



COURT OF APPEAL
    FOR ONTARIO

CITATION: de Jocas v. Moldow Enterprises
    Inc., 2019 ONCA 389

DATE: 20190513

DOCKET: C66085

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Michel de Jocas,
    Catherine de Jocas, David Carson, Ronald Piesanen and Linda Piesanen

Applicants (Appellants)

and

Moldow Enterprises Inc.,
    833633 Ontario Limited and Alena Ravens

Respondents (Respondents)

Brian N. Radnoff and Lindsay Woods, for the appellants

Bruce Bussin, for the respondents

Heard: April 29, 2019

On appeal from the order of Justice R. Cary Boswell of
    the Superior Court of Justice dated September 28, 2018, with reasons reported
    at 2018 ONSC 5715.

REASONS FOR DECISION

[1]

The appellants appeal from the order of the application judge that determined
    that the respondents had not substantially interfered with an easement in
    favour of the appellants, assuming the easement to be valid.

[2]

For the reasons that follow, we would allow the appeal, set aside the
    order of the application judge and remit the matter to the Superior Court of
    Justice for a fresh hearing.

Background

[3]

The background facts are not really in dispute. The appellants, the
    respondents, and one other person not party to this litigation, own five
    neighbouring cottage properties that border Soyers Lake in the County of Haliburton.
    The cottages run generally in a north to south direction, with Soyers Lake lying
    to the east. The de Jocas property is the most northerly property, then the respondents,
    then the Piesanens, then the Sayewichs and, finally, the Carsons. To the
    west of these cottage properties is a right of way known as the Between Lakes
    Trail.

[4]

In the past, in order to access these five cottages, the cottagers used
    a road, known as Brewers Close, which is claimed to be the location of an easement
    over the five properties. Brewers Close runs in a semi-circle from the Between
    Lakes Trail through the five cottage properties and then returns to Between
    Lakes Trail. For clarity, attached to these reasons as Appendix A is a diagram
    showing the location of the five cottage properties, the route of Between Lakes
    Trail and the former route of Brewers Close.

[5]

In the Fall of 2015, the respondents decided to alter the route of
    Brewers Close as it crossed their property. They sought the approval of the
    other property owners to this change. Initially the respondents had the consent
    of the de Jocas family and the Piesanen family, although they acknowledge that
    the Piesanens subsequently withdrew their consent. They also had the consent of
    the Sayewichs, who did not participate in this application.

[6]

In any event, notwithstanding that they did not have the complete
    agreement of all of the other property owners to change the route of Brewers
    Close, the respondents went ahead and altered the route. The respondents also
    blocked the old route along the lot lines between their property and the de
    Jocas property and between their property and the Piesanens. Indeed, it
    appears that the respondents actually used a small portion of the Piesanens
    property to complete the new route.

[7]

A dispute ensued between the appellants and the respondents over the
    alterations made to Brewers Close. The appellants commenced an application for
    an injunction prohibiting the respondents from obstructing their rights of way
    over Brewers Close and for a mandatory order requiring the respondents to
    remove the boulders and trees that they had used to block the old route.

[8]

In response, the respondents commenced a counter-application in which
    they sought a declaration that the right of way known as Brewers Close was
    invalid because of uncertainty and vagueness. In the alternative, the
    respondents sought a declaration that their alteration of the route of Brewers
    Close did not result in substantial interference with the use of the right of
    way by the appellants.

The decision below

[9]

The application judge did not make any determination as to the validity
    of the easement known as Brewers Close. He said that he was unable to do so
    based on the evidentiary record that was before him. However, the application
    judge did determine that the easement was not invalid on the basis of vagueness
    or uncertainty. Then, assuming the easement was valid, the application judge
    concluded that there was no substantial impairment of the use of the easement
    arising from the actions of the respondents.

Analysis

[10]

In
    our view, the evidentiary record before the application judge was insufficient
    to permit him to reach either of the conclusions that he did. Indeed, the evidentiary
    record did not allow for any of the necessary findings that would sustain any
    of the conclusions that the parties sought to obtain from the court. As the
    application judge noted at para. 35(h) of his reasons, the current deeds speak
    of an existing semi-circular driveway and there is no way to tell if the
    roadway/driveway now in existence is in the same place as the driveway in
    existence at the time the easements were purportedly created.

