Borozny v. Wolfsohn, 2024 ONCA 58

COURT OF APPEAL FOR ONTARIO CITATION: Borozny v. Wolfsohn, 2024 ONCA 58 DATE: 20240126 DOCKET: COA-22-CV-0410 Fairburn A.C.J.O., Feldman and Sossin JJ.A. BETWEEN John Borozny and Ann Borozny Applicants (Respondents) and Patricia Wolfsohn and Ydawn Wolfsohn Respondents (Appellants) APPLICATION UNDER Rule 14.05(2) and (3)(d), (e), (

g) and (

h) of the Rules of Civil Procedure , R.S.O. 1990, c. E.21 , as amended; Sections 159 and 160 of the Land Titles Act , R.S.O. 1990 c L.5 , as amended; and Sections 97 and 100 of the Courts of Justice Act , R.S.O. 1990, c C.43 , as amended. Raivo Uukkivi and Hardeep Dhaliwal, for the appellants Jordan Diacur, for the respondents Heard: September 14, 2023 On appeal from the judgment of Justice David L. Edwards of the Superior Court of Justice, dated September 21, 2022. Feldman J.A.: Overview [ 1 ] A cottage property benefitted from an easement over the beach on the property across the road (“the beach easement”).

Years before the owner sold the cottage to the respondents, John and Ann Borozny, the owner applied to the Registrar of Land Titles to extinguish the beach easement. The issue on the appeal is whether the beach easement was expressly extinguished when the Registrar of Land Titles registered the owner’s application to delete the easement on title. [1] Brief History of the Beach Easement [ 2 ] Before the Boroznys purchased the cottage on Lot 17 (municipally, 880 Edgemere Road in Fort Erie), it was owned by the Goldfarb family.

The cottage is located across the road from the Wolfsohn cottage on Lot 4 (municipally, 879 Edgemere Road), which is on the beach on Lake Erie.

The Goldfarbs and Wolfsohns are cousins and friends. [ 3 ] The properties are registered in the land titles system. [ 4 ] Up until six years before the Boroznys purchased Lot 17, it had a registered easement over a strip of Lot 4 and over part of its beach. [ 5 ] The beach easement was deleted from the parcel register and registered property description of Lot 17 pursuant to an application registered by a member of the Goldfarb family (“the Application”) and filed by the Land Registrar.

When the Goldfarbs subsequently sold the cottage to the Boroznys in 2012, the transfer did not include the beach easement. [ 6 ] In 2019, approximately seven years after purchasing the property, the Boroznys applied to the court for an order declaring that the deletion of the beach easement was ineffective as a mistake by the Registrar of Land Titles, and that it should be restored to the title to their property. Decision of the Application Judge [ 7 ] The application judge granted rectification.

He found that there was no express or implied extinguishment of the beach easement and concluded that the deletion was done by the Registrar in error. The application judge’s conclusions were made in the face of the former owner’s evidence that the express request in the Application to extinguish the beach easement was intentional and not an error. [ 8 ] For the reasons that follow, I would allow the appeal and set aside the order that restored the registration of the beach easement on title to Lot 17.

Background Facts [ 9 ] Two related families from Buffalo, New York, the Goldfarbs and the Wolfsohns, historically owned cottage properties across the road from each other on Edgemere Road in Fort Erie. [ 10 ] The history of the properties and of the relationship between the parties comes from the evidence of Joanne Goldfarb, the previous owner of the lot now owned by the Boroznys.

The history is also supported by a number of relevant title documents in the record. [ 11 ] The two properties were originally owned by Philip Setel, the patriarch, who transferred the beach cottage, Lot 4, to Meyer Wolfsohn in 1941, and the cottage across the road, Lot 17, to Edward Setel in the same year. [ 12 ] In 1966, Edward Setel transferred Lot 17 to one of his daughters, Joanne Goldfarb. Meyer Wolfsohn had transferred Lot 4 to his son, Howard Wolfsohn, a number of years earlier. [ 13 ] The Goldfarbs had always had access to the Wolfsohns’ beach. Ms.

