Reasons for Judgment

Court File No.: CV-18-127
Date: 2025/01/28
Ontario Superior Court of Justice
Between:
Kevin Charles Powell and Sherry Lynn Powell, Plaintiffs
– and –
RD Pettinger and Kara Nadrofsky, Defendants

Appearances:
P. Karsten, for the Plaintiffs
D. Sinko, for the Defendants

Heard: November 21, 2024

Reasons for Judgment
A.D. Hilliard

Overview

[1] The Defendants have brought a motion to strike portions of the Plaintiffs’ amended claim pursuant to Rule 21 or, in the alternative, move under Rule 20 for summary judgment dismissing the Plaintiffs’ claim for an easement for drainage.

[2] The Plaintiffs’ position on the motion is that their pleadings do disclose a reasonable cause of action and the claims in relation to an easement across the Defendants’ property should not be summarily dismissed because there are genuine issues for trial.

[3] For the following reasons, the Defendants’ request for summary judgment is granted.

Undisputed Facts

[4] The Plaintiffs are husband and wife and jointly own the property located at 17 Gilbert Road, Simcoe, Ontario (the Powell Property).

[5] The Defendants are intimate partners and jointly own the property located at 27 Gilbert Road, Simcoe (the Pettinger Property).

[6] The Powell Property and the Pettinger Property were originally one parcel (the Original Property) owned by the parents of Kevin Powell and Kara Nadrofsky (the Powell Parents). The Original Property was acquired by the Powell Parents on or about December 4, 1975. It was a rural property with a farmhouse located on the southerly portion.

[7] In 1993, a second house was relocated to the north-westerly portion of the Original Property (the Powell House). During the relocation, a drain was installed from the weeping tile around the foundation to a drainage outlet. That outlet was located on what is now the southern portion of the Powell Property directed at the northern portion of the Pettinger Property on the boundary between the two.

[8] The Original Property was severed into two parcels on or about March 2001. The parcel on which the Powell House is located wastransferred to the Plaintiffs on March 2, 2001. The Powell Parents retained the other parcel. No easement for drainage was registered on title to either parcel. There was no written grant or any other document referencing or granting an easement of drainage for the benefit of the Powell Property over what became the Pettinger Property.

[9] On or about October 27, 2017, the Powell Parents transferred the parcel they were residing on to the Defendants.

[10] In November 2022, municipal drainage was installed in the approximate area where the Plaintiffs are claiming an easement. Both parties have been assessed costs in excess of $20,000 respectively for the installation of that drainage system.

Analysis

Rule 21 – Motion to Strike

[11] A party may move pursuant to Rule 21 for an order striking a pleading based on a failure to disclose a reasonable cause of action or defence.

[12] The test on a motion to strike was confirmed by the Supreme Court of Canada most recently in R. v. Imperial Tobacco Canada Ltd.:
“[a] claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action.” The Court went on to indicate that a claim should not be permitted to proceed to trial if there is no reasonable prospect of success.

[13] The power to strike out claims, “unclutters the proceedings, weeding out the hopeless claims.” However, motions to strike must be approached generously, erring on the side of allowing novel but arguable claims to proceed.

[14] The Amended Statement of Claim discloses the following causes of action that are at issue:

1. an implied grant of easement of drainage;
2. an easement based on common intention;
3. an easement of necessity;
4. an implied easement of accommodation; and
5. a prescriptive easement.

[15] The Plaintiffs have now abandoned their claim for a prescriptive easement.

[16] For the Defendants to succeed under Rule 21, they must demonstrate that the claims for an easement have no reasonable prospect for success.

[17] All of the claims made for an easement of water are remedies that are available at law. It is not the case that a Court could not possibly grant an easement for water. A motion to strike would be appropriate if the Court could not grant the Plaintiffs an easement for water. However, that is not the case here.

[18] There is no argument in this case that an easement for water could not be granted by the Court. The Defendants’ argument rather is that the Plaintiffs have not sufficiently set out the details of the easement claimed, thereby not meeting the four legal requirements.

[19] The argument made by the Defendants refers to and relies upon the facts of this case and the deficiencies in the Plaintiffs’ pleadings. The purpose of Rule 21 is not to strike pleadings that are insufficient, but rather to allow the Court to ensure that judicial resources are not wasted on claims that cannot be made out or have no basis in law.

