COURT FILE NO.: CV-19-625010
DATE: 2019/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1637063 ONTARIO INC. o/a MARKHAM ROAD MEDICAL CENTRE
Plaintiff
- and -
THE CORPORATION OF THE CITY OF MARKHAM and 2404099 ONTARIO LIMITED o/a JD DEVELOPMENT GROUP
Defendants
James M. Wortzman and Karey Anne Dhirani for the Plaintiff
David W. Levangie for the Defendant 2404099 Ontario Limited
Matt Brown for the Defendant the Corporation of the City of Markham
HEARD: November 27, 2019
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] The Plaintiff, 1637063 Ontario Inc. operates as Markham Road Medical Centre. I shall refer to it as “the Medical Centre”. I shall refer to the Defendant, 2404099 Ontario Limited, as “JD Development”, because it operates as, or perhaps with, the JD Development Group.[^1] The Medical Centre and JD Development own abutting properties.
[2] There is a system of easements that cross JD Development’s property. The easements extend to the boundary of the Medical Centre’s property (see sketches below). Some of the easements are perpendicular to the boundary and some are parallel to the boundary between the properties. JD Development is the servient owner, and the Medical Centre is the dominant owner in this system of easements.
[3] Some of the easements that cross JD Development’s property are paved, and historically these easements have been used for vehicular and then pedestrian access to the Medical Centre’s property. The easements, however, could be used and arguably when they were granted, the easements were intended to be used for direct vehicular access to the Medical Centre’s property.
[4] Here’s the nub. Both the Medical Centre and JD Development have submitted plans to the City of Markham to redevelop their properties. In the site plan of the Medical Centre, the easement that crosses Parts 4 and 5 of the system of easements of which the Medical Centre is the dominant owner is shown as paved and this easement would provide vehicular access to the Medical Centre’s property and its parking lot and garage. However, in the site plan of JD Development, the easement that crosses Parts 4 and 5 of the system of easements is shown as partially sodded, and this maintenance of the easement would not provide vehicular access to the Medical Centre’s property and its parking lot and garage.
[5] On this motion, the Medical Centre seeks: (a) a declaration that it has an easement for vehicular and other traffic over Parts 4 and 5 of the system of easements; (b) a declaration that the Medical Centre has the ancillary right to pave, excavate, or use other means to use the easement over JD Development’s property for vehicular and other traffic; (c) an order that JD Development forthwith file an amended site plan with the City of Markham to depict the paving of Parts 4 and 5 of the system of easements; and (d) an Order restraining JD Development from removing the paving or in any other way interfering with the Medical Centre’s right to use the easement on JD Development’s property.
[6] For the reasons that follow, I grant a declaration that the easement over Parts 4 and 5 of JD Development’s property may be used for vehicular traffic. I further declare that the Medical Centre has the right - at its own expense - to maintain the easement over Parts 4 and 5 of JD Development’s property and may pave the easement for vehicular traffic. I otherwise dismiss the Medical Centre’s motion. In particular, I do not order JD Development to forthwith file an amended site plan with the City of Markham to depict the paving of Parts 4 and 5 of the system of easements. I do not order that JD Development share in the costs of maintaining Parts 4 and 5 of the system of easements.
[7] I envision that JD Development will make a change to its site plan because it is now a matter of public record that Parts 4 and 5 of the system of easements that cross JD Development’s property may provide vehicular access to the Medical Centre’s property and that the easement may be at the expense of the Medical Centre be paved.
B. Facts
1. The Pave or Not to Pave Dispute
[8] Dr. Mohammed Rahman is the owner of the Medical Centre, which owns a property with a municipal address of 7160 Markham Road in Markham, Ontario. On April 14, 2003, Dr. Rahman purchased the property from Peter Toulis and Alexander Toulis, and on December 13, 2010, Dr. Rahman transferred the property to the Medical Centre. Dr. Rahman has carried on his medical practice at the property for over 16 years.
[9] JD Development is a real estate developer based in Markham, Ontario. On August 29, 2014, JD Development purchased the properties adjacent to the Medical Centre municipally known as 7190 and 7200 Markham Road. The property was burdened by the system of easements.
[10] Below is an aerial photograph of JD Development’s and the Medical Centre’s respective properties. In the photograph, JD Development’s property is to the north (the top of the page) and its boundaries are: Marydale Avenue to the west, Denison Street to the north; Markham Road to the east, and the Medical Centre’s property to the south.
[11] In the photograph, the Medical Centre is to the south of JD Development’s property, and it has street frontage on Marydale Avenue and on Markham Road, which is the municipal address for both properties.
[12] At the present time, direct road access to the Medical Centre’s property is from Markham Road and not from the system of easements that cross JD Development’s property.
