1238713 Ontario Limited v. City of Ottawa, 2019 ONSC 778

COURT FILE NO.: 18-78314

DATE: 20190130

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1238713 ONTARIO LIMITED, Applicant

AND

ALL REGISTERED OWNERS OF LOTS AND BLOCKS ON PLAN 4M-1371 and CITY OF OTTAWA

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Ryan D. Garrett, Counsel for the Applicant

No one for the Respondent

HEARD: January 29, 2019

ENDORSEMENT

[1]

Background

This was an application without notice.

2The relief sought included an order dispensing with service of the notice of application on the respondent registered owners.

3The City of Ottawa consented to the relief sought.

4I was appreciative of the emphasis the lawyer for the applicant, Mr. Garrett, placed in his submissions on his obligation under rule 39.01(6) of the Rules of Civil Procedure on an application without notice to make full and fair disclosure of all material facts.

5Based on Mr. Garrett’s submissions and the material in the application record, I am satisfied that:

(1) The relief sought in the application would remove a restrictive covenant from two lots, lots 15 and 16, on Anjana Circle to enable a road to a new 19-unit subdivision to be built over these two lots. Very similar restrictions would then be applied, through a Planning Act agreement, to the portions of the two lots that are not part of the road;

(2) The City of Ottawa had required the restrictive covenant to be registered on the title to the lots on Anjana Circle. It is the City of Ottawa that now requires the restrictive covenant to be removed so that it does not apply to a City of Ottawa road;

(3) The restrictive covenant is for the benefit of the lands of the subdivision. Its restrictions provide that all lot owners must: repair any city works they may damage; not apply for building permits before certain conditions have been met; direct roof runoff to certain areas; not alter the slope of their land; and not plant certain types of trees;

(4) The new subdivision was contemplated at the time the Anjana Circle subdivision agreement was entered into in 2007;

(5) There was a public hearing with respect to the new subdivision in February, 2017;

(6) The City of Ottawa has approved the new subdivision which includes the new road;

(7) The approval of the new subdivision has not been appealed;

(8) The issue before me is not the new subdivision or the road, it is the lifting of the restrictive covenant on lots 15 and 16 of Anjana Circle; and

(9) There would be no harm to the 79 homeowners on Anjana Circle if the restrictive covenant is removed from lots 15 and 16 because of the similar restrictions in the Planning Act agreement.

[6]

Service of the Notice of Application

Although I am satisfied that the relief sought by the applicant will not have a negative effect, if it has any effect at all, on the Anjana Circle homeowners, having read the cases Mr. Garrett presented in relation to the request to dispense with service of the notice of application, I am not satisfied that the evidence supports an order to dispense with service. The basis for the request for the order is that service would likely cost $2,000.00 to $2,500.00, that the developer does not know whether all 79 property owners live in their units or whether some units are leased and that the first closings of sales in the new subdivision are scheduled for March of this year and might be delayed if service is required.

7I am not convinced by this evidence that service would be “impractical” in accordance with rule 16.04(1) because of the estimated cost or the time that required to effect service. (Laframboise v. Woodward, 2002 CanLII 49471 (ON SC), 2002 CarswellOnt 1448 per Quinn J. at para. 9.) If the notice of application is served and there is opposition to the relief sought, this could cause a delay, but any opposition to the relief sought could also be an indication that an order dispensing with service on those entitled to be served would not have been appropriate.

[8]

Disposition

In light of the looming March closings and because I accept the submissions and evidence that the Anjana Circle homeowners will not be harmed by the relief sought in the application, I will attempt to address the cost and the delay that would result from a requirement to serve the 79 homeowners in accordance with the Rules of Civil Procedure. I will rely on rule 1.04 and my inherent jurisdiction to make the following orders:

(1) The application is adjourned;

(2) The notice of application shall be served under rule 38.06(1) by leaving a copy of the notice of application, a notice of return of application and a copy of this endorsement at each of the 79 homes on Anjura Circle and by also sending a further copy of each document, addressed to “The Owner(s) of [insert address of home]”, to each of the homes by regular mail. Service shall be effective the fifth day after the day the later of these two events takes place;

(3) The notice of return of application shall state that the application shall come on for a hearing on “a date to be set”;

(4) The homeowners shall have 10 days from the effective date of service to deliver a notice of appearance under rule 38.07(1) should any of them wish to oppose the application;

(5) If none of the homeowners delivers a notice of appearance, the applicant’s order may be sent to me to be signed, accompanied by an affidavit stating that no notices of appearance were delivered;

(6) If any of the homeowners delivers a notice of appearance, in consultation with the homeowner(s) or their lawyer(s), the applicant’s counsel may contact the trial coordinator to arrange a 9 a.m. appointment with me to discuss a timetable for the necessary steps in the application.