[20] The question of whether or not the Plaintiffs are able to meet the four legal requirements for an easement to be found is a matter properly dealt with under Rule 20 – whether or not there is a genuine issue for trial. A determination of whether the Plaintiffs have demonstrated that all four requirements of an easement are met necessarily involves an assessment of the evidence and getting into the weeds of the case. That is beyond the scope of what is contemplated on a Rule 21 motion.

[21] Consequently, I am not satisfied that the claim for an easement fails to disclose a reasonable cause of action.

Rule 20 – Motion for Summary Judgment

[22] The test on motions for summary judgment was set out by the Supreme Court of Canada in Hryniak v. Mauldin:

49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50 These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

51 Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.

[23] In this case, I must also consider whether partial summary judgment is appropriate, because granting the Defendants’ motion will not end the litigation.

[24] The Ontario Court of Appeal reviewed the caselaw and considerations in a partial summary judgment matter in the case of Butera v. Chown, Cairns LLP:

27 Since Hryniak, this court has considered partial summary judgment in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922. Baywood was decided in the context of a motion for summary judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.

28 In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable in the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.

29 The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.

[25] The Court also indicated that partial summary judgment is rare and must be reserved for “an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.”

[26] I am satisfied that the claim for an easement of water can be readily bifurcated from the other claims in the action. The issue of whether or not an easement exists can be determined without any consideration of the facts in relation to the tort claims. It is a distinct issue that will not need to be re-visited when determining the other claims, such as assault and intentional infliction of mental suffering.

[27] Furthermore, there is no risk for inconsistent findings of fact. The determination of whether there is a genuine issue for trial on the claim for an easement turns on the facts as of the date of severance of the Original Property. The tort claims made by the Plaintiffs relate to a dispute that arose between the Plaintiffs and the Defendants years after the original severance.

[28] I do not accept the position of the Plaintiffs that the factual record before me is not as complete as it would be after trial. The parties have conducted cross-examinations on the affidavit evidence, and I am not persuaded that viva voce evidence at a trial will result in the evidence being significantly different, if it is different at all. In particular, on the issue of an easement based on common intent, the parties that would have formed that common intent – the Plaintiffs and the Powell Parents – have been cross-examined on this very issue. Further testimony and cross-examination at a trial, which will be even further removed in time from the date of the allegedly common intent being formed, will not, in my view, provide further and better evidence on the issue.

[29] Determining the claim for an easement in a summary manner will also reduce the time needed for trial on all of the remaining issues because each party’s rights in relation to the adjacent properties and the discharge of water will be resolved. Furthermore, since the municipal drainage was installed the easement is no longer necessary. The only reason for the issue of whether an easement exists to be determined now is to establish what rights each party had in relation to their respective properties and each other.

[30] Given all these considerations, summary judgment is the most expeditious and cost-effective way of dealing with the issue of whether an easement for water exists.

Easements Generally

[31] At its most basic, an easement is an interest in land, more specifically a right of usage over a property by the owner of an adjacent property. In this case, the Plaintiffs are claiming an interest in the Pettinger Property that would allow them to discharge excess water from their property onto and over the Pettinger Property.

[32] The law on easements is well established. There are four basic requirements:

1. a dominant and servient tenement;
2. the dominant and servient tenements cannot be owned by the same person;
3. the easement must accommodate, that is, better advantage the dominant land;
4. the easement must be capable of forming the subject matter of a grant, that is, it must be of a type recognized by the law, be defined with adequate certainty, and be limited in scope.

[33] In this case, the Defendants agree that the first three requirements of an easement are met. The dispute arises over whether the easement claimed by the Plaintiffs can be defined with adequate certainty and be limited in scope.

[34] The Defendants argue that the Plaintiffs have not provided any certainty as to how the easement is to be defined and how it could be limited in scope. The Plaintiffs disagree and refer to the natural flow of water from their property onto the Pettinger Property, delineated by the drainage outlet installed by the Powell Parents, leading into the grassy swale the Plaintiffs claim existed at the time of severance.

