Court File and Parties

Court File No.: CV-21-866-0000 Date: 2024/05/16 Superior Court of Justice – Ontario

Re: Jeannette McKinlay as Litigation Administrator for the Estate of John McKinlay, Plaintiff And: The Municipality of Chatham-Kent and His Majesty the King in Right of the Province of Ontario as Represented by the Minister of Transportation, Defendants

Before: Justice M.A. Cook

Counsel: R. G. Colautti, Counsel for the Plaintiff J. Sinopoli, Counsel for the Defendant, Municipality of Chatham-Kent

Heard: September 12, 2023

Endorsement

[1] The plaintiff Estate of John McKinley (the “Estate”) seeks summary judgment against the defendant Municipality of Chatham-Kent (the “Municipality”). The action was previously discontinued against His Majesty the King in Right of the Province of Ontario.

[2] At the outset of the hearing of the motion, the Estate sought leave to amened its statement of claim. The Municipality did not oppose the request. An order was made granting leave to amend accordingly. The motion for summary judgment then proceeded on the basis that summary judgment was sought in relation to the amended statement of claim.

[3] The respondent Municipality asks that the motion for summary judgment be dismissed, but it does not seek an order dismissing the action.

[4] At the conclusion of submissions, I reserved my decision.

[5] On January 3, 2024, I sought additional written submissions from the parties on three questions, which I received from the Estate on January 25, 2024 and from the defendant Municipality of Chatham-Kent on February 7, 2024.

Background

[6] The facts on this motion for summary judgment are largely undisputed.

[7] The Estate of John McKinlay is the owner of two agricultural properties located within the Municipality of Chatham-Kent (the “Property”). The Property is adjacent to Highway 401, a controlled access highway under the jurisdiction of the Province of Ontario (the “Province”).

[8] On October 22, 1959, the Province and John McKinlay’s father, Robert McKinlay, entered into an agreement by which Robert McKinlay granted the Province an easement over a 30-foot strip of land at the northern edge of the Property, adjacent to the highway easement, in order to accommodate the installation of drainage tile (the “Original Easement”). The Drainage Easement agreement provided:

At the rate of fifty dollars

Nominal sum for an easement approx. 30’ in width paralleling the new property limits of controlled access highway no. 401 for the installation of a header tile to be laid within the limits of the above easement and on the vendor’s property;

It is agreed that the vendor shall have a claim for loss of crops if any during the installation of the above tiles;

It is understood and agreed that the easement will be registered and turned over to the Township of Tilbury East.

No survey required.

[9] The Original Easement, and the header tile to be constructed within it, were necessary to allow proper drainage of the newly constructed Highway 401. The Original Easement was registered by on February 8, 1960 by way of a plan bearing registration number D704.

[10] The head drainage tile (the “Drain”) was installed within the easement during the summer of 1960.

[11] On November 30, 1960, the Original Easement was transferred from the Province to the Township of Tilbury East (“Transferred Easement”). By the terms of the Transferred Easement, the Province granted to the Township of Tilbury East the “right at any time to enter upon the lands hereinafter described for the purpose of laying down and constructing header tile drains in, under and upon the said lands and of keeping and maintaining them at all times in good condition and repair; and for every such purpose the grantee shall have access to the lands at all times by its servants, employees and workmen.” The Transferred Easement was registered as Instrument No, 117130 and is referenced in a survey of lands as a “drainage easement” in favour of the Municipality of East Tilbury.

[12] In or about 1997, the Township of Tilbury East amalgamated and is now part of the Municipality.

[13] In February 1985, John McKinlay acquired the Property.

[14] Over the years, the Drain fell into disrepair. In 2015, the Drain became clogged and inoperable, causing the Property to retain water. John McKinlay suffered crop loss as a result of water incursion into the Property.

[15] In March 2015, Mr. McKinlay contacted the defendants to alert them to the state of disrepair of the Drain and to the damage being caused to the Property as a result.

[16] By email correspondence dated March 25, 2015, the Province advised Mr. McKinlay that the easement was transferred to the Township of Tilbury East, and that, as a result of amalgamation, responsibility for the Drain lay with the Municipality.