[13] As noted above, there is a system of easements that cross JD Development’s property. JD Development is the servient owner, and the Medical Centre is the dominant owner of the system of easements.
[14] The system of easements was granted by 1191373 Ontario Inc. to Peter Toulis and Alexander Toulis, the Medical Centre’s predecessor in title on May 6, 1998 (five years before the property was acquired by Dr. Rahman). The Registered Instruments are LT 1268754, LT 1268755, LT 1268756, LT 1268757. The dispute in the immediate case is about LT 1268756.
[15] There is also a reciprocal easement in favour of JD Development’s predecessor in title that is a parallel and along the border between the properties, but for present purposes there is no dispute about this easement. See Registered Instrument LT 1268758, which was also registered on May 6, 1998.
[16] Below is a sketch of the system of easements that crosses JD Development’s property for the benefit of the Medical Centre’s property.
[17] The dispute in the immediate case concerns the portion of the system of easements known as Parts 4 and 5. Parts 4 and 5 are an east-west path that is perpendicular to Markham Road and that extends into the Medical Centre property. The path is parallel to the boundary between the properties. The east-west path begins at Markham Road, but it does not extend as far as Markdale Avenue, because Part 6 of the system of easements is an easement just for the purpose of storm and sanitary sewers, water mains and pipes, gas pipes, hydro transmission lines and other utility lines of pipes under the land.
[18] In the registered instrument granting the easement for the benefit of the Medical Centre’s property on Parts 4 and 5 of the system of easements (LT 1268756), the language of the easement for Parts 4 and 5 of JD Development’s property states: “Right-of-way over the above land for vehicular and other traffic, which right-of-way is declared appurtenant to and for the benefit of the lands ...”. This easement imposes no obligations on the servient owner, and it does not include any obligation to construct or maintain the lands that are subject to the easement. There are no positive obligations on the servient owner and no arrangements for costs sharing between the dominant and servient owner.
[19] For approximately 16 years, since May 1998, Parts 4 and 5 of the system of easements that cross what is now the Development Group’s property have been paved and have been used for vehicular access and then pedestrian access to the Medical Centre’s property. The Medical Centre has maintained the pavement on this part of the system of easements and it has made Parts 4 and 5 passable in the winter by removing snow and by salting the paved surface. To date, parts 4 and 5 of the system of easements has not been used for direct vehicle access to the Medical Centre’s parking lot. To date, direct vehicular access to the medical building on the Medical Centre’s property has been available from Markham Road by a driveway at the south end of the Medical Centre’s property.
[20] Below is a photograph that is helpful in understanding how access has historically been made from the JD Development property to the Medical Centre property using the system of easements that burden the JD Development property.
[21] As appears from the photograph, a vehicle could enter the system of easements from Denison Street to the north or from Markham Road to the east and have access to the boundary of the Medical Centre property. At the present, there is no direct vehicular access to the parking lot on the Medical Centre’s property from the easements. After parking the vehicle, the driver and his or her passengers could then - on foot - cross through the grass and treed grounds of the Medical Centre’s property to the Medical Centre’s building. There is a footpath shown on the photograph leading from Parts 4 and 5 into the Medical Centre’s property.
[22] There was no evidence from 1191373 Ontario Inc., which granted the easement on what is now JD Development’s property. There was no evidence from Peter and Alexander Toulis, who were granted the easement that they conveyed to Dr. Rahman when they sold the Medical Centre property to him. With no evidence other than how the system of easements has historically been used, JD Developments submits that the purpose of the easement on Parts 4 and 5 of the system of easements was to allow vehicular and other traffic to access parts 4 and 5 of - JD Development’s property - not to allow vehicular access to the Medical Centre’s property.
[23] To flash forward, and as I shall explain in some more detail below, the current dispute between the parties arises because in the last several years, the respective owners of the Medical Centre property and of JD Development’s property have presented plans to the City of Markham to develop their respective properties. On JD Development’s proposed site plan portions of Parts 4 and 5 of the system of easement are shown as grass rather than as pavement. This presents a problem for the Medical Centre, because its site plan development proposal requires direct vehicular access to the new medical building’s parking lot and parking garage on the Medical Centre property.
[24] The Medical Centre has sought site plan approval and a building permit to construct a new 3-storey medical office building on its property. The development would have 43 grade-level parking spaces and 36 underground parking spaces, all located at the rear of the medical office building. In the Medical Centre’s site plan access to the parking requires direct vehicular access from Parts 4 and 5 of the system of easements.
