COURT FILE NO.: CV-21-655996 DATE: 20211008
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAEID MAHAMEDI FARD
Applicant
– and –
RENEE DE VILLIERS, GEORGE CAMILLERI, ANNE CAMILLERI, JENNIFER MASOTTI-AVENINS, ANDREV AVENINS, and EUGENIO ANDRADE
Respondents
Robert J. Drake, for the Applicant
Ge Chang, for the Respondent, Renee De Villiers
No one appearing, for the Respondents George Camilleri, Anne Camilleri, Jennifer Masotti-Avenins, Andrev Avenins and Eugenio Andrade
HEARD (By Videoconference):
October 1, 2021
REASONS FOR DECISION
A.A. SANFILIPPO, J.
Background
1The parties are neighbours in a historic Toronto neighbourhood known as the “Junction”. The Applicant, Saeid Mahamedi Fard (“Mr. Fard” or the “Applicant”) is the owner, since April 29, 2016, of property known municipally as 96 Maria Street, Toronto (the “96 Maria Property”).
2The map, below, (“Map #1) shows the configuration of the 96 Maria Property and its position relative to abutting properties. The 96 Maria Property is the triangular shaped property, shaded on the map (shown in purple in the colour version), facing south onto Maria Street. It is identified by its Land Titles Property Identification Number (“PIN”) 10518-0403 LT. It has four abutting properties on its eastern boundary, one on Maria Street, and three abutting properties on the adjacent Shipman Street, as follows:
On Maria Street, the 96 Maria Property abuts 84 Maria Street, owned by the Respondent, Renee De Villiers since November 24, 2006 and identified by PIN 10518-0404 LT (the “84 Maria Property”).
10 Shipman Street, owned by the Respondents George Camilleri and Anne Camilleri (PIN 10518-0409 LT).
12 Shipman Street, owned by the Respondents Jennifer Masotti-Avenins and Andrev Avenins (PIN 10518-0410).
14 Shipman Street, owned by the Respondent, Eugenio Andrade (PIN 10518-0411).
3The 96 Maria Property fronts on a road allowance owned by the City of Toronto (the “City”) and identified as Land Titles PIN 10518-1025 (the “City Road Allowance Property”).
4The issue raised in this Application is the correct location of the common boundary that is the eastern boundary of the 96 Maria Property and the western boundary of the Respondents’ properties: on Map #1, the solid line that intersects “1\0518” (shown in red in the colour version). I will refer to this as the “Questioned Boundary Line”. The boundary line issue arises from a discrepancy between two plans of subdivision registered in 1887 and 1888, which situated the Questioned Boundary Line in different locations, as I will explain.
I. UNCONTESTED FACTS
5The historical background facts regarding this boundary dispute were not contested,1 and may be summarized as follows:
The 96 Maria Property was first subdivided by Plan of Subdivision 740 registered with the Land Registry Office on May 31, 1887 (“Plan 740”).
A further Plan of Subdivision was registered with the Land Registry Office just over a year later, on July 17, 1888, as Plan 833 (“Plan 833”).
Plan 833 overlapped with Plan 740. The 96 Maria Property sits at the easterly edge of Plan 740 and at the westerly edge of Plan 833.
The overlap between Plan 740 and Plan 833 contained a discrepancy in the location of the eastern boundary of the 96 Maria Property. On Plan 833, the Questioned Boundary Line is approximately 2.75 metres further to the west than on Plan 740, at the property’s south end, and is approximately 3.7 metres further to the west than on Plan 740 at the north end of the property (the “Overlap Discrepancy”).
The Overlap Discrepancy was discovered as early as April 30, 1929, in a survey completed by D.L. Surveyors, which shows the overlap between Plans 740 and 833. This 1929 survey also showed that the fence line along the eastern boundary of the 96 Maria Property was in accordance with Plan 740. Accordingly, as early as 1929, a survey showed that the owners of these properties treated the Questioned Boundary Line as being in accordance with Plan 740.
