Court File and Parties

COURT FILE NO.: CV-15-3006-00 DATE: 2017-06-12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

IDALGO RAIMONDI and NANCY RAIMONDI Applicants

P. Virc, for the Applicants

- and -

ONTARIO HERITAGE TRUST and NICOLA ROSS Respondents

S. Gandhi and S. Figliomeni, for Ontario Heritage Trust P.D.S. Jackson and S. Whitmore, for Nicola Ross

HEARD: April 28-29, 2016, October 14 and November 30, 2016

DALEY RSJ.

Reasons for Judgment

Introduction:

[1] This application is brought by the applicant property owners requesting, among other relief, a declaration that they have the sole right to use a right of way and related easement, connected with their property, to the exclusion of members of the public who are seeking access to the Bruce Trail.

[2] The applicants brought this application pursuant to subrules 14.05(3) (d) and (e) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 against the respondents, seeking the following relief:

(a) A declaration that i. Part 3, Ref. Plan 43R-18666 (the “right-of-way” or “ROW”) is a private ROW for the exclusive use of the owners of Part Lot 9, Concession 4 West of Hurontario Street: Part 1 on Reference Plan 43R-1866 municipally known as 100 Scott Street, Belfountain in the Region of Peel (“100 Scott Street”); and ii. the right of the Ontario Heritage Trust (“OHT”) to passage over the ROW is limited to the reasonable protection and maintenance of OHT lands and is legally exercisable only by OHT and its agents; (b) A permanent injunction restraining OHT from erecting any signage or publishing anything that states expressly or impliedly that the ROW may be used by the public, that OHT owns 100 Scott Street, or that 100 Scott Street is part of the “Willoughby Property”; (c) An order requiring OHT to remove its signage along and at each end of the ROW; (d) A permanent injunction against the respondent Nicola Ross (“Ms. Ross”) preventing her from publishing anything that states expressly or by implication that 100 Scott Street, the applicants’ home or the ROW are part of a public trail system, part of public lands or part of the “Willoughly Property”; (e) As against the respondent Ms. Ross, the applicants request a trial of an issue and an order that she pay damages to them in the amount of $50,000 for intentional infliction of emotional distress, interference with the applicants’ ROW, nuisance, invasion of privacy, harassment and defamation;

[3] During the course of the submissions on this application, counsel for the applicants advised the Court that the applicants would not be proceeding with the claims for damages as against the respondent Nicola Ross, as set out in paragraph 1(e) of the Notice of Application, namely claims for damages for intentional infliction of emotional distress, interference with the applicants’ ROW, nuisance, invasion of privacy, harassment and defamation. The applicants had, subsequent to the institution of this application, issued a statement of claim seeking relief in the form of damages from Ms. Ross relating to these various causes of action.

[4] The applicants continued their claim for a permanent injunction against the respondent Ms. Ross as set out in paragraph 1(d) of the application. Further, although not expressly claimed in the Notice of Application, the applicants also asserted during counsel’s submissions that Ms. Ross’ statements with respect to the property in question and the ROW constituted slander of title and that this constituted a basis for the granting of the permanent injunction.

[5] Prior to the argument of the application, a preliminary motion was brought by the applicants seeking to strike out various portions of the affidavit evidence submitted on behalf of the respondents. The applicants’ motion was dismissed in its entirety for the reasons released on June 10, 2016.

[6] For the reasons outlined below, I have concluded that the application in respect of both respondents must be dismissed.

Evidence as to the Historical Background to the Application:

[7] In order to place my analysis below into a proper evidentiary context, it is necessary to outline in some detail the history of the property in question and the circumstances under which individuals, prior in title to the applicants, acquired ownership of the property.

[8] This application concerns the interpretation of the deed by which OHT granted an easement over its land and a ROW to the owners of 100 Scott Street, which is currently owned and occupied by the applicants. It is the applicants’ position that the easement as granted provided them with the exclusive use of the ROW, to the exclusion of the public.

[9] The historical background and the chronology of events leading to this litigation is largely not in dispute.

[10] Further, there is no dispute in the evidence concerning the creation, use, and description of the ROW prior to the applicants’ purchase of 100 Scott Street.

[11] The OHT (previously known as the “Ontario Heritage Foundation”) was established in 1967 with a mandate, in part, to identify, protect, renew and promote Ontario’s diverse cultural and natural heritage.

[12] The Ontario Heritage Act, R.S.O. 1990, c. O.18, in ss. 7 (b), (c) and (d) establishes a number of statutory objectives, including using its authority:

(b) to receive, acquire and hold property in trust for the people of Ontario; (c) to support, encourage and facilitate the conservation, protection and preservation of the heritage of Ontario; and (d) to preserve, maintain, reconstruct, restore and manage property of historical, architectural, archaeological, recreational, aesthetic, natural and scenic interest.

[13] The applicants’ property is located within a parcel of land which was historically known as the Willoughby Property (the “Property”) and this parcel is made up of 38 hectares of land within the Town of Caledon. The land within the Property has four characteristics which I find are significant to the OHT, having regard to its statutory objectives and because no evidence has been offered by the applicants to the contrary:

(I) It is situated on the Niagara Escarpment and has been part of a recreation area since 1935. It has a high diversity of vegetation and several endangered species. The Property is included in the Niagara Escarpment Parks and Open Space System (NEPOSS) as a Natural Environment Park and as such is subject to the objectives of NEPOSS; (II) It is situated within the provincially significant life science Credit Forks Area of Natural and Scientific Interest (ANSI). This is a designation used by the Ministry of Natural Resources and Forestry to denote areas of land and water that contain unique natural landscapes which have been identified as having life or earth science values related to protection, scientific study or education; (III) The Property also has cultural heritage and archaeological value in that the stone used in the construction of the Ontario Legislature building at Queen’s Park was drawn from the quarries on the Property. In addition a registered archeological site known as Stone Cutter’s Dam is located on the Property; (IV) Most significantly, the Property provides access to the Bruce Trail. The Bruce Trail extends from Niagara Falls to Tobermory and is Canada’s oldest and longest marked footpath. In keeping with OHT’s commitment to facilitating access to the Bruce Trail, one of the objectives of NEPOSS is to “secure a route to the Bruce Trail.”

[14] Under s. 11(2) of the Ontario Heritage Act, any property acquired by the OHT is the property of the Province of Ontario, namely Her Majesty in right of Ontario. The OHT preserves lands for the people of Ontario or provides Ontarians with direct access to lands with environmental or recreational value.

[15] In 1986, the then Ontario Heritage Foundation (now OHT) purchased the Property from Trans-Canada Holding Limited, whose president was Mr. B. Willoughby. OHT purchased the Property to protect and provide public access to the Niagara Escarpment and Bruce Trail. OHT holds the Property in trust for the people of the province of Ontario.

[16] The property is located on the Niagara Escarpment and provides access to the Bruce Trail. It has been a popular recreational area since 1935.

[17] Through a Custodianship Agreement, the Credit Valley Conservation Authority (“CVC”) is responsible for the maintenance, operation and management of the Property.

[18] In December 1990, a presentation was made by CVC, on behalf of OHT, to the Town of Caledon in relation to the use of the Property. CVC proposed severance of a parcel of the Property with the residential dwelling located on it (subsequently to be the applicants’ property at 100 Scott Street). This presentation provided a public statement of the intention of the OHT in relation to the use of the Property for public recreation, and explained the proposed severance of part of the Property and the sale to a private purchaser. The presentation also made reference to the Willoughby Property Trail Integration Study and announced the planned access to a trails system. The Willoughby Property Interpretive Trail Plan (“Trail Plan”) was a public document referred to in the 1990 presentation to the Town of Caledon by OHT/CVC and it provided the analysis of the proposed development of the Property, including the severance and sale of a part of the Property.

[19] The Trail Plan outlined that the Property was acquired by the OHT to provide public access to the site. It further stated that while an informal trail network was already in place, the intention was to expand the trail system, to incorporate looped trails and to create connections with the Bruce Trail.

