Court File and Parties

Court File No.: CV-20-00648614 Date: 2021-02-19 Superior Court of Justice - Ontario

Re: Laneway (Bathurst & Richmond) Inc., Applicant And: City of Toronto, Respondent

Before: VELLA, J.

Counsel: Ronald M. Kanter, for the Applicant Cara Davies, for the Respondent

Heard In Writing: January 24, 2021

Reasons for Decision

[1] This is an application under Rule 14.05(3)(e) seeking various forms of relief in relation to what has been colloquially referred to in the materials as an “orphan lane”, also known as an unclaimed private lane, located in the vicinity of Bathurst Street and Richmond St. West in the City of Toronto.

[2] More particularly, the Applicant is a corporation which has been incorporated for the purpose of acquiring the subject laneway which has its origins dating back to 1891. The laneway is a strip of land approximately 128 meters in length and 5.5 meters in width as more particularly reflected in the survey prepared by Krcmar Surveying, filed in support of this application, and described as Private Lane Registered Plan 316, City of Toronto (the “Orphan Lane”).

[3] The Applicant seeks, amongst other things, an order vesting title of the Orphan Lane in it, together with an extinguishment of all right, title, estate and or interest of the original owners of this private lane, James J McKittrick and Giles S. Ransom, or anyone who claims or could claim an interest through them, as a successor or otherwise.

[4] The challenge for the Applicant lies in the fact that the registered owners, McKittrick and Ransom, bought the lane in 1891 and are deceased. No heirs or survivors have come forward to claim an interest in the Orphan Lane despite efforts made by the Applicant to locate any such surviving heirs or successors.

[5] The City of Toronto has been served with this application and is unopposed to the relief sought thereby confirming that this Orphan Lane is not a public one.

[6] The Applicant wishes to acquire this Orphan Lane to support the redevelopment of adjacent lands which are owned by two related corporations: Harlo (Bathurst & Richmond) Inc. (“Harlo”) and Originate (Bathurst & Richmond) Inc. (“Originate”). The president of Laneway, Adam Sheffer, who has sworn an affidavit in support of this application, is also the president of Harlo and Originate.

[7] Harlo and Originate own eight lots at the southwest corner of the intersection of Bathurst Street and Richmond St. W. in Toronto bounding the Orphan Lane on either side of it. These lots are shown on a survey prepared by Krcmat Surveying dated July 22, 2020 (the “Survey”). The Survey shows that Harlo and Originate own all of the lots bordering either side of the Orphan Lane.

[8] The Applicant had a search of title conducted with respect to the Orphan Lane. That search reveals that the last recorded transfer of title to the Orphan Lane was to McKittrick and Ransom and registered in 1891. The parcel register for the lane together with a copy of plan 316 referred to in the register and the deed transferring title are filed in evidence. I am satisfied based on the evidence that the last registered owners of the Orphan Lane are McKittrick and Ransom and that there are no outstanding encumbrances registered against this laneway.

[9] The Applicant took steps to attempt to locate the heirs and/or successors of McKittrick and Ransom who might reasonably have an interest in the Orphan Lane. The Applicant retained Lee Dixon, a genealogist, to determine if she could locate any potential heirs of McKittrick and Ransom. Ms. Dixon’s report is filed in evidence. She was unable to find any living descendants. She noted that there were 10 grandchildren who have been identified and that there might be more, and one great grandchild, but given their respective dates of birth they are likely deceased.

[10] The Applicant also caused to be published a legal notice seeking any descendants of James McKittrick and/or Giles Ransom. The legal notice was placed in the National Post newspaper on February 14 and on February 21, 2020. Copies of the two notices are filed in evidence. Counsel for the Applicant confirmed that he received no response to the notices.

[11] Therefore, it appears that the Orphan Lane has been abandoned since the respective deaths of the original owners, McKittrick and Ransom. This conclusion is further supported by the affidavit of Costa Marlet who owned the subject lots surrounding the Orphan Lane and sold them to Harlo and Originate. Mr. Marlet deposed amongst other things that he or his tenants had to maintain this laneway as the City of Toronto bore no responsibility for it as a private laneway.

[12] Based on the evidence filed, I am satisfied that the circumstances render service of this application impracticable with respect to any other person who might be affected by the proposed order as having an interest in or claim to this laneway.

[13] As part of the evidence filed, the Applicant also filed an affidavit of Martin Rendl who is a professional land use planner and the principal of Martin Rendl Associates. In his affidavit, Mr. Rendl confirms that the municipal addresses of the properties surrounding the Orphan Lane, and owned by Harlo and Originate, municipally known as 152, 156, 160, 162, and 164 Bathurst St. as well as 623, 627, and 631 Richmond St. W. are the lots shown on the Krcmar Survey, and that these lots entirely bound the Orphan Lane. Mr. Rendl confirms that this Orphan Lane is an unclaimed private lane, such that it is a private lane that is currently registered under the name of deceased 19th century owners.

[14] To his affidavit, Mr. Rendl appended a study by Carla Kin-Wah Tsang called ”Unclaimed: Finding a solution to Toronto’s forgotten private lane ways” (the “Tsang article”). This article provides a helpful background context with respect to the plight of many abandoned private lane ways located in Toronto. As deposed by Mr. Rendl, and supported by the Tsang article, these unclaimed private laneways can suffer from lack of maintenance and pose potential safety hazards for those who use them.

[15] The Applicant submits that it is the only private owner with a well-founded claim to ownership of the Orphan Lane since its properties completely bound the Orphan Lane on its west and east sides. The Applicant further submits that the Orphan Lane is in a state of poor repair and poses a potential hazard to those who use it; for example, due to the existence of potholes to its unpaved gravel surface. The affidavit of Mr. Rendl and photographs filed in evidence appear to support this conclusion.

[16] The City of Toronto has been served with the Application Record and draft order and has not disputed any of the assertions contained in the evidence.

[17] I am satisfied, based on the evidence filed, that ownership of the Orphan Lane by the Applicant will not impact any other property owner in the vicinity since all of the properties adjacent to and surrounding this laneway are owned by the Applicant’s related companies, Harlo and Originate. I am also satisfied that it makes sense that this private “orphan” laneway be owned by an entity that is able and incentivized to maintain it as part of its redevelopment of the surrounding properties.

[18] Accordingly, I am granting the relief sought by the Applicant as follows:

(a) Land Titles Office of Toronto (No. 66) is directed to transfer and to vest in the Applicant, Laneway, the lands described as Private Lane Registered Plan 316, City of Toronto, shown as Part 1 on the draft plan attached as Schedule “A” to the Order;

(b) All right, title, estate or interest of James J. McKittrick and Giles R. Ransom, or anyone who claims or could claim an interest through them, as successor or otherwise, in and to the Orphan Lane (as more particularly described in Schedule “A” to the Order) are extinguished;

(c) the vesting of title to this laneway of the interests in the Orphan Lane shall be deemed not to be a contravention of the Planning Act, R.S.O. 1990 c. P13, as amended;

(d) the Land Registrar for the Land Titles Office of Toronto (No. 66) is directed to effect registration of the Order on the Register of Title to the interests in the Lane;

(e) there shall be no costs of this Application.

Justice S. Vella Date: February 19, 2021