Six subsequent surveys completed since 1929 all show that the fence line along the Questioned Boundary Line has always remained in the location shown on Plan 740.
Predecessors in title to the properties owned by the Applicant and the Respondents all acted as if the Questioned Boundary Line was in the Plan 740 location.
On October 19, 1970, Plan of Survey 63R-270 was deposited to clarify the western boundaries of the properties located at 10, 12 and 14 Shipman Street and did so by application of the western boundary (eastern boundary of the 96 Maria Property) shown in Plan 740.2
The deeds of title for the properties owned by the Respondents who own the properties identified as 10, 12 and 14 Shipman Street (the “Shipman Street Respondents”), or their predecessors in title, reference the boundary shown by Plan of Survey 63R-270, taken from Plan 740. A survey of 14 Shipman Street, dated July 30, 1993, confirms that the boundary set out in Plan 740 has been applied as the correct boundary line.
6The Shipman Street Respondents do not oppose this Application. Their properties are already defined on their western boundary by the boundary shown on Plan 740: not Plan 833. The only Respondent opposing this Application was Ms. De Villiers (the “Responding Party”), and she largely withdrew her opposition to this Application during its hearing.
II. THIS APPLICATION
7The Applicant sought seven forms of relief in this Application, but the principal relief sought was as follows:
- The applicant makes an application for:
(a) a declaration that the eastern boundaries of the land of the applicant, Saeid Mahamedi Fard, being the owner of the property municipally known as 96 Maria St., Toronto, Ontario, and legally described in Schedule “A”, are those set out in Lot 32 of Plan of Subdivision 740 registered in 1887 (“Plan 740”).
(b) the alternative, a declaration that the applicant has acquired by continuous adverse possession, possessory and legal title in fee simple of the parcels of land of the parts of the properties municipally known as 84 Maria St., 10 Shipman St., 12 Shipman St., and 14 Shipman St., Toronto, Ontario (the “Adjacent Properties”), legally described in Schedule “B”, being the entirety of the overlap between Plan 740 and Plan of Subdivision 833 registered in 1888 (the “Disputed Area”).
8The parties debated, in their factums and at the hearing, the scope of the relief sought.
9In paragraph 1(a) of his Notice of Application, the Applicant sought a declaration that the eastern boundary of the 96 Maria Property is as set out in Plan 740. The Applicant submitted that this relief pertains only to the common boundary line with the Respondents. To be clear, the Applicant did not seek a declaration that the Plan 740 boundary line also defined the eastern boundary of the City Road Allowance Property and the western boundary of the 84 Maria Property.
10In paragraph 1(b) of the Notice of Application, the Applicant sought a declaration that the Applicant has acquired by adverse possession the Overlap Discrepancy, which is the term that I have used to describe the property contained on the Applicant’s land and the Respondents’ lands that is situated between the eastern boundary for the 96 Maria Property shown on Plan 740 and the eastern boundary for the 96 Maria Property shown on Plan 833. Again, this does not refer to the City Road Allowance Property. However, the wording of paragraph 1(b) created an ambiguity, and confusion in the argument of this Application by referring to this as “being the entirety of the overlap between Plan 740 and Plan of Subdivision 833 registered in 1888” (emphasis added).
11The ambiguity in this paragraph 1(b) claim is that the Overlap Discrepancy is not the “entirety of the overlap”. The “entirety of the overlap” also affects the City Road Allowance Property. This is because the 1887 boundary line between the 96 Maria Property and the 84 Maria Property shown on Plan 740 was also the boundary line between the 84 Maria Property and the City Road Allowance Property. When Plan 833 showed this boundary line further to the west, the eastern boundary of the City Road Allowance Property was shown in two locations in the two separate Plans (Plans 740 and 833) in the same way as the eastern boundary to the 96 Maria Property.
