COURT FILE NO.: 11-51706

DATE: 20121105

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KIMBERLY MOORE

Applicant

– and –

THE REPUBLIC OF GREECE

Respondent

Patrick A. Thompson, for the Applicant

Nicolas P. Katsepontes, for the Respondent

HEARD: September 19, 2012

REASONS for decision

POLOWIN J.

[1] The Applicant, Kimberly Moore (“Moore”) seeks an order declaring that the interest in land as described in Deed Instrument Number CR369123 which created a right of way (the “Right of Way”) of nine feet in width by thirty two feet across the most southerly part of 72 MacLaren in favour of the owner of Part of lot 62, Plan 15558 South Side of MacLaren Street, being Parts 4,5,6, and 8, Plan 4R2188, subject to and together with Right of Way as described in Instrument Number CR705891; OTTAWA/NEPEAN Registry Office #4 PIN (04117-033) Land Titles, does not prohibit her as owner of 72 MacLaren from using the said property as deemed appropriated as long as said actions do not impede access to anyone having an interest in the said Right of Way. These actions include removing the fence that is currently installed on the boundary of the Right of Way and erecting gates on the property of 72 MacLaren at both the east and west ends of the Right of Way.

[2] Stated simply, Moore wishes to remove a fence which presently demarks the Right of Way and install gates on the east and west sides of the Right of Way on her property. According to Moore this will allow her to have the full use and enjoyment of her property, to control and maintain her property and not incur liabilities for failing to do so, and will provide her with security from trespassers.

Factual Background

[3] Moore is the registered owner of the land and premises described as Part of Lot 63, Plan 15558, South Side of MacLaren Street, as in Deed Instrument Number CR369123; together with and subject to Deed Instrument Number CR369123, OTTAWA/NEPEAN Registry Office #4 PIN (04117-0034) Land Titles and otherwise known by civic address 72 MacLaren Street (“the Moore Property”). Moore acquired this property on June 30, 2011 from Mathew and Jean McGrath (“the McGraths”).

[4] The Respondent, the Republic of Greece (“Greece”) is the owner of the land and premises described as Part of Lot 62, Plan 15558, South Side of MacLaren Street, Parts 4, 5, 6 and 8, Plan 4R2188, subject to and together with CR705891; OTTAWA/NEPEAN Registry Office #4 PIN (04117-00330) Land Titles and otherwise known by civic address 80 MacLaren Street (“the Greek Embassy”). Greece acquired this property on March 25, 1977.

[5] The Right of Way runs from the rear of both the Greek Embassy and the Moore Property and also extends all the way to Macdonald Street along the backyards of a number of other properties that back on to the Right of Way. The Right of Way is described and set out in both deeds to the Moore Property and the Greek Embassy and in practical terms allows Greece the right to traverse over the Moore Property to access Macdonald Street.

[6] The Right of Way has been in existence since 1925 (created in Instrument Number 177179). The Right of Way has been repeated in every deed and mortgage registered on title for both the Moore Property and the Greek Embassy since 1925, as well as other properties along MacLaren and Gilmour Streets that back on to the Right of Way. However, as the Right of Way runs in a westerly direction from the Greek Embassy, to Macdonald Street, no other property owners along the Right of Way will be affected by the erection of a gate on the west side of the Moore Property.

[7] The Right of Way ends at the Greek Embassy. It is only nine feet wide but it provides access to the rear parking area of the property. This rear parking area can only be accessed by the Right of Way.

[8] In her Affidavit dated June 14, 2012, Moore stated that despite the Right of Way, she remains the owner of the property and incurs liabilities and expenses associated with it including property taxes and house insurance. She asserts that as owner of the property subject to the Right of Way, she must ensure its safety. She stated that the Right of Way creates an alley in her yard and that on several occasions she contacted police to intervene with respect to people sleeping in the alley and had to remove needles used for drug use. Specifically, needles were cleaned on July 24, 2011 and the police were contacted in the early hours of September 3, 2011. Further, as detailed in her Affidavit dated August 15, 2012, there was another incident on July 29, 2012 where two women, who were poorly kept and appeared homeless were on the back portion of her property on the Right of Way and refused to leave. Moore felt concerned for her safety. She went inside and came back out with her dog (a boxer) on a leash. The women left. It is Moore’s position that the current state of the property does not afford her the opportunity to control access to her property or ensure its safety.

