Court File and Parties

Court File Nos.: CV-25-00737750-0000 and CV-25-00736351-0000

Date: 2025-08-01

Superior Court of Justice – Ontario

Between:

Re: Marc Steven Bachli, Applicant

And:

Doug McLeod and Barbara McLeod, Respondents

Before: Leiper J.

Heard: July 29, 2025 and August 1, 2025

Counsel:

• Rob L. Winterstein, Lawyer for the Applicant/Respondent
• John Mather, Lawyer for the Applicants/Respondents

Decision

[1] Background

On July 29, 2025, a twenty-one year agreement registered on the Land Titles registry system in Toronto came to an end. The landowners who made that agreement no longer own the properties involved: 41 Indian Grove ("41") and 270 Indian Road ("270"), south of Bloor Street and east of Parkside Drive. The rear boundary line for 41 meets part of the rear yard for 270 along two stretches, one running north-south, the other running east-west. A sketch from the evidence, which I have inserted below shows the property lines.

[2] The Current Owners

The current owners are Doug McLeod and Barbara McLeod (the "McLeod Applicants") who own 41, and Marc Stephen Bachli (the "Bachli Applicant") who owns 270.

[3] The Dispute

The parties dispute the legal status of a retaining wall which is the subject of the twenty-one year agreement which has now expired.

[4] The Retaining Wall

The retaining wall is a large structure. It supports a large built up area of land on the northerly part of 270. An art studio and a three-car garage sit on the built up portion. The long edge of the 'L' sits on 270 and runs east to west (it is marked in yellow on the sketch below).

[5] Survey Evidence

As confirmed by the survey evidence, the north to south face of the wall overlaps at the far eastern end of 41's lands. It is shown with a blue line on the sketch below. The surveyor has described it as a large concrete retaining wall.

The Issue

[6]

The parties have narrowed the issues on the Applications to the question of whether the retaining wall represents an encroachment by 270 onto 41. The McLeod Applicants seek a declaration to that effect. The Bachli Applicant resists such a declaration.

The Hearing and Taking of a View

[7]

The parties tendered comprehensive evidence of surveys, sketches, photographs and affidavits including from the former owners. After hearing submissions in court, I adjourned the hearing to attend at the properties to view the retaining wall in dispute. That viewing took place on August 1, 2025 in the presence of the court registrar, counsel to the parties, Mr. Bachli and his spouse, Dr. Thomas, and Mr. McLeod. Counsel made supplementary submissions at that time.

[8]

During the view, the parties and counsel accompanied me to view both sides of the retaining wall, from the top down of the part that is on 270's lands (where a survey line and orange tape were visible), as well as from the ravine to the north of 270's lands, which gives a view of the longer and higher side of the retaining wall that runs east to west behind a neighbouring property.

[9]

I provided the parties with my decision at the time of the viewing and indicated that I would deliver written reasons for that decision. These are those reasons.

Summary of this Decision

[10]

I find that the 270 retaining wall encroaches on 41's lands. A declaration to that effect will issue.

The Properties

[11]

As can be seen by this sketch of the lands, 270 (in yellow) is a much larger property than 41 (in grey). The overlapping portion of the L-shaped retaining wall is the blue line below, which runs north to south[^1]:

[12]

An updated survey conducted by Young and Young includes a close-up sketch of the boundary and retaining wall area in dispute as follows:

[13]

In the photographs below, one can see a portion of the retaining wall (as well as fencing installed alongside) with the art studio (described in the above sketch as a "Frame Shed") in the background which sits on 270 (on Lot 11) in the sketch above:

The Mountain Encroachment Agreement

[14]

The "Mountain Encroachment Agreement" is dated July 30, 2004 and takes its name from the previous owner of 270, James Mountain. It was also signed by Rod Archer, the previous owner of 41 Indian Grove immediately prior to the McLeod purchase.

[15]

The Mountain Encroachment Agreement and title registers show that the Agreement was prepared at Mr. Mountain's expense. It was registered on title for both properties on July 30, 2004.

