COURT OF APPEAL FOR ONTARIO

CITATION: Reddick v. Robinson, 2024 ONCA 116

DATE: 20240215

DOCKET: COA-22-CV-0393

van Rensburg, Nordheimer and George JJ.A.

BETWEEN

John Reddick and Luanne Reddick

Applicants (Appellants)

and

Perry Robinson, Sonja Beharry, Heather Boyd and Dennis Baril

Respondents (Respondents)

James Plotkin and Romina Hassanzadeh, for the appellants

Naaila Sangrar and Mahi-Noor Khalid, for the respondents

Heard: August 31, 2023

On appeal from the judgment of Justice Graeme Mew of the Superior Court of Justice, dated October 28, 2022, with reasons reported at 2022 ONSC 6124.

George J.A.:

A. BACKGROUND

[1] A single six-acre parcel of land on Lake Ontario in Prince Edward County – formerly owned jointly by Christopher Moore, Marilyn Minaker, and the late Paul Minaker – was subdivided into three two-acre properties. The parties in this appeal each own one of these properties.

[2] At the time of the subdivision, Mr. Moore and the Minakers also each owned properties situated between the six-acre parcel and the lake. A private road separated those properties and the six-acre parcel. Mr. Moore and the Minakers worked with a planner to create a 20 ft. by approximately 300 ft. strip of land between their respective properties to connect what is now the appellants’ property (the “Reddick property”) to the shores of Lake Ontario. The other two subdivided parcels are owned by the respondents (respectively, the “Robinson property” and the “Boyd property”). The strip of land is zoned as a “Special Open Space Zone”. Title to the strip of land is held by the appellants, subject to an easement in favour of the Robinson and Boyd properties as follows:

[F]or the purposes of pedestrian access only in order to use and enjoy the shores of Lake Ontario, such use and enjoyment shall not include camping or the use or operation of motorized vehicles.

[3] The appellants, applicants in the court below, took the position that the respondents were restricted to pedestrian access only in using this strip of land for ingress to and egress from the shores of Lake Ontario. They sought declarations confirming their interpretation of the easement and defining the “shores of Lake Ontario” as only the land lying between the high and low water marks.

[4] The respondents argued that their use of the strip of land was not limited to ingress and egress, but included other uses consistent with how one would typically enjoy a private park, such as sitting in a lawn chair to enjoy the lake view and picnicking.

[5] The application was dismissed. The appellants appeal from that decision on the basis that the application judge erred in his interpretation of the easement. They ask that we either correct the application judge’s decision and decide the matter in their favour, or remit it back to the Superior Court for a new hearing.

B. Decision Below

[6] With respect to the definition of “shores”, the application judge rejected the appellants’ limited definition because 1) it would “severely [limit] the concept of ‘use and enjoyment’” and render the prohibitions against “camping or the use or operation of motorised vehicles” in the easement “effectively redundant”; and 2) the term “shore land”, as defined in s. 4.1.1 of the County of Prince Edward Official Plan (2006) (the “Official Plan”) suggested a broader definition that would allow for “both passive and active recreational activities”:

4.1.1. The shore land and associated water bodies of Prince Edward County are a landscape feature of significant aesthetic, ecological and cultural value. They are also a major tourist attraction as they provide the resource base for both passive and active recreational activities.

[7] The application judge held that the respondents were not limited to only using the easement as a path to access the shore. He relied primarily on the evidence of Mr. Moore but also on a letter penned by the late Mr. Minaker. Mr. Moore spoke to what he and the Minakers intended when they created the strip of land, testifying that it was to enable “[the] three property owners to be able to bring a lawn chair down, you know, bring a cooler down, spend, you know, the day or the evening there, be able to go into the water, out of the water, take a canoe down. But very passive, was the thought process. And that was the discussion and understanding as to what this would do.”

[8] Later in his testimony, Mr. Moore said that to use and enjoy the shores of Lake Ontario “would by implication require [one] to sit on that land”. He expressed his view that the respondents could “[c]ome, spend [their] time, do what [they] got to do, have some fun, go swimming, you know, take pictures, have a beer and then don’t stay overnight and don’t camp and don’t bring [their] car.” Mr. Moore testified that he “looked at it very simplistically in that respect because that’s what we were creating so that other people that had lands designated as shore lands could actually have the same experience as me on my land.”

[9] As mentioned, the late Mr. Minaker wrote a letter in 2008, which he submitted in support of the application to have the strip of land rezoned. He wrote that “all three properties [the Reddick, Robinson, and Boyd properties] would have right-of-way access over the 20’ x 296’ portion of land to Lake Ontario”, and that the strip of land “would be zoned ‘open space’ in order to ensure that no development whatsoever would take place on that portion of the property”.

