



COURT OF APPEAL FOR ONTARIO

CITATION:  Szymanski v. Alaimo, 2017 ONCA 86

DATE: 20170131

DOCKET: C62162

Doherty, Brown and Miller JJ.A.

BETWEEN

Francine Szymanski

Applicant (Appellant)

and

Giuseppina Alaimo and Francesco Alaimo

Respondents (Respondents)

Corinne A. Muccilli, for the appellant

Gwendolyn L. Adrian, for the respondents

Heard and released orally:  January 27, 2017

On appeal from the judgment of Justice Douglas K. Gray of
    the Superior Court of Justice, dated April 14, 2016, with reasons reported at
    2016 ONSC 2527.

ENDORSEMENT

[1]

Counsel advance three arguments on the main appeal.  First, she argues
    that the application judge erred in holding that the right-of-way provided the
    appellant only with access to the garage along the existing laneway.  She
    argues that the right-of-way, properly interpreted, extended to access to the
    appellants property from any point along the established laneway.

[2]

In his reasons, the application judge properly instructed himself on the
    controlling legal principles.  He was required to examine both the terms of the
    document that created the right-of-way and the surrounding circumstances.  His
    determination as to the nature and scope of the right-of-way is a finding of
    fact.  In our view, the application judge made no legal error and did not
    misapprehend the evidence in coming to his conclusion as to the nature of the
    appellants right-of-way.  Absent any such error, we must defer to the application
    judges finding of fact and we do so.

[3]

Counsels second argument relates to the erection of certain posts as
    part of a fence which was constructed by the respondents along the pathway and
    led to this litigation.  The application judge found that the posts did intrude,
    to a small extent, on the right-of-way.  He made no finding that the posts in
    any way interfered with the use of the right-of-way as a means of getting into
    and out of the garage.

[4]

More to the point, however, this issue is moot.  The posts are gone and
    there is no reason to say anything more about the effects of those posts on the
    right-of-way.

[5]

The third point raised by counsel relates to the nature of the order made
    by the application judge.  The application judge accepted certain undertakings
    from the respondents.  The undertakings were, first, not to reinstall the gates
    that had been removed and, second, to move the fence posts.  These undertakings
    were referred to in the recitals to the order, but were not made part of the
    formal order and were not part of any declaration made by the application
    judge.

[6]

The form of the order is a matter for the discretion of the application
    judge.  Some judges might have included the substance of the undertakings as
    part of a formal declaration and others would not.  In our view, when it comes
    to enforcing the order, there is no significant difference between the two
    options.

[7]

The fresh evidence placed before us at the start of the oral argument
    does not suggest that the undertakings are not being complied with by the
    respondents.  In the circumstances, we see no reason to interfere with the
    manner in which the application judge chose to frame the order.  This ground of
    appeal fails.

[8]

In the result, the main appeal is dismissed.

[9]

As explained to counsel, we cannot determine the costs question raised
    by the appellant without seeing the written submissions that were made before
    the application judge.  Counsel have indicated that those submissions can be
    provided to the court within two weeks.  We will address the costs appeal when
    we have those written submissions.  If for any reason they are unavailable, we
    will address the costs submissions on the basis of the record we now have. 
    Counsel should file the written submissions in a single compendium as soon as
    they are available.

Doherty J.A.

David Brown J.A.
 B.W. Miller J.A.