[20] The ROW runs approximately one kilometre across land owned by the OHT, from the end of Scott Street to the edge of the 100 Scott Street property line (a map depicting the ROW is at Appendix ‘A’, Exhibit ‘E’ in the affidavit of Sean Fraser sworn October 1, 2015). The OHT land is known as the Willoughby Property in recognition of its earlier owner, Bertram Willoughby. Mr. Willoughby transferred the Willoughby Property, including his residence, a small cottage and equipment shed, to the OHT in 1986. The ROW follows a gravel driveway that was used by Mr. Willoughby to access his residence.

[21] At the time the Trail Plan was presented, the primary public access point to the Property was from Scott Street, in the Town of Caledon. The Trail Plan proposed that the trail would extend from Scott Street along the ROW, as far as possible, until the Willoughby house was visible, with the intention of giving access to hikers while at the same time reducing instances of hikers approaching the house.

[22] The applicants’ property, which is the subject of this application and is known as 100 Scott Street, was referred to as “Part 1” in the severance and conveyance of that parcel from the Property.

Sale of Part 1 to First Purchaser – Ms. Susan Imrie (presently Susan Slater):

[23] In 1993, a small part of the Property known as Part 1 was severed and sold by the OHT to the purchaser Ms. Susan Imrie. The remaining Property was retained by OHT and preserved for public use in keeping with the Trail Plan. The land retained by OHT on this severance and conveyance to Ms. Imrie was referred to as Part 3.

[24] Prior to execution of the agreement of purchase and sale conveying title to Part 1 to Ms. Imrie, there had been ongoing negotiations between Ms. Imrie and OHT with respect to her request to be permitted to either purchase the ROW outright or obtain exclusive access over the ROW, as part of her purchase of Part 1. OHT denied both of these requests in writing.

[25] The evidence with respect to OHT’s rejection of Ms. Imrie’s request to purchase the ROW, or have exclusive use of it, is contained in an affidavit submitted on behalf of OHT by Ms. Kathryn Gray. Ms. Gray was not cross-examined on her affidavit and the evidence offered by her in this affidavit is uncontradicted.

[26] Further, prior to the closing of the sale transaction whereby Part 1 was conveyed to Ms. Imrie, she made another request in 1993 seeking to have exclusive use of the ROW and this further request was again rejected by OHT, via Mr. Scott Allington, counsel with the Ministry of the Attorney General. Mr. Allington filed an affidavit on behalf of OHT outlining his recollections as to his involvement on behalf of OHT at the time of the requests by Ms. Imrie. This witness was not cross-examined on his affidavit and the evidence set out in his affidavit is uncontradicted.

[27] In his correspondence with Ms. Imrie’s solicitor at the time of her further requests for exclusive use of the ROW, prior to closing, Mr. Allington stated in part as follows:

We will not insert the word “exclusive” with respect to the grant of easement over Part 3 on Plan 43R – 18666. Paragraph 2 of the Agreement of Purchase and Sale does not specify that exclusive access and egress over the said Part 3 is to be provided by the purchaser. In addition, your client submitted a previous offer dated October 27, 1992 which did state that the said Part 3 was to be for the “exclusive use of the purchaser”. The October 27 offer of your client was rejected by the Foundation and by correspondence dated November 11, 1992, addressed to the listing agent, this specific term was stated as not acceptable. The Foundation continues as owner of the fee simple interest of Part 3 and therefore, at law, it continues to enjoy all rights of ownership subject to the express covenants in the grant of right-of-way to your client.

[28] The deed for the easement over Part 3, as granted by OHT, to Ms. Imrie for the benefit of the severed parcel at Part 1 provided as follows:

Right-of-Way: Terms and Conditions

1. The Transfer grants to the Transferee the free, uninterrupted and unobstructed right-of-way for the Transferee and her guests, agents and contractors for ingress and egress and to enter, repair and maintain a gravel driveway, including all appurtenances thereto, on and in the lands described herein with the necessary machinery, materials, vehicles and equipment.

2. The Transferor covenants not to plant any trees or brush on the lands, and not to erect any buildings, structures and other man made obstructions on the lands.

3. The Transferor shall not be responsible for the maintenance and repair of the right-of way.

4. The Transferee covenants to fill in all excavations and to restore the surface to substantially the same condition as existed prior to the commencement of any activity of the Transferee authorized hereunder.

5. The Transferee further covenants to save harmless and keep the Transferor indemnified from all claims, costs and damages which may arise by reason of any entry made upon or activity performed on the said lands by the Transferee, her guests, agents and contractors.

[29] The deed providing for the easement in favour of Ms. Imrie contained a consent from the Ministry of Culture, Tourism and Recreation in accordance with the Ontario Heritage Act, and the deed was granted “in accordance with policies and priorities for the conservation, protection and preservation of the heritage of Ontario.”

[30] Ms. Imrie provided evidence by way of affidavit in support of the respondent Ms. Ross’ position on this application, wherein she stated that it was clear to her that the easement granted to her over the ROW did not give her any ability to exclude the public from using the ROW. It was understood by her that the public had, and would continue to have, access to the ROW and the Property.

[31] Ms. Imrie further stated in her affidavit that she understood that the only greater right she had been given was a permanent right to access the ROW and the right to vehicular access over the ROW. She exercised that access without incident. She further understood that as the owner of the ROW and Part 3, the OHT could later exclude the public if it decided to do so, but it could not exclude her.

[32] Ms. Imrie’s affidavit evidence was not cross-examined on, nor was contrary evidence offered on behalf of the applicants.

Sale of Part 1 by Susan Imrie to Gerald Hebert:

[33] Gerald Hebert purchased Part 1 from Ms. Imrie in 2002 and remained the owner of the property until it was sold to the applicants in 2012. He also filed an affidavit on this application. He was not cross-examined on his affidavit.

[34] In his affidavit he states that he was very familiar with the public’s access over the ROW and that he used the ROW to access the trails himself on many occasions prior to his purchase of the property. Further, during his time as owner of the property, he observed hikers using the ROW and it was his understanding that he did not have the right to exclude the public.

[35] He erected two signs along the ROW. The first sign was in a large wooden frame close to the entrance of the ROW from Scott Street which read: “Misty Morning Haven. Private Driveway. Pedestrians Only Please.”

[36] The second sign erected by Mr. Hebert was along the ROW at a point closer to the property line at Part 1 and that sign read: “Misty Morning Haven. Pedestrian Limit. Please Respect Our Privacy.” Mr. Hebert treated the pedestrian limit to be the point where another trail crossed the ROW, namely the Crow’s Nest Trail.

[37] Mr. Hebert further indicated in his affidavit that prior to the applicants’ purchase of Part 1, he advised them that the public had a right of access over the ROW. Mr. Hebert also indicated that while the applicants were visiting the property prior to their purchase, hikers were present on the ROW. He further stated that he and members of his family exercised vehicular access by the RWO on thousands of occasions without any incident involving hikers or pedestrians.

Public Use of the Right-Of-Way Prior to the Applicants’ Purchase of Part 1:

[38] In and around 1998, two trails of the Bruce Trail system were developed that crossed the ROW, namely the Crow’s Nest Side Trail and the Trimble Trail. Access to these trails was facilitated by the OHT by way of the public using the ROW. Historically the public pedestrian traffic gained access to the ROW by a gate located at the entrance of the ROW, which members of the public were able to pass through. The gate had been installed by Ms. Imrie, with OHT’s permission. The evidence is that this gate generally remained open prior to the applicants’ purchase of Part 1 – 100 Scott Street.

[39] After Ms. Imrie purchased Part 1 she erected a sign at the gate at the Scott Street entrance to the ROW which read: “Authorized vehicles only beyond this point. Pedestrians welcome. Please respect the privacy of the home at the end of the road.”

[40] She also erected a sign near the property line for 100 Scott Street that advised pedestrians that, at that point, they had reached the private property. This sign read: “Beware of Dogs. Private Property.”

