Court File No.: CV-19-00000037-0000 Date: 2021-02-18 Superior Court of Justice – Ontario
Re: Dawn Fisher and Kelly Fisher, Applicants And: Jamil Antonio Saade, Respondent
Before: Madam Justice Deborah Swartz
Counsel: Kurt Pearson, for the Applicants Michael Swindley, for the Respondent
Heard: February 12, 2021
Endorsement
Summary and Analysis
[1] The Applicants, Dawn and Kelly Fisher, own waterfront property on the Bay of Quinte.
[2] The Respondent, Jamil Saade, owns an abutting property that is not waterfront and is in fact landlocked. It does however have a deeded Right-of-Way (ROW) that provides access to the water.
[3] Both pieces of land were purchased from Mrs. Sexsmith, who is not part of this litigation.
[4] The ROW of the Respondent Mr. Saade runs over the Applicant Fishers’ property.
[5] The current ROW to the water (by express grant in 2017) replaced an initial right-of-way to the water that was surrendered and removed from title (also in 2017). It is in a different location on the Fishers’ property than the original, surrendered right-of-way. This was done by Mrs. Sexsmith and the Fishers before the Respondent bought his property.
[6] There was an agreement (ROWA) signed by the previous owner of the Respondent’s property (Mrs. Sexsmith) and the Fishers. This contract related to the current ROW, including an indemnity clause addressing damages by Mrs. Sexsmith or her invitees using the ROW and the further agreement between them.
[7] This ROWA was not signed by Mr. Saade and it was not registered on title. He acknowledges being aware of the agreement, signed between Mrs. Sexsmith and the Fishers, prior to buying his property.
[8] Both the original and the current ROW speak to access to the swimming beach. So does the ROWA. All parties agreed at the hearing that this access is pedestrian access. They do not agree on whether the “Owner” of land entitled to use the ROW includes guests, tenants or others invited by the Owner. They do not agree on who can access the beach using the ROW.
[9] Mr. Saade says that as the owner he and his guests or invitees can use the ROW to get to and from the beach. He says that tenants that he has through AirBnB are his invitees or guests and can access the beach area using the ROW as he has authorized them.
[10] The Fishers say that this is an improper use of the ROW and that Mr. Saade has and is attempting to commercialize and expand the ROW into something not contemplated or reasonable. They say it is unreasonable to expect that the “Owner’s” use of the ROW would include the Owner’s tenants and that there are simply too many people now using the ROW in ways not intended or reasonable in light of the language in the ROW documents and the circumstances. It is acknowledged by the Fishers that they have on occasion rented out their cottage. They further acknowledge in submissions that it is not reasonable to ask that no one, but Mr. Saade himself can use the ROW. The question is “who then may use the ROW to the water?”
[11] The Applicants assert that Mr. Saade’s tenants through AirBnB (and presumably any other paying tenants), should be foreclosed from using the ROW. They assert that it was never intended that the Owner of the adjoining land would use the ROW for their paying tenants to access the water. They assert that this is a “commercialization” of the ROW that is unreasonable, unduly and improperly expands the ROW beyond what was expected and described.
[12] The parties also do not agree on whether Mr. Saade should have put up a dock on the Fishers’ land in the area of the ROW. He says he is entitled to do so. His reasons are varied and include that the Town of Napanee told him he could, that he is entitled to as the original ROW (now released and not registered on title) referenced use of a dock, that it is floating and/or more than two metres inside the property line and that these comply with the By-Law and therefore, the ramp and dock are acceptable. He also asserts that there is a safety concern that mandated his installation of the dock and ramp on the ROW/land of the Applicants.
[13] There are also issues about surveillance cameras, invasion of privacy, trespass to property and loss of enjoyment. There is an allegation that a water tank and boat owned by Mr. Saade are sitting on the Fishers’ property line. Mr. Saade says that if they show him the property line, he will move them. I trust that as a survey was completed and served, that this has now happened. In any event, this particular issue was not addressed by counsel at the hearing and I will not be making an order in that regard other than to confirm what is in the materials - that Mr. Saade shall do what he said he would do and shall move those items off the property line and onto his own property, if they are on the Applicants’ land. Mr. Saade also agreed at the hearing to remove the camera that he installed on the property of the Applicants and an order was made at that time.
