BARRIE COURT FILE NO.: CV-14-0140

DATE: 20150807

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE TORONTO-DOMINION BANK

Applicant

– and –

SHEILA WISE, JORDANNA LIPSON, EARL LIPSON, 2276552 ONTARIO INC. and 1432975 ONTARIO LIMITED

Respondents

J. Daniel Dooley/Samantha Cain, for the Applicant

Michael Simaan for the Respondents Jordanna Lipson, Earl Lipson and 2276552 Ontario Inc.

HEARD: July 23, 2015

REASONS FOR PARTIAL JUDGMENT

DOUGLAS J.

[1] The Applicant makes application for:

(a) An order declaring and determining that an easement of necessity or an easement of apparent accommodation exists over and upon the lands legally described as “PCL 26901 SEC SS; PT LOT 24 CON 8 McKellar PT 3 & 4 42R14981, S/T PT 3 42R14981 AS IN R020477 & LT228666; McKellar” PIN 52128-0262 LT [hereinafter “Part 3”] for the benefit of the lands legally described as “PCL 23654 SEC SS; Pt Lt 24 Con 8, McKellar, PT 2 42R14981; McKellar” [hereinafter “Part 2”] PIN 52128-0263 LT.

(b) Alternatively, an order declaring and determining that an easement of necessity or an easement of apparent accommodation exists over and upon the paved driveway/roadway which travels through the lands legally described as “PT LT 23-24 CON 8 MCKELLAR PT 2 42R3855, PT 1, 2, 3, AND 4 42R9935 AND PT 17, 18, 19, 20, 23, AND 36 42R14980 EXCEPT PT 26, 27 AND 28 42R14980; S/T RO19598” balance of description PIN 52128-0633 LT [hereinafter the “Inn and Tennis Resort Lands”] for the benefit of Part 2.

(c) In the further alternative, an order declaring and determining that an easement of necessity or an easement of apparent accommodation exists over and upon the laneway which travels from Part 2 and across the lands legally described as: “PCL 27712 SEC SS; PT LT 24 CON 8 McKellar PT 1 42R14981; S/T EASEMENT IN GROSS OVER PT 1 42R17447 AS IN LT275129” PIN 52128-0261 LT [hereinafter “Part 1”] to the Inn Road for the benefit of Part 2.

(d) An order declaring and determining that the right-of-way for the benefit of Part 2 entitles the owners of Part 2 to a full, unrestricted and unimpeded use and enjoyment of the Right-of-Way over Part 1, The Inn and Tennis Report Lands or Part 3 for ingress to and egress from Part 2 including their tenants, invitees, servants and agents;

(e) Costs of this Application

[2] The Respondents Sheila Wise and 1432975 Ontario Limited have not filed appearances although Sheila Wise has sworn an affidavit in support of the remaining Respondents’ position on this application in opposition to the relief sought.

[3] The Application frames the issues before me as follows:

(1) When does an easement of necessity arise as a matter of law?

(2) What is the test for an easement of necessity? Is it still the law that the Applicant must show that the landlocked land cannot be used “at all” or is “useless” or “worthless”? Or, is the modern rule now one of “practical necessity”?

(3) When did Part 2 become landlocked and did an easement of necessity arise as a matter of law at that point, regardless of the owner’s alleged intentions?

(4) Does an easement of necessity arise only in favour of purchasers or grantees, at least since the Ontario Court of Appeal ruling in McClatchie v. Rideau Lakes (Township) 2015 ONCA 233, or does an easement of necessity arise in favour of anyone whose land becomes landlocked after severance and sale?

(5) What water access is sufficient to make unnecessary an easement of necessity? Does the court look only to whether an adjoining body of water is navigable? Does the court look to what access the body of water provides to other properties? Or, does the court consider the type, extent and, ultimately, the sufficiency of water access available to a particular property?

(6) What orders may the court make if, for example, the court finds that land has become landlocked but that there needs to be a trial on one or more other issues such as the sufficiency of water access? Is the court entitled to see the property first hand?

Applicant’s Position

[4] The Applicant’s position may be summarized as follows:

(1) Part 2 became landlocked in October 2002 when Ben Wise signed the Transfer, or in April 2003 when the Transfer was registered and Part 1 was transferred to the Respondents Earl and Jordanna Lipson without a right of way having been reserved in favour of Part 2. At that point, an easement of necessity arose in favour of Part 2 over Part 1 by operation of law.

