Court File and Parties

COURT FILE NO.: CV-21-673816 DATE: 20220404 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PRIMONT (CASTELMONT) INC. Applicant – and – FRIULI BENEVOLENT CORPORATION, FAMEE FURLANE TORONTO and FRIULI LONG TERM CARE Respondents

Counsel: Daniel A. Schwartz and Scott McGrath, for the Applicant Charles M. Loopstra, Q.C. and Paul E.F. Martin, for Friuli Long Term Care Eddy J. Battiston, for Friuli Benevolent Corporation

HEARD: March 25, 2022

FL Myers J

The Application

[1] The applicant seeks a declaration that mutual easements among the parties do not include the right for the users of each party’s property to park on each other’s lands.

[2] For the reasons that follow the order will go as asked.

Background

[3] The applicant is buying a piece of land from the respondent Famee Furlane Toronto. Before the sale closes, the applicant wants certainty as to the meaning of the mutual easements among the parties. The vendor Famee is a party and supports the application. So the applicant does not have a standing issue.

[4] Famee’s predecessor and the respondent Friuli Benevolent Corporation initially owned neighbouring properties. Famee built a banquet hall and social club on part of its land. It has lots of room for parking. Friuli built a 9-story apartment for seniors on its land.

[5] In 2001, Famee decided to build a long-term care facility in between its social club and Friuli’s apartment building. With the City and Friuli, they developed an idea to create a new lot in the middle of the two properties on which to build the long-term care facility.

[6] The new lot for the long-term care facility was going to be landlocked with no access directly to the surrounding streets.

[7] All the parties also recognized from the outset that parking was needed for the long-term care facility.

[8] Friuli needed all of its parking spots for its apartment building. But Famee’s social club is busiest at night. Its parking spots would be available for the use of visitors and staff of the proposed long-term care facility during the day.

[9] The plan settled upon involved all three lots functioning as a large single campus with mutual access and parking shared between Famee and the new long-term care facility.

[10] As one would expect, parking was an issue dealt with in the municipal planning process that preceded the actual creation of the new lot and campus.

[11] The parties and the City settled upon some 325 parking spots being created in total of which 84 parking spaces were to be made available for users of the long-term care facility. The zoning by-law passed by the City calls for 311 parking spots to be created. It does not say where or by whom or on what terms. Those issues were left to the parties for agreement.

[12] The consultants retained by the new long-term care facility owner told the owner that it should obtain parking rights by easement from Famee. In any event, it is common ground that everyone knew that the new long-term care facility needed parking and the planning process required it.

[13] On June 20, 2003, the City and the predecessor parties entered into a Site Plan Agreement that is registered on title to much of the campus land. In it, the parties agreed to develop the land in accordance with agreed plans that showed the desired parking spots on the Famee lands.

[14] Section 2 of the Site Plan Agreement prohibits the owners using any area of the lands for any purpose other than the use designated on the attached plans.

[15] The parties’ predecessors also entered into a tripartite agreement dated September 17, 2003 to govern use of the land and cost sharing among them.

[16] Paragraph 4(b) of the tripartite agreement provides:

(b) The parties hereto covenant and agree that notwithstanding that they enjoy an easement for vehicular and pedestrian access and egress over the lands of the other parties hereto, such right shall not permit the owner of the dominant tenement in each case to change, alter or modify the lands of any servient tenement or expand those parts of the servient tenements actually being used for the purposes of the easements from those being so used as at the date of execution of this Agreement without the prior written consent of the owner of such servient tenement, which may not be arbitrarily withheld but which may be subject to reasonable terms including that the proponent of the change, alteration or modification agreeing to pay for all costs relating to same, including the obtaining of all requisite approvals, consents, etc. and agreeing to post reasonable security for the contemplated work.

[17] This clause says that despite the easements that are the subject matter of this proceeding, the dominant party has no right to modify or expand the parts of the servient land being used for the purpose of the easement except with the consent of the servient owner. Consent may not be arbitrarily withheld but can include a requirement that the proponent of future changes agree to pay for them.

[18] The agreement makes reference to the easements that are the subject matter of this dispute. Each of the three parties has given and received an easement over each of the other’s land so that everyone has property rights over the whole campus. The easement granted by Famee to the long-term care facility owner provides:

A non-exclusive easement for the purposes of vehicular and pedestrian access and egress over and along those parts Lots 8 and 9, Registrar's Compiled Plan 9691, and part of Block 6 and all of Block 7, Plan 65M-2166, designated as Parts 1 to 5, both inclusive, Plan 65R-26004, as may be unencumbered by buildings or structures from time to time and as may be improved from time to time by the owner thereof to accommodate vehicular and pedestrian access and egress, being the servient tenement. [Emphasis added.]

[19] The easement allows the long-term care owner to use the Famee land “for the purposes of vehicular and pedestrian access and egress”. The easement in issue allows the long-term care facility to use the entire Famee land that is not encumbered by a building from time to time. Like the tripartite agreement, the easements also anticipate future development of the properties. This easement allows Famee to improve its land in future accommodating vehicular and pedestrian access and egress by the long-term care facility.

