COURT OF APPEAL FOR ONTARIO

CITATION: Becker v. Walgate, 2020 ONCA 491

DATE: 20200805

DOCKET: C66924

Rouleau, Hoy and Hourigan JJ.A.

BETWEEN

Martha Leeanne Becker and Jason
    John Becker

Applicants/Plaintiffs (Respondents)

and

Walter Eddy Walgate

Respondent/Defendant (Appellant)

Izaak de Rijcke and Robert J. Fenn, for
    the appellant

Jeffrey D. Ayotte and Michael W.
    Gunsolus, for the respondents

Heard: In writing, with questions by video
    conference on July 2, 2020

On appeal from the order of Justice J.
    Christopher Corkery of the Superior Court of Justice, dated April 11, 2019,
    with reasons reported at 2020 ONSC 2342, 6 R.P.R. (6th) 100, and the costs
    order dated August 30, 2019

Rouleau and Hoy JJ.A.:

I. OVERVIEW

[1]

This appeal arises out of a dispute between
    neighbours at Jack Lake over where the lot line between their properties ends.

[2]

Jack Lake is a reservoir lake within the
    Trent-Severn Waterway. The lot line between the two properties  the most
    westerly parcel of Lot 41 and the most easterly parcel of Lot 42  skews the
    waters edge and strikes the lake at an oblique angle. What water level is to
    be used in determining the termination point of the lot line?

[3]

Does the lot line between Lots 41 and 42 end where
    it intersects with the High Water Mark shown in Registered Plan 33 which
    created the lots in 1958 and which the trial judge found was the waters edge
    of Jack Lake at the Normal Controlled High Water Level, a contour elevation of
    106.33 feet (assumed datum)?

[4]

Or, as the appellant contends, must the determination
    of the terminus of the lot line begin with reference to the waters edge at the
    time of the 1902 Crown patent of lands of which the disputed lands were a part?

[5]

According to the trial judge, approximately 100
    feet of valuable water frontage is at issue.

[6]

We agree with the appellant that the trial
    judges conclusion that the lot line ends at the Normal Controlled High Water
    Level is tainted by reversible error and that the determination of the terminus
    of the lot line must begin with reference to the waters edge of Jack Lake at
    the time of the Crown Patent.

[7]

As we will explain, we return this matter to the
    trial court for determination.

II
    BACKGROUND

[8]

As we return this matter to the trial court, we
    will provide only a brief outline of relevant facts not in dispute.

[9]

Prior to 1902, a lumbermans dam existed on Jack
    Lake.

[10]

The chain of title to Lots 41 and 42 begins with
    a patent from the Crown, dated April 2, 1902.

[11]

By way of the Crown patent, the Crown
    transferred a 152-acre parcel of Crown Land of which Lots 41 and 42 are part to
    Frances L. Robbins. The Crown patent describes the patented lands as shown on
    a Plan of Survey by Ontario Land Surveyor Alfred J. Cameron (the Cameron
    Survey). On the Cameron Survey, Mr. Cameron certifies that it is correct on
    September 23, 1901. There is no reference to or distinction made between high
    water or low water marks on the Cameron Survey.

[12]

The Crown Patent contained the following
    reservation:

saving, excepting and reserving nevertheless,
    unto Us, Our Heirs and Successors the free use, passage and enjoyment of, in,
    over, and upon all navigable waters which shall or may hereafter be found on or
    under or be flowing through or upon any part of the said Parcel or Tract of
    Land hereby granted as aforesaid, reserving also right of access to the shores
    of all rivers, streams and lakes for all vessels, boats and persons, together
    with the right to use so much of the banks thereof, not exceeding one chain in
    depth from the waters edge, as may be necessary for fishery purposes.

[13]

The federal government decided to use Jack Lake
    for water storage and, in 1910, it replaced the lumbermans dam with what is
    referred to in the trial judges reasons as the Dominion Dam.

[14]

In 1932, the Crown settled a claim by the
    successor in title of the patentee, paying her $400 to release the Crown from
    liability for damages caused by the Dominion Dam flooding the land. The release
    describes the lumbermans dam as having held the water at a certain level
    during the Spring of the year, admitted of the said lake being later drained to
    its natural level. It also notes that the Dominion Dam has a crest that is
    210 higher than the lumbermans dam.

[15]

In 1958, the Jack Lake Land Company (JLL)
    subdivided the land by Registered Plan 33, resulting in the creation of Lots 41
    and 42. Registered Plan 33 was surveyed by W.A. Beninger between March 8, 1957
    and May 30, 1958 (the Beninger Survey). His survey shows the line between
    Lots 41 and 42 extending to a heavy curved line marking the limit of Jack Lake
    which the Plan Legend indicates is the High Water Mark. Mr. Beninger tried to
    retrace the Cameron Survey, but his field notes indicate that the Cameron Survey
    was poorly done, as it appeared that Mr. Cameron had only completed a rough
    shore traverse.

[16]

On September 11, 1974, JLL transferred the
    appellants property to Viceroy Construction Company Limited pursuant to the
    legal description in Plan 33. The parties agreed statement of facts indicates,
    and the trial judge found, that after this transaction, JLL ceased to operate.

[17]

In turn, the appellant and the respondents purchased
    their properties pursuant to the legal description in Plan 33. The appellant
    owns the most westerly parcel of Lot 41, and the respondents own the most
    easterly parcel of Lot 42.

[18]

Since the registration of Plan 33, other
    surveyors have completed plans and surveys of lands within Plan 33, but the
    line between Lots 41 and 42 remains the boundary between the parties
    properties. A further subdivision of Lot 41 on May 1, 1978 and a building
    location survey of Lot 41 by Thos. E. Lyons, dated February 22, 1989, also
    described the water boundary as the High Water Mark.

[19]

Plans of subdivisions of Lot 42 in 1987, 1991
    and 2002 described the water boundary as Normal Controlled High Water Level
    Contour of Elevation 106.33 (feet) Also Limit of Lot 42 Regd Plan No 33. The
    1987 and 1991 plans also include the notation The Original High Water Mark of
    Jack Lake cannot be determined with any certainty therefore a portion of Lot 27
    Concession 9 may lie in front of Parts 1 and 3.

III THE
    TRIAL JUDGES REASONS

The expert evidence

[20]

Each party called a surveyor as an expert
    witness. Both were qualified by the trial judge to provide opinions as to where
    the terminus of the lot line between Lots 41 and 42 lies and how that end point
    is determined. The respondents expert was Shawn OConnor. The appellants
    expert was Paul Miller.

[21]

The trial judge reviewed their evidence. He
    preferred the evidence of Mr. OConnor over that of Mr. Miller, and, where Mr.
    Millers evidence was inconsistent with that of Mr. OConnor, he accepted Mr.
    OConnors evidence. In particular, he accepted Mr. OConnors evidence that
    the Normal Controlled High Water Level (NCHWL) of Jack Lake had not changed
    since Plan 33 was surveyed.

[22]

In Mr. OConnors opinion, on a controlled body
    of water the meaning of high water mark is clear: it is the NCHWL. Further,
    during the navigational season on the Trent-Severn Waterway, from the long
    weekend in May through to the Thanksgiving weekend in October, Parks Canada
    maintains the lake at the NCHWL, 106.33 feet (a.d.).
[1]
During the remainder of the
    year, Parks Canada maintains the lake at the normal controlled low water level,
    approximately three feet lower.

[23]

Mr. OConnor believed that Mr. Beningers survey
    was completed in the winter of 1957-1958, that Mr. Beninger determined the High
    Water Mark based on a shore traverse at that time, and, accordingly, that what
    he marked as the High Water Mark on his survey was in fact the normal
    controlled low water level.