(2) Ben Wise never intended that Part 2 should become landlocked or “water access”. Before he died on January 21, 2003, Ben Wise subdivided a parcel of property into what is now described as Part 1 and Part 2. He intended to create a lot that he could convey to his daughter and son-in-law, the Respondents Lipson. This became Part 1. Part 2 was not intended to remain a “standalone” piece of property with water access only. Ben Wise was obliged by local planning requirements to agree, or “intend”, that Part 2 become a lot addition to the lands on the opposite side of Part 2, the Inn and Tennis Resort Lands which he controlled through a company he owned. Ben Wise “intended” that road access to Part 2 would continue to be through the Inn and Tennis Resort Lands, as had always been the case during his control of the Inn and Tennis Resort Lands. Later, when Ben Wise learned that there would be significant adverse tax consequences if Part 2 merged with the Inn and Tennis Resort Lands, he made a different application. With his death and subsequence conveyances, Part 2 became, unintentionally, a standalone and landlocked lot that Sheila Wise would later mortgage to the Applicant. It was never intended to be a water access only lot for the simple reason that this is completely impractical given the lot’s topography and the location of the seasonal home on Part 2 which is the “highest point” on the lake.

(3) In any event, what Ben Wise, Sheila Wise or the Respondents Lipson allegedly intended is irrelevant. Easements of necessity are easements presumed to have been granted when the land that is sold or retained is inaccessible except by passing over adjoining land retained or conveyed by the grantor. An easement is an implied grant. It arises as a matter of law that has regard to public policy.

(4) The implied grant of an easement of necessity occurs or arises when property cannot be practically used. The law in this area is evolving. It is no longer necessary to show that landlocked property cannot be used “at all”, is “useless” or is “worthless” without an easement of necessity. The rule is now “practical necessity” and the circumstances in which an implied grant of an easement of necessity arises include when an owner of land sells a portion and reserves a part which is inaccessible except by passing over the land sold or conveyed.

Respondent’s Position

[5] The position of the Respondent may be summarized as follows:

(1) Water access it the critical issue. Part 2 continues to have water access, and thus does not meet the test to establish an easement of necessity.

(2) Some of the evidence filed in support of the Applicant’s position described the water access to Part 2 as “impractical”. The meaning of this term in this context is unclear. A trial of this issue is required.

(3) On the issue of water access, it is purchasers not vendors who are entitled to rely on easements of necessity.

(4) The test for an easement of necessity is not inconvenience. The test is “no other way”.

(5) Part 2 is not “useless” as there are numerous properties on the lake that are water access and access up the slope from the water to the building on Part 2 can be constructed.

(6) Of the three options depicted diagrammatically in Exhibit A to the affidavit of Paul Forth sworn July 17, 2015, two, being Options B and C, involve crossing the property of parties who had nothing to do with the transfer which triggered the access issue.

(7) The remaining Option A is quite intrusive regarding Part 1, the Lipson property and ought not to be permitted.

The Facts

[6] The facts are largely agreed.

Part 2

[7] The Respondent Sheila Wise is the registered owner of the subject property (hereinafter “Part 2”). Part 2 was owned by Ben Wise personally until his death at which time it conveyed to Sheila Wise. No relief or costs are sought against Ms. Wise.

[8] The Applicant has a first mortgage on Part 2, registered on March 25, 2008. The mortgage is in default and the Applicant wishes to sell Part 2.

[9] A second mortgage is registered on Part 2 in favour of the Respondent 1432975 Ontario Limited (hereinafter “143”). This mortgage is also in default and the Respondent 143 also wishes this property to be sold. Again, no relief, or costs are sought against the Respondent 143.

Parts 3 and 4

[10] To the east of Part 2 are two parcels of land owned by the Respondent 2276552 Ontario Inc. (hereinafter “227”) effective March 16, 2011 and obtained through Power of Sale proceedings.

[11] Prior to the Power of Sale Parts 3 and 4 were owned by the Inn and Tennis Resort at Manitou Limited (hereinafter “ITRML”) which obtained title to those lands on May 12, 1999 from M-B Investments Limited. Sheila and Ben Wise were the sole officers and directors of that corporation.

The Inn and Tennis Resort Lands to the north

[12] On the same day that Parts 3 and 4 were purchased by 227 under Power of Sale it also gained title to the Inn and Tennis Resort Lands. Prior to the Power of Sale transaction these lands were also owned by ITRML and had been previously owned by MB Investments Limited.

Part 1 Lipson Property to the southwest

[13] Jordanna Lipson is the daughter of Sheila and Ben Wise. She and her husband Earl are the registered owners of Part 1, located to the southwest of Part 2.

Loss of Legal Access

[14] All of the lands described above were owned by John Ewing and transferred to MB Investments Limited, a company eventually controlled by Ben Wise, in 1958.

[15] On June 27, 1988 a portion of the lands conveyed to MB Investments Limited was first registered into Land Titles through a Certificate of First Registration. The remaining holdings of MB Investments remained in the Registry system, including that part of the Inn and Tennis Resort Lands now identified as PIN 52128-0633 (LT).

[16] At the time of registration Part 1 and Part 2 were one parcel (hereinafter the “combined parcel”). The Land Titles application also included Part 13, 42R-10176 which abuts Part 2, and which at the time of registration abutted the combined parcel. What is now Part 3 is wholly contained within Part 13 on 42R-10176. No easement was reserved or granted in favour of the combined parcel over Part 13 during the first registration process.