Goldfarb recites that, in 1961, the Wolfsohns granted a personal right of way to her, her two sisters and her father, Edward Setel. The record does not contain a document that created that right of way in 1961, and it is therefore unclear whether it was recorded at that time. [ 14 ] Before 1966, Edward Setel and Meyer Wolfsohn installed a pool on Lot 17, for use by both families. After Ms.

Goldfarb became sole owner of Lot 17 in 1966, she conveyed the portion of the property that consisted of the parcel of land where the swimming pool was located (“the pool parcel”) to herself and her husband, Allen Goldfarb, and to Howard Wolfsohn and his wife, all four as joint tenants. At the same time, she granted an easement over her cottage parcel that was in front of the pool, in favour of the joint owners of the pool parcel. That easement allowed the Wolfsohns to access the pool (“the pool easement”). [2] [ 15 ] After that conveyance, Lot 17 consisted of three separate parcels.

The parcel behind the pool and the cottage parcel in front of the pool were owned by Ms. Goldfarb. The pool parcel in the middle was owned by the Goldfarbs and the Wolfsohns jointly. The joint owners also enjoyed the pool easement to access the pool. [ 16 ] Ms. Goldfarb’s evidence was that it was agreed between the Goldfarb and Wolfsohn families that the rights of way were for family members to use and that if either cottage were sold, it would be without the rights of way. [ 17 ] The 1966 transfer document is not in the record.

However, in 1988, another document was executed by all four of the Goldfarbs and the Wolfsohns. It references the 1966 transfer, referring to it as Instrument 43907B (BB43907), and its Recitals state that the 1988 document is intended to correct the omission from the 1966 document of the beach easement for the Goldfarbs over the Wolfsohn beach. The 1988 transfer document also repeats the transfer of the pool parcel to the four joint tenants together with the pool easement in their favour. In addition, it recites the grant of an easement by the Wolfsohns over their property and over their beach to the Goldfarbs.

The 1988 document is signed by the Goldfarbs and the Wolfsohns, and is registered as RO530098. [ 18 ] The following are the Recitals in the 1988 document: WHEREAS by Grant dated April 11 th , 1966 and registered April 28, 1966 as Instrument No. 43907B, the said lands were conveyed to the Transferees named in Box (11) to the attached Transfer and the

Schedule thereto; AND WHEREAS the parties hereto enjoy a certain right-of-way over Part of Lot 4, according to said registered Plan No. 84, now known as Plan No. 424, reference to which was omitted from said Instrument No. 43907B; AND WHEREAS this Transfer is given to express more clearly the intent of the parties to the foregoing conveyance as to the manner in which the respective interests of the Transferees were to be held and to correct the omission of the said right-of-way. [ 19 ] The beach easement over part of Lot 4 states: TOGETHER WITH a free and uninterrupted right-of-way for ingress and egress for the Transferees, their heirs, executors and administrators and assigns, through, along and over that certain parcel of land described as follows: …the most westerly ten-foot strip of Lot Number 4…running from Edgemere Road Southerly to the waters of Lake Erie.

TOGETHER WITH the right to the use of the sand beach across the southerly portion of said Lot Number 4…. [ 20 ] In 2005, Howard Wolfsohn asked the Goldfarbs to buy him out of the pool parcel on Lot 17. As a result, on October 21, 2005, the Wolfsohns and Ms. Goldfarb’s husband Allen transferred the pool parcel to Ms. Goldfarb alone by Instrument SN96438. On the same date, Howard Wolfsohn transferred Lot 4, the beach cottage, to his daughter, Patricia Wolfsohn (one of the appellants), and Ms.

Goldfarb transferred Lot 17, consisting of all three previously separate parcels, to her daughter, Sandra Lapham, but retained beneficial ownership. [ 21 ] In 2006, for property tax purposes, Ms. Lapham applied to the Registrar to have the three Property Identification Numbers (PINs) that were still on title to Lot 17 consolidated into one. [ 22 ] By 2006, the Goldfarbs had purchased another cottage, which was on the beach, and were no longer interested in using the cottage on Lot 17. In addition, the Wolfsohns were no longer using the pool there. As a result, in anticipation of selling Lot 17, Ms.