[10] The application judge concluded that “[w]hile it is implicit from these reasons that the respondents’ access and use of the strip of land is not to be limited only to ingress and egress”, he was “not inclined to prescribe the ways in which the easements facilitate the respondents’ use and enjoyment of the shores of Lake Ontario.”

C. Issues

[11] This appeal raises four issues:

1. What is the standard of review?

2. Did the application judge err in his interpretation of “shores of Lake Ontario”?

3. Did the application judge err in his interpretation of the scope of the easement?

4. If the appellants succeed, should we remit the application to the Superior Court for reconsideration, or does the record permit us to substitute our decision?

[12] I will address each in the order above.

D. ANALYSIS

I. Standard of Review

[13] The issues raised in the application, and on appeal, involve the interpretation of an easement. The construction of an easement is a question of mixed fact and law which means that, absent an extricable error of law, or a palpable and overriding error on a question of fact, an application judge’s interpretation of a deed is owed deference on appeal: Yekrangian v. Boys, 2021 ONCA 629, at para. 19; Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, 450 D.L.R. (4th) 105, at para. 101.

[14] This court has directed that where, as here, “an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created”: Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10.

[15] The principles of contractual interpretation, as set out in the Supreme Court decision of Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53, [2014] 2 S.C.R. 633, also apply to the interpretation of an easement: Herold Estate v. Canada (Attorney General), 2021 ONCA 579, at para. 44. This means that the proper approach is to 1) ground the interpretation of the easement in its text, and 2) have regard to the factual matrix, but only as an interpretive aid for ascertaining the objective intentions of the parties. Evidence that speaks to subjective intent is inadmissible: Sattva, at para. 59.

[16] The appellants submit that the application judge’s interpretation of “shores of Lake Ontario” is reviewable on a correctness standard because “shores” is a legal term of art. I disagree. As the foregoing authorities direct, the easement as a whole – including the term “shores” – must be interpreted with regard to its text and the broader factual matrix. It is a question of mixed fact and law that typically attracts deference.

[17] Nevertheless, as I will explain, the application judge made errors in principle in his interpretation of the easement. He also misapprehended critical evidence. The application judge further erred by relying on inadmissible subjective intent evidence from Mr. Moore concerning the creation of the easement – an extricable error of law is reviewable on a correctness standard: 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273, at para. 54; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 27.

II. Shores of Lake Ontario

[18] The appellants submit that the “shore” of a lake is presumed in law to be the area between the high and low water marks. As such, the application judge erred in finding that the shore in this case included the raised grassy piece of land abutting the limestone shore; that is, the land just above the high-water line. According to the appellants, this area would more properly be described as a “bank”. In support, they rely on this court’s decision in Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (C.A.), and the trial court decision in Ontario (Attorney General) v. Walker (1970), 1970 CanLII 953 (ON SC), [1971] 1 O.R. 151 (S.C.), at para. 51, aff’d 1972 CanLII 31 (ON CA), [1972] 2 O.R. 558 (C.A.), aff’d 1974 CanLII 3 (SCC), [1975] 1 S.C.R. 78:

I am driven to this conclusion, that any 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 water’s 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 water’s edge. [Emphasis added.]

[19] The appellants submit that the limestone shore is the “shores of Lake Ontario”, that the raised grassy bank is not, and that the application judge erred in concluding otherwise.

[20] The respondents submit that the appellants are improperly extending their preferred definition of “shores” – which they concede is found in the relevant jurisprudence – to the interpretation of this particular easement. The respondents contend that to accept the appellants’ position would be to render the definition of “shores”, as set out in an easement, entirely a question of law without regard to the plain and ordinary meaning of the words or the factual matrix, which would be inconsistent with the well-established principles that govern the interpretation of easements.

[21] While I disagree with the appellants’ argument that the standard of review is correctness – this is, again, a question of mixed fact and law – I do accept that the application judge erred in his definition of “shores”. The term “shores”, having regard to the language used in the easement and the surrounding circumstances, means the area between the low and high-water mark. This conclusion is grounded in the text of the easement and in the clear distinction it draws between “shores” and the strip of land which provides access to the shores.