[24]

In contrast with Mr. Millers opinion, Mr.
    OConnor opined that the Cameron Survey and the Beninger Survey both clearly
    show that water was being held back. Both show an island and a bay that would
    not have existed if water had not been held at similar levels. While in Mr.
    OConnors view the water level in both surveys is similar, he stated that it
    was impossible to determine with any precision the level of Jack Lake in 1902,
    when the land was patented.

[25]

Based on the cross-sectional area of water
    flowing through the dam, Mr. Miller estimated the elevation of the original water
    level of Jack Lake to be 909.1
[2]
feet or 100.3 feet (a.d.), plus or minus 0.3 feet. However, the trial judge
    expressly rejected his opinion because Mr. Miller did not explain how he used
    the cross-sectional area of water flowing through the dam to arrive at his
    opinion and, absent any explanation, it was impossible to assess the validity
    of his opinion or determine if it fell within his area of expertise, namely
    surveying.

The trial judges analysis

[26]

The trial judge described his task as
    determining what water level is to be used to determine the termination point
    of the line between Lots 41 and 42 where it strikes the lake.

[27]

The trial judge properly began with this courts
    decision in
Gibbs v. Grand Bend (Village)
(1995), 129 D.L.R. (4th) 449
(Ont. C.A.), at p. 461, where
    Finlayson J.A. reviewed the legal principles governing the use of extrinsic
    evidence in interpreting a grant of land.

[28]

In brief, if the terms of a conveyance are
    clearly defined, extrinsic evidence is not admissible to contradict the conveyance
    or transfer. Extrinsic evidence may be introduced in the case of latent
    ambiguity for the purpose of ascertaining the intention of the grantor. A
    latent ambiguity is one that arises only when the deed is applied to the land
    it purports to describe.

[29]

The trial judge noted that the use of the term
    high water mark by surveyors in Ontario to define a natural boundary has a
    long and confusing history:

Although the common law had recognized the
    boundary between land and non-tidal waters as the waters edge, throughout the
    early part of the last century, provincial Crown policy was that the Crown
    owned the beds of navigable waters to the high water mark, including any dry
    land between the variable waters edge to the high water mark. This policy was
    enacted in statute in 1940 by amendment to the
Bed of Navigable Waters Act
,
    S.O. 1911, c. 6.[1], which also provided a statutory definition of high water
    mark.

Although the amendment was repealed in 1951,
    restoring the common law, the Crown maintained its policy asserting ownership
    to the high water mark. It was not until 1970 that this policy was rejected and
    the common law was confirmed by Stark J. in
Ontario (Attorney General) v.
    Walker
, [1971] 1 O.R. 151 (H.C.J.), affirmed [1972] O.R. 558 (Ont. C.A.),
    affirmed [1975] 1 S.C.R. 78 (S.C.C.).

[30]

He quoted from p. 181 of
Walker v. Ontario
    (Attorney General),
[1971] 1 O.R. 151
    (H.C.J.), affd [1972] 2 O.R. 558 (C.A.), affd [1975] 1 S.C.R. 78
:

[A]ny Crown patent which indicates that one of
    the boundaries of the lands granted is to be a boundary of water, then it
    establishes that boundary as at the waters edge and not upon any bank or high
    water mark unless, of course, the grant clearly reserves by description or
    otherwise a space between the lands granted and the water boundary or unless
    the boundaries of the lot can be so clearly delineated by reference to an
    original plan of survey as to clearly except or reserve to the Crown a space
    between the lands granted and the waters edge.

[31]

He further noted that in
Tiny (Township) v.
    Battaglia
, 2013 ONCA 274, 305 O.A.C. 372, this court held that
Walker
is not limited to Crown grants and surveys, but applies to any conveyance.

[32]

However, the trial judge found that
Walker
does not apply to controlled bodies of water:

Walker
was
    not considering controlled bodies of water but inland non-tidal waters where
    the distinction of high and low water marks
will not hold
. On a
    controlled body of water, the distinction
does hold
. There are
    regulated high and low water levels: maximum, minimum, normal high and normal
    low levels.

On controlled bodies of water, in my view,
    High Water Mark presumptively refers to the line where the land meets the
    water at the normal controlled high water level, absent clear evidence that a
    water level lower than the NCHWL was intended to be conveyed.

[33]

He then concluded that Plan 33 is not ambiguous:
    the line between Lots 41 and 42 terminates where it intersects with the High
    Water Mark, which is the waters edge of Jack Lake at the NCHWL, 106.33 feet
    (a.d.). He stated that it was open to JLL to choose this boundary.

[34]

According to the trial judge, the fact that Mr.
    Beninger erroneously illustrated the location of the High Water Mark line on
    the plan does not compromise his unambiguous adoption of a natural boundary.
    The line on the plan is only representative of this clear natural boundary.

[35]

Further, he stated that if there were a latent
    ambiguity, his conclusion would not have changed:

Nothing in the extrinsic evidence available to
    me is inconsistent with my conclusion. The JLL Company intended to create
    waterfront lots. They provided for the construction of boathouses with boat
    slips. There was no admissible evidence permitting the court to determine that
    they conveyed all or retained some of their land.

[36]

Finally, he concluded that if the lot line
    terminated beyond its intersection with Jack Lake at the NCHWL, the respondents
    (who were the applicants below) have a riparian right of access along the line
    beyond the intersection point with the NCHWL.

IV THE
    ISSUES ON APPEAL

[37]

We would frame the issues that must be addressed
    on this appeal as follows:

1.

Did the trial judge err in concluding that it is
    unambiguous that the term High Water Mark in Plan 33 means the NCHWL? If so,
    does the term High Water Mark in Plan 33 create a latent ambiguity?

2.

If the term High Water Mark in Plan 33 creates
    a latent ambiguity, does the trial judges finding that the intent of JLL was
    to set the NCHWL as the water boundary constitute a reviewable error?

3.

If the trial judge erred in finding that the
    intent of JLL was to set the NCHWL as the water boundary, what is the boundary
    of Lots 41 and 42, and thus, the terminus of the lot line between them?

4.

What is the consequence of the trial judges
    alternative finding that the respondents have a riparian right of access along
    the lot line, beyond the intersection point with the NCHWL?

V
    ANALYSIS

1. Did the trial
    judge err in concluding that it is unambiguous that the term High Water Mark
    in Plan 33 means the NCHWL?

[38]

Respectfully, in our view the trial judges
    conclusion that the term High Water Mark in Plan 33 is unambiguous and means
    the NCHWL, which is 106.33 feet (a.d.), is clearly wrong.

[39]

Plan 33 does not define what is meant by High Water
    Mark. It does not use the term Normal Controlled High Water Level or refer
    to 106.33 feet (a.d.). The trial judges conclusion that High Water Mark in
    Plan 33 means the NCHWL, which is 106.33 feet (a.d.), necessarily relied on
    extrinsic evidence, presumably the evidence of Mr. OConnor and the plans of
    subdivision prepared decades after Plan 33 which describe the water boundary
    for Lot 42 as the Normal Controlled High Water Level Contour of Elevation 106.33
    (feet) Also Limit of Lot 42 Regd Plan No 33.

[40]

The trial judges conclusion that the term High
    Water Mark in Plan 33 is unambiguous seems rooted in his view that
Walker
has no application to controlled inland bodies of water. However, his reasons
    for coming to that conclusion are unclear. In any event, it is unnecessary for
    us to determine whether
Walker
applies to controlled inland bodies of
    water.