[9] In addition, it is Moore’s position that the Right of Way is used infrequently by the Embassy. It is her evidence that she observes the Right of Way whenever she is at home (during weekdays before and after work, at lunch time and when sick, or on holidays and on weekends). It is her evidence that the Right of Way is primarily used by the same one car with the same driver who parks at the back of the Embassy property every weekday, in the morning, between 7:15 am to 7:45 am and leaves before 5:30 pm. Based on her observations, the car does not exit and re-enter during the day. Moore also noted occasional use by trades people doing work at the Embassy Property, or during large meetings which, based on her observations, occur every three to four months. She has rarely seen the Right of Way used during the weekend. Further, she stated that there is parking space in the front of the Embassy property and it is Moore’s evidence that this is regularly used.

[10] Efthichia Psimenatos (“Psimenatos”) provided evidence on behalf of the Respondent. She had been a member of the administrative staff of the Greek Embassy from 1976 until her retirement in November 2011. In her Affidavit dated August 14, 2012, she stated that the Right of Way allowed access to automobiles to the parking lot at the rear of the Greek Embassy, where staff, visitors and service providers parked their vehicles. It also allowed access to the Royal Canadian Mounted Police (the “RCMP”) to provide security to the Embassy. She stated that the Right of Way was constantly used on a daily basis by herself, other Embassy staff, visitors and service providers to the Embassy including patrols by the RCMP. Usage was seven days a week.

[11] Lambros Kakissis (“Kakissis”), the Deputy Head of Mission and First Counsellor with the Embassy of Greece in Ottawa, also provided evidence on behalf of the Respondent. He assumed his post with the Embassy in Ottawa on August 10, 2010. He stated that the Embassy of Greece relies on the Right of Way for access to the rear of its property for its staff, visitors and service providers. In addition, the access provided by the Right of Way allows the RCMP access to provide security to the Embassy and its staff. According to Kakissis, the way is used seven days a week during and after business hours. He stated that the RCMP has never informed the Embassy of any incident posing risks to its security. He further stated that the Right of Way is critical to the operation of the Embassy for access and security reasons as it provides the sole access to the parking lot at the rear of the property.

[12] In addition, in his responding Affidavit dated September 6, 2012, Kakissis stated that the Embassy of Greece requires twelve parking spaces for twelve staff. He noted that during the months of June, July and August most of the staff is absent while on summer holidays and remaining employees can use the parking spaces in front of the Embassy which are more accessible. Further, the summer months are also a holiday period for the Greek community of Ottawa many of whom return to Greece. As a result, there is only a small number of visitors to the Embassy’s Consular Office. Kakissis noted that parking is needed for service staff, the Ambassador’s visitors and for meetings in the Embassy’s Press and Economic Office.

[13] In addition to the factual background set out above, it must be noted that Greece commenced legal proceedings in July 1992, against the previous owners of the Moore Property, the McGraths, concerning access to the Right of Way by Greece (hereafter the “1992 litigation”). This litigation commenced to prevent denial of access to the Right of Way by the McGraths. Minutes of Settlement were entered into between Greece and the McGraths in November 1992. The Minutes of Settlement provided as follows:

DECLARATION

1. Judgment shall issue forthwith for a declaration that the Applicant is entitled to the use, benefit and privilege of a right-of-way over the most southerly nine feet (the “Right-of-Way”) of the Respondents’ land municipally known as 72 MacLaren Street, ottawa [sic] and legally described as the westerly thirty-two feet from the front to rear of Lot 63, Registered Plan 15558, in the city of Ottawa, in the Regional Municipality of Ottawa‑Carleton (the “Land”). The balance of the Application shall be adjourned sine die be brought back on four days notice.

ESTABLISHMENT OF RIGHT-OF-WAY

2. The Applicant shall be responsible for establishing the Right-of-Way over the Respondents’ land. The Applicant may pave the Right-of-Way but it is expressly agreed and understood as between the parties that the Applicant shall not be under any positive duty or legal liability to pave the Right-of-Way. If the Applicant paves the Right-of-Way it shall do so in a good and workmanlike manner.

REMEDIAL WORK

3. The parties shall co-operate to ensure that the establishment of the Right-of-Way and the completion of the remedial work specified in this agreement is accomplished in a reasonable manner and within a reasonable time, having regard to all the circumstances of the case. Subject to agreement of the parties to the contrary, the Applicant shall be responsible for all costs of the establishment of the Right-of-Way and the remedial work. The remedial work shall consist of the building of a vinyl coated chain link fence at the rear of the Respondents’ Land to mark the line between the Right-of-Way and the remainder of the Respondents’ Land. Upon establishment of the Right-of-Way and completion of the remedial work to the satisfaction of the parties the balance of this Application shall be dismissed without costs.

