Court File and Parties

BRACEBRIDGE COURT FILE NO.: CV-18-94-00 DATE: 20190528 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

John Arthur Walker, Susan Jayne Walker, Karen Barbara Ann Seegars, Maritza Sanchez and Barry Street Applicants – and – Brian Douglas Coldin, 1387881 Ontario Inc., The Bank of Nova Scotia, Parklane Investments Inc. and Barbara Coldin Respondents

Counsel: Owen Thompson, for the Applicants Davin Charney, for the Respondents

HEARD: May 22, 2019

Reasons for Decision

VALLEE J.:

Background

[1] This matter concerns five cottage waterfront properties and road access to them. The Applicants, three of the property owners, request an order for a declaration that they have a prescriptive easement for vehicular and pedestrian traffic over Part 5, Plan 35R-11651, being PIN 48118-0314, located on the corporate Respondent’s land (the Resort Property), in favour of their lands described as PIN 48118-0319 (the Walker Property), PIN 48118-0318 (the Sanchez Property) and PIN 48118-1122 (the Seegers Property). The personal Respondent, Mr. Coldin, is the principal of the corporate Respondent, 1387881 Ontario Inc. (1387).

[2] The Applicants also request an order that the Land Registrar be directed to amend the property records for the Resort Property to show that it is subject to the easement as well as the records for their own properties to show that they each have an easement over Part 5, Plan 35R-11651.

[3] The Applicants further request orders for injunctions prohibiting Mr. Coldin from carrying out certain actions that they allege interfere with their use of Part 5.

[4] The Applicants also request an order that the police force having jurisdiction in the area enforce the terms of the prescriptive easement and the injunction orders.

[5] The cottage properties are landlocked by the Resort Property. The Respondents concede that the Applicants have a prescriptive easement, which I will also refer to as a right-of-way, over Part 5 for vehicular and pedestrian traffic but do not concede that it includes winter use. The Respondents state that they have built a new road on the Resort Property. The easement should be moved to that road.

Issues

[6] Can this court make a determination that the right-of-way be moved to the new road?

[7] Is the right-of-way for seasonal or year round use?

[8] Should an injunction order be made to prevent the Respondents from interfering with the Applicants’ use of the right-of-way?

History of Previous Relevant Legal Proceedings

[9] The Applicants own waterfront cottage properties that are more or less rectangular shaped. Their rear lot lines are adjacent to the northerly end of Part 5, which is approximately 1/3 of Part 5. The southerly end of Part 5, which is approximately 2/3 of Part 5, runs through the Resort Property. See Part 5, Plan 35R-11651 marked as Schedule A, with my handwritten note indicating Part 5.

[10] Attached as Schedule B is a Property Index Map provided by the Applicants. The map shows five cottage lots. I have indicated on it the current owners being Ms. K. Seegers, Ms. J. Morrison, Mr. M. Bosveld, Ms. M. Sanchez, Mr. J. Walker and Ms. S. Walker, as well as the previous owners of the Sanchez and Walker properties, the relevance of which is explained below. Ms. Morrison and Mr. Bosveld are not Applicants in this matter.

[11] Over the years, a number of difficulties have arisen between the cottage owners and the Respondents regarding use of the right-of-way. The following is a brief summary.

[12] On January 12, 1988, Reference Plan 35R-11651 was deposited at the Land Registry Office depicting Part 5.

[13] The corporate Respondent, 1387, purchased the Resort Property in 2000.

[14] On June 27, 2003, Anita Ramsay and Linda Johnston, owners of another one of the cottage properties, obtained an order for an injunction to prevent the Respondents from interfering with their use of the right-of-way. This order is a general prohibition. It does not allow the Respondents to interfere with the Applicants’ use of the right-of-way in the winter months.

[15] On September 8, 2003, 1387 registered a transfer purporting to convey the right-of-way from itself to itself on the basis that it had been extinguished. That transfer is notable because page three sets out the history of the right-of-way. It states that by Deed created in 1941 and registered on August 6, 1941, a right-of-way was created in favour of Ms. A. Ramsay, Ms. J. Morrison, Mr. W. Lawrence and Ms. R. Lawrence (predecessors in title to Seegers), and Ms. L. Lamothe and Mr. M. Smith (predecessors in title to Walkers).