[35] An easement for water must not be confused with riparian rights – water must be permitted to flow along its natural course. Even if water naturally flowed along a course that led from the Powell Property to the Pettinger Property, that does not mean that an easement therefore existed along that watercourse.

[36] This distinction was made clear by the Supreme Court of Canada in 1973:

I would have been content, in the circumstances of the present case, to place the respondent's position not on prescriptive easement but on the proposition stated in 28 Halsbury, 1st ed., 1914, at p. 424, as follows:

Every riparian owner on a natural watercourse flowing in a known and defined channel, whether on the surface of the land or below it, or in an artificial channel of a permanent character, has as incident to his property in the riparian land a proprietary right to have the water flow to him in its natural state in flow, quantity, and quality, neither increased nor diminished, whether he has yet made use of it or not.

This proposition was carried into the second edition of Halsbury (see vol. 33, 1939, p. 593) but was dropped in the current third edition: see vol. 40, 1962, p. 516. It does, however, reflect a view of the law taken in American cases. The weight of authority there is that riparian rights exist in the flow of artificial streams where the artificial condition has permanency and lower riparian owners have relied upon its continuance: see 93 Corpus Juris Secundum, #129, pp. 841-842; 6A American Law of Property, 1954, p. 157.

[37] I agree that the Plaintiffs have failed to adequately define the easement claimed. There is insufficient detail in the Plaintiffs’ evidence so as to permit an Order to be made defining an easement, if one was found to exist. The Plaintiffs’ evidence also fails to demonstrate how the easement, if found, could be limited in scope. To the contrary, the evidence supports a conclusion that in the years after the severance of the Original Property, there was an increase in water draining from the Powell Property onto the Pettinger Property. Although the Plaintiffs deny an increase in water being drained from their property, as I expand upon further below, their bald denial is contradicted by the evidence.

[38] The Plaintiffs have an obligation to put their best foot forward on a motion for summary judgment. I am entitled to expect that all of the evidence they have to present on the issue is before the Court on this motion. As there is really no evidence to define the easement claimed with adequate specificity, I find that the Plaintiffs have failed to demonstrate that they have evidence meeting the fourth requirement for an easement. On that basis alone, there is no genuine issue for trial on the Plaintiffs’ claim for an easement.

[39] Even if the Plaintiffs had brought sufficient evidence to make out the fourth requirement for an easement, as I explain below, they have failed to demonstrate that an easement existed at the time of severance.

Easement of Necessity

[40] I find that the Plaintiffs are unable to demonstrate that without the grant of the easement their property would be uninhabitable, inaccessible or useless. Therefore, the Plaintiffs’ claim for an easement of necessity fails.

[41] The Powell Property is not analogous to a land-locked property that requires an easement over an adjacent property to enter and exit. There is no evidence that the only way in which the Plaintiffs can divert water is towards the Pettinger Property. As the Court noted in Evans v. Oshawa SII Congregation, the historic flow of water may be the most convenient way for water to drain, but that does not necessarily mean that it is therefore the only way for water to be drained.

[42] The Plaintiffs have not demonstrated that there is no other possible means to divert water other than over the Pettinger Property. Although I accept that the course over which water was drained historically is certainly the most convenient for the Plaintiffs, there is no evidence that such drainage is the only way in which water can be drained from the Powell Property.

[43] I would also note that despite the evidence of a drainage outlet at the time of severance that aligns with the location of the easement being claimed, there is again no evidence that water from the Powell Property necessarily had to be drained over and across the Pettinger Property. Furthermore, there is insufficient evidence upon which I can make any determination as to the extent to which water was draining in any appreciable quantities from the drainage point. There is also no indication that such evidence would be forthcoming at a trial.

Implied Grant of Easement by Common Intention

[44] Vella J. set out the test for implied easement by common intention in Cloverdale Mall Inc. v. City of Toronto:

(a) the easement is necessary to the reasonable enjoyment of the part granted. The moving party must show that not having the easement creates considerable inconvenience to access the land: Deforest Bros. v. Tuck, 2020 ONSC 6439, para 53;

(b) the part of the land subject to the alleged easement must have been used by the grantor owner of the entirety for the benefit of the grant up to and at the time of the grant; and

(c) the implied easement must have been apparent at the time the land for which the easement is claimed was acquired. See Deforest, at para. 38; Roop v. Hofmeyr, 2016 BCCA 310, para 33.

