Black et al. v. Owen et al., (2016) 345 O.A.C. 245 (DC)

JudgeJ. Wilson, J.
CourtSuperior Court of Justice of Ontario (Canada)
Case DateJanuary 07, 2016
JurisdictionOntario
Citations(2016), 345 O.A.C. 245 (DC);2016 ONSC 40

Black v. Owen (2016), 345 O.A.C. 245 (DC)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.010

Richard Black and Scott Lamacroft (plaintiffs/appellants) v. Gerald Owen and Katherine Anderson (defendants/respondents)

(605/14; 2016 ONSC 40)

Indexed As: Black et al. v. Owen et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, J.

February 4, 2016.

Summary:

The Wychwood Park in Toronto was subject to a registered Trust Deed. The Trust Deed appointed trustees charged with maintaining the roadways, drives and parks as private property for the benefit of owners of property in the Park. Since its inception in 1891, the Trust Deed governed the relationship between the Park property owners, and stipulated the mechanism for assessing the payment of maintenance fees for the shared facilities. Owen and Anderson lived on property in the park which was registered to Owen's father (Ivon). Ivon had Alzheimer's Disease. Ivon, with Owen acting as his agent, refused to pay the Park's maintenance levies for 2008 and 2009. The Park trustees sued Ivon, Owen and Anderson to recover the levies.

The Small Claims Court, per Deputy Judge Kilian, found Ivon liable to pay the annual levies for 2008 and 2009. The court dismissed the claim against Owen and Anderson as they were not registered owners of the property. The defendants appealed. Ivon died and, in 2010, Owen and Anderson became the registered owners of the property. They refused to pay the annual levies.

The Ontario Divisional Court, per Swinton, J., in a decision reported at 291 O.A.C. 8, dismissed the appeal and confirmed the legal and factual conclusions made by Deputy Judge Kilian. The trustees sued Owen and Anderson to recover the levies assessed for 2010 to 2013. The main issue was the legal impact of the law of positive covenants, and whether the conditional grants or burden and benefit exceptions applied.

The Small Claims Court, per Deputy Judge Caplan, dismissed the trustees' claim. The trustees appealed.

The Ontario Divisional Court, per J. Wilson, J., allowed the appeal, set aside Deputy Judge Caplan's decision, declared that Owen and Anderson were liable to pay the annual levies in accordance with the Trust Deed, and awarded the trustees $12,799.81 for the unpaid levies for 2010 to 2013.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Wychwood Park in Toronto was subject to a registered Trust Deed - The Trust Deed appointed trustees charged with maintaining the roadways, drives and parks as private property for the benefit of owners of property in the Park - The Trust Deed governed the relationship between the Park property owners, and stipulated the mechanism for assessing the payment of maintenance fees for the shared facilities - Owen and Anderson owned property in the Park - They refused to pay the maintenance levies - The Park trustees sued them to recover the levies - A Deputy Judge of the Small Claims Court dismissed the trustees' claim - The trustees appealed, challenging the adequacy of the reasons for judgment - The Ontario Divisional Court, per J. Wilson, J., allowed the appeal - The Deputy Judge's reasons were confusing - It was difficult to ascertain how and why he reached the conclusions he did - It was very difficult for the trustees to understand why they lost, and how to formulate grounds for an appeal - Sufficiency of reasons was dependent upon context - Although these were reasons of a Deputy Judge of the Small Claims Court, this was not a typical hearing with a limited issue between two parties, findings of credibility and no significant question of law - Given the importance of the decision not only to the parties, but to the Park property owners, the reasons for judgment were insufficient - The Deputy judge dismissed the main issue without any consideration of the case law - He did not address an issue raised and argued - See paragraphs 26 to 34 and 43.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - The Wychwood Park in Toronto was subject to a registered Trust Deed - The Trust Deed appointed trustees charged with maintaining the roadways, drives and parks as private property for the benefit of owners of property in the Park - The Trust Deed governed the relationship between the Park property owners, and stipulated the mechanism for assessing the payment of maintenance fees for the shared facilities - Owen and Anderson lived on property in the Park which was registered to Owen's father (Ivon) - Ivon had Alzheimer's Disease - Ivon, with Owen acting as his agent, refused to pay the Park's maintenance levies for 2008 and 2009 - The Park trustees sued Ivon, Owen and Anderson to recover the levies - The Small Claims Court, per Deputy Judge Kilian, found Ivon liable to pay the levies - The defendants appealed - Ivon died and, in 2010, Owen and Anderson became the registered owners of the property - They refused to pay the annual levies - Swinton, J., of the Divisional Court dismissed the defendants' appeal and confirmed the legal and factual conclusions made by Deputy Judge Kilian - The trustees sued Owen and Anderson to recover the levies assessed for 2010 to 2013 - The Small Claims Court, per Deputy Judge Caplan, dismissed the trustees' claim - The trustees appealed - The Ontario Divisional Court, per J. Wilson, J., noted that Owen and Anderson had attempted to reargue binding facts and legal determinations from Deputy Judge Kilian's decision - Owen and Anderson were bound by the findings of fact of Deputy Judge Kilian - They were also bound by the legal analysis of Deputy Judge Kilian, adopted and amplified by Swinton, J. - The principles of res judicata applied - To allowing those findings of fact to be challenged would be a collateral attack and an abuse of process - See paragraphs 49 to 59.