[41] It is of note that the applicants’ affidavit evidence and application record describes, in a very misleading way, the wording that appeared on the sign installed on the gate at the Scott Street entrance to the ROW at the time of the purchase by the applicants. The applicant Ms. Raimondi ultimately acknowledged that the sign on the gate at the time of the applicants’ purchase read: “Authorized Vehicles Only beyond This Point. Pedestrians Welcome. Please Respect Private Ownership of Home at End of Road” (emphasis added). However, at paragraph 11 of her affidavit of June 25, 2015, she deposed that there were two signs at the gate on Scott Street leading into the ROW, one which read “100 Scott Street” and the other: “Authorized vehicles only beyond this point.” In cross-examination the witness offered the extraordinary evidence that in describing the wording on this last mentioned sign, she left out the words indicating that pedestrians were welcome and the words following that, as she was only stating what words were visible to her upon entering and exiting the property.

[42] In accordance with the OHT’s invitation, members of the public used the ROW until the applicants acquired the property and they did so without any incident.

[43] Both Ms. Imrie and Mr. Hebert indicated that they had never experienced any difficulties or issues with respect to pedestrians accessing the ROW. There is no evidence of complaints regarding the public’s use of the ROW prior to the applicants’ acquisition of 100 Scott Street.

[44] In a letter to the OHT in April 2015, Mr. Hebert stated as follows with respect to the public’s use of the ROW:

Having lived there [100 Scott Street] for over a decade the road was accessed by at least over 10,000 times by my family alone without incident. At a speed limit of 15 mph (prox.) which is common for all parks and campgrounds in the Province my family and guests never felt any apprehension relative to safety either to themselves or pedestrians. Given that over the near 30 years that the road has been shared by both pedestrians and homeowners at 100 Scott Street, not a single incident has arisen, it seems to support the fact that a shared roadway is quite manageable, much like it is in most other public access lands.

Public Access to the ROW at the Time of This Application:

[45] As of the time of this application, OHT continued to invite members of the public as pedestrians to enter onto the ROW. Sean Fraser, Director of Heritage Programs and Operations with the OHT, deposed in his affidavit that “ensuring continued public pedestrian access to the ROW is in the public interest and is consistent with the Heritage Trust’s mandate to promote the province’s natural and cultural heritage.”

[46] As of the date of this application, there are 2 signs placed on the ROW which were erected by CVC in September 2013.

[47] The first sign is located at the entrance of the ROW at Scott Street and reads:

Willoughby Property. Owned by the Ontario Heritage Trust and managed by the Credit Valley Conservation Authority. Pedestrians welcome during daylight hours. Please give way to vehicular traffic. Dogs must be kept on a leash at all times.

[48] The second sign is located towards the end of the ROW near the 100 Scott Street property line and reads: “Private Property beyond This Point.”

[49] In August 2013, the OHT installed an automatic trail counter to track the number of pedestrians entering and exiting the ROW at the entrance of the ROW. The data collected from the trail counter was incorporated into a CVC visitation report which estimated that there were 3200 visits to the property over the two-year period from 2013 to 2015. On the average, five visitors per day travelled the ROW and 85% of all users came in and out of the ROW at the same access point.

[50] It was acknowledged by the applicant Ms. Raimondi that the public has continued to access the ROW since the applicants acquired title to their property in 2012.

[51] Both the OHT and CVC receive communication with respect to properties under their jurisdiction. However, the evidence offered indicated that the OHT has not and does not verify complaints as to the use of the ROW, but rather takes note of these communications and, where OHT believes that action is possible or appropriate, complaints are followed up on.

[52] Comments and complaints from members of the public were received by the OHT, indicating that the applicants had been requesting that persons leave the ROW. Communications from municipal counsellors and from the Ontario Provincial Police have been received by the OHT as a result of interactions with the applicants on the ROW. The witness Mr. Fraser, in cross-examination on his affidavit, stated that since the acquisition of the property by the applicants, the OHT has received many more complaints in regard to the applicants’ and the ROW than it has received in respect of any other property under its jurisdiction in the province of Ontario.

[53] Mr. Fraser further deposed in his affidavit that in view of the number of communications and complaints relating to the ROW since the applicants acquired their title, OHT has convened several community stakeholder meetings and, as a result of those meetings, it is presently taking steps to reroute the public access to the northern trail, namely the Crow’s Nest Trail. The result of this rerouting is that the public would no longer have access along the ROW from Scott Street; however, there would still be the need for two crossing points over the ROW so that pedestrians could travel between the Crow’s Nest Trail to the Trimble Trail to the south.

[54] It was Mr. Fraser’s evidence that these two crossings will still be required over the ROW to avoid a fragmented use of the Property and so as to create a network of trails; otherwise, the Property would be split into two pieces. Mr. Fraser stated that the OHT is creating these routes “for the public interest, for public recreation, and to make the best visitor experience possible’ and that “breaking the parking to two pieces would not be best practice.”

The Applicants’ Purchase of Part 1:

[55] The applicant Ms. Raimondi acknowledged in cross-examination on her affidavit that at the time the applicants were purchasing Part 1, they were buying a property abutting a much larger property owned by the OTH.

[56] The real estate listing for Part 1 read: “At the end of a private, 1 km promontory.” Ms. Raimondi testified in cross-examination that she assumed that this meant an exclusive driveway. She acknowledged that the real estate listing also stated that there was a trail system through the abutting conservation lands. However, she testified that the applicants did not inquire of their real estate agent about the consequences of that representation and only acknowledged that OHT held the abutting property.

[57] According to the evidence offered by way of affidavit from Mr. Hebert and Mr. Fraser, the signage erected by Mr. Hebert welcoming pedestrians at the Scott Street entrance to the ROW, as well as the sign indicating the pedestrian limit near the 100 Scott Street property line, were posted on the ROW at the time the property was acquired by the applicants. Mr. Hebert further deposed in his affidavit that he met with the applicants on 3 or 4 occasions and on those meetings he advised them that the public had the right to access the ROW. He also deposed that on the applicants’ visits to the property prior to purchasing, they observed hikers on the ROW.

[58] The applicant Ms. Raimondi acknowledged that the applicants did not contact the OHT to inquire into the rights that were granted regarding the ROW, nor did they instruct solicitors to provide them with a title opinion on the property.

[59] Notably, in cross-examination, Ms. Raimondi admitted that at the time of the purchase of 100 Scott Street, the applicants understood that they were only obtaining an easement and not a fee simple interest in the ROW.

[60] She also testified in cross-examination that subsequent to the purchase of Part 1, the applicants’ real estate agent contacted them to arrange a meeting with their neighbours to discuss the use of the ROW. She acknowledged that she did not question the real estate agent about the public use of the ROW and she simply advised the agent that they were not interested in having a meeting. She further testified that based on their communications with their real estate lawyer, they believed that the ROW was for their exclusive use.

[61] The evidence on behalf of the applicants is that they never spoke to the prior owner Mr. Hebert about the signs located on the property inviting pedestrians to use the ROW, and never read or noticed the signs prior to their purchase of the property.

[62] In addition to the misleading evidence offered by the applicant Ms. Raimondi as outlined in paragraph 41, above, she also misrepresented in her affidavit the actual location of signs on the property, which left the reader of her affidavit with the understanding that a sign at the entrance to the ROW off Scott Street read: “Misty Morning Haven – Pedestrian Limit – Please Respect Our Property.” In fact, the sign read: “Misty Morning Haven – Private Driveway – Pedestrian Only Please,” as set out in the responding affidavit material from the OHT. On cross-examination on her affidavit, Ms. Raimondi acknowledged that the statement made in her affidavit was untruthful, however she denied attempting to mislead the court.

Alleged Obstruction to the Applicants’ Use of the ROW:

[63] Quite apart from the issue of title to and rights of use of the ROW by way of the easement granted to them, the applicants also assert that their rights of use of the ROW and easement are being unreasonably obstructed by members of the public and that this obstruction constitutes a substantial interference with the applicants’ rights.

[64] The applicants have collected video evidence with respect to persons and vehicles that have accessed and used the ROW by way of “dash-cam” video recorders, which were located on two of their vehicles and on an ATV.

[65] The applicants did not offer any evidence as to when the video evidence was collected and have as well refused to produce to the respondents copies of these video recordings.

[66] Initially, the applicants refused to produce the video recordings as they considered the request too broad. The deponent Ms. Raimondi conceded in cross-examination that production of the videos was refused even though the applicants had not taken any steps to review how much recording data was in fact available.

