Court File and Parties
Court File No.: CV-15-0433-000 Date: 2020-05-05
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
DIANA ADEY, Applicant Counsel: R. Bodnar, for the Applicant
- and -
ERICA CACCAMO, Respondent Counsel: L. Ruberto, for the Respondent
Heard: August 12, 14, 16, 2019; January 14, February 20 & 21, 2020 at Thunder Bay, Ontario
Before: Mr. Justice F. B. Fitzpatrick
Judgment
[1] This trial was about a dispute between two camp (a.k.a. a cottage) neighbours, Diana Adey (the Applicant) and Erica Caccamo (the Respondent). They own abutting parcels of waterfront land on Whitesand Lake near Schreiber, Ontario in Northwest Ontario. Camp buildings sit on each parcel of land.
[2] There is a road that runs through Ms. Caccamo’s property, which provides easy access to both her camp and also to Ms. Adey’s dock and to her cabin located near the dock. The dispute between the parties arose because Ms. Caccamo blocked this road in 2015.
Background
[3] In 2017, Ms. Adey commenced an application. Ms. Adey wants a court order that she and her successors in title are entitled to have vehicular access over the road that is within the boundaries of Ms. Caccamo’s property. The parties agreed that the matter would be decided in two distinct phases. The first phase involved Ms. Adey’s claim under the Road Access Act, R.S.O. 1990, c. R.34. The second phase involved adjudication of Ms. Adey’s claim for a declaration that she was entitled to use the road by virtue of the doctrine of proprietary estoppel.
[4] On May 29, 2019, I rendered a judgment (2019 ONSC 3297) for phase one that determined that the road was not an access road within the meaning of Road Access Act. In the course of that judgment, I identified the disputed road as “the Pink Road”, so named because of the colour of the hi-liter used to mark it on the exhibit that is attached to the judgment. This trial, occurring over 6 days, was the result of the second phase of the adjudication.
[5] The facts relevant to this neighbours’ dispute occurred over the period 1967 to the present. The dispute has now involved several generations of the Adey and Caccamo families. Overall, after hearing all the trial evidence, I observe that this matter demonstrates the folly of the “do it yourself” approach to agreements and disputes involving land. In my view, if the parties had sought timely legal advice before taking all of the various steps that caused this conflict, much of the heartache, upset and inconvenience could have been avoided. But it wasn’t, and here we are.
Agreed Facts
[6] The parties agreed on certain facts and prepared an agreed statement of facts. For the purposes of this phase of the adjudication, I find that the following agreed facts are relevant to my determination of the matter;
a) Ms. Adey is the owner of land legally described as PCL 14773 SEC TBF; Summer Resort LT 12 PL M241 Killraine (the "Adey Property").
b) Ms. Caccamo is the owner of the neighbouring property known as Lot 13 and legally described as PCL 21034 SEC TBF; PT LOCATION TW 175 KILLRAINE PT 13, 55R5004; DISTRICT OF THUNDER BAY (the "Caccamo Property").
c) A road (the “Road”) is located on Ms. Caccamo’s Property and Ms. Adey’s Property.
d) The Road commences at a public road, with access points on both the Adey and Caccamo Properties. There is an embankment on both the Adey and Caccamo Properties in the approximate middle of the Properties. The Road forks on the Caccamo Property before reaching the embankment. One path of the Road (the “Undisputed Portion”) provided road access to the middle portion of the Adey Property. The other fork of the Road (the “Disputed Portion”) is located entirely on the Caccamo Property. Its path travels down the embankment and provides access to the lower portions of the Caccamo and Adey Properties.
e) To access the lower portion of the Adey property by way of the Disputed Portion of the Road, the Adey’s must first pass closely by the Caccamo cabin.
f) A path (the “Path”) exists on the Adey Property. The Path commences at the Undisputed Portion of the Road at the top of the embankment and travels down the embankment to the lower portion of the Adey Property.
g) An ATV can traverse the Path.
h) The Path is only accessible by first travelling on the Caccamo Property.
i) There was a dispute regarding use of the Road in or around 1992, at which time Ms. Caccamo’s father, Greg Caccamo, dug up a portion of the Road to obstruct the Adeys’ access.
j) In response to Greg Caccamo digging up the portion of the Road in 1992 to obstruct the Adeys’ access to the lower portion of the Road, Ms. Adey’s late husband, Andrew Adey, chained off the entrance to the Road that was on the Adey Property.
k) As a result of the dispute, Greg Caccamo built a new entrance to the Road. The new entrance to the Road was constructed in or around 1992 and was constructed entirely on the Caccamo property.
l) From 1992 onward, the Caccamo property could be accessed from the public road without going onto the Adey property.
m) On November 3, 2009, Greg Caccamo passed away.
n) From 2011 to 2015, Ms. Adey was again using the Road and the Disputed Portion of the Road.
o) In May of 2015, Ms. Caccamo buried I-beams on the Caccamo Property, denying Ms. Adey access to the lower portion of her property via the Disputed Portion of the Road.
p) The location where Ms. Caccamo buried the beams, which obstructed the Adeys’ use of the Disputed Portion of the Road, is in or around the same area of the Road that Greg Caccamo dug up when he denied the Adeys’ access in 1992.
q) The Disputed Portion of the Road terminates at the lower portion of the Adey Property near the Cabin.