[16]

The terms of the Mountain Encroachment Agreement provide, among other things:

(a) That the former owner of 270 Indian Grove constructed a retaining wall (defined as the "Wall") that encroached approximately 2.5 feet onto 41 Indian Grove;

(b) That Mr. Archer agreed that the existing encroachment of the wall may continue to encroach on 41 Indian Grove;

(c) That the encroachment "shall be for a period of twenty-one (21) years less one (1) day" from the date of execution of this Agreement;

(d) That "so long as the encroachment shall be permitted" that Mr. Archer shall allow an easement for Mr. Mountain and his spouse, Ms. Weaver to "enter upon that portion of the Archer Lands to maintain and repair the wall";

(e) Time shall be of the essence in the Encroachment Agreement; and

(f) The Encroachment Agreement and all of its terms shall run with and bind 41 Indian Grove and 270 Indian Road, and "shall be binding upon all of the Parties hereto and their respective successors and assigns".

[17]

The parties do not dispute that this was a valid agreement registered on title to both properties and that it bound them as the successors to the former owners.

[18]

The evidence is unclear as to the precise history of the wall and its construction. Mr. Bachli's spouse, Dr. Andrea Thomas suggested in the email correspondence in the record that the wall was 34 years old. The Bachli Applicant tendered an affidavit from Mr. Mountain, who asserts the retaining wall has existed for approximately 97 years, but does not state the basis for his knowledge. Mr. Archer states in his affidavit that the retaining wall was built by a Mr. Korotoky, the man who owned 270 Indian Road before Mr. Mountain. Mr. Archer stated in the letter attached to his affidavit that Mr. Korotoky built the wall "without discussion or permission".

Analysis of the Issue: What is the Legal Status of the Retaining Wall?

[19]

I begin with the Mountain Encroachment Agreement, an instrument registered on title and binding on the parties as successor owners to the lands described in that agreement.

[20]

Third party purchasers for value are entitled to rely on the accuracy of the instruments registered on title, as set out in section 78(4) of the Land Titles Act, R.S.O. 1990, c. L.5 which reads:

When registered, an instrument shall be deemed to be embodied in the register and to be effective according to its nature and intent, and to create, transfer, charge or discharge, as the case requires, the land or estate or interest therein mentioned in the register.

[21]

With reference to section 78(4), Ontario courts have repeatedly affirmed that the land titles regime in Ontario has the following three "fundamental principles":

(a) The register is a perfect mirror of title. Here, this means that the Encroachment Agreement is the only agreement relating to the encroachment of the retaining wall.

[22]

There are no other unregistered interests on title, or interests that conflict with the Encroachment Agreement.

(b) A purchaser for value need not investigate the history of past dealings with the land, or search behind title as depicted on the register.

(c) The state guarantees the accuracy of the register, such that the Respondents cannot argue that the parties are somehow not bound by the registered instruments on title.

See: Airport Business Park Inc. v. Huszti Holdings Inc., 2023 ONCA 391 at paras 42-44; Re Regal Constellation Hotel (2004), O.R. (3d) (C.A.), at para. 42; Stanbarr Services Ltd. v. Metropolis Properties Inc., 2018 ONCA 244, 141 O.R. (3d) 102; 2544176 Ontario Inc. v. 2394762 Ontario Inc., 2022 ONCA 529; and Martin v. 11037315 Canada Inc., 2022 ONCA 322.

[23]

Although Mr. Archer's affidavit makes a general reference to a "mistake of fact" at the time of the Mountain Encroachment Agreement, there are no specifics as to what the mistake was. Mr. Mountain did not describe a mistake. Mr. Archer deferred to the formal surveyor's opinions as to the location of the retaining wall relative to the boundary lines.

[24]

The agreement stood without correction or application to change it under the Land Titles Act as part of the purchase and sale of 41 Indian Grove. In May 2020, Mr. Archer and his wife Mary Ann Archer swore a solemn oath that they were not aware of any claims or interests in lands that were inconsistent with registered title and were "positive none exist".

[25]

I find that the registered Mountain Encroachment Agreement is valid and not undermined by Mr. Archer's evidence.

[26]

I turn next to the interpretation of the Mountain Encroachment Agreement.

[27]

Encroachment agreements are interpreted in the same manner as any contract. The agreement is read as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. In interpreting a contract, the language of the contract remains paramount. The surrounding circumstances must never be allowed to overwhelm the words of the agreement: Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60, [2019] 4 SCR 394, at paras. 73-80.

[28]

The wording of the Mountain Encroachment Agreement is clear:

(a) The recitals provide that the retaining wall was constructed by a former owner of 270 Indian Road and encroaches on 41 Indian Grove by approximately 2.5 feet.