The Parties’ Positions

[20] The applicant says that the easement just allows access and egress over the Famee property for the landlocked long-term care facility. Parking is dealt with separately in the agreements between the parties.

[21] The long-term care facility submits that properly interpreted the easement must include the right for users of the long-term care facility to park on Famee land as was anticipated and agreed throughout.

Analysis

[22] The issue before me is narrow. Are parking rights property rights that are included in the easements or are they contractual rights under the various agreements alone?

[23] For present purposes, the applicant and Famee do not deny their obligations to provide parking as agreed. They accept that under the Site Plan Agreement they cannot change unilaterally the use of the parking area as agreed. They know that any future changes to redevelop the Famee lands will likely require a municipal rezoning process. They accept that under the tripartite agreement, if they (as dominant tenement) propose changes to the long-term care facility lands, then the long-term care facility will have a consent right as described. None of that is in issue.

[24] The narrow issue for this application is simply whether the contractual rights are also property rights included in the easements.

[25] The outcome is clear and unambiguous. The easements deal with access and egress only. They ensure that all three owners have rights over each others’ lands to drive or walk in at one end, traverse the campus, and leave at the other end. The users of the Friuli apartment building have the same rights as the landlocked long-term care facility, and as Famee. They can come and go by whatever route they please subject to existing and future buildings being erected on each of the parcels.

[26] The fact that the long-term care facility agrees that it has no right to use the parking spots of the Friuli apartment building is telling. If parking is assured by the easements, then they all have the right to park on each other’s land. It was clear from day one however that the apartment needed its own parking spots. It had to buy a piece of the Famee land to ensure that it had enough parking for itself. The fact that the long-terms care facility accepts that it has no right to park on the Friuli apartment building land despite having the exact same easement over that lot as it does over the Famee lot is utterly inconsistent with the argument that a parking right is included in the easements.

[27] It isn’t. Parking rights between and among these parties are contractual.

[28] The easements are to be interpreted in accordance with the words used first and foremost. Reference can be had to objective surrounding circumstances but not to overwhelm the words used.

[29] Consultants writing to the owners of the long-term care facility suggesting a wish list for bargaining is not admissible objective surrounding circumstances. Even if it were, and even looking at the city development documents, planning reports, zoning bylaws, and agreements, nothing requires or allows the words “vehicular and pedestrian access and egress over and along” to be construed to mean “parking”.

[30] Parking was an issue for the City and the parties and it was dealt with as they wished and to the satisfaction of all at the time.

[31] The long-term care facility argues that the granting of easements over the entire lands of the others makes no sense if it does not include parking. Otherwise the easements could have been limited just to the roadways. I disagree. The parties anticipated future redevelopment of the sites. The roadways can move. Given the campus model, as long as future development allowed for some roadways, they can be anywhere and the easements would not need to be changed. Occam’s razor leads to the simple outcome rather than the convoluted analysis proposed.

[32] Moreover, nothing in the bylaws or other planning documents says that parking must be dealt with as a property right rather than contractual right. The argument of the long-term care facility that the zoning gives it property rights was rejected in MTCC 62 v Bloor/Avenue Road Investment Inc., 2009 ONSC 44718 at para. 49 where Lederer J wrote:

To propose that the owners of the condominiums can rely on the words of a zoning by-law to give them a say in the way parking is provided is to use the by-law to give them rights in the property. Zoning by-laws do nothing other than provide for the uses to which the property may be put. [Emphasis added.]

[33] The long-term care facility conflates use with property rights throughout its arguments. Mr. Loopstra submits that the easements are intended to implement the zoning bylaws and the Site Plan Agreement. That may or may not be. But they are to be interpreted in accordance with their words unless the words are ambiguous. They aren’t.

[34] Neither is there an easement by necessity on the facts of this case. Access and egress to the newly created landlocked lot was necessary and was dealt with expressly by easements. Parking was desired for the uses contemplated by the owners of their land. And that was the subject of agreements among them and with the City.

[35] Proprietary estoppel will not apply here either. There are contractual rights agreed upon by the parties. There is no indication that Famee ever promised not to redevelop its land or never to propose a revision to the parking plan. Famee’s successor will have to deal with parking and the campus concept to which Famee agreed. But the long-term care facility cannot show that Famee ever represented that it would not rely on its right to redevelop as referenced in the easements or that the long-term care facility relied on such a representation to its detriment.

[36] The long-term care facility is trying to bring before the court its issues for use and zoning that may ultimately be for the Land Planning Appeal Board. Its current day need for parking will be dealt with in any redevelopment process that may be proposed. At this stage, no one knows what Famee or its buyer will propose for redevelopment or how any such proposal may affect the long-term care facility if at all. See: 1637063 Ontario Inc. v The Corporation of the City of Markham, 2019 ONSC 7511.

[37] The application is therefore granted and the counter-application is dismissed.

[38] The applicant and Friuli Benevolent Corporation may each deliver no more than three pages of costs submissions by April 11, 2022. Friuli Long Term Care may deliver up to three pages of submissions by April 18, 2022. Any party seeking or opposing costs shall submit a Costs Outline. In addition, parties may submit any offers to settle on which they rely for costs.

FL Myers J Released: April 4, 2022