[41]

Even if
Walker
does not apply to
    controlled, inland bodies of water, the reference to High Water Mark in Plan
    33 still creates a latent ambiguity. The trial judge acknowledged that Mr.
    Beninger erroneously illustrated the location of the High Water Mark. Even Mr.
    OConnor acknowledged that there seems to be some ambiguity, resulting from
    the Beninger Survey. When the Beninger Survey is applied to the land it
    purports to describe, the lake-ward boundary is ambiguous. It is not clear that
    High Water Mark means the NCHWL, as opposed to, for example, the maximum water
    level, or the water level depicted by the line on the Beninger Survey. Nor is
    it clear, in the absence of extrinsic evidence, that the NCHWL was 106.33 feet
    (a.d.) at the time of the Beninger Survey. Extrinsic evidence is necessary to
    resolve this ambiguity by ascertaining the intention of the grantor.

2. If there is a
    latent ambiguity, does the trial judges finding that the intent of JLL was to
    set the NCHWL as the water boundary constitute a reviewable error?

[42]

Again, respectfully, the trial judges
    conclusion that JLL intended to set the NCHWL as the water boundary in Plan 33
    cannot stand.

[43]

The trial judge said this at paras. 72 and 74 of
    his reasons:

The line between Lots 41 and 42 terminates
    where it intersects the High Water Mark which is the waters edge of Jack
    Lake at the NCHWL, 106.33 feet (a.d.). It was open to the JLL Company to choose
    this boundary.

Nothing in the extrinsic evidence available to
    me is inconsistent with my conclusion. The JLL Company intended to create
    waterfront lots. They provided for the construction of boathouses with boat
    slips. There was no admissible evidence permitting the court to determine that
    they conveyed all or retained some of their land.

[44]

Essentially, the trial judge says that because
    he could not determine the water boundary of JLLs land, he does not know
    whether JLL retained any land following its transfer. And, since he did not
    make that determination, there is nothing inconsistent with his conclusion that
    JLL intended to select the NCHWL as the water boundary in Plan 33. In effect,
    JLL might have conveyed all that it owned and, in any event, it conveyed
    sufficient title to permit the owners to construct the boathouses and slips
    referred to in the transfer documents.

[45]

However, on this record, the only reasonable
    inference is that JLL intended to transfer the full extent of the title that it
    had, whatever that title might be. The parties agreed statement of facts
    indicated, and the trial judge found, that JLL ceased operations after it
    transferred the property in 1974. It would not have made commercial sense for
    JLL to retain any land included in the Crown patent that was below the NCHWL  what
    the parties refer to as drowned land.

[46]

This was the conclusion reached in
Lackner
    v. Hall
, 2012 ONSC 3951, 23 R.P.R. (5th) 243, revd on costs 2013 ONCA
    631, 36 R.P.R. (5th) 165;
Michnick v. Bass Road Beach Assn.
,
2015
    ONSC 1936, 55 R.P.R. (5th) 63; and
Municipality Northern Bruce Peninsula v.
    Rauchfleisz
,
2019 ONSC 5460, 8 R.P.R. (6th) 82. In those cases, the
    court found that the owners intended to transfer all the property they owned.

[47]

This intention is even captured in the agreed statement
    of facts. Both parties agreed that Beninger attempted to retrace the Cameron Survey.
    In other words, Plan 33 was intended to include all the land originally
    patented to Francis L. Robbins.
[3]

[48]

As in
Lackner
,
Michnick
, and
Municipality
    Northern Bruce Peninsula
,
the use of the term High Water Mark in
    Plan 33 must be considered in historical context. As the trial judge noted, the
    use of the term high water mark by surveyors in Ontario to define a natural
    boundary has a long and confusing history, finally resolved by
Walker
.

[49]

The trial judges statement that there was no
    admissible evidence permitting the court to determine whether JLL conveyed all
    or retained some of their land is incorrect. There was evidence based on which
    the trial judge could have made this determination, on a balance of probabilities,
    namely, the evidence described above.

3. What is the
    boundary of Lots 41 and 42, and thus, the terminus of the lot line between
    them?

[50]

There is no dispute that in the Crown patent the
    Crown did not except or reserve a space between the lands granted and the
    waters edge. Thus, given the intention of JLL to convey all the land that it
    owned, to determine the terminus of the lot line between Lots 41 and 42, the
    trial judge was required to begin by determining the boundary of what JLL
    owned: the waters edge of Jack Lake at the time of the Crown patent.
[4]
While this was undoubtedly a
    difficult task, and perhaps impossible to determine with certainty, the trial
    judge was required to make a finding on a balance of probabilities based on the
    evidence before him.

[51]

Although the trial judge made several findings
    of fact based on the release signed in 1932 and the other evidence, he did not
    determine what the waters edge of Jack Lake was at the time of the Crown
    grant. The findings he did make include:

·

from some unknown date before the Cameron Survey
    in 1901 until the construction of the Dominion Dam in 1910, the lumbermans dam
    held the water of Jack Lake at a certain level during the Spring and then
    drained it to its natural level;

·

the release signed in 1932 addressed additional
    flooding caused by the Dominion Dam, above that of the lumbermans dam;

·

the release does not state the elevation of the
    crest of either dam;

·

the Dominion Dam can hold Jack Lake to a level
    of 108.5 feet (a.d.);

·

the crest of the lumbermans dam was lower than
    108.5 feet (a.d.) or there would have been no additional flooding from the
    Dominion Dam;

·

the crest of the Dominion Dam is 2 feet 10
    inches higher than the lumbermans dam. Since the Dominion Dam is capable of
    holding Jack Lake to a level of 108.5 feet (a.d.), the crest of the lumbermans
    dam was at least 105.66 feet (a.d.), which is 108.5 less 2 feet 10 inches or
    2.83 feet;

·

the crest of the lumbermans dam was greater
    than or equal to 105.66 and less than 108.5 feet (a.d.); and

·

the waters edge in the Cameron Survey could be
    at any level between 100.00 and 108.5 feet (a.d.).

[52]

The trial judge also concluded that it was
possible
that the lumbermans dam could have held Jack
    Lake in the springtime to the same level as the NCHWL of the new Dominion Dam,
    106.33 feet (a.d.). (The trial judge presumably refers to the springtime level
    because, while the Cameron Survey was certified to be correct as of September
    23, 1901, the Crown patent was granted on April 2, 1902.)

[53]

Further, he found that although Mr. Beninger
    erroneously illustrated the High Water Mark on the Beninger Survey and was
    unable to retrace the Cameron Survey, it was
possible
that Mr. Beninger used the same water boundary as Mr. Cameron.

[54]

However, as we have said, the trial judge made
    no finding about the waters edge of Jack Lake at the time of the Crown patent.
    The finding that it was
possible
that the lumbermans
    dam could have held Jack Lake in the springtime to the same level as the NCHWL
    of the new Dominion Dam, 106.33 feet (a.d.) is not a finding that the water
    level of Jack Lake at the time of the Crown patent was
probably
the NCHWL.

[55]

In our view, this issue should be returned to
    the trial court for determination.

[56]

We will address a further issue which we
    conclude should also be returned to the trial court for determination.

[57]

In their factum, the appellant addresses a
    further issue: did accretion or erosion after the Crown patent alter the legal
    boundary? This issue was not adverted to in the trial judges reasons and it is
    unclear whether it was a live issue at trial or whether the trial judge did not
    address it because of the manner in which he resolved the first issue.

[58]

The appellant submits that, at common law,
    accretion and erosion so slow and gradual as to be in a practical sense
    imperceptible in its course and progress as it occurs alter a water boundary:
Attorney
    General of Southern Nigeria v. John Holt & Co. (Liverpool) Ltd
, [1915]
    AC 599, at p. 613;
Van Diepen v. Thomson
, 2011 ONSC 2020, 4 R.P.R.
    (5th) 204, at paras. 151-153.

