



COURT OF APPEAL FOR ONTARIO

CITATION: Raimondi v. Ontario Heritage Trust, 2018 ONCA 750

DATE: 20180914

DOCKET: C64043

Pepall, Roberts and Miller JJ.A.

BETWEEN

Idalgo Raimondi and Nancy Raimondi

Appellants (Applicants)

and

Ontario Heritage Trust and Nicola Ross

Respondents (Respondents)

M. Michael Title and Patricia Virc, for the appellants

Sonal Gandhi and Stephanie Figliomeni, for the
    respondent Ontario Heritage Trust

Patricia D.S. Jackson and Sarah Whitmore, for the
    respondent Nicola Ross

Heard: April 13, 2018

On appeal from the order of Justice Peter A. Daley of the
    Superior Court of Justice, dated June 12, 2017, with reasons reported at 2017
    ONSC 3389, 84 R.P.R. (5th) 221.

B.W. Miller J.A.:

Overview

[1]

The appellants are the owners of a 3.59 acre residential property in
    Caledon, Ontario (100 Scott Street). Their property is surrounded by 90 acres
    of parkland (the Willoughby Property) owned by the Ontario Heritage Trust (the
    OHT). The only vehicular access to the appellants residence is via a 1 km
    driveway through the Willoughby Property. The appellants do not own the
    driveway, but they have a legal right (an easement in the nature of a right of
    way) to use it for the purpose of accessing their property. That right of way
    was conferred by a deed of easement when the OHT severed 100 Scott Street from
    the Willoughby Property in 1993. The deed was registered on title of both 100
    Scott Street and the Willoughby Property.

[2]

There are a number of popular hiking trails on the Willoughby Property.
    Some trails long predated the severance of 100 Scott Street from the Willoughby
    Property. Since the appellants purchased 100 Scott Street, the OHT has
    continued to improve existing trails and develop new hiking trails into a
    network connected to the Bruce Trail. More hiking trail development is
    contemplated and the OHT actively encourages the public to use the trail
    network. The respondent Ms. Nicola Ross, a local resident, has published a
    local guide to hiking trails, which includes the trails on the Willoughby
    Property.

[3]

The driveway that leads to 100 Scott Street provides the most popular
    access point for hikers using the trails. The OHT does not permit the public to
    drive on the driveway, but the public is expressly invited to walk up the
    driveway to access the trails. Many people do, especially on weekends and
    holidays. It is the presence of hikers walking up and crossing the driveway  a
    driveway also used by the appellants to access their home  that has led to the
    present conflict over the scope of the appellants rights over the use of the
    driveway. The appellants take the position that the easement grants them
    exclusive use of the driveway, and that members of the public who use the
    driveway to access trails are therefore trespassers.

[4]

This appeal concerns two main issues: (1) whether the deed of easement
    creating the right of way grants the appellants exclusive use of the driveway,
    and (2) whether the OHT has substantially interfered with the appellants use
    of the driveway by establishing public hiking trails and inviting the public
    onto the driveway. Two secondary issues are whether the application judge erred
    by: (3) dismissing the application for an injunction restraining the
    publication of Ms. Rosss hiking guide; and (4) ordering costs against the
    appellants. A further ground of appeal, alleging bias on the part of the
    application judge, was abandoned.

[5]

For the reasons set out below, I would dismiss the appeal.

Background

[6]

The OHT was established in 1967, with a statutory mandate to acquire and
    hold property in trust for the people of Ontario. Part of its mandate is to
    preserve and manage properties of historical, architectural, recreational, and
    natural interest. It acquired the Willoughby Property in 1986. Although the
    property has some cultural and archeological significance, its main public
    significance  and the reason for its designation as a Natural Environment Park
    in the Niagara Escarpment Parks and Open Space System  is that it provides
    access to the Bruce Trail. The Bruce Trail is Canadas oldest and longest
    footpath, extending from Niagara Falls in the south to Tobermory in the north.

[7]

The Willoughby Property is managed by the Credit Valley Conservation
    Authority (CVC). After the OHT acquired the Willoughby Property, the CVC
    engaged in studies and public consultations regarding the development of a
    trail system that would link existing and proposed trails on the Willoughby
    Property into the Bruce Trail. Around 1990, the CVC prepared the Willoughby
    Property Trail Integration Study, which proposed the creation of a trail now
    known as the Crows Nest Trail, which hikers would access from the driveway
    that leads to 100 Scott Street.