[7] I note that I have quoted verbatim certain of the defined terms contained in the Agreed Facts submitted by the parties. Because of how those terms were, and were not, referred to by the parties during the evidence, some of these defined terms will not be carried forward in this judgment. In particular, for reasons I explain below, the Disputed Portion of the Road will be referred as “the Pink Road”.
The Evidence
[8] In addition to the agreed statement of facts, affidavits were filed by witnesses for both sides. For the purposes of this trial, it was agreed that these affidavits would be treated as being in the nature of discovery evidence. Accordingly, it was agreed that I was to adjudicate this second phase of the application based on: the agreed facts; the vive voce evidence of the witnesses; the documents adduced at this trial; and from any read-ins from the affidavits that the parties cared to make.
[9] In my view, considering all the evidence, the agreed statement of facts, and based on the submissions of the parties, there were three important events in this dispute. They were:
- The 1968 verbal agreement between Ed Duffy (“Ed”) and Joseph Caccamo (“Joe”) (the “1968 Agreement”);
- The 1992 blocking of the Pink Road by Greg Caccamo and the retaliatory chaining off of the access from the Adey Property (the “1992 Incident”); and
- The 2015 blocking of the Pink Road by Erica Caccamo (the “2015 Incident”).
[10] In my view, each of these events created legal obligations between the parties and placed the parties in particular legal relationships to each other at the time of the event, and then following on in the years leading to the next event. I have considered all the trial evidence and I find, for reasons set out below, that the legal position of each of the respective parties had slightly different qualities, first in the period 1967 to 1992, secondly from 1992 to 2015 and, then, third from 2015 to date. I propose, therefore, to first outline the evidence and findings of fact I make about each of those respective time frames based on the events that occurred. I will then give my analysis, including a discussion of any relevant law and authorities that touch on the particular event and relevant time frame and what it meant at the time and what it now means for the party’s rights in regard to the Pink Road.
The Testimony of Ed Duffy and the 1968 Agreement
[11] During the first segment of the resolution of this dispute, (2019 ONSC 3297), an aerial photograph of the lands of both Ms. Adey and Ms. Caccamo was entered into evidence. The photograph was marked by agreement as Exhibit 1 in this trial and was used by all witness to assist in their testimony to reference various events and places relevant to this matter. As previously noted, the road which is the subject matter of this dispute was marked with a pink hi-liter. This is significant because there are other roads on the exhibit that were marked in blue and green, and thereafter referred to by all witnesses as the Blue Road and the Green Road. I attached a copy of the exhibit to my original decision (2019 ONSC 3297) and that diagram was constantly referred to by the witnesses in this portion of the trial. Relying on Lord Denning’s remark in Crab v. Arun District Council [1975] 3 All E.R. 865 (C.A. Civ. Div.), “this case cannot be properly understood without a map”, I attach a copy of the trial exhibit map to this judgment as well.
[12] Ed Duffy was the first witnesses called at this trial. Ed gave his evidence in a forthright and straightforward manner. His account of events and details was not seriously challenged.
[13] Ed testified as to the circumstances leading to the creation of the 1968 Agreement. The oral agreement was made between himself and Joe Caccamo. Joe did not give evidence in this trial. I understood that he died sometime in the 1980’s. Ed testified as to his understanding of the terms of the Agreement. Ed was not able to give a great deal of detail about the terms of the 1968 Agreement, but in my view, this is understandable given the passage of time and the fact he sold his lot in 1970. His evidence about what were the terms of the 1968 Agreement was not disputed by the evidence of other witness or any title documents filed by the parties.
[14] I will recount what I find to be the facts about the 1968 Agreement based on Ed’s testimony and his cross-examination.
[15] In 1967, the lots which are now the subject of this application were vacant Crown bush land. The lots came up for auction. Ed learned about the land auction from Joe. At the time, Ed was single, and Joe was married.
[16] Ed and Joe purchased adjacent waterfront properties on Whitesand Lake from the Crown by auction in late 1967. Title was not formally transferred to Ed until 1969. Ed explained that this was because the Crown transfer required the purchaser to build a dwelling on the lands within two years of the purchase or else the lands would revert to the Crown.
[17] Joe and Ed visited their newly acquired properties in the spring of 1968. It is significant that both had acquired their interest in the lands before they had both gone together to the lands. Both men desired to build their cabins close to Whitesand Lake. At that time, the men realized that the steep sloping topography of the two lots would play an important role in the placement of a road or roads that were necessary to reach the locations where they desired to build. Both lots were higher, close to the main municipal road and then dropped off steeply toward the lake. The men decided to build a single road off the municipal road. The new road would be used to access both properties. It commenced on Ed’s property, (coming off the municipal road), then crossed over and on to Joe’s land, down an incline to the spot where Joe built his cabin. The road then continued to Ed’s land to the place ultimately where he built his camp. Ed testified that the course of the road was dictated by, and made the most sense because of, the steep embankment on his land.
[18] I find that Ed and Joe agreed to share the cost of the construction of the road. They hired a contractor after they initially cleared bush from their lands with chain saws. The work to construct the road took about a week. A gravel road was constructed, a portion of which is shown on Exhibit 1 as the Pink Road. The portion of the Pink Road on Ed’s (and then the Adey property) was not specifically marked on the exhibit. However, it was referred to by several witness, and the area where it connected to the main municipal road was referred to by a number of other witnesses.
