CITATION: Clarke v. Kokic, 2017 ONSC 6485
COURT FILE NO.: 125/17
DATE: 2017 10 30
SUPERIOR COURT OF JUSTICE – ONTARIO
Dale Clarke and Lorraine Clarke
Applicants
-and-
Esad Kokic and Behra Kokic
Respondents
BEFORE: Bloom, J.
COUNSEL: T. D. Johnson, for the Applicants
Leigh Fishleigh, for the Respondents
E N D O R S E M E N T
I. INTRODUCTION
[1] The Applicants seek declaratory and injunctive relief in respect of the alleged interference by the Respondents with an easement.
II. FACTS
[2] The Applicants own 101 St. Andrew St. W., Fergus, Ontario, a historic three-storey building. The Respondents own the adjacent property, 135 St. David St. The buildings are joined.
[3] The Applicants own a right of way over a portion of 135 St. David. 101 St. Andrew is the dominant tenement and 135 St. David is the servient tenement. The right of way is an easement registered on the title of both properties.
[4] The easement is principally over a narrow hall and staircase at St. David. Further elements of the right of way material to the dispute are access on the first floor from a door at 135 St. David, and also from a rear door on the first floor; as well, there is an interior door on both the second and third floors between 101 St. Andrew and 135 St. David.
[5] Both the Applicants and Respondents were aware of the easement before purchasing their respective properties.
[6] The Applicants are renovating 101 St. Andrew with the intention of commercial use on the first two floors and residential use on the third. They have installed an internal stairway between the second and third floors; the result is that the right of way will no longer be the principal access to the second and third floors, and the doors on the second and third floors will serve as emergency exits rather than the entry way from the St. David stairway and hall to St. Andrew. In this connection it should be noted that prior to the renovations there was already a stairway to the second floor in the St Andrew property, but it is unclear when it was built. Moreover, use of the right of way is required by the Applicants in order to secure an occupancy permit from government once the renovations are finished. Those renovations also include widening the door frame of the third floor door, as well as replacing the second and third floor doors with doors which comply with applicable building and fire regulations.
[7] In February of 2017, the Respondents changed the locks on the first floor doors without providing keys to the Applicants. The Respondents also cut off access to the second and third floor doors with plastic. Later they used sheet metal.
[8] Pending my decision of this matter Justice Daley granted injunctive relief preventing obstruction of the right of way.
III. GOVERNING PRINCIPLES
[9] A number of principles apply to an easement creating a right of way. I will now set out those which apply to the matter before me.
[10] A useful starting point is the following discussion from Anne Warner La Forest, Anger& Honsberger Law of Real Property 3rd ed. (Aurora: Canada Law Book, 2006) Vol. 2 ch. 17:20.30(a) and (b):
A private right-of way is an easement which permits the owner of the dominant tenement to pass over some defined portion of the servient tenement in order to gain access to or egress from the dominant tenement for some purpose connected with the better enjoyment of the dominant tenement
A right-of-way is an easement only and must be distinguished from the fee simple in the land over which the right is exercised. The owner of the servient land may exercise all other rights of ownership not inconsistent with the right-of-way and may exclude those not entitled to the easement….The nature and extent of a right-of-way created by an express grant depends on the proper construction of the language of the instrument creating it. The following rules apply in interpreting the instrument:
(1) The grant must be construed in light of the situation of the property and the surrounding circumstances, in order to ascertain and give effect to the intention of the parties. (2) If the language of a grant is clear and free from doubt, such language is not the subject of interpretation, and no resort to extrinsic facts and circumstances may be made to modify the clear terms of the grant. (3) The past behaviour of the parties in connection with the use of the right of way may be regarded as a practical construction of the use of the way. (4) In case of doubt, construction should be in favour of the grantee.
The use of a right-of-way must be within the terms of the grant…and must be reasonable.