[22] Consider the two reasons the application judge gave for rejecting the appellants’ proposed interpretation of the word “shores”. He first concluded that it would be inconsistent with the easement’s prohibition against camping and the use of motorized vehicles. He accepted the respondents’ submission that it is impossible to camp or use motorized vehicles in the area between the high and low water marks (which is limestone and largely inaccessible as it lies beneath a steep bank):

I agree that to restrict the definition of “shores of Lake Ontario” in the manner suggested by the applicants severely limits the concept of “use and enjoyment” and makes the restriction against camping or use of motorized vehicles effectively redundant.

[23] Second, relying on Mr. Moore’s testimony that the Official Plan influenced the wording of the easement when it was created, he concluded that such a definition was inconsistent with the broader definition of “shores” found in the Official Plan. He found the Official Plan to be part of the context that helped illuminate the meaning of “shores of Lake Ontario”.

i. Camping and Motor Vehicles

[24] Photographs of the limestone shore – the area between the low and high water marks – were filed as exhibits on the application. These photographs show that it is possible for one to erect a tent and camp, and operate a smaller motorized vehicle (such as a dirt bike or ATV) when the water level is at its lowest.

[25] I agree with the appellants that for the application judge to have arrived at his conclusion that the prohibitions were “effectively redundant”, he must have either 1) failed to consider the photographs, or 2) inferred that, for the prohibitions to have meaning, it had to be possible to camp or drive a motorized vehicle on the shore regardless of where the water meets land and irrespective of weather or water conditions.

[26] To accept the appellants’ interpretation would not render the prohibitions “effectively redundant”. Based on the photographs and description of the limestone shore, depending of course on the water-level, it is clear that one could camp and also drive a motorized vehicle on the shores. Thus, to prohibit these activities, the easement needed to expressly so provide, as it does.

ii. The Official Plan

[27] The only evidence that spoke to the role the Official Plan played in the creation of the easement came from Mr. Moore, who testified about his subjective intent at the time. As mentioned, this is an inadmissible consideration when interpreting an agreement such as an easement: Hanley Park, at paras. 51-54. The application judge fell into error by relying on this evidence.

[28] The application judge also overstated the significance of, and thereby gave undue weight to, the Official Plan, which is merely a “framework of goals, objectives and policies [of a municipality] to shape and discipline specific operative planning decisions”. Official plans are meant only to establish the “broad principles that [govern] the municipality’s land use planning generally”: Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173, 261 O.A.C. 76 at para. 42, citing Toronto (City) v. Goldlist Properties Inc. (2003), 2003 CanLII 50084 (ON CA), 67 O.R. (3d) 441 (C.A.), at para. 49.

[29] In fact, it appears as though the County’s planning priorities were more closely aligned with the appellants’ interpretation of “the shores of Lake Ontario” than with the respondents’ interpretation. Mr. Moore testified that, when the rezoning application was submitted, the municipality’s planner advised that the County favoured rezoning that would provide “the ability to get to the lake and use the lake if possible”. Therefore, apart from what Mr. Moore intended or understood – which, again, should not have been considered – the appellants’ proposed interpretation is entirely consistent with the County’s stated objective.

[30] More importantly, the appellants’ interpretation is aligned with the language used in the easement itself, which makes clear that the strip of land is for “pedestrian access only” in order to “use and enjoy the shores of Lake Ontario”. There is no ambiguity here. The easement is addressing two separate things: 1) access to the shores via the strip of land, and 2) the use and enjoyment of the shores. The pedestrian access route is separate and distinct from the use of the “shores of Lake Ontario”. The easement gives the respondents the right to “use and enjoy” the latter but not the former.

[31] In the end, the application judge erred in his approach to defining the “shores of Lake Ontario” by not having regard to the plain language used in the easement and by relying on inadmissible evidence about subjective intent. On this basis alone, appellate intervention is warranted.

III. Scope of the Easement

[32] The appellants argued in the court below, and again on appeal, that regardless of the definition of “shores”, the easement restricts access to just ingress and egress from Lake Ontario. The application judge rejected this argument, writing that “I am satisfied that the words used – construed broadly with the intention of Mr. Moore and the Minakers when the easements were created and when their properties were subdivided and rezoned – do not restrict the respondents’ use and enjoyment of the shores of Lake Ontario to accessing the shoreline in the manner suggested by the applicants” (emphasis added).

[33] Reading the application judge’s reasons as a whole, the only logical conclusion is that this determination – like the application judge’s definition of “shores” – rests on the subjective intent of Mr. Moore and the Minakers. As discussed earlier, subjective intent evidence is not admissible when interpreting an easement. Only objective evidence that speaks to the factual matrix can be considered. The application judge’s disposition appears to be tainted by his reliance on subjective intent evidence and his failure to consider objective evidence.

