COURT FILE NO.: CV-21-432
DATE: 20220302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary Wilson and James Symons
Applicants
– and –
Shane London McQuade
Respondent
Colleen E. Butler, for the Applicants cbutler@fglawyers.ca
Justin Vanden Ende, for the Respondent jvandenende@barristonlaw.com
HEARD: January 20, 2022
REASONS FOR DECISION
LEIBOVICH J.
[1] The applicants own a cottage property. ln the 1930s, the cottage had to be relocated to accommodate the extension of Highway 35. As a result, the applicants’ predecessor in title required, and were granted, a right of way over the respondent’s property to access the cottage.
[2] The applicants assert that the respondent, who bought the property from the previous owner in 2018, has substantially interfered with the use and enjoyment of the right of way, by: 1) building a gate at the start of the right of way; 2) building a wooden fence right at the end of the right of way and in front of the applicants’ property; and 3) preventing the applicants from parking on the right of way, which was their historical parking spot.
[3] The respondent submits that the right of way does not grant the applicants a right to park on the right of way and that his erection of the gate and fence do not substantially interfere with the applicants’ easement rights. The respondent submits that the right of way only allows the applicants to access their property from the northern border and not the eastern border.
[4] This application thus raises two questions:
What is the scope of the easement granted to the applicants over the deeded right of way?; and,
Did the respondent substantially interfere with the applicants’ use and enjoyment of the right of way by installing the fence and/or the padlocked gate?
[5] In short, the questions are answered as follows:
The easement allows the applicants to use the right of way to access their property at any point, on the northern or eastern border. The easement does not grant the applicants the right to park on the right of way; and,
The respondent substantially interfered with the applicants’ use of the right of way by installing the fence along the north border and the eastern border (although the fence that was installed on the eastern border has since been removed). The erection of the padlocked gate, while inconvenient, does not substantially interfere with the applicants’ use of the right of way.
Facts
[6] Both parties filed affidavits and were cross-examined on their affidavits. There is, however, little dispute on the salient facts.
Creation of the Easement
[7] The applicants’ cottage is a family cottage that was inherited by the applicant Wilson from her grandfather. The cottage initially passed to Wilson’s mother and aunt and subsequently passed to Wilson, her siblings, and her aunt’s children. In 2018, the applicants jointly purchased the entire ownership interest in the cottage and have been the sole registered owners since 2018.
[8] The right of way was necessitated in the 1930’s, when Wilson’s grandparents were required to relocate the cottage to accommodate the extension of Highway 35. Wilson’s grandfather and the then owner of the respondent’s property agreed that Wilson’s grandfather could build a driveway on the respondent’s property to access his cottage. That driveway became the existing right of way and was legally conveyed to Wilson’s grandfather on January 17, 1968. As part of this same transaction, Wilson’s grandfather also received a small, irregularly shaped piece of land located on the eastern border of the right of way. This strip is marked as “Secondly” on the map set out at paragraph 10 below.
[9] The legal description of the right of way is as follows:
TOGETHER WITH A RIGHT-OF-WAY at all times in common with all others entitled thereto, for both foot and vehicular traffic, over, along and upon a strip of land 20 feet in perpendicular width shown coloured yellow on the aforementioned white print, the eastern and northern limits of which are hereinbefore described.
[10] The right of way of way was highlighted in yellow on the survey attached to the conveyance. Produced below is an extract from Exhibit 1 which all parties agree conveniently shows the right of way. The applicants’ property is marked as “Firstly” and “Secondly” and is depicted in green on the colored copy of Exhibit 1.
[11] When Wilson’s grandfather conveyed the cottage to his children in 1971, the right of way was also conveyed and registered on title as part of the transfer/deed. As evidenced by the aforementioned survey, the right of way is a long and winding section of land measuring approximately 20 feet wide and 185 feet long that begins at Highway 35 and curves around the property providing access to the applicants’ cottage.
