Court File and Parties

COURT FILE NO.: CV-18-602033 COURT FILE NO.: CV-18-603729 DATE: 2018/12/20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

1832732 Ontario Corp. Applicant – and – REGINA PROPERTIES LTD. and PETER REGINA Respondent

AND BETWEEN:

REGINA PROPERTIES LTD. Applicant – and – 1832732 ONTARIO CORP. Respondent

Counsel: Bruce C. Robertson for the Applicant (1832732 Ontario Corp.) Michael E. Caruso, Q.C. for the Respondent (Regina Properties Ltd. and Peter Regina) Michael E. Caruso, Q.C. for the Applicant (Regina Properties Ltd.) Bruce C. Robertson for the Respondent (1832732 Ontario Corp.)

HEARD: December 7, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] The Applicant, 1832732 Ontario Corp., which I will refer to as “Brar Corp.” owns a multi-unit commercial/industrial property municipally known as 35 Taber Rd., Toronto. Dashan Brar along with his son, Rajdeep Brar, are the principals of Brar Corp.

[2] The Respondent, Regina Properties Ltd. owns the adjoining multi-unit commercial property municipally known as 31 Taber Rd. Peter Regina is the principal of Regina Properties, which is the registered title holder of 31 Taber Rd. Mr. Regina was the principal of a corporation known as Regina Taber Properties Inc., which formerly was the owner of the 35 Taber Rd. property.

[3] In its application, Brar Corp. seeks: (a) a declaration or a permanent mandatory order that it is the owner of an easement over the property owned by Regina Properties; (b) an order that the registered legal descriptions of 31 Taber Rd. and of 35 Taber Rd. be amended to include the easement or that the permanent mandatory order establishing the easement be registered; (c) an injunction restraining Regina Properties from obstructing the easement; and (d) damages.

[4] In a cross-application, Regina Properties seeks an Order: (a) vacating the Notice (Instrument No. AT2852772) that pursuant to s. 71 of the Land Titles Act, Brar Corp. registered against the title of 31 Taber Rd.; and, (b) enjoining Brar Corp. from parking vehicles on Regina Properties’ driveway and parking lot.

[5] Apart from vacating Instrument No. AT2852772, I dismiss the application and the cross-application.

B. Facts

[6] 31 Taber Rd. and 35 Taber Rd. are adjoining commercially zoned properties in the City of Toronto (in the area that was formerly the City of Etobicoke). A survey of the properties is set out below.

[7] In the depicted survey, Taber Rd. is at the top (north). Brar Corp.’s property (35 Taber Rd.) property is at the left (west) of the survey, and Regina Properties’ property (31 Taber Rd.) property is to the right (east). The driveway onto Brar Corp.’s property is to the far left (west) of that property. The driveway onto Regina Corp.’s property is located beside the east side of Brad Corp’s property.

[8] It shall be important to note that a vehicle traveling on Taber Rd. can use the driveway on Brar Corp.’s property (35 Taber Rd.) to enter that property, then travel across the back of the property and exit and return to Taber Rd. via the driveway on Regina Corp.’s property (31 Taber Rd.) Conversely, a vehicle traveling on Taber Rd. can use the driveway on Regina Properties’ property (31 Taber Rd.) to enter that property, then travel across the back of Brar Corp.’s property and exit and return to Taber Rd. via the driveway on Brar Corp.’s property (35 Taber Rd.).

[9] The 35 Taber Rd. property is a multi-unit commercial/industrial property. At least three of the tenants operate auto mechanic shops. Due to the nature of the uses being made of the 35 Taber Rd. property, the City of Toronto requires Brar Corp. to apply every five years for a minor variance of the zoning by-law with respect to the uses and parking for those uses on the 35 Taber Rd. property.

[10] As already noted above, there is a driveway on Regina Properties property (31 Taber Rd.). Brar Corp.’s tenants use Regina Corp.’s driveway. Use of the driveway is of particular importance to the tenants operating auto mechanic shops because absent the access and egress to and from and on the neighbouring property, it would be very difficult to maneuver and turn around trucks, trailers, and large vehicles for the auto shop garages.

[11] Pursuant to an Agreement of Purchase and Sale dated August 23, 2010, Regina Taber Properties Inc., as vendor, agreed to sell 35 Taber Rd. to Darshan Brar in Trust, as purchaser.

[12] Mr. Regina and Mr. Darshan Brar negotiated the agreement, and Mr. Regina signed the agreement on behalf of Regina Taber Properties Inc. After the sale, the vendor was voluntarily wound up.