[34] The most relevant objective evidence that informed the factual matrix came from the appellants, who filed on the application a copy of the County’s Notice of Decision (the “Notice”) approving the rezoning application, and the municipality’s Planning Staff Report (the “Report”), which tracks the language in the Notice.

[35] The Notice states:

The effect of the above applications was to create three residential building lots each with either direct or legal access to Lake Ontario (Athol Bay), and to add additional land to each of the applicant’s waterfront lots.

[36] The nature of the access is referenced at two different points in the Report. At para. 1 it reads that “through a series of rights-of-way and lot additions each proposed lot (severed and retained) will have legal access to Lake Ontario (Athol Bay) over the second holding jointly owned by the applicants”, and at the end of para. 2 it substantially reproduces the above excerpt from the Notice.

[37] The Notice and the Report are instructive in two main respects. First, they tell us that the rezoning application was aimed specifically at providing the lot owners with access to Lake Ontario. To the extent that the amended zoning allows use as a private park, it simply does so “in order to prohibit the construction of any buildings or structures (including a boat launching facility) on this narrow shared water access portion of the property” (emphasis added). Contrary to the respondents’ assertions, the rezoning application thus plainly contemplated that the strip of land would provide unobstructed access to Lake Ontario rather than be jointly used as a park.

[38] In any event, the permitted uses under the amended zoning are not determinative of the easement’s scope. Zoning does not in and of itself establish interests or rights in land: 2022177 Ontario Inc. v. Toronto Hanna Properties Ltd. (2005), 2005 CanLII 39320 (ON CA), 203 O.A.C. 220, at para. 35. Rather, the rezoning application must be considered as a whole to glean objective evidence of intent – in this case, unobstructed access to Lake Ontario – which in turn becomes part of the factual matrix: Freeborne Developments Ltd. v. Corman Park (Rural Municipality), 2021 SKCA 48, at paras. 42-45.

[39] Second, the Notice and the Report indicate that two types of access to Lake Ontario were contemplated: direct access (for the appellants, who are titleholders) and legal access (for all landowners, including the respondents). Again, this is objective evidence that sheds light on the surrounding circumstances at the time the easement was created, including the parties’ intentions. It should have informed the application judge’s consideration of the factual matrix, but it seems that it did not.

[40] Without the subjective intent evidence of Mr. Moore – and after considering only the language used in the easement and the objective evidence highlighted by the appellants – the inevitable conclusion is that the easement restricts the respondents to “pedestrian access only” for the purpose of ingress to and egress from the “shores of Lake Ontario”.

IV. Remedy

[41] The only question that remains is whether to remit the matter back to the Superior Court for reconsideration, or substitute our decision on the application. In light of the full record, and the absence of any credibility issues, I believe we are in a position to decide the issue and dispose of the application.

E. Conclusion

[42] For these reasons I would allow the appeal and set aside the judgment made in the court below. I would decline to remit the matter back for a re-hearing and would make the following declarations:

i) The meaning of “shores of Lake Ontario” in the easement is the land lying between the high and low water marks;

ii) The respondents’ use of the easement is restricted solely to pedestrian access for the purpose of ingress to and egress from the “shores of Lake Ontario”. In contrast, the appellants enjoy the full bundle of rights associated with their legal title to the strip of land, subject to the prohibition against the construction of structures imposed by the amended zoning.[^1]; and

iii) The use and enjoyment of the shores of Lake Ontario accessed by way of the easement shall not include camping or the use or operation of motorized vehicles.

F. Costs

[43] The respondents shall pay to the appellants their costs of the appeal in the agreed upon all-inclusive amount of $20,000.

[44] The parties have not reached an agreement in respect of costs in the court below, where the respondents were awarded their costs in the all-inclusive amount of $28,000. The appellants ask that we simply reverse that order; the respondents submit that the parties should bear their own costs on the application. As the successful party, the appellants are entitled to their costs of the application. I would therefore set aside the application judge’s costs order and award costs of the application to the appellants in the all-inclusive amount of $28,000.

“J. George J.A.”

“I agree I.V.B. Nordheimer J.A.”

van Rensburg J.A. (Dissenting):

[45] I have considered the reasons of my colleague proposing to allow the appeal. With respect I disagree. I have concluded that the application judge’s interpretation of the easement reveals no reversible error, and as such it is entitled to deference.

