



COURT OF APPEAL FOR ONTARIO

CITATION:
Kendrick v. Martin, 2012
    ONCA 711

DATE: 20121024

DOCKET: C54655

OConnor A.C.J.O., Goudge and Juriansz JJ.A.

BETWEEN

Harold Winston Kendrick and Fran Van der Heide

Plaintiffs (Respondents)

and

Elvin B. Martin and Gail Veitch

Defendants (Appellants)

John D. Goudy, for the appellants

John Gilbert and Ross McLean, for the respondents

Heard: October 11, 2012

On appeal from the judgment of Justice A.D.K. MacKenzie
    of the Superior Court of Justice, dated October 24, 2011.

Goudge
    J.A.:

[1]

The appellants are the owners of a fifty-acre parcel of land in Bruce
    County that is near but does not abut Chesley Lake. The conveyance by which
    they acquired the property granted a registered right of way over lands owned
    in trust by the respondents. This easement ran from the appellants property
    across the respondents property to the edge of Chesley Lake.

[2]

The bed of Chesley Lake is Crown land and is controlled by the local
    Conservation Authority. After obtaining the necessary permit from the
    Conservation Authority, the appellants built a pole dock on the bed of Chesley
    Lake at the waters edge where the right of way ends. A set of retractable
    steps is attached to the inner end of the dock. It is not attached to the land
    but can be lowered to the shore to permit access from the right of way.

[3]

The respondents commenced this action against the appellants, raising a
    number of issues that divided the parties. By the time of trial, all but one
    had been settled. That issue was the scope of the right of way granted to the
    appellants in the instrument that conveyed the property to them, particularly
    as it relates to their use of the pole dock. The respondents took the position
    that this use was beyond the scope of the right of way.

[4]

The trial judge agreed with the respondents. He issued an order
    restraining the appellants from using the pole dock and a declaration that
    their use of the right of way did not include access from the shoreline to the
    pole dock, but was limited to the particular purpose of providing access to
    Chesley Lake for persons, animals and vehicles.

[5]

The trial judge found no facts to be relevant to his interpretation of
    the words in the conveyance by which the right of way was created. He found the
    words themselves to be determining: Together with a right of way for persons,
    animals and vehicles over the respondents lands.

[6]

First, the trial judge found that these words in their ordinary meaning
    created a right of way for a particular purpose, not a general right of way:

These words in their ordinary meaning intend the use of the
    right of way to be for a particular purpose, i.e. access to Chesley Lake for
    persons, animals and vehicles: i.e. in the broadest sense, a right of way for
    agricultural purposes.

The specifically or particularity of the purpose stipulate in
    the words of the grant prevents the right of way in the Easement from being
    interpreted as a general right of way: the words are unambiguous.

[7]

Second, the trial judge then concluded that the appellants use of the
    right of way to access the pole dock is ...an excessive and overburdening use
    by them of the right of way and easement. He found that the easement does not
    include access to the pole dock to the shoreline.

[8]

The appellants argue that the trial judge erred in reaching both these
    conclusions.

[9]

I agree.

[10]

The
    trial judge relies entirely on the wording of the grant of easement in
    determining its meaning. His conclusion that the words intended a particular
    use, namely for agricultural purposes in the broadest sense, thus is reviewable
    on a standard of correctness. See
The Plan Group v. Bell Canada
,
    [2009] 96 O.R. (3d) 81 (Ont. C.A.).

[11]

In
    my view, the words of the grant of easement are not confined to a particular
    use as the trial judge suggested. Indeed the respondents concede that the right
    of way is not confined to agricultural use. The grant is of a right of way that
    is unlimited by words confining the use that persons entitled to use it may make
    of it. The general use thus provided is made available to persons and animals
    and vehicles. The latter speaks not to the use, but to the users.

[12]

Moreover,
    I cannot agree that accessing the pole dock from the shoreline where the right
    of way ends constitutes an overburdening use of that right of way. What the
    user does immediately after leaving the right of way cannot be said to affect
    the use made of the right of way at all. Accessing the dock does not extend the
    right of way beyond the shoreline. This is so regardless of the proper
    interpretation of the use provided by the grant of right of way.

[13]

In
    the result, I would allow the appeal, set aside paragraphs one, two and three
    of the order below and substitute an order dismissing the respondents claims for
    this relief. While I would not alter the costs order at trial, I would allow
    the appellants partial indemnity costs of the appeal, fixed at $10,000 in
    total.

Released: October 24, 2012 (D.OC.)

S.T. Goudge J.A.

I agree. D. OConnor
    A.C.J.O.

I agree. R.G. Juriansz J.A.