12This is shown in the map below (Map #2) wherein the City Road Allowance Property is labelled “PIN 10518-1025 LT”. The boundary line from Plan 833 is shown as a solid black line intersecting the City Road Allowance Property. The Plan 740 boundary line is shown as a hatched line dividing the City Road Allowance Property from the adjacent 84 Maria Property. The area between these two lines, being the area on Map #2 containing the words “1025 (LT)” (shown in purple in the colour version) is the portion of the City Road Allowance Property affected by the discrepancy between the Plan 740 boundary line as compared to Plan 833 boundary line (the “Impacted City Road Allowance Property”).
13The Applicant submitted that this Application does not concern the Impacted City Road Allowance Property for several reasons. First, the declaratory relief sought in paragraph 1(a) of the Notice of Application seeks a declaration only in relation to the properties owned by the Applicant and the Respondents, and not the City Road Allowance Property. Second, the declaration of adverse possession sought in paragraph 1(b) of the Notice of Application cannot be interpreted as referring to the Impacted City Road Allowance Property because an adverse possession claim cannot be made against a municipally owned road allowance: Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 16. Third, the City is not a respondent in this Application and is thereby not on notice of any relief being sought affecting the City Road Allowance Property.
14Once paragraph 1(b) of the Notice of Application is considered in the context of the Applicant’s position that he did not seek any relief in this Application against the City, the adverse possession claim, brought in the alternative, is referable only to the Overlap Discrepancy between the Applicant and the Respondents and does not include the Impacted City Road Allowance Property.
III. ANALYSIS
15The basis for the Responding Party’s opposition to the relief sought by the Applicant was unclear, perhaps due to lack of clarity concerning the scope of the relief sought.
16Ms. De Villiers did not contest that the boundary line in Plan 740 governed the western boundary of her property and thereby the eastern boundary of the Applicant’s property. Rather, Ms. De Villiers’ opposition was with respect to whether the Applicant had established an entitlement to the relief sought, and moreover to an issue that was not framed by the Applicant for determination on this Application: whether the boundary line in Plan 740 governed the western boundary of the 84 Maria Property and the eastern boundary of the City Road Allowance Property.
17By the end of the oral submissions, Ms. De Villiers did not oppose the declaratory relief sought by the Applicant in paragraph 1(a) of the Notice of Application, but contested the claim for adverse possession sought in paragraph 1(b) to the extent that it pertained to the Impacted City Road Allowance Property. Put simply, Ms. De Villiers conceded that the Questioned Boundary Line between her land (the 84 Maria Property) and the 96 Maria Property was as set out in Plan 740, but submitted that this Application was not framed broadly enough to address the Impacted City Road Allowance Property, including because the City was not on notice.
18I will explain why I will grant the declaratory relief sought by the Applicant in paragraph 1(a) of the Notice of Application.
19There was no dispute that the Court has jurisdiction to issue a declaration to correct the boundaries of a property: Land Titles Act, R.S.O. 1990, c L.5, ss. 159 and 160; MacIsaac v. Salo, 2013 ONCA 98, 114 O.R. (3d) 226, at para. 52: “The language of ss. 159 and 160 of the Land Titles Act confers jurisdiction on the court to correct the boundaries of Part 4 on the R-Plan.” I am satisfied that this jurisdiction extends to correcting a discrepancy between two registered plans of subdivision that show two different locations for the eastern boundary of the 96 Maria Property.
20The Applicant submitted that the principles set out in Nicholson v. Halliday (2005), 2005 CanLII 259 (ON CA), 74 O.R. (3d) 81 (C.A.), at para. 28, Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303 (Dist. Ct.), and Weaver v. Anderson, 2017 ONSC 1928, 86 R.P.R. (5th) 4, at para. 45, inform an analysis of the basis for the issuance of declaratory relief clarifying the correct boundary. In Nicholson, at para. 28, the Court of Appeal stated that the following evidence was relevant to determining a boundary: natural boundaries; original monuments; fences or possession that can be traced to the original survey; and measurements. In Weaver, at para. 45, Wilcox J. held that the determination of the appropriate boundary line between two competing options should be consistent with established “use and occupation of the property”.
