COURT OF APPEAL FOR ONTARIO
DATE: 20000929
DOCKET: C33094
RE: BIBIEFFE INTERNATIONAL HOLDING B.V. (Plaintiff/Respondent) and YORK REGION CONDOMINIUM CORPORATION NO. 838 and STEELCON GROUP INC.(Defendants/Appellants)
BEFORE: CHARRON, MACPHERSON and SHARPE JJ.A.
COUNSEL: Richard Quance,
For the appellants
Rocco Palmieri
For the respondent
HEARD: September 28, 2000
E N D O R S E M E N T
[1] The respondent initiated this action to determine the rights of the parties under an easement over a strip of land adjacent to the lands of the appellant “for the purpose of pedestrian and vehicular access and egress and for the purpose of parking vehicles.” The appellant takes the position that the easement affords it the exclusive right to park vehicles on the land governed by the easement. The respondent takes the position that it retains the right to use the lands for access and parking. The trial proceeded on the basis of an agreed statement of facts. The trial judge was asked to respond to three questions:
What is the proper interpretation to be given to the easement…?
Are the [respondents], including their occupants, customers, invitees, entitled to park vehicles [on the land governed by the easement]?
If the answer to question No. 2 is yes, then on what basis is such parking to be permitted? Is it on a “first come first serve basis” or otherwise?
[1] The trial judge did not specifically answer these questions, but found that the language of the easement did not afford the appellant the exclusivity it claimed.
[2] In our view, given the very general and abstract manner in which this case was presented, it was not possible for the trial judge to make anything approaching a definitive or exhaustive pronouncement of the rights of the parties. We affirm the judgment under appeal, but with the following qualification.
[3] 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. We agree with the trial judge that there is nothing in the language of this easement that would amount to a grant to the appellant the exclusive right to access and to park vehicles on the land.
[4] On the other hand, it is clear that the respondent must exercise its residual rights as owner of the servient tenement in a manner consistent with the rights accorded by the easement. We also agree with the trial judge that there is nothing in the very meager factual record to indicate that the respondents have substantially interfered with the rights granted by the easement. That conclusion is inevitable from the abstract manner in which the case was presented. However, this finding clearly does not mean that the respondent is free to access and park vehicles as it sees fit. The easement does not afford exclusivity to the appellant, but it does afford the appellant priority to this extent: the respondent must exercise its rights in a manner that respects the rights granted to the appellant. A blanket, unqualified right to park on a “first come first serve basis”, if exercised by the respondent in a manner that deprived the appellant of the right to access to the land or the right to park vehicles, would not respect the rights granted by the easement. In our view, in light of the factual record before us, it is neither possible nor appropriate to attempt a more specific delineation of the respective rights of the parties.
[5] Accordingly we would vary the judgment by adding the following words to paragraph 1: “but the Plaintiffs are required to exercise their rights as owners of Part 12 in a manner that respects the rights granted to the Defendants by the easement.”
[6] In our view, the parties should bear their own costs of the appeal.
“Louise Charron J.A.”
“J.C. MacPherson J.A.”
“Robert J. Sharpe J.A.”