185 King Developments Inc. v. Tewson et al.
ONTARIO SUPERIOR COURT OF JUSTICE
RE: 185 KING DEVELOPMENTS INC., Applicant
-and-
SARA C. TEWSON, TIMOTHY J. TEWSON, JENNIFER M. SMITH, CHARLES WILLIAM NOEL, HUGO DAVID TEWSON, SUSAN J. TEWSON, RORY ANTHONY RANK ASKEW, ANTHONY CRAWFORD LYNDEN POTTER, BARRIE LYNDEN POTTER, NICOLA A. OLSEN, BRIDGET POTTER, CHRISTOPHER N. L. POTTER, EDWARD ALBANY NOEL, WILLIAM LAMBE, JEFFERY LAIDLAW, LORETTA ROBINSON, DAVID HENRY, MARY KOSARCZUK, JEFFERY LAIDLAW SMITH, PATRICIA HERTZBERG, JULIA KATHRYN SIMMERS HAMMELL, PHILIP CAYLEY BOYD, ANNE MIDDLETON, JIM CASSIDY, DOUGLAS ALEXANDER LAMBE, PAUL BERNARD HENRY, LIONEL HENRY, JAMES GRANT LAIDLAW, ROBERT DAVID SMITH, SANDRA DENTON, ROBERT JAMES HENRY, MARIE CASSIDY, MELISSA LAIDLAW, GAEL IRIS NEKE, CHARLES HENRY, WILLIAM HENRY, JOHN DUNCAN BACKUS, DOUGLAS ALEXANDER FORLONG, JOHN M. HENRY, ROBERT DALE MACDONALD FORLONG, GRACE ANDRA POWERS, JAMES RUSSELL BACKUS, DUNCAN CAMERON FORLONG, JANE IVISON LYONS, PETER BEVERLEY BOYD, JEAN KNIGHTLEY NIXON, WILLIAM DAVID LAIDLAW, DEBORAH SUE WEIR, KATHERINE MARNIE LAIDLAW, PAUL TAYLOR, DIANA MEREDITH MCNEILL, MARGARET MARLER PEARSON HALLETT BROWN, GEOFFREY DENTON, PHILIP DENTON, VANESSA GRAFI-MAYNARD, ERIC GRAFI and JEFFERY SANDERS, Respondents
BEFORE: FL Myers J
COUNSEL: Sanj Sood and Codie Mitchell, for the applicant
Patricia Hertzberg, Geoff Denton, and Bill Henry, self-represented respondents
READ: November 28, 2022
ENDORSEMENT
1The applicant seeks a declaration that it owns a thin strip of laneway that runs behind 185 King Street East, Toronto. The laneway runs from George Street on the east across the lot to the lot line with the neighbouring property on the west being183 King Street East. It is just wide enough for a car or a horse and buggy.
2Registered title to the piece of laneway behind 185 King Street East remains in the name of John Henry Boulton who bought it in 1824. He died in 1870.
3The respondents are, in the main, the great-great-great-grandchildren of Mr. Boulton. The applicant hired a genealogist to identify and locate them so they could be given notice of this proceeding. However, some of the respondents seem to have misunderstood the purpose of the notice they received. They oppose the application as if they, as a group, have some residual right to share the property (or its monetary value). They do not have any such rights.
4The respondents were properly given notice to ensure that anyone with rights of ownership in the property had the opportunity to come forward and assert his or her claim. There is no evidence from any of the respondents that any of them has any right whatsoever to the land. While Mr. Boulton’s will is known, none of the wills of his children, grandchildren, great-grandchildren, or great-great-grandchildren are in evidence. None of the respondents has proven that he or she has any legal interest in the land.
5Assuming that no one actually knew about the forgotten piece of laneway, it might have devolved through residuary devises in the various wills. But no one knows the identity of any residuary beneficiaries of Mr. Bourton’s children, let alone his grandchild, great-grandchildren etc. Gifts could have been made to charity or to relatives by marriage, or to anyone.
6While it is not impossible that one or more respondents might have a claim to the land, the claim has to be proven. The land does not just belong to them as a group or individually because they trace roots to an owner 200 years ago.
7So, while I will deal briefly with some of the objections raised by the respondents who appeared, it is always against the backdrop that they have not proven that any of them has any right to the property no matter the outcome on this application.
