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Easements - Substantial Interference. 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd.
In 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here regarding an express easement grant.
The court considers 'substantial interference' with a vehicular tunnel easement, in particular parking within it - here parking by either parties:(2) Substantial interference
[25] The trial judge noted that substantial interference turns on the instrument creating the easement and the factual circumstances: see Laurie v. Winch, 1952 CanLII 10 (SCC), [1953] 1 S.C.R. 49; MacKenzie v. Matthews (1999), 1999 CanLII 19931 (ON CA), 180 D.L.R. (4th) 674 (Ont. C.A.); Weidelich v. de Koning, 2014 ONCA 736, 122 O.R. (3d) 545. The significance of the encroachment depends on its impact on the easement’s reasonable use. The dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose.
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[29] However, the trial judge found that Mr. Buckley did substantially interfere with Ms. Paiva’s right-of-way on the various occasions that he parked in the tunnel and allowed others to park in the tunnel. Since the tunnel is only 20 feet wide, parking in the tunnel will either block or partially block access to Ms. Paiva’s loading dock and thus substantially interfere with her right-of-way. The trial judge found it was Mr. Buckley’s responsibility to keep the tunnel clear of parked cars.
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(5) Ancillary right to parking
[33] Finally, the trial judge found that the easement granting Ms. Paiva a right-of-way through the tunnel does not include a right to park in the tunnel or on the adjacent parking pad. Ancillary rights to an easement must be necessary for the use or enjoyment of the easement, not just convenient or reasonable: Fallowfield v. Bourgault, 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (Ont. C.A.), at para. 11. Ms. Paiva failed to establish why anything more than transitory parking is part of the easement’s demonstrated purpose/necessary to allow vehicles to access their loading dock for shipping and delivery.
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(1) The trial judge did not err in setting out the scope of the easement and finding no substantial interference
[43] The parties agree that the trial judge properly instructed himself on the law regarding the construction of an easement, relying on this court’s elaboration of the proper approach in Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, 96 R.P.R. (5th) 175, at para. 11. That approach involves focusing on the text of the easement (where, as here, it is expressed in a written agreement). The court asks, “[w]hat is the agreement that the original parties made that now binds their successors?”
[44] In light of the trial judge’s interpretation of the text of the easement in this case, he concluded, at para. 46:Ms. Paiva has the right to an uninterrupted access through her tunnel to her property at 255 Main St. This right-of-way means that Ms. Paiva cannot be blocked from accessing her property apart from transitory interruptions that naturally occur when sharing a right-of-way with others. Given the width of the tunnel, no one can permanently park on the laneway. ....
[48] I would reject this submission. It was open to the trial judge to adopt the interpretation to the easement which included the rights of access of the owner of the property. The trial judge referred to the principle, restated in Raimondi (at para. 17), that the “servient tenement” who owns the land over which the easement is granted continues to retain ownership rights and the right of access over that land. I see no error in applying this principle in the context of the easement before the trial judge.
[49] With respect to substantial interference, again, the parties agree that the trial judge stated the test properly, at para. 47:The test for an actionable encroachment is whether there is a ‘substantial interference’ with the use and enjoyment of the easement for the purpose identified in the grant: Oakville (Town) v. Sullivan, [2021 ONCA 1, 23 R.P.R. (6th) 175]; Weidelich v. de Koning, 2014 ONCA 736, 122 O.R. (3d) 545, at paras. 9-11; Fallowfield, at paras. 40 and 41. The dominant owner may only sustain a claim predicated on substantial interference with reasonable use.
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