



COURT OF APPEAL FOR ONTARIO

CITATION: Lackner v. Hall, 2013 ONCA 631

DATE: 20131016

DOCKET:
C55934

MacPherson, Watt and Pepall JJ.A.

BETWEEN

Gary Lackner Linda Lackner, Eric Thomson, Susan Dejardins and Patricia
    Tite

Plaintiffs (Respondents)

and

Shane
    Hall,
2219160 Ontario Limited
, Stanley Thomas
    Wallace, William

Robert
    England, Allan Keys, Catherine Keys, and Vikki Storie

Defendants (Appellant)

Phillip G. Hunt, for the appellant

John Parr Telfer and Margot Leduc Pomerleau, for the
    respondents

M. Jill Dougherty, for the respondents on cross-appeal Stanley
    Thomas Wallace, William Robert England, Allan Keys, Catherine Keys, and Vikki
    Storie

No one appearing for the respondent on cross-appeal,
    Shane Hall

Heard: October 7, 2013

On appeal from the judgment of Justice James McNamara of
    the Superior Court of Justice, dated April 10, 2013.

By
    the Court:

[1]

The appellant 2219160 Ontario Limited appeals from the judgment of
    McNamara J. of the Superior Court of Justice dated April 10, 2013, declaring
    that the boundaries of the Ottawa area property lots owned by the respondents
    extend to the edge of the Ottawa River.

[2]

The respondents seek leave to cross-appeal from the costs endorsement of
    McNamara J. dated April 10, 2013.  They claim that the trial judge erred by
    awarding costs against only the corporate defendant, and not against the
    personal defendants.

A.

The appeal

[3]

The dispute between the parties is about the ownership of a strip of
    land between the respondents lots and the river.  The appellant contends that
    the trial judge erred in finding that this land belonged to the respondents. 
    The appellants position is that the respondents properties, as shown on the
    relevant official plan (Plan 418), do not extend to the waters edge and,
    therefore, do not include the disputed lands.  The appellant advances four
    arguments in support of its position.

[4]

First, the appellant submits that the trial judge erred in concluding
    that Plan 418 contained a latent ambiguity that permitted him to rely on extrinsic
    evidence to assist him in interpreting the plan.

[5]

The leading case describing the permissible and impermissible uses of extrinsic
    evidence in interpreting a property deed is
Gibbs v. Grand Bend (Village)
    (1995)
, 26 O.R. (3d) 644 (C.A.), wherein Finlayson J.A. said, at para. 38:

A description in a deed may contain either a patent or a latent
    ambiguity.  A patent ambiguity is one that is apparent on the face of the
    deed.  A latent ambiguity is one that arises only when the deed is applied
    to the land it purports to describe.  Thus while a patent ambiguity is
    found in the deed itself, a latent ambiguity is revealed through extrinsic
    evidence.  Parol evidence is inadmissible to explain a patent
    ambiguity.  Extrinsic evidence may be introduced only in the case of a
    latent ambiguity for the purpose of ascertaining the intention of the grantor.

[6]

The trial judge considered
Gibbs
and found:

I am satisfied on the facts of this matter that there is a
    latent ambiguity.  The ambiguity arises from the need to determine whether the
    transverse line which forms the waterside boundary of the lots on Plan 418 was
    intended by the original subdividers to be the natural boundary between their
    subdivision and the bed of the river, or not.  Putting it another way, was it
    their intent to create a row of lots that extended to the Ottawa River, or was
    it their intention to create lots that fronted on a beach to which title was
    retained.

[7]

We agree with this conclusion; it fits precisely within the proper use
    of extrinsic evidence for interpreting a deed set out by this court in
Gibbs
.

[8]

Second, the appellant contends that the trial judge erred by focussing
    his analysis solely on the intent of the original subdividers, namely, the
    brothers John and Godfrey Armitage, who purchased the relevant lands in 1920
    and registered Plan 418 in 1931.