[8]

Subsequently, the OHT severed from the Willoughby Property the 3.59 acre
    parcel of land that is now 100 Scott Street, the appellants residence. The
    deed granting the easement of a right of way over the driveway to 100 Scott
    Street was executed by both the OHT as transferor, and Ms. Susan Imrie, the
    appellants predecessor in title and the first purchaser of 100 Scott Street,
    as transferee. The deed is registered on the title to 100 Scott Street.

[9]

The deed reads in part as follows:

1.

The Transferor grants the Transferee the free, uninterrupted and
    unobstructed right-of-way for the transferee and her guests, agents and
    contractors for ingress and egress and to enter, repair and maintain a gravel
    driveway

2.

The right-of-way hereby granted is declared to be on and in the lands
    described in Box 5 of Page 1 hereof, and to be for the benefit of the lands of
    the Transferee described also in Box 5 of Page 1.

3.

The Transferor covenants not to plant any trees or brush on the lands,
    and not to erect any buildings, structures and other man-made obstructions on
    the lands.

4.

The Transferor shall not be responsible for the maintenance and repair
    of the right-of-way.

5.

The Transferee covenants to fill in all excavations and to restore the
    surface to substantially the same condition as existed prior to the
    commencement of any activity of the Transferee authorized hereunder.

6.

The Transferee further covenants to save harmless and keep the
    Transferor indemnified from all claims, costs and damages which may arise by
    reason of any entry made upon or activity performed on the said lands by the
    transferee, her guests, agents and contractors.

7.

This easement and everything contained in it shall be binding upon,
    extend to and enure to the benefit of the parties hereto, as the case may be,
    and their respective heirs, administrators, successors and assigns.

[10]

Attached
    to the deed is a consent to the grant of right-of-way provided by the Ministry
    of Culture, Tourism and Recreation. The consent confirms that the grant was
    made in accordance with the policies and priorities for the conservation, protection
    and preservation of the heritage of Ontario, as required by the
Ontario
    Heritage Act
, R.S.O. 1990, c. O.18.

Issue 1: Interpretation of the deed of easement: use of
    extrinsic evidence

[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), 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.

[12]

The
    appellants argue that the wording of the deed is sufficiently clear and precise
    that no resort to the surrounding circumstances was warranted. The application
    judged erred, they argue, in considering external evidence to assist in the
    interpretation of the deed. The appellants particularly object to the
    application judges reliance on contractual negotiations leading up to Ms. Imries
    purchase of 100 Scott Street, evidenced in correspondence between Ms. Imrie and
    the OHT. The correspondence disclosed requests by Ms. Imrie first to purchase
    the driveway lands, and then in the alternative to acquire an exclusive
    easement. The OHT denied both requests. The appellants object to the use of
    private correspondence to interpret a registered instrument, on the basis that
    they were not privy to it, and had no means of knowing about it. They further
    object to evidence from Ms. Imrie and Mr. Gerald Hebert (the appellants
    immediate predecessor in title) as to their respective understandings of the
    scope of the easement, and to evidence from Ms. Imrie, Mr. Hebert, and the OHT
    as to historical use of the driveway by hikers.

[13]

The
    appellants did not object to the admission of any of this evidence at the
    hearing of the application. The extent to which the application judge made use
    of it, if he made use of any of it at all, is unclear. In any event, the
    exclusion of this evidence would not have assisted the appellants. To resolve
    the sole interpretive question the appellants identified  was the grant of the
    easement for the exclusive use of the appellants (or, as the appellants
    restated it on appeal, for the exclusive use of the appellants and the OHT but
    to the exclusion of the OHTs invitees)  no recourse to extrinsic evidence was
    needed. As the application judge held, the appellants position  that the deed
    conveyed a right to exclusive use of the right-of-way  is not supported on the
    clear language of the deed. That is sufficient to dispose of this aspect of the
    appeal.

[14]

The
    application judge found the language of the deed to be clear and unambiguous
    in that it makes no reference of a grant to the transferee of exclusive rights
    to this [right of way]. He concluded that the right of way was granted for
    the limited purpose of ingress and egress to the property at 100 Scott Street,
    which is not mutually exclusive from other uses or users of the [right of
    way]. He further noted that nothing in the deed operated to limit the OHTs
    fee simple interest in the right of way, other than the provision requiring it
    to provide a free, uninterrupted and unobstructed right-of-way to the owner of
    100 Scott Street.

