COURT FILE NO.: CV-20-75
DATE: 2021/02/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1604945 Ontario Inc.
Plaintiff
– and –
Metrolinx
Defendant
Gregory Govedaris & Mathew Glowacki, Counsel for the Plaintiff
Christel Higgs & Chantelle Dallas, Counsel for the Defendant
HEARD: February 4 and 8, 2021
The Honourable Justice James W. Sloan
CLARIFICATION OF REASONS FOR JUDGMENT DATED FEBRUARY 16, 2021, and further reasons dealing with the endorsement dated february 4, 2021
[1] By letter dated February 22, 2021, counsel for the plaintiff raised two issues being:
a) The status of the plaintiff’s motion for a further and better affidavit of documents, and
b) Clarification of the exact piece of land referred to in the court’s reasons for judgment dated February 16, 2021.
[2] By letter dated February 23, 2021, counsel for the defendant requested production of the full leases between the plaintiff and its tenants, in accordance with paragraph 3(c) of my February 4, 2021 endorsement.
[3] In its original application, the plaintiff sought an order preserving the status quo or for an interlocutory injunction, restraining the defendant from blocking off the plaintiff’s access to and the use of certain lands.
Better Affidavit of Documents from Metrolinx
[4] It is no secret that the defendant wishes to use the subject lands in the near future, to build prefabricated rail systems, which it will then move approximately a mile to the west, to help it construct the Park Street Layover. The defendant then plans to construct the Kitchener Transit Hub in the medium future and proposes to use the subject lands for a pedestrian platform.
[5] Because of the narrowness of the strip of land in question, if the defendant uses the lands to prefabricate rail systems and for a pedestrian platform, the plaintiff’s tenants will lose the ability to drive and/or park their cars on the strip of land and they will also lose what ever previous ability they had to load or unload products from vehicles directly into some of the tenements.
[6] Some tenants, at least during the time needed for prefabrication construction of the rail systems, will lose their ability to access their tenements through pedestrian doors in the south wall of the building at 283 Duke St.
[7] The plaintiff requests an order, that the defendant produce essentially all documents relating to the Park Street Layover and Kitchener Transit Hub project, including but not limited to:
a) contracts,
b) plans,
c) drawings,
d) tenders, and
e) purchase orders.
[8] It is extremely difficult, if not impossible to see how the requested documents are relevant. Either, the plaintiff has an easement or some other interest in the strip of land that will allow it and/or its tenants to continue to use the land for ingress, egress and parking or it doesn’t.
[9] If it does not have an interest in the strip of land, then whatever use of the plaintiff makes of the land is irrelevant.
[10] The plaintiff also requests the Iron Road Photographs. Based on the request set out in its February 22, 2021 letter, the photographs would be of recent vintage and with the possible exception of the picture showing the second-story emergency fire exit staircase, appear to be irrelevant. Notwithstanding that the second-story emergency fire exit is visible in other pictures, I order that it be produced if it has not already been.
[11] The other requested photographs appear to be irrelevant and need not be produced.
Production Of Leases
[12] The plaintiff shall produce full copies of all its leases in the subject property and without limiting the generality of the foregoing such production shall include any demised lease space, parking, the amount of rent and maintenance fees,
Clarification of the February 16, 2021 Judgment
[13] Although the court did use several expressions when referring to the “subject land” over which the plaintiff is claiming an easement, I thought the subject land was clearly set out in para. 8 of my February 16, 2021 Judgment.
[14] In any event, I will try to be as precise as I can in the following three paragraphs.
[15] My starting point is plan 58R-18215. The best copy I can find in the material is produced at V6 Tab O. On the evidence before me, I only dealt with part of Part 2 of that plan. Paragraph 23 of my February 16, 2021 Judgment, further defines the area the plaintiff is interested in. Unfortunately perhaps, there is no metes and bounds or other scientific description of the yellow highlighted portion of Part 2 as set out at para. 1 in the plaintiff’s factum, dated January 22, 2021. (V3, T1, para.1)
[16] My Judgment therefore, whether it referred to the land as subject property, subject land, laneway or Metrolinx’s land, means that strip of land in Part 2 of reference plan 58R–18215 bounded:
a) on the south by the railway track,
b) on the north, by the south lot line for the property known municipally as 283 Duke St.,
c) on the east by the westerly limit of Duke Street and
d) on the west by the easterly limit Waterloo Street.
[17] Since the argument before me only pertained to part of Part 2, my judgment does not deal with other Parts of plan 58R-18215.
Justice James W. Sloan
Date: February 26, 2021