[17] Mr. McKinlay then contacted the Municipality to provide them notice of the issues with the Drain.

[18] By letter dated December 12, 2017, the Municipality took the position that Mr. McKinlay, not the Municipality, was responsible for repairing the Drain.

[19] To protect his Property from flooding, Mr. McKinlay undertook extensive repairs to the Drain in 2017-2018 at a cost of $60,036.10.

[20] After completing the repair work, Mr. McKinlay resumed his efforts to have the cost of repair and mitigation work paid by the Municipality.

[21] In or about July 2019, Mr. McKinlay requested a meeting with municipal officials to discuss the Drain and his resulting crop losses, but that meeting did not occur.

[22] Later, on August 23, 2019, Mr. McKinlay met with representatives of the Municipality who advised Mr. McKinlay that the easement granted the Municipality the right but not the obligation to maintain the Drain in good repair.

[23] On August 27, 2019, Mr. McKinlay wrote a detailed letter to the mayor of the Municipality setting out the history of how the Original Easement and Drainage Easement came about, and affirming his position that the Municipality was responsible for maintaining the Drain in good repair.

[24] When the Municipality did not respond to his letter, Mr. McKinlay invoiced it the sum of $19,456.90 for the repair and maintenance work he completed on the Drain.

[25] By letter dated September 13, 2019, the Municipality denied any responsibility for the costs to repair the Drain.

[26] Mr. McKinlay commenced this action against the Municipality and the Province by statement of claim issued December 23, 2021. As against the Municipality, Mr. McKinlay claims: a. a declaration that the Municipality is responsible for the continuing maintenance of the Drain; b. reimbursement of the costs to repair and replace the Drain and consequential damages for lost crops in the aggregate amount of $37,000.00; and c. costs.

[27] Mr. McKinlay died on July 22, 2023. The action was continued by Mr. McKinlay’s litigation administrator, Jeannette McKinley.

Issues

[28] The issues on this motion are as follows: a. What is the applicable test for summary judgment? b. What is the nature of the easement? c. Does the Municipality or Province have positive obligations to repair the Drain? d. Is the Municipality liable to the plaintiff for the cost of the Drain repair or the crop loss? e. If so, in what amount?

A. Summary Judgment under r. 20.04(2)

[29] In any motion for summary judgment, rule 20.04(2) is always the starting point. It states:

20.04(2) Where the court is satisfied that there is no genuine issue for trial with respect to a claim or a defence, the court shall grant summary judgment accordingly.

[30] The decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 66, sets out the correct analytical approach to a summary judgment motion: a. First, the motion judge determines if there was a genuine issue requiring a trial based only on the evidence before her, without using the enhanced fact-finding powers under rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. b. Second, if there appears to be a genuine issue requiring a trial, the motion judge should determine if the need for a trial can be avoided by using the enhanced powers under rule 20.04(2.1), allowing her to weigh evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, and under rule 20.04(2.2) to order that oral evidence be presented by one or more parties.

[31] I will first consider whether there is a genuine issue requiring a trial. If so, I will consider whether the need for a trial can be avoided by using the enhanced powers afforded me under r. 20.04(2.1) and 20.04(2.2).

B. What is the Nature of the Easement?

[32] The parties agree that the Original Easement and Transferred Easement are valid easements in law.

[33] In Fallowfield v. Bourgault, (2003), 68 O.R. (3d) 417 (Ont. C.A.), at para. 10, the Court of Appeal described the appropriate approach to interpreting deeded rights of way:

Where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created. This principle is set out in Halsbury's Laws of England, 4th ed., vol. 14 (London: Butterworths, 1980), at p. 26, para. 54:

The nature and extent of an easement created by express grant primarily depend upon the wording of the instrument. In construing a grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances. [Footnotes omitted]

[34] In Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116 (Ont. C.A.), the Court of Appeal confirmed the four the characteristics of an easement:

[52] Four characteristics are essential to the grant of an easement:

1. there must be a dominant and a servient tenement;
2. the easement must accommodate the dominant tenement;
3. the owners of the dominant and servient tenements must be different persons; and
4. a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.