[17] On August 24, 1989 MB Investments transferred the combined parcel to Ben Wise.

[18] On April 30, 1999 the combined parcel was divided into two parcels of land, Part 1 and Part 2.

[19] Ben Wise passed away on January 21, 2003 and Sheila Wise became the owner of Part 2.

[20] On April 17, 2003 Ben Wise’s estate conveyed Part 1 to Earl and Jordanna Lipson. Although Part 1 abutted on the Inn Road, no right of way to access the Inn Road through Part 1 was reserved by Ben Wise for the owner of Part 2.

[21] The “Wise House” amendment to the Official Plan of the Township of McKellar was adopted by the municipality in 1999. It refers to Part 1 and Part 2. The amendment reads in part:

The subject lands [referring to Part 2] are located adjacent to the Inn and Tennis Resort. The property is accessed via Centre Road approximately five kilometres to the camp and Inn Roads. The best approach to the property is through the Inn property.

[22] There are several public boat launches as well as numerous other water access only properties on Lake Manitouwabing which Part 2 abuts.

[23] The evidence of Sheila Wise is that after the combined lands were divided into Part 1 and Part 2, Ben and Sheila accessed their residence on Part 2 through the driveway over the Inn and Tennis Resort Lands; however, this was through an informal arrangement only. Ms. Wise’s evidence is that she and Ben understood that if the ownership/management relationship between them and the Inn ceased to exist, their residence would lose road access through the Inn and Tennis Resort Lands. At that time, Part 2 was still connected to Part 1 and thus had road access through Part 1 to the southwest.

[24] The parties to this application disagree as to the intentions of Ben and Sheila Wise regarding access to Part 2. The Respondents submit, supported by the Affidavits of Susan Wise and Earl Lipson, that Ben and Sheila Wise discussed different options with Jordanna and Earl Lipson and Ben Wise decided intentionally not to retain an easement over Part 1 for access to Part 2. In other words, he intended that his remaining property, Part 2, would become water access only. Ben Wise then approached his Planner, Jim Dyment, to have the severance and transfer completed and discovered that he could not create another lot on the Lake because it was at capacity. In order for the Wises to be able to divide the combined parcel into Parts 1 and 2 Ben Wise considered adding Part 2 to the Inn and Tennis Resort Lands, and ultimately decided instead to have a s. 118 Land Titles Act restriction placed on Part 2, preventing Part 2 from being sold separately from the Inn and Tennis Resort Lands. The purpose of this restriction was solely to enable the gift of Part 1 to the Lipsons, and not to provide access to the property according to Jim Dyment. The restriction however was never registered and the severance and gifting of Part 1 to the Lipsons went ahead and was registered in April 2003.

[25] The Lipsons maintain that there is no proper road connecting Part 2 to Part 1 that is suitable for consistent car traffic. There is a gravel path and a section of driveway that connect to the Inn Road; however, both are relatively steep and are often washed out by strong rain. According to Earl Lipson, regular use of the driveway by additional vehicles would degrade the conditions and require a substantial increase in maintenance and expense.

[26] In response to this evidence the Applicant notes that Jim Dyment, the Planner who applied on behalf of Ben and Sheila Wise for the severance that created the Lipson property, testified in cross-examination as follows:

(a) In approximately 1989, on behalf of Mr. and Mrs. Wise he did an Application for Severance of land that became the combined parcel. The land to be severed was part of the larger Inn and Tennis Resort Land.

(b) When he drafted the Application for Severance he dealt with the issue of access to the new parcel, although he could not recall how.

(c) In 1999 there was an Official Plan Amendment. Ben and Sheila Wise intended to add a portion of their lands that were designed “waterfront” to the “Inn commercial designation” in the Official Plan. According to Mr. Dyment: “The whole process was intended to enable them to create a lot where it wouldn’t otherwise be permitted by the planning instruments in place”. This lot was eventually conveyed to the Lipsons as Part 1.

(d) In the Application, Mr. Dyment described access to the property as “via Centre Road, approximately five kilometers to the camp and Inn Roads” and wrote that “the best approach to the property is through the Inn property”.

(e) Under “Objectives”, Mr. Dyment wrote that Mr. Wise had obtained a consent from the Parry Sound Area Planning Board to merge the subject lands with the Inn and Tennis Resort.

(f) Mr. Dyment confirmed that “the Application for Consent and also the Official Plan Amendment anticipated that the Wise house would be joined with the rest of the commercial lands at the Inn at Manitou as a single parcel of land”. Mr. Dyment confirmed that this was the intention in relation to the consent obtained prior to Official Plan Amendment No. 3 and prior and to the resubmission for Consent three years later.

