Court File and Parties
COURT FILE NO.: CV-19-003 (Kingston) DATE: 20220711 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: REGINALD CYR and LINDA CYR, Applicants AND: THE CATARAQUI CEMETERY COMPANY, Respondent
BEFORE: Mr. Justice Graeme Mew
COUNSEL: Andrew Lister and Amy Cornew, for the applicants Michael D. Swindley, for the respondent
HEARD: 22 April 2022, at Kingston
ENDORSEMENT
[1] This application is the latest episode in a longstanding series of disputes between these parties.
[2] Ultimately, what is sought is an interpretation of my judgment in court file number CV-10-403-SR of 3 October 2017 (reasons reported at 2017 ONSC 5819, 2017 CarswellOnt 15303).
[3] The formal judgment arising from my decision was drawn up by counsel. Form and content were agreed to. The operative part of the judgment provided as follows:
THIS COURT ORDERS AND ADJUDGES that the written contract between Reginald Cyr and Linda Cyr and the Cataraqui Cemetery Company, executed on August 14, 2006, is legally valid, enforceable and binding, and that Reginald Cyr and Linda Cyr own rights to six (6) spaces numbered 12-17, inclusive, in Lot 502 of Section N Old, in the Cataraqui Cemetery at Kingston Ontario;
THIS COURT ORDERS AND ADJUDGES the written contract between Reginald Cyr and Linda Cyr and The Cataraqui Cemetery Company, dated August 14, 2006, is legally valid, enforceable and binding, and Reginald Cyr and Linda Cyr own rights to a private cremation garden compromised of twelve (12) cremation positions, said positions span eighteen (18) feet by ten (10) feet, and are located in Section N Old Creekside, between the foot of spaces numbered 12 to 17 inclusive in Lot 502 of Section N Old and the Creekside of the waterway commonly referred to as Forest Pond;
THIS COURT ORDERS AND ADJUDGES the Cyr family monument and its foundation shall remain undisturbed in perpetuity;
THIS COURT ORDERS AND ADJUDGES the dimensions of the Cyr Family Garden are represented in the land survey in Schedule "A" appended hereto[.]
[4] A copy of the land survey attached as Schedule "A" to the judgment is also attached to this endorsement.
[5] The land survey was a document which had featured prominently at the previous trial. It had been prepared by a land surveyor at the request of the Cataraqui Cemetery Company.
[6] What the parties cannot agree on are the dimensions of what has been referred to as the "Cyr Family Garden".
[7] Adding to the challenge now posed is that today the parties take different positions on the dimensions of the Cyr Family Garden than those which they advocated for at trial.
[8] The applicants say that the Cyr Family Garden consists of a trapezoid delineated at its four corners by what have been described as the "new markers".
[9] The respondent takes the position that the Cyr Family Garden consists of twelve cremation positions, spanning eighteen feet by ten feet and located immediately adjacent to the six burial spaces described in paragraph 1 of the original order.
[10] In the statement of defence filed by the Cyrs in court file number CV-10-403-SR, the Cyrs pleaded, at para. 59:
The size of the Cremation Garden area acquired by Mr and Mrs Cyr was to be the width of the six lots previously acquired in the exchange (approximately 3 feet each x 6 – 18 feet) and whatever length was involved below them to reach the Alpine Garden Border. No exact measurements were taken at the time but the distance appeared to be approximately 10 – 12 feet in length.
[11] The description in paragraph 2 of my judgment would also appear to accord with that position.
[12] However, paragraph 4 of the judgment states that the dimensions of the Cyr Family Garden are represented in the land survey, which depicts the much larger trapezoid area within which the burial spaces described in paragraph 1 of the judgment are located. That is the interpretation that the Cyrs now advocate for.
[13] It is not only the Cyrs who now take a different position than they did at trial. Charles Simonds, who was the president of the cemetery company at the time that he testified, in his affidavit and in subsequent testimony, confirmed that the cemetery company had retained a land surveyor to survey measurements of, inter alia, the "Cyr Family Garden", including both the six graves purchased (lot 52, graves 12 – 17) as well as the "12 positions". The latter was described as:
The measured area delineated by the bold black trapezoid, which measured to be 279.3 square feet (or 18 feet wide by an average of 15.516 feet depth), is the area encompassed by "the 12 positions" contract.
[14] A cynical view would be that at the previous trial, it was in the interest of the Cyrs to minimise the size of the Cyr Family Garden and, hence, the providence of their transaction to acquire the Cyr Family Garden, which the cemetery was challenging on the basis that the Cyrs, who were members of the cemetery company's board at the time, had acted improperly by obtaining benefits which they were not entitled to and for which they had not paid fair value.
