Court of Appeal for Ontario

Date: 2019-05-13 Docket: C66085

Judges: Watt, Pardu and Nordheimer JJ.A.

Between

Michel de Jocas, Catherine de Jocas, David Carson, Ronald Piesanen and Linda Piesanen

Applicants (Appellants)

and

Moldow Enterprises Inc., 833633 Ontario Limited and Alena Ravens

Respondents (Respondents)

Counsel

Brian N. Radnoff and Lindsay Woods, for the appellants

Bruce Bussin, for the respondents

Heard

April 29, 2019

On Appeal

On appeal from the order of Justice R. Cary Boswell of the Superior Court of Justice dated September 28, 2018, with reasons reported at 2018 ONSC 5715.

Reasons for Decision

Introduction

[1] The appellants appeal from the order of the application judge that determined that the respondents had not substantially interfered with an easement in favour of the appellants, assuming the easement to be valid.

[2] For the reasons that follow, we would allow the appeal, set aside the order of the application judge and remit the matter to the Superior Court of Justice for a fresh hearing.

Background

[3] The background facts are not really in dispute. The appellants, the respondents, and one other person not party to this litigation, own five neighbouring cottage properties that border Soyers Lake in the County of Haliburton. The cottages run generally in a north to south direction, with Soyers Lake lying to the east. The de Jocas' property is the most northerly property, then the respondents', then the Piesanens', then the Sayewichs' and, finally, the Carsons'. To the west of these cottage properties is a right of way known as the Between Lakes Trail.

[4] In the past, in order to access these five cottages, the cottagers used a road, known as Brewers Close, which is claimed to be the location of an easement over the five properties. Brewers Close runs in a semi-circle from the Between Lakes Trail through the five cottage properties and then returns to Between Lakes Trail. For clarity, attached to these reasons as Appendix A is a diagram showing the location of the five cottage properties, the route of Between Lakes Trail and the former route of Brewers Close.

[5] In the Fall of 2015, the respondents decided to alter the route of Brewers Close as it crossed their property. They sought the approval of the other property owners to this change. Initially the respondents had the consent of the de Jocas family and the Piesanen family, although they acknowledge that the Piesanens subsequently withdrew their consent. They also had the consent of the Sayewichs, who did not participate in this application.

[6] In any event, notwithstanding that they did not have the complete agreement of all of the other property owners to change the route of Brewers Close, the respondents went ahead and altered the route. The respondents also blocked the old route along the lot lines between their property and the de Jocas' property and between their property and the Piesanens. Indeed, it appears that the respondents actually used a small portion of the Piesanens' property to complete the new route.

[7] A dispute ensued between the appellants and the respondents over the alterations made to Brewers Close. The appellants commenced an application for an injunction prohibiting the respondents from obstructing their rights of way over Brewers Close and for a mandatory order requiring the respondents to remove the boulders and trees that they had used to block the old route.

[8] In response, the respondents commenced a counter-application in which they sought a declaration that the right of way known as Brewers Close was invalid because of uncertainty and vagueness. In the alternative, the respondents sought a declaration that their alteration of the route of Brewers Close did not result in substantial interference with the use of the right of way by the appellants.

The Decision Below

[9] The application judge did not make any determination as to the validity of the easement known as Brewers Close. He said that he was unable to do so based on the evidentiary record that was before him. However, the application judge did determine that the easement was not invalid on the basis of vagueness or uncertainty. Then, assuming the easement was valid, the application judge concluded that there was no substantial impairment of the use of the easement arising from the actions of the respondents.

Analysis

[10] In our view, the evidentiary record before the application judge was insufficient to permit him to reach either of the conclusions that he did. Indeed, the evidentiary record did not allow for any of the necessary findings that would sustain any of the conclusions that the parties sought to obtain from the court. As the application judge noted at para. 35(h) of his reasons, the current deeds speak of an existing semi-circular driveway and "there is no way to tell if the roadway/driveway now in existence is in the same place as the driveway in existence at the time the easements were purportedly created".