[67] Another camera was located on the applicants’ property which would be activated or triggered if somebody approached the property. Again, the applicants have refused to produce any photographs obtained by this means.

[68] In lieu of producing the video and photographs in the possession of the applicants, they have provided only examples of what is asserted to be a substantial interference with the applicants’ use of the ROW. Examples of the alleged obstruction or interference included:

(1) during the three years in which observations were made and photos recorded, approximatly six vehicles were driven into the ROW which had to turn around and go back, and in one instance a vehicle became stuck on the ROW; (2) there were many instances of pedestrians walking on the ROW with or without children or dogs and this resulted in delays in that the applicants’ vehicle had to slow down to pass safely or had to stop and wait for pedestrians to go to the side of the path; and (3) there were delays in plowing of snow on the ROW due to pedestrians on the path and the need for the plow to proceed at a particular angle.

[69] One incident of obstruction described by the applicants with some particularity involved a Ms. Carol Grant, who was in the company of a child and a dog on the ROW. The applicants’ vehicle was required to slow down while it passed this group. This incident is depicted on video and the video shows the child immediately moving out of the vehicle’s way into a snow bank at the side of the ROW and Ms. Grant and the dog then moving to the side.

[70] There is only one instance in the evidentiary record adduced where the applicants’ passage on the ROW was entirely prevented and this occurred when a vehicle had entered the ROW and became stuck. This occurred despite the fact that the OHT has not authorized vehicles belonging to the public to travel on the ROW and the signs posted by the OHT and CVC have prohibited such vehicular access.

[71] Public access to the ROW has continued until the time of this application, however the applicants have attempted to exclude the public from time to time.

[72] In March 2013 the applicants changed the signs on the ROW. The sign at the Scott Street entrance to the ROW, which had previously welcomed pedestrians, was replaced by the applicants with a sign that read: “Private Driveway, Authorized Entrance Only.” The sign up the ROW and closer to the applicants’ property line, which had read: “Misty Morning Haven – Pedestrian Limit – Please Respect Our Privacy” and was in place at the time the applicants purchased the property, was removed by them.

[73] Further, in early 2013, the applicants began locking the gate at the Scott Street entrance to block public access to the ROW. There is also evidence in the record to the effect that the applicants began intimidating hikers on the ROW both verbally and by speeding their vehicles close to the pedestrians.

[74] The OHT has consistently advised the applicants that the public has the right of access to the ROW. In May 2013, lawyers for CVC wrote to counsel for the applicants with respect to their attempts to exclude the public from the right-of-way. CVC requested that counsel for the applicants advise them of their easement rights, as distinct from a right of ownership, and requested that the applicants refrain from threatening, intimidating or interfering with pedestrian use of the ROW.

[75] As recently as October 2015, the applicants continued their efforts to exclude the public and on that occasion, purported to order CVC employees attending at the Willoughby Property to get off the ROW.

Allegations and evidence with respect to the respondent Nicola Ross:

[76] As noted, the allegations and evidence with respect to the respondent Ms. Ross became more narrowed and focused during the course of submissions from counsel for the applicants. The only relief sought on the application against Ms. Ross is a permanent injunction “preventing her from publishing anything that states expressly or by implication that 100 Scott Street, the applicants’ property or the ROW are part of a public trail system, part of public lands or part of the Willoughby Property.”

[77] The impugned publications authored by Ms. Ross included a book published by her in May 2015 entitled, “Caledon Hikes: Loops & Lattes,” describing 37 hiking loops in the Caledon region. Ms. Ross stated in the affidavit she filed in response to the application that, consistent with advice from the OHT and the CVC and the signage present on the ROW, her book describes the ROW as open to the public.

[78] In June 2015, Ms. Ross also published an article featured in “In the Hills” magazine, which included excerpts from her book and made reference to a hike that accesses the ROW.

[79] On cross-examination, Ms. Raimondi admitted that in May 2015, when Ms. Ross published the book, the OHT and CVC had clearly posted signs indicating that pedestrians were welcome on the ROW.

[80] In her book Caledon Hikes, there is a general statement by Ms. Ross for the readers that: “all the routes in this guide follow established trails or roads that are accessible to the public. If you want to keep having access to these routes respect the land and stay on the trail.”

Positions of the Parties:

The Applicants:

[81] It is the principal position of the applicants that they have the exclusive right over the ROW based on the construction of the deed. It was also submitted on behalf of the applicants that their property represents the dominant tenement, with the OHT’s land as the servient tenement, and that by granting the ROW, OHT has given up its fee simple rights.

[82] It is further the position of the applicants that there has been a substantial interference with their use of the ROW or the easement in their favour.

The Respondent OHT:

[83] It is the position of this respondent that the deed of easement and the surrounding circumstances at the time of the initial grant to Ms. Imrie, which is the relevant point in time, all demonstrate that the applicants do not have a right to exclusive use of the ROW.

[84] On the evidence adduced, it is this respondent’s position that the grantees of an easement, namely the applicants, cannot stand in priority to the owner of the fee simple, namely OHT. If there was a substantial interference by the grantor with the applicant’s use of that easement, that may give rise to rights to a remedy, however it is this respondent’s position that there has been no substantial interference with the use of the easement.

The Respondent Ms. Ross:

[85] It is the position of Ms. Ross, with respect to the permanent injunctive relief claimed in paragraph 1(d) of the application, that such relief is not available to the applicants.

[86] During the applicants’ counsel’s closing submissions, it was submitted that Ms. Ross’ publications constituted defamation and slander of title, neither of which cause of action is asserted as a basis for the injunctive relief sought in paragraph 1(d) of the Notice of Application. Damages for a variety of causes of action including defamation are set out in paragraph 1(e), however those causes of action were withdrawn from this application and are now proceeding by way of a statement of claim.

Analysis:

[87] As the applicants’ claims against Ms. Ross and their entitlement to any injunctive relief may turn on the determination of the applicants’ claims against OHT, those claims as against OHT will be considered first.

Applicants’ Claims Against OHT:

[88] In the recent decision by the Court of Appeal in Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, 134 O.R. (3d) 401, Gillese J.A. gave thorough consideration to the law as to the distinctions between licences and easements in paras. 47 – 52 which read as follows:

Licences and Easements Distinguished

[47] The following are well-established propositions of law which can be found in real property texts such as Anne Warner La Forest, Anger & Honsberger Law of Real Property, loose-leaf, 3rd ed. (Toronto: Thomson Reuters, 2016) vol. 2, at paras. 16:40.10 to 16:40.20, 17:20.10 to 17:20.20; and Gale on Easements, 19th ed. (London: Sweet & Maxwell, 2012), at pp. 4-42, 79-82.

[48] The right to do something on land belonging to another can be a licence or an easement. A right to walk over a path on another’s land is a good example of this. If I give you the right to walk along a path on my land so that you can reach the lake in front of it, that right may be a licence or an easement. In its simplest terms, it depends upon whether I gave you alone the right to walk along the path or whether I agreed that the right to walk along the path was to bind my land and benefit yours. The former is a personal right known as a licence. The latter is a proprietary right, known as an easement.

[49] Because a licence is a personal right, a licence would give only you the right to walk along the path on my property to reach the lake – that right would not extend to anyone else. Further, that right is neither connected to the use of any lands which you might own nor does it amount to an estate or interest in my land. The licence simply makes lawful that which would otherwise be trespass. Without the licence, the act of your entering on my land and walking along it to reach the lake would amount to trespass. Importantly, unless we agree otherwise, I may revoke, at will, the permission I gave you (i.e., the licence).

[50] But if the right that I granted was an easement – and not a mere licence – the situation is quite different. Because an easement is a proprietary right – not a personal one – the right to walk along the path on my land is not limited to you alone; it would attach to your land so that all those who lawfully occupy your land (present and future) would have the right to walk along the path on my land to the lake. It would also bind my land so that the owners of my land (present and future) would have to permit the lawful occupants of your land to walk along the path. Moreover, because an easement is a proprietary interest in or right over my land, while I retain absolute dominion over my property, my use of the land is subject to the limitations imposed by the easement.