Courts - Topic 7542

Provincial courts - Ontario - Small Claims Court - Jurisdiction - General - Wychwood Park in Toronto was subject to a registered Trust Deed - The Trust Deed appointed trustees charged with maintaining the roadways, drives and parks as private property for the benefit of owners of property in the Park - The Trust Deed governed the relationship between the Park property owners, and stipulated the mechanism for assessing the payment of maintenance fees for the shared facilities - Owen and Anderson owned property in the Park - They refused to pay the maintenance levies - The Park trustees sued to recover the levies - A Deputy Judge of the Small Claims Court dismissed the trustees' claim - The Ontario Divisional Court, per J. Wilson, J., held that the Deputy Judge's decision was, in effect, a declaration that the Trust Deed could not be enforced - The Small Claims Court was without jurisdiction to grant declaratory relief - See paragraph 43.

Estoppel - Topic 378

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Parties - The Wychwood Park in Toronto was subject to a registered Trust Deed - The Trust Deed appointed trustees charged with maintaining the roadways, drives and parks as private property for the benefit of owners of property in the Park - The Trust Deed governed the relationship between the Park property owners, and stipulated the mechanism for assessing the payment of maintenance fees for the shared facilities - Owen and Anderson lived on property in the Park which was registered to Owen's father (Ivon) - Ivon had Alzheimer's Disease - Ivon, with Owen acting as his agent, refused to pay the Park's maintenance levies for 2008 and 2009 - The Park trustees sued Ivon, Owen and Anderson to recover the levies - The Small Claims Court, per Deputy Judge Kilian, found Ivon liable to pay the levies - The defendants appealed - Ivon died and, in 2010, Owen and Anderson became the registered owners of the property - They refused to pay the annual levies - Swinton, J., of the Divisional Court dismissed the defendants' appeal and confirmed the legal and factual conclusions made by Deputy Judge Kilian - The trustees sued Owen and Anderson to recover the levies assessed for 2010 to 2013 - The main issue was the impact of the law of positive covenants, and the applicability of potential exceptions - The Small Claims Court, per Deputy Judge Caplan, dismissed the trustees' claim - The trustees appealed - The Ontario Divisional Court, per J. Wilson, J., held that Deputy Judge Caplan erred by considering the new argument of positive covenants without any regard to the factual and legal analysis of Deputy Judge Kilian and Swinton, J. - Owen and Anderson were bound by the findings of Deputy Judge Kilian as they were parties to that proceeding - See paragraph 43.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Courts - Topic 2015 and Estoppel - Topic 378 ].