[11] In Fallowfield v. Bourgault, 2003 CanLII 4266 (ON CA), [2003] O.J. No. 5206 (Ont. C.A.) Justice Feldman for the majority considered the concept of ancillary rights at paras. 11 and 19:
11 In interpreting the meaning and intent of an express easement, the concept of ancillary rights arises. The grant of an express easement includes such ancillary rights as are reasonably necessary to use or enjoy the easement. However, to imply a right ancillary to that which is expressly granted in the easement, the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable. Halsbury's explains the concept at p. 10, para. 20, in the following way:
The express grant of an easement is also the grant of such ancillary rights as are reasonably necessary for its exercise or enjoyment. The ancillary right thus implied must be necessary for the use and enjoyment, in the way contemplated by the parties, of the right granted; it is not sufficient that such an ancillary right would be convenient, usual, common in the district or reasonable. The most usual example of such an ancillary right is the right of the dominant owner to enter the servient tenement and execute such repairs upon the subject matter of the easement as are reasonably necessary for the enjoyment of the easement. The dominant owner is entitled to protect his right to enter and repair by preventing the doing on the servient tenement of anything which would materially interfere with or render more expensive or difficult the exercise of the right, and the court will restrain such an interference by injunction. It is no defence to proceedings by the dominant owner to show that he may still exercise his right if he only expends more money or exercises greater skill.
19 Once the wording of the grant has been interpreted in the context of the circumstances that existed at the time it was deeded, the next question is whether there are any ancillary rights, not included in the wording of the granted easement, that are reasonably necessary for the respondents to be able to exercise their use of the easement.
[12] The extinguishment of an easement created by express grant may be by abandonment. In 2108133 Ontario Inc. v. Kabcan Foods Ltd., [2009] O.J. No. 951 (Ont. S.C.) at para. 8 Justice Aitken explains the elements of abandonment:
8 The law regarding abandonment of an express right-of-way is well settled. The following principles apply:
Abandonment is a question of fact. (455645 Ontario Ltd. v. Rousseau (1981), 19 R.P.R. 1 (Ont. H.C.) at para. 25).
The onus of establishing the loss or extinction of an express right-of-way by abandonment or non-user rests upon the party asserting it. (Liscombe v. Maughan (1929), 1928 CanLII 450 (ON CA), 62 O.L.R. 328 (S.C. App. Div.) at para. 28; 455645 Ontario Ltd. v. Rousseau, supra, at para. 31; Peters v. Palmer (2000), 34 R.P.R. (3d) 143 (Ont. S.C.J.) at para. 21).
The only way in which a right-of-way can be extinguished by the act of the parties interested is by release, actual or presumed. (Liscombe v. Maughan, supra, at para. 28).
In the absence of an actual release, non-user is essential to abandonment. (455645 Ontario Ltd. v. Rousseau, supra, at para. 27; Peters v. Palmer, supra para. 22).
Non-user and nothing more, however, is not sufficient to permit a conclusion of abandonment. (455645 Ontario Ltd. v. Rousseau, supra, at para. 27).
When a right of way has its origin in an express grant, it is not lost by mere non-user; there must be some intention to abandon this property right. (Closs v. Ferguson (1923), 24 O.W.N. 199 (Div. Ct.); Peters v. Palmer, supra, at para. 21). The intention to abandon means that the person entitled to the right-of-way has knowingly, and with full appreciation of his rights, determined to abandon it. (Liscombe v. Maughan, supra; Peters v. Palmer, supra).
In some circumstances, evidence of non-user may lead to a finding of acquiescence on the part of the holder of title to the right-of-way. (455645 Ontario Ltd. v. Rousseau, supra, at para. 29). Non-user will not have the effect of establishing abandonment unless a release can be implied from such non-user and the surrounding circumstances. (Liscombe v. Maughan, supra, at para. 28).
All of the evidence bearing upon the issues of non-user, acquiescence and abandonment must be considered.
Including the express right-of-way in a registered conveyance is evidence that abandonment was not intended by the owner of the dominant tenement or not presumed by the owner of the servient tenement. (Liscombe v. Maughan, supra at para. 32).
[13] If the use of the easement remains “of the same general nature”, even if there is an increased burden on the servient tenement by virtue of more frequent use, the Ontario Court of Appeal has held in Almel Inc. v. Halton Condominium Corp. No. 77, 1997 CanLII 14498 (ON CA), [1997] O.J. No. 824 at para. 8 that the use “can reasonably be said to have been in the contemplation of the parties at the time of the grant.”
[14] In Weidelich v. De Koning, 2014 ONCA 736, [2014] O.J. No. 5062 (Ont. C.A.) at para. 10 Justice Doherty for the Court held that “an encroachment on a private right-of-way is actionable only where the encroachment substantially interferes with the dominant owner’s ability to use the right-of-way for a purpose identified in the grant.”