(g) Mr. Dyment testified that although he could not specifically recall, it is likely that Mr. Wise resubmitted an Application for Consent because the conditions in the original consent had not been fulfilled and the original Consent had lapsed. The intention of Mr. and Mrs. Wise was, in essence, for Part 2 to be merged with the Inn and Tennis Resort Lands to the north and Part 1 would go to the Lipsons but in order to achieve this objective without triggering a massive capital gain a s. 118 Land Titles Act restriction on Part 2 was proposed and approved to the effect that Part 2 could not be transferred without it being part of the remainder of the parts on the Plan which comprised the Inn at Manitou.

(h) The Planning Board imposed the proposed restriction, meaning that the Part 2 lands could not be sold separately and apart from the lands owned by the Inn at Manitou.

(i) In the Application “access” for both Parts 1 and 2 were noted as “the Inn Road”. The intention was to show what the result would be after the severance.

(j) The section of the Application applicable to “water access only” was not filled out. Mr. Dyment indicated that this section would only be filled out if the intention after the severance was for the property to be accessed by the water. He further testified that nothing was filled out in the section because the intention at the time was that the property would be accessed by road.

(k) After Ben Wise died, the s. 118 Land Titles Act restriction was not registered on title.

The Law

[27] At the commencement of this proceeding the Applicant had the benefit of the Reasons for Judgment of Justice Kane in McClatchie v. Rideau Lake (Township), 2014 ONSC 811. In his Reasons for Judgment Kane J. indicates as follows:

There is a presumption that when land is divided into separate lots with one portion being conveyed to a purchaser, the purchaser will have access to the lot purchased and that it not be landlocked and inaccessible: Dobson v. Tulloch (1994), 1994 CanLII 7239 (ON SC), 17 O.R. (3d) 533 p. 8 and Angers and Honsberger: The Law of Real Property, 2nd ed. (Aurora: Canada Law Book 1985), at p.934.

Easements of necessity are created by implied grants when land previously owned by one person is severed. As stated in Anger & Honsberger, Law of Real Property, 2nd Thomson Reuters Limited, looseleaf, Vol. 2 at 17:20.20(d), “when land owned by one person is divided and part of the land conveyed to another, even if there are no words in the instrument expressly creating an easement, a court will imply that the new owner was granted easements of necessity”.

If a vendor divides his land and sells parcel A to a purchaser, the law will imply a grant of easement over the vendor’s land to permit the purchaser to have access if parcel A is landlocked: Caldwell v. Elia, [2000] 95 A.C.W.S. (3d) 185, (C.A.) at para. 14.

Easements will be created by implication of law when an owner of land grants part of that land and retains other parts himself, namely an easement necessary for the reasonable enjoyment of the land granted is usually implied in favour of the purchaser: Dobson v. Tulloch, supra, p. 8.

A grant of right-of-way of necessity is presumed to have been made when land is sold which is inaccessible except by passing over the adjoining land of the owner. A grant of right-of-way of necessity is presumed when land is severed by sale so that one portion is inaccessible except by passing over the other portion: Hirtle v. Ernest (1991), 1991 CanLII 4297 (NS SC), 110 N.S.R. (2d) 216 at p. 6.

[28] In April of this year the Court of Ontario for Ontario released its decision in the appeal of McClatchie, holding that:

Easements of necessity are easements presumed to have been granted when the land that is sold is inaccessible except by passing over adjoining land retained by the grantor. The concept arises from the premise that the easement is an implied grant allowing the purchaser to access the purchased lot.

[29] The Court of Appeal referred in part in this regard to Dobson v. Tulloch (1994) 1994 CanLII 7239 (ON SC), 17 O.R. (3d) 533 (C.J. Gen. Div.), aff’d 1997 CanLII 14542 (ON CA), 1997 33 O.R. (3d) 800 (C.A.).

[30] The Ontario Court of Appeal continued in McClatchie to observe that necessity is assessed at the time of the original grant and concluded that a road allowance gave the purchaser of the subject property a “legal route, if not an actual route, to access the property”. As a consequence of the presence of the road allowance, the subject parcel was “not landlocked in a legal sense of the term, thereby avoiding the creation of an easement of necessity”.

[31] According to Halsbury’s (as cited in Dobson v. Tulloch (1994) 1994 CanLII 7239 (ON SC), 17 O.R. (3d) 533):

There is a distinction of great importance between easements of necessity and easements which are merely necessary for the reasonable enjoyment of the property granted, for where an owner of land grants part of the land and retains other parts himself all easements for reasonable enjoyment are usually implied in favour of the part so granted; but such easements are not raised by implication in favour of the part retained unless they are easements of a much more restricted class, namely easements of necessity without which no enjoyment at all would be possible.

