Macor v. Grama, 2019 ONSC 6706

COURT FILE NO.: CV-19-27437

DATE: 2019-11-22

CORRECTION DATE: 2019-12-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELLE MACOR AND ROCAM ENTERPRISES INC.

Applicants

– and –

CORINA GRAMA, VIOREL GRAMA AND JOHN OHLER

Respondents

Dante D. Gatti, for the Applicants

Alexander R. Szalkai, for the Respondent John Ohler

HEARD: November 18, 2019 at Windsor

Application under Rule 14.05 (3) (e), (g) and (h) of the Rules of Civil Procedure

corrected decision

The text of the original judgment was corrected on December 10, 2019 and the description is as follows: the word “endorsement” in paragraph [44] was replaced with the word “easement”.

THOMAS, RSJ.:

1This application concerns a contested easement access to a residential property in the City of Windsor. The application seeks the following relief:

a) An Order reversing the decision made by the Deputy Director of Titles, dated January 24, 2019;

b) An Order declaring that the lands owned by the Respondents Corina Grama and Viorel Grama (collectively, the “Gramas”) known legally as Part Lot 11 Plan 1431 Sandwich West and designated as Parts 2, and 3, on 12R3406, PIN 01299-0373 (the “Grama Parcel”) are subject to an easement as described in instrument number R764969, in favor of the lands owned by the Applicant Michelle Macor and known legally as Part of Lot 11, Plan 1431 Sandwich West designated as Part 1 on Plan 12R3406 in the City of Windsor, PIN 01299-0372 LT (the “Macor Parcel”);

c) Damages in the amount of $300,000.00 against the Respondent John Ohler;

d) If necessary, an Order for the Trial of an Issue;

e) Costs of this Application on a substantial indemnity scale; and

f) Such further and other Relief as to this Honourable Court may seem just.

Background

2The Applicant, Michelle Macor, (“Macor”), is the registered owner of the lands described as part of Lot 11, Plan 1431 Sandwich West, which lands are designated as Part 1 on a Reference Plan.

3The Respondents, Corina Grama and Viorel Grama, (“Gramas”), are the registered owners of Part of Lott 11, Plan 1431 Sandwich West, which lands are designated as Parts 2 and 3 on a Reference Plan.

4Parts 2 and 3 abut Howard Avenue, a municipal highway. Part 1 does not front or abut any municipal highway or any road. Part 1 is landlocked.

5At one time in the past, Part 1 and Parts 2 and 3 were owned altogether by one owner. The owner sold Part 1 to a third party who required and was given an easement over Part 2 for access to Part 1.

6On March 25, 1976 Alice Holmes, Shirley Montague, Meredith Marshall and Coburn Pearson who were the then owners of Part 1 and Parts 2 and 3, caused the Reference Plan to be created and registered on title.

7On December 21, 1978 by Deed registered as Instrument Number R764969, Alice Holmes, Shirley Montague, Meredith Marshall and Coburn Pearson transferred the title to Part 1 to Loris Macor and Michelle Macor, together with a Right-of-way over Part 2.

8The Part 2 Right-of-way, set out in Instrument Number R764969, is described as follows:

“Together with a free and uninterrupted right-of-way for persons, animals and vehicles and for utilities services, including underground and over-head services, over Part 2 of the said plan of reference for the use, benefit and enjoyment in perpetuity of the owners from time to time of Part 1 on the said reference plan and their tenants, servants and invitees” [Emphasis in original.]

9On July 3, 1992 by Deed registered as Instrument Number R1204440, Loris Macor and Michelle Macor transferred the title to Part 1 together with the Part 2 Right-of-way to Rocam Enterprises Inc.

10On June 16, 2000 by Deed registered as Instrument Number R1493280, Martha Zaccagnini transferred the title to Parts 2 and 3, which were subject to the Part 2 Right-of-way, to Gerald Clarence Lesperance.

11On February 26, 2001 the lands designated as Part 1 and Parts 2 and 3 were converted to the Land Titles System of Registration. Part 1 was assigned Parcel Registration Number 01299-0372 (LT). Parts 2 and 3 were assigned Parcel Registration Number 01299-0373 (LT).

12The Part 2 Right-of-way was recorded as part of the legal descriptions on the Parcel Registers for both Part 1 and Parts 2 and 3.

13On August 6, 2004 by Transfer registered as Instrument Number CE94281, Mr. Lesperance transferred the title to Parts 2 and 3 to himself and Diane Karen Young. The Transfer was subject to the Part 2 Right-of-way and was also subject to a life interest as described in Instrument Number R241360.

14On December 3, 2004 by Transfer registered as Instrument Number CE119476, Rocam Enterprises Inc. transferred the title to Part 1 together with the Part 2 Right-of-way to the Applicant Michelle Macor.