[45] There is no evidence that an easement of water was necessary for the enjoyment of the property being granted to the Plaintiffs nor that the Powell Parents were using a particular course of water flow to accommodate drainage on the Original Property. The evidence of the Powell Parents is that at the time of severance water would disperse from the drainage outlet into the grassy field. The Plaintiffs’ evidence that there was a grassy swale into which water would drain does not significantly contradict the evidence of the Powell Parents. There is no evidence that water in any significant quantity flowed directly from the drainage outlet to the pond on what is now the Pettinger Property.

[46] It is also necessary for the Plaintiffs to demonstrate a common intention in order for me to find an easement based on common intent. The evidence of the Powell Parents is totally contrary to such a finding. The Powell Parents assert, and maintained during cross-examinations, that no such easement was granted or ever intended.

[47] The Plaintiffs’ own evidence is that they did not even contemplate the issue of drainage, and by extent the issue of an easement for water, until 2018 when water drainage was allegedly being blocked by the Defendants.

[48] I find that there is no evidence to support a common intention that the Plaintiffs had an easement for water over the Pettinger Property as of the date of severance. Mr. Kevin Powell’s assertion that he simply did not question the issue of water drainage does not support his assertion now that a reasonable inference was that there was a common intention implied but overlooked at the date of severance.

Changes to the Property Post-Severance

[49] The Plaintiffs’ reliance on changes made to the now Pettinger Property by the Powell Parents after the date of severance is neither informative of the issue of whether an easement existed nor determinative. In fact, the evidence before me as to the changes made by the Powell Parents in the years following the severance supports the conclusion that there was no easement granted or intended.

[50] There is ample evidence to conclude that the drainage of water at the time of severance was not to the extent and amount it was in subsequent years, particularly after the installation of a pool on the Powell Property. The culvert installed by the Powell Parents to divert water draining from the Powell Property supports a reasonable inference that there was an increase in the amount of water draining from the Powell Property onto the Pettinger Property after severance.

[51] The Powell Parents state that although they put up with the increasing amounts of water being drained from the Powell Property over the years and made specific changes to their own property to attempt to alleviate the drainage issue, they did this out of natural love and affection for their son and daughter-in-law, rather than out of a belief in their obligation to do so. There is nothing in the evidence of the Plaintiffs to contradict this evidence and there is nothing before me to suggest that any additional or further evidence on this issue will be forthcoming at a trial.

[52] Although the Plaintiffs adamantly deny doing anything to increase the amount of water being drained from their property, the need for a culvert and then ultimately municipal drainage supports the conclusion that there was an increase in the amount of water being discharged onto the Defendants’ property after the Original Property was severed.

[53] If a culvert was required for the drainage of water on the Original Property, it is reasonable to conclude that it would have been installed by the Powell Parents prior to severance or even a very short time afterwards. The culvert was installed by the Powell Parents in 2010, almost a decade after severance.

[54] I find that the actions taken by the Powell Parents and the eventual installation of municipal drainage on the Pettinger Property does not support the claim for an easement and in fact support the very opposite conclusion – that there was no easement nor any need for an easement for water drainage at the time of severance.

Conclusion

[55] There is no genuine issue for trial on the Plaintiffs’ claim for an easement for water. The Plaintiffs have failed to demonstrate that the four requirements for an easement are met and there is no evidence to support that an easement of necessity or common intent existed as of the date of severance.

[56] The parties shall submit written submissions on costs as follows:

(a) Defendants’ submissions on costs, no longer than 3 pages in length, 12-point font, double-spaced, exclusive of Costs Outline and Offer(s) to Settle shall be filed on or before February 7, 2025.

(b) Plaintiffs’ submissions on costs, no longer than 3 pages in length, 12-point font, double-spaced, exclusive of Costs Outline and Offer(s) to Settle shall be filed on or before February 14, 2025.

(c) Reply by the Defendants, no longer than 2 pages in length, 12-point font, double-spaced on or before February 21, 2025.

[57] Order to go:

1. The Plaintiffs’ claim for an easement for drainage is summarily dismissed.

A.D. Hilliard
Released: January 28, 2025