[35] The parties agree that the Original Easement and Transferred Easement are valid but disagree on their correct interpretation.

[36] I agree that the Original Easement, and subsequent Transferred Easement are easements because: a. the new Highway 401was the dominant tenement and the Property was the servient tenement; b. the Original Easement and the Transferred Easement accommodated the drainage of Highway 401 as the dominant tenement; c. the owners of the dominant and servient tenements were different persons; and d. the right to build and maintain a tile drain on a 30’ strip of the Property was a right capable of forming the subject matter of a grant.

Duty to Maintain and Repair

[37] The Estate urges the court that the Original Easement and Transferred Easement created a positive duty on the part of the Municipality to maintain the Drain in good repair and to compensate the Estate for the costs incurred by Mr. McKinlay in doing so.

[38] I cannot agree with this submission.

[39] In Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, the Supreme Court of Canada clarified and restated the basic principles to be followed in the interpretation of contracts. The overriding concern is to determine "the intent of the parties and the scope of their understanding". To do this, the interpreting court must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances reasonably known to the parties at the time of formation of the contract: Sattva at para. 47.

[40] The purpose of examining evidence of the circumstances surrounding the making of the contract is to deepen the court's understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract. While the surrounding circumstances are relied upon in the interpretive process, the court cannot use them to deviate from the plain meaning of the words chosen by the parties or to permit the court to effectively create a new agreement: Sattva at para. 57.

[41] The interpretive approach prescribed in Sattva is consistent with long-standing easement interpretation principles, which require consideration of the circumstances that existed when the easement was created: Laurie v. Winch, [1953] 1 S.C.R. 49, at p. 56.

[42] The circumstances that existed when the easement was created were that the Province was taking easements from lands abutting the new Highway 401 corridor in order to provide drainage for the highway. The Original Easement reflects those circumstances, stating that the easement was granted “for the installation of a header tile to be laid within the above easement and on the vendor’s property”. The Original Easement is silent with respect to repair.

[43] The first mention of repair is found in the Transferred Easement granted to the Municipality. The Transferred Easement granted the Municipality “the right at any time, to enter upon the lands hereinafter described, for the purpose of laying down and constructing header tile drains in, under and upon the said lands and of keeping and maintaining them at all times in good condition and repair”.

[44] The nature of the rights and duties between the owner of the dominant tenement and the servient tenement is explained in the English case of Jones v. Pritchard, [1908] 1 Ch. 630. I adopt the statement of the law made by Parker J. in that case:

Once again, the grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary for its exercise or enjoyment. Thus, the grantee of an easement for a watercourse through his neighbour's land may, when reasonably necessary, enter his neighbour's land for the purpose of repairing, and may repair, such watercourse. On this principle, each party in the present case may do such acts on the property of the other as are reasonably necessary for the continued enjoyment of the easement; for example, each party would be entitled to repair the other's half of the wall in question so far as was reasonably necessary for the enjoyment of any easement impliedly granted or reserved: Pomfret v Ricroft (3). Lastly, my attention was called to Taylor v Whitehead (4) in which LORD MANSFIELD said that, by the common law of England, he that hath the use of a thing ought to repair it. Though, in my opinion, LORD MANSFIELD was in that case referring only to the fact above mentioned, that, by the common law, the owner of the servient tenement is not under any liability for not repairing the subject of the easement, yet there is undoubtedly a class of cases in which the nature of the easement is such that the owner of the dominant tenement not only has the right to repair the subject of the easement, but may be liable to the owner of the servient tenement for damages due to any want of repair. Thus, if the easement be to take water in pipes across another man's land and pipes are laid by the owner of the dominant tenement and fall into disrepair, so that water escapes on to the servient tenement, the owner of the dominant tenement will be liable for damage done by such water. Strictly speaking, I do not think that, even in this case, the dominant owner call be said to be under any duty to repair.

