Docket: 1916 Frederick Lyle Wagman, Anita Wagman, Gladys Alexandria Castle v. Donna Landega, 2011 SKCA 68

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 68 Date: 20110530 Between: Docket: 1916 Frederick Lyle Wagman, Anita Wagman, Gladys Alexandria Castle and Donna Landega Appellants - and - Todd Obrigewitsch, Deborah Obrigewitsch, Brian Obrigewitsch, Gerald Obrigewitsch and Paulette Obrigewitsch Respondents Coram: Klebuc C.J.S., Gerwing and Richards JJ.A. Counsel: A. John Beke, Q.C. for the Appellants Patrick McDonald, Q.C. for the Respondents

Appeal: From: 2010 SKQB 84 Heard: May 30, 2011 Disposition: Allowed (orally) Written Reasons: June 9, 2011 By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr.

Justice Richards GERWING J.A. [ 1 ] All of the evidence in this dispute between tenants in common of a piece of beach property was adduced by affidavits pursuant to Queen’s Bench Rule 485. [ 2 ] Very briefly, the Wagmans owned an undivided one-half interest and, at material times, the respondents owned an undivided one- quarter interest in the property. [ 3 ] In addition to the ownership relationship, the parties’ predecessors in title entered into a 99 year lease in 1967 referring to three parcels.

At issue below and here is the boundary of the parcel leased to the respondents and also the portion of the land that should accrue to the respondents if subdivision were to be effected. [ 4 ] The judge hearing this matter conducted a very thorough review of all of the evidence including the history of the property ownership, the history of the lease and, where relevant, subsequent conduct after the lease.

In dispute was a relatively small amount of land and some beach frontage. [1] [ 5 ] The judge concluded that neither the conduct of the parties nor the lease reflected an agreement to alter the percentage of ownership. He also concluded that the lease was valid and enforceable, albeit ambiguous as to the area leased, partially because the diagram appended contained “approximate” boundaries.

On this basis he made a determination of the area encompassed by the lease. [ 6 ] He then went on to determine what land the respondents would be entitled to if a subdivision were to be effected to provide separate titles for the parties. These matters were largely factual.

On reviewing the conclusions of the judge below we find no reviewable error with respect to his decisions on the ownership of the land, the continued existence of the lease, the area covered by the lease, and the area which would be allocated to the respondents under any plan of subdivision. [ 7 ] There are, however, two matters which we do find must be changed. In the original pleadings the appellants had asked that a plan of subdivision be registered and title issue. This request was subsequently deleted in an amended pleading.

The judge did in fact grant an order which would have seen the subdivision take place immediately and separate titles issue. It is common ground that this was not sought by the parties or contemplated by them below. Further it may be that other steps have to be taken with respect to complying with the bylaws of the relevant municipality. We accordingly set aside the portion of the judgment which would actually have subdivided the land and permitted the issuance of separate titles.

We do however reiterate that we accept his decision fully on the area that would be allocated to the respondents on any subdivision of the land in due course and that is not a matter to be relitigated. [ 8 ] Secondly, the formal judgment roll provides in subparagraph (c): Upon subdivision of the lot in accordance with this judgment the lease dated October 2, 1967 shall attach to the subdivided parcel belonging to the plaintiffs according to its terms for that portion of the plaintiffs’ parcel being the hatched portion of the diagram

attached as Exhibit “C” of Gurnsey’s affidavit. It is otherwise terminated as between the parties. Since no subdivision is in fact now ordered this portion of the order is not effective immediately, but is to be held in abeyance and will become effective if a subdivision is in fact sought and effected. [ 9 ] In the circumstances of divided success, we order costs to the respondents in the usual way, but divided by two, that is half the usual costs.