[19] I find that Ed and Joe orally agreed they would jointly maintain the Pink Road. I find that for the period 1968 to 1992 as a result of heavy rains and occasional “hard use” of the Pink Road by motor vehicles, it was necessary to do work to maintain the road so that it would remain passable to motor vehicles. This maintenance work involved mainly replacing gravel in potholes created on the road and redistributing gravel that had been washed down the hill by heavy rains. This was work that was required at least monthly attention in the May to October time frame.
[20] From all the evidence and the agreed statement of facts, I find that in the spring of 1968, Ed Duffy, as the predecessor in title to the camp property now owned by the Ms. Adey, made a oral agreement, the 1968 Agreement, with Joe Caccamo, the predecessor in title to the camp property now owned by his granddaughter, Ms. Caccamo.
[21] Ed and Joe did not see it as necessary to commit their agreement to writing. Despite the fact it was an agreement regarding land, neither man thought to engage a solicitor or a land surveyor to more formally memorialize the Agreement. Notice of the 1968 Agreement or any instruments related to the 1968 Agreement were not registered on title for either property.
[22] In cross examination, Ed said that he did not know if he or Joe contemplated whether the 1968 Agreement would be binding on successors in title. As this was the best evidence I had on which to determine this particular issue, I find that Ed and Joe did not turn their minds to what would happen to the Pink Road if one or the other transferred their lands. Ed was also asked in cross examination if either he or Joe discussed or thought about what would happen if either party decided to block the road. Ed said he did not know. He also answered that he did not think about any way to terminate the agreement. I, therefore, find that the terms of the 1968 Agreement did not contemplate what would occur if either party decided to block the road.
[23] In 1970, Ed decided to sell. He sold his land to Ms. Adey’s mother in law, Dorin Mary Adey. The Land Title transfer instrument made no reference to any rights Ed’s successor in title had over Joe’s lands.
[24] Dorin was married to Dr. Adey. Despite the title documents filed in this matter, Ed testified that he had sold his property to “Dr. Adey”. Ed took Dr. Adey to visit with Joe after he sold his property. He testified in re-examination:
Q. The person that purchased your property were they able to use the road?
A. Well at the time when I sold my property, I sold it to Dr. Adey and we introduced him to Joe Caccamo and that and showed him the road allowance that Joe and I had built and Dr. Adey and that they agreed that everything was fine for them to access their now cottage I guess. So, that’s how I can say for that.
[25] Use of the road continued by the new owners, the Adey family. I find that use of the Pink Road by the predecessors in title to the lands now possessed by Ms. Adey continued uninterrupted and unimpeded from 1968 until 1992. The Adey lands were transferred to the Ms. Adey’s husband in 1986.
The Evidence of Other Witnesses about the 1968 Agreement
[26] At the second phase of the trial, there was a dispute about the degree to which the owners of the Adeys’ lands participated in the maintenance of the road. Ms. Adey testified that she paid contractors cash to work on the road. She could not produce any documentary evidence in support of that assertion. She was clear that the last time she paid anybody to do maintenance work on the Pink Road was in or about 2009. However, she did testify that she did occasionally rake the road. The contribution to maintenance by anyone acting on behalf of Ms. Adey was disputed by the witnesses called by Ms. Caccamo.
[27] I find that the Ms. Adey and her predecessor’s in title did make some monetary and labour contributions to the maintenance of the Pink Road. However, these contributions were not significant. I was persuaded by the evidence given by the witnesses called on behalf of Ms. Caccamo that for the period 1972 to 1992, the majority of maintenance work performed on the Pink Road was done by persons acting on behalf of the Caccamos.
Analysis concerning the 1968 Agreement
[28] Ms. Adey argues that she has an equitable easement created by the doctrine of proprietary estoppel over the Pink Road. She is a successor in title to Ed. She submits that the 1968 Agreement should be enforced relying on the equitable principles arising from the common law authorities establishing proprietary estoppel to defeat or overcome legal claims respecting title.
[29] Ms. Caccamo counterargues that the 1968 Agreement was a personal agreement between Ed and Joe. It was not designed to create a permanent interest in the lands of either party. It was not an agreement to create an easement over the Caccamo’s lands.
[30] For reasons following, I am persuaded that the Ms. Adey has failed to establish on a balance of probabilities the elements necessary to create an equitable easement by proprietary estoppel on the lands of Ms. Caccamo. Further, I am persuaded by the arguments of Ms. Caccamo that the 1968 oral Agreement did not satisfy the essential characteristics of an easement.
[31] The parties did not dispute the applicable legal principles relating to either the essential elements of an easement or the test to establish an equitable easement by proprietary estoppel.
[32] It is settled law that there are four essential characteristics of an easement:
a) there must be a dominant and servient tenement; b) an easement must accommodate the dominant tenement; c) dominant and servient owners must be different persons; and d) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
(433583 Ontario Ltd. v. Metropolitan Toronto Condominium Corp No. 935, 2008 CarswellOnt 3101, 168 ACWS (3d) 420 (Ont. S. C.)).
[33] There was no dispute that the 1968 Agreement had at least two of the essential characteristics of an easement. There were dominant and servient tenements on the lands of both parties. There were different parties involved.