Evidence - Topic 135

Degree, standard or burden of proof - Burden of proof - Shifting burden - General - The Wychwood Park in Toronto was subject to a registered Trust Deed - The Trust Deed appointed trustees charged with maintaining the roadways, drives and parks as private property for the benefit of owners of property in the Park - The Trust Deed governed the relationship between the Park property owners, and stipulated the mechanism for assessing the payment of maintenance fees for the shared facilities - Owen and Anderson lived on property in the Park which was registered to Owen's father (Ivon) - Ivon had Alzheimer's Disease - Ivon, with Owen acting as his agent, refused to pay the Park's maintenance levies for 2008 and 2009 - The Park trustees sued Ivon, Owen and Anderson to recover the levies - The Small Claims Court, per Deputy Judge Kilian, found Ivon liable to pay the levies - The defendants appealed - Ivon died and, in 2010, Owen and Anderson became the registered owners of the property - They refused to pay the annual levies - Swinton, J., of the Divisional Court dismissed the defendants' appeal and confirmed the legal and factual conclusions made by Deputy Judge Kilian - The trustees sued Owen and Anderson to recover the levies assessed for 2010 to 2013 - The Small Claims Court, per Deputy Judge Caplan, dismissed the trustees' claim - The Ontario Divisional Court, per J. Wilson, J., in allowing the trustees' appeal, held that Deputy Judge Caplan erred by applying the incorrect onus of proof - He found that the trustees had not justified their procedure used at the annual meeting to calculate the quantum of the maintenance fees charged - That issue was raised unsuccessfully in the prior proceedings - Swinton, J., made it clear that the onus was upon Ivon "to prove that the procedure used at the annual meetings did not comply with the Trust Deed" - Applying that reasoning here, it was clear that the onus was upon Owen and Anderson to provide cogent evidence of irregularities - Owen and Anderson did not meet that onus and Deputy Judge Caplan's findings on this important factual issue could not stand - See paragraph 42.

Practice - Topic 1130

Parties - Third party or subsequent party procedure - Third party notice - General - Wychwood Park in Toronto was subject to a registered Trust Deed - The Trust Deed appointed trustees charged with maintaining the roadways, drives and parks as private property for the benefit of owners of property in the Park - The Trust Deed governed the relationship between the Park property owners, and stipulated the mechanism for assessing the payment of maintenance fees for the shared facilities - Owen and Anderson owned property in the Park - They refused to pay the maintenance levies - The Park trustees sued to recover the levies - A Deputy Judge of the Small Claims Court dismissed the trustees' claim - The Ontario Divisional Court, per J. Wilson, J., held that the Deputy Judge erred by purporting to make a decision that affected the rights of numerous third parties (other Park property owners), without any proof that the third parties had adequate notice of the case - See paragraph 44.

Practice - Topic 5442

Judgments and orders - Operation and effect of judgments and orders - Persons affected - [See Practice - Topic 1130 ].

Practice - Topic 5448

Judgments and orders - Operation and effect of judgments and orders - Requirement of service or notice - [See Practice - Topic 1130 ].

Practice - Topic 5652

Judgments and orders - When available - General - [See Courts - Topic 7542 ].

Practice - Topic 6039

Judgments and orders - Reasons for judgment after trial or application - Small claims proceedings - [See Courts - Topic 583 ].

Practice - Topic 9752.2

Small claims - Reasons for judgment - Sufficiency of - [See Courts - Topic 583 ].

Practice - Topic 9767

Small claims - Jurisdiction - General - [See Courts - Topic 7542 ].

Real Property - Topic 132

General principles - Covenants that run with land - What constitutes - The Ontario Divisional Court, per J. Wilson, J., reviewed the distinction between the benefit and burden exception and the conditional grants exception to the rule that positive covenants did not run with the land - The court made the following observations as to the meaning of the two exemptions: "Conditional Grant Exemption. When being asked to enforce a positive obligation, the courts will first look at the transaction between the parties to see if a benefit was clearly made on the conditional acceptance of a positive obligation. If such an intention can be made out on the face of the transaction, the conditional grants exception is engaged. Benefit and Burden Exemption: If a conditional connection between the obligation and the benefit is not clear, the courts will then consider whether the benefit and burden exception applies. By looking at the circumstances of the transaction, the intentions and relationship of the parties, and the nature of the benefits and burdens at issue, the courts will determine if there is an implicit and necessary connection between formally separate obligations and advantages. Or, to repeat the words of Professor Ziff, this second exception looks to whether the courts should 'tether previously separate promises'." - See paragraph 74.