Goldfarb asked her daughter Ms. Lapham to instruct a lawyer to delete and surrender all rights of way and easements over and in favour of Lot 17. [ 23 ] On the application form completed by Ms. Lapham and addressed to the Registrar, the following is set out under the heading

“Statements”: Schedule: The registered owner of the dominant and servient lands is the same and she holds title in the same capacity. The interest of the easements have merged in title under Instrument SN96438 registered on October 21, 2005, and therefore, she applies to have the thumbnail property description amended by deleting the entry “T/W & S/T BB43907 & RO530098 [i.e. together with and subject to the 1966 transfer and the 1988 document] [Emphasis and explanation added.] [ 24 ] The Application to delete the easements was registered as Instrument SN127598 by the Registrar on July 10, 2006.

In connection with the Application, the Registrar made the following notation on the parcel register for Lot 17: Remarks: BB43907 & RO530098 deleted from description. [ 25 ] In 2012, Ms. Goldfarb marketed and sold Lot 17 through her daughter Ms. Lapham as bare trustee. Ms. Goldfarb specifically asked Richard Halinda, her solicitor on the sale to the Boroznys, to confirm that the rights of way had been extinguished. Mr. Halinda’s unchallenged evidence in this proceeding was that Ms.

Goldfarb told him that she had had all rights of way, including the beach easement, removed, and that he had confirmed to her that they had been extinguished from title. He further testified that Ms. Goldfarb did not intend to transfer or assign any easements to Mr. Borozny. The transfer of Lot 17 to the Boroznys does not state that it transfers any easements. Findings by the Application Judge [ 26 ] It was agreed on the application that the beach easement had constituted a valid easement.

The issue was whether that easement had been extinguished. [ 27 ] The application judge began by considering the meaning and effect of the disputed Application, registered as Instrument SN127598, which deleted the beach easement. He focused on the above quoted

Schedule (at paragraph 23) from the Application, which explains the request to delete the entries “T/W & S/T BB43907 & RO530098”, which made title to Lot 17 “together with” and “subject to” the rights contained in the original document where the pool parcel was conveyed and the pool easement was created (BB43907), and the subsequent document where the beach easement was recorded. (RO530098). [ 28 ] He then stated that there was nothing in the disputed Application that further explained the purpose of the instrument or that purported to grant or release any rights. [ 29 ] The application judge found that the statement in the Application that “the registered owner of the dominant and servient lands is the same” was in error, because the owners of Lots 17 and 4 were different.

The statement regarding the merged title was accurate with respect to the merger of the three parcels that had made up Lot 17, but there was no merger of Lot 17 and Lot 4.

He concluded that based on that misstatement, the Registrar had made two errors: 1) deleting the pool easement that the Wolfsohns had over the Goldfarb property, and 2) deleting the beach easement that the Goldfarbs had over the Wolfsohn property. [3] [ 30 ] Focusing on the beach easement which was the subject of the application, the application judge concluded that the Registrar made an error of law by deleting the beach easement because the disputed Application did not contain an express or implied release of that easement.

All it contained was a statement which, if true, would have resulted in the extinguishment of any easement by operation of law because an easement cannot exist if its dominant and servient tenements are the same. He found that the disputed Application was merely a request to amend the registered property description to conform with what had occurred by law because of the merger.

However, because there was no merger of Lot 17 and Lot 4, the beach easement, the subject of this court proceeding, had not been extinguished. [ 31 ] The application judge also found that because the wording of the beach easement grant included the parcel owner’s “heirs, executors and administrators and assigns”, that contradicted Ms. Goldfarb’s evidence that the purpose of the beach and pool easements was to allow only family members to enjoy the beach while the two families owned their neighbouring cottages.