[16] 1387 commenced an application against the predecessors in title to the current property owners for a declaration that the easement had been extinguished. Both the Ontario Superior Court of Justice in 2004 and the Ontario Court of Appeal in 2005 disagreed that the easement had been extinguished.

[17] On December 16, 2009, Lois Lamothe and Mark Smith, then owners of the Walker Property, obtained a similar order for an injunction against the Respondents. It states that “the Defendants… shall not take any action to put a gate across the said right of way and further they shall not place automobiles or any other object or thing on the said right of way.” [Emphasis added] Again, this order is a general prohibition. It does not state that the Respondents may interfere with Lamothe and Smith’s use of the right-of-way in the winter months.

[18] On July 6, 2012, Lamothe and Smith transferred title to the Walkers. The Transfer states that it includes the right-of-way is referred to as Part 5 Plan 35R-11651. On page two, the right-of-way is described as follows:

A RIGHT OF WAY at all times for pedestrians and vehicular traffic in common with others entitled thereto, over along and upon a strip of land twenty feet in perpendicular width the eastern limit of which has been hereinbefore described commencing at the northern limit of the public road sixty-six feet in perpendicular width passing through the said lot and terminating at the place of beginning of the lands herein described. [Emphasis added]

[19] On April 14, 2014, William Lawrence and Karen Seegers obtained an order confirming the prescriptive easement over Part 5. The description of the easement in the order does not indicate any limitation on its use. The order also directs the Land Registrar to amend the property records for both the Resort Property, to show that it is subject to the easement and the property records for the Seegers Property to indicate that title was together with the easement.

[20] On May 5, 2014, the Abstract Index for PIN 48118-0314, the Resort Property, was amended to show that it is subject to a right-of-way over Part 5.

Can this court make a determination that the right-of-way be moved to the new road?

The Respondents’ Position

[21] The Respondents state that many difficulties have arisen over the years regarding the cottagers’ use of the right-of-way over Part 5. A common sense solution is to move the right-of-way to the new road. It will eliminate the difficulties. The new road is better than Part 5 for a number of reasons.

Analysis

[22] While moving the right-of-way to the new road may be a common sense solution, the Respondents have not put this request properly before the court. It is set out only as a suggestion in the responding affidavit. There is no notice of motion requesting the relief. All of the cottage owners would require notice of such a motion because it would affect their rights substantially. They should have an opportunity to respond. The new road has not been surveyed. It cannot be defined for the purposes of creating a new right-of-way. Other costs and legal considerations would need to be addressed including who will pay for the survey, the registration of a new right-of-way on title to the Resort and the cottage properties.

[23] For these reasons, I find that this court cannot make a determination within this application that the right-of-way be moved to the new road.

Is the right-of-way for seasonal or year round use?

The Respondents’ Position

[24] The Respondents state that the previous owners have confirmed that their right-of-way over Part 5 has always been seasonal from May to October inclusive. During this time, it has always been gated for the safety and security of the Resort’s owners and guests as well as the cottage owners. Presently, there are three gates on the right-of-way. Without these gates, the Respondents cannot prevent unpaid guests and other trespassers from driving through the Resort and using its facilities.

[25] The Respondents state that from at least 1975, during the seasonal use, the gate or gates have always been locked nightly. Users have been required to check in at the Resort or be waived through by the owners. During the winter, the right-of-way was always closed. The previous owners of the Resort put blocks on the right-of-way. The gate was locked.

[26] In support of these statements, the Respondents rely on letters from 2003 to 2004. The previous Resort owner wrote a letter dated October 11, 2003 stating that when she owned the Resort, she was not there during the winter. The gate was always locked in the winter. The Lawrences wrote a letter dated October 6, 2003 stating that the previous Resort owners did not allow them access from October to May. The road was always closed during that period. The owners locked the gates and put blocks on the road. The Resort manager wrote a letter dated February 21, 2003 to Ms. Johnston stating that the road was meant to be used seasonally. Her prolonged use of the road that winter caused damage to it and the water mains nearby.

