



COURT OF APPEAL FOR ONTARIO

CITATION: Markowski v. Verhey, 2020 ONCA 472

DATE: 20200722

DOCKET: C67709

Lauwers, Huscroft and Thorburn
    JJ.A.

BETWEEN

Beth Ann Markowski

Applicant (Appellant)

and

Dwayne David Verhey and Kathleen
    Anne Verhey

Respondents (Respondents)

Cara Valiquette, for the appellant Beth
    Ann Markowski

Amber Small and David Delagran, for the
    respondents Dwayne David Verhey and Kathleen Anne Verhey

Heard: in writing

On appeal from the order of Justice Thomas
    Wood of the Superior Court of Justice, dated November 6, 2019.

Thorburn J.A.
:


1.

OVERVIEW

[1]

The appellant, Beth Markowski, owns a cottage
    near Lake Waseosa. Her property is not directly on the waterfront but she has a
    right-of-way over a beach that leads to Lake Waseosa for all the usual
    purposes.

[2]

The respondents, Dwayne and Kathleen Verhey, own
    two adjoining lots, including the beach over which the appellant has a right-of-way.

[3]

The key issue on this appeal is whether the
    usual purposes entitles the appellant to bring boats across the right-of-way
    using a motor vehicle.

[4]

The appellant claims it does.

[5]

The respondents accept that the right-of-way
    allows the appellant to access Lake Waseosa for various activities such as
    swimming and boating but deny that she is allowed to bring boats to and from
    the shore using a motor vehicle. They take the position that the right to bring
    boats across is limited to small boats that can be portaged across the right-of-way.

[6]

In the originating proceedings, the appellant
    brought an application seeking a declaration about the extent of her rights pursuant
    to the right-of-way. The appellant claims she has a right to cross the beach as
    well as to use the beach for recreational purposes. She claims this includes
    the right to launch and retrieve watercraft using mechanical power as may be
    necessary. She challenges the portion of the application judges decision
    holding otherwise.

[7]

For the reasons that follow, the appeal is
    dismissed.

2.

THE PROPERTIES IN QUESTION

[8]

In 2016, the appellant bought a cottage lot
    described as Pt Lt 10 Con 12 Chaffey Part 2, RD999. Her lot is not on the waterfront.

[9]

In 1997, the respondents, Dwayne and Kathleen
    Verhey, bought two lots described as Pt Lt 10 Con 12 Chaffey, Parts 3 and 6,
    RD999. One of those lots, Part 6, is on the waterfront.

[10]

None of the parties to the appeal are parties to
    the original instruments that created the lots or the right-of-way in dispute.

[11]

Before 1969, Parts 2 through 6 formed part of a
    larger parcel of land that was acquired by Frederick Rhoads and used by members
    of the Rhoads family. The family built four cottages on the parcel and used the
    beach as a common recreational area.

[12]

In 1969, the parcel was formally subdivided into
    four cottage lots, an access road, and a beach lot over which the cottage lots
    had a right-of-way. Parts 2 and 3 are two of the cottage lots. Part 6 is the
    beach lot. The lots were conveyed to the Rhoads children in 1970; all but Dale
    Rhoads have since sold their lots.

[13]

All of the cottage lots, apart from Part 3, have
    a right-of-way over Part 6. The right-of-way was created in 1970 when the lots
    were conveyed to the Rhoads children. The deed to the appellants property contains
    a right-of-way for all the usual purposes, in, over, along and upon the waterfront
    property at Part 6.

[14]

The appellants lot (Part 2) and the
    respondents lots (Parts 3 and 6) are shown on the reference plan attached to
    these reasons as Appendix A.

3.

THE APPLICATION JUDGES DECISION

[15]

The application judge reviewed the meaning of
    the words the usual purposes in the right-of-way and the history of how the Rhoads
    family used what is now Part 6.

[16]

He noted that the historical uses of a right-of-way
    are informative, though not determinative, of the meaning to be attributed to the
    phrase the usual purposes. The application judge held that the phrase for
    all the usual purposes should be interpreted to refer to the purposes of the
    right of way not  the purposes to which Part 6 was being put at the time of
    the grant. Otherwise, the grant would confer an ownership interest in Part 6
    when what was conveyed was a right-of-way. He concluded that the uses must be
    those appurtenant to the easement, not the land itself. That is to say, the
    right to gain access to Lake Waseosa over Part 6.

[17]

The application judge then attempted to
    distinguish between the historic uses that would have required permission from the
    owner of the beach and those that were part of the right-of-way and therefore would
    not.

[18]

He found that launching and retrieving large
    boats was an activity that would have only been done with the express or
    implied permission of the owner of the beach and as family members, not as part
    of the right-of-way:

I  find that the daily use the owners of
    Parts 2, 4, and 5 made of their right to cross the beach included swimming, and
    its related activities such as building sand castles, and sunbathing and
    perhaps the use of canoes or kayaks. This was done without the express
    permission of Frederick when he was alive or Paul [Rhoads, who received title
    to Parts 3 and 6 after Fredericks death]. However other activities such as 
    launching and retrieving large boats  would have been extended family
    activities or extraordinary ones that would have been done with the permission
    of the owner of the beach lot. It was in this context that the grants of
    easement over Part 6 were made.