[32] According to Goddard’s Treatise on the Law of Easements, 6th ed. (6th ed. Stevens and Sons, Limited, 1904) at p. 359:

Rights of way of necessity are acquired by implied grant. A grant of a way of necessity is presumed to have been made whenever land has been sold which is inaccessible except by passing over the adjoining land of the grantor or by committing a trespass upon the land of a stranger, or when an owner of land sells a portion and reserves a part which is inaccessible except by passing over the land sold. This species of right has been recognized from very early times, and is said to depend upon the principle that when a grant is made, every right is also presumed to have been granted, without which the subject of the grant would be useless. This principle may well be applied to the case of a grant of landlocked land, for the grantor then gives the way of necessity; but the case is different if he reserves the landlocked soil, for then it is not he but the grantee of the land who must be presumed to grant the way, and it is difficult to see why the grantor, who does not expressly reserve a way for himself, should become entitled to a way of necessity under an implied grant, since a man who sells land and reserves an adjoining house does not become entitled by implied grant to a right to light for windows overlooking the land unless he expressly reserves such an easement in the Deed of Conveyance: it may be that the right is given on the ground of public policy, that the land may not be rendered useless and unprofitable, but whatever may be a principle upon which the right is presumed to have been granted, the law has always and in every case annexed a right of way of necessity to the ownership of landlocked ground when that and the surrounding land have been severed by sale.

A way of necessity can only be acquired when a landowner has no other way to his ground. It has sometimes been thought that a way of necessity could be claimed if a person had none but an inconvenient way to his land, and this view has been supported ….

[33] There is authority for the proposition that an implied grant of an easement of necessity may be found even where no easement is apparent at the time of grant (see Fullerton v. Randall 1918 CanLII 415 (NS CA), 1918 44 D.L.R. 356, 52 N.S.R. 354 (C.A.).

[34] As to navigability a body of water may be characterized as navigable if it is generally and commonly useful to some purpose of trade or agriculture or susceptible of use for purposes of commerce or possess a capacity for valuable floatage in the transportation to market of the products of the country through which it runs. From Harrison v. Fite, 148 F.71 (1906):

It should be of practical usefulness to the public as a public highway in its natural state and without the aid of artificial means. A theoretical or potential navigability or one that is temporary, precarious and unprofitable is not sufficient. While the navigable quality of a watercourse need not be continuous, yet it should continue long enough to be useful and valuable in transportation and the fluctuations should come regularly with the seasons, so that the period of navigability may be depended upon. Mere depth of water, without profitable utility, will not render a watercourse navigable in the legal sense, so as to subject it to public servitude, nor will the fact that it is sufficient for pleasure boating or to enable hunters or fisherman to float their skiffs or canoes. To be navigable a watercourse must have a useful capacity as a public highway of transportation.

[35] Navigability alone may not be the test. A lake which is not navigable, but which is equipped, for example, with a public boat launch may well provide sufficient access (see Dobson v. Tulloch).

[36] Where there is an issue as to whether the easement should be relocated, a reference may be directed for that purpose (see Dobson v. Tulloch at para. 61).

[37] In Hirtle v. Ernst the Nova Scotia Supreme Court quoted from Goddard (as above) and observed that:

A grant of a right of way of necessity is presumed to have been made when land is sold which is inaccessible except by passing over the adjoining land of the owner. This situation can exist when land is severed by sale resulting in one portion being inaccessible except by passing over the other portion. Thus, the grant of a right of way of necessity is presumed when land is severed by sale so that one portion is inaccessible, except by passing over the other portion.

[38] For landlocked lots the existence of absolute inaccessibility giving rise to an absolute necessity for access is a fundamental requirement of a right of way of necessity; however, there is reason to believe that this broad statement does not necessarily apply to lots which border on or are part surrounded by water (Hirtle v. Ernst).

[39] After reviewing Canadian, English and American case law, the Nova Scotia Supreme Court in Hirtle v. Ernst summarized a number of statements of principle to be added to the traditional concept of the doctrine of right of way of necessity:

(1) The doctrine of right of way of necessity is public policy – that land should be able to be used and not rendered useless.

(2) Although there can be no right of way of necessity where there is an alternative inconvenient means of access, the requirement of an absolute necessity or a strict necessity has developed into a role of practical necessity.

(3) Water access is not considered to be the same as access over adjacent land. That is especially so in cases where the water access is not as of right or would be contrary to law, where access is not available for transportation of things needed for reasonable use of the land to be accessed, where the water access does not have transportation facilities for carrying on the ordinary and necessary activities of life to and from the land, or where the water is not navigable or useable as a highway for commerce and travel.

[40] Hirtle v. Ernst was considered favourably by the Nova Scotia Court of Appeal in Shea v. Bowser 2013 NSCA 18.

Analysis

[41] In their factum the Respondents argue that “historically, courts have indicated that easements of necessity can be implied whenever land is rendered inaccessible by a severance and sale, whether the original owner retains the inaccessible portion or not. The main distinction between the two has been that where the inaccessible portion is sold, the standard to create an easement is lower: the party seeking the easement must establish that the easement is necessary to the reasonable enjoyment of the property, and was in use at the time of the grant for the benefit of the part granted. It is further argued that the recent decision of the Court of Appeal for Ontario in McClatchie appears to narrow this such that an easement of necessity is only implied in cases where it is the purchaser’s land that is inaccessible, and raises the standard to that of necessity to use or access the property. A land owner’s preference to access land via a different route does not prove necessity to use that route.