[12] The applicants’ family cottage is a three-season cottage. There are also two outbuildings on the property: a small shed and a bunkie. These outbuildings have been on the property for over 85 years. The cottage and the bunkie are located in close proximity to the northern end of the right of way and the property line. The shed is located to the east of the right of way, also in close proximity to the property line.
[13] The applicants used to routinely park their car and their guests’ cars on the right of way and then walk the remaining feet to their cottage.
[14] There are no residential buildings on the respondent’s property. The respondent bought the property from Mr. Booker in March 2018. Mr. Booker did not live on the vacant property. The respondent does not live on the property. However, the respondent stores all his tools for his business at his property in a trailer, and these are the most significant assets he has for his daily work.
[15] Prior to the respondent’s purchase of his property in March of 2018, there were no issues with the use of the right of way. However, since March of 2018, the following series of events have occurred:
June 29, 2018
[16] The respondent informed the applicants that they could not park on the right of way.
July 2018
[17] The applicants installed a parking pad on their property in July 2018. The parking area was accessed off the easterly portion of the right of way, just south of the northern end of the right of way. The respondent testified that it was his understanding that this was just a temporary parking pad. He also claimed that the temporary parking pad is unsafe, as it requires the applicants to reverse out and down the steep driveway, and one cannot back out of the temporary parking pad without trespassing onto the respondent’s property.
July 2018
ln July 2018, the respondent installed a padlocked gate to the entrance of the right of way off of Highway 35. The respondent gave the applicants a key to the lock.
October 2018
[18] ln October 2018, the applicants arranged for roof material to be delivered at their property. The applicant Symons asked the respondent via text to unlock the gate for the delivery. The respondent did not respond. The applicants arranged for the material to be delivered to a nearby location. The applicants needed a second delivery of roofing supplies and again asked the respondent via text if he could open the gate for the delivery. The respondent did not respond. The applicants had to again arrange for the materials to be delivered to a nearby site.
November 17, 2018
[19] The applicants attended the cottage on November 17, 2018, to close the cottage for the season. When they arrived, the gate was locked, the lock had been changed, and they did not have a key. The applicants were unable to access the right of way or their cottage. The applicants texted the respondent and waited one hour for the respondent to arrive and open the gate. The respondent explained that he had to change the lock because the old lock was frozen. He put a new lock on and forgot to give the applicants a key.
Spring to June 2019
[20] The respondent installed an eight-foot-high fence on the northern end of the right of way and partially down the easterly side of the right of way. This restricted the applicants’ access to the cottage. They were unable to traverse on foot from the right of way to their cottage at the most convenient point. They were able to access their parking pad but had to walk through the forest to access the cottage.
[21] The respondent stated that he felt that he had no privacy while he was on his property, so he decided to build a fence at the top of the driveway near the property line. He stated that the fence was built in the spring of 2019.
[22] The respondent stated that the fence was then altered to add a gate, with a hinge, the same width as the right of way, that would allow the applicants to walk through to their property. The gate swings opens on to the applicants’ property, but it is blocked by a tree on the applicants’ property.
September 20, 2019
[23] The respondent expanded the fencing along the easterly portion of the right of way and completely blocked the applicants’ access to their new parking pad. The respondent used some of the wood panels from the northern part of the fence to make the extension. There were also “No Parking” and “No Trespassing” signs along the driveway entrance and along the right of way. Due to the fence, it was impossible for the applicants to drive to and park on their property. The installation of the fence along the northern and easterly portion of the right of way precluded the applicants from accessing their cottage by vehicle. They could not park on Highway 35 and thus had no practical means to access their cottage. The extension was created, in part, by using planks from the northern part of the fence leaving gaps in that fence.
[24] This extension was ordered removed by Di Luca J. in an interim without prejudice order.
[25] The respondent has stated in his affidavit that he plans to build a fence along the entire property line to “protect my privacy and further intrusions from the Applicants.”
July 10, 2020
[26] Ms. Wilson went to the property and the lock had again been changed on the gate. Mr. Symons attempted to contact the respondent with no success. A family friend cut the chain and Ms. Wilson accessed the property.