[19]

He therefore held that the right-of-way included
    the following uses as part of the usual purposes:

A. Regular access to Lake Waseosa for the
    purpose of swimming or related aquatic activities,

B. Use of that part of the beach directly
    adjacent to the swimming area during such activities,

(i) for childrens recreational activity.

(ii) temporary storage of towels, clothing,
    beach chairs etc. while the users of such items are present on the beach, and

C. Launch and retrieval of small craft capable
    of being carried or dragged across the beach without resort to mechanical
    power, but not the storage of such craft.

4.

THE APPELLANTS GROUNDS OF APPEAL

[20]

The appellants notice of appeal claims the
    application judge made palpable and overriding errors in Part C of his order by
    restricting the appellants right to bring boats across the right-of-way on
    Part 6 in the following ways:

a)

He limited ingress and egress to launch and retrieval of small
    craft capable of being carried or dragged across the beach without resort to
    mechanical power;

b)

He found that historical uses such as launching and retrieving large
    boats would have been extended family activities or extraordinary ones that
    would have been done with the permission of the owner of the beach lot;

c)

He limited ingress and egress to what amounts to pedestrian travel
     with no evidence to suggest a limitation to pedestrian travel or to
    pedestrian travel with small crafts that can be dragged or carried; and

d)

He limited ingress and egress to pedestrian travel notwithstanding
    uncontradicted evidence that the right-of-way included the launching of boats
    as of right.

[21]

The appellant claims the order unduly limits her
    use of the right-of-way to pedestrian traffic thereby rendering the basic right
    of ingress and egress almost useless.

[22]

In her factum, the appellant claims the
    application judge also erred in Parts A and B of his order by limiting the
    right to use of land based on inadequate language, such as childrens recreation
    rather than general recreation. This issue was not raised in the notice of appeal.
    The only relief sought in the notice of appeal is that the restriction in Part
    C be set aside in whole or in part.

[23]

Rules 61.08(2) and (3)
    of the
Rules of Civil Procedure
,
R.R.O.
    1990, Reg. 194,
read as follows:

(2) No grounds other than those
    stated in the notice of appeal or cross-appeal or supplementary notice may be
    relied on at the hearing, except with leave of the court hearing the appeal.

(3) No relief other than that sought
    in the notice of appeal or cross-appeal or supplementary notice may be sought
    at the hearing, except with the leave of the court hearing the appeal.

See also
Eton Construction Co. v. R.
(1996), 28 O.R. (3d) 321 (C.A.).

[24]

The notice of appeal addresses only Part C and
    the issue concerning the transportation of boats by motor vehicle across the
    right-of-way. Even after the issue was raised by the respondents, no leave was
    sought to raise the issues in Part A or B of the order. In any event, there was
    ample evidence to support the application judges findings in respect of the
    use of the right-of-way being restricted to swimming and related aquatic
    activities and bringing items onto the beach to engage in those activities.

[25]

As a result, the appellant is restricted to seeking
    the relief in her notice of appeal in respect of Part C of the application
    judges order.

5.

ANALYSIS OF THE ISSUE

[26]

A right-of-way created by express grant is an easement that allows
    the grantee and their successors in title to cross the grantors land for a purpose
    related to the better enjoyment of the grantees land: Anne La Forest,
Anger & Honsberger Law of Real Property
, loose-leaf,
    3rd ed. (Carswell, 2006), at §17:20.30(a).

[27]

The nature and extent
    of a right-of-way depends on the proper construction of the language of the
    instrument creating it:
Canadian Pacific Ltd. v.
    Paul
, [1988] 2 S.C.R.
    654, at p. 671.

(1)

The Words in a Grant

[28]

The first step in determining the rights that form part of a right-of-way
    is to interpret the grant according to the intention of the parties based on the
    words themselves:
Fallowfield v. Bourgault

(2003), 68 O.R.
    (3d) 417 (C.A.),

at para. 10
;

Smith
    v. Morris
, [1935] 2 D.L.R. 780 (Ont. C.A.), at p. 782.

[29]

The grant of an express
    easement may also include ancillary rights provided they are reasonably
    necessary to use or enjoy the right-of-way. However, to imply a right ancillary
    to a right-of-way, the right must be necessary for the use or enjoyment of the
    easement, not just convenient or even reasonable:
Fallowfield
, at para. 11.

[30]

In
Boone v. Brindley
(
2003), 179 O.A.C. 50 (C.A.), at para. 2,
this court held that to determine what is reasonably necessary to
    the enjoyment of a right-of-way, one should also look at:

the language of the conveyance creating the
    easement, the purpose and circumstances surrounding the creation of the right
    of way, the history of its development and the circumstances of its use
.