[51] Re Toscano and Dorion (1965), 51 D.L.R. (2d) 298 (Ont. C.A.) and Wiener v. Elgin (County), [1947] 2 D.L.R. 346 (Ont. H.C.) are two examples of situations in which the court used these principles to determine whether the right in question was a licence or an easement.

[52] Four characteristics are essential to the grant of an easement:

1. there must be a dominant and a servient tenement;
2. the easement must accommodate the dominant tenement;
3. the owners of the dominant and servient tenements must be different persons; and
4. a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.

See Barbour v. Bailey, 2016 ONCA 98, 66 R.P.R. (5th) 173, at para. 56; and Depew v. Wilkes (2002), 60 O.R. (3d) 499 (C.A.), at para. 18.

[89] In Fallowfield et al. v. Bourgault et al. (2003), 68 O.R. (3d) 417 (C.A.), at para. 10, the Court of Appeal stated as follows: “[w]here 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.”

[90] This approach when considering the nature and extent of an easement is entirely consistent with the present jurisprudence. In the recent Supreme Court of Canada decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 58, the Court stated that the objective evidence of the background facts at the time of the execution of a contract may be considered. The surrounding circumstances may include “anything which would have affected the way in which the language of the document would have been understood by a reasonable man.”

[91] The grantor of a deed of easement retains its rights to use the land, and only loses its rights by express surrender or extinguishment: Arpy-Ara Co. v. A.R. Manufacturers & Distributors Ltd., 2015 ONSC 425, 52 R.P.R. (5th) 25, at paras. 240 – 241; Przewieda v. Caughlin, 2015 ONSC 3770, 58 R.P.R. (5th), at para. 19.

[92] The circumstances present at the time the easement was granted must be considered in a contextual approach: Stella Psarakis Medicine v. Catherine and Carl Gonnsen, 2015 ONSC 25, 51 R.P.R. (5th) 77, at paras. 12 – 13, 16.

[93] The grantor of an easement is not required to reserve the right to invite the public. A party is required to expressly reserve an easement only when it sells the land over which the easement runs: Jonathan Gaunt and Paul Morgan, Gale on Easements, 17th ed. (London, UK: Sweet & Maxwell, 2002), at p. 3 – 13; 3021386 Nova Scotia Ltd. v. Barrington (District), 2015 NSCA 30, 357 N.S.R. (2d) 289, at paras. 35 – 36; Barton v. Raine (1980), 29 O.R. (2d) 685 (C.A.).

[94] As to the surrounding circumstances at the time of the initial grant of the easement over the ROW to the applicants’ predecessor in title, Ms. Imrie, there are a number of factors which provide objective evidence as to the background leading up to the granting of the deed of easement including:

1. The OHT had made public statements and completed and released a study on the use of the Property in the time leading up to the severance and purchase of Part 1, all of which demonstrated a continued intention to allow for the public use of the Property. The use of the property as public open space including the ROW and the development of interconnected trails were the identified purposes for the Property from at least 1990.
2. Correspondence and documentation setting out the terms to be included in the Agreement of Purchase and Sale between the OHT and Ms. Imrie clearly demonstrate the understanding between the vendor and purchaser that the purchaser was not acquiring a fee simple interest in the ROW;
3. The correspondence as to the terms to be included in the Agreement of Purchase and Sale as between OHT and Ms. Imrie clearly demonstrate the understanding between the parties that access over the ROW was not to be exclusive to the purchaser;
4. The language in the executed Agreement of Purchase and Sale reflects the OHT’s refusal to provide the purchaser with any exclusive right over the ROW. It was stipulated that “”The Foundation” shall grant, on or before closing, access and egress over Part 3 on Plan 43R – 18666” to the purchaser with no further defining terms. In comparison, it was stipulated in the same clause that “Access to Part 1 on the said Plan will be limited to the purchaser, its guests and agents.”;
5. Ms. Imrie’s uncontradicted evidence is that at no time did she understand that she had an exclusive right over the ROW. She testified that it was her understanding that the ROW and Property were fully available to the public;
6. At the time of the conveyance of the property to Ms. Imrie, the public had been using the ROW for several years.

[95] As to the description of the ROW made by way of a representation in the Agreement of Purchase and Sale between the OHT and Ms. Imrie, while there is an express limitation as to the purchaser’s rights of access and egress to 100 Scott Street, there is no such expressed limitation as to the rights of the owner of the land, the OHT, to continue to invite pedestrian members of the public to use the ROW.

[96] The deed granting the right-of-way (easement) in favour of Ms. Imrie, which was executed on March 26, 1993, reads as follows:

(a) The Transferor (OHT) grants to the Transferee (Owner of Part 1, 100 Scott Street) the free, uninterrupted and unobstructed right-of-way for the Transferee and her guests, agents and contractors for ingress and egress and to enter, repair and maintain a gravel driveway [the applicants’ factum incorrectly excludes the word “enter” and also inserts the words “over the strip of land” where the words of the Deed actually read “for the Transferee and her guests, agents and contractors”]; (b) The Transferor covenants not to plant any trees, or brush on the lands, and not to erect any buildings, structures and other man-made obstructions on the lands [the applicants’ factum incorrectly describes this as “prohibiting the OHT from placing any obstructions on the ROW”]; (c) The Transferor shall not be responsible for the maintenance and repair of the right-of-way; and (d) The Transferee further covenants to save harmless and keep the Transferor indemnified from all claims, costs and damages which may arise by reason of any entry made upon or activity performed on the said lands by the Transferee, her guests, agents and contractors.

[97] The language of this grant is clear and unambiguous in that it makes no reference of a grant to the transferee of exclusive rights to this ROW. It was granted for the limited purpose of ingress and egress to the property at 100 Scott Street, which is not mutually exclusive from other uses or users of the ROW.

[98] Furthermore, the words of grant in the deed in no way limit OHT’s fee simple interest in the ROW, other than requiring that it provide a free, uninterrupted and unobstructed right-of-way to the owner of 100 Scott Street. It is clear from the affidavit evidence submitted by Ms. Imrie that at the time the deed was negotiated she fully understood that the OHT intended that the public would have access to the ROW.

[99] It was urged on behalf of the applicants that by failing to expressly reserve the right to invite the public on to the ROW in the deed, the OHT had forfeited this right. In my view, the law is clear on this that a party is required to reserve an easement only when it sells the land over which the easement runs, and as such the doctrine of reservation has no application in this case: 3021386 Nova Scotia Ltd. v. Barrington (District), 2015 NSCA 30, supra, at para. 36.

[100] In spite of the applicants’ submission, counsel for the applicants readily acknowledged that she did not know of any case authority that would support the submission that where a right-of-way or easement, is granted by the owner of the fee simple, that grant must expressly state what fee simple rights are being retained by the grantor.

[101] The OHT’s grant of permission to the public to use the ROW does not constitute an interfering easement over the easement granted to the applicants, as an easement cannot be granted at large. The OHT’s permission to the public allowing for the use of the easement is more properly characterized as the granting of a licence to use the land, in the same way any fee simple owner may grant guests a licence to enter their property.

[102] In the leading and most authoritative text on the law of easements, Gale on Easements, supra, the authors state the following with respect to the grantor’s fee simple rights at p. 1: “…The owner of the servient tenement retains absolute dominion over his land and all the rights of an owner and can use it as he likes, subject to such limitations as are imposed upon it by the easement.”

[103] The authors of Gale on Easements further note, with respect to whether the grantee of an easement may acquire exclusive use of the servient tenement, that the Court in Rielly v. Booth (1890), 44 Ch. D. 12 at 26 stated: “The exclusive or unrestricted use of a piece of land, I take it, beyond all question passes the property or ownership in the land, and there is no easement known to law which gives exclusive and unrestricted use of a piece of land.”

[104] The applicants rely upon the decision in Smith v. Morris. In this case, the Court of Appeal held that the owner of the dominant tenement was entitled to do what was necessary in order to use the easement as it was intended to be used at the time of the grant. Specifically, the owner of the dominant tenement could alter the grade of the easement to allow him to build a driveway. The Court concluded that the easement was originally granted for this purpose. Additionally, the easement owner’s rights to build the driveway were limited; he had to build a retaining wall to ensure it would not impact the remainder of the servient tenement, retained by the grantor.

