



COURT OF APPEAL FOR ONTARIO

CITATION: H. Baur Investments Limited v. Tangredi, 2017 ONCA
    871

DATE: 20171114

DOCKET: C63441

MacFarland, Watt and Brown JJ.A.

BETWEEN

H. Baur Investments Limited

Plaintiff (Respondent)

and

Vincent Tangredi

Defendant (Appellant)

Harvin D. Pitch, for the appellant

Brendan Clancy, for the respondent

Heard and released orally: September 29, 2017

On appeal from the order of Justice Edward P. Belobaba of
    the Superior Court of Justice, dated February 8, 2017.

REASONS FOR
    DECISION

[1]

This is an unfortunate dispute
    between the owners of adjacent properties on Hawthorne Gardens in the City of
    Toronto. The appellant and respondent jointly own this private roadway that
    runs east to a dead end at numbers 5 and 6 Hawthorne, and west to Castle Frank
    Road.

[2]

The respondent has owned 4 and 6
    Hawthorne since about 1980. The appellant acquired 5 Hawthorne in 2015 but did
    not move in, pending renovations to the property, until the fall of 2016.

[3]

As part of his purchase of the
    property at 5 Hawthorne, the appellant took an assignment of, and agreed to be
    bound by, the agreement between the respondent and the appellants predecessor
    in title, Ms. Handeles, that governs the use and care of the private roadway.
    And, having signed that agreement in 2015, any conduct from 1990-2015 becomes
    irrelevant.

[4]

The material part of that
    agreement, for present purposes, provides Hawthorne Gardens shall be used only
    for pedestrian and vehicular access by each of the parties hereto and none of
    them shall use or permit any act upon Hawthorne Gardens in such a manner as to
    unreasonably interfere with or obstruct the reasonable use thereof by any of
    the other parties, their tenants, agents, employees, invitees, tradesmen and
    contractors.

[5]

The appellant, his tradesmen and
    contractors parked on the roadway during the renovations after he acquired the
    property. This resulted in complaints to the respondent, who rented out his property
    to tenants. Before the motion judge, the appellant took the position that he
    was entitled to park his vehicles on the roadway provided he did not block
    egress or ingress. The motion judge held that the agreement clearly prohibited
    parking on the roadway. We agree with that interpretation.

[6]

In this court, the appellant
    raises new arguments. He now concedes that the agreement prohibits parking, but
    argues, for the first time in this court, that the parties explicitly amended
    their agreement to permit parking on the brick pad adjacent to their respective
    homes. The pad covers a part of the roadway, as well as small portions of the
    properties of 5 and 6 Hawthorne. This argument was not raised before the motion
    judge. Without deciding whether the appellant can or cannot raise the argument
    now, we reject it in any event.

[7]

The June 10, 1991 letter upon
    which he relies does not, as he argues, give him the right to park his vehicle
    on that part of the pad nearest his house but which covers the jointly-owned road.
    His evidence related to past practices is all hearsay and, on this contentious
    issue, is inadmissible. There is no direct evidence from the appellant in this
    regard.

[8]

As for the appellants own use of
    the pad, the respondent has rejected this usage from the time that the
    respondent acquired his property in 1991. The agreement is clear on its face as
    the motion judge found. Parking is not permitted on the road, including that
    portion covered by the brick pad.

[9]

The site plan application was a
    necessary and incidental part of the injunction order. It was fully canvassed
    before the motion judge, and the appellant had a full opportunity to advance
    his position at that time. The motion judge made no error in requiring the
    appellant to sign the application.

[10]

The appeal is dismissed. Costs are
    awarded to the respondent fixed in the sum of $20,000, inclusive of
    disbursements and HST.

J. MacFarland J.A.

David Watt J.A.

David Brown J.A.