Real Property - Topic 132

General principles - Covenants that run with land - What constitutes - Wychwood Park in Toronto was subject to a registered Trust Deed - The Trust Deed appointed trustees charged with maintaining the roadways, drives and parks as private property for the benefit of owners of property in the Park - The Trust Deed governed the relationship between the Park property owners, and stipulated the mechanism for assessing the payment of maintenance fees for the shared facilities - Owen and Anderson owned property in the Park - They refused to pay the maintenance levies - The Park trustees sued to recover the levies - A Deputy Judge of the Small Claims Court dismissed the trustees' claim - The Ontario Divisional Court, per J. Wilson, J., allowed the trustees' appeal - Both the conditional grant exception and benefits and burden exception to the rule that positive covenants did not run with the land applied in Ontario - Alternatively, at least the conditional grant exemption was part of Ontario law - The conditional grant exemption applied here where a benefit was granted to the Owen family, conditional on the acceptance of the positive obligation to pay their share of the annual levies - If the court had not found the benefits to the community conditional on the payment of levies, it would have found that the benefit and burden were sufficiently "tethered" for the benefits and burden exception to apply - Accordingly, Owen and Anderson and were required to pay their annual levies for the benefits received -See paragraphs 60 to 109.

Sale of Land - Topic 4504.1

Restrictive or positive covenants - General principles - Covenant which binds or runs with the land - What constitutes - [See both Real Property - Topic 132 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 8].

Randall et al. v. Lakeridge Health Oshawa et al. (2010), 270 O.A.C. 371; 2010 ONCA 537, refd to. [para. 34].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 34].

Dominion Stores Ltd. v. United Trust Co. et al., [1977] 2 S.C.R. 915; 11 N.R. 97, refd to. [para. 56].

Parkinson v. Reid, [1966] S.C.R. 162, refd to. [para. 64].

Amberwood Investments Ltd. et al. v. Durham Condominium Corp. No. 123 (2002), 157 O.A.C. 135; 211 D.L.R.(4th) 1 (C.A.), consd. [para. 64].

Austerberry v. Oldham Corp. (1885), 29 Ch. D. 750 (C.A.), refd to. [para. 64].

Tito v. Waddell (No. 2), [1977] 3 All E.R. 129; [1977] 1 Ch. 106 (Ch. D.), refd to. [para. 71].

Wilkinson v. Kerdene Ltd., [2013] E.W.C.A. Civ. 44 (Eng. C.A.), refd to. [para. 81].

Wentworth Condominium Corp. No. 12 v. Wentworth Condominium Corp. No. 59, [2007] O.T.C. Uned. F75 (Sup. Ct.), refd to. [para. 87].

Counsel:

Anne E. Spafford and Shannon M. Gaudet, for the plaintiffs/appellants;

Stephen R. Jackson, for the defendants/respondents.

This appeal was heard at Toronto, Ontario, on January 7, 2016, by J. Wilson, J., of the Ontario Divisional Court, who released the following reasons for judgment on February 4, 2016.

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2 practice notes
  • Black v. Owen, 2017 ONCA 397
    • Canada
    • Court of Appeal (Ontario)
    • 18 Mayo 2017
    ...2017 On appeal from the order of Justice Janet Wilson of the Superior Court of Justice, dated February 4, 2016, with reasons reported at 2016 ONSC 40, 345 O.A.C. Cronk J.A.: Introduction [1] This appeal concerns the alleged obligation of the appellants, Gerald Owen and Katherine Anderson, t......
  • The Owners, Strata Plan NWS 3457 v. The Owners, Strata Plan LMS 1425, 2017 BCSC 1346
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 2 Agosto 2017
    ...Even the distinction between these two exceptions is, as the plaintiff admitted, “subtle and sometimes blurred”. In Black v. Owen, 2016 ONSC 40, rev’d 2017 ONCA 397, the lower court sought distinguish between the two British exceptions as follows: [74] By way of synthesis, I make the follow......
2 cases
  • Black v. Owen, 2017 ONCA 397
    • Canada
    • Court of Appeal (Ontario)
    • 18 Mayo 2017
    ...2017 On appeal from the order of Justice Janet Wilson of the Superior Court of Justice, dated February 4, 2016, with reasons reported at 2016 ONSC 40, 345 O.A.C. Cronk J.A.: Introduction [1] This appeal concerns the alleged obligation of the appellants, Gerald Owen and Katherine Anderson, t......
  • The Owners, Strata Plan NWS 3457 v. The Owners, Strata Plan LMS 1425, 2017 BCSC 1346
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 2 Agosto 2017
    ...Even the distinction between these two exceptions is, as the plaintiff admitted, “subtle and sometimes blurred”. In Black v. Owen, 2016 ONSC 40, rev’d 2017 ONCA 397, the lower court sought distinguish between the two British exceptions as follows: [74] By way of synthesis, I make the follow......

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