Toronto couple wins case to avoid paying neighbourhood levy

theglobeandmail.com
By TU THANH HA
May 18, 2017

The Court of Appeal for Ontario has sided with a couple challenging a key aspect of life in Wychwood Park, a posh, exclusive enclave of central Toronto that imposes an annual levy for the upkeep of its common areas.

In a 29-page decision released Thursday, Justice Eleanore Cronk ruled in favour of a Wychwood couple, Gerald Owen and Katherine Anderson, who did not want to pay the levy used to maintain the community’s road, trees and fences.

Mr. Owen is a Globe and Mail editorial writer who is retiring at the end of this week.

The couple argued that they had never agreed to the levy and that their property is already accessed by a public municipal street.

Justice Cronk agreed, upholding the common law principle that a positive covenant does not run with the land - in other words, that an arrangement that requires an active step, such as paying for shared facilities, is not binding when land ownership changes and subsequent purchasers are not part of the initial agreement.

“The obligation under the Trust Deed to pay the annual levy is unenforceable,” Justice Cronk wrote in her judgment.

The decision recognizes that it could be an impact on other Wychwood residents but focused solely on the case of Mr. Owen and Ms. Anderson.

“While this conclusion may have implications for the rights and obligations of the trustees and other landowners in Wychwood Park under the Trust Deed, the assessment of those rights and obligations is not before this court,” Justice Cronk wrote.

The dispute, which started nearly a decade ago in small claims court, has challenged the legal foundations of Wychwood Park, a quirky, bucolic community that has been administered under a trust deed set up by the original owners in 1891, before its annexation into Toronto.

A leafy neighbourhood of old oaks and vintage houses, Wychwood Park was initially set up as an artists’ colony and is now an exclusive community of 60 homes.

Notable former residents include the late philosopher Marshall McLuhan, former federal finance minister Joe Oliver and retail executive Bonnie Brooks.

Richard Black and Scott Lamacroft, the current Wychwood trustees, said through their lawyer that they needed time to review the decision and its impact and would not be able to comment.

The Owen family acquired its Wychwood property in 1911.

Mr. Owen’s father, Ivon, stopped paying the levy in 2008. The trustees took him to small-claims court, seeking $4,052.11, the amount for the levies of 2008 and 2009.

“[Mr. Owen and Ms. Anderson] maintain that they have never agreed to pay the annual levy contemplated by the Trust Deed and, further, they wish to be excluded from any use of the common property,” the ruling noted.