Court File and Parties

BARRIE COURT FILE NO.: CV-17-0892 DATE: 20180820 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Colleen Conkie Applicant – and – Susan Bugow Respondent

Counsel: Michael Miller, for the Applicant Susan Bugow, Self-Represented

HEARD: July 27, 2018

Reasons for Decision

DE SA J.:

[1] The Applicant’s properties were inherited from her mother, Mabel Commandant, who took title from the Applicant’s late father, Arthur Commandant.

[2] Arthur Commandant had subdivided the lands into lots in 1978. In order for the late Arthur Commandant to gain access to his properties, it was necessary for him to build an access road across what is now the Respondent’s property.

[3] Arthur Commandant entered into a written agreement with the Respondent’s predecessor in title (Gladys Rex) that, in consideration of the payment of $200, the then owner of Park Lot 46 in Concession 8 in the Township of Muskoka Lakes, would grant him an easement across her property.

[4] Prior to building the access road, Arthur Commandant required an entrance permit from the Ministry of Transportation in order to construct an entrance for his roadway onto what is now Muskoka Road No. 38.

[5] He also obtained a work permit from the Ministry of Natural Resources on July 13, 1976, and permission from the Township of Muskoka Lakes as his road was intended to cross a portion of a municipal road allowance. That permission was granted in a letter from the Township of Muskoka Lakes on July 20, 1976.

[6] Arthur Commandant constructed the road, and obtained all the necessary permits and authorizations to construct his access road. Unfortunately, he failed to register the easement on the title to Gladys Rex’ property.

[7] The Applicant and her husband assumed responsibility for maintenance of the subject roadway after her father’s death. By the summer of 2002, when the first Certificates of Possession were issued to her by Indian and Northern Affairs, the Respondent’s home as well as the tenant residencies, had been built and were occupied. The Applicant and her husband, with the assistance of their tenants gravelled and graded the road using heavy equipment.

[8] The Applicant, her tenants and her predecessors in title, have accessed their homes on the Musquash River via this easement for over 40 years.

Attempt to Formalize Agreement

[9] Because the Applicant wished to ensure that her estate could deal with her waterfront lots without difficulty, she and her husband, approached the Respondent asking if they could formalize the easement arrangement her father had with the Respondent’s predecessor in title by arranging to have the roadway surveyed and an easement registered on title.

[10] The Respondent was agreeable to such an easement so long as any costs to be incurred were at the Applicant’s expense. The agreement between the Applicant and the Respondent was oral.

[11] On the basis of this agreement, the Applicant applied for a severance. The Committee of Adjustment for the Township of Muskoka Lakes provided its consent to the severance on December 11, 2014 with the condition that a survey of the lands to be severed be completed.

[12] The Applicant then arranged for surveying work to be conducted on the Respondent’s property to define the right-of-way.

[13] The Bunker Survey was completed on July 8, 2015 describing the proposed easement as Park 1 on Plan 35R-24856, being 5.601 metres wide and 96.717 metres long.

[14] Once all of the necessary work had been completed and the costs paid by the Applicant, the Respondent refused to execute a deed so that the easement could be registered on title.

[15] The Respondent takes the position that she never agreed to the easement.

[16] The Applicant has spent $7,900 in processing the severance, including the cost of the survey.

Interferences with Access to the Applicant’s Properties

[17] In April, 2017, one of the Applicant’s tenants advised the Applicant that the Respondent indicated she intended to close the road thus preventing access to his home. On May 10, 2017, two of the Applicant’s tenants were prevented from leaving their home when they found a six foot ditch running across the roadway.

[18] By May 24, 2017, the Respondent had filled the ditch in, but had placed a board with nails across the roadway.

[19] By May 25, 2017, the Respondent had removed the board with nails and had placed posts and a cable blocking the access.

Analysis

[20] The issue raised is whether or not the agreement in writing between Gladys Rex and Arthur Commandant is enforceable against the Respondent. In my view, clearly it is. The Court of Appeal dealt with virtually the same factual circumstances in Gawalko v. Sullivan. In finding that a similar agreement was enforceable against a subsequent property owner and created an easement, the Court explained at paras. 2-5:

The issue is whether or not an agreement in writing between Mrs. Sullivan and Mr. Peramaki is enforceable by Mrs. Sullivan against the respondents, Gawalko and Field, who purchased the lands from a Mr. Byrd, who had purchased them from Mr. Peramaki. The lands are registered under the Land Titles Act, R.S.O. 1980, c. 230, and the agreement, which was not registered on title, was not made prior to the first registration. The agreement provides access to the Sullivans' land across the lands that were then owned by Mr. Peramaki, and it requires that those owners would share the cost of building a driveway from the public roadway through to the Sullivans' land. Access to the Sullivans' land was not otherwise possible.