[34] The parties disputed whether the 1968 Agreement was designed to accommodate the dominant tenement. Ms. Adey argued that the Pink Road absolutely served and was reasonably necessary for the enjoyment of Ed’s land. Ed wanted to use the property as a camp. He wanted to place his cabin near the lake. He wanted to be able to drive a car to the immediate environs of his camp building. He wanted to be able to bring in heavier vehicles to provide repairs or improvements to his camp from time to time. Ms. Adey submits that the only way Ed could do any of this was over the Pink Road because of the topography of his lands.
[35] Ms. Caccamo argues that the Pink road was not necessary for the utility and benefit of the Adey lands. Ms. Caccamo relied on 1832732 Ontario Corp. v. Regina Properties Ltd [2018] O.J. No. 6686 (Ont. S.C.) where at para. 47 Perell J. commented concerning the second aspect of the easement test:
Second, the easement must accommodate, that is, better or advantage, the dominant land. It is not enough that an advantage has been conferred to the owner of the dominant property making his or her ownership more valuable or providing a personal benefit to him or her; rather, for there to be an easement, the right conferred must serve and be reasonably necessary for the enjoyment of the dominant tenement. The policy rationale for this requirement is that the burdening of the servient property is justified because another property is benefited. A benefit personal to the landowner of the dominant tenement that does not benefit his or her land cannot constitute an easement. The requirement that the easement must be reasonably necessary for the enjoyment of the dominant tenement serves to emphasize that there must be a connection between the easement and the dominant tenement, as opposed to a personal right. The reasonable necessity requirement is fact specific and is applied in a flexible manner having regard to current social conditions and trends.
[36] In making the comments concerning the reasonable necessity requirement, Perell J. relied on the decision of the Ontario Court of Appeal in Depew v. Wilkes (2002) , 60 O.R. (3d) 499. In that judgment, at paras. 18 through 24 Rosenberg J.A. writes about the necessity aspect of the second part of the test as follows:
[18] The authors of Anger and Honsberger: Law of Real Property, 2nd ed. (Aurora: Canada Law Book, 1985) at p. 925 describe an easement as a “right annexed to land which permits the owner of the dominant tenement to require the owner of the servient tenement 'to suffer or not to do' something on such land”. They describe the four essential qualities of an easement in these terms:
(i) there must be a dominant and a servient tenement; (ii) an easement must accommodate the dominant tenement; (iii) dominant and servient owners must be different persons; and (iv) a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.
[19] In this case, the servient tenement is Lot 13. The dominant tenements are the appellants’ lots. On this part of the appeal, dealing with parking, the issue is condition two: the easement must accommodate the dominant tenement. The respondents submit that, while the appellants may find it convenient to park on Lot 13 in front of their cottages, this is not sufficient and they must show that the easement is “reasonably necessary for the better enjoyment” of the dominant tenements. The reasonable necessity elaboration of the accommodation requirement seems to have originated in a passage from Cheshire's Modern Real Property, 7th ed. (1954) that was approved by the English Court of Appeal in In re Ellenborough Park; In re Davies, Powell v. Maddison, [1955] 2 All E.R. 38, [1956-57] Ch. 131. Evershed M.R. stated, at p. 170 Ch., [page507]
We think it unnecessary to review the authorities in which the principle has been applied; for the effect of the decisions is stated with accuracy in Dr. Cheshire's Modern Real Property, 7th ed., at p. 457. After pointing out that “one of the fundamental principles concerning easements is that they must be not only appurtenant to a dominant tenement, but also connected with the normal enjoyment of the dominant tenement” and referring to certain citations in support of that proposition the author proceeded: “We may expand the statement of the principle thus: a right enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and is reasonably necessary for the better enjoyment of that tenement, for if it has no necessary connexion therewith, although it confers an advantage upon the owner and renders his ownership of the land more valuable, it is not an easement at all, but a mere contractual right personal to and only enforceable between the two contracting parties . . . (Emphasis added)
[20] The reasonable necessity requirement serves to emphasize that there must be a connection between the easement and the dominant tenement, as opposed to a personal right. In MacKenzie v. Matthews (1999), , 46 O.R. (3d) 21, at para. 8, 180 D.L.R. (4th) 674 (C.A.), Sharpe J.A., speaking for the court, held that the grant of an express easement includes a grant of ancillary rights “which are reasonably necessary to the use and enjoyment of the easement which was contemplated by the grantor”. In that case, the owners of two islands had been granted a 20-foot right-of-way over the appellants' property. The evident purpose of the right-of-way was for the owners of the island to gain access to their islands. The court found that the parking of vehicles while the users of the right-of- way enjoyed access to the islands was an ancillary right reasonably necessary to the use and enjoyment of the easement.
[21] In Caldwell v. Elia (2000), , 129 O.A.C. 379, 30 R.P.R. (3d) 295 (C.A.), this court considered the conditions for easements acquired by prescription and easements of necessity. The latter is described in Gale on Easements, 16th ed. (London: Sweet & Maxwell, 1997) at p. 148:
A way of necessity, strictly so called, arises where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the part so left inaccessible is entitled, as of necessity, to a way over the other part.
