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Easements - Express Grant. Joannides v. Delaney [latent ambiguity]
In Joannides v. Delaney (Ont CA, 2024) the Ontario Court of Appeal dismisses an easement appeal, where two easements were set out in several documents.
Here the court considers the present of latent ambiguities in the reasment document, and their effects:[1] This appeal involves the interpretation of two easements. The first easement is a 15-foot wide right-of-way (the “Right-of-Way”) that crosses the servient tenement lands, owned by the Joannides (the “appellants”), and connects the dominant tenement lands, owned by Delaneys (the “respondents”), to a municipal roadway. The second easement (the “Right-of-Access”) provides the respondents with access to a well located on the appellants’ property.
[2] The appellants, applicants in the court below, brought an application in the Superior Court of Justice for, inter alia: 1) a declaration that the Right-of-Way does not include any purpose other than ingress and egress, and specifically does not permit the “turnaround of vehicular activity upon the Right-of-Way”; and 2) a declaration that the Right-of-Access is null, void and expunged.
[3] The respondents, applicants by counter-application, sought, inter alia: 1) a declaration that the respondents enjoy an indefeasible right to the Right-of-Way; 2) a declaration that one of the instruments setting out the details of the Right-of-Way be amended nunc pro tunc to correct an apparent drafting error; 3) an interim and permanent injunction that the appellants keep the Right-of-Way free from all obstructions and vehicles; and 4) general and punitive damages in the amount of $100,000.
[4] The central dispute between the parties is over the respondents’ use of what was referred to in the evidence as the turnaround, located on the Right-of-Way.
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REASONS BELOW
[20] The application judge found that the disputed turnaround area is included in the Right-of-Way, writing this, at paras. 46-47 of his reasons:The plain language of the grant of easement is clear that it includes Part 30 for the purpose of ingress and egress. Next, the grant makes reference to Plan 28R-3352, and it shows Part 30 going to the waterfront, and that it includes the ‘turnaround’. Mr. Arthur Hudson [a predecessor of the appellant] believed the Right-of-Way extended to the water.
The Court accepts the Respondent’s [i.e., the Delaneys’] argument that had the intention been to exclude the ‘turnaround’ from the Right-of-Way, one would reasonably expect that Part 30 would have been split in two or more parts, so that the ‘turnaround’ and the ‘well’ would have been shown as their own Parts separate from the Right-of-Way. [21] In arriving at this conclusion, the application judge found the January 1980 Agreement to include a latent ambiguity when it, and the 1964 Agreement, were applied to the Reference Plan in light of the grant of easement. The application judge’s reasons were somewhat imprecise as to which instrument gave rise to the Right-of-Way. While the application judge suggested the January 1980 Agreement was ambiguous when applied to the Reference Plan, considering the “grant of easement” in the September 1980 Indenture, he recognized that, prior to 1980, the Right-of-Way was “set out” in the 1961 Grant.
[22] This imprecision, however, does not necessarily compromise the application judge’s conclusion. The issue in this case is not whether the Right-of-Way exists or when it came into existence; the easement was already running with the land by the time the January 1980 Agreement came into effect, per the 1961 Grant. The issue is whether the application judge erred in finding that the January 1980 Agreement, and the 1964 Agreement, reveal an ambiguity when applied to the land itself considering the existing easement.
[23] As this court explained in Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (Ont. C.A.), at p. 658, the finding of a latent ambiguity allows judges to rely on extrinsic evidence, including evidence of subsequent conduct, to assist in their interpretation of an agreement: See also Arthur Anderson Inc. v. Toronto Dominion Bank (1994), 1994 CanLII 729 (ON CA), 17 O.R. (3d) 363 (Ont. C.A.), at p. 372, leave to appeal refused, [1994] S.C.C.A. No. 189. According to the application judge, ambiguity arises from the two possible interpretations of the January 1980 Agreement: 1) one that would allow the servient tenement owners (the appellants) to park on the ‘turnaround’, even if doing so blocked ingress and egress by the respondents; and 2) another which would permit the appellants to park on the ‘turnaround,’ but not in a way that would restrict ingress and egress. The extrinsic evidence that led the application judge to conclude that the Right-of-Way was intended to include the turnaround for the purpose of ingress and egress was, among other things, that “for 18 years before the 1980 grant and for 16 years after, the ‘turnaround’ was kept clear to permit use by the [respondents]”. According to the application judge, this evidence supported the position that the turnaround cannot be obstructed.
