COURT FILE NO.: CV-18-591363 COURT FILE NO.: CV-18-605332 DATE: 2019/12/27
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
EDWIN LE MARCHANT and LAURA FISET Applicants
- and -
FELA GRUNWALD Respondent
APPLICATION under Rule 14.05(3)(d), (e) and (h) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, section 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and sections 159 and 160 of the Land Titles Act, R.S.O. 1990, c. L.5
AND BETWEEN:
FELA GRUNWALD Applicant
- and -
EDWIN LE MARCHANT and LAURA FISET Respondents
Michael Farace for the Applicants Gabrielle K. Kramer and Julie Lesage for the Respondent Gabrielle K. Kramer and Julie Lesage for the Applicant Michael Farace for the Respondents
IN THE MATTER OF AN APPLICATION under Rule 14.05(3)(d), (e) and (h) of the Rules of Civil Procedure
HEARD: December 3, 2019
PERELL, J.
REASONS FOR DECISION
Corrected decision: The text of the original judgment was corrected on January 8, 2020 and the description of the correction is appended.
A. Introduction
[1] Fela Grunwald is the owner of 180 Wychwood Avenue in the City of Toronto. Her next door neighbours are Edwin Le Marchant and Laura Fiset, (the “Le Marchants”). They are the owners of 182 Wychwood Avenue.
[2] By way of an application, the Le Marchants seek declarations that a Right-of-Way Agreement registered as Instrument No. CY 625415 that granted reciprocal rights-of-way is void and invalid and provides no rights to the parties. In the alternative, the Le Marchants seek an Order that Ms. Grunwald remove all encroachments on the right-of-way that are located on her property.
[3] Ms. Grunwald has brought her own application. She seeks rectification of the Right-of-Way Agreement expressed in Instrument No. CY 625415, and pursuant to sections 159 and 160 of the Land Titles Act,[^1] she seeks rectification of the parcel registers. She also seeks a declaration that she is entitled to use the right-of-way for vehicular ingress and egress to the rear of her property at 180 Wychwood. Moreover, she seeks an order that the Le Marchants remove encroachments that interfere with Ms. Grunwald’s use of the right-of-way for vehicular ingress and egress to the rear of her property.
B. Facts
[4] Below is a sketch found in the registered instruments of the immediate case, that shows the right-of-way that is the subject of Ms. Grunwald’s and the Le Marchants’ Applications before this court.
[5] The top of the sketch is toward the north and lot 26 is 182 Wychwood Avenue, the property now owned by the Le Marchants and lot 24 is 180 Wychwood, the property owned by Ms. Grunwald. Wychwood Avenue is to the east (the right side of the sketch). The right-of-way is between the two properties, and it is depicted as commencing on the westside of Wychwood Avenue.
[6] On January 25, 1975 pursuant to Instrument No. CY 625415, Esther Kecskes, Mary Jones, and Zigmond Elles Junior, as parties of the first part, and Zigmond Elles Senior as the party of the second part, purported to establish a 9-feet by 98 feet right-of-way and passageway for the use and benefit of the 180 Wychwood Ave. and the 182 Wychwood Ave. properties. Instrument No. CY 625415 stated:
THIS INDENTURE made in duplicate this 25th day of July, in the year one thousand nine hundred and seventy-five.
BETWEEN:
ESTHER KECSKES, MARY JONES and ZIGMOND ELLES JUNIOR, all of the City of Toronto, ln the Municipality of Metropolitan Toronto, as joint tenants and not as tenants in common, hereinafter called the parties OF THE FIRST PART;
-and-
ZIGMOND ELLES SENIOR, of the City of Toronto, in the Municipality of Metropolitan Toronto, hereinafter called the party OF THE SECOND PART;
WHEREAS the parties of the First Part are the owners of Lot Number 26 on the west side of Wychwood Avenue according to Plan Number 1342 registered in the Registry Office for the Registry Division of Toronto Boroughs and York South;
AND WHEREAS the party of the Second Part is the owner of that part of Lot Number 24 according to Plan Number 1342 registered in the Registry Office for the Registry Division of Toronto Boroughs and York South adjoining to the south, the property of the parties of the First Part;
AND WHEREAS there is no mutual right-of-way in favour of the parties of the First Part and the parties of the Second Part hereto;
AND WHEREAS it is the intention of the parties of the First Part and Second Part to establish a right-of-way by a width of Nine feet (9 feet) to a depth of Ninety-eight feet (98 feet) more or less westerly from the westerly limit of Wychwood Avenue.