[14] In furtherance of this settlement, Mercier J. in a Judgment made on consent, dated November 26, 1992, ordered that Greece is entitled to the use, benefit and privilege of the Right of Way. Finally, there was an Order of Soubliere J., dated March 10, 1994, which provided at paragraphs 1-4:

1. THIS COURT DECLARES that the survey completed September 3, 1993 by J.G. Payette LTD. setting out the limits of the right-of-way over the most southerly nine feet of the Respondents’ land municipally known as 72 MacLaren Street, Ottawa and legally described as the westerly 32 feet from the rear of Lot 63, Registered Plan 15558 in the City of Ottawa in the Regional Municipality of Ottawa-Carleton, is true and accurate and binding upon the Respondents, and their successors in title, for all purposes, including enforcement of the Judgment dated November 26, 1992, of The Honourable Mr. Justice Mercier and the Minutes of Settlement executed November 4, 1992 and November 11, 1992 respectively on behalf of the Applicant and Respondents.

2. THIS COURT ORDERS that the Respondents, or anyone acting on their behalf, be and they are hereby restrained from interfering in any way with the Applicant in proceeding to open up the aforesaid right-of-way forthwith.

3. THIS COURT ORDERS that the Applicant do proceed, on or before June 1, 1994, to erect, at its costs, the fence required to be erected pursuant to paragraph 3 of the Minutes of Settlement referred to in paragraph 1 hereof.

4. THIS COURT ORDERS that the Applicant shall be responsible for the costs of the survey referred to in paragraph 1 hereof.

[15] Moore was aware of the Right of Way prior to the closing of the purchase of the property from the McGraths. In fact she brought an Application on June 27, 2011, since withdrawn, to extinguish the Right of Way pursuant to the Registry Act, R.S.O. 1999 ch. R. 20. However, the McGraths did not inform her of the 1992 litigation or provide her with a copy of the Minutes of Settlement or the Orders referenced above. She was only provided with these when she inquired about same after she had purchased the property and after the 1992 litigation has been raised as an issue by counsel for Greece in the present litigation.

Submissions

[16] It is submitted for Moore that the previous judicial decisions involving the Right of Way do not operate as an estoppel in this dispute. The previous litigation related to the fact that the McGraths were challenging the use of Greece’s Right of Way. It did not relate to the servient tenement owner’s right to fully enjoy the property, nor did it limit or deny those rights, nor did it deal with the right to erect fences. It is submitted that because the current state of affairs did not exist at the time of the 1992 action, an element that is essential to sustain a plea of res judicata is lacking and this Application can be heard and determined on its merits.

[17] It is further submitted that erecting gates at the eastern and western ends of the Right of Way is both a reasonable and appropriate use of Moore’s property since: (1) the current status quo prevents her from the reasonable use and enjoyment of her property; and (2) erecting gates will allow her to reasonably use and enjoy her property. Currently Moore is unable to use the land as she pleases. The fence (hereafter referred to as the “the litigation fence”) that divides her property prevents her from using and properly maintaining the strip of land upon which the Right of Way is located. Her enjoyment is further reduced by trespassers and drug users coming onto the Right of Way, the accumulation of trash, including needles and syringes on the Right of Way and damages done to her property (a cut in the litigation fence).

[18] Relying on the Line Fences Act, RSO 1990, ch. 17, s. 3 and the cases of Siple v. Blow, [1904] 3 O.W.R. 855 (C.A.) (“Siple”) and Pettey v. Parsons, [1914] 2 Ch 653 (Ch. D.) (Eng. C.A.) (“Pettey”) it is submitted that a property owner has a right to maintain gates at each end of a Right of Way so long as there is reasonable access to the Right of Way.

[19] In addition, it is the position of Moore that the erecting of gates at the eastern and western ends of the Right of Way does not prevent Greece from its reasonable and legitimate use of the Right of Way. Firstly, it is noted that the wording of the Right of Way permits Moore to erect gates. The wording of the Right of Way states “together with the benefit of and subject to the burden of a right of way for all ordinary purposes.”

[20] Further it is submitted, relying on the test set out in Fallowfield v. Bourgault (2003), 2003 4266 (ON CA), 68 O.R. (3d) 417 (C.A.) (“Fallowfield”), that the erecting of gates is not a substantial interference with Greece’s ordinary use of the Right of Way. Even with gates, Greece would continue to have access to the Right of Way by means of its own set of locks or automatic gates system if Greece chose to install such a system. Erecting gates will only result in Greece having to take action (either manually or automated) to open and close the gate. Such “inconvenience” does not amount to a “substantial interference” such that Moore is unable to use the Right of Way for its ordinary purpose. It is submitted that Greece is asking the court to conclude that its use, benefit and privilege over the Right of Way trumps Moore’s right to use and enjoy the land she owns, is liable for and for which she pays taxes. Finally it is submitted that erecting gates will increase security for both Moore and Greece.

