



COURT OF APPEAL FOR ONTARIO

CITATION: Law v. Cedar Ridge Waterfront Park Corporation,
    2018 ONCA 204

DATE: 20180301

DOCKET: C64145

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

Simon Stuart Law, Julia Lorraine Law, Olga
    Lapshin, John Lackner and Teresa Lackner

Applicants (Respondents)

and

Cedar Ridge Waterfront Park Corporation

Respondent (Appellant)

Scott R. Fairley and Joshua Valler, for the appellant

Brendan Y. B. Wong and Graham Splawski, for the
    respondents

Heard and released orally:  February 22, 2018

On appeal from the judgment of Justice Barbara A. Conway
    of the Superior Court of Justice, dated July 4, 2017.

REASONS FOR DECISION

[1]

We are satisfied that this appeal must succeed. In her reasons, the
    motion judge said the following:

I am satisfied there was a common intention of Mr. Blair [the
    owner] and the purchasers of the Ridge Lots that they would, through their
    membership in CRRC, have access to the water.

[2]

She also said:

Membership in the CRRC was the means by which they were to have
    access to the water which the basis on which they acquired their properties.

[3]

We accept those observations as well-founded on the record. With
    respect, however, they fail to come to grips with the nature of the right of
    access. Was it contractual or was it by way of a right in the land purchased?
    In our view, the documents reviewed and signed at closing establish that the
    right was contractual. The respondents right to access to the waterfront was
    one of a bundle of rights and obligations created by way of a contract between
    the club (CRRC) and lot purchasers like the respondent.

[4]

In coming to our conclusion that the right of access is contractual, and
    not the basis upon which an easement could be found, we make the following
    observations:

·

The property owner was required to assign to any subsequent
    purchaser membership in the club and, hence, the right to access to the
    waterfront sale. This requirement is inconsistent with the existence of an
    easement over the land;

·

The property owner had to be a member in good standing of the
    club to exercise the rights of membership, including access to the waterfront;
    and

·

Nowhere in the relevant documentation are there any of the normal
indicia
of an easement such as a metes and bounds description of the
    purported easement, or of a description of the nature of the uses to which the
    easement was subject.

[5]

In our view, the above observations are equally determinative of the
    argument that there was an easement by
estoppel
. As the rights are
    clearly contractual, they cannot be converted into rights that run with the
    land through the mechanism of an easement by
estoppel
.

[6]

The appeal is allowed. We award costs of the appeal in the amount of
    $20,000, inclusive of disbursements and relevant taxes, and costs in the court
    below in the amount of $25,000, inclusive of disbursements and relevant taxes
    for a total amount of $45,000.

Doherty J.A.

J. MacFarland J.A.

D.M. Paciocco J.A.




