



COURT OF APPEAL FOR ONTARIO

CITATION: Grunwald v. Le Marchant, 2020 ONCA
    442

DATE: 20200707

DOCKET: C67925 & C67926

MacPherson, Juriansz and Benotto
    JJ.A.

C67925

BETWEEN

Fela
    Grunwald

Applicant (Respondent)

and

Edwin Le Marchant and Laura
    Fiset

Respondent (Appellants)

C67926

AND BETWEEN

Edwin
    Le Marchant and Laura Fiset

Applicants (Appellants)

and

Fela Grunwald

Respondent (Respondent)

Michael Farace, for the appellants

Gabrielle Kramer and Julie Lesage, for
    the respondent

Heard: in writing

On
    appeal from the judgment of Justice Paul Perell of the Superior Court of
    Justice, dated December 27, 2019, with reasons reported at 2019 ONSC 7513.

REASONS FOR DECISION

[1]

The appellants and the respondents live on
    adjoining properties on a Toronto residential street. There is a mutual
    driveway between the properties.

[2]

In 1975, the then owners of the two properties
    entered into an agreement setting out their intention to grant each other a
    right-of-way (ROW) over a small portion of both properties for the purpose of
    establishing a joint passageway. The 1975 Agreement was registered on title to
    both properties. A year later the owners entered into the ROW Agreement with
    virtually identical terms. The owners obtained the consent of the Committee of
    Adjustment to the creation of the easement as required by the
Planning Act
,
    R.S.O. 1970, c. 349.

[3]

The ROW documents granted:

(a)
the owners of the (now) Le Marchant property a right-of-way over
    the northernmost three feet of the (now) Grunwald property for a length of 98
    feet commencing from Wychwood Avenue; and

(b)
the owners of the (now) Grunwald property a right-of-way over the
    southernmost six feet of the (now) Le Marchant property for a length of 98 feet
    commencing from Wychwood Avenue.

[4]

The ROW documents also state:

It is intended that the two above described
    strips of land shall form a joint passageway of nine feet (9 feet) in width by
    a depth of Ninety-eight feet (98 feet) westerly from the westerly limit of
    Wychwood Avenue
for the use and benefit of the owners and
    occupiers from time to time
of the house and lands immediately adjoining
    thereto on the North and South thereof. [Emphasis added.]

[5]

The current owners disputed each others use of
    the ROW. They brought duelling applications to the Superior Court of Justice.
    The application judge essentially found in favour of the respondent on all
    issues.

[6]

On the crucial overarching issue  whether the
    ROW Agreement bound successor owners of the two properties  the application
    judge found that it did. On this issue, the appellant contends that the
    application judge erred because there was no formal enurement clause in the ROW
    Agreement granting rights to successor owners of the two properties.

[7]

We do not accept this submission. On this issue,
    the application judge said:

[I]t is not necessary to use any particular
    words to create an easement so long as the words used show an intention to
    create an easement that is recognized in law. Where, on the face of the deed
    there appears a manifest intention to create an easement, that intention will
    be given effect if the words of the deed can bear that construction.

In the immediate case, the Right-of-Way
    Agreement states that it is for the use and benefit of the owners and
    occupants from time to time of the house and lands immediately adjoining
    thereto on the North and South thereof, which refers to 182 Wychwood and 180
    Wychwood. The agreement indicates that the parties intended to create a
    right-of-way that would run with the lands and be binding on all successors in
    title to the two properties.

[8]

We agree with this analysis and conclusion.

[9]

The other legal arguments raised by the
    appellant  rectification of one word in the ROW Agreement sought by the
    respondent and rectification of parcel registers pursuant to ss. 159 and 160 of
    the
Land Titles Act
, R.S.O. 1990, c. L. 5, are essentially derivative
    of the main issue. And on grounds of appeal relating to factual issues 
    vehicular access, storage of materials, and whether the garden was a
    substantial interference  we see no basis for interfering with the application
    judges findings and conclusions.

[10]

The appeal is dismissed. The respondent is
    entitled to her costs of the appeal fixed at $20,000 inclusive of disbursements
    and HST.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

M.L. Benotto J.A.


