Court of Appeal for Ontario
Date: September 14, 2018 Docket: C64043
Judges: Pepall, Roberts and Miller JJ.A.
Between
Idalgo Raimondi and Nancy Raimondi Appellants (Applicants)
and
Ontario Heritage Trust and Nicola Ross Respondents (Respondents)
Counsel
M. Michael Title and Patricia Virc, for the appellants
Sonal Gandhi and Stephanie Figliomeni, for the respondent Ontario Heritage Trust
Patricia D.S. Jackson and Sarah Whitmore, for the respondent Nicola Ross
Heard: April 13, 2018
On appeal from: the order of Justice Peter A. Daley of the Superior Court of Justice, dated June 12, 2017, with reasons reported at 2017 ONSC 3389, 84 R.P.R. (5th) 221.
B.W. Miller J.A.:
Overview
[1] The appellants are the owners of a 3.59 acre residential property in Caledon, Ontario ("100 Scott Street"). Their property is surrounded by 90 acres of parkland (the "Willoughby Property") owned by the Ontario Heritage Trust (the "OHT"). The only vehicular access to the appellants' residence is via a 1 km driveway through the Willoughby Property. The appellants do not own the driveway, but they have a legal right (an easement in the nature of a right of way) to use it for the purpose of accessing their property. That right of way was conferred by a deed of easement when the OHT severed 100 Scott Street from the Willoughby Property in 1993. The deed was registered on title of both 100 Scott Street and the Willoughby Property.
[2] There are a number of popular hiking trails on the Willoughby Property. Some trails long predated the severance of 100 Scott Street from the Willoughby Property. Since the appellants purchased 100 Scott Street, the OHT has continued to improve existing trails and develop new hiking trails into a network connected to the Bruce Trail. More hiking trail development is contemplated and the OHT actively encourages the public to use the trail network. The respondent Ms. Nicola Ross, a local resident, has published a local guide to hiking trails, which includes the trails on the Willoughby Property.
[3] The driveway that leads to 100 Scott Street provides the most popular access point for hikers using the trails. The OHT does not permit the public to drive on the driveway, but the public is expressly invited to walk up the driveway to access the trails. Many people do, especially on weekends and holidays. It is the presence of hikers walking up and crossing the driveway – a driveway also used by the appellants to access their home – that has led to the present conflict over the scope of the appellants' rights over the use of the driveway. The appellants take the position that the easement grants them exclusive use of the driveway, and that members of the public who use the driveway to access trails are therefore trespassers.
[4] This appeal concerns two main issues: (1) whether the deed of easement creating the right of way grants the appellants exclusive use of the driveway, and (2) whether the OHT has substantially interfered with the appellants' use of the driveway by establishing public hiking trails and inviting the public onto the driveway. Two secondary issues are whether the application judge erred by: (3) dismissing the application for an injunction restraining the publication of Ms. Ross's hiking guide; and (4) ordering costs against the appellants. A further ground of appeal, alleging bias on the part of the application judge, was abandoned.
[5] For the reasons set out below, I would dismiss the appeal.
Background
[6] The OHT was established in 1967, with a statutory mandate to acquire and hold property in trust for the people of Ontario. Part of its mandate is to preserve and manage properties of historical, architectural, recreational, and natural interest. It acquired the Willoughby Property in 1986. Although the property has some cultural and archeological significance, its main public significance – and the reason for its designation as a Natural Environment Park in the Niagara Escarpment Parks and Open Space System – is that it provides access to the Bruce Trail. The Bruce Trail is Canada's oldest and longest footpath, extending from Niagara Falls in the south to Tobermory in the north.
[7] The Willoughby Property is managed by the Credit Valley Conservation Authority ("CVC"). After the OHT acquired the Willoughby Property, the CVC engaged in studies and public consultations regarding the development of a trail system that would link existing and proposed trails on the Willoughby Property into the Bruce Trail. Around 1990, the CVC prepared the "Willoughby Property Trail Integration Study," which proposed the creation of a trail now known as the "Crow's Nest Trail," which hikers would access from the driveway that leads to 100 Scott Street.