21I accept the Applicant’s submission that when these factors are analysed on the evidence admitted in this Application, the correct eastern boundary for the 96 Maria Property is that set out in Plan 740. First, since 1929, the fence line on the eastern boundary for the 96 Maria Property has followed the boundary line set out in Plan 740. The evidence shows that this fence line had been in place and respected by the parties and their predecessors in title, for almost 100 years. Second, for the past 51 years, since October 19, 1970, the Plan of Survey 63R-270, has shown this boundary line to follow Plan 740. Third, the deeds and legal title descriptions for the Shipman Street Properties have all applied the Plan 740 boundary line. Fourth, the Responding Party did not tender any evidence that the boundary line set out in Plan 833 had ever been used by the Responding Party, or indeed by the Applicant or any of the Respondents, in the use or the description of their properties.
22And there is one further reason. The Responding Party conceded that the Applicant has established his claim in adverse possession for the lands represented by the Overlap Discrepancy. The elements necessary to establish a claim for possessory title through adverse possession support the declaration sought by the Applicant that the eastern boundary of the 96 Maria Property is in accordance with Plan 740. I will explain why.
23The 96 Maria Property, the three Shipman Street Properties and the 84 Maria Property were all converted from Ontario’s Land Registry system to the Land Titles system on November 26, 2001 as “Land Titles Conversion Qualified.” I do not see any evidence in the Application Record that the Overlap Discrepancy was addressed prior to the conversion of these properties into Land Titles.
24The Court of Appeal explained, in McKay v. Vautour, 2020 ONCA 16, 10 R.P.R. (6th) 54, at para. 6, that, in accordance with s. 51 of the Land Titles Act, no new possessory title can be claimed through adverse possession once the property has been placed under the land titles system but that s. 51 “preserves any rights to adverse possession acquired prior to the placement of the land under the land titles system”: citing, Cantera v. Eller (2007), 56 R.P.R. (4th) 39 (Ont. S.C.), at para. 40, aff’d 2008 ONCA 876, 74 R.P.R. (4th) 162. The Court stated, at para. 7, that to establish a claim for adverse possession, the party claiming the possessory title had the burden to establish the following:
As a result, to succeed in her claim for adverse possession, the appellant had the burden to establish that the use of the disputed strip by her predecessors in title was “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner”, namely, the respondent’s predecessors in title, for any ten-year period prior to June 16, 2003, and that this use met the following well-established criteria:
i. Actual possession for the statutory period by the appellant’s predecessors in title through whom she claims;
ii. Such possession was with the intention of excluding from possession the respondent’s predecessor in title;
iii. Discontinuance of possession for the statutory period by the respondent’s predecessor in title.
See: Pepper v. Brooker, 2017 ONCA 532, 139 O.R. (3d) 67, at para. 32; Cantera v. Eller (2007), 56 R.P.R. (4th) 39 (Ont. S.C.), at paras. 38, 39, aff’d 2008 ONCA 876, 74 R.P.R. (4th) 162.
25The Responding Party’s admission that the Applicant has established possessory title through adverse possession of the property represented by the Overlap Discrepancy (not the Impacted City Road Allowance Property) means that the Responding Party has conceded – and the Shipman Street Respondents do not oppose – that the Applicant’s use of this property in the ten years prior to its conversion into Land Titles was “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner”. These same findings support the declaration sought by the Applicant that the eastern boundary line of the 96 Maria Property is as set out in Plan 740. The Applicant and the Respondents’ use and occupation of their properties has always been consistent with the eastern boundary set out in Plan 740 for the 96 Maria Property. The fence line, plants and shrubs have always demarcated the eastern boundary of the 96 Maria Property along the boundary shown in Plan 740.