[13] The purchase price for 35 Taber Rd. was $1.18 million. The agreement contained the following provision in Schedule A:

The Seller represents to the best of his knowledge and belief that:

[2] the driveways serving the property are located wholly within the boundaries of the property, and entrance relating to such driveways have been approved by the appropriate road authority & authorized “Right of Use” with neighbouring property at 31 Taber Rd. The parties agree that these representations shall survive and not merge on completion of this transaction, but apply only to the state of the property existing at completion of this transaction.

[14] Before the closing of the transaction, on October 18, 2010, Mr. Regina signed a Statutory Declaration, which stated:

1. I am the President of Regina Taber Properties Inc. (the “Vendor”). I have read and am familiar with the agreement of purchase and sale between Vendor and 1832732 Ontario Corp. (the “Purchaser”), accepted August 23, 2010, as amended, including all appendices thereto (the “Agreement”). In this connection I have examined in particular the representations, warranties and covenants contained in the Agreement and the terms and conditions contained in the Agreement. The words “right of use” in the agreement means only the right to enter from 31 Taber Rd. & to exit 31 Taber Rd does not permit the right to park on the property municipally known as 31 Taber Rd.

2. I have made or caused to be made such examinations or investigations as are, in my opinion, necessary to furnish this declaration, and I have furnished this declaration with the intent that it may be relied upon by the Purchaser as a basis for the consummation of the subject sale transaction, to the best of my knowledge and belief.

3. The representations, warranties contained in the Agreement are, and shall be as of the date of closing of the subject transaction, true and correct as of the date hereof; all covenants contained in the Agreement have been complied with and no breach the terms and conditions contained in the Agreement has occurred and is continuing as of the date hereof and at the time of closing, to the best of my knowledge and belief.

4. I make this declaration for no improper purpose and make this declaration conscientiously knowing that it has the same effect as a statement made pursuant to the Canada Evidence Act.

[15] During the negotiations, the Brars were aware that the tenants of 35 Taber Rd. needed access through 31 Taber Rd.

[16] Rajdeep Brar, who is the president of Brar Corp., testified that the Brars would never have purchased the 35 Taber Rd. property without assurances that its tenants could use the driveway on the 31 Taber Rd. property.

[17] Mr. Regina deposed, however, that the “right to use” referred to in the Agreement of Purchase and Sale and in his Statutory Declaration were just to allow access to the overhead garage door for Unit 3 of the 35 Taber Rd. property.

[18] The purchaser Darshan Brar in Trust directed that title be taken in the name of Brar Corp., and the sale transaction closed on November 1, 2010 pursuant to Transfer, Instrument No. AT2541595. The legal description was “Lot 51, Plan 4630 City of Toronto (formerly City of Etobicoke), City of Toronto”.

[19] On the closing of the transaction, Brar Corp. gave a vendor take back mortgage – not to Regina Taber Properties Inc., which was to be wound-up - but to Regina Properties, Mr. Regina’s associated corporation.

[20] Due to the nature of the uses being made of the 35 Taver Rd. property, which did not comply with the zoning, Brar Corp. was required to seek minor variances every five years. After the closing of the transaction, in the summer of 2011, Brar Corp. applied for the minor variance, and it was advised by City of Toronto staff that a right-of-way that provided access to the property should be registered against the title of the property rather than the informal arrangement between the neighbouring property owners.

[21] Brar Corp. followed up and attempted to contact Mr. Regina to obtain an instrument to register that would establish the right-of-way. Brar Corp., however, was unsuccessful in contacting Mr. Regina, and to protect its position in the meantime, pursuant to s. 71 of the Land Titles Act, Brar Corp. registered a Notice (Instrument No. AT2852772) against the title of Regina Properties’ property.

[22] In the years following the closing of the transaction, notwithstanding the absence of a registered right-of-way, there were no major problems about access and egress from either property.

[23] However, from time to time, there were problems about parking. Regina Properties objected to Brar Corp.’s tenants parking vehicles on 31 Taber Rd. The problem was that the tenants on the east side of the 35 Taber Rd. property were parking vehicles in the driveway of 31 Taber Rd.

[24] Regina Properties would have been aware of these parking problems when Mr. Regina swore his statutory declaration. As principal of Regina Properties Tabor Inc., he was familiar with the uses being made with the property and of the need to obtain minor variances because of the auto repair business located on 35 Taber Rd.