[8] Subsequently, the OHT severed from the Willoughby Property the 3.59 acre parcel of land that is now 100 Scott Street, the appellants' residence. The deed granting the easement of a right of way over the driveway to 100 Scott Street was executed by both the OHT as transferor, and Ms. Susan Imrie, the appellants' predecessor in title and the first purchaser of 100 Scott Street, as transferee. The deed is registered on the title to 100 Scott Street.
[9] The deed reads in part as follows:
The Transferor grants the Transferee the free, uninterrupted and unobstructed right-of-way for the transferee and her guests, agents and contractors for ingress and egress and to enter, repair and maintain a gravel driveway…
The right-of-way hereby granted is declared to be on and in the lands described in Box 5 of Page 1 hereof, and to be for the benefit of the lands of the Transferee described also in Box 5 of Page 1.
The Transferor covenants not to plant any trees or brush on the lands, and not to erect any buildings, structures and other man-made obstructions on the lands.
The Transferor shall not be responsible for the maintenance and repair of the right-of-way.
The Transferee covenants to fill in all excavations and to restore the surface to substantially the same condition as existed prior to the commencement of any activity of the Transferee authorized hereunder.
The Transferee further covenants to save harmless and keep the Transferor indemnified from all claims, costs and damages which may arise by reason of any entry made upon or activity performed on the said lands by the transferee, her guests, agents and contractors.
This easement and everything contained in it shall be binding upon, extend to and enure to the benefit of the parties hereto, as the case may be, and their respective heirs, administrators, successors and assigns.
[10] Attached to the deed is a consent to the grant of right-of-way provided by the Ministry of Culture, Tourism and Recreation. The consent confirms that the grant was made "in accordance with the policies and priorities for the conservation, protection and preservation of the heritage of Ontario", as required by the Ontario Heritage Act, R.S.O. 1990, c. O.18.
Issue 1: Interpretation of the Deed of Easement: Use of Extrinsic Evidence
[11] Where, as here, an easement is expressly created by written agreement, the scope of the easement is to be determined by interpreting the text. What is the agreement that the original parties made that now binds their successors? The basic interpretive methodology was stated by this court in Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.), at para. 10: "[w]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."
[12] The appellants argue that the wording of the deed is sufficiently clear and precise that no resort to the surrounding circumstances was warranted. The application judge erred, they argue, in considering external evidence to assist in the interpretation of the deed. The appellants particularly object to the application judge's reliance on contractual negotiations leading up to Ms. Imrie's purchase of 100 Scott Street, evidenced in correspondence between Ms. Imrie and the OHT. The correspondence disclosed requests by Ms. Imrie first to purchase the driveway lands, and then in the alternative to acquire an exclusive easement. The OHT denied both requests. The appellants object to the use of private correspondence to interpret a registered instrument, on the basis that they were not privy to it, and had no means of knowing about it. They further object to evidence from Ms. Imrie and Mr. Gerald Hebert (the appellants' immediate predecessor in title) as to their respective understandings of the scope of the easement, and to evidence from Ms. Imrie, Mr. Hebert, and the OHT as to historical use of the driveway by hikers.
[13] The appellants did not object to the admission of any of this evidence at the hearing of the application. The extent to which the application judge made use of it, if he made use of any of it at all, is unclear. In any event, the exclusion of this evidence would not have assisted the appellants. To resolve the sole interpretive question the appellants identified – was the grant of the easement for the exclusive use of the appellants (or, as the appellants restated it on appeal, for the exclusive use of the appellants and the OHT but to the exclusion of the OHT's invitees) – no recourse to extrinsic evidence was needed. As the application judge held, the appellants' position – that the deed conveyed a right to exclusive use of the right-of-way – is not supported on the clear language of the deed. That is sufficient to dispose of this aspect of the appeal.
[14] The application judge found the language of the deed to be "clear and unambiguous in that it makes no reference of a grant to the transferee of exclusive rights to this [right of way]." He concluded that the right of way "was granted for the limited purpose of ingress and egress to the property at 100 Scott Street, which is not mutually exclusive from other uses or users of the [right of way]." He further noted that nothing in the deed operated to limit the OHT's fee simple interest in the right of way, other than the provision requiring it to provide "a free, uninterrupted and unobstructed right-of-way to the owner of 100 Scott Street."