Mr. Boulton purchased, subdivided, and then sold 181, 183, and 185 King Street East.
8In 1824 Mr. Boulton bought a large block of land at the southwest corner of King Street East and George Street. Over time, he subdivided and sold lots identified respectively as 181, 183, and 185 King Street East.
9In 1833, John Boulton sold his first lot at 185 King Street East. The lot is located on the southwest corner of King Street East and George Street. It fronts on both King Street East (to the north) and George Street (to the east).
10When he created and sold the first lot, Mr. Boulton kept for himself the narrow strip of laneway at the south end of the lot. In doing so, he kept access for himself from George Street to his other lots to the west at 183 and 181 King Street East.
11But, because Mr. Boulton continued to own the laneway and the neighbouring lots, he did not need to create an easement or right-of-way over the laneway. It remained his land so he could use it as he pleased to access his remaining lots to the west. The new owner of 185 King Street East then had no deeded right to own or to use the laneway behind his land. It was kept by Mr. Boulton.
12Mr. Boulton sold 183 King Street East in 1846. When he sold that lot, the lot description included the southern strip of laneway across 183 King Street East. Mr. Boulton did not keep this piece of the laneway like he kept the laneway behind 185 King Street East.
13Instead, to protect his access to his remaining lot at 181 King Street East, when Mr. Boulton sold 183 King Street (including the laneway at the rear) he kept for himself a right to use the laneway over 183 to access 181 King Street East.
14In 1850, Mr. Boulton sold his last lot at 183 King Street East. There is no mention of a right of way or easement in the deed.
15In summary, from 1824 to 1833 Mr. Boulton owned the whole block. From 1933 to 1946, Mr. Boulton could use the laneway at the south end of 185 King Street East to access the rest of his block. In 1846, when he sold 183 King Street East, Mr. Boulton could access his remining lot at 181 King Street East from George Street by using his laneway behind 185 and then using his registered easement over 183.
16After Mr. Boulton sold 181 King Street East, he no longer needed to access any of the three lots. But he still owned the small strip of laneway running behind 185 King Street from George Street to the boundary line with 183 King Street East. And registered title to that strip of laneway is still in Mr. Boulton’s name to this day.
Subsequent Dealings
17Title documents evidencing subsequent dealings with all three sold lots refer in various ways to rights-of-way over the Boulton laneway. The wording varies. But later deeds for each of the three lots recognize dominant rights to an easement over the Boulton laneway.
18There is no evidence of the creation of any easement by Mr. Boulton. There is no evidence of any agreement of the owner of the servient tenement to grant easements over the land in favour of the three others who claimed dominant rights. If any of the subsequent owners used the laneway, perhaps they simply had Mr. Boulton’s permission to cross his land. Or perhaps they had easements orally or by prescription.
19The respondents who oppose the application do not claim that they have acquired any rights over the Boulton laneway due to the exitance of the alleged rights of way in the deeds of neighbours. Rather, they say that the rights of way preclude the applicant from having acquired adverse possession because, among other things, neighbours must have used the land under their rights of way.
20I raised with the parties the doctrine of lost modern grant. It was described by Feldman JA in Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266 as follows:
[6] Under the doctrine of lost modern grant, an easement by prescription can be established by the owners of the dominant tenement over the affected portion of the servient tenement based on 20 years of continuous, uninterrupted, open and peaceful use of the land without objection by the owner of the servient tenement. The use must be “as of right” meaning that the owner of the servient tenement must have knowingly acquiesced to the establishment of the easement, not just granted permission or a license to use the land: see Carpenter v. Doull-MacDonald, 2017 ONSC 7560, 92 R.P.R. (5th) 6, at paras. 42-47, aff’d 2018 ONCA 521, 92 R.P.R. (5th) 47.
21The problem with this doctrine in this case is that there is no evidence that Mr. Boulton knowingly granted any easement over his laneway. Subsequent owners claimed one. But there is no evidence that he knowingly acquiesced in the creation of an easement as opposed to having simply allowed the use of his land.
22In fact, there is no evidence in the record of any actual use of the Boulton laneway by anyone before 1941. Ms. Hertzberg asks the court to presume that owners of the three neighbouring properties 181, 183, and 185 King Street East used the Boulton laneway because their deeds contain references to rights of way.