[22] In Caldwell, the original owner had created by deed a right-of-way over one lot to provide access to a land-locked lot. However, the owners had never used that right-of-way. Instead, for many years they had used a gravel road to get access to and from the properties. At some point, the respondents sought to block the gravel road. The trial judge held that the gravel road [page 508] did not accommodate the appellant's property because it was not reasonably necessary; the appellant could simply use the right-of-way. This court allowed the appeal and held that the gravel road did accommodate the appellant's property and that the appellant had acquired an easement by prescription. Austin J.A., speaking for the court at para. 14, distinguished between an easement acquired by prescription and easements of necessity:
What [the appellant] claims is not a way of necessity, but rather a prescriptive right accruing by virtue of use over a period of at least twenty years. A prescriptive claim need have no element of “necessity”. Accordingly, the existence of the 15' right-of-way created expressly by deed is irrelevant to [the appellant’s] prescriptive claim.
(Emphasis on “not” in original; other emphasis added)
[23] I do not understand the court in Caldwell to have held that reasonable necessity as understood in Ellenborough Park is not a requirement for a prescriptive easement. To the contrary, both before and after the passage quoted above, the court accepted the Ellenborough Park test.
[24] In the present case, I agree with the respondent that the appellants had to establish that parking was, in the words of Ellenborough Park, "reasonably necessary for the better enjoyment" of the dominant tenements. The reasonable necessity requirement is fact specific and must be applied in a flexible manner. As was said in Anger and Honsberger, supra at p. 927:
What is reasonably necessary must be a flexible criterion and have reference to current social conditions and the prevailing patterns and trends of conduct. What today might not be regarded to be a reasonable amenity for the better enjoyment of a property might be regarded as a reasonable amenity tomorrow.
[37] In considering the comments of Rosenberg J.A. above, I understand the reasonably necessary requirement to be a significant one. “Reasonably necessary” means more than “increases convenience”. The situations cited by the English authorities involved situations where there was no legal access whatsoever without the easement right. Where a property is inaccessible but for the easement right, that is a situation that becomes “a necessity”. I appreciate the need to be fact specific and flexible. However, it seems to me that in this case, the Pink Road for the Adey property was not reasonably necessary within the meaning of the authorities that set out the essential qualities of an easement. Joe and Ed agreeing to build the Pink Road conferred an advantage to Ed and may have made his lands more valuable because it allowed him to more conveniently access the particular place where he decided to build his camp. This was very much a personal decision for him. He could have built his camp elsewhere on his lands. In fact, the Adeys did build another building on another place on the lands.
[38] In my view, the Pink Road only served the personal preference of Ed, adopted no doubt by the subsequent owners, for camp placement closer to the lake. That preference and utility of the Pink Road to Ed and subsequent holders of title is not sufficient to establish necessity within the meaning elaborated by the authorities noted previously that have set out the parameters of that test.
[39] I therefore find that the Pink Road was not necessary for the use and enjoyment of the lands by the Adey owners. I have said as much in my earlier decision concerning the Road Access Act. Ed got access to his land from the municipal road. He was granted a right to go over the Caccamo lands to reach the lake. However, that access was not reasonably necessary for him to enjoy his land. He had road access over his own lands to his property. His lands are not landlocked. Even without the Pink Road, he could still access the cabin without going over the Caccamo lands. I do not see that vehicular access is a necessity within the meaning of those decisions I just cited.
[40] The evidence of the other witnesses called by the Adeys indicates that an ATV has been used to get up and down the sloped portion of the Adey lands to get to the lakefront cabin albeit with some difficulty. There is no doubt a difficult slope on the Adeys’ land. However, it is not a cliff. Common sense tells me that for the right price, and likely a very significant price, a road could be built connecting the upper portions of the property to the cabin by the lake. Certain witnesses were asked to speculate about this but no hard evidence of quotes or opinions of contractors as to the viability of such a project was placed before me.
[41] I note that over the entirety of their possession, the Adeys built another camp building closer to the road which, from the evidence, I understood to be also frequently used by them. This, for me, reinforces the idea that the Pink Road was made for the personal benefit of Ed. If in fact he thought he had a permanent absolute right which he could convey to Ms. Adey in 1970, there would have been no need for him to have introduced Dr. Adey to Mr. Caccamo to have them talk about the use of the Pink Road.
[42] In my view, Ed’s testimony evidences the intent of the parties that whatever agreement they had to build the road, the continued use of the Pink portion was contingent on the neighbours continuing to get along and to mutually contribute to its up-keep. This is why they did not turn their minds to what would happen if either decided to block the road. Ed and Joe were friends, and they expected to continue to be friends. However, they were not planning for the long term. This is an important fact. Courts are reluctant to imply or impose contractual terms which have the potential to overreach the boundaries the parties set for themselves in deciding to agree to whatever they decide to agree to.
[43] In my view, determining that the 1968 Agreement was in the nature of an easement would excessively stretch the fact specific and flexible approach courts have taken to questions of this type. Land rights are at issue in this matter. Property rights are important rights. The parties did not see fit to commit their agreement to writing. This is understandable as they were friends and they expected to continue to be friends. It was important to me that Ed had already purchased his land before he made the arrangement with Joe to build the Pink Road. The evidence convinces me that locating the camp building, or consideration for how it was to be reached if it was placed by the lake, was an afterthought process for Ed. He was not induced to buy the property by anything Joe said about allowing access over the Pink Road once it could be built. Both lots were purchased in late 1967, and then the two friends went to the lands in the spring of 1968 to see what they could do about building cabins.