[15] The appellants' position is that an owner of a fee simple interest who grants an easement over a right of way needs to expressly "reserve" the right to invite the public to use the right of way. The appellants acknowledge that they were aware at the time they purchased 100 Scott Street that they were only acquiring an easement and not the fee simple of the driveway lands.
[16] This argument confuses the law governing easements created by express grant and easements created by reservation. If a vendor asserts an easement over land after transferring the title to that land to another person, the law recognizes that the vendor should use express language to reserve the easement: see 3021386 Nova Scotia Ltd. v. Barrington (Municipality), 2015 NSCA 30, 357 N.S.R. (2d) 289, at para. 36. In this context, the law is reluctant to imply the reservation of an easement because this would undermine the principle that a vendor of land should not be able to derogate from the grant: see Bruce Ziff, Principles of Property Law, 6th ed (Toronto: Carswell, 2014), at p. 390. However, this principle does not apply in cases of express grant where the grantor retains title to the land subject to the easement because these policy rationales are absent. Instead, express grants should be construed according to general principles as to the interpretation of legal documents in the context of easements: Jonathan Gaunt QC & Hon. Mr. Justice Morgan, Gale on Easements, 20th ed (London: Sweet & Maxwell, 2017), at para. 3-12; Fallowfield, at para. 10.
[17] The application judge accordingly made no error in rejecting this argument. It is a novel argument for which no authority was provided. The argument overstates the nature and extent of the easement conveyed by the deed. It is a well-established principle of construction that the grant of a private right of way ordinarily confers on the grantee only a right to the reasonable use of the way in common with others: see Gaunt & Morgan, at para. 13-06; Weidelich v. de Koning, 2014 ONCA 736, 122 O.R. (3d) 545, at para. 13, quoting Clifford v. Hoare (1874), L.R. 9 C.P. 362, at p. 371. The OHT, as the grantor, retains all of its rights as owner of the estate in fee simple, except to the extent that those rights are inconsistent with the rights of the grantee granted by the deed. Subject to what the deed expressly granted to the appellants, the OHT retains the right to use the lands as it sees fit and to invite others to use them: see Anne Warner La Forest, ed., Anger & Honsberger: Law of Real Property, 3rd ed, (Toronto: Thomson Reuters Canada, 2006), Vol. 2 at para. 17:20.30(a); Bibieffe International Holding B.V. v. York Region Condominium Corp. No. 838, 2000 CarswellOnt 3374 (C.A.), at para. 4; Przewieda v. Caughlin, 2015 ONSC 3770, 58 R.P.R. (5th) 21, at para. 19; Arpy-Ara Co. v. A.R. Manufacturers & Distributors Ltd., 2015 ONSC 425, 52 R.P.R. (5th) 25, at para. 240.
Issue 2: Substantial Interference
[18] The second issue raised on appeal is whether the application judge erred in concluding that the OHT, by inviting the public to use the right-of-way, substantially interfered with the appellant's easement for "free, uninterrupted, and unobstructed" use of the right of way for access to 100 Scott Street.
[19] Whether there has been a substantial interference with an easement is a question of fact, reversible only for palpable and overriding error: Matthews v. Township of Plympton (1982), 37 O.R. (2d) 382 (S.C.), at p. 387, aff'd (1983), 42 O.R. (2d) 24 (C.A.); Weidelich, at para. 14. On this question, the evidence of historical use of the right-of-way is obviously relevant, as it provides a baseline to assist in determining what constitutes substantial interference.
[20] The appellants have the burden of establishing substantial interference: Weidelich, at para. 12. The application judge concluded, on the evidentiary record before him, that the appellants had not met that burden. The appellants, as I explain below, have not identified any palpable and overriding error made by the application judge, and are essentially seeking to reargue the application. This aspect of the appeal must be dismissed.
[21] The appellants referred to the following in support of their claim of substantial interference:
3200 visitors walking along the right of way between 2013 and 2015;
on occasions when the appellants encountered pedestrians on the right of way, the appellants were forced to slow or momentarily stop their vehicles so the pedestrians could move to one side and the vehicles safely pass;
on some occasions, the presence of pedestrians impeded snow removal; and
on six instances, unauthorized vehicles entered the right of way, including one instance in which a vehicle became stuck and blocked the appellants' access until it could be towed away.