[21] For Greece it is submitted, with respect to the 1992 litigation, that the concept of estoppel has application to parties such as Greece who have been granted a right of way and are involved in a right of way dispute. Estoppel operates to protect previous arrangements and prevent inequities in terms of preserving right of way arrangements.

[22] Relying on Fallowfield, it is submitted that in interpreting the meaning and intent of an express easement, or right of way, 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. Further the ancillary rights to a right of way or easement includes the right not to have the right of way obstructed with a fence or any other obstruction that impacts upon the enjoyment of the right of way. It is noted that a right of way can be so extensive as to constitute a loss of possessory control by the servient tenement of the right of way to the benefit of the dominant tenement. This is entirely a construction of the wording of the right of way, the intention of the parties and the history of use associated with the right of way.

[23] In the case at bar, Greece referred to the previous litigation, the Minutes of Settlement and the Orders. These provide for a fence to separate the Right of Way from the rest of the McGrath’s (now the Moore) property and the paving of the Right of Way, all of which are clear evidence that there was to be some loss of possessory control by the servient tenement. It is submitted that Moore intends to use her full backyard for her dog, her friends and to entertain guests. However, it is stated that this was not the intention of the parties, which was to provide Greece unfettered use of the Right of Way to go back and forth from the parking lot at the rear of the Moore Property to Macdonald Street.

[24] Finally, Greece has relied on a number of cases where courts have refused to allow easements or rights of way to be gated (see Kozik v. Partridge, [2000] 36 R.P.R. (3d) 254 (Ont. Sup. Ct.), Livingston and Lois Livingston (c.o.b. Piney Point Resort) v. Millham, 2005 BCSC 1292, 35 R.P.R. (4^th) 258 and Donald v. Friesen, [1990] O.J. No. 3263 (Ont. Dist. Ct.), reviewed on other grounds 1997 Carswell Ont 389 (Ont. C.A.).

The Law

[25] Absent any restrictions, a landowner has the right to use his or her land as she pleases, so long as such use does not cause a nuisance to other land. However, the law of easements recognizes that a natural right incidental to the ownership of one piece of land (the servient tenement) may be curtailed in favour of other land (the dominant tenement), the rights of which are correspondingly increased. Easement and rights of way are rights or interests of use or passage of persons, vehicles and animals over another person’s owned land.

[26] Access to land may be created by the registration of an express grant of right of way. The case at hand involves such an express grant of right of way. As indicated by the English Court of Appeal in Re Ellenborough Park (1955), [1956] Ch. D. 131, the nature and extent of an easement created by an express grant depends upon the wording of the instrument that created it. Further, Evershed M. R. quoted from Dr. Cheshire’s Real Property, 7th ed. and stated at page 170:

After pointing out that “one of the fundamental principles concerning easements is that they must not only appurtenant to a dominant tenement, but also connect with the normal enjoyment of the dominant tenement” and referring to certain citations in support of that proposition the author proceeded: “We may expand the statement of the principle thus: a right enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and is reasonably necessary for the better enjoyment of that tenement...[Emphasis added.]

[27] In Laurie v. Winch, [1953] S.C.R. 49, the Supreme Court of Canada considered a grant which was silent as to the dominant tenement, location and termini of the way and the nature and extent of the rights conveyed. The court stated the following at para. 26:

With respect to the nature and extent of the easement granted, it is to be observed that the grant is one of a right-of-way simpliciter with no express restriction as to use. Just as the circumstances existing at the time of the grant may be looked at for the purpose of ascertaining the intention of the parties as to the dominant tenement and as to the location and termini of the way, the circumstances may also be looked at for the purpose of construing the conveyance as to the nature and extent of the rights conveyed.

[28] MacKenzie v. Matthews, [1998] 21 R.P.R. (3d) 307 (Gen. Div.), involved an application by the MacKenzies to clarify the rights of the parties respecting a right of way. The Matthews and the MacKenzies owned adjoining lakefront properties. A right of way on the MacKenzie property was used by the owner of two islands, the Matthews and the Kochs, to access the islands. The previous owner of the Matthews property had granted an easement to provide a turnaround area for vehicles using the right of way. The MacKenzies sought to fence off the right of way and install a gate to prevent anyone other than the owners of the islands from using it. The right of way had been granted in 1980 but not by the MacKenzies. About a year later there was an agreement by the then owner of the MacKenzie property not to grant a right of way to the public at large. The issues on the application were the installation of a dock, parking on the right of way, access to the turnaround and the erection of a gate and fence.

