Court File and Parties

COURT FILE NO.: CV-13-092 DATE: 20160627 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ary Vander Hoeven and Jeanne Marion Vander Hoeven Applicants, Respondents by Cross Application – and – William Alfred King and Debbie Martineau Respondents

Counsel: Andrew Mae, for the Applicants and Respondents by Cross Application D. Andrew Thomson, for the Respondents and Applicant by Cross Application

-and-

Debbie Martineau, Applicant by Cross Application

HEARD: June 20, 2016 E.J. Koke J.

BACKGROUND

[1] This case involves easement/right-of-way issues raised by the applicants (“The Vander Hoevens”) and the cross applicant (Debbie Martineau). The respondent William Alfred King has not participated in the litigation and has been noted in default.

[2] In their application the Vander Hoevens request among other things: a) an order rectifying the title deeds to their property (the “Vander Hoeven property”) and the property owned by Debbie Martineau and her spouse, William Alfred King (the “Martineau property”) so as to give effect to their right to park on the right-of-way/easement (“right-of-way”); b) an order directing Ms. Martineau and Mr. King from impeding their use of the right-of-way; c) an order directing Ms. Martineau and Mr. King to remove fencing, signs and other obstructions along the right-of-way;

[3] In her cross application Ms. Martineau requests an order limiting the “terminus” of the right-of-way to 12 metres at the north-east corner of the right-of-way and for a declaration that the right-of-way does not entitle the applicants to park on it.

[4] Shortly before the hearing the court was advised that the parties had reached agreement on most of the issues raised in the applications. The court was provided with an agreed statement of facts and draft orders for its consideration and the hearing proceeded on the remaining issues as an application without oral evidence being called.

THE ISSUES

[5] Two issues remain to be decided by the court.

[6] The first issue pertains to the costs of the applications. I am requesting the parties to file written submissions in relation to this issue following the release of this decision.

[7] The second issue was referred to by the parties in their submissions as the “terminus” issue.

[8] In order to understand this second issue it is necessary to understand the shape and configuration of the right-of-way, its purpose and where it is located in relation to the properties.

[9] The Vander Hoeven property is located immediately to the north of the Martineau property; in other words, the southern boundary of the Vander Hoeven property forms the northern boundary of the Martineau property. The Vander Hoeven property slopes downhill from its southern boundary to a lakefront cottage at the base of the hill. This slope does not provide easy access for vehicular or pedestrian traffic.

[10] The right-of-way is located along the entire northern boundary of the Martineau property and is 79.976 metres (approx. 262 feet) in length. It also runs along the westerly boundary of the property for 41.35 metres (approx. 135.5 ft.). It is 10 metres (approx. 33 ft.) in width but it widens out to 13.54 metres (approx. 44.5 ft.) on the northern boundary when it reaches a point which is 24.405 metres (approx. 80 ft.) from the north easterly edge of the Martineau property.

[11] The public roadway which provides access to the two properties is located to the west of the properties and ends just south of the Vander Hoeven property. The right-of-way provides a laneway or access road for the Vander Hoevens over the Martineau property by which they can access their property. The area at the eastern end of the laneway where it widens out provides an area for the Vander Hoevens to park their vehicles (the “parking area”).

[12] Ms. Martineau submits that the Vander Hoevens are only entitled to cross over to their property from the right-of-way (or cross over to the right-of-way from their property) at a specific “terminus” location. She identifies this terminus as a 12 metre long strip of land at the north east corner of the boundary between the properties, adjacent and to the north of the parking area. There is a set of stairs down the slope to the Vander Hoeven’s property from this location. Ms. Martineau has erected a fence and placed signs along the boundary between the two properties in an attempt to prevent the Vander Hoevens from accessing the right of way from other parts of their property.

[13] The Vander Hoevens maintain that they should be permitted to access the right-of-way from any location where it borders their property.

BACKGROUND FACTS

[14] The Vander Hoevens purchased their cottage property in October, 1986. Initially they accessed their property by way of a right-of-way which crossed through the middle of what is now the Martineau property in a north south direction. This right-of-way was approximately 20 to 25 feet wide along most of its length but it widened out to approximately 40 to 45 ft. just south of their property line. This wider area provided them with a location where they could park their vehicles. The right-of-way was 27.3 feet wide at the point where it intersected the southern boundary of their property. The westerly side of this 27.3 foot opening was located approximately 93.5 feet or 28.5 metres from the easterly boundary of the Martineau property.

[15] In 1990 the Martineau property was owned by 753801 Ontario Limited which had purchased the land in order to develop it. Not wishing to have a right-of-way running through the middle of the property this company entered into an agreement with the Vander Hoevens to reconfigure and relocate the right-of-way to its present location.