[44] I am, therefore, persuaded that the 1968 Agreement was in the nature of a personal agreement only between Ed and Joe. It did not create an easement for either party over the lands of the other. It did not possess the reasonably necessary quality of accommodating the dominant tenement in a way that has been set out by the authorities. I, therefore, find that the Agreement of 1968 did not possess all four essential characteristics of an easement. I find that Ed did not have the right to convey an easement to the Adeys when he sold his property.
[45] I was also concerned that the 1968 Agreement did not possess the quality of being capable of forming the subject matter of a grant. I say this because of the uncertainty of the actual course of the alleged easement over the Caccamo lands. While the witnesses at this trial were able to show in a general way the course of the Pink Road, the evidence indicated that its course became unclear in the immediate vicinity of the Caccamo cabin. This problem did not manifest itself during the brief period of Ed’s ownership. In fact, it was not a problem for the 22 years from 1970 to 1992. It certainly was a problem in 1992 and again in 2015 as the discussion of the evidence, below, sets out.
[46] In my view, the 1968 Agreement was a personal agreement between two adjacent landowners. It had a continuing quality that was contingent on the parties mutually contributing to upkeep of the road they had built. It was also contingent on both parties continuing to be satisfied with its operation. I find that the parties did not specifically turn their minds to the issue of termination. Therefore, I can see no other conclusion than to find that in the event either party decided to no longer maintain the road, or to allow the other to use the portion on their lands, this would serve to terminate the agreement. It would then be at an end and both parties would be left with whatever legal rights were conferred to them by the documents present on their respective titles.
Ms. Adey’s claim for proprietary estoppel arising from the 1968 Agreement
[47] Ms. Adey argues that as successors in title to Ed, they have a claim to use the Pink Road on the basis of the doctrine of proprietary estoppel.
[48] The parties agreed on the legal test for such a claim. The elements necessary in order to establish an equitable easement by proprietary estoppel are:
a) The owner of land (O) induces, encourages or allows the claimant (C) to believe that he has or will enjoy some right or benefit over O’s property; b) In reliance upon this belief, C acts to his detriment to the knowledge of O; and c) O then seeks to take unconscionable advantage of C by denying him the right or benefit which he expected to receive.
[49] Ms. Adey submitted that the evidence at trial demonstrated that she, and her predecessors in title, were induced and encouraged to use the Pink Road by Ms. Caccamo or her predecessors in title. In the alternative, the Ms. Adey argues that Ms. Caccamo or her predecessors in title remained silent, and therefore acquiesced to Ms. Adey’s use and reliance on the Pink Road. Further, Ms. Adey argues that she has suffered detriment. This reliance comes in the form of time and money that have been expended on the construction, maintenance and repair of the Pink Road, as well as the construction of the camp building close to Whitesand Lake, the dock, septic and well, which are all solely accessed by motor vehicle via the Pink Road.
[50] Ms. Caccamo counters that there was no such inducement or encouragement by her or her predecessors in title with regard to the Pink Road. Use of the road was a personal agreement between Ed and Joe. To the extent that that agreement was honoured by Joe after Ed sold the property, this was not an inducement or an encouragement satisfactory to allow the court to find a successful claim for proprietary estoppel.
[51] I am persuaded by the evidence at trial that Ms. Adey has not established a claim for proprietary estoppel arising from the 1968 Agreement or the period leading up to the 1992 blocking of the Road. I find this for the following reasons.
[52] Ed bought his land before he discussed the route of the Pink Road with Joe. He was not induced by anything Joe said to purchase the land. He made an agreement with Joe to expend money and effort to build the Road. This agreement was mutual in that Joe obtained a corresponding right to travel over Ed’s land to get access to his own property. In my view, this aspect of mutuality defeats the first aspect of the test.
[53] A claim founded in the doctrine of proprietary estoppel is one where only one side is induced or encouraged to act in a certain way, and then acts to their detriment. I agree that the aspect of detriment was established for Ed in that he did decide to build his cabin in a place that was serviced easily by the Pink Road. However, there were no acts by Joe of seeking to take unconscionable advantage of Ed concerning the Pink Road. I find that two of the three aspects of the test were not satisfied with respect to Ed’s occupation of the lands at issue.
[54] When Ed sold his lands, he had no claim to a proprietary estoppel that could be passed on to the successors in title.
[55] With respect to the predecessors in title to Ms. Adey, other than Ed, there was no evidence of any inducement or encouragement by Joe or his successors in title to encourage the Adeys to buy their lands based on access or no access to the Pink Road. What happened was that there was a new oral agreement that the Adeys and the Caccamos both could use the Pink Road in its entirety so long as they both continued to do their fair share of maintenance. Both sides were happy with how things proceeded.
[56] The evidence at trial of detrimental reliance by the predecessors in title to Ms. Adey and by Ms. Adey herself was minimal. She did not prove to my satisfaction that she or her predecessors actually spent money to do any maintenance. I have no reason to disbelieve her when she said she raked the road on occasions. But in my view, this hardly represents an act of detrimental reliance that rises to the requirement of the doctrine of proprietary estoppel.