[29] Ferguson J. outlined the general law. He stated the following at paragraphs 18-21:

The applicable legal principles were set out in Golisky et al. v. Romanuik, 1951 337 (ON CA), [1951] O.W.N. 401 (C.A.):

The limits of the right are determined by reference to the language of the express grant creating the right of way. In a case where that language admits of reasonable doubt as to the nature and extent of the rights the Court may look to the circumstances existing at the time of the grant. (at p. 403)

In my view this is a case where the surrounding circumstances must be considered.

The case-law has also established that the grant of an easement includes a grant of ancillary rights which are reasonably necessary to the use and enjoyment of the easement which was contemplated by the grantor: Smith et al. v. Morris 1935 56 (ON CA), [1935] O.R. 260 (C.A.) at p. 265; Kasch v. Goyan (1993), 32 R.P.R. (2d) 297 (B.C.C.A.) at p. 300. The court must determine the scope of those ancillary rights by taking into account all the circumstances.

The ancillary rights of an easement include the right to make repairs which are reasonably necessary to the use of the easement: Kasch; Jones v. Pritchard [1908] 1 Ch. 630. The ancillary rights also include the right to remove obstacles such as trees if that is reasonably necessary to the use of the easement: Donald et al. v. Friesen et al. (1990), 1990 6646 (ON SC), 72 O.R. (2d) 205 (Dist. Ct.). Depending on the circumstances, the ancillary rights may also include the right to construct and maintain structures reasonably necessary to the use of the easement: Kasch.

[30] Ferguson J. rejected the contention of the MacKenzies that the grant only allowed the registered owners of the two islands to use the right of way. He concluded, taking the grant and the later agreement together that the right of way could be used by the registered owners and the occupiers of the islands and anyone to whom they had given permission to cross the right of way for the purpose of gaining access to one of the islands. As history revealed that there was a dock at the end of the right of way when it was granted, that the purpose of the easement was to provide access to the islands and that the islands could only be reached by boat, Ferguson J. concluded that the original easement contemplated the use of a dock.

[31] Ferguson J. also concluded that the grant included the right to park vehicles on the right of way for the purpose of gaining access to the islands and that the users were entitled to the use of the right of way to access the turnaround. A fence was allowed to be erected by the MacKenzies (the servient tenement) to separate their property from the Matthews mainland property so long as it did not bar access to the turnaround. The MacKenzies had also requested that it be allowed to erect a gate at the end of the right of way and proposed to give a key to each of the island owners, Ferguson J. held that the erection of a gate was not justified at that time.

[32] The MacKenzies appealed this decision to the Court of Appeal in MacKenzie v. Matthews, 1999 19931 (ON CA), [1999] 46 O.R. (3d) 21, (“MacKenzie”). The following was stated at paragraph 12:

There is no mechanical way to determine what constitutes an unreasonable demand upon an easement. Each case depends upon both a proper construction of the instrument creating the easement and the factual circumstances: see: Laurie v. Winch, 1952 10 (SCC), [1952] 4 D.L.R. 449 at 455 (S.C.C.); National Trust v. White, [1987] 1 W.L.R. 907 at 913 (Ch.D.). It is important to consider the language of the conveyance creating the easement, its purpose and the circumstances of its creation, the history of its development in conjunction with the vehicle turnaround, and the circumstances of its use. In my view, these factors lead to the conclusion that access to and from the vehicle turnaround on the Matthews property is a reasonable ancillary use, provided that such use is in relation to access to the islands by those who enjoy the right to use the easement for that purpose. The burden on the appellants' property is not increased. Access to the vehicle turnaround area may be had only for a purpose identical to that of the right of way at issue: namely, to gain access to the islands. Access to and from the vehicle turnaround enhances the easement for its intended purpose; quite the contrary of the situation in the cases cited by the appellants where the easement was being used to enhance the use or enjoyment of some property other than the one the easement was intended to benefit.

[33] The Court of Appeal upheld the decision of Ferguson J. except in relation to the gate. The following was stated at paragraphs 15 and 16:

It is apparent from the reasons of the applications judge that he found that there was evidence of unauthorized use, and that the issue was how, not whether, such unauthorized use was to be stopped. In my view, it is important that there be a final determination of the rights of the parties. An unlocked gate would constitute a minimal interference with the right of the island owners and their guests, but at the same time would discourage others from entry onto the appellants' property: see Siple v. Blow (1904), 8 O.L.R. 547 at 554 (C.A.). I would vary the judgment to permit the appellants to erect an unlocked gate at the top end of the right of way where it meets Chalet Lane. I would add that the appellants' request for permission to erect a locked gate should be rejected as it would significantly inconvenience the island owners and, particularly, their guests in a manner not contemplated by the grant and not required by the circumstances.

