Court of Appeal for Ontario
Before: O’Connor A.C.J.O., Goudge and Juriansz JJ.A.
Between
Harold Winston Kendrick and Fran Van der Heide
Plaintiffs (Respondents)
and
Elvin B. Martin and Gail Veitch
Defendants (Appellants)
Counsel:
John D. Goudy, for the appellants
John Gilbert and Ross McLean, for the respondents
Heard: October 11, 2012
On appeal from the judgment of Justice A.D.K. MacKenzie of the Superior Court of Justice, dated October 24, 2011.
Reasons for Decision
1The appellants are the owners of a fifty-acre parcel of land in Bruce County that is near but does not abut Chesley Lake. The conveyance by which they acquired the property granted a registered right of way over lands owned in trust by the respondents. This easement ran from the appellants’ property across the respondents’ property to the edge of Chesley Lake.
2The bed of Chesley Lake is Crown land and is controlled by the local Conservation Authority. After obtaining the necessary permit from the Conservation Authority, the appellants built a pole dock on the bed of Chesley Lake at the water’s edge where the right of way ends. A set of retractable steps is attached to the inner end of the dock. It is not attached to the land but can be lowered to the shore to permit access from the right of way.
3The respondents commenced this action against the appellants, raising a number of issues that divided the parties. By the time of trial, all but one had been settled. That issue was the scope of the right of way granted to the appellants in the instrument that conveyed the property to them, particularly as it relates to their use of the pole dock. The respondents took the position that this use was beyond the scope of the right of way.
4The trial judge agreed with the respondents. He issued an order restraining the appellants from using the pole dock and a declaration that their use of the right of way did not include access from the shoreline to the pole dock, but was limited to the particular purpose of providing access to Chesley Lake for persons, animals and vehicles.
5The trial judge found no facts to be relevant to his interpretation of the words in the conveyance by which the right of way was created. He found the words themselves to be determining: “Together with a right of way for persons, animals and vehicles” over the respondents’ lands.
6First, the trial judge found that these words in their ordinary meaning created a right of way for a particular purpose, not a general right of way:
These words in their ordinary meaning intend the use of the right of way to be for a particular purpose, i.e. access to Chesley Lake “for persons, animals and vehicles”: i.e. in the broadest sense, a right of way for agricultural purposes.
The specifically or particularity of the purpose stipulate in the words of the grant prevents the right of way in the Easement from being interpreted as a general right of way: the words are unambiguous.
7Second, the trial judge then concluded that the appellants’ use of the right of way to access the pole dock is “...an excessive and overburdening use by them of the right of way and easement”. He found that the easement does not include access to the pole dock to the shoreline.
8The appellants argue that the trial judge erred in reaching both these conclusions.
9I agree.
10The trial judge relies entirely on the wording of the grant of easement in determining its meaning. His conclusion that the words intended a particular use, namely for agricultural purposes in the broadest sense, thus is reviewable on a standard of correctness. See The Plan Group v. Bell Canada, 2009 ONCA 548, [2009] 96 O.R. (3d) 81 (Ont. C.A.).
11In my view, the words of the grant of easement are not confined to a particular use as the trial judge suggested. Indeed the respondents concede that the right of way is not confined to agricultural use. The grant is of a right of way that is unlimited by words confining the use that persons entitled to use it may make of it. The general use thus provided is made available to persons and animals and vehicles. The latter speaks not to the use, but to the users.
12Moreover, I cannot agree that accessing the pole dock from the shoreline where the right of way ends constitutes an overburdening use of that right of way. What the user does immediately after leaving the right of way cannot be said to affect the use made of the right of way at all. Accessing the dock does not extend the right of way beyond the shoreline. This is so regardless of the proper interpretation of the use provided by the grant of right of way.
13In the result, I would allow the appeal, set aside paragraphs one, two and three of the order below and substitute an order dismissing the respondents’ claims for this relief. While I would not alter the costs order at trial, I would allow the appellants’ partial indemnity costs of the appeal, fixed at $10,000 in total.
Released: October 24, 2012 (“D.O’C.”)
“S.T. Goudge J.A.”
“I agree. D. O’Connor A.C.J.O.”
“I agree. R.G. Juriansz J.A.”