He concluded that “a plain reading of the easement shows that it was to allow the owners of [Lot 17] and ‘their heirs, executors, and administrators and assigns’ to continue to enjoy the easement.” [ 32 ] The application judge then focused on whether there had been an extinguishment of the beach easement by express or implied release. He referred to a statement by the Alberta Court of Queen’s Bench in Madigan Plaza Inc. v. Calgary Golf & Country Club , [2015] A.J.

No. 457, at para. 29 , quoting Halsbury's Laws of England , Vol 14, 4th ed. (London, UK: Butterworths, 1980), at para. 21, that “[t]he extinguishment of an easement by implied release must be based upon the intention of the dominant owner.” [ 33 ] Following through on whether there had been an implied release, he found: [T]here are three ways to determine the intention of the party at the relevant time. The first is by looking at documents created during the relevant time.

Second is the party’s conduct at the relevant time, and third, is to look to the affidavits and cross-examinations created for court. [ 34 ] The relevant document was the 2006 Application to the Registrar, already discussed. [ 35 ] With respect to the Goldfarbs’ conduct indicating their intention, the application judge found that Ms. Goldfarb in her evidence stated that after 2006, when her family had another cottage, her family and tenants continued to use the “Beach Right” to access the beach, and that she rented it out with beach access as a feature. Referring to Mr.

Borozny’s evidence, the application judge found that after the Boroznys purchased the cottage they had noticed labels such as “beach towels” in one place and a label at the outdoor shower that it was for use after the beach. In addition, the Multiple Listing Service (“MLS”) listing had stated: “Enjoy child friendly beach” and included a photo of the beach. Mr. Borozny had also found a “For Rent” sign that referred to beach access. In addition, for a number of

years following the purchase, the Boroznys had accessed and used the Wolfsohn beach. [ 36 ] On the other hand, the application judge noted that neither the agreement of purchase and sale nor the deed to Lot 17 to the Boroznys refers to or includes the beach easement. This was consistent with Ms. Goldfarb’s evidence, confirmed by her conveyancing solicitor, Mr.

Halinda, that she wanted to be sure that she was not transferring any easement. [ 37 ] Weighing all of the evidence, the application judge found that “the evidence of the party’s conduct at that relevant time is not sufficient to establish that the party had a fixed intention to release or abandon the easement.” In so finding, he gave “the least weight” to the sworn evidence on the application “as to what the parties now say was their intention in 2006.” He concluded that the beach easement was not extinguished “by express or implied release.” [ 38 ] On the issue of remedy, the application judge found that by virtue of the Courts of Justice Act , R.S.O. 1990, c.

C.43 , and the Land Titles Act , R.S.O. 1990, c. L.5 , he had the power to make declaratory orders, vesting orders and rectification orders, and accordingly, granted the application and ordered that the registered property description for Lot 17 be amended to add that its title is “together with RO530098” and that the registered property description for Lot 4 be amended to add that its title is “subject to RO530098”.

He noted that because the Wolfsohns remained the owners of Lot 4, the servient lands, no third party without notice would be affected by the order, and consequently he did not need to consider how that would have impacted the decision. Issue on the Appeal [ 39 ] The issue on the appeal is whether the application judge erred in law and misapprehended material facts in failing to find that the beach easement was extinguished by express release. Analysis [ 40 ] The application judge correctly began by examining the Application document, registered under the Land Titles Act as instrument SN217598 on July 10, 2006.

The Application was filed by Ms. Lapham as the legal owner of Lot 17, which is the dominant tenement of the beach easement over Lot 4, and which once contained both the dominant and servient tenements of the pool easement before the three parcels were merged into one.

In the context of easements, the dominant tenement is the property that benefits from the easement, while the servient tenement is the property that is subject to the easement. [ 41 ] For ease of reference, I repeat the Statement in the Application requesting action by the Registrar: Schedule: The registered owner of the dominant and servient lands is the same and she holds title in the same capacity.