[27] In reference to this incident, the respondent explained that he had security concerns, so he changed the lock on the gate because he was worried about his tools and he didn’t know who was damaging and stealing his property. Shortly thereafter, Mr. McQuade’s father passed away, and Mr. McQuade was driving back and forth and staying in the Niagara region for long lengths of time to sort out his estate. Mr. McQuade forgot to give a new key to the applicants at this time.
Law and Analysis
Issue 1: What is the scope of the easement granted to the applicants over the deeded right of way?
[28] A right of way created by express grant is an easement that allows the grantee to cross the grantor’s land for the purpose related to the better enjoyment of the grantee’s land. The nature and extent of a right of way depends on the proper construction of the language of the instrument creating it. The first step in determining the rights that form part of a right of way is to interpret the grant according to the intention of the parties based on the words themselves; Markowsky v. Verhey, 2020 ONCA 472, at paras. 26-28. Where the words in the grant of a right of way are unclear, the historic use and circumstances surrounding the use of the property subject to the easement will help to inform the nature and extent of the rights granted: Markowski v. Verhey, at para. 32; Square-Boy Limited v. The City of Toronto, 2017 ONSC 7178, at para. 33.
[29] The respondent submits that the applicants are required to travel the length of the right of way and can only exit the right of way along the northern boundary border. Critically, the respondent submits that the applicants are not allowed to exit the right of way along the eastern boundary border, even though the applicants own the sliver of land to the east of that right of way.
[30] The respondent submitted in his factum:
What is in dispute is whether the Applicants are required, pursuant to the scope of the right-of-way, to drive the length of the right-of-way and exit at the northern most boundary bordering the Applicants’ Property rather than exit at any point they wish along the eastern border of the right-of-way.
The survey attached to the Conveyance contains the highlighted yellow portion, indicating the portion that must be travelled. That yellow portion identified in the words of the grant, and included in the survey attached to the Conveyance, is indicative of the requirement to travel the length of the easement itself. If it were not, there would be no need to highlight the right-of-way or describe it as being highlighted in yellow.
[31] The respondent submitted in oral argument that his position is the same regardless of whether the applicants are driving or walking along the right of way.
[32] If the respondent is correct, then the applicants would not be allowed to exit the right of way along its eastern border and park on their parking pad and the respondent would be entitled to build a fence along that eastern border.
[33] For the reasons that follow, I do not accept the respondent’s position on this issue.
[34] The right of way granted in the present case is silent with respect to access and terminus points. As noted in Huron Woods Community Association et. al. v. Beach O’Pines Association, (10 April 2007), South West Region 49123 (ONSC), at para. 64:
When considering the language contained in the instruments, it is significant to note firstly that the right-of-way provided in the grants are neither restricted nor limited with respect to the location of the right-of-way on property owned by Beach O’Pines or the extent of the right-of-way through Beach O’Pines. In my view, the right-of-way granted in these deeds is therefore restricted only by what is reasonable in all of the circumstances. [Emphasis added.]
[35] This has been adopted in Duncan v. Beach O’Pines, 2011 ONSC 2349, at para. 48 and Vander Hoeven v. King, 2016 ONSC 4241, at para. 24.
[36] In Laurie v. Winch, 1952 CanLII 10 (SCC), [1953] S.C.R. 49, [1952] 4 D.L.R. 449, at pg. 56, the Supreme Court of Canada stated that the circumstances existing at the time of the grant may be looked at to determine the location and termini of the right of way.
[37] In my view, the language of the right of way and the circumstances that existed at the time the right of way was created clearly shows that the applicants have the right to use the right of way for ingress and egress at either the northern or eastern border. Any other interpretation would, in my view, be absurd.
[38] The wording of the right of way in this case is broad and permits foot and vehicular traffic over, along, and upon the 20-foot wide strip of land. The applicants own the land to the north and to the east. The respondent’s argument that the applicants, if they were on foot, could only get off the road at the northern border and then would have to turn and walk east and then south to access the eastern portion of land that they own, instead of simply stepping off the right of way along the eastern border is non-sensical. The purpose of the right of way was for the applicants to access their land.