[46] My colleague contends that the application judge erred in his analysis essentially by overlooking certain evidence and improperly relying on other evidence when he rejected the appellants’ definition of “shores of Lake Ontario”, and by relying on the “inadmissible subjective intention evidence” of Mr. Moore, who was one of the creators of the easement. After finding that there are reversible errors, my colleague interprets the easement to restrict the respondents’ use and enjoyment to an area of uneven limestone rocks to which access is difficult, and entirely dependent on water levels and weather conditions, over which they have no control.

[47] In my view, this is an impractical and unsatisfactory result that is inconsistent with the plain and ordinary meaning of the words used in the easement and with the objective intentions of the parties who created the easement, which was, as the application judge reasonably concluded, to provide the owners of the dominant tenements (here, the respondents), with the same rights as the owners of the servient tenement (here, the appellants) in relation to the use and enjoyment of the shores of Lake Ontario. In the reasons that follow I will explain why I disagree with my colleague’s analysis and why I would not interfere with the order under appeal.

[48] The point of departure is to recall the character and nature of the land in question, which is Lot 11 of Reference Plan 47R-8181, deposited with the Land Registry Office at Picton on June 16, 2008 (the “Reference Plan”). The Reference Plan shows each of the three individual lots now owned by the parties, as well as the properties of Mr. Moore and Ms. Minaker. Part 11 is approximately 300 feet long, running from the boundary of the appellants’ property to the “water’s edge”, that is the edge of Lake Ontario. It is 20 feet wide, and runs between the Moore and Minaker lands, which also border on the lake.

[49] Part 11 was described by one of the respondents, Mr. Robinson, as “a grassy strip of land approximately 20 feet wide, which, if you are walking toward the water’s edge, goes through a wooded patch and opens up to a grassy area (“Grassy Area”) from which you can see the water. The Grassy Area comes to an abrupt end where there is a short drop-off to some uneven limestone rocks which slope down to the water. The accessibility of these rocks depends on the lake water levels which fluctuate year after year. The Grassy Area provides a high and dry park-like setting with a beautiful vantage point of the lake vista and sunsets”. There is no dispute that this is an accurate description of the easement lands. Indeed, it is consistent with the photos filed by the appellants on the application.

[50] At the time the litigation was commenced the appellants had constructed two 8’ by 8’ wooden decks on the Grassy Area overlooking the lake, and they had placed chairs on the deck and a picnic table nearby. They objected to the respondents’ use of the Grassy Area for anything other than access to the lake. In their application the appellants sought declarations that the respondents’ rights were limited to using the easement for pedestrian access to the lake, and that “shores of Lake Ontario” was restricted to the lands lying between the actual waters of Lake Ontario and the “water’s edge” mark according to the Reference Plan.

[51] The application judge rejected the appellants’ interpretation of the easement, and he dismissed the application. In doing so, he concluded that, properly interpreted, “shores of Lake Ontario” did not have the restricted meaning advocated by the appellants. The respondents’ use and enjoyment of the shores of Lake Ontario was not limited to the uneven limestone rocks but included the Grassy Area.

[52] The application judge’s interpretation of the easement gave meaning to both the “pedestrian access” and the “use and enjoyment of the shores” wording used in the easement. It also took into consideration the dimensions and character of the easement lands, and their zoning as “open space private parkland”. With a focus on the wording of the easement, but also considering the circumstances surrounding its creation, the application judge concluded that the intention was not to provide the owners of one subdivided lot and their successors (including the appellants) with unrestricted rights to the strip of land leading to the lake, with the other lot owners being able to use the land for lake access only. Rather, the easement was intended to provide access to the shores of Lake Ontario so that each of the owners of the subdivided properties and their successors would have the same rights to use and enjoy the shores of Lake Ontario.

[53] I will address the application judge’s alleged errors in the order in which they are discussed in my colleague’s reasons.

The Alleged Error in the Definition of “Shores of Lake Ontario”

[54] The application judge rejected the appellants’ restricted definition of “shores of Lake Ontario”. On appeal the appellants argued that the application judge should be held to a standard of correctness, and they advanced the argument that “the shores of Lake Ontario” is a “legal term of art”, settled in long-standing and binding case law as “the area between the high and low water marks”. This would mean that the “shores” as referred to in the easement, are the uneven limestone rocks between the water and the grassy bank overlooking Lake Ontario.

[55] While my colleague rejects the assertion that the meaning of “shores of Lake Ontario” is a question of law to be considered on a correctness standard, he accepts that the trial judge erred in two ways when he rejected the appellants’ definition of the word “shores”: first, by ignoring material evidence, and second, by placing undue reliance on the Official Plan. Ultimately, my colleague accepts the definition proposed by the appellants.