The interest of the easements have merged in title under Instrument SN96438 registered on October 21, 2005, and therefore, she applies to have the thumbnail property description amended by deleting the entry “T/W & S/T BB43907 & RO530098. [ 42 ] The requested action is contained in the last three lines, which state that “she applies to have the thumbnail property description amended by deleting the entry “T/W & S/T BB43907 & RO530098.” [ 43 ] The effect of registration of an instrument is set out in s. 78(4) of the Land Titles Act , which provides: Effect of Registration 78(4) When registered, an instrument shall be deemed to be embodied in the register and to be effective according to its nature and intent, and to create, transfer, charge or discharge, as the case requires, the land or estate or interest therein mentioned in the register. [ 44 ] As a result, the legal effect under the Land Titles Act of registration of the Application on July 10, 2006 was to delete the two entries BB43907 and RO530096, the easements that benefitted Lot 17, being the pool easement and the beach easement from the parcel register.

That result was also reflected by the Registrar’s action in deleting the two easements from the registered property description for Lot 17. [ 45 ] The Boroznys applied to the court under ss. 159 and 160 of the Land Titles Act , which provide a procedure that allows the court, on application, to rectify the register in defined circumstances.

Those sections provide: Court may order rectification 159 Subject to any estates or rights acquired by registration under this Act, where a court of competent jurisdiction has decided that a person is entitled to an estate, right or interest in or to registered land or a charge and as a consequence of the decision the court is of opinion that a rectification of the register is required, the court may make an order directing the register to be rectified in such manner as is considered just.

Application to court to rectify 160 Subject to any estates or rights acquired by registration under this Act, if a person is aggrieved by an entry made, or by the omission of an entry from the register, or if default is made or unnecessary delay takes place in making an entry in the register, the person aggrieved by the entry, omission, default or delay may apply to the court for an order that the register be rectified, and the court may either refuse the application with or without costs to be paid by the applicant or may, if satisfied of the justice of the case, make an order for the rectification of the register. [ 46 ] A “person aggrieved” is not defined in the Land Titles Act and the issue of who may qualify as such a person was not raised

before the court. [ 47 ] The application judge ordered rectification of the register for Lot 17 on the basis that the Registrar had registered the Application in error, i.e., the Registrar misunderstood the request. Specifically, the application judge found that the explanation in the “Statement”

section of the Application form did not support the request to delete the easements: the explanation for deletion was that the owner of the dominant tenement and the servient tenement were the same, but that was only true for the three previously separate parcels of Lot 17 and not for Lot 4. Therefore, only easements whose dominant and servient tenements had merged would be deleted. [ 48 ] In so concluding, the application judge effectively rejected the evidence of Ms. Goldfarb without making a finding against her credibility with reasons to support it.

Specifically, he rejected her evidence that the Registrar had not misunderstood the Application to delete the easements, that she and her daughter Ms. Lapham (as the beneficial and legal owners of the property) had intended to delete them by making the Application, and that that was confirmed when they sold Lot 17 to the Boroznys without including the former beach easement over Lot 4 (or referring to the pool easement).

The application judge erred in law and misapprehended material facts in failing to find that the beach easement was extinguished by express release [ 49 ] To determine whether there was an express release in the Application, the application judge referred to p. 86 of the Ministry of Government and Consumer Services’ Electronic Registration Procedures Guide , version 12 (Toronto: Queen’s Printer for Ontario, 2017), which states: An easement ceases to exist when one of the following occurs: • The owner of the dominant land (or owner of the easement in gross) releases the easement to the owner of the servient land (see Transfer, Release and Abandonment and Deletion of Easement below), or • The expiry date of the easement is reached, or other conditions have been met, or • The servient land including the easement is expropriated, or • The said party owns the dominant and servient lands.

An application to amend the register noting the merging of title is required to remove easement from parcel register. [ 50 ] The application judge focused on the part of the Application that recited the merger of the three parcels that had formed Lot 17, and, referring to the fourth bullet point in the Guide, he concluded that the Application could only have removed any easements across those merged parcels. [ 51 ] However, he ignored the effect of the part of the Application that plainly requested the deletion of the easements in accordance with the first bullet point in the Guide, which provides for the express extinguishment of an easement by its owner.