[42] I agree with the Applicant’s submission that the decision of the Ontario Court of Appeal in McClatchie was not meant as a comprehensive statement of law on easements about necessity; rather, it represents only a partial statement of the long standing law relevant to the issues raised on that particular appeal. I come to this conclusion for the following reasons.

[43] Had it been the intention of the Court of Appeal in McClatchie to modify or restrict the application of this longstanding principle of law, the Court of Appeal would have made this intention clear in its reasons. No such intention reveals itself in McClatchie.

[44] In Hirtle v. Ernst the Nova Scotia Supreme Court described the excerpt from Goddard noted above as: “the best description of rights of way of necessity”. The excerpt from Goddard makes it clear that the doctrine is not limited to situations involving the purchaser’s land becoming inaccessible. The Court of Appeal in McClatchie does not contradict or reject this view.

[45] In Dobson Justice Pardu of the Ontario Court of Justice (General Division) reviewed the law in relation to easements of necessity in favour of grantors of land, indicating at para. 36 as follows:

The implication that “on a grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those apparent and continuous easements, or, in other words, all those easements which are necessary to the reasonable enjoyment of the property” … is based upon the principle that one may not derogate from a grant, and the requirement of necessity is interpreted with more latitude than what is required to find an “easement of necessity”.

[46] Justice Pardu went on to quote from Halsbury’s as follows:

In connection with the doctrine of the creation of easements by implication of law there is a distinction of great importance between easements of necessity and easements which are merely necessary for the reasonable enjoyment of the property granted, for where an owner of land grants part of land and retains other parts himself all easements necessary for reasonable enjoyment are usually implied in favour of the parts so granted; but such easements are not raised by implication in favour of the part retained unless they are easements of a much more restricted class, namely, “easements of necessity” without which no enjoyment at all would be possible.

[47] A subsequent appeal of Justice Pardu’s decision in Dobson was dismissed by the Ontario Court of Appeal. Thus, the principles of law cited by Justice Pardu and summarized above remain good law except to the extent modified in McClatchie. An intention to change the law as enunciated in Dobson is not apparent from the reasons of the Court of Appeal in McClatchie.

[48] While the Court of Appeal overruled Justice Kane’s decision at first instance in McClatchie, it did so on the basis that “the trial judge’s findings reflect a misunderstanding of the law and a misapprehension of the evidence”. Ultimately the Court of Appeal found that Justice Kane’s “conclusion” that an easement of necessity existed over a gravel road was incorrect in law. The reasons of the Ontario Court of Appeal in McClatchie reveal no reference to Justice Kane having misstated the law or that the principles of law relied on by Justice Kane had been modified or superseded.

[49] Therefore, I conclude that the historical doctrine of easement of necessity is available to both grantors and grantees of a parcel of land in circumstances where land is rendered inaccessible by a severance and sale, whether the original owner retains the inaccessible portion or not. The ultimate objective is that land should be able to be used. Thus, the Applicant is entitled to seek a declaration of an easement of necessity in order to facilitate access to and egress from Part 2.

Does the availability of water access defeat the Applicant’s position that an easement is necessary to secure access to Part 2?

[50] The Respondents argue that where there is water access to a property, this may negate a claim for an easement of necessity, particularly where there is public access to the waters where the waters are navigable.

[51] In Dobson the lot in question fronted the Mississagi River in Algoma and was otherwise landlocked. Historically a roadway was the only means of ingress to and egress from the parcel and access was gained by travelling over the area of the disputed easement over the Plaintiff’s property.

[52] In her reasons Justice Pardu referred to Canadian, English and American authorities which analyzed the concept of necessity where water access is implicated. At para. 47 she stated as follows:

I do not think it can be said baldly that where a property owner has access to water, an implied grant of apparent accommodations such as an easement is automatically defeated, or even that an implied reservation or grant of an easement of necessity is unavailable. Water access for example to a small inland lake and circled by private landowners does not give any access.

[53] And further, at paras. 51 – 53:

I am not convinced that “navigability” alone is the test. A lake which is not navigable, but which is equipped, for example, with a public boat launch may well provide sufficient access. The evidence of the plaintiffs and the defendants conflicts as to whether there is a public boat launch associated with this portion of the Mississagi River. On the whole I prefer the evidence of the defendants who fish in the river, as opposed to the evidence of the plaintiffs whose personal knowledge of the existence of a boat launch may be uncertain.