CONCLUSION

For these reasons, I would vary the judgment by deleting paragraph 6 and substituting in its place the following:

1. THIS COURT ORDERS that the MacKenzies have the right to erect an unlocked gate blocking access to the right of way at the north end of their property.

[34] The Ontario Court of Appeal set out a test to be applied in cases involving easement in Fallowfield. This was an appeal by the Bourgaults from an order declaring that their fence interfered with access by the Fallowfields to an easement and granting an injunction restraining the Bourgaults from obstructing the easement. The Bourgaults and the Fallowfields were next‑door neighbours. Their houses were four feet apart. When the subdivision was developed, a mutual easement was granted by deeds giving each neighbour an easement for repairs over the two-foot wide strip of land adjacent to the other’s house that ran between their homes. Access to the backyard of the homes was available on the non-easement side of each home. The Bourgaults built a fence that separated their front yard from the Fallowfields’ front yard but it was entirely on their own property that was not subject to the easement. However, predecessors of the Fallowfields had constructed a deck and a patio on the non-easement side of their house, such that access to their backyard on that side was blocked. The application judge held that the test was whether the fence, as constructed, substantially interfered with the easement’s legitimate use. She concluded that it did.

[35] The appeal was allowed. Feldman J.A. wrote for the majority. She stated the following at paragraphs 10 and 11:

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, vol. 14, 4th ed. (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.

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. Halsbury’s explains the concept at p. 10, para. 20, in the following way:

The express grant of an easement is also the grant of such ancillary rights as are reasonably necessary for its exercise or enjoyment. The ancillary right thus implied must be necessary for the use and enjoyment, in the way contemplated by the parties, of the right granted; it is not sufficient that such an ancillary right would be convenient, usual, common in the district or reasonable. The most usual example of such an ancillary right is the right of the dominant owner to enter the servient tenement and execute such repairs upon the subject matter of the easement as are reasonably necessary for the enjoyment of the easement. The dominant owner is entitled to protect his right to enter and repair by preventing the doing on the servient tenement of anything which would materially interfere with or render more expensive or difficult the exercise of the right, and the court will restrain such an interference by injunction. It is no defence to proceedings by the dominant owner to show that he may still exercise his right if he only expends more money or exercises greater skill.

[36] Feldman J.A. held that the application judge erred in law by stating that the test was whether the fence, as constructed, substantially interfered with the easement’s legitimate use. She stated at paragraphs 40-42:

In my view, the application judge erred in law by characterizing the issue and the test in this way. The application judge began with the issue of substantial interference before considering the meaning and the extent of the easement.

Only after the extent of the easement has been determined should the court consider whether what was done constitutes a substantial interference with the intended use and enjoyment of the easement. Where there is no ancillary right to expand the easement beyond the dimensions described in the grant, then as this court stated in Drumonde, at para. 18, a fence constructed on one's own property and not on the easement itself cannot constitute an obstruction of the use of the easement by the other party: "[I]t would be physically impossible for it to interfere with any legitimate use of the right-of-way."

In my view, there is no basis to conclude that the easement as granted includes the ancillary right to enter the easement by crossing over the appellants' property that lies in front of the easement beside the appellants' house. I reach that conclusion for several reasons:

• The wording of the easement is clear and unambiguous and defines the easement with precise dimensions. There is no basis on the wording of the easement to imply an extension of the defined boundaries.

• The easement was so described in the context of houses that were built four feet apart, i.e. in full knowledge of the limitations on access that were created by the placement of the houses and the dimensions of the mutual easement.

• The easement was not intended as a pass-through for equipment to the backyard. At the time of the grant, there was ample space to bring any backyard equipment including for gardening around the other side of the house.

• Although in the current circumstances it might be more convenient for the respondents to bring a wheelbarrow that is wider than two feet onto the easement without tipping it sideways, it is not necessary to do so. There is no evidence to suggest that the two-foot opening is not wide enough to accommodate ladders, smaller wheelbarrows and other equipment that may be necessary to effect repairs.

• It is worth noting that the extent and effect of the mutual easements, as granted, is the same for both neighbours: neither can enter the easement between the houses, either from the front or from the backyard, with a piece of equipment wider than two feet, without permission from the other to cross over a portion of the other's property.

Determination

[37] At the outset it is to be noted that Greece has submitted to the jurisdiction of this court by participating in these proceedings. At no time did Greece claim immunity in these proceedings.