[105] The Court’s conclusion in Smith, at p. 4, that the owner of the dominant tenement’s rights were superior to any claims of the owner of the servient tenement, was in my view limited to the facts of that particular case and the court expressly stated so by using the words “in the circumstances here existing.” Thus, I have concluded that the long standing law in regard to the respective rights of the dominant and servient tenements, under the grant of an easement, remains as I have considered it above.

[106] The material time for assessment of the surrounding circumstances is at the time when the deed conveying the easement to Ms. Imrie was granted, not the time when the conveyance of the property to the applicants was being negotiated. The applicants stand no higher in title and right, in respect of the easement and the ROW, than did their predecessors in title, Ms. Imrie and Mr. Hebert.

[107] Having considered the clear and uncontradicted evidence as to the surrounding circumstances at the time the deed of easement was granted to the Ms. Imrie, which easement in turn was conveyed through the subsequent owner Mr. Hebert to the applicants, and having considered the express language in the deed within the context of the applicable legal framework, I have concluded that there is no basis upon which the applicants can assert that the public can no longer have pedestrian access over the ROW or that the applicants are entitled to exclusive rights over the easement conveyed by title to them. As a result, the applicants are not entitled to the declaratory or injunctive relief sought against OHT as outlined in their application.

[108] I have also concluded that the applicants are subject to the legal maximum caveat emptor: Cotton v. Monahan, 2010 ONSC 1644, 93 R.P.R. (4th) 212, at paras. 42 – 43, aff’d 2011 ONCA 697.

[109] As was noted by the trial judge in Cotton at paras. 43 – 50, the primary obligation is on the purchaser to not be ignorant of the nature of the purchased interest. This case is not one involving latent defects going to title or defects with respect to the physical condition of the property acquired by the applicants. The existence of the ROW was fully known to the applicants, their real estate agent, and presumably their solicitor who were involved in the applicants’ acquisition of the land. Alternatively, I conclude that the applicants were wilfully blind to the existence of the ROW.

[110] The applicant Ms. Raimondi acknowledges having simply relied upon their real estate agent’s representations that they had exclusive access over the ROW. However, she also stated that the real estate agent contacted them after their purchase to facilitate a meeting with neighbours to arrange for their access of the ROW. I am left with significant doubt and concern as to the accuracy, reliability and credibility of the evidence offered by Ms. Raimondi regarding her overall knowledge and understanding of the applicants’ rights with respect to the ROW and the easement, prior to and after their purchase of the subject property.

[111] These concerns as to her credibility also arise from the deceptive and misleading evidence offered by her in her carefully worded affidavit filed in support of this application. I have concluded that she was attempting to mislead the court and the parties opposite as to the nature of the signage in place at the entrance and along the route of the ROW.

[112] In this application the applicants are seeking equitable relief in regard to the respondents, including injunctive relief. While the application of the doctrine of caveat emptor to these facts is not necessarily determinative of the outcome of this application, certainly the failure by the applicants to recognize the requirements of this doctrine and their apparent willful blindness, as to the status of the ROW and the related easement rights, would weigh heavily against their claim for any equitable relief in these circumstances.

[113] Although it has been considered that a remedy in the form of declaratory relief may be seen to be sui generis, equitable principles such as clean hands can play a role in the exercise of the court’s discretion whether or not to grant the remedy: Hong Kong Bank of Canada v. Wheeler Holdings Ltd., [1993] 1 S.C.R. 167, at paras. 33 – 36.

[114] For the reasons already expressed regarding the applicants’ conduct in misrepresenting evidence to the court and to the parties opposite, I have concluded that they have failed to come to court with clean hands and as such the remedies of the declaratory and injunctive relief sought should be denied on this basis as well.

[115] The evidence is clear that the applicants were aware of the fact that the OHT owned all the surrounding lands prior to their purchase. The applicants could have contacted the OHT, but did not do so, to obtain information as to the rights over which the easement was granted. The evidence of the applicant Ms. Raimondi leads me to the conclusion that the applicants failed to take any steps to appreciate the use of the ROW by the public prior to their purchase and instead assert that the ROW is or should be restricted for their exclusive use.

No Substantial Interference Experienced by the Applicants:

[116] The applicants, in addition to their submissions urging their rights to exclusive use of the ROW, also assert that there has been a substantial interference with their use of the easement in respect of the ROW.

[117] The courts have applied a “substantial interference” test when assessing whether a dominant tenement’s rights to an easement have been improperly diminished.

[118] In its decision in Weidelich v. de Konig, 2014 ONCA 736, 122 O.R. (3D) 545, at para. 12, the Court of Appeal applied the substantial interference test to determine the practical effect on the dominant tenement and stated as follows:

The requirement that the dominant owner prove substantial interference to maintain a claim reflects the nature of the dominant owner’s rights. He or she does not own the right-of-way or the land upon which the right of way runs, but only enjoys the reasonable use of that property for its granted purpose. The dominant owner may only sustain a claim predicated on substantial interference with that reasonable use. The distinction is between the rights of ownership and the right of reasonable use for an identified purpose.

[119] The express language of the deed granting the easement directs that the transferor covenants not to plant any trees or brush on the lands, not to erect any buildings, structures and other man made obstructions on the land. There is nothing in the language of the deed itself which would support the suggestion that pedestrians on the ROW could constitute an obstruction of a prohibited nature. The examples set out in the deed suggested prohibited construction would be of a fixed or structural nature.

[120] Regarding the evidence offered by the applicants as to the alleged “substantial interference,” I have concluded that it is significantly lacking both in cogency and substance. Notably, the applicants have refused to produce a large number of video recordings in their possession purportedly demonstrating a substantial interference in their use of the easement, including their access and egress over the ROW. Similarly, the applicants have also refused to produce still photographs taken on their property which allegedly show the presence of an individual or vehicle near their property line.

[121] In view of the applicants’ continuing refusal to produce evidence to the respondents and the Court, which they say supports their contention that the public’s use of the ROW has constituted a substantial interference in their rights, it is reasonable for me to draw an adverse inference against the applicants as to the quality and cogency of the evidence available. In these circumstances, I do draw such an adverse inference.

[122] Only after the extent of an easement has been determined, should the court consider whether what has been done by the servient tenement owner constitutes a substantial interference with the intended use and enjoyment of the easement: Fallowfield v. Bourgault, supra.

[123] In the case of Gardiner v. Robinson, 2006 BCSC 1014, at paras. 22 and 28, the Court held that the installation of locks on a gate was not a substantial interference. It held that if the owners’ legitimate use of land causes inconvenience to the grantee of the easement, then the reasonableness of the interference must be assessed to determine if it is a substantial interference. Minor inconvenience to a grantee is justified by the legitimate needs of owners in carrying out their operations.

[124] In the decision of Matthews et al. v. Plympton (Township) (1982), 37 O.R. (2d) 382 (S.C.), aff’d (1983) 42 O.R. (2d) (C.A.), at paras. 12-16, the Court considered what constituted a substantial interference in the use of an easement and determined that the plaintiff’s use of an easement could be subject to an extension of a public road across the right-of-way. While it would create additional traffic and parking and some additional inconvenience, the court concluded that this did not amount to a “substantial interference.”

[125] In Matthews, Craig J. stated at para. 13:

The rights acquired by the plaintiff are determined, firstly, by the language used in the grant, but the surrounding circumstances may be looked at for the purpose of construing the extent of the rights conveyed.