N OW THIS INDENTURE WITNESSETH that in consideration of the conveyance by the party of the Second Part to the parties of the First Part of the hereinafter described right-of-way and the sum of ONE DOLLAR ($1.00) of lawful money of Canada now paid by the party of the Second Part to the parties of the First Part (the receipt whereof is hereby by them acknowledged) the said party of the Second Part doth grant unto the said parties of the First Part, a right-of-way over all and singular, that certain parcel or tract of land and premises situate, lying and being in is the Borough of York, in the Municipality of Metropolitan Toronto and being composed of northerly three feet (3 feet) of Lot 24 "from the easterly limit of Wychwood Avenue running westerly to a depth of Ninety-eight feet (98 feet)/and being adjacent to the southerly limit of Lot 26.
AND THIS INDENTURE FURTHER WITNESSETH that in consideration of the conveyance by the parties hereto of the First Part to the party hereto of the Second Part of the right-of-way above described and the sum of ONE DOLLAR ($1.00) of lawful money of Canada now paid by the parties of the First Part to the party hereto of the Second Part (the receipt whereof is hereby by him acknowledged), the said parties hereto of the First Part do grant unto the party of the Second Part a right-of-way over all and singular that certain parcel or tract of land and premises situate, lying and being in the Borough of York, in the Municipality of Metropolitan Toronto and being composed of the most southerly six feet (6 feet), of Lot 26 according to Plan 1342 registered in the Registry Office for the Registry Division of Toronto Boroughs and York South and more particularly described as follows, that is to say, the most southerly six feet (6 feet) of the said Lot 26' running westerly to a depth of Ninety-eight feet (98 feet) from the easterly limit of Wychwood Avenue and being adjacent to the northerly limit of Lot 24.
It is intended that the two above described strips of land shall form a joint passageway of nine feet (9 feet) in width by a depth of Ninety-eight feet (98 feet) westerly from the westerly limit of Wychwood Avenue for the use and benefit of the owners and occupants from time to time of the house and lands immediately adjoining thereto on the North and South thereof.
It is mutually understood by and between the parties hereto of the First and Second Parts that should there be any overhanging eaves, cornices, windows, window-sills, chimney breasts or encroachments of such character effecting the right-of-way herein created, that such overhanging, overhangings or encroachments shall not in any way be considered as encroachments upon the said right-of-way herein created.
The parties hereto of the First and Second Parts do hereby mutually covenant, promise and agree that they will each execute such further assurances of the said right-of-way as may requisite.
IN WITNESS WHEREOF the said parties hereto have hereunto set their hands and seals ….
[7] Although Instrument No. CY 625415 was registered against the titles of the properties, the parties did not obtain the consents to severance required by the then Planning Act. The grant of the right-of-way, thus, did not convey any interest in land. To rectify this problem, Zigmond Elles Junior, the then owner of the 180 Wychwood property, and Zigmond Elles Senior, the then owner of the 182 Wychwood property, obtained the consent of the Committee of Adjustment to the creation of the right-of-way and a new Right-of-Way Agreement was registered on title to both properties as Instrument No. CY 625415 on January 12, 1976.
[8] Thus, on January 12, 1976, Zigmond Elles Junior, as party of the first part, and Zigmond Elles Senior, as party of the second part, purported to establish a 9-feet by 98 feet right-of-way and passageway for the use and benefit of the 180 Wychwood Ave. and the 182 Wychwood Ave. properties. Instrument No. CY 625415 stated:
THIS INDENTURE made in duplicate this 12th day of January, in the year one thousand nine hundred and seventy-six.