[15]

The
    appellants position is that an owner of a fee simple interest who grants an
    easement over a right of way needs to expressly reserve the right to invite
    the public to use the right of way. The appellants acknowledge that they were
    aware at the time they purchased 100 Scott Street that they were only acquiring
    an easement and not the fee simple of the driveway lands.

[16]

This
    argument confuses the law governing easements created by express grant and
    easements created by reservation. If a vendor asserts an easement over land
    after transferring the title to that land to another person, the law recognizes
    that the vendor should use express language to reserve the easement: see
3021386
    Nova Scotia Ltd. v. Barrington (Municipality)
, 2015 NSCA 30, 357 N.S.R.
    (2d) 289, at para. 36. In this context, the law is reluctant to imply the
    reservation of an easement because this would undermine the principle that a
    vendor of land should not be able to derogate from the grant: see Bruce Ziff,
Principles
    of Property Law
, 6th ed (Toronto: Carswell, 2014), at p. 390. However, this
    principle does not apply in cases of express grant where the grantor retains
    title to the land subject to the easement because these policy rationales are
    absent. Instead, express grants should be construed according to general
    principles as to the interpretation of legal documents in the context of
    easements: Jonathan Gaunt QC & Hon. Mr. Justice Morgan,
Gale on
    Easements
, 20th ed (London: Sweet & Maxwell, 2017), at para. 3-12;
Fallowfield
,
    at para. 10.

[17]

The
    application judge accordingly made no error in rejecting this argument. It is a
    novel argument for which no authority was provided. The argument overstates the
    nature and extent of the easement conveyed by the deed. It is a
    well-established principle of construction that the grant of a private right of
    way ordinarily confers on the grantee only a right to the reasonable use of the
    way in common with others: see Gaunt & Morgan, at para. 13-06;
Weidelich
    v. de Koning
, 2014 ONCA 736, 122 O.R. (3d) 545, at para. 13, quoting
Clifford
    v. Hoare
(1874), L.R. 9 C.P. 362, at p. 371. The OHT, as the grantor,
    retains all of its rights as owner of the estate in fee simple, except to the
    extent that those rights are inconsistent with the rights of the grantee granted
    by the deed. Subject to what the deed expressly granted to the appellants, the
    OHT retains the right to use the lands as it sees fit and to invite others to
    use them: see Anne Warner La Forest, ed.,
Anger & Honsberger: Law of
    Real Property
, 3rd ed, (Toronto: Thomson Reuters Canada, 2006), Vol. 2 at
    para. 17:20.30(a);
Bibieffe International Holding B.V. v. York Region
    Condominium Corp. No. 838
, 2000 CarswellOnt 3374 (C.A.), at para. 4;
Przewieda
    v. Caughlin
, 2015 ONSC 3770, 58 R.P.R. (5th) 21, at para. 19;
Arpy-Ara
    Co. v. A.R. Manufacturers & Distributors Ltd.
, 2015 ONSC 425, 52
    R.P.R. (5th) 25, at para. 240.

Issue 2: Substantial interference

[18]

The
    second issue raised on appeal is whether the application judge erred in
    concluding that the OHT, by inviting the public to use the right-of-way,
    substantially interfered with the appellants easement for free,
    uninterrupted, and unobstructed use of the right of way for access to 100
    Scott Street.

[19]

Whether
    there has been a substantial interference with an easement is a question of
    fact, reversible only for palpable and overriding error:
Matthews et al. v.
    Township of Plympton
(1982), 37 O.R. (2d) 382 (S.C.), at p. 387, affd
    (1983), 42 O.R. (2d) 24 (C.A.);
Weidelich
, at para. 14. On this
    question, the evidence of historical use of the right-of-way is obviously relevant,
    as it provides a baseline to assist in determining what constitutes substantial
    interference.

[20]

The
    appellants have the burden of establishing substantial interference:
Weidelich
,
    at para. 12. The application judge concluded, on the evidentiary record before
    him, that the appellants had not met that burden. The appellants, as I explain
    below, have not identified any palpable and overriding error made by the
    application judge, and are essentially seeking to reargue the application. This
    aspect of the appeal must be dismissed.

[21]

The
    appellants referred to the following in support of their claim of substantial
    interference:

1.

3200 visitors walking along the right of way between 2013 and 2015;

2.

on occasions when the appellants encountered pedestrians on the right of
    way, the appellants were forced to slow or momentarily stop their vehicles so
    the pedestrians could move to one side and the vehicles safely pass;

3.

on some occasions, the presence of pedestrians impeded snow removal; and

4.

on six instances, unauthorized vehicles entered the right of way,
    including one instance in which a vehicle became stuck and blocked the
    appellants access until it could be towed away.