Without attempting to formulate a general test as to when access to water will defeat an easement of necessity, I am not satisfied that the Mississagi River provided in 1891 such access to Parcels 612 Algoma, 6927 Algoma Centre Section and Parcel 1940 Algoma Centre Section so as to make unnecessary an inference that there is access by way of implied easement of necessity over the parcel to the south belonging to the Dobsons. The ability to travel some distance from waterfall to shoal on water abutting property does not, without more, constitute access to otherwise landlocked property. Fitchett v. Mellow, supra, is quite different on its fact because there the defendant already had access to the mainland portion of his property and thus to the shore, but wished to travel over a neighbour’s land to get to a portion of his own property surrounded on three sides by water.

Having determined that the frontage on the Mississagi River is not sufficient to make unnecessary an easement over the property to the south on the strictest test of providing any access at all, however inconvenient, it follows that the easement over Parcel 1153 Algoma is necessary for the reasonable enjoyment of Parcel 612 Algoma and Parcel 6927 A.C.S. in so far as that is part of the more relaxed “implied grant of apparent accommodations presumption”.

[54] Justice Pardu granted judgment declaring the existence of an easement in favour of the Defendants over the Plaintiff’s land and the Plaintiffs were enjoined from interfering with the Defendant’s use of the easement.

[55] The test according to Dobson is thus whether water access is sufficient to make unnecessary an easement of necessity that is otherwise necessary for the reasonable enjoyment of the property. As noted above, the Ontario Court of Appeal dismissed an appeal from the judgment of Justice Pardu.

[56] Relating this test to the evidence summarized above I consider the evidence of surveyor Paul Forth which confirms that “water access to the property up the very steep slope to the building would be impractical.” In relation to this issue I have also considered the sketch issued by Tulloch Engineering dated February 17, 2015 showing Part 2 and its topographical features including elevation. This sketch is accompanied by the report of Mr. Forth, Ontario Land Surveyor, dated February 17, 2015. According to Mr. Forth’s report, the contours in the sketch:

…have been created to show the very steep shoreline from the water’s edge, coming upwards and easterly on a very steep shoreline rise of approximately 18 metres or a distance of approximately 25 metres to a plateau where it appears that an old road was established but has been abandoned for many years.

[57] Mr. Forth continues:

The plateau area, continues easterly for approximately five metres to a point where the lands rise very steeply a distance of approximately 45 metres and rises to a height of 13 metres to a plateau area where the two story framed dwelling is located. Water access to the property up the very steep slope to the building would be impractical.

[58] There is no evidence that Part 2 has ever been accessed by water. The only evidence is that it has always been accessed by land.

[59] I see no dispute in the evidence that Lake Manitouwabing has public access boat launches and that many other properties on the Lake are accessed by water only. In my view this evidence does not, by itself, defeat the Applicant’s position that an easement is necessary to secure access to Part 2. The access to this property must be considered separately and assessed in the context of its own unique conditions.

[60] Those conditions, described by Mr. Forth and supplemented by the photographic evidence, describe the property as “the highest point on Lake Manitouwabing” and the “very steep shoreline from the water’s edge coming upwards” toward the dwelling on Part 2.

[61] Mr. Forth described the prospect of accessing Part 2 from the water as “impractical”. There is no evidence to contract this observation.

[62] The applicable test, enunciated in Dobson, makes it clear that water access, by itself, will not defeat a finding of easement of necessity. Further, on the evidence before me, I am satisfied that the “water access” available here does not offer a viable, or practical, means of access to and egress from Part 2.

Is there a requirement that landlocked property be “useless” or “worthless” or “incapable of use” without an easement of necessity?

[63] In McClatchie the Ontario Court of Appeal stated that:

One of the prerequisites for an easement of necessity is that it must be necessary to use or access the property; if access without it is merely inconvenient, the easement will not be implied.

[64] In other words, mere inconvenience is not enough to support a finding of easement of necessity. Something more is required.

[65] This contrasts with the principles enunciated in some of the older authorities referred to above that the landlocked property be rendered “useless” or “worthless” without the easement of necessity.

[66] According to the Concise Oxford English Dictionary “inconvenient” means “causing trouble, difficulties or discomfort.”

[67] In Hirtle v. Ernst the Nova Scotia Supreme Court confirmed the principle emerging from the authorities that although there can be no right of way of necessity where there is an alternative inconvenient means of access, the requirement of an absolute necessity or a strict necessity has developed into a rule of practical necessity.

[68] Mr. Forth, in his evidence, described the possibility of water access to Part 2 as “impractical”.

[69] According to the Concise Oxford English Dictionary, something is “impractical” when it is “not adapted for use or action; not sensible.”

[70] By using the word “impractical” I presume Mr. Forth did not mean “impossible”; in other words, it is likely possible to develop a stairway up the steep slope from the water’s edge to the dwelling above. However, the Court of Appeal did not define the test in terms of “possibility”.

[71] In my view, Mr. Forth’s description of the water access as “impractical” (explored more fully above) is sufficient to move such access beyond the realm of “merely inconvenient” and into the realm of “practical necessity” for access over land. (See Hirtle and Shea v. Bowser).