[25] The City’s By-law 2017-26 (a by-law to establish standards for the maintenance and occupancy of property in the City of Markham) requires that all driveways and parking areas on residential properties shall be maintained in a condition so as to afford safe passage by pedestrians and motor vehicles in inclement weather, including the removal of snow and ice. For non-residential properties, like the Medical Centre property, the By-law requires that any property used for vehicle traffic and for parking shall be: suitably surfaced and defined by a curb; kept free of dirt, surface dust and refuse; adequately lighted; and maintained in good repair.[^2]
[26] Below is a sketch of part of JD Development’s site plan that helps understand the problem about the respective site plan development proposals of JD Development and the Medical Centre.
[27] More precisely, the sketch reveals that the problem is that the paved portion of the easement on the site plan submitted by JD Development (shown in dark grey) does not extend far enough to facilitate the Medical Centre’s development proposal. There is an 8.5 metre stretch of grass that precludes vehicular passage. For the purposes of the Medical Centre’s overlapping site plan (not shown) this grassy stretch would contravene the City’s By-law 2017-26.
[28] Before returning to the factual narrative in the dispute between the Medical Centre and JD Development, it is convenient here to note that there is another development proposal that is part of the factual background. Marydale Property Limited owns the property that is to the south of the Medical Centre’s property. Marydale Property Limited also has applied to the City of Markham for redevelopment approvals, and it too has submitted a site plan for approval. Marydale Property Limited’s development proposal is currently subject to an appeal to The Local Planning Appeal Tribunal (“LPAT”), which is the successor to the Ontario Municipal Board (“OMB”) in regulating land use planning matters.
[29] Returning to the factual narrative, in July 2017, the Markham City Committee of Adjustments approved a minor variance for the Medical Centre property with respect to the parking, loading spaces, landscape, and front yard setbacks for the Medical Centre property. This approval was to facilitate plans to redevelop the Medical Centre property. There had been earlier plans to redevelop the property, but these plans were stillborn, and for present purposes nothing turns on the previous development plans for the Medical Centre property.
[30] In August 2017, JD Development submitted an application for a zoning by-law amendment and site plan approval for its property for a proposed redevelopment for mixeduse stacked townhouses consisting of 269 units with 404 parking spots. JD Development's site plan dated August 2017 depicts a paved area extending along Part 4 and 5 of the system of easements. This draft site plan would not have been a problem for the Medical Centre’s development plans.
[31] Before the obstinacy of the parties manifested itself, the site plans were complimentary.
[32] However, obstinacy and animosity developed, after the City of Markham did not make a decision on JD Development’s proposed zoning by-law amendment within the statutorily prescribed time of Planning Act,[^3] in March 2018, JD Development filed an appeal to LPAT. The hearing for planning approvals is scheduled for August 2020. In the meantime, JD Development has continued discussions with the City and with neighbouring property owners.
[33] On February 20 and April 4, 2018, at City Council meetings, Dr. Rahman of the Medical Centre voiced objections to JD Development's application for a zoning by-law amendment and for site plan approval.
[34] Hao Zhang, JD Development’s representative and development manager reached out to Dr. Rahman to resolve the dispute. Dr. Rahman ignored Mr. Zhang’s to reach a truce.
[35] In June 2018, JD Development amended its site plan application. It replaced the pavement on Parts 4 and 5 of the system of easements with grass. JD Development’s new plan removed 8.5 metres of paving and replaced it with grass. This change would preclude vehicles from gaining direct access to the parking lot of the Medical Centre’s proposed site plan from Parts 4 and 5 of the system of easements.
[36] Dr. Rahman and his corporation the Medical Centre believe that JD Development’s change to the site plan was retaliatory and coercive to put the Medical Centre under economic stress so that it would abandon its opposition to JD Development’s development plans. This is denied by JD Development.
[37] In October 2018, JD Development submitted a further revision site plan. This site plan persisted in having grass over Parts 4 and 5 of the system of easements.
[38] On October 18, 2018, the City of Markham conditionally approved the Medical Centre’s site plan, and on October 31, 2018, the Medical Centre applied for a building permit in anticipation of receiving final approval of its site plan.
[39] On November 28, 2018, JD Development learned that the Medical Centre was applying for party status at the LPAT Hearing of JD Development’s rezoning application. JD Development asserts that this was the first notice that it had that the Medical Centre opposed its development. Thus, it denies that its changes to its site plan were retaliatory.
[40] JD Development further asserts it had legitimate justification for its change to the site plan. It submits that the pavement of the 8.5 metres was unnecessary and that maintaining this 8.5 metres stretch of pavement would impose "immediate and long-term burdens" on JD Development and on future owners within the development. It believes that it should not have to pay for something that it is of no benefit to it. There is, however, nothing but a belief and no empirical evidence to substantiate the theory that maintaining a 8.5 metre stretch of pavement would impose any meaningful financial burden on JD Development, the servient owner of the system of easements.