23I do not need to make a finding as to whether rights of way can be inferred from deeds containing dominant rights absent a deed showing assent by the servient land owner. Neither do I need to make any finding about whether people might have used the Boulton laneway historically up to 1941. Whatever the results of those issues may be, they change after 1941.
24In 1941, the Mitz family became the owners of 185 King Street East.
Harry Mitz buys 185 King Street East
25In 1941, Harry Mitz and a business partner, whom he later bought out, bought 185 King Street East. Mr. Mitz operated a machinery refurbishing and appraisal business there for decades.
26Harry Mitz has passed away. Lewis MItz is his son. He has adduced uncontested evidence in this proceeding. It is his testimony that for 75 years, from 1941 until they sold the land to the applicant, Mr. Mitz and his family believed they owned the Boulton laneway as part of 185 King Street East.
27Lewis Mitz was called to the bar in 1971. He acted on his neighbour Mr. Lazarek’s purchases of 181 and 183 King Street East. Nevertheless, Mr. Mitz says he never knew about Mr. Boulton’s title to the Boulton laneway until 2016 when he went to sell the land to the applicant.
28Lewis Mitz gives evidence that from the time he was a child in 1950 he attended his father’s business every weekend. He increased his work for his father through his teenaged and university years. In the1980s, Lewis Mitz moved his law office into 185 King Street East.
29It is Mr. Mitz’s unchallenged evidence that while he was working, his father alone used the laneway behind his store. Harry Mitz parked his car there every work day. When his father did not attend and after he passed away, Lewis Mitz parked his car in the Boulton laneway.
30Lewis Mitz also testifies that:
Throughout all of that time, from 1941 until 185 King was sold to the applicant in November 2016, my father and I openly, exclusively, continuously and peaceably, possessed, occupied, used and controlled the [Boulton laneway], to the exclusion of anyone else, unless they had our express permission.
No one, including anyone acting or purporting to act on behalf of Henry John Boulton, nor any one claiming to be or acting on behalf of his heirs or descendants, ever granted my family permission to take possession of, use, occupy and/or control the [Boulton laneway].
No one ever objected to or challenged my father and/or my possession, occupation, use and/or control of the Orphaned Land. Until [his company] sold the [Boulton laneway] to the applicant, I always believed that the [Boulton laneway] formed a part of 185 King and that my family owned the [Boulton laneway]. I believe that my father had this same belief.
31If that were not enough, in the early 1970s, the Mitzes erected a chain across the entrance to the Boulton laneway to prevent access from George Street except with their express permission.
32The Mitzes’ exercise of dominion over the Boulton laneway was confirmed by their neighbour Anthony Lazarek who testifies:
When I acquired 181 King, Harry Mitz, whose holding company owned 185 King. controlled access to the 24.5' x 8' piece of the alleyway located immediately behind and abutting 185 King (the "[Boulton laneway]"). There was a chain affixed across the entrance to the [Boulton laneway], which had been affixed by Harry and his son Lewis Mitz. Harry also parked his car on the [Boulton laneway] almost everyday. After Harry died, Lewis parked his car on the [Boulton laneway] almost every day. The chain and the cars blocked me from using the [Boulton laneway].
I therefore believed and believe that I needed Harry's permission to cross the [Boulton laneway]. When Harry died, I believed and believe I needed Lewis' permission to cross the [Boulton laneway]. I believed and believe that if Harry or Lewis did not grant permission, then I would not have been able to cross the [Boulton laneway] even to enter or exit the back of 181 King and 183 King.
I never objected to, complained about, or challenged Harry's or Lewis', exclusive use and control of the [Boulton laneway]. I never demanded that they remove the chain at the entrance of the [Boulton laneway] or move their cars. I never asserted that they were not permitted to block the right of way because 181 King and/or 183 King had a right of way over it. I understood that they had the right to control the use of and access over the [Boulton laneway].
Analysis
33The uncontested evidence of Messrs. Mitz and Lazarek leaves no room for doubt that the Mitz entities that owned 185 King Street East from time to time after 1941 had ten years of open, exclusive, continuous, peaceable, possession and use of the Boulton laneway that was adverse to the whole world including whoever might have been its true owner(s).
