Court File and Parties
Court File No.: CV-15-538471 and CV-16-547696 Date: 20181102 Superior Court of Justice - Ontario
Re: TALYN TERZIAN, Applicant – and – NIRANJAN VIVEKANANDAN and SARA AZARGIVE, Respondents
And Re: NIRANJAN VIVEKANANDAN and SARA AZARGIVE, Applicants – and – TALYN TERZIAN and KEVIN GILMOUR, Respondents
Before: E.M. Morgan J.
Counsel: Alan Dryer, for the Applicant in CV-15-538471 and the Respondents in CV-16-547696 Sarah Turney, for the Respondents in CV-15-538471 and the Applicants in CV-16-547696
Heard: November 2, 2018
Settling the Order
[1] On June 27, 2018, I issued reasons for judgment in which, among other things, I granted an easement to the Respondents in CV-15-538471 and the Applicants in CV-16-547696, Niranjan Vivekanandan and Sara Azargive (together “Vivekanandan”), over the driveway portion of a Disputed Area with their neighbours, the Applicant in CV-15-538471, Talyn Terzian, and the Respondents in CV-16-547696, Talyn Terzian and Kevin Gilmour (collectively “Terzian”). Vivekanandan’s property is known municipally as 47 Lawrence Avenue East (“47 Lawrence”) and Terzian’s property is known municipally as 45 Lawrence Avenue East (“45 Lawrence”).
[2] In my judgment, I found that the easement in favor of 47 Lawrence excludes what I called the “grassy area” or “grassy island” that straddles the boundary line between the two properties at the south end. I note for the record that a colour photo of the grassy area indicates that it is not entirely grassy, but rather is landscaped with grass, shrubbery, stones, etc. Both parties correctly understand that by “grassy area” or “grassy island” I am referring to this landscaped area straddling the southern end of the two properties. For ease of reference, I will continue to refer to it as the “grassy area” or “grassy island” as I did in my June 27th judgment.
[3] Counsel have agreed on all of the terms of the Order except for one: how to describe the easement as it approaches and reaches the northern end of the grassy area described above. I do not fault either counsel for this confusion. The problem is that at the northern end of the grassy area (or the southern end of the easement), the grassy area comes to a point and forms a triangular shape.
[4] My judgment states that the parcel registers for the properties are to be amended to show 47 Lawrence as having “an easement over the portion of the Driveway Area north of the grassy island and 45 Lawrence as subject to an easement over that portion of the Driveway Area.” Counsel for Vivekanandan submits that this means that the southern end of the easement follows the diagonal line that bounds the grassy island – effectively, the hypotenuse of the triangular tip at the northern end of the grassy island. In other words, it is Vivekanandan’s position that the phrase “north of the grassy island” means that the easement follows the line of the grassy island.
[5] Counsel for Terzian submits that this means that the southern end of the easement forms a straight line westward from the northernmost tip of the grassy island (i.e. from the northeast corner of the triangle) to the western edge of the paving stones that bound the 47 Lawrence driveway on its east side. In other words, it is Terzian’s position that the phrase “north of the grassy island” means that the easement includes only areas which are north of the northernmost tip of the grassy island.
[6] Counsel for Vivekanandan understands my judgment correctly. The southern boundary of the easement for which 47 Lawrence is the dominant tenement and 45 Lawrence is the servient tenement runs along the diagonal line represented by the boundary of the grassy island. Otherwise, if the southern end of the easement were squared off as counsel for Terzian suggests, the easement would exclude a small portion of area of paving stones to the west of the boundary of the grassy island and outside of the grassy island which my judgment did not exclude from the easement.
[7] The parcel registers shall therefore be amended to show the easement and other matters reflected in my June 27, 2018 judgment, with the southern end of the easement being the diagonal boundary of the grassy island as submitted by counsel for Vivekanandan.
[8] I thank both counsel for their patient and helpful submissions on this issue.