[14] I have reviewed the case law urged upon me by counsel which included case books and facta. I will not summarize all the cases herein but will reference the highpoints of those cases that are most helpful in resolving this dispute on the particular facts of this case. Counsel provided a clear and helpful review of facts and history between these parties and analysis of the current state of the law relating to rights of way. This was much appreciated as were the concise submissions and argument. There a few facts in dispute. As the Applicants note in their factum, it is the scope of the ROW that is in dispute. Essentially, what is reasonable use of the ROW in this case?
[15] The Ontario Court of Appeal notes in Fallowfield v. Bourgault that to determine reasonable use of a right-of-way is to undertake a fact heavy inquiry considering the grants language and the circumstances. In the older 1951 case of Golisky v. Romanuik, [1951] 2 D.L.R. 475, the court notes that one must consider the language of the grant creating the easement as well as the circumstances at the time the grant was given. In a similarly dated but consistent case referenced by counsel, Bell v. Marsh, [1951] 3 D.L.R. 486, the court refers to the 1867 case of Williams v. James which speaks to the ordinary and reasonable use to which the land might be applied at the time of the grant.
[16] All this leads the court to examine the words of the grant and circumstances of the case.
[17] While the original ROW has been discharged, it is still helpful to look to the history of water access over this property and to then see that the use of a ROW for access to the water, swimming area has been historically consistent. There is no lack of clarity in the original grant language nor in the current language and transfer documents of the ROW, in that the ROW is to access the water.
[18] Access to the swimming beach is also consistently referenced in the ROWA agreement signed by the Fishers and Mrs. Sexsmith.
[19] While I find that this contract does not bind Mr. Saade or his property as he did not sign it and it was not registered on title, he was aware of it. That awareness, however, does not change the situation in my view. Even if I had found that he and/or the property were bound by the ROWA agreement, it would not have changed the result.
[20] In my view, the reference to Owner’s use of the ROW cannot be interpreted as the Owner and only his non-paying guests or invitees. Counsel acknowledged that it is not unexpected that cottage owners may rent their properties. In turn, it should have come as no surprise to the Fishers that Mr. Saade did rent his property and that he and his invitees would use the ROW. They themselves have rented their cottage.
[21] It is unreasonable to now ask that the ROW be restricted, given the clear language of the grant and the circumstances of this case. The history of use of a ROW over the Applicants’ property never had any sort of limitation of the kind requested by the Fishers and in fact, at various points in the past, there have been clear references to use of the ROW by tradespeople guests etc. That is not to say that this history alone now binds the parties, but rather that it is helpful in understanding the intention and expectations of the Applicants and the Respondent.
[22] It is not necessary, in any event, to determine the issue of whether Mr. Saade is or is not bound to the ROWA as the ROW terms on title to his property are sufficient to address the matter. The ROWA terms are helpful in confirming to the court that the Applicants understood that the use of the ROW was for access to the water and swimming area, was pedestrian and was contemplated to include the owner of the abutting property and their invitees. There were clear terms of indemnification in the ROWA that spoke to the use of the ROW by invitees.
[23] Mr. Saade bought property that said he has access to the swimming beach. There were no restrictions that dealt with what would happen if Mr. Saade’s tenants used his ROW or that it was only he and his friends and family who might use it. Nor does there need to be in my view. It is a reasonable use of cottage property and in turn, the ROW.
[24] The ROWA agreement signed by the Fishers and Mrs. Sexsmith clearly noted an understanding that there might be invites using the ROW. To say now that it was intended to mean non-paying invitees is not a reasonable interpretation of the words of the ROW or a reasonable request by the Fishers to restrict the use of the ROW by Mr. Saade.
[25] Owning a cottage may mean renting the cottage property that one owns. I find that Mr. Saade owns a cottage with a deeded right to access the water that is, even narrowly interpreted, to include he and those he may invite to use the ROW to the water including tenants. To determine otherwise or attempt to restrict his use of the ROW would create chaos. How exactly would this be phrased and enforced?
[26] Had this type of severe and in my view unreasonable restriction been intended then it should have been clearly worded when the ROW was lodged on title. There are public policy concerns in the orders requested by the Fishers that would unduly restrict the use of the ROW in a manner that cannot flow from the language of the grant and the circumstances of this case.
[27] The court inquired of Applicants’ counsel as to exactly the order the Fishers were seeking, and counsel acknowledged that it is a quantitative problem that they have with Mr. Saade’s use of the ROW. How many people and what type of guests are too many people was the question for the Fishers. It is not Mr. Saade’s right to rent his cottage or his use of the ROW, but rather what they view as the “commercialization” of the ROW that flows from the substantial activity that they assert comes with AirBnB rentals.
