Court File and Parties
COURT FILE NO.: CV-99-0356 (Brockville)
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FLORENCE KOZIK, JOHN MALCOLM PATERSON and CAROL CAMPBELL
Plaintiffs
– and –
ROBERT DAVID PARTRIDGE and KATHERINE ANN MCCLURE
Defendant
COUNSEL:
Jonathan P. M. Collings, for the Plaintiffs
Monick L. Grenier, for the Defendant Katherine Ann McClure (CV-18-0104)
HEARD: 22 September 2021, at Brockville (by videoconference)
JUDGMENT
MEW J. (ORALLY)
[1] There are two motions before me which arise from a judgment of Justice Cosgrove released on 17 August 2000. Both motions ask me to invoke the court's power under Rule 59.06(1) to amend paragraph 3 of the operative part of that order to more accurately reflect Justice Cosgrove's decision, as reflected by the reasons given by him reported at (2000) 36 R.P.R (3rd) 254 and at [2000] O.J. 3235. The focus of both motions derives, or can be traced, to the last paragraph of Justice Cosgrove's reasons at numbered paragraph 6(3) which paraphrased said:
As a result of my findings, the judgment will issue containing the following relief claimed:
(3) an order that the defendants within 45 days and at their own expense, shall remove all gates and any other impediment along the course of the right of way erected by them with the exception of the gate located at their barn and at the intersection with the Township road.
[2] The formal judgment which was taken out following the release of Justice Cosgrove's reasons says as follows:
- THIS COURT ORDERS that the Defendants within 45 days of the date of the release of Reasons in this matter (August 17, 2000), and at their own expense, shall remove all gates and any other impediments along the course of the said right-of-way erected by them, with the exception of the gate located at the road and at the intersection of the said right of way with the Township Road.
[3] There appears to be no dispute between the parties now before the court that the formal judgment is in error in its reference to ‘road’ in the phrase “gate located at the road”. The parties agree that Justice Cosgrove should have referred to the gate located at the barn.
[4] However, the issues between the parties are not necessarily resolved by substituting the word 'barn' with the word 'road’. That is because according to Ms. Grenier on behalf of Ms. McClure, the consequence of simply leaving the amendment by changing that one word, would be to open the possibility of a further dispute as to the meaning and intent of Justice Cosgrove’s decision. In that regard, it is clear from the review of Justice Cosgrove's reasons for decision that he had taken issue with the erection by the defendants of four gates across the plaintiffs’ right of way. And he referred to those four gates on at least four occasions in the course of his reasons. On the damage claim, for example, he says:
I find on the balance of probabilities that the plaintiffs have proven the following acts of interference where their entitlement and enjoyment of their right-of-way by the defendant:
- erecting four additional gates across the right-of-way.
[5] One of the documents that I was referred to was an exhibit at the trial. It is a sketch showing the location of various gates which were clearly the gates which featured in Justice Cosgrove’s reasons. Following the release of those reasons and the taking out of the formal order, four gates were, in fact, removed by the defendants. There is no dispute about that.
[6] The concern that now arises is that if the word 'barn' is substituted for the word 'road', it apparently opens up a further issue with respect to a gate that was described during the course of argument as the ‘gate at the lake’. That gate was not one of the four gates that was removed following Justice Cosgrove's decision. It remains there to this day. It may or may not be exactly the same gate, but it is a gate that remains in the same position as a gate located in that place in 2000 and the concern is - and this arises both from submissions of the parties and from affidavits that have been filed - that if the amendment is limited to the gate located at the barn, there will then be an issue with respect to the gate at the lake and whether or not if that gate remains in place, the defendant would be in breach of the order of Justice Cosgrove, as amended. And because of that, I am urged by Ms. McClure to further clarify paragraph three of Justice Cosgrove's decision by adding, in addition to the word 'barn', the words 'the gate located at the lake', so the operative part of the paragraph would read “with the exception of the gate located at the barn, the gate located at the lake and at the intersection of said right of way with the Township Road”.
[7] Rule 59.06(1) reads as follows:
An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.
[8] What seems to me to be the leading decision, at least of this court, on that issue is the Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2013 ONSC 1502. And I am going to quote from three paragraphs from Mr. Justice Perell's reasons in that case starting at paragraph 31:
[31] Generally speaking the court’s inherent and statutory jurisdiction to amend an order or judgment is limited to: (1) cases of fraud; (2) where there has been a slip in drawing up the order; and (3) where there has been an error in the order expressing the manifest intention of the court from its reasons for decision: Paper Machinery Limited v. J.O. Ross Engineering Corp., 1934 SCC 1, [1934] S.C.R. 186; Re Wright, [1949] O.J. No. 3 (H.C.J.); Millard v. North George Capital Management Ltd., [1999] O.J. No. 3957 (S.C.J.). The rule is only operative in exceptional circumstances given the public interest in the principle of finality to the litigation process: Shaw Satellite G.P. v. Pieckenhagen, 2011 ONSC 5968 (S.C.J.) at para. 20.
