



COURT OF APPEAL FOR ONTARIO

CITATION: Berg v. Marks, 2018 ONCA 595

DATE: 20180628

DOCKET: C64185

Pepall, van Rensburg and Paciocco JJ.A.

BETWEEN

Terence Berg and Matilda Berg

Plaintiffs (Respondents)

and

Marilyn Susan Marks

Defendant (Appellant)

Allan Rouben, for the appellant

Eric O. Gionet and Joshua A. Valler, for the respondents

Heard: May 23, 2018

On appeal from the judgment of Justice Mary E. Vallee of
    the Superior Court of Justice, dated July 26, 2017, with reasons reported at
    2017 ONSC 4520.

Pepall J.A.:

[1]

The trial judge declared that the respondents had a right of way in, over,
    and upon a portion of the appellants property.  The appellant, who was self-represented
    at the trial of this Simplified Procedure action, asserts that the trial judge erred
    by failing to provide her with adequate assistance.  In addition, she submits
    that the trial judge improperly interpreted the scope of the easement and that,
    as a result of these errors, the judgment should be set aside.  For the reasons
    that follow, I would dismiss the appeal.

Background

[2]

The appellant and the respondents are neighbours.

[3]

The appellant has owned 7 Mill Street East in New Tecumseth, Ontario, since
    1991, first as co-owner and then as sole owner since 1995.  She carries on a
    restaurant/bar business at the premises.

[4]

The respondents have owned 9 Mill Street East since 1997.  Their
    property consists of a pizza shop in the front, an upper level apartment, and
    three apartment units in the back.

[5]

A laneway runs between the two properties.  It is described as Part 5 on
    the Reference Plan.  It abuts the building at number 7 on the east and number 9
    on the west.  At the end of the laneway lies a catch basin, which is connected
    by a lateral pipe that runs north to Mill Street East and connects to a
    municipal storm sewer.  The catch basin was built in approximately 1980.

[6]

The appellant owns the laneway, but the respondents have a right of way
    in, over and upon the laneway.  It is undisputed that the respondents have a
    right of way for ingress and egress to their property.  What is in dispute is
    the extent of the easement.  Does it extend to permit the respondents to maintain
    the existing drainage infrastructure, including a catch basin and a drainage
    pipe, to be located under the surface of the laneway?  The trial judge found
    that it did.

[7]

The parties had been living in a state of peaceful co-existence until
    2006, when Harold Clifford, the appellants partner, prevented Terence Berg,
    one of the respondents, from attempting to repair parts of the catch basin. 
    Things got worse in 2010 when Clifford poured a concrete pad over the catch
    basin.  Apparently, the appellant was worried that the catch basin was a safety
    hazard due to an ill-fitting lid and that it exposed her to potential liability
    for personal injury, hence the decision to cover it with concrete.

[8]

Not surprisingly, the concrete pad rendered the catch basin inoperable. 
    The respondents property experienced flooding.  Water pooled in the rear
    parking area and the laneway and entered the building that housed the three
    apartment units in the back.

[9]

In 2011, the respondents commenced an action against the appellant under
    the Simplified Procedure seeking a declaration of entitlement to a right in,
    over, and upon Part 5 and damages for the cost of reinstating the catch basin,
    the cost of repair work for the basement apartment, and loss of rental income.

Pre-Trial Proceedings

[10]

The
    action proceeded to trial but not before the parties had participated in five
    pre-trials.  On April 14, 2015, Master Brott addressed various pre-trial issues
    including ordering the respondents to deliver will-say statements.  She also
    directed that an engineer be retained to report on the optimal solution for the
    location of the catch basin to eliminate the pooling of water on the parties
    property.

[11]

The
    parties retained an engineer, William Heywood, who prepared a report, dated
    August 18, 2015.

[12]

At
    a subsequent pre-trial on November 2, 2015, Master Brott ordered that the
    respondents undertake certain work on their property to minimize the ponding.

[13]

Prior
    to the trial of the action that began on May 16, 2017, the appellant brought a
    motion for disclosure of certain documents and production of the respondents
    affidavit of documents.  In an endorsement, dated May 15, 2017, McCarthy J.
    dismissed the motion.  He wrote that affidavits of documents had been served,
    and discoveries had taken place.  He also wrote that undertakings were given and
    answered, and the action had been pre-tried five times.

[14]

Master
    Brott had ordered that the mode of trial be by ordinary rather than the summary
    trial procedure.

Trial Judges Reasons for Decision

[15]

In
    considering whether the respondents easement included drainage infrastructure,
    the trial judge considered the applicable legal principles and the history of
    the creation of the right of way.