26Having concluded that I will grant the declaratory relief sought by the Applicant in paragraph 1(a) of the Notice of Application, it is not necessary to determine the alternative relief sought by the Applicant in paragraph 1(b) of the Notice of Application: specifically, that the Applicant has established possessory title through adverse possession of the land represented by the Overlap Discrepancy. However, for completeness of analysis, I will explain why I would have found that the Applicant established possessory title by adverse possession over the lands represented by the Overlap Discrepancy, had it been necessary to do so.
27First, I adopt the evidence explained earlier that supported the issuance of the declaratory relief and apply it to a finding of possessory title, which it supports equally. In addition, I accept the evidence of Thomas Prezio in his affidavit sworn January 6, 2021, as tendered by the Applicant. Mr. Prezio’s evidence was not challenged in cross-examination and is not affected by Ms. De Villiers’ affidavit evidence.
28Mr. Prezio deposed that the 96 Maria Property was owned by his paternal grandparents, Michael and Santa Prezio, from 1925 to his grandmother’s death in 1975, at which time the 96 Maria Property was sold to Mr. Giordano, being the Applicant’s predecessor in title. Upon Mr. Giordano’s passing in 2016, Mr. Giordano’s estate sold the 96 Maria Property to the Applicant. Mr. Prezio swore that in 1962, the property known as 98 Maria Street was subdivided from the 96 Maria Property, and was taken in title by his father. Mr. Prezio has lived in the 98 Maria Property for 58 years since he was born in 1963.
29Mr. Prezio deposed that the fence line on the eastern boundary of the 96 Maria Property has always been where it is today, in a location that is consistent with the eastern boundary shown on Plan 740. Mr. Prezio swore as follows: “For as long as I can remember – which is about fifty years now – the eastern fence of the 96 Maria Property, stretching from its northern end at the train tracks to the southern end at Maria Street, has stood as it is now.” I accept this evidence as credible, reliable, and plausible as it is consistent with the evidence on this Application.
30Mr. Prezio swore that his grandparents, and after them Mr. Giordano, always closely protected their ownership rights along the common boundary with all their neighbours to the east. Mr. Prezio deposed that this extended to the use of the City Road Allowance Property as driveway for the 96 Maria Property. Mr. Prezio deposed that in the 41 years that Mr. Giordano lived in the 96 Maria Property from 1975 to his passing in 2016, “he never let any of the previous owners of 84 Maria Street park on his driveway”. This is consistent with the affidavit evidence of Ms. De Villiers, that when she attempted to explain to Mr. Giordano her understanding of the Questioned Boundary Line, and how it impacted parking on the City Road Allowance Property, “I was met with hostility, and told to leave his property or be subject to police action”.
31I am satisfied, on the evidence that I have accepted, that had it been necessary for the Applicant to establish possessory title through adverse possession of the lands represented by the Overlap Discrepancy, and thereby determine whether the eastern boundary of the 96 Maria Property was the boundary line set out in Plan 740 or the boundary line set out in Plan 833, that I would have found that the Applicant has established possessory title to the lands represented by the Overlap Discrepancy, with the result that the boundary line set out in Plan 740 would govern.
32Last, I will address the ancillary relief pleaded by the Applicant. In paragraphs 1(c) to (f) of the Notice of Application, the Applicant pleaded orders that might be required to address a registration on title in the Land Titles system.3 This relief was not addressed by the Applicant in his factum, was not raised at the hearing of the Application and was not included in the “Order Sought” on the Application. There was no evidence that any of this relief would be required to give effect to the declaratory relief sought. Accordingly, this ancillary relief is dismissed, without prejudice to its reinstatement, should it be necessary to give effect to the declaration issued herein.
33The Applicant made submissions on the injunctive relief pleaded at paragraph 1(g) of the Notice of Application:
A permanent injunction against Renee De Villiers restraining her from parking vehicles on or otherwise using, hindering or entering into the applicant’s driveway and/or the Disputed Area.