The trial judge held that the agreement did not amount to an easement of right of way, rather it was simply a licence. We do not agree. The agreement, by its own terms, contemplated that it would be registered. It gave a right of passage across the lands. We think it had all of the elements of an easement. The fact that it was not registered or, by its own terms, would expire on a specified date did not change its character. The road was built. It crossed the Peramaki lands to the Sullivan lands. It was there for all to see. In the circumstances, it could not be said that the respondents purchased the land without actual notice of the roadway. See also Schwark v. Cutting, 2010 ONCA 61; Crabb v. Arun District Council, [1975] EWCA Civ 7 (C.A.).

[21] The case is also on all fours with the judgment of Saunders J. in Guy v. Sant, an unreported judgment delivered on June 20, 1980 [reported 17 R.P.R. 161]. In that case, a purchaser of a farm challenged the use of access roads by owners of neighbouring lots which crossed his land, on the ground that he had acquired the lands free of registered easements of right of way. Like this case, the previous owners had agreed to let the neighbours traverse the land to get to their own lots. And like this case, there was no agreement registered, and the lands were in Land Titles.

[22] Mr. Justice Saunders held that the access road was necessary to the enjoyment of the lots and, as such, there was an implied grant in favour of the owners. He stated at p. 28 [p. 178 R.P.R.]:

While I have found that Mr. Sant had actual notice of the existence of the rights of way, it would seem to me in the light of s. 91 of the Land Titles Act that the doctrine of actual notice may not be applicable to this case at all. I have found that there was an oral grant made by Mr. Turenne and confirmed by Mrs. Turenne in favour of the lots in question, that such right was included in the transfer of the lands to Lesk, and that the benefit of such right of way was passed on to Mr. Guy. In the alternative I have concluded that in the circumstances such a grant may be implied in the transfer from Turenne to Lesk. I have further concluded that the title acquired by Mr. Sant was subject to such grants. Having made those conclusions there appears to me to be no room for the application of the doctrine of actual notice because it does not matter whether Mr. Sant had actual notice or not. A prudent purchaser of property must satisfy himself by means of survey or other investigation as to the existence of matters such as rights of way, and as to other easements provided for in s. 51, which may affect a title acquired under the Land Titles Act.

[23] In 1977, Arthur Commandant paid the sum of $200 to Gladys Rex in exchange for the right to construct an access road across her property and to maintain an easement in perpetuity. The easement was understood to be binding on Gladys Rex’ successor’s and assigns. Various cottages were built and maintained in reliance on this contractual arrangement, and the Applicant continues to use the road until this date.

[24] There are currently located on the lands of the Applicant seven cottages and two principal residences. The Applicant and her husband reside in one of the permanent residences. Eight of the homes were in place at the time of the Respondent’s purchase, with the ninth residence being built in 2006.

[25] There is no other roadway that serves as motor vehicle access to the Applicant’s properties and there is no possibility of constructing such a roadway other than through the Respondent’s property. There are no public points of access to the Musquash River which would permit the Applicant and her tenants’ water access to their properties.

[26] Clearly, there was always an understanding that there would be access to these properties.

[27] I find the agreement between Arthur Commandant and Gladys Rex binding, and to have created an easement on the lands. It would be unjust to find otherwise.

Disposition

[28] I grant the Applicant’s request for a declaration as follows:

The Applicant is entitled to an easement over the lands of the Respondent legally described in PIN 48028-0031 (LT) and shown as Part 1 on Plan 35R-24856 in favour of the Applicant’s lands described as the whole of Lots I-25, I-26, I-27, I-28 in the 7th Concession, Wahta Mohawk Territory, shown on Plan No. 96760, Canada Lands Surveys Record and the Whole of Lots 14, 15, 16, 17, 18, 19, 21, 2-1 and 2-2 in the 7th Concession, Wahta Mohawk Territory (formerly Gibson Indian Reserve), shown on Plan No. 65112, Canada Land Surveys Record (the Subject Lands).

[29] Pursuant to Section 159 of the Land Titles Act, I direct the Land Registrar for the District Municipality of Muskoka to rectify the Parcel Register for 48028-0031 (LT) to add the following:

Subject to an easement over Part 1 on Plan 35R-24856 in favour of the lands described as the whole of Lots I-25, I-26, I-27, I-28 in the 7th Concession, Wahta Mohawk Territory, shown on Plan No. 96760, Canada Lands Surveys Record and the Whole of Lots 14, 15, 16, 17, 18, 19, 21, 2-1 and 2-2 in the 7th Concession, Wahta Mohawk Territory (formerly Gibson Indian Reserve), shown on Plan No. 65112, Canada Land Surveys Record (“the Dominant Lands”).

[30] There will also be a permanent injunction restraining the Respondent and her agents and servants from interfering with or blocking the access of the Applicant, her agents, servants, guests, lessees, tenants and invitees in, upon and across the subject roadway located on the Respondent’s lands described as Park 1 on Plan 35R-24856.

Justice C.F. de Sa Released: August 20, 2018