[28] Counsel confirmed that there is no evidence that Mr. Saade is running afoul of any law or municipal restriction in renting his cottage out through AirBnB or otherwise. This of course is not the issue before this court in any event.
[29] While I find that the Fishers are requesting an unreasonable restriction in the use of the ROW, Mr. Saade has been conducting himself and allowing his property to be utilized in other ways that are an unreasonable attempt to expand the ROW beyond clear and simple access to the water.
[30] It is clear that the short term rentals and Mr. Saade’s own actions, have caused significant problems and concerns for the Applicants. Mr. Saade’s use of the ROW will not be foreclosed from his tenants, but his other uses of the ROW are unacceptable and cannot continue.
[31] His installation of a ramp and dock, his installation of a camera on the Applicants’ property and surveillance of the ROW with other cameras, the placement of his furniture on the Fishers’ land, use of the Fishers’ dock, partying on their dock and property and the general disturbance of the Fishers’ use and enjoyment of their land, which includes the ROW, are unacceptable expansions of the ROW that do not accord with the language of the ROW or the circumstances.
[32] The scope of an easement or ROW can include ancillary rights that are reasonably necessary for the use and enjoyment of the ROW as intended by the grantor. The Ontario Court of Appeal sets this out in the case of Mackenzie v. Matthews. The example in that case of ROW access to the water being for the purpose of accessing an island, led the court to confirm that placement of a dock was an ancillary use to the ROW. It was necessary.
[33] In the case before this court, the installation of a dock is not necessary to access the water. The assertion by Mr. Saade that he had to install the ramp and the dock for safety reasons is not supported in the evidence and is not reasonable on the facts. The evidence is that there is an incline down to the shoreline, but the swimming area has a very gradual slope into the deeper water. It may be a rocky entry into the water, but there is no convincing evidence that a ramp and dock are necessary to access the water and swimming area safely.
[34] A return to the Ontario Court of Appeal case of Fallowfield emphasizes that in addressing ancillary right claims, the court notes “To imply a right ancillary to that which is expressly granted in the easement, the right must be necessary for the use and enjoyment of the easement, and not just convenient or even reasonable.”
[35] In any event, the dock that Mr. Saade installed had an extensive ramp out over the water and then attached to that a large L-shaped dock raised up significantly from the water on stilts, more in the nature of a deck out over the water rather than a simple dock needed to facilitate access to the water. This is no simple set of steps to ease the step down onto the shoreline. No ramp or dock are needed to address safe access the water.
[36] The evidence reveals in fact that the unilateral installation of the ramp and dock by Mr. Saade on the Fishers’ land, appears to have followed a complaint from an AirBnB tenant that they had no waterfront area to sit and enjoy the beach area. It is significant to note that the tenant was correct that Mr. Saade cannot provide a waterfront piece of property for tenants or his own enjoyment. He does not own waterfront property. He has a landlocked property with a right to access the water. It is also noteworthy that Mr. Saade’s response to the tenant was that he was soon to install a dock in order to remedy the situation. And herein lies the problem for Mr. Saade.
[37] He cannot, by installation of docks or ramps or by use of the Fishers’ dock and lands, create for himself and his guests, tenants or invitees, a waterfront property. He simple does not have that right attached to his deed. What he does have is a right to access the water.
[38] Mr. Saade cannot add to the ROW in such a manner as to unduly burden the Fishers and their use of and enjoyment of the property. It is not necessary or reasonable for him to install anything on or contiguous with the ROW in order to access the water.
[39] In Mackenzie, Sharpe J.A. wrote:
This rule about the use of a right-of-way precludes the user of a right-of-way from enlarging the burden of the easement on the servient tenement by using it for a purpose different from that for which it was created. There was, however, no mechanical way to determine what constitutes an unreasonable demand upon an easement. Each case depends upon a proper construction of the instrument creating the easement and the factual circumstances.
[40] I will only briefly refer to Mr. Saade’s assertion that the Municipality authorized the dock/ramp placement. As noted at the hearing, it is unexplained how the municipality could have given permission or authorized the installation of a dock and ramp on property that Mr. Saade does not own. I appreciate that he may have moved it to be more than two metres away from the property line, but surely that would require that he be the landowner of that property line. He is not the owner of the land. It is owned by the Fishers. In any event, as I have found that it is an unreasonable and improper use of the ROW to install a dock/ramp, this argument fails and the question of how far from the property line it may be, is irrelevant.