[59]

In contrast, a sudden and artificial change in
    water elevation leaves the boundary as it was:
Attorney General of British
    Columbia v. Neilson
, [1956] S.C.R. 819 at p. 826;
McLeay et al. v.
    City of Kelowna et al.
, 2004 BCSC 325, 19 R.P.R. (4th) 206, at paras. 20-21.

[60]

We understand the appellant to argue either that
    the boundary of the Crown patent was fixed at the outset because the
    lumbermans dam had suddenly and artificially altered the water level, or that
    the construction of the Dominion Dam suddenly and artificially raised the water
    level and fixed the boundary. In either case, accretion or erosion did not
    alter the boundary.

[61]

The respondents do not appear to take issue with
    the legal principles cited by the appellant, though they dispute that there was
    sufficient evidence to demonstrate that the building of the Dominion Dam
    resulted in a sudden increase in water level sufficient to fix the legal
    boundary, and they note that erosion can result from artificial causes. They
    argue that there is evidence of significant erosion along the disputed segment
    between 1958 and 1987 and that this was sufficient to move the legal boundary. Again,
    it is unclear whether the respondents advanced this position at trial.

[62]

The trial judges findings of fact include that the
    Dominion Dam caused additional flooding above that of the lumbermans dam. However,
    he did not determine whether the flooding caused by the lumbermans dam or the
    Dominion Dam was such as to fix the legal boundary at the waters edge of Jack Lake
    at the time of the Crown patent.

[63]

Similarly, the trial judges reasons do not
    advert to the issue of the impact of erosion or accretion on the terminus of
    the lot line between Lots 41 and 42, and he made no findings on this issue.

[64]

Thus, we conclude that the effect of erosion or
    accretion on the water boundary since the time of the Crown patent, if any, should
    also be returned to the trial court. The determination of the waters edge of
    Jack Lake, at the time of Crown patent, and the effects of erosion or accretion
    on that boundary, if any, will determine the terminus of the lot line between
    Lots 41 and 42.

4. What is the
    consequence of the trial judges alternative finding that the respondents have
    a riparian right of access along the lot line, beyond the intersection point
    with the NCHWL?

[65]

Returning this matter to the trial court cannot
    be avoided by relying on the trial judges alternative finding that the
    respondents have a riparian right of access along the lot line.

[66]

At para. 75 of his reasons, the trial judge said
    this:

Finally, had I been persuaded that the
    disputed line terminates somewhere beyond its intersection with Jack Lake at
    the NCHWL, I would have nevertheless found that the applicants have a riparian
    right of access along the line beyond the intersection point with the NCHWL.

[67]

It is unclear whether the respondents asserted
    below that they had a riparian right of access that permitted them to build and
    maintain a dock on the disputed lands. It is undisputed that the respondents
    already have access to Jack Lake. Indeed, counsel for the respondents advised
    that the respondents have a lakeside dock at another point on their waterfront
    and that the dispute between the parties was triggered when they wished to
    construct a second dock on the disputed lands. The trial judge gave no reasons
    for his conclusion, nor did he explain what the riparian right of access he
    provided for was to consist of.

[68]

The trial judges conclusion that the
    respondents have a riparian right of access along the line beyond the
    intersection point with the NCHWL cannot stand.

VI
    DISPOSITION

[69]

The appeal is allowed. The trial judges order,
    dated April 11, 2019, is set aside. The issue outlined at paragraph 64 above,
    which will determine the terminus of the line between Lots 41 and 42, as well
    as any issue of riparian rights that may arise are returned to the trial court.

[70]

The appellant is entitled to his costs of the
    appeal. If the parties are unable to agree on the costs of the appeal, they may
    make written costs submissions within 21 days following the release of these
    reasons, not to exceed three pages.

[71]

The trial judges order as to costs, dated
    August 30, 2019, is also set aside. The issue of costs before the trial judge
    is reserved to the trial court, to be determined after determination of the terminus
    of the line between Lots 41 and 42 and any issue of riparian rights that may
    arise.

Released:
PR
AUG 5 2020

Paul Rouleau J.A.

Alexandra
    Hoy J.A.

I
    agree C.W. Hourigan J.A.

[1]

Mr. OConnor used an assumed datum (a.d.) of 100 feet
    for the sill of the east dam of the Dominion Dam, as a starting point for the
    other elevations he referred to in his report and testimony.

[2]

Mr. Millers elevation measurements referenced to the
    CGVD28 datum, a datum which closely approximates the mean sea level to be
    zero.

[3]
Indeed, in his report, Mr. OConnor referred to a letter from Mr.
    Beninger, written in 1981, in which Mr. Beninger opined that [i]n my opinion
    Regd Plan 33 includes all land originally patented to the Robbins and no
    private land remains outside of Regd Plan 33.

[4]
The waters edge of Jack Lake at the time of the Crown patent does
    not necessarily mean the waters edge on the day of the Crown patent in April,
    when the water level may have been unusually high. In
Principles of Boundary
    Law in Canada
(Guelph: Four Point Learning, 2016), Izaak de Rijcke states
    that [i]n Ontario, the feature, which marks a water boundary, has been generally
    accepted as the waters edge in its normal, calm condition: at p. 340
    (emphasis added). Similarly, the
Canadian Encyclopedic Digest
says that
    [w]hen applied to navigable, non-tidal bodies of water, the terms bank, line
    of the bank, shore, line of the shore, margin of the water and waters
    edge are synonymous as lines of demarcation. So also to the bank of the lake,
    to the lake and to the shore mean
to the edge of the
    water in its natural condition at low water
 (emphasis added): CED 4th (online),
Boundaries and Surveys
, (I.3.(c)) at § 51.


COURT OF APPEAL FOR ONTARIO

CITATION: Bilotta v. Booth, 2020 ONCA 522

DATE: 20200825

DOCKET: C67721

Huscroft, Zarnett and Coroza
    JJ.A.

BETWEEN

Carmine Bilotta and Rosina
    Bilotta

Applicants/Respondents by
    Counter-Application

(Respondents)

and

Kimberly June Booth and Donald
    James Booth

Respondents/Applicants by Counter-Application

(Appellants)

Christopher Lee, for the appellants

Julian Binavince, for the respondents

Heard: in writing

On appeal from the orders of Justice
    Howard Leibovich of the Superior Court of Justice, dated October 21, 2019, with
    reasons reported at 2019 ONSC 5956.

Huscroft J.A.:

[1]

The Booths appeal from the order of the application judge declaring that
    they breached their agreement of purchase and sale with the Bilottas, requiring
    them to return the Bilottas $30,000 deposit, and permitting the Bilottas to
    proceed to trial for any additional damages they may have suffered.

[2]

I conclude that the application judge erred in finding that the Booths
    breached the contract. As I will explain, the Bilottas had no right to
    terminate the contract. Their refusal to close on the required date, following
    rejection of the Booths reasonable offers to extend the closing date,
    constituted a repudiation of the contract. As a result, the Booths were
    entitled to accept the repudiation, terminate the contract, and sue for
    damages.

[3]

I would allow the appeal for the reasons that follow.

BACKGROUND

[4]

As the application judge noted, with one exception, the facts in this
    matter are not in dispute. The application judge set out the timeline, which I
    repeat here for convenience.

·

April 24, 2017  The Bilottas entered into an
    agreement of purchase and sale to buy the Booths house for $750,000. The deal
    was to close on July 7, 2017.

·

June 23, 2017  The Booths basement was
    flooded. There was one to two inches of water in the basement. The Booths
    contacted a contractor who conducted some emergency repairs.