[41] The Medical Centre was granted standing at the LPAT hearing of its rezoning application, which is scheduled for August 2020. The Medical Centre raised numerous objections to JD Development’s townhouse development including: (a) the development was not compatible with adjacent existing and/or proposed developments, with respect to use, building height and transition, setbacks, mass and scale, traffic impact, and density; and (b) there is insufficient on-site parking for the development, such that there would be negative impacts on the adjacent public road right-of-way, as well as neighbouring properties; including, the Medical Centre’s property which it intended to redevelop for additional office uses.
[42] On February 27, 2019, the City of Markham advised the Medical Centre and JD Development that there was a discrepancy between the two site plans because of the difference in the extent of paving of Parts 4 and 5 of the system of easements crossing JD Development’s property.
[43] On March 12, 2019, the Medical Centre sought final approval of its Site Plan Application from the City. The Medical Centre wished to commence construction of the medical office building.
[44] On March 13, 2019, the City advised that it required the discrepancy between the two site plans to be resolved before it would give final approval to the Medical Centre’s site plan.
[45] The Medical Centre’s lawyers petitioned the City to reconsider its position and approve the site plan. The City’s position, however, was that it does not interfere in private matters concerning easement rights. It left it to the Medical Centre and JD Development to resolve their dispute.
[46] On July 3, 2019, the Medical Centre’s lawyers requested JD Development to reconsider its position and to amend its site plan.
[47] JD Development’s response was that there was no covenant, requirement, obligation or agreement that obliged it to construct a particular surface for Parts 4 and 5 of the system of easements and that it was under no obligation to maintain any particular form of surface for the system of easements. JD Development refused to amend its Site Plan Application or to agree to leave the existing pavement in place.
[48] The Medical Centre submits that because of JD Development’s intransigence and because of JD Development’s unneighborliness, the Medical Centre is suffering significant and ongoing damages in excess of $1 million including, among other things delay in its project, an anticipated increase in construction costs, the potential loss of leasing agreements, loss of rental income and management fees, and increased development charges due to the delays in starting construction.
[49] JD Development denies that it is the cause of the Medical Centre’s problems. JD Development rather puts the blame on the Medical Centre for being intransigent and unreasonable. JD Development submits that the Medical Centre’s proposed use of the easement for its new building project extends the burden of the easement beyond what is legally permissible. It submits that Mr. Rahman was unreasonable and uncooperative in his discussions and meetings with Mr. Zhang to discuss the respective development proposals and about resolving the dispute about the easements. JD Development submits that the Medical Centre could have avoided the problem by changing the access on its site plan by shifting the driveway access 8.5 metres to the east; i.e. JD Development suggests that the Medical Centre resile itself to the sodding of a portion of Parts 4 and 5 of the system of easements and work around the problem.
C. Discussion and Analysis
1. The “Who-Gets-to-Decide-Dispute” Dispute
[50] In its material for the motion now before the court, JD Development submitted that the Medical Centre has brought this motion to sidestep ongoing appeals before LPAT, the specialized planning tribunal with exclusive jurisdictions to hear land use planning matters. It submits that the dispute between the parties concerns the site plan discrepancy with respect to the use of the easement of Parts 4 and 5 of the system of easements. It submits that site plan disputes are a matter within the exclusive jurisdiction of LPAT.
[51] Under section 41 of the Planning Act,[^4] jurisdiction with respect to site plan approval is conferred on the local municipality. Under section 41 (12) and section 41 (12.0.1) of the Planning Act, LPAT has jurisdiction to hear all appeals from the municipality's failure to approve a site plan application within 30 days, or any requirements or conditions imposed under section 41 (7), including the terms of any site plan agreement required thereunder.
[52] Pursuant to sections 11 (1) of the Local Planning Appeal Tribunal Act,[^5] LPAT has exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction is conferred on it by this Act or by any other general or special Act. Pursuant to s. 11 (2) of the Local Planning Appeal Tribunal Act, LPAT has authority to hear and determine all questions of law or of fact with respect to all matters within its jurisdiction, unless limited by the Act or any other general or special Act. Under s. 12 (1) of the Local Planning Appeal Tribunal Act, LPAT has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred to it.
[53] In the immediate case, the site plans of JD Development and of Marydale Property Limited’s are under appeal to the LPAT, and, therefore, in its motion materials, JD Development submitted that the Court has no jurisdiction to deal with the dispute now before the court, which it submitted is a matter for the exclusive jurisdiction of LPAT.
[54] In response to JD Development raising the matter of the exclusive jurisdiction of the LPAT as ousting the Superior Court’s jurisdiction to decide the dispute about the easement, the Medical Centre responded in its reply material for the motion by delivering an affidavit from Dennis Wood, a senior member of the land use planning bar practicing before the OMB and now LPAT. Mr. Wood has over 44 years of experience appearing before municipal councils and land planning regulators and tribunals.