[11] As the application judge noted, at para. 28:

On the record before me I am not able to make that determination [i.e. the validity of the easements]. I have been provided, in terms of title documents, only the parties' current deeds. I am unable to effectively declare the Applicants' easements to be valid without being able to trace the easements back to their roots.

[12] Evidence ought to have been placed before the court as to the title history of the properties involved. In particular, evidence ought to have been adduced as to the genesis of Brewers Close and, to the degree that it was possible to do so, the precise dimensions and location of it, as reflected in the title documents or as established by extrinsic evidence.

[13] As this court noted in Fallowfield v. Bourgault, 68 O.R. (3d) 417 (C.A.), at para. 10:

Where 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. This principle is set out in Halsbury's Laws of England, 4th ed., vol. 14 (London: Butterworths, 1980), at p. 26, para. 54:

The nature and extent of an easement created by express grant primarily depend upon the wording of the instrument. In construing a grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances.

[Footnotes omitted]

[14] As the application judge also pointed out, it was unclear on the record whether Brewers Close was described in the original grants of the properties or whether it arose subsequently: at para. 25. Indeed, it is possible that Brewers Close was never referred to in any of the title documents prior to the title documents by which the parties here obtained title to their properties. It may be that, prior to that time, Brewers Close was simply a road that existed without any formal recognition. In that case, extrinsic evidence might be required to establish the extent of Brewers Close at the time of the original grant.

[15] While the application judge was alert to these deficiencies in the record, unfortunately, it does not appear that he raised his concerns with counsel. Rather, he said, in his reasons at para. 29:

Having said that, the absence of evidence demonstrating a sufficient root of title was not an argued issue during the hearing of the application. I was essentially, though not explicitly, asked to assume that the easements can be traced back to an original grant and, I gather, that the language used in the current deeds has simply been passed down from deed to deed.

[16] The application judge then went on to consider whether the easements were vague for uncertainty and, if not, whether the respondents had substantially interfered with the appellants' use of the easements. In light of the deficiencies in the record, the application judge ought not to have proceeded to deal with those issues because, without a proper evidentiary foundation, any conclusions on those issues would be potentially flawed. Without knowing the extent of the easement, as established by the original grant, one could not determine whether there was substantial interference with that easement.

[17] Given the deficiencies in the evidentiary record, we see no alternative but to set aside the application judge's order and return the matter to the Superior Court of Justice for a fresh hearing, or a trial of the issues, as the parties may be advised.

[18] There are many other questions which need to be examined to determine whether there is or is not a valid easement in favour of the cottagers. All agree that the language describing the easement in the existing deeds is very poor. Does the language of the grant of the easement to the Piesanens even give them an easement, given that they are located south of the respondent's property? Does the deed in favour of the respondents make their property subject to easements in favour of the other cottagers? If not, what are the consequences of that absence? Does the Registry Act, R.S.O. 1990, c. R.20 have anything to say about the expiry of easements in those circumstances? Was there compliance with any part lot subdivision control provisions at the time of the original grant? If not, the grant of the easement may not be valid. (See Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116).

[19] Finally, of course, is the question whether, if the easement is established, the actions of the respondents constitute a substantial interference with the rights under it, in light of this court's decision in Weidelich v. de Koning, 2014 ONCA 736, 122 O.R. (3d) 545.

Conclusion

[20] The appeal is allowed and the order of the application judge is set aside. The matter is remitted to the Superior Court of Justice for a fresh hearing or for a trial of the issues. In light of the problems with the evidentiary record, for which all parties bear responsibility, we would not make any order regarding the costs of the appeal or of the original application.

David Watt J.A. G. Pardu J.A. I.V.B. Nordheimer J.A.

Appendix A

[Diagram showing the location of the five cottage properties, the route of Between Lakes Trail and the former route of Brewers Close]