



COURT OF APPEAL FOR ONTARIO

CITATION:

Wesley v. Iles, 2013
    ONCA 8

DATE: 20130111

DOCKET: C55076

LaForme and Watt JJ.A. and Lederman J. (
ad
    hoc
)

BETWEEN

William Wesley

Plaintiff (Respondent)

and

Michael Iles and Julie Sunday

Defendants (Appellants)

AND BETWEEN

Michael Iles and Julie
    Sunday

Plaintiffs by
    Counterclaim

(Appellants)

and

William Wesley and Pamela Eisenhauer

Defendants by Counterclaim

(Respondents)

Morris Cooper, for the appellants

D. Kenneth Gibson and Ryan E. Flewelling, for the
    respondents

Heard: December 13, 2012

On appeal from the order of Justice John A. McMunagle of
    the Superior Court of Justice, dated February 1, 2012, reported at 2012 ONSC
    629; and on cross-appeal from his order as to costs dated March 26, 2012,
    reported at 2012 ONSC 1557.

ENDORSEMENT

THE APPEAL

[1]

Michael Iles and Julie Sunday (the appellants)
are adjoining neighbours
of William Wesley and
    Julie Eisenhauer (the respondents).  There is an easement that lies between
    their respective homes, but which is on the property of the respondents.  The
    appellants believed
that because it

is
    possible to park more than one vehicle on the easement, and because they have
    done so in the past; they should be permitted to do so for the foreseeable
    future.  The respondents disagreed, and as often occurs in such disputes
    between neighbours, the matter ended up in court for resolution.

[2]

The appellants moved for partial summary judgment for a determination of
    their right to park on
the
easement.  At
    the same time the respondents moved for partial summary judgment to restrict their
    parking to a single car, and to eliminate or substantially reduce the area
    permitted for parking on the easement.

[3]

The motion judge ordered that: (i) parking be limited to one car only;
    (ii) the appellants are to park their car in such a way that the respondents may
    have access to their backyard; and (iii) the easement on title be amended to
    add a restriction that the vehicle shall not be parked so as to restrict
    backyard access.  Mr. Iles and Ms. Sunday appeal the decision.

[4]

The motion judges decision should remain undisturbed.  He committed no
    errors of law and his conclusions are reasonable ones supported by the evidence. 
    The appeal has no merit.

Background

[5]

In 1993, 16 Noel Street was severed to create an infill parcel of land
    that became 14A Noel Street.  The parcel was registered under the
Land
    Titles Act
, R.S.O. 1990, c. L.5.
At the time
    the lawyer for the promoter of the severance made the following representation
    to the Committee of Adjustments:


The other part of the variance is
      for the parking space for the old house that is being sold, which will be
      partly on the lot that goes with the new house that is being created.  That is
      the easement that is being applied for as part of the severance application. 
      So that 1.34 meters of that
required parking space
will be on this easement.  It will not change
the parking
        space and it will be a standard size parking space
. (Emphasis added)


[6]

On March 31, 1994, Dr. and Mrs. Reesor
    purchased 14A Noel Street as a vacant lot and developed it.
They purchased
    it seven months after the easement was concluded with full knowledge that the
    title was subject to a parking easement.

At
    the time, the Reesors understood their obligation was to provide an easement
    for parking one car.  The grant of right-of-way and the easement on the
    Reesor's transfer/deed is worded as follows:


Together with a right-of-way for
      access and egress and a right
to park a motor vehicle
over part of Lot 23, Registered Plan No. 68, City of Ottawa, Regional
      Municipality of Ottawa-Carleton, more particularly described as Part 3, on
      deposited Reference Plan 4R-9422. (Emphasis added)


[7]

On September 15, 2004, the respondents purchased 14A Noel Street.  On
    September 15, 2005, the appellants purchased 16 Noel Street and knew about the
    easement when they purchased.  The parties therefore are immediate neighbours.

[8]

The dispute between the parties arose in 2008 because of the appellants
    practice of parking two cars on the easement right up against the house wall
    and a retaining wall of 14A Noel Street.  As a result, the respondents cannot
    access their backyard via the easement.

Analysis

[9]

While the appellants raise numerous grounds of appeal, we do not, as
    already noted, see any merit to any of them.  The motion judge applied the
    correct law; he made no palpable and overriding errors in his findings of fact;
    and he properly applied those facts to the law.  The following brief comments
    will sufficiently demonstrate the reasons for our decision.

[10]

First,
    contrary to the appellants submission, the motion judge did not order an
    impermissible derogation from the original grant of easement
.  Rather,
he interpreted the original grant
    according to its plain and ordinary meaning and after consideration of all the
    circumstances surrounding the grant.