[15] In Parkinson v. Reid, 1966 CanLII 4 (SCC), [1966] S.C.R. 162 at p. 167 Justice Cartwright for the majority affirmed that the duty of the owner of the servient tenement to repair the right of way does not run with the land:
The reasons for judgment of the Court of Appeal were delivered by Kelly J.A. After reciting the facts he held, (i) that there was no privity of contract between the plaintiff and the defendants, (ii) that there was no privity of estate between them and, (iii) that the covenant to repair and reconstruct the stairway did not run with the land. I agree with the views of the learned Justice of Appeal on these three points. They do not require elaboration. As to the third point the law is accurately and succinctly stated in Gale on easements, 12th ed. at p. 77 as follows:
The rule in Tulk v. Moxhay does not extend to affirmative covenants requiring the expenditure of money or the doing of some act. Such covenants do not run with the land either at law or in equity. The doctrine only applies to covenants which are negative in substance though they may be positive in form.
[16] In the case at bar it is clear that the easement was created by express grant. There are other ways in which easements may come into existence. One of those is by necessity. I make this observation because there was some suggestion by the Respondents that I should apply principles pertaining to easements of necessity.
IV. ANALYSIS
[17] The Applicants asserted in oral argument that the Respondents’ conduct in relation to the right of way were actionable as constituting substantial interference with their ancillary rights under the easement. They seek by way of remedy for this interference a declaration that the right of way is valid; and injunctive relief preventing any interference with their rights under the easement.
[18] The Respondents submit that the right of way has been extinguished and seek a declaration to that effect. Alternatively, they submit that the renovations proposed by the Applicants exceed their rights under the easement, and seek declaratory relief to that effect; as well they seek declaratory relief vindicating their own uses of the portion of the servient tenement subject of the easement.
[19] Applying the principles earlier set out, I find that the easement in question has not been extinguished by actual release by the Applicants or by abandonment. The Respondents have not discharged their onus to prove extinguishment by either of those methods. There is no evidence of either non-user of the easement by the Applicants or intention on their part to abandon it.
[20] The real issue is whether the renovations come within the Applicants’ ancillary rights under the easement. Applying the principles discussed above, I find that the Applicants’ renovations fall within their ancillary rights under the right of way. Those renovations are reasonably necessary for the exercise and enjoyment of the easement in the way contemplated by its grant.
[21] The easement clearly at the time of its grant contemplated that ingress and egress in respect of the St. Andrew property would be made using the easement. It was conceded by the Respondents in the cross-examination of the Respondent, Esad Kokic, on June 14, 2017 in the answers to question 123 to 132 that that right of egress included egress from the third floor of the St. Andrew property in the event of a fire.
[22] The renovations would render the second and third floor doors emergency exits, allowing escape, for example in the event of a fire, by means of the right of way through the St. David property. That user enabled by the renovations falls within what was contemplated by the grant as demonstrated by the admission in cross-examination just set out.
[23] The widening of the third floor door frame and the replacement of the second and third floor doors with those which comply with applicable building and fire regulations fit within the ancillary rights of the Applicants. The user of the easement is simply being adapted to evolving conditions, including modern governmental regulations designed to protect the public in the event of a fire emergency.
[24] The Respondents’ change of the locks on the first floor doors without giving the Applicants new keys, and the Respondents’ closing of the second and third floor doors with plastic or sheet metal both substantially interfere with the Applicants’ rights under the easement. I grant an order declaring that the easement is valid; and enjoining the Respondents to provide keys to the Applicants for the first floor doors, and to refrain from blocking the second and third floor doors and otherwise interfering with the Applicants’ use of the easement.
[25] I am specifically not addressing any issues relating to the maintenance procedures and costs regarding the property subject of the easement. If the parties are unable to agree on a solution to any such issues that arise, these matters can be litigated on a full evidentiary record. Those issues are not before me, nor is there an evidentiary record upon which to decide them.
[26] Finally, I note that the Applicants in Schedule “B” to their reply factum specifically took no issue with the washers and dryers which the Respondents have placed on the right of way. I, therefore, note that my order does not require that the Respondents move those machines.
V. COSTS
[27] If the parties are unable to agree on costs, I will receive written submissions in that regard. The Applicants are to serve and file their submissions within two weeks of release of this endorsement. The Respondents are to serve and file their submissions within two weeks after service of the Applicants’ submissions. There shall be no reply.
Bloom, J.
DATE: October 30, 2017
CITATION: Clarke v. Kokic, 2017 ONSC 6485
COURT FILE NO.: 125/17
DATE: 2017 10 30
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Dale Clarke and Lorraine Clarke - and - Esad Kokic and Behra Kokic
BEFORE: Bloom, J.
ENDORSEMENT
Bloom, J.
DATE: October 30, 2017