[126] In concluding that the plaintiff’s action should be dismissed Craig J. stated at para. 16:

… I am satisfied that the Plaintiffs will have somewhat less privacy in going to and from the lake and that there may be some additional slight inconvenience that does not now exist. However, I do not equate those matters with “Substantial Interference”. From a practical point of view the right of passage can be exercised without any substantial interruption. I find as a fact that what is now proposed by the Defendant will not amount to substantial interference with the Plaintiffs’ right of way…

[127] In the decision Leroux v. Casselman (Village), 2011 ONSC 4070, Métivier J. considered several acts by the defendant village which allegedly constituted substantial interference with the plaintiffs’ use of a right-of-way granted to them. Prior to the alleged acts of interference by the village, the plaintiffs had used their right-of-way for access to their business and rental apartments located on the second floor of their building. As part of a revitalization plan by the village, it set out to make improvements to an area nearby to the plaintiffs’ property in a central location in the village, near historical buildings such as the train station and a church.

[128] At para. 20 of her reasons for judgment, the trial judge outlines several alleged acts of interference by the defendant village asserted by the plaintiffs as constituting substantial interference with their use of their right away. On considering the evidence, the Court concluded that the defendant village was liable to the plaintiffs as the grantee of the right-of-way for damages in trespass. The Court further found that there had been unreasonable interference with the plaintiffs’ right-of-way by the defendant village. However, the Court declined to grant an injunction enjoining the village from using the space in question as it had been. The Court ordered that the defendant village take reasonable and appropriate steps to ensure that there would be no further nuisance, trespass or interference with the plaintiffs’ right-of-way and also noted that the plaintiffs did not have the right to exclusive access to the right-of-way.

[129] The Leroux decision is easily distinguishable on its facts from this case. In this case, the applicants assert several instances of alleged interference in their use of the easement granted to them including:

1. the presence of pedestrians on the right-of-way and the requirement that the applicants have to slow their vehicles down or stop to ensure safety. The applicant Ms. Raimondi attached to her affidavit as Exhibit “K” a photograph taken from the applicants’ vehicle. It shows a group of young smiling hikers clearing space for the vehicle along the ROW;
2. Ms. Grant is depicted in a video showing a woman, child and dog on the ROW. The video depicts the applicants’ vehicle slowing down as they pass the pedestrians. The child and then the female move out of the way to make way for the vehicle;
3. the applicants complain of the delay when they plow the snow on the right-of-way. The applicant states that given the machinery used, there is a need to maneuver over the right-of-way in a particular way, as a result they have to wait for pedestrians to leave the ROW;
4. the applicants complained of instances of vehicles being on the right-of-way. The OHT only permits pedestrians access on the ROW and as such, instances of unauthorized vehicles on the ROW are not supported by the OHT.

[130] In spite of the applicants’ assertion that there has been substantial interference in their use of the easement, there is no evidence of any obstruction of the applicants’ use of the ROW or easement except on one occasion where a vehicle entered the ROW and became stuck. The applicants have failed to offer any evidence as to the frequency, volume or number of incidents alleged or circumstances where pedestrians interfered with their use of the ROW or easement. The only evidence as to the volume of pedestrian traffic of any reliability and cogency is that offered by the respondent OHT in the User Studies produced for the years 2013 to 2015, which show on an annualized basis average daily visits across the ROW by 5 pedestrians. This evidence supports a finding that there was no substantial interference or interaction between the applicants and pedestrian users of the ROW and easement. In the decision Donald v. Friesen (1990), 72 O.R. (2d) 205 (Dist. Ct.), the Court noted that the presence of 5 or 6 vehicles per day in the summer months on a right-of-way was not excessive.

[131] The court has interpreted the expression “exclusive, free, uninterrupted and unobstructed” to mean that the right of the easement holder is not primary, absolute or even superior to the land owner’s rights: Remicorp Industries Inc. v. Metrolinx, 2016 ONSC 10 at para. 21. The holder of the easement does not own the right away but only enjoys the reasonable use of that property for its granted purpose: Weidelich, supra, at para. 12. In order to have an actionable claim, the applicants must establish that the public’s use of the ROW represented a substantial interference with their reasonable use of the ROW: Voye v. Hartley, 2002 NBCA 14, 247 N.B.R. (2d) 128, at para. 25.

[132] A substantial interference with the property rights of the grantee of an easement is one that is not trivial. As was noted by the Court in Matthews, an increase in traffic on an easement following the grantor’s invitation to others to use the right-of-way alone does not amount to a substantial interference, even in circumstances where the grantee’s privacy may be lessened as a result. The grantee must demonstrate that he can no longer exercise his reasonable rights of passage without substantial interruption or interference: Matthews, supra, at para. 16. The applicants have offered no such evidence beyond possible interference of a minor and infrequent type.

[133] As to vehicles entering the ROW, the applicants’ evidence is that since they took title to the property in 2012, there have only been 6 instances of vehicles entering the ROW.

[134] The applicants also assert that their own personal safety has been substantially interfered with and in their evidence referred to one occasion when a vehicle entered the ROW and became stuck. The applicants submit that this could possibly have impeded emergency vehicles travelling up the ROW to their home. This never occurred and as such the concern is speculative as to this particular incident. In regard to vehicular access to the ROW, in the case of an emergency at the applicants’ home, it is notable that there is evidence that the applicants have locked the gate at the Scott Street entrance to the ROW to block vehicles from entering the ROW, which would certainly limit the easy access of an emergency vehicle.

[135] The use of the ROW and easement must also be examined within the geographic context where the properties in question are located. The trails on the Willoughby Property where the ROW is located are and have been for many years used by hikers, dog walkers and for many other outdoor activities by members of the public. OHT has invited the public to use the ROW and connected trail systems for many years and as such it would be entirely unreasonable and inconsistent with the historical use of these lands, for the benefit of the citizens of Ontario, if the applicants were granted exclusive use of the ROW to the exclusion of all other citizens of the province.

[136] It was also submitted on behalf of the applicants that the public use of the ROW as permitted by OHT, was an enlargement or expansion of the rights of the OHT as the grantor of the easement to the applicants. I have concluded that there is no such evidence to support the applicants’ position. The OHT as the grantor, retaining the fee simple interest in the ROW, has every right to invite the public on to the ROW, so long as there is no substantial interference with the applicants’ rights of access and egress by way of their easement.

[137] On the whole of the evidentiary record, I cannot find that there has been a substantial interference in the applicants’ reasonable use of the easement and/or the ROW. They claim to have other evidence of interference on the video recordings referred to, however this was never shared with the respondents nor presented to the Court. I accept the uncontradicted evidence offered on behalf of OHT as to the volume of pedestrian traffic on the ROW/easement. The evidence demonstrates that the volume of pedestrian traffic into the ROW and easement on a daily annualized basis is modest and cannot form the basis for a conclusion that it would constitute a substantial interference with the applicants’ rights.

[138] At its highest, the interference with the applicants’ rights within the terms of the granted easement can be described as a minor and infrequent inconvenience, limited to times when they are entering or leaving their property and it does not in any way interfere with the reasonable use of the easement by the applicants.

[139] Balancing the minor and infrequent inconvenience to the applicants against the permitted use of the ROW by the public, the inconvenience incurred comes nowhere close to constituting a substantial inconvenience or an inconvenience in respect of which the court would grant the injunctive or declaratory relief sought.

[140] As outlined at the beginning of these reasons in paras. 7 through 21, the purpose of the OHT acquiring the property in question was to protect the Property and to provide public access to the Niagara Escarpment, the Bruce Trail, with OHT holding title to the property including the ROW in trust for the citizens of Ontario. The OHT’s mandate, as outlined in the evidentiary record, is in part to identify, protect, renew and promote Ontario’s diverse cultural and natural heritage. These terms of its mandate are clearly set out in its statutory objectives in the Ontario Heritage Act, ss. 7(b), (c), (d). The citizens of Ontario have a significant interest in preserving, accessing and enjoying the lands and environment within the areas of the Niagara Escarpment and Bruce Trail and so their interests and all of the circumstances must be weighed as against the minor inconvenience encountered by the applicants when considering the applicants’ claims. The rights and interests of the citizens of Ontario in this case must prevail over those of the applicants who are encountering only minor and infrequent inconvenience resulting from the public access to the ROW.

[141] In the result, the applicants’ claims as against OHT must be dismissed in their entirety.

Applicants’ Claim for Injunctive Relief against the Respondent Ross:

[142] As noted at the beginning of these reasons, the applicants are only pursuing the respondent Ms. Ross for the injunctive relief set out in paragraph 1(d) in the prayer for relief in the Notice of Application. The other relief sought from this respondent will be separately pursued in an action by way of a statement of claim that has been issued.