[11]

The
    appellants underpin much of their arguments on their contention that the motion
    judge failed to properly consider all the relevant circumstances surrounding
    the September 1, 1993 easement grant.  For example, they argue that the motion
    judge failed to consider the fact that the easement in 1993 was paved and was
    11.4 metres in length, which was double the length of a single parking space
    under the existing City of Ottawa by-law thereby providing space for parking
    two cars.  They contend that he relied almost exclusively on the
    representations made to the Committee of Adjustment in 1993.  They point particularly
    to para. 26 of his reasons on the summary judgment motions:

While I agree that the purpose of the easement
    was to preserve the ''historical parking rights of 16 Noel Street", when
    one carefully reviews the Committee of Adjustments evidence and the documents
    that are on title, references made are for a singular parking space.  Had it
    been the intention of various parties involved to create more than one space,
    then clearly the Committees decision would have reflected that and the
    documents on title would have referred to spaces, plural.  That is not in fact
    the case.

[12]

They
    also rely on para. 12 of the motion judges costs endorsement where he
    observes: As I indicated in my endorsement, essentially this case came down to
    whether or not the word a parking space could constitute more than one
    parking space and I found that a parking space means one parking space.

[13]

The
    appellants arguments and the narrow reading of the motion judges reasons
    ignore the interpretation to be given to them when read as a whole.  When
    considering the motion judges reasons in this fashion, together with the record,
    as we are bound to do, it is clear that he relied on all the evidence presented
    on these summary judgment motions, to which process the parties agreed.  This
    included the representations to the Committee of Adjustment, the evidence of
    the Reesors, who were prior owners and developers of 14A Noel Street, and the
    language of their transfer/deed.

[14]

After reviewing the evidence, the motion judge,
    at para. 22 of his summary judgment reasons, found that:

The evidence does not support the
    [appellants] position that an easement was granted in favour of 16 Noel Street
    to allow the owners of 16 Noel Street to continue to park on the entirety of
    the driveway.  In fact, the evidence is to the contrary that the easement was
    granted to provide a sufficient space to park a vehicle.

[15]

The
    decision of the motion judge was clear that the intention of the parties was to
    create a right to park one vehicle.  This is amply supported by the evidence
    and the language of the documents he relied on.

[16]

Second,
    contrary to the appellants submissions, the motion judge did not err in his
    reliance on the evidence of Dr. Reesor.  Dr. Reesors evidence was relevant as
    it related to the creation of the easement, and the history of its use.  Indeed,
    his evidence was relevant to both partys arguments.  Clearly the motion judge found
    Dr. Reesors evidence credible and such decisions are entitled to significant
    deference and no reasons have been established in this case that would require
    us to interfere.

[17]

Third,
    the motion judge did not err by failing to resolve any ambiguities in
    accordance with the rule in
Wheeldon v. Burrows
, (1879) Ch. D. 31 (C.A.)
    and in failing to apply the law of the implied grant.  While this issue does
    not appear to be one that was raised with the motion judge, nevertheless, it
    has no application here.  Very briefly,
Wheeldon v. Burrows
is an English property law case on the
    implying of
grant easements
.  Put simply, there is
    nothing to imply in this case because the finding of the motion judge was that
    the intention of the parties was to create a right to park one vehicle and
    there was an express grant to this effect.

[18]

Fourth,
    the motion judge did not exceed his jurisdiction and err in law by revising the
    grant of easement to add a restriction.  His decision is well within the wide
    discretion afforded him by s. 159 of the
Land Titles Act
, which allows
    him to make any order directing the land register be rectified in such a manner
    as is considered just.

[19]

Fifth,
the motion judge
did not
err by ordering a judgement inconsistent
    with a city by-law
.
The easement was
    established before the by-law that prohibits parking in front of the front wall
    of a house.  The easement is a legal non-conforming use and the motion judge
    was not required to interpret the grant in a way that was consistent with it. 
    The relevant considerations were the language of the express grant and the
    context of its creation.

Disposition

[20]

For
    these reasons, the appeal is dismissed.

THE CROSS-APPEAL

[21]

The
    respondents cross-appeal on the issue of costs.  They ask that the cost award
    of the motion judge - $20,000 plus disbursements and HST - be varied to
    $80,000.  This cross-appeal is also dismissed.

[22]

We
    see no error in the findings and decision of the motion judge.  He referred to
    the correct statutory principles and applied the factors correctly to the facts
    before him.  He properly considered the defendants offer to settle and the
    complexity of the case.  His decision, absent an error in law, or unless his
  decision is plainly wrong, is entitled to deference.

COSTS

[23]

The
    respondents are awarded costs of the appeal fixed in the amount of $7,500
    inclusive of disbursements and HST.  The appellants are awarded costs of the
    cross-appeal fixed in the amount of $3,000 inclusive of disbursements and HST. 
    In the result, the respondents are entitled to costs from the appellants in the
    all inclusive amount $4,500.

H.S. LaForme
    J.A.

David Watt J.A.

S. Lederman J. (
ad hoc
)


