Court Of Appeal Summaries (December 14- 18)

Hello Again for the Final Edition of Blaneys' OCA Blog for 2015!

The Court of Appeal released a number of civil decisions this week in areas including family law (several decisions), med mal, real estate, offers to settle and other procedural issues. One interesting decision for our real estate colleagues was a decision in which the court concluded that the combined effect of s. 113(5)(a)(iv) of the Registry Act with the nemo dat principle ("no one gives what he does not have") protected the respondents' right of way through a laneway to their homes despite the fact that their rights of way were not registered on the servient tenement within the last 40 years.

Given that Christmas and New Years' Day both fall on a Friday this year, we intend to take a two-week break from publishing our blog and will be back on our regular schedule on January 8. However, in the unlikely event that the court releases a noteworthy decision during these next two weeks, we will endeavour to try to publish a summary as it arises.

On behalf of everyone here at Blaney McMurtry, I hope everyone has a very healthy and happy holiday season and wish you all the best for 2016!

CIVIL DECISIONS

Gold v. Chronas, 2015 ONCA 900

[Simmons, Epstein and Pardu JJ.A.]

Counsel:

James C. Morton, for the appellants

Michael W. Carlson, for the respondents

Keywords: Real Property, Registry Act ss. 113(5)(a)(iv), Easements, Rights of Way, Access, Laneway, Dominant Tenements, Servient Tenements, Easements Registered on Title to Dominant Tenement but not Servient Tenement, Nemo Dat Principle, 40 Year Period

Facts: The issues on this appeal concern whether the respondents are entitled to use a laneway located on the appellants' property to access their homes. When the respondents purchased their homes, their deeds included a right of way over a laneway located on adjoining land at the rear of their properties. In 2013, the appellants blocked the respondents' access to their homes via the laneway by erecting a pole at the entrance to the laneway. In response, the respondents applied for an injunction restraining the appellants from interfering with the respondents' use of the laneway. The application judge granted the respondents' application and prohibited the appellants from interfering with the use of the rights of way over the laneway as described in the respondents' deeds. The application judge concluded that the combined effect of s. 113(5)(a)(iv) of the Registry Act with the nemo dat principle protects the respondents' rights to their rights of way despite the fact that they are currently unregistered on the servient tenement.

Issues:

Did the application judge err in the interpretation and application of s. 113(5)(a)(iv) of the Registry Act?

Holding: Appeal dismissed.

Reasoning:

No. Registry Act s. 113(5)(a)(iv) is an exception, not only to the 40-year expiry period, but also to the 40-year title search period. Where s. 113(5)(a)(iv) applies, a right will not expire after 40 years, and an instrument registered outside the 40-year title search period will continue to affect the chain of title. The application judge correctly concluded that s. 113(5)(a)(iv) of the Registry Act can apply to protect a dominant tenement holder's right to use a right of way that was once registered on the servient tenement but the registration of which was not validly renewed within 40 years after its creation, so long as the right of way continues to be openly enjoyed and used by the owners of the dominant tenement. Through s. 113(5)(iv), the Legislature protects claims that are old, but not stale, in a manner that is consistent with the purposes of the Registry Act and that is not unfair to purchasers. Even though not validly renewed, the application judge found that the claims here were not stale because the respondents were openly enjoying and using the laneway as at the date of the application. That is because using the laneway was the only realistic way to access the respondents' homes and associated parking.

Stechyshyn v. Domljanovic, 2015 ONCA 889

[Weiler, Pardu and Benotto JJ.A.]

Counsel:

William G. Scott and Jillian van Allen, for the appellant

Philip Pollack and Sebastian Schmoranz, for the respondent

Keywords: Torts, Motor Vehicle Accident, Amendment of Defendant's Name, Unidentified Defendant, Misnomer, Limitation Period, Summary Judgment, Collateral Attack

Facts:

The appellant was a pedestrian struck by car operated by the respondent in 2008. The appellant took down the driver's information in a notebook. At the hospital, the appellant presented the notes to the police officer investigating the accident; the officer disappeared with the notes.

The appellant filed a Statement of Claim identifying the defendant as "John Doe" because he had no independent recollection of the driver. The appellant's counsel requested a copy of the accident investigation file from the Toronto Police Services, referencing Sgt. Olson, the location and the appellant. The Toronto Police Services replied saying there was no record of the accident and that Olson indicated he did not attend any calls pertaining to the accident.

In 2011, the defendant's insurer, Guarantee Company of North America, obtained an order for production of the Toronto Police Services file relating to the accident. The appellant received a copy of the police file, which indicated that Dusan Dolmjanovic was the driver and the officer's name was Officer Ollos.

On November 25, 2011, Master Muir made an Order granting the appellant leave to amend his Statement of Claim to substitute the respondent as named defendant for "John Doe". The respondent did not attend on the motion. Subsequently, the respondent brought a motion for an order dismissing the appellant's claim on the grounds that it was brought after the expiry of the two-year limitation period.

The motion judge granted the respondent's motion on the basis that the appellant did not exercise due diligence and did not take all reasonable steps to identify the respondent within the two-year limitation period.

Issue:

Did the motion judge err in finding that the appellant failed to take all reasonable steps to identify the driver?

Holding: Appeal Allowed

Reasoning:

The respondent Domljanovic would have known on reading the statement of claim that he was the intended defendant. The jurisprudence is clear that, in such circumstances, due diligence does not apply. The law that governs the addition of a party after the expiry of a limitation period does not apply.

The respondent's motion for summary judgment was an indirect attack on the motion for misnomer. It would be a waste of money, time, energy and judicial resources to allow the correct defendant to be added on a motion for misnomer and then to allow a motion for summary judgment on the basis that the correction was made after the...