[16] On May 21, 1991 the Vander Hoevens released and abandoned their previous right-of-way through the middle of the Martineau property and 753801 Ontario Ltd. granted them their existing right-of-way along the west and north boundary of the property.

ANALYSIS

[17] Given that the right-of-way was created by express grant, the starting point in reviewing its terms, meaning and extent is to consider the context of the circumstances that existed when the right-of-way was granted…see Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 at para. 10 (C.A.).

[18] Unlike many cases which involve easement or right-of-way disputes, the right-of-way which is the subject of this dispute is of fairly recent origin. Evidence about the circumstances which gave rise to it is available from the parties who were responsible for its creation.

[19] Mr. Al Boucher was the president of 753801 Ontario Ltd. which developed the Martineau property. Referring to the Vander Hoeven’s as “the applicants” Mr. Boucher reports as follows in an affidavit filed with the court: Par. 6. I feel bound to say that 753801 Ontario Ltd. was very lucky to have the co-operation of the applicants with respect to reconfiguring the right-of way as without their co-operation the development would have been adversely affected. Par. 7. There was never any limitation on the applicants with respect to access to and egress from their property over the right –of-way. Their rights of access to and egress from their property were never limited to the area which they currently use (i.e. the steps at the north easterly part of the right –of –way). Had there been such an intention to do that, there would have been a requirement to have the applicants’ property re-surveyed and the limited right of access/egress noted on the plans.

[20] It is the position of the Vander Hoevens that when they agreed to the reconfiguration of the right-of-way they did so on the understanding that they could access the right-of-way from any point where it ran adjacent to their property line. They argue that the previous right-of-way permitted them to access their property through an opening which was located approximately 93.5 metres from the easterly boundary of their property and there was no reason for them to restrict their access to their property to a 12 metre opening at the easterly border of their property.

[21] They agree that although they generally access their cottage from the eastern end of the access road, they require access and egress along the entire length in order to cut overhanging branches and maintain the access road, which is their responsibility. Also, the slope on the west side of their property is less steep than the slope at the eastern end and they prefer to move heavy or bulky objects to their cottage along this gentler slope.

[22] In determining rights under a grant of a right-of-way, it is settled that such rights must be determined according to the true construction of the grant…see Devaney v. Mcnab (1921), 69 D.L. R. 231 (Ont. C.A.)

[23] The issue of access and ingress to and from a “right-of-way” was the subject of a 2011 decision of Reid J. in Duncan v. Beach O’Pines, 2011 ONSC 2349. In that decision, the grant was silent with respect to the issue of access or terminal points. As in this case, the applicants who were the owners of the dominant tenement lands were not seeking to enter any of the servient tenement lands outside the easement…instead they were seeking entry by way of a path over public lands which intersected with the right-of-way.

[24] In deciding in favour of the applicants, Justice Reid quoted with approval the words of Templeton J. in Huron Woods Community Association et. al. v. Beach O’Pines Association, (10 April 2007), South West Region 49123 at para. 64: When considering the language contained in the instruments, it is significant to note firstly that the right-of-way provided in the grants are neither restricted nor limited with respect to the location of the right-of-way on property owned by Beach O’Pines or the extent of the right-of-way through Beach O’Pines. In my view, the right-of-way granted in these deeds is therefore restricted only by what is reasonable in all of the circumstances. (Par. 48 of Justice Reid’s decision)

[25] In 49 of his decision Justice Reid notes that “although the easement could have been drafted restricting access to specifically defined points, no such detail was included”.

[26] In this case, not only are there no restrictions contained in the grant, we have evidence from the parties who created the easement that it was not their intention to restrict access to the owners of the Vander Hoeven’s property.

[27] The practical impact on the Vander Hoevens of restricting access to the 12 metre long strip of land at the north east corner of the boundary between the properties is that if they wish to access the westerly part of their property, for any purpose, whether to clear brush or move objects down the slope, they would first have to travel in an easterly direction to the end of the access road, and then back track on their property to the westerly part of their property, a distance which could be a long as 262 feet. In my view, such a restriction would be unreasonable and I accept their evidence and the evidence of Mr. Boucher that this was not their mutual intention when the easement was granted.

DECISION

[28] For the above reasons, I find that a proper interpretation of the rights granted to the owners of the Vander Hoeven property is that they have an unrestricted means of access and egress from and to the right of way at any point or points along the northerly boundary of the registered right-of-way.

