Court of Appeal for Ontario

Date: 2018-09-19 Docket: C63729

Judges: Rouleau, Benotto and Miller JJ.A.

Between

Gordon White and Mary Magwood Plaintiffs/Defendants by counterclaim (Appellants)

and

Borden Curtis and Jana Curtis Defendants/Plaintiffs by counterclaim (Respondents)

Counsel

Keith MacLaren and Bryce Dillon, for the appellants

J. Gregory Richards and Neville C. Johnston, for the respondents

Heard and released orally: September 14, 2018

On appeal from: the judgment of Justice B.W. Abrams of the Superior Court of Justice, dated April 7, 2017, with reasons reported at 2017 ONSC 2190.

Reasons for Decision

[1] The appellants appeal the dismissal of their claim for a declaration that they have a right of way over the property of the respondents. They argue that the original grant met all four of the requirements to establish an easement by grant. In their submissions, they alleged that the trial judge erred in considering post-grant evidence as to intention and use and also erred in finding that the grant contained in the document was ambiguous.

[2] We do not agree with these submissions.

[3] In our view, the trial judge correctly found that the grant was ambiguous. There are no metes and bounds descriptions in the grant. The grant refers to passage over a strip of land presently used as a roadway, but only indicates that it continues "southerly to the north shore" of the lake. Based on the record before him, the trial judge found, at para. 214, that,

… the right over land in this case does not amount to an easement because it is incapable of forming the subject-matter of a grant. Put simply, the Plaintiffs did not establish, on the evidence, the nature of the locus in quo of the servient tenement over which the right of way was granted as it existed at the date of the grant.

[4] These findings were open to the trial judge on this record and are owed deference in this court.

[5] As submitted by the respondents, the evidence at trial demonstrated that different access points to the lake existed at the time of the grant and further, even accepting the appellants' submission that the access was intended to be over the specific lot that the pleadings referred to, there was no evidence as to where on that lot the easement would in fact have run.

[6] In our view, the failure on this element of the test is fatal to the appellants' claim.

[7] For these reasons, the appeal is dismissed. Costs to the respondents are fixed in the amount of $12,500 inclusive of disbursements and applicable taxes.

Paul Rouleau J.A.

M.L. Benotto J.A.

B.W. Miller J.A.