[11]

As
    the application judge noted, at para. 28:

On the record before me I am not able to make that
    determination [i.e. the validity of the easements]. I have been provided, in
    terms of title documents, only the parties current deeds. I am unable to
    effectively declare the Applicants easements to be valid without being able to
    trace the easements back to their roots.

[12]

Evidence
    ought to have been placed before the court as to the title history of the
    properties involved. In particular, evidence ought to have been adduced as to
    the genesis of Brewers Close and, to the degree that it was possible to do so,
    the precise dimensions and location of it, as reflected in the title documents
    or as established by extrinsic evidence.

[13]

As
    this court noted in
Fallowfield v. Bourgault
(2003), 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.

[Footnotes omitted]

[14]

As
    the application judge also pointed out, it was unclear on the record whether
    Brewers Close was described in the original grants of the properties or whether
    it arose subsequently: at para. 25. Indeed, it is possible that Brewers Close
    was never referred to in any of the title documents prior to the title
    documents by which the parties here obtained title to their properties. It may
    be that, prior to that time, Brewers Close was simply a road that existed
    without any formal recognition. In that case, extrinsic evidence might be
    required to establish the extent of Brewers Close at the time of the original
    grant.

[15]

While
    the application judge was alert to these deficiencies in the record, unfortunately,
    it does not appear that he raised his concerns with counsel. Rather, he said,
    in his reasons at para. 29:

Having said that, the absence of evidence demonstrating a
    sufficient root of title was not an argued issue during the hearing of the
    application. I was essentially, though not explicitly, asked to assume that the
    easements can be traced back to an original grant and, I gather, that the
    language used in the current deeds has simply been passed down from deed to
    deed.

[16]

The
    application judge then went on to consider whether the easements were vague for
    uncertainty and, if not, whether the respondents had substantially interfered
    with the appellants use of the easements. In light of the deficiencies in the
    record, the application judge ought not to have proceeded to deal with those
    issues because, without a proper evidentiary foundation, any conclusions on
    those issues would be potentially flawed. Without knowing the extent of the
    easement, as established by the original grant, one could not determine whether
    there was substantial interference with that easement.

[17]

Given
    the deficiencies in the evidentiary record, we see no alternative but to set
    aside the application judges order and return the matter to the Superior Court
    of Justice for a fresh hearing, or a trial of the issues, as the parties may be
    advised.

[18]

There
    are many other questions which need to be examined to determine whether there
    is or is not a valid easement in favour of the cottagers.  All agree that the
    language describing the easement in the existing deeds is very poor.  Does the
    language of the grant of the easement to the Piesanens even give them an
    easement, given that they are located south of the respondents property?  Does
    the deed in favour of the respondents make their property subject to easements
    in favour of the other cottagers?  If not, what are the consequences of that
    absence?  Does the
Registry Act
R.S.O. 1990, c. R.20 have anything to
    say about the expiry of easements in those circumstances?  Was there compliance
    with any part lot subdivision control provisions at the time of the original
    grant?  If not, the grant of the easement may not be valid. (See
Mihaylov
    v. 1165996 Ontario Inc
., 2017 ONCA 116).

[19]

Finally,
    of course, is the question whether, if the easement is established, the actions
    of the respondents constitute a substantial interference with the rights under
    it, in light of this courts decision in
Weidelich v. de Koning
, 2014
    ONCA 736, 122 O.R. (3d) 545.

Conclusion

[20]

The
    appeal is allowed and the order of the application judge is set aside. The
    matter is remitted to the Superior Court of Justice for a fresh hearing or for
    a trial of the issues. In light of the problems with the evidentiary record, for
    which all parties bear responsibility, we would not make any order regarding
    the costs of the appeal or of the original application.


David Watt J.A.
G. Pardu J.A.

I.V.B. Nordheimer J.A.

APPENDIX A