[57] In my view, Ms. Adey has not established a claim over the Pink Road on the basis of the doctrine of proprietary estoppel for the period 1968 to 1992.
The 1992 Blocking of the Roads
[58] In 1992, a dispute about the use of the Pink Road arose between Adey and the Caccamo families. A good deal of the evidence from various witness who testified about this event gave vague and imprecise descriptions of what exactly occurred. This was understandable given the passage of time. Also, the main protagonist in the event, Greg Caccamo did not testify, because he died in 2009. However, in my view, the testimony was consistent from all the witnesses who testified about this event and from which the following findings of fact can be made.
[59] Sometime in 1992, likely the summer, Greg Caccamo physically altered the Pink Road at a point close to his camp building. Greg dug a hole in the middle of the Pink Road and placed rail ties in front of the hole so no one could drive into the hole. He did this for the express purpose of stopping the Adeys from using the Pink Road to access the camp building they had near the lake. In retaliation, Ms. Adey’s husband, Andrew Adey, put a chain across the portion of the Pink Road that was located solely on the Adey property. This was the only way for the Caccamos to get unimpeded vehicular access from the Municipal Road to their property. The chain was not up for a long time, but it was definitely there long enough to cause Greg to take a further serious step with regard to his property.
[60] In response to the Adeys’ blocking the Pink Road, Greg built an entirely new portion of road, located solely within the boundaries of the Caccamos’ property leading from the municipal road and connecting to the Pink Road. This required clearing the bush and the use of heavy equipment.
[61] Despite Greg’s actions, members of the Adey family continued to access the camp building by the lake, by driving around the hole dug in the Pink Road. They did not have the permission of Greg or his mother Anne Caccamo, the titled owner of the Caccamo land at the time, to go off the travelled part of the Pink Road on to the Caccamo lands in order to do this.
[62] I find that Greg did not take the step of attempting to block the Pink Road without cause. I find that he was upset with the failure of the Adeys to take appropriate steps to maintain or contribute to the maintenance of the Pink Road on the Caccamo lands. I find that the steps taken by the Adeys in blocking the Caccamos’ access was indicative of their serious dissatisfaction with the way in which the agreement regarding the Pink Road had been and was working.
[63] I also find that their action of simply driving around the hole indicated an unconscionable disregard for the property rights of the Caccamos. It represented the actions of people who did not care about the property rights of others. The only common sense way of explaining the Adeys’ actions of retaliating, and driving around the hole, as opposed to talking or trying to work things out, is to accept that they too were content that there was no way the agreement could continue and they were going to do whatever they wanted to do anyway.
[64] Greg dug up the Pink Road with the acquiescence of the owner of the property at the time, his mother. In my view, this was an unequivocal and clear action of the Caccamos that any rights they had granted or acquiesced to for the Adeys over the Pink Road were at an end.
[65] The responding actions of the Adeys in chaining off the Caccamos’ access to their property via the Pink Road to the extent that it connected to the municipal road was also an unequivocal and clear act of acceptance on their part that any rights they had granted or acquiesced to for the Caccamos over the Pink Road were at an end. Further, I find that this retaliatory action by the Adeys was inconsistent with the mutuality that was the foundation of their right to travel over the portion of the Pink Road that was on the Caccamo land.
[66] In my view, the oral agreement between the two landowners that had been in place since Ed sold the land to the Adeys in 1970 came to an end in 1992. As I have said previously, the Adeys did not enjoy an easement over the lands of the Caccamos. Also, as I have stated earlier, I find that the evidence at trial did not establish a claim for proprietary estoppel over the Caccamos’ land from 1970 to the time in 1992 when Greg blocked the Pink Road.
[67] I find that from 1992 to 2015 there was no formal agreement with respect to the Pink Road. The Adeys continued to use the road. The Caccamos did nothing to stop them formally but did nothing to show that they acquiesced either. These actions were not sufficient to persuade me that the Adeys had either an easement or a right to travel over the Pink Road further to a proprietary estoppel for this time frame.
The 2015 Incident
[68] At some point, after the summer of 1992, Greg filled in the hole in the Pink Road and removed the rail ties. The evidence from the Ms. Caccamo’s witnesses suggested that this was between 1999 to 2001.
[69] In 1993, the Caccamo property was transferred to the Ms. Caccamo’s parents, Greg and Patti-Lynn Caccamo as joint tenants. There was photographic evidence introduced at trial that showed that a child’s swing set and a picnic table was placed at the rear of the Caccamo camp, in proximity to where Greg had dug up the Pink Road. I accept that this evidence proves that for some time after 1992, the Caccamos did attempt to use the rear area of their camp building in a way that was inconsistent with the Adeys’ alleged right to drive on that ground.
[70] The witnesses for Ms. Adey asserted that their right to use the Pink Road was unimpeded by anything other than the hole that had been dug by Greg. Witnesses for Ms. Adey asserted they simply drove around the hole after 1992 until it was repaired.
[71] Greg and Patti-Lynn separated in 1999. Ms. Caccamo, the current owner had only limited access to the Caccamo property from that time until approximately 2013. Erica Caccamo became the titled owner in 2015.
[72] I accept the evidence of Erica Caccamo that at some time after 1999 but before 2001, Greg repaired the hole in the road. He did this because he needed to bring in heavy equipment to reinforce a retaining wall near the lake.