[39] The right of way does not set out one type of use by car or one type of use by foot; it simply states that it is for “both foot and vehicular traffic.” I agree with the respondent that at the time the right of way was created, the predominant anticipated use would have been by driving to the northern boundary border onto the applicants’ property towards their cottage. However, at the time of the conveyance of the right of way, the extra slice of land to the east was also conveyed. It is unreasonable to assume that the parties to the original transaction intended access in such a circuitous and unreasonable manner.
[40] The highlighting of the roadway in yellow and marking the land to the east in red was, in my view, simply an effective way to ensure that the right of way and the property was clearly marked and identified, especially given its irregular shape. No further inferences can be drawn.
Is there an ancillary right to park on the right of way[^1]?
[41] A right of way can also create ancillary rights where they are reasonably necessary to enjoy the right of way. As stated by the Court of Appeal in Markowsky v. Verhey, at paras. 29 and 30.
The grant of an express easement may also include ancillary rights provided they are reasonably necessary to use or enjoy the right-of-way. However, to imply a right ancillary to a right-of-way, “the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable”: Fallowfield, at para. 11.
In Boone v. Brindley (2003), 2003 CanLII 20920 (ON CA), 179 O.A.C. 50 (C.A.), at para. 2, this court held that to determine what is reasonably necessary to the enjoyment of a right-of-way, one should also look at: the language of the conveyance creating the easement, the purpose and circumstances surrounding the creation of the right of way, the history of its development and the circumstances of its use.
[42] There is no question that the applicants historically used the right of way as a parking spot. However, “the conduct of the parties in the purported exercise of the rights granted under the easement is not helpful as a guide to interpreting the document: they may misapprehend their legal rights”: Square-Boy Limited v. The City of Toronto, at para. 48. Nothing in the language of the express easement refers to or implies an ability to park. I have no doubt that it would be convenient to park on the right of way, but it is not necessary for the use or enjoyment of the easement. The applicants have created and currently use a parking pad on the eastern portion of their property. The applicants do not have an ancillary right to park on the right of way.
Issue 2: Did the respondent substantially interfere with the applicants’ use and enjoyment of the right of way by installing the fence and/or the padlocked gate?
[43] The courts have applied a “substantial interference” test when assessing whether persons in the same position as the applicants (known as dominant tenements) rights’ to an easement have been improperly diminished. As stated by the Court of Appeal in Weidelich v. de Konig, 2014 ONCA 736, at para. 10, citing Gale on Easements, 19th edition at para, 13 – 06:
As regards the disturbance of private rights of way, it has been laid down that whereas in a public highway any obstruction is a wrong if appreciable, in the case of a private right of way the obstruction is not actionable unless it is substantial. Again, it has been said that for the obstruction of a private way the dominant owner cannot complain unless he can prove injury; unlike the case of trespass, which gives a right of action though no damage be proved. In Hutton v Hamboro, where the obstruction of a private way was alleged, Cockburn C.J. laid down that the question was whether practically and substantially the right of way could be exercised as conveniently as before.
[44] Applying this threshold test reflects the nature of the dominant owner’s rights. He or she does not own the right of way or the land upon which the right of way runs, but only enjoys the reasonable use of that property for its granted purpose. The dominant owner may only sustain a claim predicated on substantial interference with that reasonable use. The distinction is between the rights of ownership and the right of reasonable use for an identified purpose: Weidelich v. de Konig, at para. 12; Vander Hoeven v. King, at para. 12.
[45] Furthermore, as stated by the Court of Appeal in Weidelich v. de Koning, at para. 15:
The significance of an encroachment depends on its impact on reasonable use. The dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose. I would adopt as correct the inquiry captured in the following passage in B & Q Plc., at 257:
In short, the test, . . . is one of convenience and not necessity or reasonable necessity, Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?