[22]

The
    application judge concluded that these occurrences were at most minor and
    infrequent and did not rise to the level of substantial interference.

[23]

With
    respect to the presence of pedestrians, the application judge held that:

At its highest, the interference with the applicants rights
    within the terms of the granted easement can be described as a minor and
    infrequent inconvenience, limited to times when they are entering or leaving
    their property and it does not in any way interfere with the reasonable use of
    the easement by the applicants.

[24]

The
    bare fact that there were 3200 instances of pedestrians using the driveway over
    a 22 month period does not go very far towards establishing interference with
    the appellants use, let alone substantial interference. The appellants did not
    provide any evidence as to the frequency of use, the size of groups, or the number
    of times the appellants encountered pedestrians. The two instances recounted by
    Ms. Raimondi where pedestrians were said to have interfered with the use of the
    right of way, were characterized by the application judge as a minor
    inconvenience. Although the appellants claimed to have video evidence in
    support of the claim of substantial interference, they did not produce it. The
    application judge was entitled to draw a negative inference from this decision,
    as he did.

[25]

With
    respect to the use of the right of way by vehicles, there was no evidence that
    the OHT permitted or condoned such use. To the contrary, the application judge
    found that the OHT prohibited unauthorized vehicles from making use of the
    right of way, with clear signage to that effect.

[26]

The
    appellants main argument on appeal is that the application judge erred by
    failing to give sufficient weight to the appellants safety concerns: that a
    safety hazard occasioned by the mere presence of hikers on the driveway
    constituted a substantial interference with the easement. The creation of a
    safety hazard, the appellants argue, is sufficient to establish substantial
    interference.

[27]

Again,
    the application judges findings of fact are a complete answer to this
    argument. It is not necessary to decide the question of whether, or in what
    circumstances, the existence of a safety hazard can amount to substantial
    interference. The application judges finding, on the preponderance of evidence
    before him, is that the use of the driveway by hikers had not created a safety
    hazard. The appellants have not identified a palpable and overriding error and
    have, essentially, invited this court to reweigh the evidence. But it is not
    the function of an appellate court to re-weigh the evidence or substitute its
    views on the evidence for those of the application judge:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 22-23.

Issue 3: Injunction claim against Nicola Ross

[28]

The
    appellants also appeal from the application judges refusal to grant a
    permanent injunction restraining Ms. Ross from publishing anything that states
    expressly or by implication that 100 Scott Street, the Appellants home, or the
    [right of way] is part of a public trail system, part of public lands or part
    of the Willoughby Property. As the application judge noted, this claim is
    founded upon the assertion that the [right of way] is a private driveway for
    the exclusive use and benefit of the [appellants]. That assertion, as the
    application judge concluded, is incorrect. Additionally, there was no evidence
    before the application judge that Ms. Ross had ever stated that 100 Scott
    Street is public property or otherwise encouraged anyone to trespass on it.

[29]

There
    was therefore no basis for an injunction enjoining Ms. Ross from publishing
    material stating that the driveway may be used by the public for the purpose of
    accessing public hiking trails. Accordingly, the application judge made no
    error in refusing to grant the injunction sought.

Issue 4: Costs below in favour of Ms. Ross

[30]

The
    appellants seek leave to appeal the costs award made in favour of Ms. Ross.
    Costs awards are highly discretionary, and a reviewing court is only entitled
    to set aside an award of costs on appeal if the judge made an error in
    principle or if the costs award is plainly wrong:
Hamilton v. Open Window
    Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. The appellants
    have not identified any error in principle that would entitle this court to
    interfere with the costs decision of the application judge. The application
    judge did not err in rejecting the argument that Ms. Ross needlessly expanded
    the litigation. The application put her personal and professional reputation in
    issue, as well as her livelihood as a writer, and necessitated a response. To respond
    to the allegations it was reasonable for Ms. Ross to address the appellants
    claims against the OHT. The application judge did not err in concluding that
    the resources Ms. Ross deployed were proportionate to the claims brought
    against her. I would dismiss the appeal against the costs order in favour of
    Ms. Ross.

DISPOSITION

[31]

I would dismiss the appeal and order costs payable to
    each of the OHT and Ms. Ross in the amount of $15,000, for a total of $30,000,
    inclusive of disbursements and taxes.

Released: SEP SEP 14 2018

B.W. Miller J.A.

I agree. S.E. Pepall
    J.A.

I agree. L.B.
    Roberts J.A.