[25] Mr Rajdeep Brar deposed that after the closing, while there were problems about parking, they were not as significant as Mr. Regina would have them to be. Mr. Brar deposed that Brar Corp. had evicted some tenants for failing to abide by its parking rules. Further, he said that had been advised by some of Brar Corp.’s tenants that they were parking vehicles on 31 Taber Rd. with Mr. Regina’s permission or that they had arrangements with some of Regina Corp.’s tenants to allow parking in parking spaces at 31 Taber Rd.

[26] In May 2016 Brar Corp. applied again for a minor variance. City Staff suggested that a zoning by-law amendment would be preferable to the repeated applications for a minor variance. Thus, Brar Corp. applied for a zoning amendment.

[27] For the purposes of the zoning application, the City’s Development Engineering Department prepared a report about what was required for an amendment to the zoning of Brar Corp.’s property. The following excerpts from the Report are relevant to the application and cross-application now before the court:

APPLICATION DESCRIPTION

This is in reference to the above application made by MacNaughton Hermsen Britton Clarkson Planning Limited (MHBC), on behalf 1832732 Ontario Corp., for the proposes of Zoning By-Law Amendment to facilitate the continued operation of a multiple occupancy building with reduced parking on the lands generally located southwest of Taber Road and Airway Road. The subject site is located at 35 Taber Road, north of Haas Road, in the former City of Etobicoke (Ward 2). The site is currently zoned “Industrial Class 2” (I.C2) under the Etobicoke Zoning Code and “Employment Industrial Zone” (E) under By-law No. 569-2013. The site is currently occupied by a seven-unit, 956.89 m2 multiple-occupancy building.

A. REVISIONS AND ADDITIONAL INFORMATION REQUIRED FOR PLANS, STUDIES AND DRAWINGS

The owner is required to amend the Studies and/or Drawings to address the following comments and resubmit for the review and acceptance by the Executive Director of Engineering and Construction Services prior to approval of the zoning by-law amendment.

1. Transportation Services

1.1. According to the submitted site plan, 23 on-site parking spaces are provided on the site. Three of these spaces are located east of the building and encroach into the neighbouring property at 31 Taber Road. These three parking spaces must be deleted from the site plan.

1.2 We require the owner of 35 Taber Road and the owner of the adjacent property at 31 Taber Road to enter into an easement agreement, to be registered on-title, that establishes reciprocal rights of vehicular and pedestrian access in perpetuity between the property at 31 Taber Road (which may require access onto the neighbouring property at 35 Taber Road for vehicle maneuvering purposes) and the property at 35 Taber Road (which requires access to the neighbouring property at 31 Taber Road for use of their driveway to Taber Road and for vehicle maneuvering purposes). The existing informal arrangement can be easily modified and is thus not acceptable for this rezoning application.

D. BACKGROUND

DRIVEWAY ACCESS/SITE CIRCULATION

Existing full-movement driveways are provided to Taber Road from the subject site to the west and to the east of the existing building. No modifications are proposed as part of the subject rezoning application.

The driveway to the site is located entirely on the adjacent property at 31 Taber Road. A statutory declaration dated October 18, 2010, included as an appendix in the planning rationale, appears to include an informal arrangement that permits vehicular access to the site at 35 Taber Road via the driveway on 31 Taber Road, although the passages in the declaration that describe this access appear to have been a typewritten amendment to the declaration. We require an easement agreement establishing reciprocal rights of vehicular and pedestrian access in perpetuity between the properties at 31 Taber Road (which may require access onto the property at 35 Taber Road for vehicle maneuvering purposes) and 35 Taber Road (which requires access to the neighbouring property at 31 Taber Road for use of their driveway to Taber Road and for vehicle maneuvering purposes).

The submitted draft by-law amendment for Zoning By-law No. 569-2013 shall be revised to delete Clause 3(b) which states: "Vehicle access to the lot is permitted to be shared with the abutting property at 31 Taber Road." It is not appropriate to include such a clause in the zoning by-law amendment.

PARKING

According to the submitted site plan, 23 on-site parking spaces are provided on the site. Three of these spaces are located east of the building and encroach into the neighbouring property at 31 Taber Road. These three parking spaces must be deleted from the site plan.

[28] Brar Corp. sought to obtain Regina Properties co-operation in registering a reciprocal easement as required by the City’s engineering department. Regina Properties, however, refused to co-operate. Brar Corp.’s real estate lawyer advised that in the absence of cooperation, a court order would be required.

[29] On June 23, 2018, Brar Corp. commenced its application for a court order.