[16]

She
    noted that in 1980, the Village of Tottenham (which has since been amalgamated
    and now forms part of the Town of New Tecumseth) created an easement by grant,
    being a right of way in, over and upon Part 5 for itself and the benefit of
    the owners of Parts 1, 6, and 12.  Thus, the respondents, being the owners of
    Part 6 (9 Mill Street East), had a right of way over Part 5.

[17]

The
    mechanics associated with the creation of the right of way consisted of two
    deeds, dated July 15, 1980, in which 341949 Ontario Limited transferred
    ownership of Part 5 to the Village.  341949 Ontario was the owner of Part 5,
    and its signing officers were Anne Golden and Peg Feehely, the spouse of James Feehely,
    the lawyer who prepared the legal documents creating the right of way.  On the
    same date, the Village transferred back to 341949 Ontario Limited Part 5 but
    reserved a right of way in favour of the [Village] for municipal purposes, in,
    over and upon Part 5 and subject to a right of way in favour of the owners
    from time to time of Parts 1, 6, and 12 in, over and upon Part 5.  Mr.
    Feehely registered the documents on August 7, 1980.

[18]

The
    trial judge relied on evidence of Mr. Feehely.  Mr. Feehely has practised law
    in Tottenham/New Tecumseth since 1975, and his office is located at 5 Mill
    Street East, next door to the appellant.  He testified that the right of way
    was granted to provide access to parking at the rear of numbers 5, 7, and 9
    Mill Street East.  Those properties required drainage because the level of the
    land at the rear was lower than that of the street.  Mr. Feehely obtained
    municipal permission to have a catch basin and lateral pipe installed in the
    laneway that would connect to the municipal storm sewer on Mill Street East. 
    He had been the lawyer for the Town of New Tecumseth since 1991, and he
    believed there to be no written record of the work done in 1980.

[19]

By
    1995, the co-owners of 7 Mill Street East, which included Part 5, were the appellant
    and the appellants husband at the time, Mr. J. Marks.  On January 25, 1995, he
    transferred the property to the appellant, subject to the right of way.  Mr.
    Feehely was the appellants lawyer on the transaction.

[20]

Mr.
    Feehely testified that he saw the catch basin in the laneway working for its
    intended purpose because, in the early 1980s, he often used the laneway to
    access the back of his property for parking.  Water drained to the catch basin
    from the rear of numbers 5, 7, 9 and possibly 11 Mill Street East, and it had
    been a collecting point for water since 1980.  At the time of trial and with
    the advent of the concrete pad, the catch basin area had become a little pond,
    and he would no longer drive on it for fear of what might be under the water.

[21]

The
    trial judge concluded that the laneway was used to access parking, and the
    catch basin and lateral pipe located within the laneway provided drainage from approximately
    1980 until 2006, when Mr. Clifford first prevented the respondents from doing
    repairs.

[22]

The
    trial judge also interpreted the language of the grant using a contextual
    approach.  She determined that in, over and upon provided for the drainage
    infrastructure to be located under the surface of the laneway.  Similarly, she
    also concluded that the language upon permitted the owner of 9 Mill Street East
    to use the laneway to make repairs to the west side of the building and to
    access the apartments.

[23]

The
    trial judge then addressed whether the appellant had substantially interfered
    with the respondents right to use the laneway.  She traced the history and
    described how Mr. Clifford had first covered the catch basin lid with gravel in
    2009 and then, in November 2010, poured a concrete slab on top of it.  She
    found that he intended to make the catch basin inoperable for surface drainage
    from the respondents property and that he substantially interfered with the
    respondents right to use the laneway.  She found that his interference began
    in 2006 when he ordered the respondent, Terence Berg, to stop doing work that
    was required to maintain the laneway and catch basin and that the interference
    lasted for 11 years.

[24]

She
    therefore granted a declaration that work be performed to reinstate the catch
    basin so that the drainage function was restored and a declaration that the
    appellant not block the laneway.  She also awarded $211,491.60 in damages to
    the respondents.  As the action was commenced as a Simplified Procedure action,
    the damages were limited to $100,000.

Grounds of Appeal

[25]

The
    appellant advances two main grounds of appeal, which I will address in turn.

(a)

Procedural Fairness

[26]

First,
    she submits that the trial judge erred in failing to provide adequate
    assistance to her as a self-represented litigant, and as such, she was denied a
    fair trial.  The appellants procedural fairness argument is two-fold.

(1)

Mr. Feehely

(i)

The Appellants Position

[27]

First,
    the appellant asserts that the trial judge erred in permitting Mr. Feehely to
    testify, thus subjecting the appellant to a trial by ambush.