[56] Both of the alleged errors identified by my colleague are rooted in para. 18 of the application judge’s reasons where he stated:

I agree that to restrict the definition of “shores of Lake Ontario” in the manner suggested by the [appellants] severely limits the concept of “use and enjoyment” and makes the restriction against camping or use of motorised vehicles effectively redundant. It also seems to be more limited than the definition of “shore land” implied by the Official Plan. Rather, the search for a plain and ordinary meaning of the words used necessarily requires consideration of the circumstances surrounding the creation of the easement, considered in the context of the circumstances that existed when the easement was created: Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, at para. 11. [Emphasis added]

[57] After making these remarks, the application judge continued with the balance of his analysis, which focused on the evidence of the circumstances surrounding the creation of the easement (which is the source of the second alleged error identified by my colleague and which I will address later in these reasons).

[58] My colleague contends that, in rejecting the appellants’ restricted definition of “shores of Lake Ontario”, the application judge must have overlooked material evidence consisting of photographs that “show that it is possible for one to erect a tent and camp, and operate a smaller motorized vehicle (such as a dirt bike or ATV) when the water level is at its lowest”, or incorrectly inferred that for the prohibitions against camping and the use of motorized vehicles to have meaning, it had to be possible to camp or drive a motorized vehicle on the shore regardless of where the water meets the land and irrespective of weather or water conditions.

[59] I disagree. There is only one relevant photo, which shows Mrs. Reddick seated on the limestone rocks abutting the lake. While it may appear from the photo that there is enough physical space to accommodate an ATV or tent on the limestone rocks, this is not in my view sufficient to say that the application judge overlooked material evidence. As the application judge observed, the limestone area is only accessible when the water level is low, which depends on weather and water conditions. The limestone area is, as the respondents submit, largely inaccessible as it lies beneath a steep bank. I agree with the respondents’ submission that, to suggest that the intention was to prohibit camping and motorized vehicles solely on what is essentially the exposed bed of the lake when water levels are low, defies common sense, particularly when that area is “largely inaccessible”. As such, I do not agree that the application judge erred in concluding that the restriction against camping or use of motorized vehicles was inconsistent with “the shores of Lake Ontario” having the meaning advocated by the appellants.

[60] My colleague also asserts that the application judge erred in concluding that the appellants’ restricted definition of “shores of Lake Ontario” is inconsistent with the broader definition of “shore lands” found in the Official Plan. Indeed, he says that the application judge found the Official Plan to be part of the context that helped illuminate the meaning of “shores of Lake Ontario” and that the application judge overstated the significance of and gave undue weight to the Official Plan.

[61] Again, I disagree. There are only two references to the Official Plan in the application judge’s reasons. First, the application judge referred to Mr. Moore’s evidence that the term “shore land” in the Official Plan influenced the wording of the easement when it was created, in particular, s. 4.1.1 that refers to the “shore land and associated water bodies of Prince Edward County” as a “landscape feature of significant aesthetic, ecological and cultural value” and “a major tourist attraction as they provide the resource base for both passive and active recreational activities”. Second, the application judge observed in the passage set out above, that the appellants’ interpretation “seems to be more limited than the definition of ‘shore land’ implied by the Official Plan”.

[62] These brief references to the Official Plan do not in my view contribute much to the application judge’s interpretation of the easement. That said, it was appropriate for the application judge to refer to Mr. Moore’s evidence that the definition of “shore land” influenced the wording of the easement. Mr. Moore did not say, nor did the application judge find, that “shores of Lake Ontario” in the easement had the same meaning as “shore land” in the Official Plan. It was however relevant that the Official Plan recognized the importance and attractions of shore lands within Prince Edward County, which is where the parties’ properties and Lot 11 are located. This was part of the surrounding circumstances when the three subdivided lots and the easement were created.

[63] I would also not accept the appellants’ argument that “shores of Lake Ontario” is a “legal term of art”, or that the settled meaning of the “shore” of a lake is the area between the high and low water marks.

[64] The application judge properly recognized that his task was to determine the “plain and ordinary meaning of the words used”, which involved “consideration of the circumstances surrounding the creation of the easement, considered in the context of the circumstances that existed when the easement was created”. When interpreting an easement, the court must have regard to the plain and ordinary meaning of the words in the grant to determine what the intention of the parties was at the time the agreement was entered into: Robb v. Walker, 2015 BCCA 117, 383 D.L.R. (4th) 554, at para. 31; Wesley v. Iles, 2013 ONCA 8, at para 10. To the extent that a party argues a “legal term of art”, that is that the words used have an accepted and fixed meaning, there must be evidence to displace the presumption that the plain and ordinary meaning was used: One West Holdings Ltd. v. Greata Ranch Holdings Corp., 2014 BCCA 67, at para. 36. There was no such evidence here.