[55] Mr. Wood deposed about the nature of the issues that are and can be decided by LPAT. He deposed that LPAT would leave it to the parties or the courts to resolve the dispute about the legal rights associated with the system of easements that burden JD Development’s property.
[56] At the hearing of the motion, JD Development’s submitted that Mr. Wood’s affidavit should be discarded in its entirety as inadmissible evidence. JD Development submitted that Mr. Wood’s evidence did not qualify as admissible opinion evidence. JD Development further submitted that Mr. Wood should be disqualified as an expert because of partisanship that meant that he could not give an independent expert’s opinion.
[57] There is no merit to JD Development’s argument that this court does not have jurisdiction to decide the dispute between the parties which is about the interpretation and enforcement of real property rights.
[58] I do not need to refer to Mr. Wood’s evidence to decide that this court has the jurisdiction, not LPAT, to decide the dispute between JD Development and the Medical Centre concerning the interpretation of the rights and ancillary rights associated with the scheme of easements that cross JD Development’s property.
[59] I shall not rely on Mr. Wood’s evidence, but I accept it as admissible and proper experiential evidence that is admissible and relevant to respond to JD Development’s case theory. I would not disqualify Mr. Wood’s on the grounds of partisanship any more than I would disqualify JD Development’s witnesses who deposed about the processing of development proposals by municipalities and by LPAT.
[60] Here, it should be noted that it was JD Development that made a material issue about what matters are within the exclusive jurisdiction of LPAT, and it did it through the affidavit evidence of Ryan Mino-Leahan, a land use planner. Mr. Mino-Leahan is a partner with KLM Planning Partners Inc., the planners hired by JD Development and by Marydale Property Limited to develop site plans.
[61] I also shall not rely on Mr. Mino-Leahan’s evidence to determine what is essentially a legal matter but, his evidence is admissible on the same basis as Mr. Wood’s evidence is admissible.
[62] Turning then to the merits of “Who-Gets-to-Decide-the-Dispute” Dispute between the parties, in my opinion, LPAT’s jurisdiction with respect to site plans does not give it jurisdiction to decide the property rights between a dominant and a servient owner. This limit on its jurisdiction has been recognized by LPAT or by its predecessor the OMB; the Board recognizes that its jurisdiction is to determine the proper land use for the subject lands and not to determine the legal property rights of the landowners.[^6]
[63] In reaching this decision that the court’s jurisdiction has not been ousted, I appreciate that under s. 41 (12.1) of the Planning Act, that LPAT has the jurisdiction to determine the details of site plan approvals and associated agreements. Section 41 (12.1) states:
Hearing
(12.1) The Tribunal shall hear and determine the matter in issue and determine the details of the plans or drawings and determine the requirements, including the provisions of any agreement required.
[64] In reaching this decision, I also appreciate that under s. 41(7) of the Planning Act, a municipality is empowered to require the owner of the land to agree to conditions to obtain site plan approval, including providing at no expense to the municipality vehicular loading and parking facilities, access driveways, driveways for emergency vehicles, and the surfacing of such areas and driveways. And, I appreciate that under pursuant to sections 11 (1) of the Local Planning Appeal Tribunal Act, LPAT has exclusive jurisdiction in all cases and in respect of all matters in which jurisdiction is conferred on it by this Act or by any other general or special Act. Pursuant to s. 11 (2) of the Act, LPAT has authority to hear and determine all questions of law or of fact with respect to all matters within its jurisdiction, unless limited by this Act or any other general or special Act. Under s. 12 (1), LPAT has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred to it. None of these statutory provisions ousts the court’s jurisdiction.
[65] While it may be the case that there is a complete code found in the Local Planning Appeal Tribunal Act and the Planning Act for the resolution of disputes about site plans, of which for present purposes it is not necessary for me to express any opinion, there is nothing expressed or implied in that code that would oust the court’s jurisdiction to decide property ownership disputes that might incidentally effect applications for site plans. In the immediate case, the dispute before the court is within the norms of what superior courts traditionally decide.
[66] That the dispute in the immediate case is not a dispute within the exclusive jurisdiction of LPAT can be quickly demonstrated. In the immediate case, the issue of what use could be made of Parts 4 and 5 of the system of easements could have arisen if redevelopment plans were never even imagined by the landowners. Had there been no land use planning applications, it is undisputable that the Superior Court would have the jurisdiction to decide the dispute about the uses that could be made of the easements on JD Development’s property. There have been countless cases of this nature where superior courts interpret easements, particularly cases about rights-of-way and mutual driveways, and in these cases the court determine whether there has been a trespass or an interference with the use of an easement.