[38] I turn then to the issue of the litigation fence. In her Application, Moore seeks an order that would enable her to remove the litigation fence which is currently installed on the boundary of the Right of Way. It is stated that she is unable to use her land as she pleases and that the fence that divides her property prevents her from using and properly maintaining the strip of land upon which the Right of Way is located. It is her view that the litigation fence eliminated her use and enjoyment of the property. In cross-examination, Moore stated that she wants the full use of her property to the back for herself, her dog, her friends and their children, and to entertain.

[39] This may very well be. However, as I indicated to Moore and her counsel during the hearing of this Application, the issue with respect to the litigation fence has already been dealt with and determined by the court. The 1992 Minutes of Settlement provided for the building of a vinyl coated chain link fence to mark the line between the Right of Way and the remainder of Moore’s land. Justice Soubliere ordered Greece to erect this fence pursuant to the Minutes of Settlement at its cost. Greece did so. As I indicated to counsel, no authority was provided to support this court’s jurisdiction to make an order which would allow the dismantling of the agreed upon and court ordered fence.

[40] Further, the security issues raised by Moore do not support the removal of the litigation fence. In fact, the litigation fence provides more security from trespassers. In addition, it is to be noted that the Right of Way is narrow, only nine feet wide. Vehicles pass over it. The litigation fence ensures that the Right of Way is demarcated such that it can properly be maintained (i.e. for snow removal) and that no one strays from it on to the remainder of Moore’s property. In my view the issue of the litigation fence is res judicata.

[41] However, during the course of the hearing, Moore’s counsel raised that she might wish to have a more aesthetically pleasing fence, as opposed to a vinyl coated chain link fence. I invited the parties to discuss this issue as “good neighbours”. On September 27, 2012 the court received confirmation that Moore and Greece reached an agreement for the replacement of the litigation fence.

[42] Moore seeks an order that would enable her to erect gates at the westerly and easterly end of the Right of Way that would be locked or have an automated key card system. It is her position that there is no evidence that demonstrates how such gates would make it impossible or difficult to use the Right of Way. Her right as an owner of the property should not be forfeited to Greece’s convenience.

[43] In determining this issue, regard must be had to the express wording of the Right of Way. The Right of Way is described and set out in both deeds to the Moore Property and the Greek Embassy. The Right of Way was described in the 1958 deed to the McGraths.

...Do grant unto the said grantees in fee simple, as joint tenant and not as tenants in common, All and Singular that certain parcel or tract of land and premises situated, [description of the land] together with the benefit of and subject to the burden of a right of way for all ordinary purposes, nine feet in width and extending from the westerly boundary of Macdonald Street westerly across the most southerly nine feet of the Lots Number 65, 64, 63 and 62 on the south side of MacLaren Street aforesaid, and together with and subject to a right of way in common with the owners from time to time of the lands immediately to the west of the above described parcel of land...

[44] It is the position of Moore that the nature, scope and extent of this easement was not changed by the 1992 and 1994 court Orders and that the wording of the easement allows Moore to erect gates as long as the benefit provided to Greece is not interfered with.

[45] With respect to the nature and extent of the easement granted, the grant is one of a right of way “for all ordinary purposes” with no express restrictions as to use. But as the case law indicates the court must consider not only the language of the conveyance creating the easement, but also its purpose and the circumstances of its creation, the history of its development and the circumstances of its use.

[46] In the case at hand the Right of Way has been in existence since 1925. It has been repeated in every deed and mortgage registered on title for both the Moore Property and the Greek Embassy since 1925, as well as the other properties along MacLaren and Gilmour Street that back onto the Right of Way. The Right of Way has functioned as a back “lane” allowing vehicle access to property owners to parking or to the rear of their properties.

[47] The Moore Property and the Greek Embassy are located in an area in the City of Ottawa know as the Golden Triangle. The court was provided with the Affidavit of Rob Read, dated August 14, 2012. Mr. Read is the owner and operator of Read Abstracts Ltd. an Ottawa-based title search firm. He has been searching titles since 1969. His experience is set out in his Affidavit and is well known to the court. In his Affidavit he stated that there are similar right of ways that constitute right of ways allowing access to the backyards of homes in the Golden Triangle. He stated that such lanes or right of ways are a historical part of land use and land title history in the Golden Triangle. They are also the only means that many property owners can have to access parking or the rear of their properties. Mr. Read stated that the proposed changes contemplated by Moore are not consistent with the historic land use practices in the Golden Triangle.