·

June 28, 2017  The Booths insurer provided a
    report describing the repairs needed and the additional costs. The emergency
    contractor was paid $6,979.72. The Booths were paid $14,745.76 by the insurance
    company for the remaining repairs. There was a $500 deductible. The Booths
    advised their lawyer (Not Mr. Lee who was not representing the Booths during
    the relevant time period) of the damage on June 28, 2017.

·

July 6, 2017 at 1:20 p.m.  Counsel for the
    Booths wrote to counsel for the Bilottas (not Mr. Binavince, who was only
    retained after the deal collapsed) advising that there was a flood and that the
    insurer had issued a cheque for $14,745.65, in addition to a $500 deductible.
    The Bilottas were asked how they wanted to proceed with the repairs. Counsel
    for the Booths stated in the letter that he had advised counsel for the
    Bilottas orally about the damage the day before.

·

July 6, 2017 at 4:15 p.m.  Counsel for the
    Bilottas wrote back and advised they wanted to inspect the house with a
    qualified home inspector. Counsel alleged that a material defect had been
    covered up and complained about receiving less than 24 hours notice before
    closing. Counsel for the Bilottas asked for at least a one-week extension to close
    the deal, and if more time was needed then $500 per day as compensation.

·

July 6, 2017 at 5:29 p.m.  Counsel for the
    Booths claimed that counsel for the Bilottas were verbally told about the water
    damage on July 4, 2017 at 11:50 a.m. Counsel for the Booths offered to also
    hold back in trust an additional $10,000, to address any costs not covered by
    the insurance proceeds. The Bilottas were offered the opportunity to inspect
    the home on July 7
th
. Counsel for the Booths asserted that there was
    no substantial damage and advised that they would attend on July 7
th
to close. The adjusters report was enclosed.

·

July 7, 2017 at 12:55 p.m.  Counsel for the
    Bilottas complained again about the last-minute notice and reiterated their
    request for inspection of the house with a qualified home inspector and
    contractor. Counsel for the Bilottas made two offers:

i)

They would purchase the property after the repairs were completed.
    Once completed, the Bilottas would then have a right to inspect the property
    and if not satisfied renegotiate the purchase price. The closing would have to
    be extended and the Bilottas compensated for the expenses of the extension; or

ii)

The deal could close on the scheduled day of July 7
th
,
    with a reduction in price of $50,000.

·

July 7, 2017 at 3:05 p.m.  Counsel for the
    Booths wrote back and offered to hold back $50,000 in trust to ease any
    concerns that the insurance proceeds would be inadequate to cover the costs of
    the repairs. Counsel also offered to extend the closing, at no cost to any party,
    until July 14
th
to allow the Bilottas time to conduct an inspection.
    They also agreed to pay the cost of storing the Bilottas belongings that would
    have been stored in the basement. Counsel for the Booths stated that the Booths
    were prepared to close that day and asked that the Bilottas advise of their
    position by 4:00 p.m.

·

July 7, 2017 at 3:49 p.m.  Counsel for the
    Bilottas reiterated his position set out in his letter earlier that day.

·

July 7, 2017 at 4:52 p.m.  Counsel for the
    Booths wrote again, saying that they are ready to close that day and offered a
    two-week extension until July 21
st
, and were willing to pay the
    Bilottas $250 a day and their related expenses.

·

July 10, 2017 at 2:39 p.m.  Counsel for the
    Bilottas stated that he forwarded the Booths July 7
th
proposal to
    his clients and was awaiting instructions. It is unclear which July 7
th
offer counsel for the Bilottas was referencing. He asked if they could inspect
    the house on the morning of July 11, 2017.

·

July 10, 2017 at 3:36 p.m.  Counsel for the
    Booths wrote and stated that because the sale did not close on July 7
th
,
    they were seeking a full release from the Bilottas so that the house could be
    relisted.

[5]

The Booths sold the house over one year later for $100,000 less than the
    Bilottas had agreed to pay.

The application judges decision

[6]

The Booths and Bilottas each filed applications arguing that the other
    was responsible for breach of their agreement of purchase and sale. The Booths
    sought $128,536.21 in damages, reflecting the $100,000 shortfall on the sale of
    the house in addition to related expenses of $28,536.21, while the Bilottas
    sought the return of their $30,000 deposit in addition to a trial on an action
    for additional damages they claim to have suffered.

[7]

The only factual issue in dispute between the parties was this: when did
    the Booths, through their counsel, inform the Bilottas about the flood damage
    that occurred on June 23, 2017? The application judge found that they were not
    notified until July 6, the day before the sale was to close.

[8]

The application judge found that the insurance clause in the agreement
    of purchase and sale included two implied terms. The first was that the buyers
    were entitled to timely notice in the event that anything happened to the house
    prior to closing, and the second was that the buyers were entitled to a
    meaningful opportunity to inspect the house in order to permit them to make an
    informed decision concerning their option, in the event of substantial damage,
    to terminate the contract or accept the proceeds of the insurance and complete
    the purchase. The application judge found that the Booths offer to allow the
    Bilottas to inspect on closing day, July 7, was not sufficient time and was not
    a meaningful opportunity to inspect. He found that the Booths failure to
    satisfy the implied terms, rather than the Bilottas failure to close on July
    7, breached the agreement.

[9]

The application judge found, further, that the Booths did not act in
    accordance with the duty of good faith set out in
Bhasin v. Hrynew
,
    2014 SCC 71, [2014] 3 S.C.R. 494. Although the Booths did not lie to the
    Bilottas, the lateness of notice of the damage they provided undermined the
    Bilottas legitimate contractual interests and did so in bad faith. The
    application judge noted the Booths suspicion that the Bilottas were using the
    complaint about the damage to obtain a reduction in price, but this did not
    relieve the Booths of their requirement to provide timely notice of the damage
    and an opportunity to inspect.

[10]

The
    application judge concluded that the Booths breached the contract and ordered
    the return of the Bilottas $30,000 deposit. He also ordered a trial on any
    additional damages the Bilottas may have incurred, should they wish to pursue
    it.

ISSUES ON APPEAL

[11]

The
    Booths submit that the application judge erred:

1)

in finding that implied
    terms were part of the standard form agreement of purchase and sale;

2)

in failing to consider
    whether breach of the implied terms permitted termination of the agreement;

3)

in finding that the Booths
    breached the agreement; and

4)

in finding that the Booths
    breached the duty of good faith.

DISCUSSION

[12]

The
    insurance clause in the agreement of purchase and sale is key to the outcome of
    the appeal.

[13]

The
    parties entered the Ontario Real Estate Associations standard form agreement
    of purchase and sale, which includes the following insurance clause:

All buildings on the property and all other
    things being purchased shall be and remain until completion at the risk of the
    Seller. Pending completion, Seller shall hold all insurance policies, if any,
    and the proceeds thereof in trust for the parties as their interest may appear
    and
in the event of substantial
    damage, Buyer may either terminate this agreement and have all monies paid
    returned without interest or deduction or else take the proceeds of any
    insurance and complete the purchase
. [Emphasis added]
.

[14]

In
Wile v. Cook
, [1986] 2 S.C.R. 137, the Supreme Court interpreted a
    similar insurance clause in the Nova Scotia Real Estate Associations standard
    form contract and set out principles relevant to this appeal.