[67] In the immediate case, had there been no appeals to LPAT and had the City of Markham approved both site plans conditional on the parties resolving the discrepancy in the plans about Parts 4 and 5 of the system of easements, the parties would have had to turn to the Court and not LPAT to resolve the dispute.
[68] In my opinion, in the immediate case with appeals to LPAT, the jurisdiction of the courts to determine what is a normative matter for superior courts to determine about property rights is not ousted by either the Local Planning Appeal Tribunal Act or the Planning Act. It takes very clear legislative language to oust the jurisdiction of a superior court and there is a core-jurisdiction that cannot be out-sourced to an administrative tribunal.
[69] I, therefore, conclude that this court has the jurisdiction to resolve the dispute between the parties. As I shall explain next, pursuant to the registered easement, the Medical Centre is entitled, at its own expense, to pave Parts 4 and 5 of the system of easements so that the easement can be used for vehicular traffic into its property. The court has the jurisdiction to make a declaration to this effect. However, I agree with JD Development that this court cannot direct it to amend its site plan to reflect the legal reality of the court’s declaration.
[70] The court does not the substantive jurisdiction at common law or under any statute including the Planning Act to order a party to amend a site plan. That said, I have little doubt that JD Development will make this change to its site plan because it is now a matter of public record that Parts 4 and 5 of the system of easements that cross JD Development’s property may be at the expense of the Medical Centre be paved.
2. The Rights of the Dominant Owner
[71] There is no dispute between the parties that there is an easement that encumbers JD Development’s property and that the Medical Centre is the dominant owner. The dominant owner of an easement is entitled to every reasonable use of the easement for its granted purposes.[^7] The grant of an easement also includes such ancillary rights as are reasonably necessary for the use or enjoyment of the easement.[^8] The dominant owner has the right to make reasonable improvements to the easement so that it can be used for its intended purpose.[^9] The dominant owner may exercise such ancillary rights as are reasonably necessary to the use and enjoyment of the easement which was contemplated by the grantor.[^10]
[72] Where 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.[^11] If the use of the easement remains of the same general nature, even if there is an increased burden on the servient owner by virtue of more frequent use, the more frequent use can reasonably be said to have been in the contemplation of the parties at the time of the grant.[^12]
[73] In Almel Inc. v. Halton Condominium Corporation No. 77,[^13] the Court of Appeal stated at para. 3:
- The governing principles are not in issue. Where a right of way has been created by express grant, the scope of permissible use depends on the words used. The circumstances existing at the time of the grant may also be looked at to construe the nature and extent of the rights conveyed. see Laurie v. Bowen, 1952 10 (SCC), 1952 10 (SCC), [1953] 1 S.C.R. 49. In the case of a general grant, as here, the permissible use is not limited to the original use. Although the owner of the dominant tenement cannot alter the type of use of the right of way beyond its original scope, the burden on the servient tenement can be reasonably increased so long as the use is of the same general nature, and it can reasonably be said to have been in the contemplation of the parties at the time of the grant.
[74] As noted, the grant of an express easement also 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.[^14]
[75] The immediate case does not involve ancillary rights save with respect to maintaining the easement. The express grant of an easement in the immediate case is “for vehicular and other traffic” which has an unambiguous literal meaning. However, JD Development asserts that vehicular access will not be interfered with if it replaces the pavement upon which motor vehicles and other traffic typically pass to obtain access to a municipal urban property with grass upon which motor vehicles typically do not use to obtain access to a municipal urban property.
[76] The purpose of the easement in the immediate case is obvious. Vehicular access is the purpose of the easement; it is not an ancillary purpose. With respect, it is risible to submit, as JD Development apparently submits, that when the wording of an instrument that expressly creates “a right-of-way for vehicular and other traffic” is considered in the context of the circumstances that existed in 1998 when Peter and Alexander Toulis and 1191373 Ontario Inc. created reciprocal rights-of-way over commercial properties, whose highest and best use was not yet achieved, that their purpose and the intent of the parties was to allow vehicular and other traffic to access parts 4 and 5 of JD Development’s property - and not the Medical Centre’s property - and that their purpose envisioned planting grass and replacing the pavement of a vehicular right-of-way.
[77] How the landowners actually used the easement after it was created is irrelevant to determining what the intentions of the parties was at the time that the easement was created.[^15] The interpretative issue is what did the parties intend was the purpose of the easement at the time it was created. In the immediate case, I conclude that the purpose of the easement is to provide direct vehicular access from JD Development’s property to and into the Medical Centre property.
[78] Apart from the fact that grassing over a driveway or roadway into a non-residential property would violate the City’s property use by-law, common sense would tell a reasonable person that what JD Developments proposes to do by grassing over the existing pavement, if not spiteful, is, in any event, a substantial interference with the dominant owner’s right to use an easement described as “right-of-way over the above land for vehicular and other traffic, which right-of-way is declared appurtenant to and for the benefit of the lands ...”.