[48] Account must also be taken of the 1992 litigation. The Right of Way on Moore’s property is nine feet by thirty-two, feet but is essentially part of a lane that leads to Macdonald Street. It allows vehicles to access the Greek Embassy back parking lot. There is no other entry to this parking lot. In the early 1990’s the McGraths put up a fence, planted grass and blocked Greece’s access to the Right of Way. Litigation ensued and the minutes of settlement and orders have been set out above.

[49] As a result of the 1992 litigation, Mercier J. ordered that Greece was entitled to the use, benefit and privilege of the Right of Way. The Right of Way was surveyed and its limits were set out and declared in the Order of Soubliere J. The McGraths and Greece agreed that the Right of Way could be paved and that the litigation fence would be erected. Soubliere J. ordered that the litigation fence be erected. Further he ordered that the McGraths be restrained from “interfering in any way” with Greece in proceeding to open up the Right of Way. The fence was erected and the Right of Way was paved.

[50] It seems to me clear that the McGraths, by agreeing to the litigation fence and the paving of the Right of Way, conceded a degree of possessory interest or control over the Right of Way. The litigation fence and paving indicate the intent of the then parties that the route or way to the back parking lot of the Greek Embassy was to be clear, easily traversed, without restrictions or impediments.

[51] In fact Greece has enjoyed the unfettered use of the Right of Way or laneway since at least 1994. It is the evidence of Psimenatos and Kakissis, set out more fully above, that the Right of Way has been constantly used by Embassy staff, visitors, service providers to the Embassy and patrols by the RCMP for security. The Right of Way is used seven days a week during and after business hours. It is to be noted that the Applicant did not cross-examine on the Affidavits provided by Psimenatos or Kakissis. While it was Moore’s evidence that generally only one car uses the Embassy back parking lot, there are photographs in the record that show 2 or 3 cars in the lot. I accept the evidence of Greece with respect to the use of the Right of Way.

[52] The erection of locked gates or gates with an automated key card system would not be workable, feasible or reasonable in the circumstances of this case. It seems to me that the erection of two locked gates, thirty two feet apart on the Right of Way that was intended for access from the Greek Embassy back parking lot to Macdonald Street, and has been used for at least twenty years, unimpeded, for that purpose, would be more than a mere inconvenience for Greece.

[53] In determining the extent of the Right of Way, I have considered the language of the grant, the purpose of the Right of Way, the circumstances of its creation, the history of the development and the circumstances of its use, as directed by the Court of Appeal in MacKenzie. In my view the erection of locked gates would constitute a substantial interference with the intended use and enjoyment of the Right of Way that is, for Greece to have unimpeded access from Macdonald Street to its back parking lot.

[54] Moore has relied on the cases of Siple and Pettey in support of her position that a property owner has the right to maintain gates at each end of a right of way so as long as there is reasonable access to the right of way. However, as noted by the Court of Appeal in MacKenzie, there is no mechanical way to determine what constitutes an unreasonable demand on an easement. Each case depends upon a proper construction of the instrument creating the easement and its factual circumstances. Siple involved a rural property, a right of way 33 feet wide across 28 acres, and the need to prevent cattle from roaming into lands and/or escaping. Little inconvenience was caused to the defendant in that case to open and close these gates.

[55] I am mindful that Moore has raised three instances of concern in her Affidavits. Needles were cleared from the Right of Way on July 24, 2011. The police were contacted in early hours of September 3, 2011 with respect to people sleeping in the Right of Way and on July 29, 2012 two women were on the Right of Way making Moore concerned for her safety. However, these are policing issues which could and should be addressed with the police. Perhaps the advice and assistance of the Ottawa Police and the RCMP should be obtained. Perhaps consideration should be given by Moore and Greece (again, as “good neighbours”) to the addition of lighting that would discourage trespassers from loitering on the Right of Way.

[56] I am also mindful that right of ways or lanes such as the one herein concerned are common in the Golden Triangle in Ottawa. These are a historical part of land use in the area. They are also the only means that many property owners have to access parking or the rear of their properties. Locked gates on these right of ways or lanes would substantially impact the entrance and exit entitlements of landowners entitled to use the right of ways and would not be consistent with the historic land use practices in the Golden Triangle.

[57] In summary, for reasons set out above, the Application is dismissed. Ms. Moore is prohibited from installing gates on the easterly and westerly ends of the Right of Way. She is also prohibited from removing the litigation fence except in accordance with the agreement reached by Greece referred to in correspondence received by the court on September 27, 2012.

[58] If the parties are unable to agree on costs, they are to provide brief written submissions with respect to costs. Greece is to provide its submissions to the court by November 21, 2012. Moore is to respond by December 5, 2012.

The Hon. Madam Justice Heidi Polowin

Released: November 5, 2012