[73] The evidence was clear from all the witnesses that between 1992 and 2015, the interactions between the Adeys and the Caccamos ceased.
[74] In the Spring of 2015, Ms. Adey and the Ms. Caccamo had a conversation about the use of the road. I find that Ms. Adey asked Ms. Caccamo for permission to drive over the Pink Road so that she could take some things down to her camp building near the lake. Ms. Caccamo gave this permission but no other permissions to use the Pink Road. She reinforced her position by placing wooden sawhorses across the Pink Road. When these were moved by somebody, Ms. Caccamo placed bigger sawhorses across the road. They were again moved by somebody.
[75] Ms. Caccamo then decided to replicate the actions of her father and dig up the Pink Road. She placed I-beams in the hole to prevent any cars from driving through. She had the Ontario Provincial Police serve a no trespass notice on Ms. Adey. The Adeys’ use of the Pink Road ceased at that point. This litigation followed.
[76] In my view, any use the Adeys made of the Pink Road from 1992 to 2015 was at best, in the nature of a licence granted to them by the Caccamos. It was revocable. Douglas Adey said it best when he described it as “an unspoken agreement that to get to one property you, you could use that road”. I agree that it was “unspoken” because the parties were not in communication for 1992 to 2015.
[77] I appreciate that there was evidence from Ms. Adeys that they had some significant interactions with Greg when he was going through a difficult time after his separation and before he died. They did care for him to a degree. It seems from the evidence that he was left destitute in the last years of his life. That said, that evidence was not sufficient to prove to me on the balance of probabilities that these actions vested the Adeys with any greater rights than they had in the 1970 to 1992 period, which is to say nothing more than a licence.
[78] Also, because any rights they had after 1992 were in the nature of being “unspoken,” means to me that it was open to interpretation by either party what exactly these rights entailed. This legal result is of little value to the Ms. Adey as agreements require a meeting of the minds at a minimum in order to be enforceable. As property rights were involved, it seems to me that the Caccamos would have the last word on what rights the Adeys would or would not have over the Pink Road going over the Caccamo property.
[79] In my view, Ms. Caccamo was fully within her legal rights to terminate any access to the Adeys or anyone else she did not want coming onto her land as she was the titled owner.
[80] As I have found, no bundle of rights in the nature of an easement over the Caccamo lands existed in favour of the owners of the Adeys’ land at any time. The lack of evidence of what occurred from 1992 to 2015 does not give me any basis to create any such rights in favour of Ms. Adeys now. In 2015, the Adeys were in no better position than Ed Duffy. My findings regarding Ed’s right to an easement (or lack thereof) apply to the situation in 2015 as well.
[81] Also, I do not find that as of 2015 the Adeys were vested with any rights over the Caccamo lands arising from a claim to proprietary estoppel.
[82] There was no evidence of any of the Caccamos inducing, encouraging or allowing the Adeys to believe that they had or would enjoy some right or benefit over the Caccamo property. After Greg dug up the road, the Adeys simply ignored this action and continued to drive around the hole. In my view, this behaviour cannot be used to burden the Caccamos with a finding that they induced, encouraged or allowed the Adeys to do anything on the disputed part of the Road.
[83] There was no evidence that the Adeys acted to their detriment to the knowledge of the Caccamos relying on anything the Caccamos had done. The act of ignoring the clear sign by Greg to stop using the Pink Road is not an act of detrimental reliance. It is an act of arrogance. It is not sufficient to find a claim for a proprietary estoppel.
[84] In my view, whatever the Caccamos did or did not do from 1992 to 2015 did not seek to take unconscionable advantage of the Adeys. The action by Erica in 2015 of again blocking the road also did not have that quality. Ms. Caccomo’s acts were not seeking to take unconscionable advantage of the situation. I find that her acts were those of a landowner asserting her rights to limit trespassers on her land, after she had taken the less aggressive steps of first trying to signal that there was to be no further use by the deployment of symbolic wooden barriers. The fact the sawhorses were ignored, and pushed aside, demonstrates to me that the Adeys believed that they had an unrestricted right to travel the Pink Road. I find they did not have such rights. After 2015, they were trespassers.
[85] In my view, Ms. Adey has failed on a balance of probabilities to prove they she was possessed of any property rights over the lands of Ms. Caccamo sufficient to allow me to grant the relief requested in the application.
[86] The application is therefore dismissed with costs.
[87] If the parties cannot agree on costs, Ms. Caccamo may submit a written claim for costs consisting of no more than three pages, exclusive of any documents related to any offers to settle that would bear on a decision concerning costs. This claim shall be submitted electronically in accordance with the current practice direction of R.S.J. Warkentin for the Northwest Region dated March 20, 2020. These submissions are to be received by the court no later than 10 business days following release of these reasons.
[88] Ms. Adey shall then respond to Ms. Caccamo’s submissions, consisting of no more than three pages exclusive of any documents related to any offers to settle that would bear on a decision concerning costs. This response shall be submitted electronically in accordance with the current practice direction of R.S.J. Warkentin for the Northwest Region March 20, 2020. These submissions are to be received by the court no later than 10 business days following receipt of Ms. Caccamo’s claim for costs.
The Hon. Mr. Justice F.B. Fitzpatrick Released: May 5, 2020