[79] During cross-examinations, Mr. Zhang and Mr. Mino-Leahan, JD Development’s witnesses, grudgingly admitted it is "not ideal" to drive over a lawn to access another person's property. Mr. Mino-Leahan conceded that he was not seriously suggesting that it would be acceptable for trucks and vehicles to drive over the sodded area to access the Medical Centre’s.
[80] JD Development’s witnesses ought to have conceded that in the circumstances of the immediate case, grassing over part of Parts 4 and 5 of the system of easements was, practically speaking, the equivalent of constructing an obstacle to vehicular access to the Medical Centre property. As grudgingly conceded by JD Development’s witnesses, grassing over the right of way is not a matter of making the right of way less convenient to use for vehicular traffic, it would preclude it.
[81] To be actionable, interference with an easement or right of way must substantially interfere with the dominant owner's ability to use the right of way for a purpose identified in the grant.[^16] Only after the extent of the easement has been determined should the court consider whether what was done constitutes a substantial interference with the intended use and enjoyment of the easement.[^17] There is no actionable interference with a right of way if it can be substantially and practically exercised for the purposes identified in the grant as conveniently after as before the occurrence of the alleged obstruction.
[82] JD Development has yet to do it, because it has not achieved site plan approval, but if it were to sod the 8.5 metres of its servient property, then, in my opinion, it would be interfering with the Medical Centre’s rights under the system of easements that burden the servient property of JD Development.
[83] In the immediate case, vehicular passage is not an ancillary use. In the immediate case, what would be an ancillary right is the Medical Centre’s right to maintain an easement granted for vehicular purposes. It is implicit in a grant of an easement intended to afford access to a property that the installation and maintenance of the right-of-way is a reasonably necessary to the use and enjoyment of the easement.[^18]
[84] Under the common law, neither the Medical Centre nor JD Development has an obligation to maintain or repair the pavement on the easement. However, the Medical Centre as the dominant owner has the right to enter onto the servient lands to carry out the necessary work to maintain and repair the pavement.[^19] The Medical Centre has exercised this right for approximately 16 years and neither JD Development nor its predecessors in title have ever complained or taken issue with the practice. The Medical Centre advised the court that it is prepared to continue to do so in the future.
[85] Pausing here, that if it is granted site plan approval, the Medical Centre is prepared to maintain the pavement is a nice thing, but under the City’s by-law, the Medical Centre would be obliged to do so in any event. The site plan agreement with the municipality likely will also impose maintenance obligations on Medical Centre. It is doing nobody but itself a favour if the Medical Centre maintains the paving on the easement on Parts 4 and 5 of the scheme of easements.
[86] In its factum, the Medical Centre, however, goes farther and submits that if the servient owner JD Development or its successors in title, also proposes to use the easement, then JD Development should be required to contribute to the repair and maintenance costs of the easement.
[87] With respect, this last submission by the Medical Centre has been a distraction and goes too far. Fairness and good neighborliness might lead to the result that the parties share costs and this result might be the outcome of the planning process with the intervention of the City of Markham or LPAT, but, as noted above, the common law does not impose any positive obligations on either the servient or the dominant owner to share the repair and maintenance costs of the easement. The Medical Centre’s insistence on costs sharing impeded any efforts to settle the dispute in the immediate case.
[88] The Medical Centre should not have met JD Development’s intransigence about grassing the easement with intransigence over maintaining the pavement and ought to have rested its submissions with simply acknowledging that it will assume responsibility for the repair and maintenance costs for maintaining the easement over Parts 4 and 5 of the scheme of easements of which it is the dominant owner.
[89] Thus, I conclude that the Medical Centre may use the system of easements to allow passage of vehicles directly into its own property. I further declare that the Medical Centre has the right - at its own expense - to maintain the easement over Parts 4 and 5 of JD Development’s property and may pave the easement for vehicular traffic.
[90] The court has no jurisdiction to meddle with the municipality and LPAT’s jurisdiction to approve site plans.
[91] The court does have the jurisdiction to grant injunctions to prevent a person from interfering with an easement, but to date there has been no interference. To date there has been a dispute about the depiction of an easement on site plans. There has been no construction and the obstruction is on paper and not on the ground. There has been no planting of grass. Patrons of the medical centre continue to use the easement as they always have. I see no purpose in granting an injunction qui timet.
D. Conclusion
[92] For the above reasons, I grant a declaration that the easement over Parts 4 and 5 of JD Development’s property may be used for vehicular traffic. I further declare that the Medical Centre has the right - at its own expense - to maintain the easement over Parts 4 and 5 of JD Development’s property and may pave the easement for vehicular traffic. I otherwise dismiss the Medical Centre’s motion.