[24] As discussed above, the application judge further found that there was a drafting error in the September 1980 Indenture. Specifically, he found that the Instrument omitted Part 35, which is to the west of and adjacent to Part 30, from the description of the Right-of-Way, which he found to be “necessary to permit access to and from the [respondents’] Lands.” Thus, pursuant to ss. 159 and 160 of the Land Titles Act, R.S.O. 1990, c. L. 5, he amended the September 1980 Indenture nunc pro tunc to include Part 35.
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(1) Latent Ambiguity: Using Extrinsic and Subsequent Conduct Evidence
[35] The application judge did not err in his finding of a latent ambiguity. It was therefore open to him to consider extrinsic evidence: Herold Estate, at para. 49. As this court explained in Gibbs, at p. 658, extrinsic evidence may be introduced only in the case of a latent ambiguity for the purposes of ascertaining the intention of the grantor.
[36] The test for finding a latent ambiguity is met where “the description of the land in the deed or grant, when applied to the land itself, raises an issue about the location of a boundary” (emphasis added): Herold Estate, at para. 49. Expressed another way, a latent ambiguity arises when the application of an instrument to the facts or land, not the explicit terms of the instrument, gives rise to various interpretations: Gibbs, at p. 658; see also Taylor v. City Sand & Gravel Ltd., 2010 NLCA 22, 90 R.P.R. (4th) 157, at para. 21; Missilinda of Canada Ltd. v. Husky Oil Operations Ltd., 2007 MBCA 24, 212 Man. R. (2d) 252, at para. 10.
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[39] The application judge made no extricable error in law. He clearly understood, and properly applied, the test for the finding of a latent ambiguity, which requires that the relevant instrument raise an issue about the property right when applied to the land: Herold Estate, at para. 49. And, in the end, he found there to be a latent ambiguity “when [the January 1980 Agreement] and Instrument 14491 [the 1964 Agreement] are applied to [the Registered Plan] in light of the grant of easement”.
[40] Again, in the absence of an extricable error of law, the application judge’s finding of a latent ambiguity is entitled to deference: Casurina Ltd. Partnership v. Rio Algom Ltd. (2004), 2004 CanLII 30309 (ON CA), 40 B.L.R. (3d) 112 (Ont. C.A.), at para. 34, leave to appeal refused, [2004] S.C.C.A. No. 105, citing with approval, Chitty on Contracts, 28 ed. (London: Sweet & Maxwell, 1998) at para. 12-046; Keefer Laundry Ltd. v. Pellerin Milnor Corp, 2009 BCCA 273, 57 B.L.R. (4th) 161, at paras. 57-60.
[41] Where the words in the grant of a right-of-way are unclear, the subsequent conduct, historic use, and circumstances surrounding the use of the property subject to the easement, are particularly important to understand the nature and extent of the rights conveyed: Arthur Anderson, at p. 372; Markowski v. Verhey, 2020 ONCA 472, 26 R.P.R. (6th) 1, at para 32, citing Square-Boy Limited v. The City of Toronto, 2017 ONSC 7178, at para. 33; Laurie v. Winch, 1952 CanLII 10 (SCC), [1953] 1 S.C.R. 49, at p. 56. Here, there was evidence that, since 1962, the appellants and their predecessors consistently kept the turnaround clear so that use of the easement would not be blocked. It was therefore open to the application judge to rely on the extrinsic evidence that the respondents’ predecessors’ use of the turnaround was “open and notorious” when the 1980 instruments were formed.
[42] Furthermore, the application judge appropriately admitted and relied on evidence of subsequent conduct in finding that the appellants’ predecessors had kept the turnaround free because they felt “obliged to keep the turnaround clear, because it was part of the Right-of-Way on Part 30”, and that the respondent’s predecessor had used the turnaround since the early 1960s and did not seek permission from the appellants’ predecessors to use it.
[43] This subsequent conduct evidence was not just admissible in resolving the latent ambiguity in the January 1980 Agreement, for reasons explained by Strathy C.J.O. in Shewchuk, at paras. 53-54, it was also reliable:In the usual course, evidence of subsequent conduct will be more reliable if the acts it considers are the acts of both parties, are intentional, are consistent over time, and are acts of individuals rather than agents of corporations.
