Right of Way, except for such times as proper use thereof is not required by the Applicants or their successors in title.
[17] In the ordinary course, the Applicants appear to be entitled to their costs of this Application. If the parties cannot agree, I expect to receive written submissions from both sides on the issue of costs, not later than 30 days from the release of these reasons.
Honourable Mr. Justice Wolf Tausendfreund
Released: May 18, 2017
COURT FILE NO.: CV-16-0473-00 DATE: 2017, May ___ ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JEREMIAH BLAKE and MEGAN WILLIAMS Applicants – and – BRIAN LAING and CHRISTINE LAING Respondents ENDORSEMENT Tausendfreund, J.