[41] I heard little from counsel on the issue of whether the ramp and dock actually rest on the Fishers’ property or the assertion that they rest on the land of the Crown that may exist between the water line/high water mark and the shore. I accept the argument of counsel for the Fishers that on the facts of this case and consistent with the most recent cases and shift in the law, that as the Crown did not expressly reserve the land between the high water mark and the shore and as confirmed in the history of use of this property and express descriptions, the Fishers’ land starts at the water line. The dock and ramp have been installed on the Fishers’ land and are an improper extension and use of the ROW.
[42] Similarly, I am not persuaded that the installation and focusing of cameras (which Mr. Saade acknowledges) on the ROW and/or directed to the ROW are a necessary “use” of the ROW or ancillary thereto. Even if it may be convenient and reasonable for the cameras to capture the ROW in order to “keep tabs” on the users of the ROW who may be behaving inappropriately (as asserted by Mr. Saade), if the Fishers do not agree and feel this invades their right to privacy and enjoyment of their lands then the cameras should be removed from their property and the cameras on Mr. Saade’s land should be directed away from the ROW. Neither Mr. Saade or his guest, tenants or invitees need these cameras to access the water. The caselaw is clear that cameras focused primarily on neighbouring property without consent, are an invasion of privacy.
[43] Finally, on the issue of trespass on to the Fishers’ land, Mr. Saade’s right to use the ROW does not include a right to use the other areas of the Fishers’ property or their belongings. Nor must the Fishers accept that Mr. Saade’s guests, paying or otherwise, will be on their other property or using their belongings. They should not have to endure Mr. Saade or his guests’ unreasonable or unlawful conduct in the course of their accessing the water. Placement of furniture on the Fishers’ land or damage to their things is not part of the right to access the water.
[44] I did not hear significantly from the Applicants on the damages claim. I did not receive substantial evidence in that regard. I am unprepared to make an order for damages on the facts and evidence before me.
[45] Use of the ROW property in breach of provincial and municipal by-laws (including COVID-19 protocols) and trespass are matters for the enforcement departments of these bodies and the police. The police have been called in the past to address trespass issues. They may be called again if matters between these parties do not calm.
[46] While Mr. Saade has a right-of-way over the Fishers’ property to access the water, that right is to be exercised in a reasonable fashion consistent with the terms of the grant and the circumstances. He is to ensure that any guests or invitees that he has authorized to use the ROW understand fully that their use of the right-of-way is to access the water and for that purpose only. It is a path to and from the water. That is the extent of it.
Decision
[47] Therefore, the following orders shall issue for reasons noted above:
- The Respondent’s use of the right-of-way over the Applicants’ property is restricted to the purpose of pedestrian access from the Respondent’s property to the swimming beach of Bay of Quinte. The Respondent’s use of the right-of-way may include his guests or invitees for the purpose of accessing the water and swimming beach and not for any other purpose. Use of the right-of-way does not include construction or installation of anything. It does not include the right to build or install a ramp or dock.
- The Respondent is to remove, at his own expense, the dock installed at the waterfront terminus of the right-of-way over Parts 1, 2 and 3, Plan 29R – 10429. A new or further dock/ramp may not be re-installed by the Respondent if the current dock has already been removed for this winter season, on the right-of-way or the lands of the Applicants.
- The Respondent is to ensure that he and his guests/invitees do not trespass on to the Applicants’ lands, which includes their dock, except for use of the right-of-way itself for the sole purpose of accessing the water and swimming beach area.
- The cameras on the Respondent’s property are to be directed away from the right-of-way unless the Applicants consent otherwise.
- The legal description of the property is to be referenced and included in the draft order in order to ensure that it is clear as to which property and right-of-way the order is directed.
[48] The remaining claims of the Applicants are dismissed excepting the claim for costs which may be addressed in writing. The Applicant has 10 days to submit a 3-page (one sided) submission on costs (plus a Bill of Costs and any Offers to Settle) and the Respondent shall have 10 days thereafter to do likewise. If the parties are able to reach an agreement on costs, in particular in light of what I find is a situation of mixed success, they are asked to advise the court forthwith. In any event after 20 days, failing the receipt of costs submissions, there will be no order as to Costs.
Swartz J.
Date: February 18, 2021