To determine whether this principle has any application to the present case, I have to consider the precise nature of the easement granted in respect of the plaintiff's moiety of the flues connected with the defendant's fireplace. I can readily conceive an easement by virtue of which a dominant owner might have the right to carry his smoke away by a pipe overhanging his neighbour's land. In this case, if the pipe at any point developed a hole so that smoke escaped to the injury of the servient owner, it might well be that the dominant owner might be liable for nuisance. He would not be really exercising his easement, for the pipe could no longer be an efficient pipe for the purpose of carrying away the smoke. [Emphasis added]

[45] The case of Esco v. Fort Henry Hotel Co. Ltd. et al, [1962] O.R. 1057 is also instructive. In that case, the plaintiffs were tenants of a retail store adjoining the premises of the defendant hotel company. The plaintiff’s lands were subject to an easement in favour of the defendant for the installation and maintenance of a drain. The servient tenement was required to allow the dominant tenement to enter upon the servient lands to clean, maintain and repair the drain. The drain fell into disrepair and caused damage to the plaintiffs’ lands. The defendants were liable to the plaintiffs for damages caused by the escape of water and sewage from the drain, but that liability was grounded in nuisance and the rule in Rylands v Fletcher, not as a consequence of a duty to repair found in the grant of easement itself. In his reasons, Chief Justice McRuer cited with approval a passage from the UK case of Humphries v Cousins, (1877), L.R. c C.P. 239 in which Denman J wrote:

In the present case, the plaintiff was bound to receive sewage from the defendant’s land through the old drain but not otherwise; he was not bound to receive it through the surrounding earth or the party-wall, through which in fact it came. Further, as the plaintiff was the occupier of the servient tenement, he was clearly not bound to repair the drain on any of the dominant tenements. The plaintiff’s rights, therefore, have been infringed and the loss he has sustained cannot be said to be damnum absque injuria.

[46] In the absence of express language otherwise, the owner of the dominant tenement does not, in a strict legal sense, have a duty to keep the works upon the easement in good repair. Rather, it enjoys the right to enter upon the easement to maintain and repair as rights ancillary to the easement. Given the absence of any such language, I find that neither the Original Easement nor the Transferred Easement create a positive obligation on the part of the Municipality to keep the Drain in good repair.

[47] In the absence of any duty to repair, the Estate’s claim for declaratory relief against the Municipality does not require a trial.

[48] The absence of a duty to repair does not mean that the Estate is without a remedy. The case law establishes that, where a dominant tenement commits a nuisance or acts negligently in a manner which damages a servient tenement, the dominant tenement is liable for the cost of repair without affecting the existence or continuation of the easement: Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality), 2010 ONSC 1123 (SCJ) at para. 78.

Disposition

[49] Notwithstanding my determination that the Estate’s claim for declaratory relief cannot succeed, I decline to grant summary judgment against the Estate for two reasons: a. First, the Municipality considered making a cross-motion for summary judgment and expressly decided against it. It only seeks an order dismissing the motion. I did not give the Estate notice of the potential for boomerang summary judgment against it. It would be unfair to grant summary judgment against the Estate in the circumstances: Graham v. Toronto (City), 2022 ONCA 149 at paras. 9-10; and b. Second, the Estate’s amended statement of claim pleads material facts that appear capable of supporting the remaining claim for damages in nuisance. The alternative cause of action of nuisance was not canvassed with the parties within this motion for summary judgment, and neither party has had a reasonable opportunity to consider whether the pleading sustains an action in nuisance or not. Fairness requires that I provide the parties an opportunity to consider their respective positions in light of these reasons.

[50] In summary, I conclude that there is a potential triable issue with respect to nuisance, and find that summary judgment is not the proportionate, most expeditious and least expensive means by which to achieve a just result in this action: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 47, 49.

[51] The motion for summary judgment is dismissed.

Costs

[52] If the parties are not able to resolve the issue of costs, the Municipality may make written costs submissions by June 5, 2024. The plaintiff may file responding submissions by June 12, 2024. Submissions shall be limited to three pages plus a costs outline, copies of any offers, and authorities. There shall be no reply cost submissions without leave of the court.

Justice M.A. Cook Date: May 16, 2024