[30] In June 2018, Regina Properties constructed a fence on the property line between 31 Taber Rd. and 35 Taber Rd. The fence has a gate. The size and location of the gate and the fence limits the maneuverability of vehicles through the driveway. Brar Corp. alleges that the fence prevents garbage collection for two of its tenants and has made one of its units unrentable because there is insufficient turning radius to maneuver vehicles at the unit.

[31] Mr. Regina deposed that the fence does not preclude access to 35 Taber Rd. as the length does not run the full length of the property line, stopping 40 feet from the back, and there is an opening in the fence for access to the tenant in Unit 3 of 35 Taber Rd.

[32] Mr. Regina says that the fence was constructed to prevent Brar Corp.’s tenants parking cars on 31 Taber Rd.

[33] The photographs provided by Mr. Regina reveal that the fence is failing in its intended purpose. Vehicles continue to be parked on Regina Corp.’s property.

[34] There is a dispute between the parties about the circumstances that led to the construction of the fence. Mr. Regina says that that the fence was constructed at the suggestion of the Brars as a solution to the problem of their tenants parking on 31 Taber Rd. This is denied by Rajdeep Brar who says that the Brars were not consulted about the construction of the fence.

[35] On August 21, 2018, Regina Corp. commenced its counter-application to enjoin the trespass on its driveway and parking lot.

C. Position of the Parties

[36] Brar Corp. submits that Mr. Regina was the controlling mind of both Regina Properties and of Regina Taber Properties Inc. and that the promises and assurances given by Mr. Regina about the use of the lands of Regina Properties at 31 Taber Rd. are binding on Regina Properties. Brar Corp. asks the court, if necessary, to pierce the corporate veil and enforce the promise that Regina Taber Properties Inc. made to establish a right-of-way on its property for the benefit of Brar Corp. [2]

[37] Brar Corp. submits that Regina Properties contracted to provide a right-of-way over 31 Taber and that the court should enforce this obligation by making a vesting order pursuant to section 100 of the Courts of Justice Act, which provides that: “a court may by order vest in any person an interest in real or personal property that the court has authority to order to be disposed of, encumbered or conveyed.”

[38] Brar Corp. submits that the court has the discretionary jurisdiction to make a vesting order notwithstanding that the conveyance of a right-of-way may contravene the subdivision control provisions of the Planning Act. [4] It submits that the court should exercise this jurisdiction in the immediate case, especially because the City planning authority has requested that a right-of-way be registered on title in perpetuity.

[39] Regina Properties submits that Brar Corp. has no standing to enforce the Agreement of Purchase and Sale because the contract was between Regina Taber Properties Inc. and Darshan Brar in Trust and because there was no assignment or rights to Brar Corp. Regina Properties disputes that an easement was established, and in its counter-application, it submits that if any right was provided it did not include the right to park on its property. It denies that it is interfering with Brar Corp.’s rights and claims damages for trespass and an injunction to restrain Brar Corp.’s tenants from parking at 31 Taber Rd.

D. The Creation of Easements

[40] An easement may be created by: (1) grant; (2) reservation; (3) operation of law; (4) statute; (5) operation of s. 15 (1) of the Conveyancing and Law of Property Act, (6) prescription; and (7) equitable estoppel. [6]

[41] An easement is an incorporeal hereditament, being an inheritable, non-possessory ownership interest in land. It is a right of usage over a property, which is described as the servient tenement that is annexed to a parcel of land, which is described as the dominant tenement. [7]

[42] Easements may be positive or negative. [8] A positive easement grants to the owner of the dominant tenement the right to use the land of the servient tenement in a particular way that would, in the absence of the easement, be a nuisance or trespass. Having an easement permits the owner of the dominant tenement to require the owner of the servient tenement to suffer some use on that land. [9] A negative easement grants to the owner of the dominant tenement a right to prevent the owner of the servient tenement from using his or her land in a particular way. An example of a negative easement is an easement for building support. The effect of this easement is to enjoin the owner of the servient tenement from using his or land in a way that would withdraw the support provided to the dominant tenement. The types of easements are not closed, and new examples may be created. [10] However, there are few negative easements, and the law is reluctant to grant new ones. [11] The work of negative easements is, practically speaking, more often performed by equity through its recognition of restrictive covenants. [12]

[43] The case at bar concerns an alleged positive easement in the nature of a right-of-way.