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Evidence of subsequent conduct will have greater weight if it is unequivocal in the sense of being consistent with only one of the two alternative interpretations of the contract that generated the ambiguity triggering its admissibility. […] For instance, in Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, 265 O.A.C. 247 (Ont. C.A.), at para. 162, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 91 (S.C.C.), this court found that the parties' subsequent conduct was of assistance in determining which of two reasonable interpretations of a contract should be accepted because the conduct in question was "overwhelmingly consistent only with the trial judge's interpretation." [44] The evidence that the parties’ predecessors had kept the turnaround clear for decades, before and after 1980, “because it was part of the Right-of-Way”, is overwhelmingly consistent with an interpretation that denies the right to park in a manner that limits the respondents’ right to ingress or egress by obstructing use of the turnaround. As the application judge concluded, the only discernible reason for extending the right of way to the “turnaround” area of Part 30 was to permit the owners of the dominant tenement to use it to turn their vehicles around, in order to allow them to avoid having to back up or down the steep driveway.
[45] In light of the extrinsic evidence discussed above, it was open to the application judge to accept the importance of the ‘turnaround’ to the use of the Right-of-Way, and to conclude that, if the original intention behind the Right-of-Way was to permit the appellants and their predecessors to both park on and block the ‘turnaround’, one would have expected that “[a] release of the [Right-of-Way] at the ‘turnaround’ would [have been] made explicit” in either the September 1980 Indenture or January 1980 Agreement. . Reddick v. Robinson
In Reddick v. Robinson (Ont CA, 2023) the Court of Appeal considered (and allowed an appeal from) an order denying an application for a declaration "that the respondents were restricted to pedestrian access only in using this strip of land for ingress to and egress from the shores of Lake Ontario", and confirming "their interpretation of the easement and defining the “shores of Lake Ontario” as only the land lying between the high and low water marks".
In these quotes, the court considered the text 'interpretation' standard of an easement by 'express grant':1. Standard of Review
[13] The issues raised in the application, and on appeal, involve the interpretation of an easement. The construction of an easement is a question of mixed fact and law which means that, absent an extricable error of law, or a palpable and overriding error on a question of fact, an application judge’s interpretation of a deed is owed deference on appeal: Yekrangian v. Boys, 2021 ONCA 629, at para. 19; Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, 450 D.L.R. (4th) 105, at para. 101.
[14] This court has directed that where, as here, “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”: Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10.
[15] The principles of contractual interpretation, as set out in the Supreme Court decision of Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53, [2014] 2 S.C.R. 633, also apply to the interpretation of an easement: Herold Estate v. Canada (Attorney General), 2021 ONCA 579, at para. 44. This means that the proper approach is to 1) ground the interpretation of the easement in its text, and 2) have regard to the factual matrix, but only as an interpretive aid for ascertaining the objective intentions of the parties. Evidence that speaks to subjective intent is inadmissible: Sattva, at para. 59.
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[33] Reading the application judge’s reasons as a whole, the only logical conclusion is that this determination – like the application judge’s definition of “shores” – rests on the subjective intent of Mr. Moore and the Minakers. As discussed earlier, subjective intent evidence is not admissible when interpreting an easement. Only objective evidence that speaks to the factual matrix can be considered. The application judge’s disposition appears to be tainted by his reliance on subjective intent evidence and his failure to consider objective evidence.
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[39] Second, the Notice and the Report indicate that two types of access to Lake Ontario were contemplated: direct access (for the appellants, who are titleholders) and legal access (for all landowners, including the respondents). Again, this is objective evidence that sheds light on the surrounding circumstances at the time the easement was created, including the parties’ intentions. It should have informed the application judge’s consideration of the factual matrix, but it seems that it did not.
[40] Without the subjective intent evidence of Mr. Moore – and after considering only the language used in the easement and the objective evidence highlighted by the appellants – the inevitable conclusion is that the easement restricts the respondents to “pedestrian access only” for the purpose of ingress to and egress from the “shores of Lake Ontario”. . Primont (Castelmont) Inc. v. Friuli Benevolent Corporation
In Primont (Castelmont) Inc. v. Friuli Benevolent Corporation (Ont CA, 2023) the Court of Appeal considered (essentially) whether an easement includes car parking or not, here deciding the issue on 'express grant' easement principles:[1] The issues on appeal arise out of an application for a declaration that an easement registered against the title to certain land does not include the right to park on the land.
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[56] 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. The grant of an express easement includes such ancillary rights as are reasonably necessary to use or enjoy the easement. However, to imply a right ancillary to that which is expressly granted, the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable: Fallowfield v. Bourgault, (2004), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at paras. 10‑11.
[57] Read fairly, the application judge’s reasons exclude the possibility that parking rights were included as an ancillary right to the Easement.