[65] Nor is there a “settled definition” for “shores of a lake” that would necessarily apply to the easement in this case. The cases cited by the appellants in their factum as authority that the shore of a lake is the area between the high and low water marks (including the cases referred to at para. 18 of my colleague’s reasons), involve disputes about the boundaries of properties bordering on water bodies arising in the context of Crown patents and grants, and private versus public ownership and rights over beaches, lake beds and sand or gravel between the water’s edge and the land. They are not cases involving the interpretation of an easement for the use of land.

[66] As such, I cannot agree with my colleague’s conclusion that “shores of Lake Ontario” has the meaning asserted by the appellants, a meaning that derives from inapplicable case precedents and is divorced from the circumstances in which the easement was created.

The Alleged Error in Relying on Subjective Intention Evidence

[67] The appellants asserted on appeal that “virtually all” of Mr. Moore’s evidence about the easement went to “subjective intent”, and that the application judge relied entirely on Mr. Moore’s subjective intent evidence, which was “inadmissible”. My colleague appears to accept that argument when he concludes that the application judge erred in his analysis of the easement by relying on the evidence of Mr. Moore which he characterizes as “inadmissible subjective intent evidence” and evidence of “what Mr. Moore intended or understood, which should not have been considered”. I disagree. Much of Mr. Moore’s evidence was properly considered by the application judge as relevant and necessary to his interpretation of the easement.

[68] The application judge recognized and cited the applicable legal principles. He referred to the leading case, Fallowfield v. Bourgault(2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417, where Feldman J.A. observed that, “where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created”: at para. 10. While easements are instruments that run with the land, and, as here, may be created by a unilateral act, rather than negotiated between contracting parties, it is accepted that the principles for the interpretation of contracts outlined in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633,generally apply to their interpretation: Herold Estate v. Canada (Attorney General), 2021 ONCA 579, 157 O.R. (3d) 561, at para. 45.

[69] In Sattva the Supreme Court stepped away from rigid rules of interpretation of contracts, to recognize the important role of the factual matrix – that is the objective circumstances surrounding the formation of the contract that inform its interpretation. “Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning”: Sattva, at para. 47. The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case: Sattva, at para. 58. Courts should be cautious in identifying extricable questions of law in such inherently fact-specific disputes: Sattva, at paras. 54-55.

[70] The rationale for not considering the parties’ subjective intention evidence in contract cases is two-fold: first, resort to a party’s subjective intent undermines the goal of certainty; and second, the parties may not have a common subjective intention: Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, 424 D.L.R. (4th) 588 at para. 42. As such, the caution against using “subjective intention” may be readily stated and applied in cases involving the interpretation of contracts. In cases involving easements and other instruments creating interests in land, which are binding on successor parties, and may, as here, have resulted from unilateral action and not negotiation, the rationale for and the distinction between evidence of what might be characterized as “subjective intention” and evidence of the circumstances surrounding the creation of the instrument may be less clear. After all, the goal is to interpret the easement consistent with its intent, objectively determined. In Herold Estateit was an error for the application judge to have declined to determine the objective intention derived from the language of Letters Patent in light of the surrounding circumstances. As Zarnett J.A. noted at para. 53, it is appropriate to jettison from the analysis any consideration of the subjective thoughts of the parties, but not what they objectively intended.

[71] The affidavits filed on the application contained a great deal of evidence about the communications between the parties, their own views about their respective rights in relation to the easement lands, and their conduct in the years preceding the application. The application judge properly concluded that the appellants’ evidence about what they understood the easement meant when they purchased their property, and the respondents’ evidence about what they thought the easement entitled them to do was of limited assistance, and he did not consider it in his interpretation of the easement. In other words, this was evidence of the litigants’ subjective thoughts about the easement and what it meant, which of course was not relevant to its interpretation.

[72] The evidence of Mr. Moore however was of a different character. He was examined by counsel as a witness on the application. He had two roles: first, as someone who was involved in the creation of the easement, and secondly, as the appellants’ lawyer on the purchase of their property. His evidence about the circumstances leading to the creation of the easement provided the necessary factual context – it was evidence about the surrounding circumstances that was properly and necessarily considered. This included the evidence about the subdivision of the land he owned jointly with the Minakers into three lots, including the enhancement in the value of those lots by the creation of Lot 11 by subdividing a narrow strip of land from his own and the Minakers’ lakefront properties. While Mr. Moore’s evidence was not the “subjective intention” evidence of a party, I accept that some of his evidence, including his opinions about the conduct of the appellants and the dispute that had arisen, were not relevant to the interpretation issue.