15As of January 11, 2005, the thumbnail description for Parts 2 and 3 identified that the parcel was subject to an interest specified in Instrument Number R1493280. The thumbnail states:

“PT LT 11 PL 1431 SANDWICH WEST PTS 2,3 12R3406; S/T R1493280; WINDSOR”

16On January 12, 2005 by Application General registered as Instrument Number CE125518, Mr. Lesperance and Ms. Young, through their solicitor John Ohler, sought to eliminate the life interest described in Instrument Number R241360, and in doing so, referenced Instrument Number R1493280.

17The Land Registrar, in error, deleted the reference to the Part 2 Right-of-way from the Parcel Register of Parts 2 and 3 with the result that the Part 2 Right-of-way no longer appeared on the Parcel Register for Parts 2 and 3 but continued to appear only on the Parcel Register of Part 1.

18On June 6, 2008 by Transfer registered as Instrument Number CE331071, Mr. Lesperance conveyed the title of Parts 2 and 3 to Debra Maurice without reference to the Transfer to the Part 2 Right-of-way.

19On November 27, 2015 by Transfer registered as Instrument Number CE690399, Debra Maurice transferred the title to Parts 2 and 3 to the Gramas. The Transfer made no reference to the Part 2 Right-of-way. The Gramas were assisted by solicitor Robert Tomas.

20As of November 27, 2015, the Part 2 Right-of-way was noted in the Parcel Register for Part 1 but was not noted on the Parcel Register for Parts 2 and 3.

21On January 20, 2017 by Land Registrar’s Order registered as Instrument Number CE775732, the Land Registrar made an Order that no further dealings be had with Parts 2 and 3 until such time as the Register had been amended.

22The Gramas objected to the Land Registrar’s actions and brought forward a hearing to the Deputy Director of Titles. The hearing took place on September 25, 2018.

23On January 24, 2019 by written reasons, the Deputy Director of Titles ordered that the title to Parts 2 and 3 be rectified by the deletion of the Part 2 Right-of-way from Parts 2 and 3.

Position of the Parties

24The materials of the Applicants maintain that the Deputy Director of Titles erred and that I should consider this proceeding on appeal pursuant to s.26 of the Land Titles Act, RSO 1990 c L.5, (“LTA”). Further they maintain that the solicitor, John Ohler, was negligent in the registration of the document general on January 17, 2005 which was erroneously seen by the Land Registrar as a request to delete the easement.

25They seek a restoration of the easement and damages from John Ohler.

26The Respondents, while disputing the liability of Ohler, agree that the title should be rectified pursuant to my jurisdiction under s.160 of the LTA. Alternatively, they maintain that an easement of necessity must be created to remedy the fact that the Land Registrar attempted to rectify the fact that the Applicants’ Part 1 is presently landlocked. They point to the fact that the Land Registrar attempted to rectify the error realizing that the appropriate protocol for surrendering an easement had not been followed by the Registrar’s Office.

27The Gramas have not appeared on this application although served. Corina Gramas attended at this hearing and confirmed that consistent with a view she previously expressed to Ohler’s counsel, they took no position but did not want to incur costs.

Jurisdiction

28The parties have agreed that I should approach the rectification argument on the basis of an appeal of the decision of the Deputy Director pursuant to s.26 of the LTA which is reproduced below:

26 A party to a hearing held under this Act may appeal the decision or order of the Director of Land Registration or the Director of Titles to the court within 30 days of the date of the decision or order, as the case may be, and the appeal shall be by way of a new trial.

29Since the appeal is by way of a new trial, they submit I need not deal directly with the Reasons of Deputy Director of Titles, Rebecca Hockridge.

30Counsel propose that I rectify title by simply focussing on the mistakes made by the Registrar and their argument related to those errors. Part of the reason for this focussed approach is to allow me to determine rectification without considering the role, if any, played by Ohler. I advised counsel from the outset that I could not determine the issue of solicitor’s negligence with the proceeding and record before me.

31I agreed with these submissions and at the request of counsel for the Applicants, I have adjourned the relief sought against Ohler without a fixed date to be brought back on 10 days notice.

Rectification

32On January 12, 2005 by Application General, Ohler attempted to clarify that the spouse of a registered owner had no interest in the property. His reference in the document to R1493280 lead the Land Registry Office, (“LRO”), to erroneously amend the description to the property by deleting the easement in question here.

33On January 20, 2017 the LRO recognized its mistake and registered the following:

“Schedule: In the matter of pin 01299-0373

It has come to our attention that when document CE125518 was certified which was an application to amend the description to delete a S/T interest that that [sic] row S/T R1493280 was also inadvertently deleted from the description.

It is hereby ordered pursuant to subsection 158 (2) of the Land Titles Act that the description be amended by adding in the easement S/T R1493280 which was removed in error.” [Emphasis in original.]