[32] Under rule 59.06(1), the Court has the power to amend an order where there has been an error in expressing the manifest intention of the Court: Paper Machinery Limited v. J.O. Ross Engineering Corporation, 1934 SCC 1, [1934] S.C.R. 186; Millard v. North George Capital Management Ltd., [1999] O.J. No. 3957 (S.C.J.); Convay v. Marsulex, [2004] O.J. No. 3645 (S.C.J.).
[33] The rule permits amendments where the order obviously or indubitably does not reflect what the court intended to do, either by error or oversight: Johnston v. Johnston, [2002] O.J. No. 1570 (Div. Ct.); Saikely v. 519579 Ontario Ltd., [2002] O.J. No. 2863 (S.C.J.); Kerr v. Danier Leather Inc., (2005) 2005 ONSC 23095, 76 O.R. (3d) 354 (S.C.J.).
[9] What I understand Justice Perell to be saying in that decision is that if an order does not express the manifest intention of the court, Rule 59.06(1) provides an appropriate vehicle to fix the problem. What that rule does not of course do is allow a court, with the benefit of hindsight to tinker with the judgment or, as Justice Charney in Gendron v. Thompson Fuels, 2017 ONSC 6856 said at paragraph 54, enable counsel to ask the court for a "do-over" or “to have a second kick at the can”.
[10] The significance of today's motion is that the parties - or at least the descendants of the parties who were before Justice Cosgrove – are still at odds, and a trial is pending in this court in October in which issues relating to their respective properties and rights of way and trespass, and other matters that I am not really privy to, are going to be raised. And part of the suggestion that has been made to me in particular by Mr. Collings is that I should resist the temptation to make any amendments that effectively dig back into the disputes that were before the court back in 2000.
[11] While I accept his submission that I should be cautious not to do that, I do not think that by acceding to what Ms. Grenier has asked me to do, I am re-opening the old case. It is quite clear from Justice Cosgrove's decision that his purpose was to order the removal of four gates and that is what happened. And for many years following that, if there was any dispute about the gates that remained, it was not articulated in any public forum including this court or any other court. There are undoubtably problems with the wording of both Justice Cosgrove's reasons and the order that was taken out. There is reference to, as already discussed, a gate at the intersection of the right of way with the Township Road. Counsel are not entirely clear what was meant by that and it is difficult looking at Justice Cosgrove's reasons to see what that meant. But what is clear is that he ordered the removal of four gates and what is also clear based on what I have heard and read in the record before me, is that if I simply leave things as Mr. Collings would have me do it by making the simple amendment of replacing the word 'road' with the word 'barn', there is then going to be a further issue as to whether a fifth gate in addition to the four that have already been removed, purportedly in compliance with Justice Cosgrove's order, should now be removed.
[12] One of the overarching principles of the Rules of Civil Procedure and which should inform my interpretation and application of Rule 59.06 is Rule 1.04 which deals with the interpretation of the rules and articulates the general principle that:
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[13] Bearing in mind that general principle, applying it to the language of Rule 59.06(1) and having regard to the principles enunciated by Justice Perell in the Trustees of the Millwright Regional Council case, I am going to allow the motion to amend by amending the operative paragraph and paragraph 3 of Justice Cosgrove's order to more adequately and accurately reflect the intention manifest in his reasons for decision, and that will correspond with the amendment language suggested by Ms. Grenier.
[14] Accordingly, the last part of paragraph 3 will read “with the exception of the gate located at the barn, the gate located at the lake and at the intersection of the said right-of-way with the Township Road”.
[15] I appreciate that there remains some linguistic awkwardness in the wording of the order, but the purpose is to make corrections that better give effect to the decision of Justice Cosgrove, not to write a piece of grammatically perfect prose.
Mew J.
Handed down: 22 September 2021
COURT FILE NO.: CV-99-0356 (Brockville)
DATE: 20210922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Florence Kozik, John Malcolm Paterson and Carol Campbell
Plaintiffs
– and –
Robert David Partridge and Katherine Ann McClure
Defendants
JUDGMENT
Mew J.
Handed down: 22 September 2021