[93] To be more precise:
a. This Court declares that the Medical Centre has a valid and enforceable interest, easement or right of way for vehicular and other traffic as it relates to Part 4 and Part 5 of the property owned by JD Development, and
b. This Court declares that the Medical Centre has the right to pave, excavate, and to use other means reasonably necessary to give effect to the easement for vehicular and other traffic.
[94] I do not grant an Order that JD Development file an amended Site plan with the City of Markham to depict the paving of Parts 4 and 5. The court does not have the jurisdiction to make this order.
[95] I do not grant an Order restraining JD from removing the paving or in any other way interfering with the Plaintiff s right to utilize the easement. Such an order is premature. At this time, there is no reason to grant an injunction quia timet in anticipation of something that has not yet occurred.
[96] If the parties cannot agree on the matter of costs, they may make submissions in writing beginning with the Medical Centre’s submissions within twenty days of the release of these Reasons for Decision followed by JD Development’s submissions within a further twenty days.
I alert the parties that my present intention is not to make an award of costs. My present view is that each party should bear their own costs of this action to date.
Perell, J.
Released: December 27, 2019
COURT FILE NO.: CV-19-625010
DATE: 2019/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1637063 ONTARIO INC. o/a MARKHAM ROAD MEDICAL CENTRE
Plaintiffs
- and -
THE CORPORATION OF THE CITY OF MARKHAM and 2404099 ONTARIO LIMITED o/a JD DEVELOPMENT GROUP
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 27, 2019
[^1]: JD Development Group are separate and distinct legal entities. JD Development Group has no ownership interest in 1637063 Ontario Inc.
[^2]: By-law 2017-26, ss. 11 (1), 23 (6).
[^3]: R.S.O. 1990, c. P. 13.
[^4]: 1990, c. P.13.
[^5]: 2017, S.O. 2017, c. 23, Sched. I.
[^6]: Remicorp. Industries Inc. v. Toronto (City), 2018 25486 at paras. 4-5 (LPAT); Re Mount Pleasant Group of Cemeteries, 2006 CarswellOnt 7795 at para. 6 (OMB); MacDonald v. Richmond Hill (Town) (2001), 33 M.P.L.R. (3d) 151 (OMB).
[^7]: Weidelich v. de Koning, 2014 ONCA 736.
[^8]: Fallowfield v. Bourgault, 2003 4266 (ON CA), [2003] O.J. No. 5206 (C.A.).
[^9]: Szymanski v Alaimo, 2016 ONSC 2527; Donald v. Friesen (1990), 1990 6646 (ON SC), 72 O.R. (2d) 205 at paras. 36-38 (Dist. Ct.).
[^10]: MacKenzie v. Matthews (1999), 1999 19931 (ON CA), 46 O.R. (3d) 21 at paras. 8-14 (C.A.); Szymanski v Alaimo, 2016 ONSC 2527.
[^11]: Fallowfield v. Bourgault, 2003 4266 (ON CA), [2003] O.J. No. 5206 at para. 10 (C.A.); Szymanski v Alaimo, 2016 ONSC 2527; Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality) (2010), 98 R.P.R. (4th) 206 (Ont. S.C.J.).
[^12]: Clarke v. Kokic, 2017 ONSC 6485, aff’d 2018 ONCA 705; Almel Inc. v. Halton Condominium Corp. No. 77, 1997 14498 (ON CA), [1997] O.J. No. 824 at para. 8 (C.A.).
[^13]: 1997 14498 (ON CA), [1997] O.J. No. 824 at para. 8 (C.A.). See also West High Development v. Veeraraghaven, 2011 ONSC 1177, 2011ONSC 1177.
[^14]: Fallowfield v. Bourgault, 2003 4266 (ON CA), [2003] O.J. No. 5206 at para. 10 (C.A.).
[^15]: Fallowfield v. Bourgault, 2003 4266 (ON CA), [2003] O.J. No. 5206 at para. 10 (C.A.).
[^16]: Middlesex v. 1510231 Ontario Inc. 2016, ONSC 6325; Weidelich v. de Koning, 2014 ONCA 736.
[^17]: Fallowfield v. Bourgault, 2003 4266 (ON CA), [2003] O.J. No. 5206 (C.A.); Przewieda v. Caughlin, 2015 ONSC 3770 at para. 19.
[^18]: MacKenzie v. Matthews (1999), 1999 19931 (ON CA), 46 O.R. (3d) 21 (C.A.).
[^19]: TSCC No. 1633 v. TSCC No. 1809 and Baghai Development Ltd., 2017 ONSC 1372