[46] There is no mechanical way to determine what constitutes an unreasonable demand upon an easement or a “substantial interference” with the rights conferred by a granted easement. Each case depends upon both a proper construction of the instrument creating the easement and the factual circumstances: Przewieda v. Caughlin, 2015 ONSC 3770, [2015] OJ No 3776; Laurie v. Winch, , at p.455; MacKenzie v. Matthews, [1999] O.J. No. 4602 (C.A.), 1999 CanLII 19931, at para. 12; and Wielelich v. De Koning, at para. 14.
Applying these principles to the facts
[47] The respondent altered the applicants’ ability to access their cottage in three ways:
He placed a locked metal gate at the beginning of the right of way;
He placed a wood fence at the northern boundary of the right of way, a very short distance from the applicants’ cottage. The fence now has an unlocked gate that the applicants can walk through. The gate opens unto the applicants’ property but is blocked by the applicants’ tree; and
He placed a fence along the eastern boundary of the right of way. This blocked access to the applicants’ parking pad. This fence has been removed.
[48] The respondent submits that with respect to the wood fence, he is entitled as a property owner to build it and he needs the fence for privacy. He submits that the applicants can simply move a tree and building on their property, build a new parking pad, and enter their property from the northern boundary border. Counsel for the respondent stated in his factum:
Mr. Symons agreed on cross examination that if someone wanted to alter the Applicants’ Property to drive through the right-of-way onto the Applicants’ Property, one could do so. Mr. Symons just does not want to do that. The Applicants have a right of-way to access their cottage but unfortunately for them, they do not have a right to the most convenient way to access their cottage.
[49] I agree that the applicants do not have a right to the most convenient access to their cottage. The question remains: can the right of way, with the installation of the metal gate and the wood fence be exercised substantially and practically as conveniently as before? Simply stated, the answer is that it can be exercised substantially and practically as conveniently as before with the metal gate - but not the wooden fence.
The gate
[50] Both parties have submitted cases where the courts have found that the installation of a gate was a substantial interference and was not. For example, in Lewko v. Budd, 2019 ONSC 3594, [2019] OJ No 3031, Conlan J. found that a gate was not a substantial interference. In Przewieda v. Caughlin,, the court found it was a substantial interference. In MacKenzie v. Matthews, the Court of Appeal found that the gate was not a substantial interference but that the lock for the gate was. Each case rests on their facts. In my view the installation of the gate with the lock does not substantially interfere with the applicants’ use of the right of way. I agree with the following comments by Conlan J. in Lewko v. Budd, at paras. 23-27:
I accept the evidence adduced on behalf of the Lewkos that the gate, with its lock and metal pin system, is not as friendly for pedestrian traffic as a simple, unobstructed laneway. I accept, even further, that it is somewhat of a nuisance (my word). One has to remember to bring the key. One has to get down on the ground and reach underneath the gate to lift up the metal pins. One has to lock the gate after passing through. Undoubtedly, it would be easier and quicker to just meander through, like the situation had been before the gate was erected.
Notice, however, the careful words of the test adopted by Justice Doherty on behalf of the Court in Weidelich, supra. It is not whether the right of way may be exercised as conveniently as before. That would be absurd. That would mean that the owner, for example, could not place a 2x4 piece of wood on the ground running the width of the laneway to dissuade unauthorized vehicular traffic because that would force a pedestrian to step over the piece of wood when traversing the right of way, something that was not required previously.
Rather, the test is whether the right of way may be substantially and practically exercised as conveniently as before. This, quite smartly, allows for the exercise of some discretion. It builds into the analysis some common sense. It recognizes that convenience is a relative term. And it gives weight to the well-accepted legal principle that the owner has the absolute right to protect her property against crime and trespass.
This gate has in no way prevented the Lewkos from accessing the beach via the laneway. Further, provided that they open the gates, even accounting for the fairly slim pole or post that separates the two gates and that is permanently affixed to the ground, the Lewkos can carry to and from the beach nearly whatever they were able to carry before (the dimensions of the opening between the garage and the brick wall are unchanged). Provided that they open the gates, the Lewkos can take as many invitees with them as they were able to bring before. They can pass through as often and at whatever times of day as they had in the past.