[44] When a right of usage fails to constitute an easement, it may constitute a licence, which is a personal, essentially contractual right to use another’s land, but that is not an ownership interest in land. A licence is the grant of authority to enter upon another’s land for an agreed purpose where such entry would otherwise be a trespass and, therefore, the landowner granting the licence cannot bring an action for trespass until the licence comes to an end or is revoked. [13]

[45] There are four major requirements for or characteristics of an easement. [14]

[46] First, there must be a dominant tenement that enjoys the benefit of the easement, and a servient tenement that carries the burden of the easement. The grantee of the easement must have an estate or interest in the dominant tenement at the time of the grant. [15] In Ontario, with an exception for some statutory easements, easements do not exist “in gross”, which means that an easement in Ontario must have an identifiable dominant tenement. [16]

[47] Second, the easement must accommodate, that is, better or advantage, the dominant land. It is not enough that an advantage has been conferred to the owner of the dominant property making his or her ownership more valuable or providing a personal benefit to him or her; rather, for there to be an easement, the right conferred must serve and be reasonably necessary for the enjoyment of the dominant tenement. [17] The policy rationale for this requirement is that the burdening of the servient property is justified because another property is benefited. [18] A benefit personal to the landowner of the dominant tenement that does not benefit his or her land cannot constitute an easement. [19] The requirement that the easement must be reasonably necessary for the enjoyment of the dominant tenement serves to emphasize that there must be a connection between the easement and the dominant tenement, as opposed to a personal right. [20] The reasonable necessity requirement is fact specific and is applied in a flexible manner having regard to current social conditions and trends. [21]

[48] Third, the dominant and servient tenements cannot be owned by the same person. [22]

[49] Fourth, the easement must be capable of forming the subject matter of a grant, that is, it must be of a type recognized by the law, be defined with adequately certainty, and be limited in scope. [23]

[50] Where a vendor grants an easement, he or she is encumbering his or her own lands with an ownership interest for the benefit of the lands of another landowner. Common law required a deed for the creation of an easement by grant, but equity would enforce an agreement to grant an easement if there was valuable consideration or if the owner of the dominant property incurred expenditure or work in furtherance of the agreement. Equity would enforce the agreement between the parties and also against parties taking title to the servient property with notice of the agreement to grant an easement. [24]

[51] Where an easement is created by express grant or by express reservation in a grant, the nature and extent of the easement, including any ancillary rights, are determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed or were within the reasonable contemplation of the parties when the easement was created. [25]

E. Discussion

1. Brar Corp.’s Application

[52] I agree with Brar Corp.’s argument that Mr. Regina, Regina Taber Properties Inc., and Regina Properties made a promise about the use of the driveway on 31 Taber Rd. that was binding on Regina Properties.

[53] Mr. Regina could not and would not have given the assurances and promises that he did about the use of the 31 Taber Rd. property unless he intended as the principal and controlling mind of the associated company to bind Regina Properties, which it should be noted took a mortgage back on the completion of the sale of the property in place of Regina Taber Properties Inc.

[54] This is an appropriate case, if necessary, to pierce the corporate veil, and I find that Regina Properties did make an enforceable promise about the use of the 31 Taber Rd. property. However, as I shall explain below, the promise was to grant a license, and notwithstanding Brar Corp.’s arguments to the contrary, Regina Properties did not promise to grant an easement.

[55] Putting aside for the moment the nature of the right promised by Regina Properties, I disagree with its argument that Brar Corp. does not have the standing to enforce the right.

[56] Darshan Brar in Trust, as purchaser, directed that title by taken in the name of Brar Corp. Regina Properties Taber Inc. conveyed title to Brar Corp. Mr. Regina’s Declaration was made on behalf of Regina Taber Properties Inc. and it was addressed to Brar Corp. The direction re title served as an assignment, and there is no doubt that Mr. Regina, Regina Properties Taber Inc., and Regina Properties knew that an enforceable promise was being made to Brar Corp.

[57] As I shall explain below, Regina Properties granted a license to access its property, but it did not grant an easement which is an interest in land. The scope of the license granted by Regina Properties did not permit parking vehicles on the 31 Tabor Rd. property. The license simply allowed Brar Corp. and its tenants to trespass onto 31 Tabor Rd. property for the purposes of access and egress to and from the 35 Tabor Rd. property.

[58] I begin the analysis of what right was being granted by Mr. Regina and his corporations to Brar Corp. by noting from Mr. Regina’s Statutory Declaration that while the right was to survive and not merge on completion, it applied only to the state of the property existing at completion of this transaction. This is a clear indication that Regina Properties was not granting an interest in land and was not restricting itself from altering the state of the property and of ending the license if the state of the property were to change in the future.