[28]

The
    appellant submits that under r. 76.03(3) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
governing
    affidavits of documents in Simplified Procedure actions, a party may not call
    as a witness a person whose name has not been disclosed in the partys
    affidavit of documents, unless the court orders otherwise.  Mr. Feehely was not
    disclosed in Schedule D of the respondents affidavit of documents.  That
    Schedule is to list the names of persons who might reasonably be expected to
    have knowledge of the matters in issue.  He was listed in Schedule D of the
    appellants initial affidavit of documents but not in the appellants fresh as
    amended affidavit of documents delivered at trial.  The appellant was alerted
    by counsel for the respondents some two weeks before trial that Mr. Feehely
    might be called as a witness at trial.

[29]

The
    appellant raised the issue of Mr. Feehelys evidence and the respondents
    failure to comply with rr. 76.03(2) and (3) at the commencement of trial and
    again on day two of the trial.  The trial judge indicated that she would
    address the appellants objection, but she never did.  The appellant submits
    that she suffered prejudice as a result.

[30]

Moreover,
    the appellant submits that Master Brott had ordered the respondents to deliver
    will-say statements by October 26, 2015 and that no will-say statement for Mr.
    Feehely, or indeed any other witness, was ever delivered.  The trial judge
    relied heavily on the evidence of Mr. Feehely, particularly with respect to
    determining the scope of the right of way.

[31]

The
    appellant also submits that much of Mr. Feehelys evidence was hearsay with no
    documentary evidence in support.  Had she known that he would be testifying,
    she could have obtained information from the Town, which is now the subject
    matter of her fresh evidence application.  It is her position that the evidence
    of Mr. Feehely ought to have been excluded.

(ii)

The Respondents Position

[32]

The
    respondents acknowledge that, although they served an affidavit of documents,
    Mr. Feehely was not listed in any Schedule D.  That said, they submit that the
    appellant was already aware prior to trial that Mr. Feehely was a person who
    might reasonably be expected to have knowledge of matters in issue in the
    action.  He was the author of the registered instruments that created the
    right of way; he was, at the time of her purchase of the property, the
    appellants own lawyer; and he was listed in Schedule D of the appellants original
    affidavit of documents.

[33]

Moreover,
    on May 1, 2017, two weeks prior to the commencement of the trial, the respondents
    had advised the appellant of anticipated witnesses, which included Mr.
    Feehely.  There was no surprise.

[34]

As
    for the will-say statements, the respondents submit that although directed to
    do so, neither of the parties exchanged will-say statements.  The matter was
    pre-tried three more times after Master Brotts direction, and the issue was
    never raised again.  Master Brott does not refer to will-say statements in any subsequent
    pre-trial conference reports.  The respondents note that the first time the appellant
    raised any complaint regarding the absence of will-say statements was in her
    appeal materials.

(iii)

Analysis

[35]

I
    am not persuaded that the appellant was denied a fair trial as a result of the
    admission of Mr. Feehelys evidence.

[36]

The
    Simplified Procedure rules are designed to reduce the cost of litigating claims
    of modest amounts by reducing the amount of procedure available in such cases: Derek
    McKay & Michael McGowan, eds.,
Watson & McGowans Ontario Civil Practice
    2018
(Toronto: Thomson Reuters, 2018), at p. 1503.  An affidavit of
    documents under the Simplified Procedure requires a list of the names and
    addresses of persons who might reasonably be expected to have knowledge of
    transactions or occurrences in issue in the action.  Rule 76.03(3) provides that
    at the trial of the Simplified Procedure action, a party may not call as a
    witness a person who has not been disclosed in the partys affidavit of
    documents or any supplementary affidavit of documents, unless the court orders
    otherwise.  With a summary trial under the Simplified Procedure, the examinations-in-chief
    of witnesses are provided by affidavit, and cross-examinations and oral
    argument are time limited.  Typically, a summary trial takes one day.  A
    Simplified Procedure action may also proceed by ordinary trial, as it did in
    this case.

[37]

For
    the Simplified Procedure Rules to operate effectively, it is imperative that parties
    comply with r. 76.  Due to the failure to include Mr. Feehely as a witness in
    Schedule D of the respondents affidavit of documents, there was non-compliance
    with the rule.

[38]

Arguably,
    this might be fatal.  However, as I will explain, given the circumstances
    surrounding the admission of Mr. Feehelys evidence and the lack of any real
    prejudice, there was no miscarriage of justice.