Really, very little has changed; they now need to remember to bring a key, and they need to spend what must be thirty seconds or less each time to unlock, open, close and then re-lock the gate. [Emphasis in original.]
[51] The applicants can easily access their property by unlocking and opening the gate. As there have been two occasions when the respondent changed the lock without providing the applicants a key, I have considered that it may be just to order the lock removed permanently at this time. However, in order to properly balance the applicants’ right to access the property as against the respondent’s right to secure his property, I have determined that a fair resolution will allow the lock to remain at this time with the proviso that if the respondent changes the lock without first providing a key to the applicants, the applicants shall be entitled to remove the lock without the consent of the respondent and the lock shall thereafter not be replaced.
The fence
[52] I find that the erection of the fence on the norther boundary border, a short distance in front of the applicants’ house, and the erection of the now removed fence along the eastern border substantially interfered and continues to interfere with the applicants’ use of the right of way for the following reasons:
Looking at the historical use of the right of way, the applicants had the ability to simply drive on the right of way to their cottage and access their cottage for over 50 years;
The respondent erected a fence along the eastern boundary, blocking the applicants’ access to their parking pad, making it impossible for the applicants to park and to attend at their cottage;
Any future fencing along the eastern boundary would block the applicants’ access to their property;
The respondent has, in essence, placed a fence in front of the applicants’ cottage on the northern boundary. The applicants can access their property but in a much more cumbersome manner than before. For over 50 years the applicants drove on the right of way, parked, and enjoyed their cottage. They have now moved their parking pad at the respondent’s request. The placement of the fence on the northern border requires unnecessary gymnastics to enjoy what was easily enjoyed before; and,
The respondent submission that the applicants can simply move a tree and a building on their property and build a new parking pad is not reasonable. The applicants do not have to reconfigure their property to exercise a right that was given to them over 50 years ago. The buildings have been there for over 85 years. The respondent’s submission illustrates, in my view, just how much his current fence and his proposed fencing substantially interfere and would substantially interfere with the applicants’ use of the right of way.
[53] The respondent has stated that he needs the fencing for privacy. I reject the respondent’s evidence in this regard. I find that the building of the fence, especially the extension of the fence along the eastern border, was done by the respondent in retaliation for perceived slights and injury from the applicants.
[54] The respondent told the applicants to not park on the right of way and the applicants complied and built a new parking pad. Shortly thereafter, the respondent blocked access to the parking pad with his fencing. I do not accept the respondent’s assertions that the parking pad was unsafe or required the applicants to trespass onto his property while reversing. The right of way is 20 feet wide. The respondent’s behavior in building the fence was outrageous and his explanations for the building of the fence(s) are disingenuous and completely rejected by me.
Conclusion
[55] The applicants’ right of way allows them to exit that right of way onto their property at any point, whether on the eastern or northern border. The right of way does not include a right for the applicants to park their cars on the right of way.
[56] The fence on the northern boundary of the right of way, bordering on the applicants’ property substantially interferes with the applicants’ use of the right of way and must be removed at the respondents’ own costs within 30 days of the release of this judgment. The same applies for any fencing on the eastern boundary border.
[57] Subject to any offer to settle that may affect costs, on balance the applicants were the more successful party and are entitled to their costs. If the parties cannot come to an agreement with respect to costs the applicants can send their bill of costs and costs submissions (totalling not more than three pages) within 15 days of the release of this decision. The respondents can send their own submissions (totalling not more than three pages) within 20 days of the release of this decision.
Justice H. Leibovich
Released: March 2, 2022
COURT FILE NO.: CV-21-432
DATE: 202202302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mary Wilson and James Symons
Applicants
– and –
Shane London McQuade
Respondent
REASONS FOR Decision
Justice H. Leibovich
Released: March 2, 2022
[^1]: The respondent has addressed this issue on its merits. He does make a preliminary complaint that this issue is not properly before me as it was not raised in the Notice of Application. I disagree. Although more precise language could have been used, it is evident that the applicants were asserting that they had a right to park and that the respondent interfered with that right. The respondent was not caught unaware by this claim.