By Don Lapowich
The plaintiff allowed its tenants to park in a lot. However, access to that lot from the street was over a right-of-way on property owned by the defendant.
During an eight-year period, the right-of-way was disturbed when the defendant constructed a hotel. When the right-of-way was restored, it was narrower, had less height and was obviously more restrictive. The plaintiff sued for damages and succeeded at trial. The plaintiff was awarded $441,400. These damages represented the hotel interfering “permanently” with the right-of-way that had originally been granted. (Fountas v. Melo, 2014 ONSC 2463)
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Lease terms and attempted deception: This is a Court of Appeal case from Quebec involving a lease by a commercial tenant, which sold, exchanged and purchased new and used videogames.
The lease was located in a shopping centre and as a protective clause, included exclusivity to this tenant so that no other tenant would be authorized to sell, exchange and purchase new and used videogames in the centre. The owner subsequently advised that it was going to lease space allegedly “near the shopping centre to a major video store chain.” Of course, the tenant sued for an injunction and declaratory judgment based on the exclusivity clause.
The Court of Appeal upheld the trial judge that the proposed lease to the video store chain violated the exclusivity clause in the lease granted to the plaintiff. It also was found that the owner attempted to deceive the tenant by claiming that the other business “would not be operated inside the shopping centre.”
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Mediation: Often the parties to a disagreement will enter into mediation. The Mediation Agreement contains a confidentiality clause and the mediator will advise that what occurs during mediation is privileged.
However, if the two sides can reach an agreement (settlement) the best mediators always require a signed written Settlement Agreement.
In this case, which went all the way to the Supreme Court of Canada, the plaintiff brought a motion for approval of a settlement. The defence moved to strike out allegations referred to in the mediation process.
The courts reiterated that communications leading to settlement “ceased to be privileged” if disclosure is necessary to prove the existence or scope of the settlement.
As in any other situation, matters set in writing record the settlement. Obviously mediation was to avoid the expense of having to lead evidence and a determination by a judge. If not carried out in the mediation settlement, that advantage can be lost. (Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35)
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Your intent must be clearly expressed: Parties who live next door to each other signed an Easement Agreement creating an easement on the defendant owner’s property for the benefit of the plaintiff. Both parties also signed a Severance Agreement where the plaintiff agreed to sever another lot and “if successful” to transfer the parcel to the defendant owner.
At the request of the plaintiff the owner refused to proceed with the easement “until a severance was granted.” The plaintiff then sought a declaration that the Easement Agreement was binding and should be registered on title. The defendant sought specific performance for the severance of the lot and the transfer of the parcel.
The judge decided on a Summary Judgment to grant relief to the plaintiff. The Easement Agreement and the Severance Agreement were both binding and enforceable and the plaintiff was entitled to the easement notwithstanding that the application for the severance of the other lot had not been completed. The plaintiff, however, had taken all reasonable steps to attempt the lot severance.
This decision was upheld by the Court of Appeal as the agreements were not conditional, the one on the other. (Nordlund v. Plominski, 2013 ONSC 283)
Full decisions at www.canlii.org
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