ZIGMOND ELLES JUNIOR, of the City of Toronto, in the Municipality of Metropolitan Toronto, hereinafter called the party OF THE FIRST PART;
-and-
ZIGMOND ELLES SENIOR, of the City of Toronto, in the Municipality of Metropolitan Toronto, hereinafter called the party OF THE SECOND PART;
WHEREAS the party of the First Part is the owner of Lot Number 26 on the west side of Wychwood Avenue according to Plan Number 1342 registered in the Registry Office for the Registry Division of Toronto Boroughs and York South;
AND WHEREAS the party of the Second Part is the owner of that part of Lot Number 24 according to Plan Number 1342 registered in the Registry Office for the Registry Division of Toronto Boroughs and York South adjoining to the south, the property of the party of the First Part;
AND WHEREAS there is no mutual right-of-way in favour of the party of the First Part and the party of the Second Part hereto;
AND WHEREAS it is the intention of the party of the First Part and Second Part to establish a right-of-way by a width of Nine feet (9 feet) to a depth of Ninety-eight feet (98 feet) more or less westerly from the westerly limit of Wychwood Avenue.
NOW THIS INDENTURE WITNESSETH that in consideration of the conveyance by the party of the Second Part to the party of the First Part of the hereinafter described right-of-way and the sum of ONE DOLLAR ($1.00) of lawful money of Canada now paid by the party of the Second Part to the party of the First Part (the receipt whereof is hereby by them acknowledged) the said party of the Second Part doth grant unto the said party of the First Part, a right-of-way over all and singular, that certain parcel or tract of land and premises situate, lying and being in the Borough of York, in the Municipality of Metropolitan Toronto and being composed of northerly three feet (3 feet) of Lot 24 running westerly to a depth of Ninety-eight feet (98 feet) from the easterly limit of Wychwood Avenue and being adjacent to the southerly limit of Lot 26.
AND THIS INDENTURE FURTHER WITNESSETH that in consideration. of the conveyance by the party hereto of the First Part to the party hereto of the Second Part of the right-of- way above described and the sum of ONE DOLLAR ($1.00) of lawful money of Canada now paid by the party of the First Part to the party hereto of the Second Part (the receipt whereof is hereby by him acknowledged), the said party hereto of the First Part doth grant unto the party of the Second Part a right-of-way over all and singular that certain parcel or tract of land and premises situate, lying and being in the Borough of York, in the Municipality of Metropolitan Toronto and being composed of the most southerly six feet (6 feet), of Lot 26 according to Plan 1342 registered in the Registry Office for the Registry Division of Toronto Boroughs and York South and more particularly described as follows, that is to say, the most southerly six feet (6 feet) of the said Lot 26 running westerly to a depth of Ninety-eight feet (98 feet) from the easterly limit of Wychwood Avenue and being adjacent to the northerly limit of Lot 24.
It is intended that the two above described strips of land shall form a joint passageway of nine feet (9 feet) in width by a depth of Ninety-eight feet (98 feet) westerly from the westerly limit of Wychwood Avenue for the use and benefit of the owners and occupants from time to time of the house and lands immediately adjoining thereto on the North and South thereof.
It is mutually understood by and between the parties hereto of the First and Second Parts that should there be any overhanging eaves, cornices, windows, window-sills, chimney breasts or encroachments of such character effecting the right-of-way herein created, that such overhanging, overhangings or encroachments shall not in any way be considered as encroachments upon the said right-of-way herein created.
The parties hereto of the First and Second Parts do hereby mutually covenant, promise and agree that they will each execute such further assurances of the said right-of-way as may requisite.