That is what occurred here. [ 52 ] The lawyer who drafted the statement in the Application form only referred to the merger of the three parcels of Lot 17 and not to the personal factual circumstances that more fully explained the request to extinguish both the pool and beach easements. However, contrary to the finding of the application judge, there is no requirement to provide an explanation for a request by the owner of the dominant tenement who benefits from the easement to delete it.

The failure to provide a full explanation did not affect the legal entitlement of the owner of the dominant tenement, Lot 17, to expressly give up the beach easement over the servient tenement, Lot 4. She was entitled to make that request without any explanation, as bullet one in the Guide reflects. [4] [ 53 ] Indeed, Ms. Goldfarb and Ms. Lapham took the position that the Registrar did not misunderstand the Application but did exactly what they asked for and what they intended. The express extinguishment of the easements is consistent with Ms.

Goldfarb’s evidence about the families’ historical agreement not to convey the easements to buyers outside the family and Mr. Halinda’s evidence that she specifically asked him to ensure that she was not conveying any easement to the Boroznys on their purchase of Lot 17. [ 54 ] Although the application judge gave little weight to the evidence of Ms. Goldfarb and Mr.

Halinda when assessing whether there was implied extinguishment of the beach easement, he made no specific finding against their credibility. [5] Furthermore, when discussing the express deletion of the easements, he did not explain why he gave no effect to the fact that their evidence was consistent with their action in not conveying any easement with the land in the transfer to the respondents. [ 55 ] In addition, contrary to the application judge’s finding, nothing in the wording of the beach easement grant contradicts Ms. Goldfarb’s evidence that the easement was meant for use by family.

The grant of the easement was made to the owners of Lot 17 and “their heirs, executors, and administrators and assigns,” which reflects that the easement would “run with the land” until such time as it was extinguished. The wording does not suggest that the owners of the easement intended never to extinguish it, and it is entirely consistent with Ms.

Goldfarb’s evidence about the families’ agreement to extinguish the easements before selling to non-family members. [ 56 ] The appellants, the Wolfsohns, also point to s. 78(2) of the Land Titles Act , which gives the Registrar the authority to decline to register an instrument that contains a “material error, omission or deficiency” or lacks requisite evidence, “or for any other reason.” In that case, the Registrar gives the submitting party the opportunity to correct the problem, but if it is not corrected, then the Registrar may register the next tendered document in priority.

In this case, the Registrar did not decline to register based on the error that the application judge found. The Registrar’s discretion to delete the beach easement (and the pool easement), exercised under the statute, should have been accorded deference by the application judge. [ 57 ] Finally on the issue of the beach easement, both ss. 159 and 160 of the Land Titles Act provide that any rectification is subject to “any estates or rights acquired by registration under this Act.” While the Wolfsohns have not sold their land to a third party, they

obtained rights when their property was freed of the beach easement by the registration of the Application to delete the easement. [ 58 ] In

summary, the application judge erred in law by finding that “[t]he disputed Application did not contain an express or implied release of the Beach Right.” The last part of the Statement on the form makes the request for the express release. There is no requirement to provide an explanation for a request by the owner of the dominant tenement who benefits from the easement to delete it. The Registrar acted on the express release of the pool and the beach easements by the owner of the dominant tenement. The Goldfarbs did not take the position that the Registrar had misunderstood the Application.

To the contrary, he did exactly what they asked him to do and what they intended. Conclusion [ 59 ] The application judge erred in law by finding that the beach easement was not expressly extinguished in 2006 by the registration of the Application to delete the two easements, the pool easement and the beach easement. Result [ 60 ] As a result, I would allow the appeal, set aside the order of the application judge, and dismiss the application with costs to the appellants fixed in the amount of $20,000 inclusive of disbursements and HST. Released: January 26, 2024 “J.M.F.” “K. Feldman J.A.” “I agree.

Fairburn A.C.J.O.” “I agree. Sossin J.A.”