[143] The relief sought in respect of the Ms. Ross on this application is for a permanent injunction prohibiting her from publishing anything that states expressly or by implication that 100 Scott Street, the applicant’s home or the ROW are part of a public trail system, part of public lands or part of the “Willoughby Property”.

[144] The basis for the applicants’ position and the evidentiary foundation for their claim of entitlement to a permanent injunction enjoining the respondent Ross is far from clear. The applicants have separately asserted in the Notice of Application in paragraph 1(e) of the prayer for relief various causes of action including claims with respect to defamation, however all causes of action will be proceeding via an action in accordance with the statement of claim that has been issued.

[145] During submissions by counsel on behalf of the applicants, it was urged that an injunction should be granted, as requested, on the basis of slander of title, although such claim has never been expressly asserted in the application nor articulated in the evidence filed in support of the application.

[146] The applicants’ claim for an injunction as against Ms. Ross appears to be based on alleged defamatory words in Ms. Ross’ publications wherein she indicates that the ROW was open to the public, as well as with respect to certain statements she made at a Caledon Town Council meeting.

[147] Even if it were later determined that my conclusions above with respect to the success of the applicants’ application as against OHT were in error, I have concluded that the applicants have no maintainable claim for any form of declaratory or injunctive relief as against Ms. Ross.

[148] In the applicants’ pleadings, namely their Notice of Application and supporting affidavit evidence, they do not expressly assert a claim based on slander of title, nor do they do so indirectly, within the context of the limited relief sought on this application under paragraph 1(d) of their application.

[149] Counsel for the applicants, in her submissions, urged that the words written and spoken by the respondent Ms. Ross constituted the basis of a cause of action in slander of title, although such a cause of action has not been pleaded.

[150] It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings – the parties are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings: Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, supra; Rodaro v. Royal Bank Of Canada.

[151] Although not fully supported by the relief sought in the Notice of Application or the evidentiary filed on behalf of the applicants, in view of the submissions made by counsel for the applicants, I will nevertheless consider the submission that Ms. Ross’ words as written and allegedly spoken constituted slander of title in respect of the applicants’ property, and that this would form a basis for the granting of a permanent injunction.

[152] Slander of title is a particular application of the tort of malicious falsehood. The test for slander of title requires that the statements in question, which were made or published about the plaintiff’s property, were untrue, were made with malice and the plaintiff suffered actual economic loss as a result. The Libel and Slander Act, R.S.O. 1990, c. L.12, s.17 further provides that economic loss need not be proven if it is shown that the statements were made for the purpose of causing pecuniary loss to the plaintiff.

[153] Section 17 of the Libel and Slander Act reads as follows:

Slander of title, etc.

17. In an action for slander of title, slander of goods or other malicious falsehood, it is not necessary to allege or prove special damage,

(e) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or (f) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication,

and the plaintiff may recover damages without averment or proof of special damage. R.S.O. 1990, c. L.12, s. 17.

[154] The applicants’ claim for a permanent injunction against Ms. Ross is purportedly founded upon the assertion that the ROW is a private driveway for the exclusive use and benefit of the applicants. It is further asserted by the applicants that Ms. Ross wrote and published a book called “Caledon Hikes, Loops and Lattes.” The book contains various hiking trail maps. In her supporting affidavit on this application, the applicant Ms. Raimondi states at paragraph 21 that in writing about the “Willoughby Property,” Ms. Ross “implied the ROW is municipally-owned and wrote “Pedestrians are welcome.” The applicant further asserted in her affidavit that Ms. Ross published the book “knowing our legal position respecting the ROW and knowing that we were working with the OHT to find a solution without having to resort to legal proceedings.”

[155] Further, Ms. Ross posted a video on her own website of the sign located at the entrance to the ROW at Scott Street and on this video she read the words from that sign (transcript at Exhibit “O” of the affidavit of Nancy Raimondi). In the audio accompanying this video, Ms. Ross refers to the ROW as belonging to the Ontario Heritage Trust and indicated that pedestrians were welcome.

[156] In her affidavit at paragraphs 24 through 29 inclusive, Ms. Raimondi outlines allegations with respect to the conduct of Ms. Ross regarding parking problems which allegedly arose on Scott Street in the vicinity of the ROW, including statements allegedly made by Ross at a Town of Caledon council meeting on July 8, 2014. The essence of the facts alleged in those paragraphs of her affidavit relate to words spoken by the respondent Ross for the alleged purpose of discrediting the name and character of the applicant Idalgo Raimondi. The words allegedly spoken by Ms. Ross may be open for consideration in a claim for defamation, however the words alleged do not bear on the applicants’ claim for injunctive relief based on slander of title, nor do they have any direct link to the applicants’ assertion that they have an exclusive right of use over the ROW.

[157] Therefore, in examining the applicants’ claim for injunctive relief against Ms. Ross, I have limited my consideration to the evidence offered by the applicants that is directly connected with their title rights to the property and their easement and the ROW. All other claims in the nature of defamation may be advanced by the applicants by way of the separate civil action instituted by them.

[158] I have concluded that the applicants have failed to adduce any evidence supporting the claim in slander of title as against Ms. Ross. While Ms. Ross makes reference to the ROW in her publications in passing, the absence of any reference by her to the applicants’ property as being private property would not in itself constitute slander of title.

[159] As to Ms. Ross’ statements regarding the public’s use of the ROW, those statements are entirely consistent with the position taken by the OHT, as owner of the ROW and as the servient tenement under the easement granted to the applicants. Thus, given the position of OHT and now given the conclusions I have reached, as outlined above, as to the applicants’ rights under their easement, the statements made by Ms. Ross cannot be considered as false within the context of the applicants’ claim for injunctive relief based on slander of title.

[160] Further and in any event, it would be necessary for the applicants to demonstrate that the statements made by the respondent Ms. Ross were made with malice. It is clear that there is some ill-will between the applicants and Ms. Ross, however it is also clear from the record that the respondent took all reasonable steps to ensure that the representations she was making accurately reflected the rights of the public with respect to the ROW. As such, even if they were made within the context of the tension between these parties, the statements were not made maliciously.

[161] Finally, it was incumbent upon the applicants to demonstrate that Ms. Ross’ conduct caused actual economic loss flowing from the slander of title or that such loss was intended by the respondent when her statements were made. There is no such evidence of economic loss of or any intention on the part of Ms. Ross to inflict economic loss upon the applicants.

[162] Therefore, I must conclude that the applicants have failed in establishing liability on the part of Ms. Ross for slander of title.

[163] Even if the applicants were successful in establishing that Ms. Ross’ words as written and published or spoken by her were in any way slanderous, with respect to the title to the applicants’ property, it has been held that the granting of an an injunction to restrain publication of alleged libels is an exceptional remedy, granted only in the rarest and clearest cases: Canada Metal Co. Ltd. V. Canadian Broadcasting Corp. et al. (1975), 7 O.R. (2d) 261 (Div. Ct.). In Canada Metal, Stark J. on behalf of the Court stated that “reluctance to restrict in advance publication of words spoken or written is founded, of course, on the necessity under our democratic system to protect free speech and unimpeded expression of opinion. The exceptions to this rule are extremely rare.”

[164] The Canada Metal decision is most apt in this case. As such, I have concluded that even if the Ms. Ross’ spoken or published words were slanderous as to the applicants’ title, the granting of a permanent injunction, as requested, would not be a proper remedy in the circumstances. A remedy in damages would have more than adequately protected the applicants had it been determined that Ms. Ross’ words constituted slander of title.

[165] In the result, the application is dismissed as against the respondent Ms. Ross.

Conclusion:

[166] For the reasons expressed, the application is dismissed as against both respondents.

[167] If the parties are unable to resolve the issue of costs, counsel for the respondents shall file costs submissions including bills of costs within 20 days, followed by costs submissions within 20 days thereafter from the applicants. No reply submissions shall be filed without leave.

Daley, RSJ. Released: June 12, 2017