[15]

In
Wile
, a fire destroyed the building the day before its sale was to
    close, leading the parties to extend the closing date by two weeks. During this
    time, the buyers solicitor inquired about insurance coverage and learned that
    the insurance company might deny liability on the basis that the fire was the
    result of arson. The buyers solicitor requested that the closing date be
    extended further but this request was rejected, and the sellers solicitor also
    refused to provide details of the insurance coverage. The buyers solicitor
    then prepared a statutory declaration stating that the buyer would proceed with
    the sale once the premises were restored to the same condition as when the agreement
    of purchase and sale was signed or once it was determined that the insurance
    proceeds were sufficient for this purpose. Neither party tendered on closing.

[16]

The
    insurance clause in
Wile
stated:

All buildings and equipment upon the real
    property shall be and remain at the risk of the Vendor until closing. Pending
    completion of the sale, the Vendor will hold all insurance policies and the
    proceeds thereof in trust for the parties as their interests may appear and in
    event of damage to the said premises, the Purchaser may either have the
    proceeds of the insurance and complete the purchase, or may cancel the
    Agreement and have all moneys theretofore paid returned without interest.

[17]

This
    clause is substantially similar to the insurance clause in this case, albeit
    that it permitted termination for mere damage, as opposed to substantial
    damage. La Forest J. explained the operation of the insurance clause at p. 143:

I have no doubt that when damage ensues to the property subject
    to the agreement, such as occurred in this case, the purchaser is entitled to
    be granted time to sort out what he is to do, and he is also entitled to obtain
    the details of the insurance coverage from the vendor.

In effect, the contract included implied terms
    associated with the insurance clause in order to facilitate the buyer in making
    an informed election whether to complete the purchase or terminate the
    agreement.

[18]

The
    court noted that, although the buyer was concerned about whether the insurer
    would pay given the evidence suggesting arson, the insurance clause did not
    allow him to wait to see whether the insurer would pay before completing the
    purchase. Thus, the buyers statutory declaration was an attempt to vary the
    terms of the agreement of purchase and sale, and so constituted a repudiation
    of the agreement. As a result, the seller was entitled to accept this
    repudiation and terminate the contract.

[19]

In
    this case, the Bilotttas were advised on July 6, prior to closing, that the
    insurer had issued a cheque for $14,745.65 to cover the flood damage (in
    addition to a $500 deductible) and were provided with the insurer adjusters
    report describing the repairs required and the additional costs. They knew, or
    ought to have known, that the damage was not substantial  a matter they
    concede on appeal. As a result, there was no election to be made between
    terminating the agreement or accepting the insurance proceeds and closing: the
    election arose only in the event of substantial damage having occurred. For
    this reason, the Bilottas did not require a reasonable time to assess their
    position, as the purchaser did in
Wile
; there was no election to be
    made under the insurance clause because there was no substantial damage.

[20]

In
    some cases, there may be a legitimate dispute about the nature or scope of
    damage to a property  about whether or not it is substantial and so gives
    rise the buyers election under the insurance clause. In such circumstances,
    the seller may be required to provide the buyer with a reasonable opportunity
    to inspect in order to determine whether the election arises. But that is not
    this case. There was no substantial damage, nor was there a breach of contract
    that would otherwise have entitled the Booths to terminate.

[21]

The
    application judges finding that the Booths acted in bad faith is not supported
    by the record and cannot be upheld. That finding would not permit the Booths to
    terminate the contract in any event.

[22]

In
    my view, the Booths acted reasonably, even assuming that they could have
    informed the Bilottas of the damage earlier than they did. The key point is
    this: after they informed the Bilottas of the flood and the insurance details,
    the Booths made two offers to extend the closing on terms that were reasonable
    and that protected the Bilottas contractual interests. Neither offer was
    accepted by the Bilottas, who attempted to change the agreement. The Bilottas
    offer to close on July 7 was contingent on obtaining a $50,000 reduction in the
    agreed price, and their alternative offer to close after the repairs had been
    completed was contingent on their right to inspect the property and to
    renegotiate the purchase price if they were not satisfied. Neither offer was
    accepted by the Booths. As a result, the agreement remained on foot and the
    Booths were entitled to insist on performance in accordance with its terms. The
    Bilottas were required to close on July 7.

[23]

The
    Bilottas submit that the Booths repudiated the contract on July 10 by advising
    that the contract was at an end, and that they terminated the contract and
    communicated their decision to the Booths on October 3 and 17, when they sought
    the return of their deposit and reimbursement for damages. Alternatively, the
    Bilottas submit that their subsequent commencement of the application sufficed
    to communicate their election to terminate the contract.

[24]

This
    argument misstates what occurred.

[25]

The
    Bilottas are the ones who repudiated the contract  not the Booths. They were
    advised of the insurance monies that had been paid, provided with the insurance
    adjusters report describing the required repairs and the additional costs, and
    twice offered extensions of the closing. Their refusal to accept an extension
    of the closing followed by their failure to close on July 7 was a clear repudiation
    of the contract. The Booths were entitled to accept this repudiation and
    terminate the contract or reject it and keep the contract alive. They elected
    to accept it and terminate the contract and did so in their July 10
    correspondence.

[26]

In
    summary:

1)

the Bilottas were not entitled to terminate the contract pursuant to
    the insurance clause, as the damage caused by the flood was not substantial;

2)

the Booths did not breach the contract;

3)

the Bilottas repudiated the contract when, after they refused to
    agree to extend the closing date, they failed to close in accordance with the
    agreed date of July 7, 2017; and

4)

the Booths were entitled to accept the repudiation, terminate the
    contract, and sue for damages.

CONCLUSION

[27]

I
    would allow the appeal and set aside the decision of the application judge.

[28]

The
    Booths are entitled to damages representing the difference between the contract
    price and the amount they realized on resale of the house. The application
    judge found that difference to be $100,000. The $30,000 deposit is to be
    credited against that amount: see
Azzarello v. Shawqi
, 2019 ONCA 820,
    at paras. 49 to 55.

[29]

The
    application judge made no findings concerning the Booths claim for
    consequential losses of $28,536.21 and it is not clear whether these losses are
    contested. I would encourage the parties to agree on the amount of
    consequential losses owing. If they cannot do so, they may make brief 3-5 page
    submissions, along with supporting documentation, to this court by September
    18, 2020.

[30]

The
    Booths are entitled to their costs of the application and the appeal, including
    any supplementary submissions that may be required concerning consequential
    losses. If the parties cannot agree on costs, they may make brief 3-5 page
    submissions by September 18, 2020.

Released: August 25, 2020 (G.H.)

Grant
    Huscroft J.A.

I agree. B.
    Zarnett J.A.

I agree. S.
    Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chowdhury v. Toronto (City), 2020
    ONCA 539

DATE: 20200831

DOCKET: C67560

Lauwers, Brown and Nordheimer
    JJ.A.

BETWEEN

MD
    Ahasanullah Chowdhury

Plaintiff (Appellant)

and

City of
    Toronto, Toronto Police Services Board, Toronto Community Housing Corporation
    and Bangladeshi-Canadian Community Services

Defendants (Respondents)

Ahasanullah Chowdhury, acting in person

No one appearing for the respondents

Heard: in writing

On appeal from the judgment of Justice Mario
    D. Faieta of the Superior Court of Justice dated September 25, 2019.

REASONS FOR DECISION

[1]

Mr. Chowdhury appeals from the order of the
    motion judge that struck out his statement of claim in this matter without
    leave to amend. Counsel for the Toronto Community Housing Corporation sought a
    dismissal of the appeal pursuant to r. 2.1 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194. Upon a review of the matter, the Registrar was directed
    by the court to send notice to the appellant that it was considering the r. 2.1
    request. The appellant filed material in response to the r. 2.1 request. The
    respondents were advised that they could, but did not have to, file material on
    the request. No responding material was filed.