[9]

In support of this submission, the appellant relies on a single
    paragraph from a decision of this court rendered after the trial judges decision
    in this case.  In
Tiny (Township) v. Battaglia
, 2013 ONCA 274, at
    para. 71, Epstein J.A. stated:

The application judge, without any legal analysis, appears
    to have proceeded on the basis that the intention of Aldridge and Tripp is
    dispositive of the question of the location of the westerly boundary of Block
    B.  I do not wish to be taken as agreeing with this view
. 
    However, even if I were to accept, for the sake of argument, that the intention
    of the original developers of the lands is relevant to the determination of the
    boundary issue, in my opinion, the application judges finding that both
    Aldridge and Tripp intended to include all that they owned within the
    boundaries of Plan 656 is based on a misapprehension of the evidence.                                                                              [Emphasis
    added.]

[10]

We
    do not take the emphasized portion of this passage as a statement that the
    intention of the subdividers is irrelevant to the interpretation of a deed. 
    Such a conclusion would be inconsistent with the language of
Gibbs
,
    set out above, and, in our view, is not suggested in the quoted passage from
Battaglia
.

[11]

In
    any event, the trial judge focussed on a number of factors in reaching his
    conclusion, including the words of the deed, evidence about the likely
    intention of the Armitage brothers, evidence about how township records treated
    the property, and expert evidence.

[12]

Third,
    the appellant submits that the trial judge made a factual error by concluding
    that the waterside boundary lines of the respondents lots were an approximation
    of the high-water mark.

[13]

We
    disagree.  The trial judges review of the deed, plan, and role of John
    Armitage, who happened to sign the plan in his role as reeve of the Township of
    Torbolton, is, in our view, a supportable analysis.  In any event, it is far
    removed from being a palpable and overriding error.

[14]

Fourth,
    the appellant contends that the trial judge erred by relying and placing undue
    weight on irrelevant and immaterial evidence in determining the intent of the
    original subdividers.

[15]

We
    do not accept this submission.  The evidence of George Kennedy and Dr. Roland
    Armitage was of some probative value about the intention of the original
    subdividers and was properly used by the trial judge.

[16]

For
    these reasons, we would dismiss the appeal.

B.

The cross-appeal

[17]

The
    cross-appellants contend that the trial judge erred in awarding costs against only
    the corporate defendant and in refusing to award costs against the individual
    defendants.

[18]

In
    his brief costs endorsement, the trial judge explained this dichotomy in this
    fashion:

All of the evidence at trial was geared toward this ownership
    dispute between the Plaintiffs and the Corporate Defendant.  No evidence was
    adduced as to any of the named individual Defendants, nor were any submissions
    made.



Without the benefit of evidence or argument as to the role of
    the individual Defendants, I was left to speculate as to their role.  I assumed
    they were nominal Defendants, and it would be inappropriate in those
    circumstances to require them to pay costs.  No relief was sought from these
    individuals during the trial, they werent even mentioned in any meaningful way
    other than when the issue of costs arose.  As far as I am aware from the
    evidence tendered at trial and the argument made, this litigation was not made
    necessary by any position they took, but rather because of the position being
    advanced by the Corporate Defendant.

[19]

In
    our view, with the exception of Shane Hall, it was open to the trial judge to
    treat the respondents on the cross-appeal as nominal parties and to exercise
    his discretion and not award costs against them.

[20]

That
    said, Shane Hall was in a different position.  Contrary to the trial judges
    determination, there was both evidence at trial and submissions made that
    related to Shane Hall in both his personal and corporate capacities.  Though
    not a witness at trial, he was clearly significantly involved in the scheme
    that provoked the litigation and significantly engaged in the court
    proceedings, which included filing court documents in his personal capacity. 
    Accordingly, we would allow the cross-appeal with respect to Shane Hall.

C.

Disposition

[21]

The
    appeal is dismissed.  The cross-appeal with respect to Stanley Wallace, William
    England, Allan Keys, Catherine Keys and Vikki Storie is dismissed.  The cross-appeal
    with respect to Shane Hall is allowed.  The Judgment should be amended to read:

2.       AND THIS COURT ORDERS that the defendants 2219160
    Ontario Limited and Shane Hall pay the plaintiffs their assessed costs in the
    amount of $150,619.96.

[22]

The
    respondents are entitled to their costs of the appeal fixed at $11,000
    inclusive of disbursements and HST.  The cross-appellants have achieved some
    success on the cross-appeal and are entitled to costs fixed at $3,000 inclusive
    of disbursements and HST.

Released: October 16, 2013
    (J.C.M.)

J.C.
    MacPherson J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.


