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Real Property - Easements - Release

Remicorp Industries Inc. v. Metrolinx (Ont CA, 2017)

Here the Court of Appeal discusses in soe detail the several ways in which an easement may be released (express or implied abandonment, and operation of law):
Abandonment by Release: General Principles

[46] An easement may be abandoned by release which may be express or implied. The onus of proof is on the party asserting a release: Liscombe v. Maughan (1927), 1928 CanLII 450 (ON CA), 62 O.L.R. 328 (C.A.), at p. 335. In Gale on Easements, 20th ed. (London: Thomson Reuters (Professional) UK Limited, 2017), the authors warn, at para. 12-26: “Unless the easement is granted for a term of years, the rights conferred by an easement are perpetual and, accordingly, are actually or potentially valuable rights. Therefore it is not lightly to be inferred that the owner of such a right should give it up for no consideration.”

[47] An easement can be expressly released by the dominant owner, that is, the party who has received the grant of easement – in this case CN and then Metrolinx. As noted by the applications judge, there was no express release. This was undisputed.

[48] An easement can also be released impliedly. Non-use coupled with an intention to abandon the easement may demonstrate implied release. On its own, non-use is insufficient. As this court explained in Liscombe, at p. 335, non-use may arise because an owner of an easement had for the time no occasion to use it as another more convenient means of employing the land was available. However, this lack of use did not prove that the owner of the easement intended to abandon it. See also Ward v. Ward (1852), 155 E.R. 1189, and Crossley and Sons Limited v. Lightowler (1867), L.R. 3 Eq. 279. Indeed in Liscombe at p. 335, this court cited Seaman v. Vawdrey (1810), 33 E.R. 1032, where, despite non-use for over 100 years, an intention to abandon was not established. To reiterate, intention to abandon must be proven.

[49] Intention to abandon will be found where “the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else”: Shklar v. Kwiecien (1972), 1972 CanLII 485 (ON SC), 3 O.R. 245 (H.C.J.), at p. 247, citing Tehidy Minerals Ltd. v. Norman, [1971] 2 All E.R. 475, at p. 492. See also Almel Inc. v. Halton Condominium Corp. No. 77 (1997), 1997 CanLII 14498 (ON CA), 98 O.A.C. 72 (C.A.), at para. 7. To establish intention to abandon, the surrounding circumstances may be examined: Liscombe, at para. 28.

[50] Inclusion of an easement in a conveyance supports the absence of an intention to abandon: Liscombe, at p. 335. As stated in Halsbury’s Laws of Canada, “Real Property”, (Toronto: LexisNexis Canada Inc., 2016 Reissue), at HRP 316: “Where title has been perfected an extinguishment will usually require either an express release or ‘circumstances so cogent as to preclude a quasi-releasor from denying the release’; an intention to release ‘will be less readily presumed where the title to the easement has been perfected than where the title still remains inchoate.’”: citing Baker v. Harris (1929), 64 O.L.R. 513 (C.A.), at p. 516. Suspension of the exercise of a right is insufficient. An intention not to exercise a right may differ from an intention to abandon it. See Re Kileel and Kingswood Realty Ltd. (1979), 1979 CanLII 2723 (NB CA), 108 D.L.R. (3d) 562 (N.B.C.A.), at p. 567.


[63] Anne Warner La Forest, in Anger and Honsberger, Law of Real Property, loose-leaf, 3rd ed., vol. 2 (Toronto: Thomson Reuters Canada Ltd., 2016) states at para. 17:20.60, that an easement may be extinguished by express release, implied release, or operation of law. She treats abandonment as a form of implied release. Certain cases have used a comparable classification. For example, see Roop v. Hofmeyr, 2016 BCCA 310 (CanLII), 88 B.C.L.R. (5th) 233, at paras. 30, 41;[1] Lywood et al. v. Hunt (2009), 2009 CanLII 25312 (ON SC), 97 O.R. (3d) 520 (S.C.), at para. 27, aff’d 2011 ONCA 229 (CanLII), 2 R.P.R. (5th) 15; and Phinny v. Macaulay, (2008), 75 R.P.R. (4th) 66 (Ont. S.C.), at para. 119.

[64] Anger and Honsberger states, at para. 17:20:60(a), that at common law, an easement will be extinguished by operation of law where:

(a) the purpose for which it was created has come to an end;

(b) the period for which the easement was created terminates;

(c) the right is abused; or

(d) the same person comes to own the dominant and servient lands in fee simple.

[65] In contrast, at pp. 29-007 to 29-016 of Megarry and Wade, The Law of Real Property, 8th ed. (London: Sweet & Maxwell, 2012), the authors describe the mechanisms for extinguishment as being by statute, express or implied release, and by unity of ownership and possession of both the dominant and servient tenements.

[66] The authors of Gale on Easements describe extinguishment as falling into three categories: by operation of law, statute, and release. Operation of law is stated to encompass unity of ownership, merger of interests, expiration of a time- limited easement, and disappearance of the purpose of an easement.

[67] Yet another classification is found in Halsbury’s at HRP 315-322. It classifies the methods of extinguishment as being by statute, express or implied release, unity of ownership, or destruction of either tenement. Halsbury’s states, at HRP 319, that an easement will be extinguished if it was granted with a time limit, or for a purpose, that has expired or come to an end. However, the authors include extinguishment resulting from expiry of time or end of purpose as a subset of extinguishment by release.

[68] What is to be drawn from all of these descriptions?

[69] A reasonable conclusion is that an easement may be extinguished by operation of law in two ways. First, it may be extinguished by statute. A good example is found in British Columbia’s Property Law Act, R.S.B.C. 1996, ch. 377, s. 35(2), which allows the court to modify or cancel an easement where there is, inter alia, a material change in the character of the land such that the easement is obsolete. Ontario’s legislation does not mirror that of British Columbia. In extinguishing an easement by statute, some caution may be required. As the authors of Gale on Easements note at para. 12-12: “An Act should not, however, be construed so as to interfere with somebody’s property rights without compensation unless the court is obliged so to construe it” citing Jones v. Cleanthi, [2007] 1 W.L.R. 1604, at para. 82.

[70] Secondly, an easement may be extinguished by operation of the common law. Examples include unity of ownership and possession of the dominant and servient lands or destruction of either the dominant or servient lands. As seen from Anger and Honsberger, Gale on Easements, and Halsbury’s, extinguishment by operation of law also includes expiry of a time-limited easement and disappearance or expiry of the purpose for which the easement was created. It seems to me that the former would more properly be the subject matter of an express or implied release. If an easement is granted for a limited time, it follows that it must have been the subject of an express grant that expressly or impliedly provided for a release on the expiration of the time limit.

[71] As for expiry of the purpose for which the easement was granted, an easement is not typically extinguished by temporary events that impact its use. Some permanence must exist. In “Easement Caselaw Update”, (paper presented to the Ontario Bar Association, Continuing Legal Education Program, Easements for Real Estate and Municipal Lawyers: Level II, October 6, 2016), Craig Carter writes that: “An easement can be extinguished as a matter of law when some event occurs that makes the easement unusable or unnecessary. Some permanence must exist. A flood that washes over an easement is not extinguishment. But global warming causing a sea to cover a right of way will be.”

[72] A further example is found in National Guaranteed Manure Co. (Ltd.) v. Donald (1859), 157 E.R. 737, where the court held that an easement to take water to fill a canal ceased when the canal no longer existed and was converted to a railway.

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