Court of Appeal for Ontario

Date: 2018-03-01 Docket: C64145

Judges: Doherty, MacFarland and Paciocco JJ.A.

Between

Simon Stuart Law, Julia Lorraine Law, Olga Lapshin, John Lackner and Teresa Lackner Applicants (Respondents)

and

Cedar Ridge Waterfront Park Corporation Respondent (Appellant)

Counsel

For the Appellant: Scott R. Fairley and Joshua Valler

For the Respondents: Brendan Y. B. Wong and Graham Splawski

Heard and Released Orally: February 22, 2018

On Appeal From: The judgment of Justice Barbara A. Conway of the Superior Court of Justice, dated July 4, 2017.

Reasons for Decision

[1] We are satisfied that this appeal must succeed. In her reasons, the motion judge said the following:

I am satisfied there was a common intention of Mr. Blair [the owner] and the purchasers of the Ridge Lots that they would, through their membership in CRRC, have access to the water.

[2] She also said:

Membership in the CRRC was the means by which they were to have access to the water which the basis on which they acquired their properties.

[3] We accept those observations as well-founded on the record. With respect, however, they fail to come to grips with the nature of the right of access. Was it contractual or was it by way of a right in the land purchased? In our view, the documents reviewed and signed at closing establish that the right was contractual. The respondent's right to access to the waterfront was one of a bundle of rights and obligations created by way of a contract between the club ("CRRC") and lot purchasers like the respondent.

[4] In coming to our conclusion that the right of access is contractual, and not the basis upon which an easement could be found, we make the following observations:

• The property owner was required to assign to any subsequent purchaser membership in the club and, hence, the right to access to the waterfront sale. This requirement is inconsistent with the existence of an easement over the land;

• The property owner had to be a member in good standing of the club to exercise the rights of membership, including access to the waterfront; and

• Nowhere in the relevant documentation are there any of the normal indicia of an easement such as a metes and bounds description of the purported easement, or of a description of the nature of the uses to which the easement was subject.

[5] In our view, the above observations are equally determinative of the argument that there was an easement by estoppel. As the rights are clearly contractual, they cannot be converted into rights that run with the land through the mechanism of an easement by estoppel.

[6] The appeal is allowed. We award costs of the appeal in the amount of $20,000, inclusive of disbursements and relevant taxes, and costs in the court below in the amount of $25,000, inclusive of disbursements and relevant taxes for a total amount of $45,000.

"Doherty J.A."

"J. MacFarland J.A."

"D.M. Paciocco J.A."