[2]

The appellant has a long-standing complaint with
    Toronto Community Housing Corporation, of which he is a tenant. He commenced an
    action against it, along with others, in 2014. It was dismissed, at that time,
    as disclosing no reasonable cause of action.

[3]

The current statement of claim was issued in
    2019. Like its predecessor, this statement of claim outlines a litany of
    complaints by the appellant. However, once again, none of them are properly
    tied to a recognized cause of action. As the motion judge found, the
    appellants statement of claim does not plead the basic elements of any
    recognized cause of action.

[4]

As also found by the motion judge, the 2019
    statement of claim seeks to relitigate the same issues that were raised in the
    2014 statement of claim which, as we have already noted, was also struck out.

[5]

The appellant does not raise through his
    proposed appeal any arguable ground of appeal. His appeal, in these
    circumstances, constitutes a proceeding that appears on its face to be
    frivolous or vexatious or otherwise an abuse of the process of the court as
    defined in r. 2.1.

[6]

Consequently, the appeal is dismissed. We make
    no order as to costs.

P. Lauwers
    J.A.

David
    Brown J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dhatt v. Beer, 2020 ONCA 545

DATE: 20200828

DOCKET: M51719 (C68375
    & C68539)

Zarnett J.A. (Motion Judge)

BETWEEN

Mandeep Dhatt and Kulwinder Dhatt

Plaintiffs

(Respondents/Responding
    Parties)

and

Derek Beer and Indira Beer

Defendants

(Appellants/Moving
    Parties)

and

Jay Brijpaul and Re/Max West Realty Inc., Brokerage

Third Parties

(Respondents/Responding
    Parties)

David P.
    Lees and Zachary Silverberg, for the moving parties

Arnie
    Herschorn and Sepideh K. Nassabi, for the responding parties Mandeep Dhatt and
    Kulwinder Dhatt

Serena L.
    Rosenberg, for the responding parties Jay Brijpaul and Re/Max West Realty Inc.,
    Brokerage

Heard: August 25,
    2020 by video conference

REASONS
    FOR DECISION

Introduction

[1]

The appellants (the Beers) move, under r. 63.02 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, for a stay of the trial judgment
    dated May 1, 2020 and of an order made by the trial judge on July 30, 2020.

Background and Context

[2]

The trial judgment declared that an Agreement of Purchase and Sale dated
    January 22, 2016 (the Agreement), between the Beers as vendors and the
    respondents Mandeep and Kulwinder Dhatt (the Dhatts) as purchasers, for the
    sale of 9 Valley Ridge Crescent, Brampton, Ontario (the Property) at a price
    of $835,000, was valid and binding. It awarded the Dhatts specific performance
    of the Agreement, gave the Beers 120 days from the date of the decision (i.e.
    until August 31, 2020) to vacate the Property, and dismissed a third party
    claim that the Beers had brought against their real estate agent and real
    estate brokerage, the respondents Jay Brijpaul and Re/Max West Realty Inc.,
    Brokerage (collectively Re/Max). The trial judgment awarded costs of the
    action to the Dhatts and Re/Max, to be paid (deducted) from the purchase price.

[3]

The July 30 order of the trial judge gave directions concerning the
    carrying out of the trial judgment. Among other things, it appointed a lawyer
    for the Beers with respect to the sale of the Property and gave him authority
    to take certain steps relating to the Beers obligations to complete the sale,
    ordered the Beers to forthwith deliver up vacant possession of the Property,
    and granted leave to a firm of bailiffs to secure vacant possession of the
    premises by August 31, 2020.

[4]

The Beers have appealed from the trial judgment and the July 30 order.

[5]

For the purpose of this motion, the parties did not distinguish, as
    to appeal routes or the applicable principles regarding a stay, between the
    trial judgment and the July 30 order. It was implicitly conceded that if the
    provisions of the trial judgment awarding specific performance and directing
    the Beers to vacate the Property should be stayed, the July 30 order, which
    provides for how those aspects of the trial judgment will be carried into
    force, would be stayed as well.

[6]

Although the motion seeks to stay the entire trial judgment, part of the
    trial judgment is already subject to an automatic stay under r. 63.01, which
    provides:

63.01(1) The delivery of a notice of
    appeal from an interlocutory or final order stays, until the disposition of the
    appeal, any provision of the order for the payment of money, except a provision
    that awards support or enforces a support order.

[7]

The costs awards, to the Dhatts and to Re/Max, are provisions of the
    trial judgment for the payment of money. Their character does not change
    because, in the case of the Dhatts, the costs were ordered to be deducted from
    the purchase price they must pay on the completion of the sale and, in the case
    of Re/Max, the costs were ordered to be paid out of the purchase price:
M
    & M Homes Inc. v. 2088556 Ontario Inc.
, 2020 ONCA 134, at paras. 21-23.

[8]

Accordingly, the focus of the stay motion is, instead, on the provisions
    of the trial judgment and July 30 order that are not subject to the automatic
    stay, primarily those that provide for ownership of the Property to be
    transferred to the Dhatts in return for payment of the purchase price and
    require the Beers to permanently vacate the Property.

[9]

The trial judgment was given after a trial from which the Beers were
    largely absent. In her reasons for judgment, the trial judge described how this
    occurred:

[4]
This action has had a
    long history prior to reaching trial, with adjournments sought by the
    defendants, who for much of the recent past have not been represented by a
    lawyer, after their lawyer removed himself from the record.

[5] At the commencement of the trial, the
    defendants, Derek Beer and Indira Beer, had retained counsel solely for the
    limited purpose of seeking an adjournment. That counsel was not retained to
    represent them at the trial itself. I did not grant the adjournment for the
    reasons given in my Endorsement of March 2, 2020.

[6] On Tuesday, March 3, the trial commenced. At
    the commencement of trial, Mrs. Beer indicated that she sought an adjournment
    because she had a lengthy medical appointment, a stress test, on March 4. She
    further indicated that if necessary she would have it rescheduled. I indicated
    to her that she could attend her medical appointment in the morning, as
    scheduled and her husband could attend the trial on behalf of both of them. She
    could join the trial in the afternoon. Alternatively, she could reschedule her
    appointment. She chose to attend her appointment. She indicated that she would
    attend the appointment on Wednesday and attend Court on Thursday. Her husband
    would attend for them both on Wednesday.

[7] The trial commenced. While the plaintiff was
    giving opening submissions, Mrs. Beer began to hyperventilate. She was invited
    to go to the back of the courtroom, to relax and to take a glass of water. She
    subsequently began to moan and wail loudly and was taken into the hall to calm
    down. While in the hallway, she apparently requested an ambulance and demanded
    of her husband that he attend at hospital with her. Neither party returned that
    day. Mr. Beer was contacted and told that he was to attend at Court for the
    trial the following day, March 4, and that the trial would proceed with or
    without him. He indicated that he would be in Court. My decision as regards the
    incident of March 3 is found in my written Endorsement of that date.

[8] On March 4, the trial office received the
    Admission and Discharge notes and records from the hospital, but no doctors
    report indicating the defendants diagnoses, prognoses or that the defendants,
    or either of them, were unable to attend their trial due to medical reasons and
    the reasons therefor. The defendants were advised that the trial would proceed
    with or without them on the following day.

[9] On March 5, Mrs. Beer attended at trial,
    again seeking an adjournment. She stated that she did not want her husband to
    attend at trial, as she did not trust him with the house, and stated that she
    could not stay. I denied the request for an adjournment for reasons given in my
    oral Endorsement, and indicated that the trial would proceed with or without
    the defendants.

[10] The defendant, Mrs. Beer left the Court and
    the defendants failed to attend the trial further. The trial proceeded without
    them.