IN WITNESS WHEREOF the said hereto have hereunto set their hands and seals …
[emphasis added]
[9] For present purposes, several aspects of the grant of the right-of-way bear emphasis; namely:
a. The Right-of-Way Agreement granted the owners of 182 Wychwood a right- of-way over the northernmost three feet of 180 Wychwood for a length of 98 feet commencing from Wychwood Avenue.
b. The Right-of-Way Agreement granted the owners of 180 Wychwood a right-of-way over the southernmost six feet of 182 Wychwood for a length of 98 feet commencing from Wychwood Avenue.
c. The fourth recital to the Right-of-Way Agreement states:
AND WHEREAS it is the intention of the parties of the First Part and Second Part to establish a right-of-way by a width of Nine feet (9 feet) to a depth of Ninety-eight feet (98 feet) more or less westerly from the westerly limit of Wychwood Avenue.
d. The Right-of-Way Agreement states that the right-of-way shall form a joint passageway for the benefit of owners and occupants from time to time. The Agreement states:
It is intended that the two above described strips of land shall form a joint passageway of nine feet (9 feet) in width by a depth of Ninety-eight feet (98 feet) westerly from the westerly limit of Wychwood Avenue for the use and benefit of the owners and occupants from time to time of the house and lands immediately adjoining thereto on the North and South thereof (emphasis added).
e. There is no wording in the grant that expressly makes the agreement binding on successors or assigns.
f. The Affidavit of Value of the Consideration, made pursuant to the Land Transfer Tax Act, 1974, that is a part of Instrument No. CY 625415 states:
The consideration is nominal having regard to the fact that the transfer herein in respect to the subject land between the parties hereto is for the purpose of creating a mutual driveway of 9 feet in width and 98 feet in depth. There is no monetary consideration passing from one party to the other.
[10] It should also be noted that the text of Instrument No. CY 625415 is the same as the text in Instrument No. CY 625415. It should be noted that the right-of-way is described in the respective instruments four times. Twice it is described as commencing from the westerly limit of Wychwood Avenue. Twice it is described as commencing from the easterly limit of Wychwood Avenue, which latter description would mean that the right-of way purported to include Wychwood Avenue, which is owned by the municipality.
[11] Appended to both Instruments is a sketch depicting the rough boundaries of the right-of-way (It is the sketch set out above in this judgment). The sketches shows the right-of-way commencing at the westerly limit of Wychwood Avenue between 180 Wychwood and 182 Wychwood and extending 98 feet towards the rear of the properties.
[12] I pause here to note that when preparing a plan of survey of the 180 Wychwood property in 2018, Helmut Piller, the surveyor, believed that the description of the right-of-way in Instrument CY 625415 as commencing from the easterly limit of Wychwood Avenue was obviously a typographical error.
[13] Returning to the narrative, on October 8, 1976, Ida Elles became the owner of 182 Wychwood, the property formerly owned by Zigmond Elles Senior.
[14] On February 22, 1984, Wlodimierz Alexsander Szemderg and Fela Szemderg conveyed 180 Wychwood Avenue to Ms. Grunwald pursuant to Instrument T.B.169398. The legal description to the property includes the right-of-way.
[15] On June 11, 1984, Ida Elles transferred the 182 Wychwood Ave. property to Zigmond Elles Junior, Esther Kecskes, and Mary Jones as joint tenants. The legal description of the property includes the right-of-way.
[16] On January 31, 1996, Zigmond Elles Junior, Esther Kecskes, and Mary Jones sold 182 Wychwood Avenue to the Le Marchants pursuant to Instrument No. CA388890. When the vendors listed the property for sale, the real estate listing stated that there was a mutual driveway on 180 and 182 Wychwood Ave. Before purchasing the 182 Wychwood property, the Le Marchants reviewed a 1995 survey provided by the vendors. That survey showed the right-of-way commencing at the westerly limit of Wychwood Ave.
[17] When the Le Marchants purchased 182 Wychwood, there was a garage on their property near the terminus of the right-of-way. The Le Marchants removed the garage and replaced it with a shed near the end of the right-of-way. The shed encroaches on the right-of-way.
[18] Between 2011 and 2014, Ms. Grunwald planted a 3 feet wide garden on the easterly portion of the right-of-way. She, however, has removed most of this obstruction. What remains does not interfere with the use of the right-of-way.
[19] Shortly after Le Marchants purchased 182 Wychwood Ave, they offered to pay Ms. Grunwald for the removal of the right-of-way. However, the parties could not agree as to a price and nothing came of the negotiations.