[22] The application judge concluded that these occurrences were at most minor and infrequent and did not rise to the level of substantial interference.
[23] With respect to the presence of pedestrians, the application judge held that:
At its highest, the interference with the applicants' rights within the terms of the granted easement can be described as a minor and infrequent inconvenience, limited to times when they are entering or leaving their property and it does not in any way interfere with the reasonable use of the easement by the applicants.
[24] The bare fact that there were 3200 instances of pedestrians using the driveway over a 22 month period does not go very far towards establishing interference with the appellant's use, let alone substantial interference. The appellants did not provide any evidence as to the frequency of use, the size of groups, or the number of times the appellants encountered pedestrians. The two instances recounted by Ms. Raimondi where pedestrians were said to have interfered with the use of the right of way, were characterized by the application judge as a minor inconvenience. Although the appellants claimed to have video evidence in support of the claim of substantial interference, they did not produce it. The application judge was entitled to draw a negative inference from this decision, as he did.
[25] With respect to the use of the right of way by vehicles, there was no evidence that the OHT permitted or condoned such use. To the contrary, the application judge found that the OHT prohibited unauthorized vehicles from making use of the right of way, with clear signage to that effect.
[26] The appellants' main argument on appeal is that the application judge erred by failing to give sufficient weight to the appellants' safety concerns: that a safety hazard occasioned by the mere presence of hikers on the driveway constituted a substantial interference with the easement. The creation of a safety hazard, the appellants argue, is sufficient to establish substantial interference.
[27] Again, the application judge's findings of fact are a complete answer to this argument. It is not necessary to decide the question of whether, or in what circumstances, the existence of a safety hazard can amount to substantial interference. The application judge's finding, on the preponderance of evidence before him, is that the use of the driveway by hikers had not created a safety hazard. The appellants have not identified a palpable and overriding error and have, essentially, invited this court to reweigh the evidence. But it is not the function of an appellate court to re-weigh the evidence or substitute its views on the evidence for those of the application judge: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 22-23.
Issue 3: Injunction Claim Against Nicola Ross
[28] The appellants also appeal from the application judge's refusal to grant a permanent injunction restraining Ms. Ross from publishing "anything that states expressly or by implication that 100 Scott Street, the Appellants' home, or the [right of way] is part of a public trail system, part of public lands or part of the 'Willoughby Property.'" As the application judge noted, this claim is "founded upon the assertion that the [right of way] is a private driveway for the exclusive use and benefit of the [appellants]." That assertion, as the application judge concluded, is incorrect. Additionally, there was no evidence before the application judge that Ms. Ross had ever stated that 100 Scott Street is public property or otherwise encouraged anyone to trespass on it.
[29] There was therefore no basis for an injunction enjoining Ms. Ross from publishing material stating that the driveway may be used by the public for the purpose of accessing public hiking trails. Accordingly, the application judge made no error in refusing to grant the injunction sought.
Issue 4: Costs Below in Favour of Ms. Ross
[30] The appellants seek leave to appeal the costs award made in favour of Ms. Ross. Costs awards are highly discretionary, and a reviewing court is only entitled to set aside an award of costs on appeal if the judge made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. The appellants have not identified any error in principle that would entitle this court to interfere with the costs decision of the application judge. The application judge did not err in rejecting the argument that Ms. Ross needlessly expanded the litigation. The application put her personal and professional reputation in issue, as well as her livelihood as a writer, and necessitated a response. To respond to the allegations it was reasonable for Ms. Ross to address the appellants' claims against the OHT. The application judge did not err in concluding that the resources Ms. Ross deployed were proportionate to the claims brought against her. I would dismiss the appeal against the costs order in favour of Ms. Ross.
Disposition
[31] I would dismiss the appeal and order costs payable to each of the OHT and Ms. Ross in the amount of $15,000, for a total of $30,000, inclusive of disbursements and taxes.
Released: September 14, 2018
"B.W. Miller J.A."
"I agree. S.E. Pepall J.A."
"I agree. L.B. Roberts J.A."