(b) Section 1 provides that 41 Indian Grove grants and agrees to the encroachment such that the encroachment is now permitted.

(c) Section 3 provides that the encroachment shall be for a period of 21 years less one day from the date of the Encroachment Agreement.

[29]

The Bachli Applicant submits that I should decline to find any encroachment of the retaining wall onto 41 on several grounds, which I deal with briefly here in turn:

a) No one knows who originally built the Retaining Wall and there is no evidence in this proceeding on this issue

I disagree that the McLeod Applicants must trace the origins of the wall back in time before the Mountain Encroachment Agreement which was registered on title on the basis of the law cited above, including recent appellate jurisprudence in Airport Business Park Inc. v. Huszti Holdings Inc.

b) No one knows whether 41 Indian Grove and/or 270 Indian Road existed (in their current configurations or at all) when the Retaining Wall was originally built

I disagree for the same reasons given immediately above, in point a).

c) 41 Indian Grove historically made use of the Retaining Wall and appears to continue to do so in so far as the Board Fence appears to be anchored to the Retaining Wall and supported by the Retaining Wall

I disagree. Usage or attachments have not been shown to alter the terms of the Mountain Encroachment Agreement. In any event, at one point the Bachli Applicant asked the McLeod Applicants to remove the board fence. The McLeod Applicants agreed. Then the Bachli Applicant changed his mind. The board fence stayed. I viewed the board fence which is in front of the encroaching retaining wall at the rear of 41. It obscures the sight of the retaining wall, thus any view had to be done from above on 270's property. Overall the entire retaining wall can be seen to hold up the land on which 270's two outbuildings are sitting.

d) The Retaining Wall has existed in its present location for 97 years

See my findings under a) and b) above, as well as the inconsistent positions as to the precise age of the retaining wall.

[30]

I find that the clear meaning of the Mountain Encroachment Agreement is that the retaining wall's encroachment onto 41 Indian Grove was permitted to continue up until July 29, 2025, at which point such permission ends. The parties have neither negotiated an extension or a new agreement to replace the Mountain Encroachment Agreement, although of course they could do so.

Other Matters

[31]

Although not required to dispose of this Application, the record of communications and complaints (including to the City of Toronto, the McLeod's professional regulator and to the police) by Mr. Bachli with a stated view to have the McLeod Applicants cease pursuing their legal rights, requires comment.

[32]

In the correspondence, Mr. Bachli expressly stated that he was taking such actions to try and have the McLeod Applicants abandon their application. The McLeod Applicants requested that he communicate with him only through their lawyer. They avoided escalating the conflict and did not pursue any counter manoeuvres like those chosen by Mr. Bachli. Mr. Bachli ignored their requests to communicate through their lawyer and continued to send emails after business hours after being asked not to. He asserted to their lawyer that he should not act for them. While he was careful to say that he was not "harassing" the McLeod Applicants, his actions speak louder than his words.

[33]

Mr. Bachli attempted to use improper means to try and intimidate his neighbours, into abandoning their application. In doing so, Mr. Bachli needlessly complicated the litigation and caused his neighbours undue stress and anxiety.

[34]

The problematic conduct took place prior to Mr. Bachli retaining counsel. In supplementary submissions today, counsel confirmed his advice to Mr. Bachli that this was not appropriate litigation conduct. Mr. Bachli heeded that advice. Further, at the time of the viewing, Mr. Bachli offered an apology to Mr. McLeod for his actions. This was an appropriate step to take. I hope that a cordial, business-like approach will serve the parties well in any future discussions they may need to have about the retaining wall that was the subject of this application or any other matters concerned their shared boundary lines.

Conclusion

[35]

I find in favour of the McLeod Applicants and allow their application for a declaration that the retaining wall is encroaching on their lands at 41 Indian Road, by virtue of the expiry of the Mountain Encroachment Agreement. On consent, I dismiss the Bachli application.

[36]

I urge the parties to agree as to costs. If they are unable to so, then counsel may exchange costs submissions and deliver them to me after September 2, 2025. These should be brief written submissions (maximum 3 pages) addressed to my judicial assistant.

Leiper J.

Date Released: August 1, 2025

[^1]: The survey evidence is that the overlapping portion ranges from 10 cm at the narrowest and 30 cm at the widest part of the overlap onto 41's lands.