[73] While it would have been helpful if the application judge had expressly indicated which parts of Mr. Moore’s evidence he had considered, and which parts were not relevant to his interpretation of the easement, I am not persuaded that the application judge relied on “inadmissible subjective intention evidence” of Mr. Moore.

[74] The application judge set out the respondents’ position that pointed to Mr. Moore’s evidence about how he and Mr. Minaker intended for the future owners of the subdivided lots to use the easement lands (summarized by my colleague at paras. 7 and 8 above), and the appellants’ position relying on the letter Mr. Minaker had signed in support of the rezoning of Lot 11, referring to “right of way access” over the land to Lake Ontario (summarized at para. 9).

[75] I am not entirely persuaded that Mr. Moore’s evidence about his and Mr. Minaker’s expectations for the future use of the easement lands was irrelevant to the interpretation exercise. I do not however read the application judge’s reasons as having accepted or relied on this evidence. Indeed, the application judge specifically refrained from directing how the respondents could use the easement lands to enjoy the shores of Lake Ontario. His analysis makes it clear that he did not simply accept Mr. Moore’s evidence about how he had envisioned the easement would be used.

[76] What did inform the application judge’s decision however is the uncontradicted evidence about the surrounding circumstances: the subdivision of the Moore and Minaker vacant lands into three lots, and the creation of Lot 11. What the application judge took from Mr. Moore’s evidence was that the intent was to provide an equal opportunity for the owners of all three lots and their successors to enjoy the shores of Lake Ontario – which is consistent with how the lots were marketed and sold, and how the easements (including the other easements which affect the subject properties but are not at issue in the litigation) were created and how Part 11 was zoned.

[77] Mr. Moore’s evidence was not the evidence of a party; rather it was evidence about the circumstances that led to the creation of the easement from a person who was involved in its creation. To ignore all of his evidence would result in an interpretation of the easement without the necessary context. Paraphrasing Herold Estate, at para. 42, when interpreting an easement, the question is not the abstract meaning of its words, but what the creator of the easement is objectively taken to have intended by the words chosen in light of the circumstances – the factual matrix – in which the words were used.

Disposition of the Appeal

[78] In my view there were no reversible errors in the application judge’s decision. He understood and applied the correct legal principles, reasonably concluding that the appellants were not entitled to the declarations they sought: first, that the respondents were limited to using the easement to access Lake Ontario and second that “shores of Lake Ontario” referred to the lands lying between the actual waters of Lake Ontario and the “water’s edge” mark according to the Reference Plan. He rejected the appellants’ interpretation of the easement that would restrict the respondents to using and enjoying the uneven limestone rocks, and not the Grassy Area.

[79] While the respondents invited the application judge to specify how they could use and enjoy the easement, the application judge refused to do so. Having determined only that the rights of the parties to “use and enjoy the shores of Lake Ontario” were the same, he left it to the parties who had all been using the Grassy Area to some extent before the litigation, to determine what activities were appropriate. His only caution was that the exercise by one party of their right to use and enjoyment of the easement lands should not unreasonably impair any other party’s exercise of their right of use and enjoyment.

[80] In the absence of a counter application there was no error in the application judge’s refusal to go further. The parties were given the direction they needed, and as the application judge indicated, they should all govern themselves accordingly.

[81] I conclude with one further observation. Even if the application judge made one or more reversible errors, I would not interfere with his disposition of the application. As I indicated at the outset, the application judge’s interpretation of the easement gave meaning to both the “pedestrian access” and the “use and enjoyment of the shores” wording used in the easement. It also took into consideration the dimensions and character of the easement lands, and their zoning as “open space private parkland”, and it gave practical meaning to the easement, in the context of the circumstances surrounding its creation.

[82] For these reasons I would dismiss the appeal.

Released: February 15, 2024 “K.M.v.R.”

“K. van Rensburg J.A.”

[^1]: "The grant of an easement does not amount to the grant of title to the lands and easements are ordinarily interpreted in a manner that does not deprive the servient owner of its proprietary rights": Bibieffe International Holdings B.V. v. York Region Condominium Corp. No. 838, [2000] O.J. No. 3579 (C.A.), at para. 4.