



COURT OF APPEAL FOR ONTARIO

CITATION: Lester v.
    Bond, 2014 ONCA 749

DATE: 20141028

DOCKET: C58246

MacFarland, LaForme and Lauwers JJ.A.

BETWEEN

Reid Lester and Carol Jones

Applicants

(Appellants)

and

James William Chanwell Bond and Mary Elizabeth
    Bond

Respondents

(Respondents in Appeal)

Reid Lester, acting in person

Evert Van Woudenberg, for the respondent

Heard and released orally:  October 10, 2014

On appeal from the judgment of Justice John A. B.
    MacDonald of the Superior Court of Justice, dated December 23, 2013.

ENDORSEMENT

[1]

The application judge carefully reviewed the evidence before him
    including three surveys one from 1986 and two from 2012 having been
    commissioned by the parties. He found that the low retaining wall, which is the
    subject of the appellants complaint, encroaches at most .74 meters and at its
    least .64 meters, into the right of way. He reviewed the lengthy affidavits of
    the parties including the exhibits to those affidavits and the
    cross-examinations upon them.

[2]

The application judge concluded that the 1998 retaining wall, which
    replaced and continued an earlier wall in the same location, part of which was
    built by the City on its property, did not create a substantial obstruction to
    the appellants rights pursuant to the 1916 grant. The real problem, he found,
    was created by the pinch point at the north end of the right of way on City
    property. His findings are well-supported in the evidence and as such, are owed
    deference in this court.

[3]

The application judge  followed the law as set out in this courts
    decision in
Devaney v. McNab
(1921), 69 D.L.R. 23 (Ont. C.A.) as
    Middleton J.A. noted: (i)n each case it appears to me that it must be regarded
    as a question of fact, 

as to whether or not there has been a substantial
    inference with the dominant tenement holders rights.

[4]

We see no error and the appeal is dismissed.

Cross-Appeal

[5]

The respondents seek leave to appeal the costs order of MacDonald J.
    wherein he denied the respondents costs of the application.

[6]

This was a property dispute between two parties  where neither have
    particularly clean hands. We are not persuaded that there was any error in principle
    or other error in the costs decision  we would not grant leave to appeal.

Disposition

[7]

The appeal is dismissed. The cross-appeal is dismissed. Costs of the
    appeal are awarded to the respondent in the sum of $10,000 inclusive of disbursements
    and H.S.T.

[8]

The cross-appeal is also dismissed with costs fixed to the respondent by
    cross-appeal in the sum of $1,000.

[9]

Accordingly, the appellant will pay the respondent the net amount of
    $9,000.00.

J. MacFarland
    J.A.

H. S. LaForme
    J.A.

P.
    Lauwers J.A.


