Court of Appeal for Ontario

Date: 2018-08-29 Docket: C64649

Judges: Lauwers, Miller, and Nordheimer JJ.A.

Between

Dale Clarke and Lorraine Clarke Applicants (Respondents)

and

Esad Kokic and Behra Kokic Respondents (Appellants)

Counsel

Brian R. Kelly, for the appellants

Trenton Johnson, for the respondents

Heard: August 27, 2018

On Appeal

On appeal from the order of Justice Bloom of the Superior Court of Justice, dated October 30, 2017, with reasons reported at 2017 ONSC 6485.

Reasons for Decision

[1] The Clarkes own the building at 101 St. Andrew St. W. in Fergus, Ontario. It is attached to the adjacent building at 135 St. David St., which is owned by the Kokics. Under the title deeds, the Clarkes have an easement over part of the Kokics' property, which provides interior access to the upper floors and roof of their own property. When the easement was first granted, the Clarkes' predecessors in title had no other access to the third floor or roof of 101 St. Andrew except through 135 St. David St., though this is no longer the case.

[2] This dispute arose in the context of the Clarkes' renovations to adapt the property for commercial use on the first two floors and residential use on the third. The renovations include slightly widening the third floor door frame through which the easement passes to make it a fire exit, and replacing the doors on the second and third floor to comply with the relevant building and fire regulations. The Kokics interfered with the right of way, and the Clarkes applied for declaratory and injunctive relief.

[3] The application judge declared the easement valid and ordered the Kokics not to interfere with the Clarkes' rights under the easement, including the right to make the renovations. The Kokics appeal from that decision.

[4] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. In our view, the application judge did not err in finding that the easement permitted the Clarkes to alter the door frames and doors in question in order to use the easement as an emergency exit. Further, the rule against perpetuities has no application to this case.

A. The Renovations

[5] The Kokics argue that the Clarkes' renovations impermissibly change the use of the easement, from providing access to space that has been unused or has been used only for storage, into use as an emergency exit.

[6] The title deeds set out the easement language:

"AND RESERVING a right-of-way for all persons entitled thereto in common with others having a like right, over, through and along the existing hallways and stairways in the first, second and third storeys of said stone building" (Emphasis added)

[7] The easement is then described in "metes and bounds" format.

[8] We observe that while the Kokics characterize the modest widening of the doorframes on the third floor as increasing the size of the easement, this is inaccurate. The grant is silent on the size of the doorframe and the dimensions of the easement remain the same as before. Neither the widening of the door frames nor the replacement of the doors increases the burden on the servient tenement.

[9] The Kokics rely on Fallowfield v. Bourgault, 68 O.R. (3d) 417. Speaking for the majority, Feldman J.A. distilled the relevant principles, at para. 11:

In interpreting the meaning and intent of an express easement, the concept of ancillary rights arises. The grant of an express easement includes such ancillary rights as are reasonably necessary to use or enjoy the easement. However, to imply a right ancillary to that which is expressly granted in the easement, the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable.

[10] The appellants rely on the word "existing" in the easement language. They argue that the respondents have no ancillary right to make changes to the doors and door frame to facilitate a fire escape, because these changes are not necessary for the use of the easement. They assert that permitting the alteration of the door frames may be convenient, but they are not necessary, largely because the respondents had an alternative, which was to build fire escapes out of the windows.

[11] The application judge found that the use of the easement in the event of a fire was within the scope of the original grant. It contemplated ingress and egress for all purposes, which perforce included escaping a fire. The original grant is broad enough to include the use of the easement as an emergency exit, and the renovations do nothing more than render it usable for that purpose. The renovations are "reasonably necessary", in the sense used in Fallowfield, in that they are necessary for the Clarkes to lawfully use the easement for one of the purposes for which they are entitled to use it. The fact that the Clarkes could fulfill the same purpose by some other means not involving the easement, is irrelevant to the necessity analysis. Because the Clarkes already had the right to use the easement for ingress and egress, including as an emergency exit, they did not need to substitute alternative emergency exits as the Kokics suggest.

[12] While the redevelopment of 101 St. Andrew could result in increased use of the right of way, the use of the easement remains of the same general nature. The potentially increased burden on the servient tenement at 135 St. David St. by virtue of more frequent use does not fall outside the scope of the initial grant (Almel v. Halton Condominium Corp. No. 77, 98 O.A.C. 72, at para 8).

[13] The application judge's decision was reasonable and supported by the evidence. He made no errors in finding that the renovations were reasonably necessary for the exercise and enjoyment of the easement.

B. The Rule Against Perpetuities

[14] The Kokics argue that the ancillary rights under the easement are void because of the rule against perpetuities. We disagree.

[15] It is not clear that this issue was before the application judge, but in any event, the rule against perpetuities has no application in this case. The rule does not restrict the duration of property interests, but the length of time that may elapse between the creation of a contingent interest and the vesting of that interest (Sutherland Estate v. Dyer, 4 O.R. (3d) 168, at para. 18). As stated by the court in Dyer at para. 18: "the rule applies only to contingent interests".

[16] An express easement includes the ancillary rights reasonably necessary for the use and enjoyment of the easement. These rights vested at the time of grant and are not contingent interests. Thus, the rule against perpetuities does not apply to them.

Disposition

[17] The appeal is dismissed with costs to the respondents, as agreed, in the amount of $10,000 inclusive of disbursements and taxes.

"P. Lauwers J.A."

"B.W. Miller J.A."

"I.V.B. Nordheimer J.A."