[59] Further indications that Regina Properties was not granting an interest in land may be taken from the circumstance - about which both Regina Properties and Brar Corp. do not dispute - that a grant of a permanent right-of-way (or one of longer duration than 21 years) would be illegal under the subdivision control provisions of the Planning Act unless regulatory consent to the conveyance was obtained. In contrast, no regulatory approval is required for a time-limited license, which as noted above does not entail a conveyance of a proprietary interest. In the immediate case, it appears that the parties contracted for a license that did not require regulatory approval.

[60] Had the parties contracted for a permanent right-of-way, then the contract would have been illegal in the absence of regulatory approval. That the City subsequently and currently wishes the parties to agree to a permanent right-of-way is of no moment. The City’s intent was not a factor in the parties’ negotiations.

[61] Moreover, what the City prefers is that there be a reciprocal grant of rights-of-way; i.e. the City requires that Brar also convey a permanent right-of-way over 35 Taber Rd. However, Reciprocal rights-of-way were never negotiated by the parties.

[62] In any event, had the parties intended to establish an easement, then, in my opinion, two of the four major requirements for or characteristics of an easement were not satisfied; namely the second requirement that the easement better or advantage the dominant land and the fourth requirement that the subject matter of the grant be defined with adequate certainty and be limited in scope.

[63] In my opinion, the second requirement is not satisfied because it is not enough that an advantage has been conferred to the owner of the dominant property. In the immediate case, a personal benefit; i.e., a limited license was given to Brar Corp. that was not intended to benefit its land or to burden the land of Regina Properties.

[64] As for the fourth element, in the immediate case, there is a significant controversy about what the dimensions would be of the grant of a right-of-way, particularly if the right-of-way was a reciprocal one as required by the City of Toronto.

[65] With respect to the grant of a license, Brar Corp. has no complaint in its operation. It had and continues to have access and egress to its own property via Regina Properties’ property. The recently constructed fence does not interfere with that access and egress, and, thus, there is no need to enforce the contract and there is no breach of contract to remedy by injunction, damages, or any other remedy.

[66] Because of my finding that Regina Properties contractually granted only a license and has not breached its contract, I need not say anything about whether Brar Corp. would have been entitled to a vesting order for an easement, nor need I comment about whether the court should exercise its discretion to grant a vesting order notwithstanding that the vesting order would contravene the subdivision control provisions of the Planning Act.

[67] It follows from the above analysis that Brar Corp. does not have a right to an easement and that Instrument No. AT2852772 should be vacated, and I so order.

2. Regina Properties’ Counter-Application

[68] The vacating of the Instrument No. AT2852772 provides a segue into the counter-application. The counter-application is in its essence a contested claim for trespass brought by Regina Properties.

[69] Regina Properties brings a trespass claim by application and not by action, and it seeks the remedy of a permanent injunction.

[70] Although interlocutory and permanent injunctions are typically claimed as a remedy in a proceeding by action, these remedies may also be claimed in an application if the injunction is ancillary to relief claimed in a proceeding properly commenced by a notice of application. [26]

[71] The case at bar advancing a trespass claim is, however, not a claim that can properly be advanced by application.

[72] Under rule 14.05 of the Rules of Civil Procedure, a proceeding may be brought by application for certain categories of cases depending upon the relief claimed and there is also general jurisdiction to deal with matters where the facts are not likely to be controverted. This jurisdiction is set out in rule 14.05(3), which states:

14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;

(b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible;

(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation;

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;

(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

(f) the approval of an arrangement or compromise or the approval of a purchase, sale, mortgage, lease or variation of trust;

(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;

(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or

(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.

[73] Regina Properties’ trespass claim comes within none of the categories of case that is appropriate for a proceeding by application and its claim for injunctive relief is not ancillary to a claim that falls within rule 14.05.

[74] The case at bar is the extreme opposite to a case where it is unlikely that there will be material facts in dispute. A trespass action like the one in the case at bar is inappropriate to proceed by application.

[75] While I have a jurisdiction to convert this application into a trial by action, in my opinion, that discretion should not be exercised and it is far preferable for the trespass claim to proceed by a fresh action. Therefore, apart from vacating Instrument No. AT2852772, I dismiss the cross-application. The dismissal is without prejudice to such claims, counterclaims, or defenses as either party may be advised to bring by action.

F. Conclusion

[76] For the above reasons, apart from vacating Instrument No. AT2852772, I dismiss the application and the cross-application. Given the outcome, there should be no order as to costs.

Perell, J.

Released: December 20, 2018