[15] Similarly, by arguing that the Cyrs were trying, through "the 12 positions contract" to acquire a far greater area than they were entitled to, the respondent sought to show that the contract was an improvident one from the perspective of the cemetery company, brought about by the Cyrs abusing the positions which they then held in the cemetery company.
[16] Both parties accept that the principles governing the interpretation of a court order are correctly summarised by the British Columbia Court of Appeal in Yu v. Jordan, 2012 BCCA 367, at para. 53:
[53] In my view, the interpretation of a court order is not governed by the subjective views of one or more of the parties as to its meaning after the order is made. Rather an order, whether by consent or awarded in an adjudicated disposition, is a decision of the court. As such, it is the court, not the parties, that determines the meaning of its order. In my view, the correct approach to interpreting the provisions of a court order is to examine the pleadings of the action in which it is made, the language of the order itself, and the circumstances in which the order was granted.
[17] The cemetery company points to the pleadings in the previous action and, in particular, what the Cyrs said about the "Cremation Garden" as it was described in those pleadings, as being dispositive of the question of how the order should be interpreted. The Cyrs, on the other hand, argue for a broader consideration of the history of the matter and of the circumstances surrounding how and why the previous judgment was granted. In that regard, the evidence at trial of what the cemetery company thought the Cyr Family Garden consisted of is argued to be a relevant consideration.
[18] At the trial, the exact dimensions of the Cyr Family Garden were still a matter of debate (as per paragraph 193 of my reasons). Reference was made at one point to the "Cyr Family Garden" consisting of the 279.3 square foot area that had been measured by a land surveyor.
[19] Furthermore, as a practical matter, the nine foot tall by four foot wide monument erected as part of the Cyr Family Garden sits outside the two areas which the cemetery company now claims the Cyrs' lots are confined to. Adding to the lack of clarity is that the terms "Cyr Family Garden" and "private Cremation Garden" were used interchangeably throughout the litigation and the trial itself.
[20] The judgment that was taken out, which was approved by counsel, contains conflicting provisions in paragraphs 2 and 4 respectively. The task of interpreting those provisions is made particularly difficult because of the vacillating positions that have been taken by the parties when one looks at the previous litigation and the positions currently taken.
[21] Ultimately, my conclusion is that at the trial, the parties thought they were contesting whether or not the trapezoid shown on the plan of survey had been acquired by the Cyrs as the Cyr Family Garden, containing both the six conventional grave plots and the twelve cremation places. Whether or not that is how they had pleaded the case, or now see it with the benefit of hindsight, that is how they saw it at the time of what was a resolutely fought trial.
[22] Having so found, the compensation received by the cemetery company from the Cyrs for what they acquired may well seem inadequate. That is yet another unfortunate consequence of this very unfortunate litigation.
[23] During the hearing of this application, I suggested to counsel that one solution might be for the parties to agree what fair consideration for the acquisition of the larger trapezoid area would have been, as it does seem that the pricing of what the Cyrs acquired was based on the two areas described in paragraphs 1 and 2 of the judgment. While that was not a solution which the court could impose, it could have provided an appropriate compromise. The parties did not take the hint.
Result
[24] The "Cyr Family Garden" acquired by the applicants from the respondents consists of the trapezoid shown on the plan of survey and attached as schedule had been acquired by the Cyrs as the Cyr Family Garden, containing both the six conventional grave plots and the twelve cremation places and depicted in the annotated survey drawing marked as schedule "A" to the draft order presented by counsel for the applicants.
[25] The four corner "New Markers" demarcating the Cyr Family Garden, as shown on the land survey appended to the judgment, should be replaced. Interment rights certificates, which record the exact size and location of the Cyr Family Garden as demarcated by those four corner markers should now be obtained.
[26] The application brought by the Cyrs seeks other relief relating to the reinstatement of the Cyr Family Garden and its ongoing maintenance and upkeep. As the applicants note in paragraph 43 of their affidavit, the alleged breaches of the judgment cannot be enforced until the parties receive clarification of the judgment. I am hoping that further direction from the court as to what obligations now flow from this decision will not be required. If that is unduly optimistic, however, and direction is required, I may be spoken to and, if necessary, the matter can be addressed at a further hearing.
[27] The parties have provided bills of costs. The substantial indemnity fees and disbursements of the cemetery company are $17,594.56. The corresponding total for the Cyrs is $57,609.21.
[28] I would invite the parties to think long and hard about what might be appropriate in terms of costs. Particularly having regard to what might be seen as a fortuitous outcome having regard to the position which the Cyrs, in particular, took at the pleadings stage of the previous litigation.
[29] If the parties are unable to agree on costs, I may be spoken to.
Mew J
Date: 11July 2022