[39]

Counsel
    for the respondents understood that the respondents former counsel had advised
    the appellant of the witnesses in anticipation of the November 2016 trial
    sittings.  At the commencement of the trial in May 2017, he so advised the
    trial judge and indicated that he would endeavour to produce evidence of this
    on day two of the trial.  He confirmed that he himself had sent the appellant a
    list of witnesses two weeks before the May 2017 trial commencement date.

[40]

Certainly,
    the appellant knew that Mr. Feehely was a person who had knowledge of the
    subject-matter of the action as she included his name in her original affidavit
    of documents.

[41]

Prior
    to the trial resuming on day two, the respondents counsel had a discussion
    with the appellant and Mr. Clifford.  When the trial resumed, counsel advised
    the trial judge that the appellant was ready to proceed and to finish with Mr.
    Feehelys evidence.  In these circumstances, counsel did not file any evidence
    of any advice by the respondents prior counsel that was given to the appellant.
     In any event, no such correspondence forms part of the trial record.  When the
    appellant again raised the issue of notice with the trial judge, the trial
    judge asked the appellant to remind her after the appellant completed her
    cross-examination of Mr. Feehely as a witness and we can address it then. 
    The appellant never raised the issue again during the remainder of the trial
    nor in her closing submissions.  Neither did the trial judge.

[42]

It
    would have been preferable had the trial judge reminded the appellant of the
    issue.  That said, the appellant never said she needed more time to prepare and
    her willingness to proceed with the examination of Mr. Feehely on day two
    suggests that an adjournment was not required.  More importantly, based on the
    transcript, it would appear that the appellants desire had been to obtain
    discovery rights against the respondents witnesses including Mr. Feehely, a
    right which was unavailable to her in any event.

[43]

Furthermore,
    there was no real prejudice that arose from Mr. Feehely being a witness.

[44]

As
    stated by this court in
MacKenzie v. Matthews
(1999), 46 O.R. (3d) 21
    (C.A.), at para. 8, [T]he grant of an easement includes a grant of ancillary
    rights which are reasonably necessary to the use and enjoyment of the easement
    which was contemplated by the grantor. In that case, the court found that both
    the installation and maintenance of a dock and parking were ancillary rights
    that were reasonably necessary to the use and enjoyment of a right of way.

[45]

In
    this case, the grant of the easement was for self-evident ingress/egress along
    the laneway and to access parking spaces.  A submerged laneway a right of way
    does not make. Maintaining an operational driveway easement that is unimpeded
    by significant pools of water is an ancillary right that is reasonably
    necessary to the use and enjoyment of the easement.  As such, the drainage
    infrastructure, including the catch basin and lateral drainage pipe, would
    similarly constitute an ancillary right that was reasonably necessary for the
    use and enjoyment of the right of way.

[46]

Moreover,
    the language of the grant in favour of the respondents  in, over and upon  is
    broad and allows for such a construction.  See
Kendrick v. Martin
, 2012
    ONCA 711, 23 R.P.R. (5th) 1. Similarly, the trial judge found that the language
    of the grant upon permitted the owner of 9 Mill Street East to use the
    laneway to make repairs to the west side of the building and to access the
    apartments.

[47]

Mr.
    Feehelys evidence was not essential to reach any of these determinations.  Accordingly,
    quite apart from the fact that the appellant knew Mr. Feehely was a person who
    might reasonably be expected to have knowledge of the matters in issue as she
    had originally included him in Schedule D of her Affidavit of Documents, the
    appellant suffered no prejudice from the failure to include Mr. Feehelys name
    in the respondents Affidavit of Documents.

[48]

The
    trial judge also cannot be faulted for failing to deal with the absence of any
    will-say statements because this was never mentioned at trial and she did not
    possess the Masters order that addressed this issue.  There would have been no
    reason for the trial judge to raise this issue with the appellant, and
    furthermore, the appellant herself had also not delivered any will-say
    statements.

[49]

I
    also reject the submission that the trial judge improperly relied on hearsay
    evidence from Mr. Feehely.  Mr. Feehely testified on his personal observations
    and discussions in the drafting and registration of the easement; his
    involvement with the construction of the catch basin; and his personal
    experience with the laneway.

[50]

In
    conclusion, I do not accept this element of the appellants procedural fairness
    ground of appeal.  The trial judge tried to assist the appellant in this
    Simplified Procedure action.  Indeed, the trial took ten days to complete, and
    much time was consumed in providing guidance to the appellant.

(2)

Master Brotts orders

[51]

The
    second issue relating to procedural fairness is the appellants assertion that
    the trial judge erred in her treatment of Master Brotts pre-trial orders.