[72] In Shea v. Bowser Nova Scotia Court of Appeal approved the reasoning in Hirtle, including as to the doctrine of right of way of necessity as public policy: “that land should be able to be used and not rendered useless” and the requirement of an absolute necessity or a strict necessity having developed into a rule of “practical necessity” and that water access is not considered to be the same as access over adjacent land. The Nova Scotia Court of Appeal referred to Justice Pardu’s reasons in Dobson as “instructive where a strict test of necessity was applied by an easement was nevertheless granted despite frontage on a body of water.”

[73] In Shea v. Bowser the Nova Scotia Court of Appeal dismissed the appeal relating to the easement of necessity because the application judge been of the opinion that necessity was not established from the facts before him, whether the correct test is practical or absolute necessity. As well, the Appellants had not adduced evidence of any “special circumstances” that rendered the subject lot inaccessible by water despite its navigability; accordingly, the application judge had not erred in concluding that the water access available to access the lot was sufficient to defeat the claim of necessity.

[74] In my view these authorities reveal a softening of the historical requirement that the landlocked land be “useless” or “worthless” before an easement of necessity will be contemplated. In other words, modern courts will, in applying the test of “practical necessity”, consider evidence of “special circumstances” negating access by way of a navigable body of water.

When did Part 2 become landlocked and did an easement of necessity arise as a matter of law at that point, regardless of the owner’s alleged intentions?

[75] Ben Wise signed a Transfer of Part 2 to the Lipsons in October of 2002 but that transfer was not registered until April of 2003.

[76] Part 2 became landlocked in April of 2003, being the effective date of the transfer to the Lipsons having the practical effect of giving notice to the world that the Lipsons owned Part 1. Prior to that registration, the transfer could have been be retracted or not used for any number of reasons.

[77] Therefore an easement of necessity arose at that time.

[78] The intentions of Ben and Sheila Wise at the time of division of the combined parcel cannot be absolutely determined. On the one hand we have Ms. Wise’s evidence, and that of Earl Lipson, that Ben Wise intentionally did not retain an easement over Part 1 (or any other lands) for access to Part 2. This is contradicted to some extent by the evidence of Mr. Dyment summarized above and in particular the reference in the Application for Severance to Part 2 having “Road Access”.

[79] Having said that, I do not believe it is necessary to direct a trial of this issue. As noted above, easements of necessity are creatures of public policy. Public policy must trump the intentions of individual landowners.

[80] At the time of transfer in April 2003, Part 2 had no legal entitlement to access across the lands of any other. While there was an “arrangement” or “understanding” that Part 2 should be accessed through the Inn and Tennis Resort Lands, there was no legal entitlement to do so. There was no enforceable agreement.

[81] Mr. Forth identifies three options by way of right of way. They are illustrated on the sketch and defined as Option A, Option B and Option C. Option A represents:

… the current access, however it is intrusive such that adjoining owners would have to share driveway maintenance costs and the fact that there may be times of vehicles passing on a single lane road. The owners of Part 1 of 42R-14981, the Lipsons, enjoy a private location for their dwelling close to the lake and any traffic from the subject lands would not interfere with the privacy around this dwelling.

[82] The parties share common ground that Options B and C identified by Mr. Forth are not options legally available to the court. Thus, only the option of crossing Part 1 to access Part 2 is available (being Option A).

[83] Option A does represent an intrusion upon Part 1 and the Lipsons’ enjoyment thereof. I am not persuaded on the evidence before me that permitting access to Part 2 along the existing “road” through Part 1 would represent an overwhelming inconvenience or danger to children. It is unclear how much additional traffic might be generated but I suspect given the nature of the property and surrounding area, that it will not be significant.

[84] I am not certain however that Option A as defined by Mr. Forth is necessarily the only route available. Option B, I am told, crosses Part 3. If it does so, it does so minimally and in looking at the sketch issued February 17, 2015 by Tulloch Engineering, Option B runs within Part 2 parallel to the southern boundary of Part 2 for most of its course before “clipping” the north-easterly corner of Part 1. Option B has been rejected by the parties as it affects Part 3 and the owner of Part 3 is not a party to the transactions that gave rise to this Application.

[85] Therefore, while I have found an easement of necessity in favour of Part 2 across Part 1, I am not prepared to determine the precise route at this time.

CONCLUSION

[86] For all the foregoing reasons, order to go:

(1) An easement of necessity exists over and upon the land described herein as Part 1, in favour of Part 2, to the Inn Road.

(2) A trial is directed to determine the most efficacious and least intrusive location of the easement referred to in para. 1 if the parties are unable to agree.

(3) Parties to make written submissions as to costs, if unable to agree, within 30 days, limited to three pages excluding Bills of Costs and any Offers to Settle. Submissions to be provided to my assistant at Barrie.

DOUGLAS J.

Released: August 7, 2015