34I decline to award the Applicant this injunctive relief for the following reasons. First, the injunctive relief that the Applicant seeks affects the Impacted City Road Allowance Property. Issues pertaining to competing rights to use of the Impacted City Road Allowance Property were not raised for determination on this Application. Second, the City is not on notice of any relief being claimed that affects the use of the City Road Allowance Property. Third, even if these issues were raised, the Applicant has not tendered any evidence of registered rights of way affecting the City Road Allowance Property. And, finally, the Applicant has not shown any basis on which to find that there is a potential that the Responding Party may not comply with this Court Order, necessitating an injunction. In the event of non-compliance, the Applicant is at liberty to pursue those remedies available at law.
35The ancillary relief to the declaration sought, is dismissed, without prejudice to its reinstatement, should it be necessary to give effect to the declaration issued herein.
IV. CONCLUSIONS
36On the basis of these reasons, I am satisfied that the Applicant has established that the eastern boundary of the 96 Maria Property, being the western boundary of the Respondents’ properties, is the boundary line for these properties set out in Plan 740. Accordingly, an Order for a declaration shall issue, unopposed, in accordance with the relief sought by the Applicant in paragraph 1(a) of the Notice of Application.
37Had it been necessary, I would have decided that the Applicant has established possessory title through adverse possession to the property that I have referred to in these reasons as the Overlap Discrepancy: specifically, the property contained on the Applicant’s land and the Respondents’ lands that is situated between the eastern boundary for the 96 Maria Property shown on Plan 740 and the eastern boundary for the 96 Maria Property shown on Plan 833.
38The remainder of the relief sought in this Application is dismissed, without prejudice to its reinstatement, should it be necessary to give effect to the declaration issued herein. The Applicant did not tender any evidence of the nature of the order required by the Land Titles Division of Toronto (No. 80) to address the eastern boundary line of the 96 Maria Property. Should any of the ancillary relief be necessary for purposes of registration in Land Titles, the Applicant may reinstate this ancillary relief in a further Application.
39The submissions on this Application showed that the declaration that I will grant will not conclude all issues arising from the Questioned Boundary Line: rather, only those affecting the Applicant’s and the Respondents’ properties. This Application was not framed broadly enough to include a determination of the eastern boundary of the City Road Allowance Property, and the use of the Impacted City Road Allowance Property because this was not pleaded and, even if it had been, the City was not named as a Respondent. The City is a necessary and proper party to such a determination. Similarly, this Application did not seek a determination of the rights of the Applicant and the Responding Party to use the City Road Allowance Property. This issue was not pleaded, and even if it had been, the parties did not tender any evidence of rights of way and did not join the City as a respondent. The City is a necessary and proper party to a determination of competing interests in the use of the City Road Allowance Property. Barring agreement between the Applicant, the Responding Party and the City, these issues will require adjudication in a further legal proceeding.
V. COSTS
40Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides the court with discretion in the determination of costs. The exercise of this discretion is guided by the factors set out in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and applicable jurisprudence.
41The Applicant was successful in this Application. Absent special circumstances, “costs follow the event”: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.); Yelda v. Vu, 2013 ONSC 5903, at para. 11, leave to appeal denied, 2014 ONCA 353; St. Jean v. Cheung, 2009 ONCA 9, at para. 4. In Ehsaan v. Zare, 2018 ONCA 453, at para. 10, the Court of Appeal held that the “general principle that a successful party is entitled to costs should not be departed from except for very good reasons.” I find that since the Applicant obtained the declaration sought on this Application, the Applicant is entitled to an award of costs payable by Ms. De Villiers, as the only responding party.
42The Applicant sought costs payable by the Responding Party on a partial indemnity basis, in the amount of $17,820.68 for fees and HST, $1,280.62 for disbursements and HST for a total of $19,101.30.