Analysis

[27] I find that the letters from 15 and 16 years ago are of limited value. As noted above, the issue has been before the court more recently. The 2003 and 2009 injunctions obtained against the Respondents prohibited them from interfering with use of the right-of-way. The orders did not allow the Respondents to interfere with the cottage owners’ use of the right-of-way in the winter. In 2014, this court ordered that there was a general prescriptive easement over Part 5. The 2014 order did not limit Mr. Lawrence and Ms. Seegers’ use of the right-of-way to only the summer months.

[28] The Applicants state that one of the cottage owners, Ms. Johnston, lives there year-round. There is no evidence as to when this began; however, the letter to her dated February 21, 2003 confirms that she was using the road in the winter of 2002/2003.

[29] After considering the above, and the fact that the right-of-way is described in the Walker transfer as “a right of way at all times for vehicular and pedestrian traffic”, I find that the cottagers’ use of the right-of-way is not limited to the summer months.

Should an injunction order be made to prevent the Respondents from interfering with the Applicants’ use of the right-of-way?

The Respondents’ Position

[30] The Respondents do not contest the Applicants’ allegations of interference set out below. The Respondents state that all three gates are necessary for security.

Analysis

[31] The Applicants have set out a number of things that Mr. Coldin has done to interfere with their use of the right-of-way including:

(a) maintaining chained gates despite prohibitions in earlier orders; (b) installing a third gate; (c) placing objects on the road to block usage; (d) interfering with Mr. Walker’s signs for his cottage; (e) excavating under the right-of-way for drainage works without municipal approval; and, (f) posting a “Notice of Annual Road Closure”.

[32] The test for an injunction, which is set out in RJR MacDonald Inc. v. Attorney General of Canada, [1994] 1 S.C.R. 311, is well known. I will not repeat it.

[33] Two injunction orders have already been made and remain in force. Mr. Coldin is not complying with them. There is no evidence that anything has changed which might justify non-compliance. Despite the 2009 order that prohibits any gates, the Applicants acknowledge that one gate at the southern end of the Resort Property, is appropriate for security.

[34] Because the Applicants have a right-of-way over Part 5 for vehicular and pedestrian traffic, the Respondents may not interfere with their use of it. This includes but is not limited to having more than one gate, placing objects on the right-of-way, excavating the right-of-way and rendering it impassable. Mr. Coldin’s actions show that he does not consider himself bound by the previous court orders. Accordingly, the Applicants are entitled to injunctive relief.

Conclusion

[35] The Respondents’ request to relocate the right-of-way is not properly before this court.

[36] The right-of-way is for use “at any time”. Therefore, the Applicants are entitled to use it year-round.

[37] An order shall issue in accordance with paragraphs 1(a), (b) with the correction of PIN 48118-0316 to 48118-1122, (c), (d) with the exception of one southerly gate, (e), (f), (g), (h) and (j) in the Notice of Application.

[38] If the parties do not agree on the location of one southerly gate, they may attend before me.

[39] If the Respondents wish to carry out work on a portion of the right-of-way such that vehicles and pedestrians cannot cross it, the Respondents shall provide a suitable area for passage adjacent to the work. If the Respondents fail to do so, the parties may attend before me.

[40] The Applicants’ request for a contempt order is denied; however, this is without prejudice to the Applicants’ making a further application for contempt if Mr. Coldin fails comply with this order.

Costs

[41] If counsel cannot agree on costs, I will receive written submissions on a 7-day turnaround, commencing with the Applicants, followed by responding submissions by the Respondents, then reply submissions from the Applicants, if any, commencing 14 days from the date of release of these reasons. Cost submissions shall be no more than 2 pages in length (14 pt. font size, regular 1 inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my assistant at BarrieJudSec@ontario.ca.

[42] If no submissions are received within 21 days from the above date, the issue of costs will be deemed to have been settled between the parties.

Madam Justice M.E. Vallee Released: May 28, 2019