34Ms. Hertzberg asks me to disbelieve this testimony because: (a) the references to rights of way in the deeds of all three lots must mean that others used the Boulton laneway, (b) because Mr. Mitz granted permission to Mr. Lazarek and others to use the laneway on occasion; and (c) because both Mr. Mitz and Mr. Lazarek have financial interests in the ongoing development of the site by the applicant.
35The existence of rights of way in deeds has nothing to do with the actual use of the land and possession of the land in the real world. Similarly, the fact that the Mitzes granted permission to others to use the laneway does not mean that their possession was not exclusive. Rather, it shows that they exercised the rights of an owner.
36To assert that Mr. Mitz has an economic interest in the ongoing development, the respondents rely on a piece of double hearsay evidence. Ms. Hertzberg testifies that Mr. Lazarek told her husband that Mr. Lazarek has a piece of the proposed development. Mr. Lazarek told Mr. Hertzberg. Mr. Hertzberg then told Mrs. Hertzberg. Hearsay built on hearsay is not admissible evidence. I cannot receive it.
37In any event, all of Mr. Lazarek, Mr. Mitz, and the applicant have delivered responding affidavits denying the truth of the allegation. They were not cross-examined.
38I cannot accept an inadmissible, “he told him who told me” over the sworn testimony of first-hand witnesses who were not cross-examined on their evidence. Moreover, even if the Lazareks had an interest, that does not lead to an inference that Mr. Mitz does as well. Furthermore, even if the Lazareks and the Mitzes have an economic motive to support the applicant, by 1951 or, at the latest, ten years after the chain was erected in the early 1970s, the Mitzes’ possessory title was complete. Absent evidence from people who were there at the time and can contest the facts, a financial interest in the current development is not a basis on which I would readily find three witnesses to be untruthful in sworn testimony. In any event, as the evidence relied on is inadmissible, the issue does not arise.
39As noted above therefore, even if there are effective rights of way in the deeds of the three neighbours, and even if others used the Boulton laneway from 1824 to 1941, the applicant still must succeed. In fact, if Lewis Mitz actually knew that the Boulton laneway was not his father’s or his land, the applicant still must succeed. In my view, the claim is stronger if Mr. Mitz knew someone else owned the land and he deliberately acted as owner excluding people whom he knew to have real rights in the land. Mr. Sood made distinctions in the law between a claimant who mistakenly believes he owns a piece of land and a deliberate trespasser. If Mr. Mitz was the latter, he still effectively excluded the world from the land. There is no evidence of any respondent or anyone else ever purporting to challenge the Mitzes’ dominion including the neighbour who allegedly had a dominant right to do so.
40Ms. Hertzberg submits that the Mitzes’ possession was not “adverse” because it was not inconsistent with the use intended by Harry Boulton. Both intended the Boulton laneway to be used for passage to the rear of 185 King Street East and the rest of the parcel. What makes the possession “adverse” however, is that Harry Boulton intended the use as a passageway would be by him. The Mitzes’ effectively excluded Mr. Boulton and his heirs, successors, and assigns from carrying out Mr. Boulton’s intended use of the land.
41Ms. Hertzberg also submits that the Mitzes’ possession was not adverse because they had a right of way over the piece of land in their deed to 185 King Street East. They were not trespassers. But, the right of way, even if valid, did not give them the right to exclude other holders of the same right and to chain off the passageway. They acted as owners of the land. They did not just use it as a passageway in common with others. .
Outcome
42This is not a close call. There is more than ample evidence to prove each element of the Mitzes’ claim of possessory title and that their title arose long before the land was registered under the Land Titles Act.
43Judgment will go as sought.
44The title of proceeding is amended as set out in Schedule “A” to the applicant’s notice of motion dated November 17, 2022.
45The applicant may deliver not more than three pages of costs submissions by December 9, 2022. Anyone against whom costs are sought may respond with no more than three pages of submissions by December 16, 2022. All submissions shall also include a Costs Outline which is not included in the page limit. Parties may also include copies of any offers to settle that are relied upon for costs purposes.
46Costs submissions shall be uploaded to CaseLines. I request the applicant’s counsel to assist the respondents with CaseLines.
FL Myers J
Date: December 1, 2022