(i)      The
    Appellants Position

[52]

The
    appellant asserts that the respondents failed to undertake the work ordered by
    Master Brott, and when the appellant sought to introduce Master Brotts orders
    into evidence, the trial judge refused the request and declined to consider
    them.  The trial judge also declined to permit the appellant to cross-examine
    the respondent, Mr. Berg, on Master Brotts orders.

(ii)     The Respondents Position

[53]

The
    respondents position was that the Masters orders were made with a view to
    settlement and therefore inadmissible.

(3)

Analysis

[54]

The
    trial judge accepted the respondents position.  The trial judge had concerns
    that the orders were made to help the parties reach a settlement and, as such,
    should not form part of the record.  This was a reasonable concern.  In her
    November 2, 2015 report, the Master ordered that the case be removed from the
    trial list, stating, The parties are taking steps over the next 6 months to
    try to resolve their differences.  She then proceeded to outline remedial and
    maintenance work the parties were to undertake on their properties and she appointed
    an engineer to report on the optimal solution for the location of the catch
    basin so as to eliminate the pooling of water.  The trial judge determined that
    the Master did not have authority to appoint an expert to testify at trial, and
    so she assumed that he was appointed to assist the parties in settling the
    matter.  At trial, the appellant acknowledged that Master Brott was attempting
    to get the parties to resolve the matter.

[55]

Recognizing
    that the appellant was self-represented and that she had expected the engineer,
    Mr. Heywood, to testify at trial, the trial judge felt that there would be
    trial unfairness if Mr. Heywood was not permitted to testify.  She therefore
    permitted Mr. Heywood to give evidence on what he considered to be the optimal
    solution for the catch basin.  Mr. Heywood did deliver a report; he did testify
    at trial; and he did provide his engineering opinion regarding the question
    that Master Brott had requested that he answer, namely, the optimal location
    for the catch basin.

[56]

In
    addition, as a reasonable compromise, the trial judge permitted the appellant
    to conduct extensive cross-examinations of the respondent (Terence Berg), the
    respondents expert (Mr. Kuntze), and Mr. Heywood on the work that the
    respondents did or did not do to enhance the condition of the respondents
    property but all without reference to the specifics of the Masters orders.

[57]

In
    her submissions, the appellant stressed that she relied on Mr. Heywoods
    evidence.  In his testimony, Mr. Heywood agreed that Mr. Kuntzes approach
    would provide positive drainage from the easement to drain the water.  And when
    asked what the optimal solution was, he responded, [T]he simplest solution is
    Mr. Kuntzes connection of a catch basin to the towns sewer.  He was then
    asked:

Q.      And taking all the circumstances, not just the
    simplest, but looking at the contours, the topography, the existing catch
    basin, taking those considerations into account, is Mr. Kuntzes proposal the
    optimal solution in all the circumstances of this case?

A.      Yes.

[58]

Accordingly,
    even if one accepted that the trial judge ought to have permitted evidence of
    Master Brotts orders, they would have had no impact, in that Mr. Heywoods and
    Mr. Kuntzes opinions were the same: the optimal solution was to keep the catch
    basin in the existing location with connection to the Towns sewer.

[59]

In
    conclusion, I do not accept the appellants submissions on trial fairness as
    they relate to Master Brotts orders.

(b)

Interpretation of Easement

[60]

The
    second issue raised by the appellant is that the trial judge erred in failing
    to recognize that the criteria for establishment of the right of way that
    includes a right to drainage have not been met.  She submits that the dominant
    and servient owners were not separate.

[61]

I
    see no error on the part of the trial judge.  The evidentiary record
    established that, when the right of way was created, the dominant and servient
    owners differed.  Furthermore, this defence was never pleaded.

Fresh Evidence

[62]

I
    would also dismiss the fresh evidence application.  The appellant proffers fresh
    evidence from the Village to show an absence of evidence surrounding the 1980
    transactions with the Village of Tottenham.  Mr. Feehely testified that there
    was no written record and that, with the amalgamation, many documents were lost. 
    The tests in
Palmer v. R.,
[1980]
    1 S.C.R. 759;
and
Sengmueller v. Sengmueller
(1994), 17 O.R. (3d) 208,
are not met. 
    The information would have no impact on the outcome of the appeal.


Disposition

[63]

For
    these reasons, I would dismiss the appeal with costs of $35,000, inclusive of
    disbursements and applicable tax, to be paid by the appellant to the
    respondents as agreed.

Released:

SEP                                                 S.E.
    Pepall J.A.

JUN 28 2018                                    I agree K.
    van Rensburg J.A.

I
    agree David M. Paciocco J.A.


