



COURT OF APPEAL FOR ONTARIO

CITATION: Walker v. Coldin, 2020 ONCA 603

DATE: 20200924

DOCKET: C67125

Doherty, Hoy and Jamal JJ.A.

BETWEEN

John
    Arthur Walker, Susan Jayne Walker, Karen Barbara Ann Seegars, Maritza Sanchez
    and Barry Street

Applicants (Respondents)

and

Brian
    Douglas Coldin
,
1387881 Ontario Inc.
, The Bank of Nova Scotia, Parklane Investments Inc. and Barbara
    Coldin

Respondents (
Appellants
)

Brian Douglas Coldin, acting in person
    and for 1387881 Ontario Inc.

Andrew M. Mae, for the respondents

Heard: in writing

On
    appeal from the judgment of Justice Mary E. Vallee of the Superior Court of
    Justice, dated May 28, 2019, with reasons reported at 2019 ONSC 3255.

REASONS FOR DECISION

[1]

This appeal arises out of a dispute concerning
    road access to five cottage waterfront properties, three of which are owned by
    the respondents. The cottages are landlocked. The respondents access their
    cottages by way of an easement creating rights of way over the property (the
    Resort Property) of 1387881 Ontario Inc. (138).

[2]

The respondents brought
    an application in June 2018 seeking various forms of relief, including a
    declaration of a prescriptive easement over the Resort Property. Before the
    application judge, 138 and its principal, Brian Douglas Coldin, conceded that
    there were rights of way over the Resort Property in favour of the respondents
    properties, but argued that these rights are seasonally limited such that the
    respondents have no access during the winter.

[3]

Mr. Coldin and 183 appeal
    the judgment of the application judge ordering that there is an easement which
    is not seasonally limited, directing that the land registrar amend the property
    records for the Resort Property and the respondents properties to reflect the
    easement, and enjoining the appellant from interfering with the respondents
    access.

[4]

The appellants raise
    six grounds of appeal.

[5]

First, in what appears
    to be the appellants primary ground of appeal, they claim ineffective
    assistance of counsel. Ineffective assistance of counsel as a ground for a new
    trial in a civil action is available only in the rarest of cases: see
W. (D.) v. White
, [2004] 189 O.A.C. 256, leave to appeal refused, [2004] S.C.C.A. No. 486.
    Examples of the types of cases in which the ground might be available include
    cases involving some overriding public interest or cases engaging the
    interests of vulnerable persons like children or persons under mental
    disability or cases in which one party to the litigation is somehow complicit
    in the failure of counsel opposite to attain a reasonable standard of
    representation:
W. (D.)
, at para. 55. This case clearly does not
    fall within the exceptional types of circumstances where ineffective assistance
    of counsel can form a ground of appeal in a civil action.

[6]

Second, the appellants
    argue that the application judge erred in concluding that the easement is not
    seasonally limited. The application judge concluded this based on her review of
    the terms of injunctions granted against the respondents in 2003 and 2009,
    prohibiting them from interfering with the use of the right of way without
    qualification as to season, and the reference to a right of way over the Resort
    Property at all times contained in the transfer of a property to one of the
    respondents from their predecessor in title.

[7]

The deeds pursuant to
    which 138s predecessor in title granted the rights of way to the respondents
    predecessors in title were not produced in the application materials. With the
    consent of the parties, this court ordered that the deeds could be produced on
    appeal. The application judges conclusion that the rights of way were not
    seasonally limited is verified by the deeds produced on appeal. The deeds are
    unambiguous. The rights of way are for both foot and vehicular traffic and contain
    no temporal or other restrictions or limitations. Because the deeds are
    unambiguous, it is unnecessary to consider extrinsic evidence, such as the
    letter written in 2003 by a prior owner of the Resort Property or the previous
    injunctive orders. We agree with the application judge that the easement is not
    seasonally limited.

[8]

Third, the appellants
    argue that the application judge erred in concluding that she could not
    determine in the application whether the easement should be moved to the new
    road the appellants have built on the Resort Property.

[9]

The application judge
    concluded that moving the easement, as suggested by the appellants in their
    factum, may be a common-sense solution, but they did not bring a motion seeking
    this relief. Other cottages also rely on the easement. All the cottagers would
    require notice because it would affect their rights substantially and they
    should have the opportunity to respond. Further, the new road had not yet been
    surveyed.

[10]

The application judge
    properly determined that in the circumstances she could not give effect to the
    alternative location for the easement that the appellants proposed.

[11]

Fourth, the appellants
    argue that the application judge incorrectly cited
RJR-MacDonald Inc. v. Canada (Attorney General)
, [1994] 1 S.C.R. 311
as the authority governing the test to be
    applied in determining whether the injunction sought by the respondents should
    be granted. The application judge also found that two injunction orders had
    already been made, remained in force, and that Mr. Coldin was not complying
    with them. The appellants argue that neither injunction remains in force
    because the injunctions were interlocutory and the related actions have been
    abandoned.

[12]

The appellants are
    correct that the three-part test in
RJR-MacDonald
is the test for an interlocutory injunction,
    not a permanent one. But neither the status of the previous injunctions nor the
    application judges citation error is of any moment. The respondents
    properties are landlocked. The application judge found that Mr. Coldin continues
    to impede the respondents use of the easement. Her findings are amply
    supported by the record. There is no question that damages would not provide an
    adequate alternative remedy in this case.

[13]

Fifth, the appellants
    argue in effect that the injunction, which permits them to erect only one gate
    across the road, is overly restrictive and disproportionate. Mr. Coldin asserted
    that the three gates he has installed on the road are needed for the safety and
    security of the resort and its guests and the application judge should have
    accepted his opinion. The application judge was entitled to reject Mr. Coldins
    opinion. We are not persuaded that the injunction is overly restrictive or
    disproportionate because it only permits the installation of one gate.

[14]

Finally, the appellants
    argue that the application judge erred by permitting the application to proceed
    in the absence of a factum on the application from the respondents. Rule
    38.09(4) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 provides that an
    application judge may dispense with the requirement that an applicant serve and
    file a factum. There is no indication that the appellants opposed the
    application judge proceeding in the absence of a factum from the respondents.

[15]

The respondents concede
    that an error in their application found its way into the judgment, which
    refers to a prescriptive easement. The respondents rights are deeded; the
    easement is not a prescriptive easement. They ask that the court order that the
    judgment be modified, by deleting the work prescriptive in several paragraphs,
    to correct this and avoid confusion. The appellants made no objection to this
    request.

[16]

Accordingly, the
    judgment shall be amended by deleting the word prescriptive in numbered
    paragraphs 1, 2 and 10.

[17]

The appeal shall otherwise be dismissed. The
    respondents shall be entitled to their costs of the appeal, fixed in the amount
    of $10,000, including HST and disbursements.

Doherty
    J.A.

Alexandra
    Hoy J.A.

M.
    Jamal J.A.