[20] Both before and after the Le Marchants purchased 182 Wychwood, Ms. Grunwald used the right-of-way for occasional parking and deliveries and unloading items from her car. Ms. Grunwald says that there was an arrangement or understanding that the Le Marchants could also park on the right-of-way provided that Ms. Grunwald also had space to park as needed. The Le Marchants deny any agreement and said that Ms. Grunwald only occasionally used the right-of-way and they did not object. Since 2001, Ms. Grunwald has not used the right-of-way for parking since she constructed a driveway on the other boundary of her property.
[21] The relationship between Ms. Grunwald and the Le Marchants was without incident until the mid-2010s when there were several developments that strained the relationship between the parties and led to animosity.
a. There was a hedge that separated the backyards of the properties. The hedge was on the property line. The Le Marchants removed two thirds of the hedge and erected a fence. The fence partially intrudes into the right-of-way
b. Le Marchant began to park a large truck at the front of the right-of-way blocking any use by Ms. Grunwald.
c. In May 2018, the Le Marchants built a shed towards the rear of the right-of-way. They also began storing a motorcycle and other property items in the right-of-way. Ms. Grunwald was unable to use the right-of-way for her vehicle.
d. Ms. Grunwald constructed a parking pad at the rear of her property. She intends to use it to park her vehicle at the rear of her property. She, however, cannot do so as because of the Edwin Marchant’s shed and fence and their movable obstructions. For his part, Mr. Edwin Marchant does not believe that the zoning would permit Ms. Grunfeld to use the parking pad.
[22] The animosity between the parties intensified in early 2017. Mr. Le Marchant contacted Ms. Grunwald and advised her that the Le Marchants were planning renovations to their property. He inquired again about purchasing a release of the right-of-way. Mr. Le Marchant believes that it would enhance the value of both properties if they were unburdened of the mutual right-of-way. Ms. Grunwald declined to sell, and she wished more information about the precise nature of the renovations.
[23] It seems that Mr. Le Marchant took offence and thought that Ms. Grunwald should mind her own business. He went ahead with his renovation and began storing construction materials on the right-of-way.
[24] In February 2018, the Le Marchants commenced their Application seeking to extinguish the right-of-way.
[25] On September 18, 2018, Ms. Grunwald commenced her Application against the La Marchants for declarations to safeguard the right-of-way.
C. Discussion and Analysis
1. Introduction
[26] The issues to be decided on the competing Applications are as follows:
a. Is the Right-of-Way Agreement void because of the absence of a formal enurement clause?
b. Should the Right-of-Way Agreement and the Grant of the right-of-way be rectified to correct the references to the commencement being from the “easterly” limit of Wychwood Avenue?
c. Should the parcel registers for 182 Wychwood and 180 Wychwood be rectified pursuant to sections 159 and 160 of the Land Titles Act?
d. Does the Right-of-Way Agreement entitle the owner of 180 Wychwood to use the right-of-way for vehicular ingress and egress to and from Wychwood Avenue to and from the rear of 180 Wychwood?
e. Should the Le Marchants be enjoined from interfering with the use of the right of the way by storing materials or vehicles and erecting structures on the right-of-way?
f. Should Ms. Grunwald be enjoined from interfering with the use of the right-of- way and be ordered to remove her garden that encroaches on the right-of-way?
2. Is the Right-of-Way Agreement Void because of the Absence of a Enurement Clause?
[27] An easement, including a right-of-way, has four essential elements; namely: (a) there must be a dominant and a servient tenement; (b) the easement must accommodate the dominant tenement; (c) the owners of the dominant and servient tenements must be different persons; and (d) a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.[^2] It is uncontested and uncontestable that the right-of-way in the immediate case has the four essential elements of an easement. However, the Le Marchant’s make two arguments that the Right-of-Way Agreement is void. Both arguments, however, fail.