43The Responding Party submitted that the amount of costs that “an unsuccessful party could reasonably expect to pay” in the Application, being a factor in cost assessment under r. 57.01(1)(0.b), would be no more than $12,000 in solicitor and client fees, which would equate to $7,800 on a partial indemnity basis. The Responding Party thereby contended that the award of costs payable to the Applicant ought to be fixed at no more than $7,800, all inclusive of fees, disbursements and HST.
44There were no offers to settle the Application (r. 49). In considering the factors set out in r. 57.01(1), I find that the number of hours incurred by the Applicant was reasonable, that the issue raised was important and that the factual record was complex in its assembly.
45The exercise of discretion on the issue of costs must be based on a determination of what is fair, reasonable, and proportionate: Barbour v. Bailey, 2016 ONCA 334, at para. 9; Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519, at para. 12; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 38; Zesta Engineering Ltd. v. Cloutier (2002), 2002 CanLII 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4. This is more than an arithmetic assessment of the number of hours incurred and the amounts of the hourly rates.
46Taking all relevant factors into consideration, including the factors set out in r. 57.01, I conclude that a fair, reasonable and proportionate disposition is to exercise my discretion to fix the amount of costs in the amount of $12,500, inclusive of fees, disbursements and HST.
VI. DISPOSITION
47On the basis of these Reasons, I order as follows:
(a) a Declaration shall issue that the eastern boundaries of the land of the applicant, Saeid Mahamedi Fard, being the owner of the property municipally known as 96 Maria St., Toronto, Ontario, (PIN 10518-0403) and legally described as PT LT 32 PL 740 WEST TORONTO JUNCTION AS IN CT155094; CITY OF TORONTO, are those set out in Lot 32 of Plan of Subdivision 740 registered in 1887.
(b) The remainder of the relief sought in this Application is dismissed, without prejudice to its reinstatement, should it be necessary to give effect to the declaration issued herein.
(c) The Respondent, Renee De Villiers, shall pay costs of this Application, on a partial indemnity basis, to the Applicant, Saeid Mahamedi Fard, fixed in the amount of $12,500, inclusive of fees, disbursements and HST.
48The parties may deliver to me a form of Judgment, approved by the Director for Land Titles, Division of Toronto (No. 80) in registrable form, and approved as to form and content by the Applicant and the Responding Party. If necessary, the parties may request the scheduling of a Case Conference to address the form of Judgment.
A.A. Sanfilippo J.
Released: October 8, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAEID MAHAMEDI FARD
Applicant
– and –
RENEE DE VILLIERS, GEORGE CAMILLERI, ANNE CAMILLERI, JENNIFER MASOTTI-AVENINS, ANDREV AVENINS, and EUGENIO ANDRADE
Respondents
REASONS FOR DECISION
A.A. Sanfilippo J.
Released: October 8, 2021
Footnotes
- Responding Party’s factum, at para. 5; Applicant’s factum, at paras. 7-17.
- Supplementary Affidavit of Saeid Mahamedi Fard sworn September 21, 2021, Exhibit “A”, being Plan of Survey 63R-270 dated October 19, 1970.
- The ancillary relief pleaded in paragraphs 1(c) to (f), inclusive, in the Notice of Application was as follows: “(c) if necessary, an order permitting the applicant’s surveyor access to the Adjacent Properties in order to conduct whatever measurements are necessary in order to prepare a plan of subdivision for the Disputed Area; (d) in the alternative, an order that title in fee simple to the Disputed Area be vested in the name of the applicant; (e) an order that the Land Registrar for the Land Titles Division of Toronto (No. 80) rectify the description of the Adjacent Properties legally described in Schedule “B” so that the western boundary of those properties is the eastern boundary set out in Plan 740; (f) in the alternative, an order that the Land Registrar for the Land Titles Division of Toronto (No. 80) rectify the description of the Adjacent Properties legally described in Schedule “B” to exclude the Disputed Area.”