[58] In particular, as the application judge correctly noted, “easements are to be interpreted in accordance with the words used, first and foremost.” Here, the purpose of the Easement, as expressly stated in the grant, was for “vehicular and pedestrian access and egress”. Without the Easement, the LTC lands were landlocked. The Easement was necessary to remedy that problem. Moreover, as the application judge observed, the reciprocal easements exchanged among the original owners ensured all could enter on and traverse all of the unencumbered Lands, which had been envisaged as one campus. . Yekrangian v. Boys
In Yekrangian v. Boys (Ont CA, 2021) the Court of Appeal considered the interpretation of an easement express grant:[20] The rights of way were created by express grant. The methodology for interpreting an easement created by express grant is of long standing and was summarized by this court in Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10: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. . Raimondi v. Ontario Heritage Trust
Here in Raimondi v. Ontario Heritage Trust (Ont CA, 2018) an easement created by express grant had to be interpreted:[11] Where, as here, an easement is expressly created by written agreement, the scope of the easement is to be determined by interpreting the text. What is the agreement that the original parties made that now binds their successors? The basic interpretive methodology was stated by this court in Fallowfield et al. v. Bourgault et al. (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10: “[w]here 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.” . Oakville (Town) v. Sullivan
In Oakville (Town) v. Sullivan (Ont CA, 2021) the Court of Appeal stated principles for interpreting an express grant of easement:[14] In evaluating whether there is an actionable encroachment on an easement created by express grant, the court first determines the nature and extent of the easement by interpreting “the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created”: Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10; see also Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, 96 R.P.R. (5th) 175, at para. 11. . Markowski v. Verhey
In Markowski v. Verhey (Ont CA, 2020) the Court of Appeal considered the use to which an express easement may be put:[26] A right-of-way created by express grant is an easement that allows the grantee and their successors in title to cross the grantor’s land for a purpose related to the better enjoyment of the grantee’s land: Anne La Forest, Anger & Honsberger Law of Real Property, loose-leaf, 3rd ed. (Carswell, 2006), at §17:20.30(a).
[27] The “nature and extent of a right-of-way depends on the proper construction of the language of the instrument creating it”: Canadian Pacific Ltd. v. Paul, 1988 CanLII 104 (SCC), [1988] 2 S.C.R. 654, at p. 671.
(1) The Words in a Grant
[28] 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: Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10; Smith v. Morris, 1935 CanLII 56 (ON CA), [1935] 2 D.L.R. 780 (Ont. C.A.), at p. 782.
[29] 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.[30] 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. [31] The grant of a right-of-way in this case reads as follows:TOGETHER WITH A RIGHT OF WAY, in common with all others entitled thereto, for all the usual purposes, in, over, along and upon ALL THOSE PARTS of Broken Lot 10 in Concession 12 of the said Township of Chaffey, designated Parts 1 and 6 on a plan of survey on deposit in the Registry Office for the Registry Division of the District of Muskoka as RD-999. [Emphasis added.] (2) Determining the Purpose of the Grant of the Right-of-Way by Examining the Historic Use and Circumstances
[32] Where the words in the grant of the right-of-way are unclear, the historic use and circumstances surrounding the use of the property subject to the easement are particularly important to understand the nature and extent of the rights conveyed: Square-Boy Limited v. The City of Toronto, 2017 ONSC 7178, at para. 33; Laurie v. Winch, 1952 CanLII 10 (SCC), [1953] 1 S.C.R. 49, at p. 56. . Grunwald v. Le Marchant
In Grunwald v. Le Marchant (Ont CA, 2020) the Court of Appeal agreed with a lower court judge on the informality required for an easement agreement:[7] We do not accept this submission. On this issue, the application judge said:[I]t is not necessary to use any particular words to create an easement so long as the words used show an intention to create an easement that is recognized in law. Where, on the face of the deed there appears a manifest intention to create an easement, that intention will be given effect if the words of the deed can bear that construction.
In the immediate case, the Right-of-Way Agreement states that it is “for the use and benefit of the owners and occupants from time to time of the house and lands immediately adjoining thereto on the North and South thereof”, which refers to 182 Wychwood and 180 Wychwood. The agreement indicates that the parties intended to create a right-of-way that would run with the lands and be binding on all successors in title to the two properties. [8] We agree with this analysis and conclusion. . de Jocas v. Moldow Enterprises Inc
In de Jocas v. Moldow Enterprises Inc (Ont CA, 2019) the Court of Appeal commented as follows on express grants of easement:[13] As this court noted in Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10: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.
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