[28] The first argument is that Esther Kecskes and Mary Jones did not sign the second Right-of-Way Agreement making the Right-of-Way Agreement invalid. There is no merit to this argument. The second Right-of-Way Agreement, which was registered as Instrument CY 625415 and which is the subject of the Applications before the Court, is the pertinent agreement, and at the time of the second agreement Esther Kecskes and Mary Jones no longer had an ownership interest in 180 Wychwood.
[29] The Le Marchant’s second argument is that the Right-of-Way Agreement does not have a formal enurement clause that would make the agreement binding on successors and assigns. However, it is not necessary to use any particular words to create an easement so long as the words used show an intention to create an easement that is recognized in law. Where, on the face of the deed there appears a manifest intention to create an easement, that intention will be given effect if the words of the deed can bear that construction.[^3]
[30] In the immediate case, the Right-of-Way Agreement states that it is “for the use and benefit of the owners and occupants from time to time of the house and lands immediately adjoining thereto on the North and South thereof”, which refers to 182 Wychwood and 180 Wychwood. The agreement indicates that the parties intended to create a right-of-way that would run with the lands and be binding on all successors in title to the two properties.
[31] This intention to make the right-of-way run with the land, which is to say to create privity of estate, is confirmed by the surrounding circumstances. In this regard, it should be recalled that the parties to the Right-of-Way Agreement obtained the consent of the Committee of Adjustment to create the right-of-way. There would be little or no purpose in getting this consent unless the intent of the parties was that the right-of-way be binding on successors and assigns.
[32] The Affidavit of Value of the Consideration, made pursuant to the Land Transfer Tax Act, 1974, that was a part of Instrument No. CY 625415 also confirms that the parties intended a mutual driveway, which is to say a route of passage for vehicles.
[33] I conclude that there is a valid and enforceable right-of-way that encumbers both 182 Wychwood and 180 Wychwood.
3. Should the Right-of-Way Agreement and the Grant of the Right-of-Way be Rectified to Correct the References to the Commencement being from the “Easterly” Limit of Wychwood Avenue?
[34] The court’s equitable jurisdiction to grant rectification is concerned with mistakes in recording the parties' intent or purpose in their writing. Rectification is designed to ensure that the parties' documents express the parties' purpose at the time the document was finalized.[^4]
[35] To obtain an order rectifying a document, usually a contract, the applicant must prove: (1) a common intention held by the parties before the making of the document alleged to be incorrect; (2) the common intention remained unchanged at the date that the document was finalized; and (3) the document, by mistake, does not conform to the parties' prior common intention.[^5]
[36] In Wasauksing First Nation v. Wasausink Lands Inc.,[^6] at paragraph 77 the Court of Appeal stated:
[A]n applicant seeking rectification of a written agreement must demonstrate, on "convincing proof", that the parties had a common intention, antecedent to the formal document in question and evidenced by some outward expression of accord, that continued unchanged until the time that the formal document was executed by the parties and that the formal document mistakenly did not conform to the prior common intention.
[37] In determining whether a common intention existed, a court adopts an objective approach and considers what a reasonable observer would have believed the parties intended, taking into consideration the evidence of all the parties as well as the surrounding documentary evidence.[^7]
[38] Ms. Grunwald has an overwhelming strong case for rectification. The Le Marchants’ factum did not contest the point and rather focused on: (a) whether the Right-of-Way Agreement failed because of the absence of a formal enurement clause; and (b) whether section 159 and 160 of the Land Titles Act were available in the circumstances of the immediate case. I have discussed the matter of the enurement clause above and I will discuss sections 159 and 160 of the Land Titles Act below.
[39] I can immediately say that in the case at bar, there is convincing proof that Zigmond Elles Junior and Zigmond Elles Senior had a common intention, antecedent to Instrument No. CY 625415 that evidenced that there was to be a grant of a right-of-way that commenced from the westerly limit of Wychwood Avenue and this common intention remained unchanged until the time that Instrument CY 625415 was executed by the parties.
[40] It is patently clear that the Right-of-Way Agreement and Registered Instrument CY 625415 contain a drafting error and the documents do not conform to the prior common intention of Zigmond Elles Junior and Zigmond Elles Senior. The documents should be rectified.