[29] The parties have provided me with two draft orders which contain the terms of the settlement reached by them prior to the hearing of the application. One of the orders is intended to be registered on title against the properties. It contains alternative terms in paragraph 5 to take into account the options available to the court in determining the terminus issue. I have attached this order as Schedule “1” to this decision and have included the following option at paragraph 5: THIS COURT FURTHER ORDERS that the applicants, including their successors in title, invitees and guests, may have means of access and egress from and to the right-of-way at any point or points along the northerly boundary of PART 3 42R12054 AS IN LT185802; SEGUIN

[30] The second draft order is complete, save and except that the amount assessed as costs is left blank. I have attached this order as Schedule “2” to this decision and I have amended paragraph 6 relating to costs as follows: The parties are to file with the court and serve on each other submissions on costs, including costs outlines, within two weeks of the release of this decision. The submissions should not exceed 5 pages, excluding attachments. Reply submission, if any, by each part should be served and filed within 4 weeks of the release of this decision.

E.J. Koke J. Released: June 27, 2016

SCHEDULE “1”

Court file no. CV-13-092

ONTARIO SUPERIOR COURT OF JUSTICE

THE HONOURABLE MR ) June 27, 2016 JUSTICE E.J. KOKE )

B E T W E E N:

ARY VANDER HOEVEN and JEANNE MARION VANDER HOEVEN Applicants

• and -

WILLIAM ALFRED KING and DEBBIE MARTINEAU Respondents

o r d e r

UPON HEARING counsel for the Applicants and the respondent Debbie Martineau and upon there being no appearance by or on behalf of the respondent William Alfred King. AND UPON hearing the evidence presented. AND UPON reading the materials filed. AND BY CONSENT in respect of paragraphs 1, 2, 3, 4 6 7 and 8 hereof.

1. THIS COURT ORDERS that the Respondent William Alfred King is noted in default.

2. THIS COURT FURTHER ORDERS AND DECLARES that the deed creating the Right-of-Way made between 753801 Ontario Limited and Ary Vander Hoeven and Jeanne Marion Vander Hoeven dated April 30, 1991, in respect of Part Lot 22, Part of Parcel 24, 58055 Plan 42M-584 being Part 3 on Plan 42R-12054 in the Township of Foley in the District of Party Sound and registered on May 21, 1991, under certificate number 185802 omitted through inadvertence the right of the Applicants herein (including their successors in title, invitees and guests) to park vehicles on the said Right-of-Way.

3. THIS COURT FURTHER ORDERS that the Applicants, including their successors in title, invitees and guests, have the right to park four vehicles at any time on the land situate at and known as (PIN 52182-0071 (LT)) and more particularly described as PCL 24623 SEC SS; LOT 22 PLAN 42M-584; S/T PT 3 42R12054 AS IN LT185802; SEGUIN (“Respondent’s Property”) and further more particularly described as PART 3 PLAN 42R12054 AS IN LT185802; SEQUIN (“Right-of-Way”).

4. THIS COURT FURTHER ORDERS AND DIRECTS that a copy of this order shall be registered on and as against the titles to the following properties: a. PIN 52182-00071 (LT) - PCL 24623 SEC SS; LOT 22 PLAN 42M-584; S/T PT 3 42R12054 AS IN LT185802; SEGUIN municipally known as 53A Carter's Landing Road, Parry Sound, Ontario; b. PIN 52182-0516 (LT) – PT LT 22 CON 6 FOLEY PT 1 42R4790; PT RDAL IN FRONT OF LT 22 CON 6 FOLEY CLOSED BY RO87994 PT 1 42R5998; SEGUIN municipally known as 55 Carter’s Landing, Parry Sound, Ontario.

5. THIS COURT FURTHER ORDERS that the Applicants, including their successors in title, invitees and guests, may have means of access and egress from and to the Right-of-Way at any point or points along the northerly boundary of PART 3 42R12054 AS IN LT185802; SEGUIN.

6. THIS COURT FURTHER ORDERS that the legal description of the Applicants’ property shall be amended from: “PIN 52182-0516 (LT) – PT LT 22 CON 6 FOLEY PT 1 42R4790; PT RDAL IN FRONT OF LT 22 CON 6 FOLEY CLOSED BY RO87994 PT 1 42R5998; SEGUIN” to “PIN 52182-0516 (LT) – PT LT 22 CON 6 FOLEY PT 1 42R4790; PT RDAL IN FRONT OF LT 22 CON 6 FOLEY CLOSED BY RO87994 PT 1 42R5998; SEGUIN T/W PT 3 42R12054 AS IN LT185802”

7. THIS COURT FURTHER ORDERS that a copy of this Order shall be permanently registered as against the titles to the properties set out in Schedule “A” hereto.

8. THIS COURT FURTHER ORDERS that on successful registration of this Order as against the titles to the properties set out in Schedule “A” hereto (for clarity meaning confirmation of acceptance of the registration of this Order by the Land Registrar), the order of His Honour Justice Meehan dated August 5, 2013, in proceedings no. 00-B1823 (registration n. LT272051) may be vacated from title to the respondent’s property by the applicants.