34On June 13, 2017 a Land Register’s Caution, issued by the Land Registrar, Essex and registered as Instrument No. CE775732 ordered the following:

“In the matter of the title to the selected PIN(s). It has come to the Land Registrar’s attention that based on Application (general) CE125518 the property description was amended by removing S/T R1493280. Land Registrar’s Order CE755237 registered January 20, 2017 was registered to re-instate S/T R1493280 without the consent of all interested parties. The Land Registrar hereby orders that no dealings be had with the said PIN(s) until the register has been amended”. [Emphasis in original.]

35The registration of the caution lead to the hearing and ruling by Deputy Director Hockridge. Unfortunately, the Deputy Director was not directed to the errors of the LRO and the overriding effect of those errors on the continued existence of the easement.

36The material filed establishes that the electronic registration of documents in Land Titles became mandatory in Essex County in September 2000. To assist staff in the certification of these registrations, the Ministry of Government and Consumer Services issued Bulletins to Land Registrars. Bulletin No. 2005-02 dated March 3, 2005 as set out below was consistent with the practice of the LRO in Essex County at the time of the error committed by the Registry staff:

“An easement ceases to exist when one of the following occurs:

• The owner of the dominant land (or owner of an easement in gross) releases the easement to the owner of the servient land (see Transfer, Release and Abandonment and Deletion of Easement below);

• The expiry date of the easement is reached or other conditions have been met (see 2.1.4 Time Limited or Temporary Easements below);

• The servient land including the easement is expropriated, or

• The same party owns the dominant and servient lands. An application to amend the register noting the merging of title is required to remove the easement from the parcel register.” [Emphasis in original.]

37Section 2.1.2 “Deletion of Easement” states:

“A Deletion of Easement document is registered by the owner of the servient lands on the registers for both the dominant and servient lands. In the document the servient owner must apply to the Land Registrar to amend the parcel by deleting the easement and must include the consent or evidence of release and abandonment from the owner of the dominant lands.” [Emphasis in original.]

38This Section goes on to state that once the deletion document is certified, “The easement will be deleted from the property description (thumbnail) of the dominant and servient lands.” [Emphasis in original.]

39Section 2.2.4 “Application (General) – Deletion of Easement” states:

“An Application General is to be used when the owner of the servient parcel wishes to apply to delete an easement. It must be supported by evidence of the release and abandonment from the dominant party”. [Emphasis in original.]

40In the second paragraph of Section 2.2.4(b) “Other Statements”, it states:

“Staff will verify the release to ensure that the easement can be deleted from the property”. [Emphasis in original.]

41The LRO, prior to registering the Caution set out above, realized no application to remove an easement with supporting documents had ever been made and no staff member had verified the release. Therefore, the deletion of Instrument R1493280 was done in error.

42The decisions in Arpy-Ara Company Limited v. A.R. Manufacturers & Distributors Limited, [2015] O.J. No. 988, (Arpy-Ara), followed by Raimondi v. Ontario Heritage Trust, [2017] O.J. No. 3067 describe the strict requirements for the surrender and extinguishment for an easement.

43At paras. 240 and 241 of Arpy-Ara, Justice Brown states the following:

[240] A deeded easement is created as a grant from the owner as grantor to the recipient as grantee, either in a deed or by other written document. The owner retains all of its rights to use the land. The holder of the right-of-way cannot over-use or burden the owner’s land, and the owner cannot interfere with or derogate from the granted use given to the grantee. The owner retains all of its rights to use the land: Anger & Honsberger, Law of Real Property, 3^rd ed. (Toronto: Canada Law Book, 2012), Vol. 2, pp. 17-7 to 17-11.

[241] The holder of the deeded easement can only lose its rights by an express release or surrender or by extinguishment, which is extremely difficult to establish, unless there is an express release or there are circumstances so cogent as to preclude a quasi-releasor from denying the release: Anger & Honsberger, supra, pp. 17-25 to 17-26.1, and see 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 558 (H.C.J.), 19 R.P.R. 1.

44Consistent with the position of Brown J. above, the easement here cannot be lost by the error of the LRO in removing the reference from the thumbnail description of the Gramas property.

45The law directs that the easement has continued to exist over Part 2 on Plan 12R-3406. It exists to this day.

46The Register must be rectified in this case. The Applicants are entitled to have S/T R1493280 reinstated to ensure that public notice of the easement is clear for future potential purchasers of the Gramas property and to ensure that the Applicants’ property is not land-locked. By these reasons, I direct this rectification of the registry.

47As an aside, it should be noted that the Deputy Director was not aware of the fact that the Gramas had received compensation of $30,000. as a result of a claim against their title insurance. That sum was paid as recognition of the effect the easement would have on the value of the Gramas property as well as the recognition that the solicitor for the Gramas (not John Ohler) should have found the easement by an appropriate examination of title which should include abutting properties. In my view, this adds to the equities apparent in the rectification of this title.

Costs

48Counsel for the Applicants requested costs from the Gramas Respondents. For the reasons I delivered orally, there will be no order as to costs in the matter of rectification of title.