[41] I, therefore, exercise the court’s equitable jurisdiction and I rectify the Right-of-Way Agreement and Instrument CY 625415.
4. Should the Parcel Registers for 182 Wychwood and 180 Wychwood be Rectified pursuant to Sections 159 and 160 of the Land Titles Act?
[42] The Land Titles Act, sections 159 and 160 provide:
Subject to any estates or rights acquired by registration under this Act, where a court of competent jurisdiction has decided that a person is entitled to an estate, right or interest in or to registered land or a charge and as a consequence of the decision the court is of opinion that a rectification of the register is required, the court may make an order directing the register to be rectified in such manner as is considered just.
Subject to any estates or rights acquired by registration under this Act, if a person is aggrieved by an entry made, or by the omission of an entry from the register, or if default is made or unnecessary delay takes place in making an entry in the register, the person aggrieved by the entry, omission, default or delay may apply to the court for an order that the register be rectified, and the court may either refuse the application with or without costs to be paid by the applicant or may, if satisfied of the justice of the case, make an order for the rectification of the register.
[43] Under sections 159 and 160 of the Land Titles Act, the court may order rectification where the court decides that a person is entitled to an interest in registered land and the court is of the opinion that a rectification of the register is required. The case at bar is an appropriate case to order the parcel register to be rectified to correct what is an obvious mistake made in Instrument CY 625415.[^8]
[44] I disagree with the Le Marchants’ argument that sections 159 and 160 of the Land Titles Act are not available in the circumstances of the immediate case.
[45] When Instrument CY 625415 was registered, 182 Wychwood and 180 Wychwood were properties registered under the Registry Act.[^9] As part of the Province of Ontario’s project to convert lands under the Registry Act into the land titles system, the province transferred the lands and classified both properties as “Land Titles Conversion Qualified” (“LTCQ”) and the lands came to be governed exclusively by the Land Titles Act. The Le Marchants, however argue that sections 159 and 160 of the Land Titles Act, which make rectification available, do not apply to lands classified as LTCQ.
[46] There is, however, no basis and no merit to this argument. There is nothing in the Land Titles Act that makes a distinction between properties registered as LTCQ and properties registered as Land Titles Absolute for the purposes of sections 159 and 160 of the Act. Therefore, I order that the parcel registers to be amended.
5. Does the Right-of-Way Agreement Entitle the Owner of 180 Wychwood the Right to Use the Right-of-Way for Vehicular Ingress and Egress to and from Wychwood Avenue to and from the Rear of 180 Wychwood?
[47] Where an easement, including a right-of-way, is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created.[^10]
[48] In the immediate case, the wording of the Right-of-Way Agreement reveals that the parties intended a mutual right-of-way as a joint passageway of nine feet (9 feet) in width by a depth of Ninety-eight feet (98 feet) … for the use and benefit of the owners and occupants from time to time of” 182 Wychwood and 180 Wychwood. The wording of the agreement reveals that the parties intended a driveway for vehicles to have access to the rear of the properties.
[49] The nature and extent of the right-of-way in the immediate case is to allow vehicular access to and from the backyards of 182 Wychwood and 180 Wychwood from Wychwood Avenue and I so declare.
6. Should the Le Marchants be Enjoined from Interfering with the Use of the Right of the Way by Storing Materials or Vehicles and Erecting Structures on the Right-of-Way?
[50] To be actionable, interference with an easement or right-of-way must substantially interfere with the dominant owner's ability to use the right-of-way for a purpose identified in the grant.[^11] Only after the extent of the easement or right-of-way has been determined should the court consider whether what was done constitutes a substantial interference with the intended use and enjoyment of the easement or right-of-way.[^12] There is no actionable interference with a right-of-way if it can be substantially and practically exercised for the purposes identified in the grant as conveniently after as before the occurrence of the alleged obstruction.
[51] In the immediate case, I find as fact that the Le Marchants, by storing materials or vehicles and erecting the shed and fence on the right-of-way, have substantially interfered with its intended use which use includes Ms. Grunwald having vehicular access to the rear of her property. The obstructions should be removed as necessary to provide the intended access.
