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Easements - Express Grant. 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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