DATE: 20031219

DOCKET: C39595

COURT OF APPEAL FOR ONTARIO

RE: MARGARET EDITH MUIR, WILLIAM RYAN, WENDY RYAN, THELMA ANGELA VASSEL, EARL MARWOOD BRIDGE, ELIZABETH ELAINE BRADSHAW, AMADEO DE LUCA, BRIAN WILLIAM HULL and CYNTHIA JOY VIERSEN (Appellants) – and – PATRICIA ANN DROZDOSKI (Respondent)

• and between – PATRICIA ANN DROZDOSKI (Applicant by Counterclaim – and – TED EMMONS AND MARGARET EDITH MUIR, WILLIAM RYAN, WENDY RYAN, EARL AND IRENE BRIDGE, ANGELA VASSEL, JOANNE DEFALCO, ELIZABETH ELAINE BRADSHAW, BRIAN AND SHAWN HULL, AMADEO DE LUCA, TOM AND CYNTHIA JOY VIERSEN (Respondents by Counterclaim)

BEFORE: MCMURTRY C.J.O., ROSENBERG and GILLESE JJ.A.

COUNSEL: Harry Korosis and J.M. Ricci for the appellants J. McCormack for the respondent

HEARD: December 15, 2003

On appeal from the order of Justice Joseph R. Henderson of the Superior Court of Justice dated December 13, 2002.

E N D O R S E M E N T

[1] The parties to this appeal are neighbours who cannot agree on how to deal with a shared well and water system. An application heard by Henderson J. resulted in an order declaring that the appellants have an easement, by grant, for the use of the well and water system located on the respondent’s property. He further found that the appellants do not have an easement to repair, maintain, upgrade or replace the well and water system.

[1] The appellants brought a motion before Abella J.A. to stay the order pending hearing of the appeal. Abella J.A. dismissed the motion.

[2] The respondent moved to enter new evidence showing that after the issuance of Abella J.A.’s order and before the hearing of the appeal, the appellants installed alternate water systems or began the process of so doing. Further, the respondent advised the appellants that she intended to shut off the communal well and when the appellants did not request any additional time to complete the installation of their alternate water systems, the respondent shut off the communal well.

[3] The appellants acknowledge that the new evidence is credible and could not have been obtained by reasonable diligence at the time of the original hearing but argue against the motion on the basis that it is irrelevant to the adjudication of the appeal.

[4] In our view, the new evidence should be admitted since it bears on the central issue in the case, the nature and scope of the easement.

[5] Dealing first with the cross-appeal, we are satisfied that there was sufficient evidence before the applications judge to support his finding of an easement by express grant. There was also sufficient evidence that the respondent had notice of the easement. Accordingly, the cross-appeal must be dismissed.

[6] As to the appeal, the appellants’ principal ground of appeal was that the applications judge erred in holding that where an easement is created by grant “except in extraordinary circumstances”, the property rights are determined by the “precise language of the grant”.

[7] It may well be that the applications judge did err in applying that test to the determination of the scope of the easement. As held by this court in Mackenzie v. Matthews, the grant of an easement includes a grant of ancillary rights that are reasonably necessary to the use and enjoyment of the easement and which were contemplated by the grantor. The difficulty for the appellants in this case relates to the unsatisfactory nature of the evidence. As was stated in Mackenzie v. Matthews, there is no mechanical way to determine what constitutes an unreasonable demand upon an easement. Each case depends not only upon a proper construction of the instrument creating the easement but also the factual circumstances including the purpose of the easement, the circumstances of its creation, the history of its development and the circumstances of its use, when determining what ancillary rights were contemplated by the grantor.

[8] Further, the only evidence as to the state of the well that was before the applications judge, and which he appears to have accepted, is that the well could not be repaired, the well was a potential source of contamination to adjacent wells and the only solution was to abandon and decommission the well. The fresh evidence establishes that the well has, in fact, now been decommissioned. The respondent also points out that she was subject to penal liability because of the contamination of the water and that the appellants continued to use the water despite knowing it was unsafe but refused to release the respondent from liability.

[9] In light of the evidence at trial and the fresh evidence, the appellants can only succeed by showing that actual replacement of the well was contemplated by the original grant. In our view, the appellants did not adduce sufficient evidence to demonstrate that this was contemplated by the original grant. What evidence there is seems to point in the other direction, i.e. that what was contemplated was use and repair of the original well. Thus, by the time this dispute arose, the majority of owners were no longer using the so-called communal well and the fresh evidence shows that the rest of the owners have now drilled their own wells.

Disposition

[10] Accordingly, the appeal and cross-appeal are dismissed without costs. There shall be no order as to costs of the motion to receive further evidence. The respondent is entitled to costs of the motion to stay fixed in the amount of $2,000, inclusive of disbursements and G.S.T.

“R.R. McMurtry C.J.O.”

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”