7. Should Ms. Grunwald be Enjoined from Interfering with the Use of the Right-of-Way and be Ordered to Remove her garden that Encroaches on the Right-of-Way?
[52] The last question is whether Ms. Grunwald should be ordered to remove her garden that encroaches on the right-of-way. The answer to that question is no. I find as a fact that Ms. Grunwald’s garden is not a substantial interference to the Le Marchants’ use of the right-of-way.
D. Conclusion
[53] For the above reasons, I grant Ms. Grunwald’s Application, and I dismiss the Le Marchants’ Application.
[54] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Grunwald’s submissions within twenty days from the release of these Reasons for Decision followed by the Le Marchants’ submissions within a further twenty days.
Perell, J.
Released: December 27, 2019
CORRECTION
Since the release of these Reasons for Decision on December 27, 2019, typographical errors in reference to the Easement Agreement in paragraphs 6, 7, 10, 12, 39, 40, 41, 43, and 45 have been amended:
The Instrument No. CY 621615 in paragraphs 6, 7, 10, 12, 39,40, 41, 43, and 45 has been corrected and replaced with Instrument No. CY 625415.
Perell, J.
Corrected Decision Released: January 8, 2020
COURT FILE NO.: CV-18-591363
COURT FILE NO.: CV-18-605332
DATE: 2019/12/27
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
EDWIN LE MARCHANT and LAURA FISET Applicants
- and -
FELA GRUNWALD Respondent
AND BETWEEN:
FELA GRUNWALD Applicant
- and -
EDWIN LE MARCHANT and LAURA FISET Respondents
REASONS FOR DECISION
PERELL J.
Released: December 27, 2019
Corrected Decision Released: January 8, 2020
[^1]: R.S.O. 1990, c. L.15. [^2]: Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116 at para. 52. [^3]: Adams v. Loughman (1876) 39 U.C.Q.B. 247at para. 16. [^4]: Waskauksing First Nation v. Wasausink Lands Inc. 2004 15484 (ON CA), [2004] O.J. No. 810 at paras. 76-81 (C.A.), aff'g [2002] 3 C.N.L.R. 287 (Ont. S.C.J.);H.F. Clarke Ltd. v. Thermidaire Corp., 1973 41 (ON CA), [1973] 2 O.R. 57 at para. 25 (C.A.), rev'd on other grounds, 1974 30 (SCC), [1976] 1 S.C.R. 319. [^5]: Peter Pan Drive-In Ltd. v. Flambro Realty Ltd. (1978), 1978 2160 (ON SC), 22 O.R. (2d) 291 at para. 13 (H.C.J.), aff'd (1980), 1980 1587 (ON CA), 26 O.R. (2d) 746 (C.A.), leave to appeal to the S.C.C. ref'd., [1980] 1 S.C.R. xi. [^6]: 2004 15484 (ON CA), [2004] O.J. No. 810 (C.A.). [^7]: McLean v. McLean, 2013 ONCA 788 at para. 10. [^8]: 923424 Ontario Ltd. v. 1695850 Ontario Inc., [2015] O.J. No. 2679 (S.C.J.); Spencer v. Salo, 2013 ONCA 98 McLean v. McLean, 2013 ONCA 788. [^9]: R.S.O. 1990, R. 20. [^10]: Fallowfield v. Bourgault, 2003 4266 (ON CA), [2003] O.J. No. 5206 at para. 10 (C.A.); Szymanski v Alaimo, 2016 ONSC 2527; Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality) (2010), 98 R.P.R. (4th) 206 (Ont. S.C.J.). [^11]: Middlesex v. 1510231 Ontario Inc. 2016, ONSC 6325; Weidelich v. de Koning, 2014 ONCA 736. [^12]: Fallowfield v. Bourgault, 2003 4266 (ON CA), [2003] O.J. No. 5206 (C.A.); Przewieda v. Caughlin, 2015 ONSC 3770 at para. 19.