[10]

Based
    on the evidence she heard, the trial judge found that the Agreement,
was valid and binding. She referred to
    evidence read-in from the Beers examinations for discovery that Mrs. Beer
    understood, when she signed the Agreement, that it was a valid and binding
    agreement, and that she had signed the Agreement as seller and Mr. Beer had
    signed as spouse giving consent.

[11]

The trial judge noted that when the Beers refused to close the
    Agreement, the Dhatts, who had sold their home in reliance on this transaction
    and had intended to move into the Property, first rented alternative premises
    and then purchased a different home, incurring damages which she assessed at
    $510,410.97.

[12]

Nonetheless, the trial judge awarded specific performance to the
    Dhatts, finding that the Property was unique, with features to which the Dhatts
    ascribed particular significance, making it especially suitable for their
    proposed use. She held that damages would not be an adequate remedy, given the
    uniqueness of the property for the Dhatts, and given that the Beers could not
    pay a damages award. In the latter regard, she stated:

The evidence indicates that the defendants were
    selling 9 Valley Ridge Crescent in order to pay off debts. Mrs. Beer indicated
    that she cannot work. Her husbands salary is being garnished. The Read-ins
    from the Beers Examinations for Discovery, which were conducted when they
    still had a lawyer, indicated that they wanted to sell the property to clear
    off debts. There are numerous writs and executions filed against them pursuant
    to the evidence of Mr. Rogers regarding the stay of proceedings application. Mrs.
    Beer indicated that they could not afford a lawyer.

[13]

The Beers had brought third party proceedings against Re/Max,
    alleging collusion with the Dhatts. As they failed to attend trial to prove
    that claim, and as the evidence in the main action did not show any collusion, the
    trial judge dismissed the third party claim.

[14]

The
    Beers filed a notice of appeal from the trial judgment on June 5, 2020. They
    retained their current counsel after the July 30 order was made, and filed a
    notice of appeal from it on August 12, 2020. Counsel for the Beers advised
    during argument of the motion that the transcripts were ordered on August 19,
    2020.

The Test for a Stay

[15]

The
    overarching consideration in whether to grant an application for a stay pending
    appeal is whether doing so is in the interests of justice. Three factors are
    considered: (1) whether, on a preliminary assessment, the appeal raises a
    serious question, recognizing that this is a low threshold; (2) whether the
    applicant would suffer irreparable harm if the application were refused; and
    (3) the balance of convenience, namely which of the parties would suffer
    greater harm from the granting or refusal of the remedy pending a decision on
    the merits. The factors are not watertight; the strength of one may compensate
    for weakness on another:
Zafar v. Saiyid
, 2017 ONCA 919, at paras. 17-19.

Application of the Test

[16]

In
    my view, the interests of justice do not favour granting a stay.

[17]

On
    the merits, the main focus of the appeal is on the trial judges refusal to
    adjourn the trial. Counsel for the Beers submitted that the trial judge paid
    insufficient attention to the fact that this would be a first adjournment of
    the trial, and that the Beers were self-represented litigants who were not
    appropriately guided by the trial judge as to what medical information would be
    needed to obtain an adjournment.

[18]

A
    trial judge enjoys a wide discretion as to whether to grant an adjournment of a
    civil trial, a discretion that is to be exercised judiciously, taking into
    account relevant factors:
Khimji v. Dhanani
(2004), 69 O.R. (3d) 790
    (C.A.),
per
Laskin J.A. (dissenting, but not on this point). On appeal
    that exercise of discretion is reviewed on a deferential standard. Moreover, findings
    of fact are subject to a deferential standard of review on appeal.

[19]

The
    trial judge considered the fact that the trial date had been set for over a
    year, that delays had already occurred in the action, and that the Beers had
    not followed prior judicial advice to retain counsel for the trial, in
    rejecting the request for an adjournment of the trial date to allow further
    time to retain a lawyer. In rejecting the request for an adjournment based on
    medical reasons, the trial judge considered the medical evidence that was put
    forward and made findings of fact as to what it did and did not show.

[20]

On
    a preliminary basis, therefore, while accepting that the appeal does not fall
    below the low merits threshold, it cannot be considered as having the strength
    necessary to overcome the weakness on the irreparable harm and balance of
    convenience factors. The appellants case for a stay is weak on both of those
    factors.

[21]

The
    Beers submitted that there were two types of irreparable harm that they would
    suffer if the stay were refused.

[22]

First,
    they say that the way the trial judge structured the costs awards  as being recoverable
    from the purchase price  means that when the sale to the Dhatts is completed
    before the appeal is heard, the Dhatts and Re/Max will receive their costs and
    no recourse will be available if the appeal is allowed.

[23]

I
    reject that argument. As I have noted, the costs awards are automatically
    stayed and may not be enforced, pending the disposition of the appeal. The
    respondents have not sought a lifting of the automatic stay. Therefore, the Beers
    are already protected from this form of harm.

[24]

Second,
    they say that if the stay is not granted, the Dhatts, after ownership has been
    transferred to them, may sell the Property, which would potentially render any
    successful appeal moot, because the Property would now be owned by a third
    party.

[25]

I
    reject that argument based on the undertaking given to the court, by the Dhatts
    through their counsel, that they will not deal with the property pending
    disposition of the appeal. The right to effective relief as a result of a
    successful appeal will not be lost, as the Property will remain in the
    ownership of parties who are before the court.

[26]

Turning
    to the balance of convenience, the Beers argue that if the stay is not granted
    they will incur transaction costs in having to move out of the Property and
    in finding another place to live, and then, if the appeal is allowed, in moving
    back into the Property. In the interim they will be without their home during
    the COVID-19 pandemic.

[27]

No
    estimate of the transaction costs was provided. I agree that there would be
    inconvenience to the Beers in this scenario, but the inconvenience would be
    temporary, and the length of it is, in some measure, within the power of the
    Beers to minimize, in that they are free to take steps to expedite the
    perfection of their appeal, and thus advance the potential hearing date of the
    appeal.

[28]

More
    importantly, the inconvenience of moving out and finding alternate
    accommodations flows directly from the result of the trial, which on a motion
    for a stay pending appeal is to be treated as prima facie correct:
Circuit
    World Corp. v. Lesperance
(1997), 33 O.R. (3d) 674 (C.A.), at para. 13.
    The Beers were aware of that result from the time of the trial judges decision
    of May 1, 2020 and have had the opportunity to plan accordingly.

[29]

On
    the other hand, granting the stay would delay the Dhatts in obtaining ownership
    of a property the trial judge found to be uniquely suited to their purposes.
    The evidence discloses that the Dhatts have arranged financing to close the
    purchase conditioned on the closing occurring on August 31, 2020. There is no
    evidence about whether or not the financing commitment could be extended to a
    new closing date if a stay were granted and the appeal ultimately dismissed;
    that new date would be uncertain given that the appeal is at a very early
    stage. As noted, although the trial judgment is dated May 1, 2020, the
    transcripts were only ordered on August 19, 2020. The Beers offer their
    undertaking to be responsible for any damages caused by the stay, but the trial
    judge noted that they have other creditors.

[30]

In
    my view the balance of convenience does not favour the granting of a stay.

Conclusion

[31]

For
    these reasons, upon the undertaking of the Dhatts through their counsel not to
    deal with the Property pending the disposition of the appeal, the motion to
    stay those portions of the trial judgment and the July 30 order that are not
    subject to the automatic stay as set out above, is dismissed.

[32]

The
    parties may make written submissions on the costs of the motion, limited to two
    pages each. The respondents submissions shall be delivered within ten days of
    the date of these reasons. The submissions of the Beers shall be delivered
    within five days thereafter.

B. Zarnett J.A.