Easement - By Implication. Collingwood Aviation Partners Ltd. v. Winterland Airfield Holdings Ltd.
In Collingwood Aviation Partners Ltd. v. Winterland Airfield Holdings Ltd. (Ont CA, 2022) the Court of Appeal considered an interesting 'easement by implication' case involving an airport and an airport-dependent business:
Easement by implication
 We see no errors in the application judge’s finding that CAPL has a right to unimpeded access to the airport property on the basis of a common law easement by implication.
 Winterland does not dispute that the application judge properly articulated the test for an easement by implication but argues that the application judge erred in his application of the test.
 The application judge relied on the following test for an easement by implication set out in Anne Warner La Forest, Anger & Honsberger, Law of Real Property, loose-leaf, 3rd ed. (Toronto: Thompson Reuters, 2021), at para. 17.12:
In order for a quasi-easement which was exercised during unity of ownership to become an easement by implication of law, the right claimed must meet certain criteria: The application judge made findings of fact about the agreement between the Town and CAPL’s predecessor at the time the lands were severed. Based on those findings, the application judge was satisfied that the rights of access “were apparent at the time the agreement was concluded”. For example, the application judge found that it would be “impossible” for CAPL’s predecessor to operate a flight school without “broad runway access on CAPL’s eastern boundary, as well as a buffer zone access on CAPL’s northern side and footpath access for pilots and students”.
a) it must be necessary to the reasonable enjoyment of the part granted;For an easement to be apparent, its previous use must be indicated by some visible, audible or other apparent evidence on either the quasi-dominant or the quasi-servient tenement which could be seen, heard or smelled by a reasonable inspection.
b) it must have been used by the owner of the entirety for the benefit of the part granted up to and at the time of the grant; and
c) it must have been apparent at the time the land for which the easement is claimed was acquired.
 Winterland argues that the application judge erred in finding that unimpeded access is “necessary” to CAPL’s reasonable enjoyment of its lands. The application judge made no such error. He considered that “necessity” forms part of the test for an easement by implication and he found that “being ringfenced and losing its historic access to the airport lands would be substantially more harmful to it than a mere inconvenience”. The application judge went on to review the evidence of how CAPL had to conduct its business while the fencing was up and the overall impact of the fencing on the three relevant sides of the property. He ultimately concluded that the fencing and restrictions are “not just inconvenient, they are a serious interference with CAPL’s use of its property and, in addition, impose unnecessary hazards for the operation of the aircraft by CAPL and its tenants”. These were findings of fact supported by the record.
 Winterland also argues that the application judge erred in failing to address and find that a 1992 agreement extinguished any easement right that may have previously existed. Again, the court is not required to address all arguments made by the parties. In this case, as pointed out by CAPL, the 1992 agreement did not address access rights and, therefore, there is no basis for a finding that it extinguished the easement the application judge found exists in this case.
 Finally, Winterland argues that the application judge erred by failing to consider that, even if an easement exists, it does not preclude Winterland from exercising some control over access to its property through the use of fences. In making this argument, Winterland relies on the decision in Gardiner v. Robinson, 2006 BCSC 1014, where the Supreme Court of British Columbia held that broad rights of access to footpaths did not prevent a property owner from erecting a fence and gates. However, in Gardiner, the Court emphasized, at para. 27, that the landowner’s ability to erect fencing and gates depends on whether they “interfered in a substantial and unreasonable way with the petitioners’ right of access”. As reviewed above, this is precisely the analysis the application judge conducted in this case. He concluded that the proposed fencing would constitute a substantial interference with CAPL’s enjoyment of its property.
 Ultimately, the application judge committed no errors in his application of the common law test for an easement by implication.