E.J. KOKE. SCJ

SCHEDULE “A”

PROPERTY DESCRIPTIONS a. PIN 52182-0516 (LT) – PT LT 22 CON 6 FOLEY PT 1 42R4790; PT RDAL IN FRONT OF LT 22 CON 6 FOLEY CLOSED BY RO87994 PT 1 42R5998; SEGUIN; (“Applicants’ Property”); b. PIN 52182-00071 (LT) - PCL 24623 SEC SS; LOT 22 PLAN 42M-584; S/T PT 3 42R12054 AS IN LT185802; SEGUIN (“Respondents’ Property”); c. PART 3 PLAN 42R12054 AS IN LT185802; SEQUIN (“Right-of-Way”).

SCHEDULE “2”

Court file no. CV-13-092

ONTARIO SUPERIOR COURT OF JUSTICE

THE HONOURABLE MR ) June 27, 2016 JUSTICE E. J. KOKE )

B E T W E E N:

ARY VANDER HOEVEN and JEANNE MARION VANDER HOEVEN Applicants

• and -

WILLIAM ALFRED KING and DEBBIE MARTINEAU Respondents

o r d e r

UPON HEARING counsel for the Applicants and the Respondent Debbie Martineau and upon there being no appearance by or on behalf of the Respondent William Alfred King. AND UPON hearing the evidence presented. AND UPON reading the materials filed. AND BY CONSENT.

1. THIS COURT ORDERS that the Respondent William Alfred King is noted in default;

2. THE COURT FURTHER ORDERS that the amended minutes of settlement dated May 3, 2013, entered into by the parties and executed by them and/or their counsel in Court file no. CV-09018 and attached hereto as schedule “B” are of full force and effect save and except for the provisions of paragraphs 5 and 6 therein which are hereby set aside and are of no further force and effect;

3. THIS COURT FURTHER ORDERS that the Respondents: a. remove the existing fencing placed by the Respondents along the boundary of the Right-of-Way and the Applicants' property (as defined in schedule “A” hereto); b. delete the reference to the alleged Court Order #CV-09-018 from the signs erected by the Respondents on their property on or adjacent to the Right-of-Way; c. remove the concrete curb stones measuring approximately three feet placed on the Right-of-Way; d. shall be permanently enjoined from replacing the items referenced at paragraph 3 (a), (b) and (c) above with similar or substitute items; e. to refrain either directly or via their servants or agents from further preventing, impeding or otherwise affecting the Applicants’ use, enjoyment and maintenance of their property and/or Right-of-Way; f. personally and/or their servants or agents to refrain from molesting, harassing or otherwise interfering with the Applicants personally, their invitees, servants or agents and property.

4. THIS COURT ORDERS that in default of the Respondents complying with paragraph 3 of this order by July 11, 2016, the Applicants may without liability to or recourse by the Respondents: a. remove the fence in place by the Respondents along the boundary of the Right-of-Way and Applicants’ property; b. remove the signs erected by the Respondents on their property on or adjacent to the Right-of-Way; c. remove the concrete curb stones measuring approximately three feet from the Right-of-Way.

5. THIS COURT FURTHER ORDERS THAT the applicants and/or their servants or agents shall refrain from molesting, harassing or otherwise interfering with Debbie Martineau, her invitees, servants or agents.

6. THIS COURT FURTHER ORDERS that the parties are to file with the court and serve on each other submissions on costs, including costs outlines, within two weeks of the release of this decision. The submissions should not exceed 5 pages, excluding attachments. Reply submission, if any, by each part should be served and filed within 4 weeks of the release of this decision.

7. THIS COURT FURTHER ORDERS that interest shall accrue on any monetary sums set out herein at the rate of 2% per annum.

E.J. KOKE, SCJ

SCHEDULE “B”

PROPERTY DESCRIPTIONS a. PIN 52182-0516 (LT) – PT LT 22 CON 6 FOLEY PT 1 42R4790; PT RDAL IN FRONT OF LT 22 CON 6 FOLEY CLOSED BY RO87994 PT 1 42R5998; SEGUIN; (“Applicants’ Property”); b. PIN 52182-00071 (LT) - PCL 24623 SEC SS; LOT 22 PLAN 42M-584; S/T PT 3 42R12054 AS IN LT185802; SEGUIN (“Respondents’ property”); c. PART 3 PLAN 42R12054 AS IN LT185802; SEQUIN (“Right-of-Way”).

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Ary Vander Hoeven and Jeanne Marion Vander Hoeven Applicants, Respondents by Cross Application – and – William Alfred King and Debbie Martineau Respondents – and – Debbie Martineau Applicant by Cross Application REASONS FOR JUDGMENT E.J. KOKE Released: June 27, 2016