



COURT OF APPEAL FOR ONTARIO

CITATION: Milo-Food Infrastructure & Service Inc. v.
    2255300 Ontario Limited, 2014 ONCA 333

DATE: 20140428

DOCKET: C57946

MacPherson, Blair and Pepall JJ.A.

BETWEEN

Milo-Food Infrastructure & Service Inc.

Plaintiff/Appellant

and

2255300
    Ontario Limited

Michael
    Hillhouse

Albert
    Testa

Defendants/Respondents

Raymond G. Colautti and Anita Landry, for the appellant

Carolyn Brandow, for the respondents

Heard and released orally: April 25, 2014

On appeal from the judgment of Justice Terrence L.J. Patterson
    of the Superior Court of Justice, dated November 8, 2013.

ENDORSEMENT

[1]

The appellant appeals from the November 8, 2013 order of Patterson J. in
    which he dismissed the appellants action against the respondents.

[2]

In our view, this appeal must be allowed.

[3]

There was ample evidence that the Easement and Lake Water Supply
    Agreement dated December 28, 2007 (the Easement Agreement) was conveyed to
    the appellant.

[4]

By an Assignment and Assumption of Contracts Agreement dated August 31,
    2011, the receiver of 1033084 Alta Ltd. (103), the registered owner of the
    Milo Road property and related personal property, expressly assigned and
    transferred all of 103s right, title and interest in the Easement Agreement to
    the appellant.

[5]

This was confirmed in the affidavit filed before the motion judge on
    behalf of the appellant.

[6]

The August 30, 2011 approval and vesting order approves and gives effect
    to the assumption agreement.  The only assumption agreement found in the record
    is that which transferred the Easement Agreement to the appellant.

[7]

The language of the Easement Agreement itself contemplates transfer to a
    successor in title such as the appellant.

[8]

Any absence of registration of the easement against the appellants
    lands does not advance the respondents case.  The estate burdened by the
    easement was that of the respondent.

[9]

The motion judge erred in dismissing the appellants action on the basis
    that the Easement Agreement had not been transferred.

[10]

Moreover,
    there was no genuine issue requiring a trial on the issue of the transfer of
    the Easement Agreement to the appellant and the motion judge erred in not
    granting partial summary judgment to that effect in favour of the appellant.

[11]

In
    conclusion, the appeal is allowed, the order is set aside, and partial summary
    judgment is granted declaring that the Easement Agreement was conveyed to the
    appellant.  It follows that to the extent necessary, the CPLs obtained by the appellant
    are reinstated.

[12]

In
    light of his conclusion, the motion judge did not address the other issues
    raised by the parties.  In our view, any ancillary issues that continue to be
    outstanding may be addressed in whatever proceedings either party considers
    appropriate.

[13]

The
    appellant is entitled to costs fixed in the amount of $12,000 inclusive of
    disbursements and applicable tax.

J.C. MacPherson J.A.

R.A. Blair J.A.

S.E. Pepall J.A.