[31]

The grant of a right-of-way in this case reads
    as follows:

TOGETHER WITH A RIGHT OF WAY, in common with
    all others entitled thereto,
for all the usual purposes
, in, over, along
    and upon ALL THOSE PARTS of Broken Lot 10 in Concession 12 of the said Township
    of Chaffey, designated Parts 1 and 6 on a plan of survey on deposit in the
    Registry Office for the Registry Division of the District of Muskoka as RD-999.
    [Emphasis added.]

(2)

Determining the Purpose of the Grant of the
    Right-of-Way by Examining the Historic
Use and
    Circumstances

[32]

Where the words in the
    grant of the right-of-way are unclear, the historic use and circumstances
    surrounding the use of the property subject to the easement are particularly
    important to understand the nature and extent of the rights conveyed:
Square-Boy Limited v. The City of Toronto
, 2017 ONSC 7178, at para. 33;
Laurie v. Winch
,
    [1953] 1 S.C.R. 49, at p. 56.

[33]

As in this case, the court in
Square-Boy Limited
was asked to
    interpret the meaning of the words 
right-of-way in,
    over, along and upon the lands herein described  for all purposes.
Sanfilippo
    J. did a thoughtful and comprehensive analysis of the interpretation of the
    meaning and purpose of such a right-of-way.

[34]

In
Square-Boy
, the right-of-way covered a former parking lot Square-Boy sold to
    the City of Toronto that had previously been used to access Square-Boys
    premises.

[35]

Sanfilippo J., like the application judge in
    this case,
referred to the purposes of the right-of-way,
    not the purposes to which the property was being put at the time of the grant.
Sanfilippo J. held that:

The parties disagree about the meaning of the
    term 
for all purposes
. The parties submit that the phrase 
for
    all purposes
 can mean one of two things: (i) for
all the purposes
for which the City Property was used at the time the easement was granted in
    1971, as is submitted by Square-Boy; or (ii) for
all the purposes
related to a right-of-way which, in the Citys submission, does not include a
    right to park but rather includes only a right to pass over to gain access or
    egress, otherwise known as a right to pass and repass.

I do not accept Square-Boys submission on
    this point, as to do so would entitle Square-Boy to all the vestiges of
    ownership that it enjoyed over the Front Parking Lot before it became the City
    Property. This cannot be the case.
Even a robust right-of-way does not
    provide rights that are tantamount to ownership.

Rather, I accept the Citys submission to the
    extent that 
for all purposes
 was intended to describe the Right-of-Way which always remains a
    right-of-way
. I find, however, that
the term 
for all purposes
 means that the
    Right-of-Way is to be interpreted in a manner that includes all of the purposes
    for which it was agreed upon, created and granted to encompass which, in the
    context of this case, includes the right to permit parking to access commercial
    premises of the Property
. [Emphasis added.]

[36]

In this case, the
    appellant also brought an application seeking a ruling in respect of the
    meaning of the words for all the usual purposes in the right-of-way.

[37]

T
he parties agree that the application judge properly construed the phrase
    all the usual purposes in the right-of-way to permit access to Lake Waseosa
    for various activities such as swimming and boating.

[38]

The application judge accepted that Ernest
    Norton made an informal arrangement with his friend Frederick Rhoads under
    which Frederick Rhoads acquired the property without taking title. Frederick Rhoads
    and his children built four cottages on the parcel. These cottages are located
    on what are now Parts 2, 3, 4, and 5 in Appendix A.

[39]

After Ernest Norton died, his son William
    subdivided the lots and transferred the lots to Frederick Rhoads children in
    accordance with Frederick Rhoads wishes. The deeds to Parts 2, 4, and 5 all
    came with a right-of-way over Part 6.

[40]

In support of her
    application, the appellant included two affidavits from Dale Rhoads, the son of
    Frederick Rhoads and owner of Part 4, that described the historical uses of the
    beach on Part 6.

[41]

In his first affidavit,
    Dale Rhoads described the use of the beach by his family members as follows:

The beach was the gathering spot for all to
    recreate together. We swam, built sand castles, sunbathed, launched our boats,
had
bonfires, etc. The extended Rhoads
    family have many memories of the wonderful times we spent together at our
    family compound.

[42]

He went on to say that
    the beach was created for, and used by the entire family.

[43]

While Dale Rhoads referred
    to launching their family boats, he offered no description of the boats
    launched, or how they were launched.

He did not say whether family members
    required Frederick's permission to do so. Moreover, the appellant provided no
    evidence of the use of motor vehicles to cross the right-of-way to launch large
    boats at the time of the grant.

[44]

The respondents note that over time, the various
    lots surrounding Part 6, except for Part 4, were sold to third parties
    unrelated to the Rhoads family. The respondents purchased Parts 3 and 6 on
    March 5, 1997 from Frederick Rhoads youngest child, and the appellant
    purchased Part 2 on January 20, 2016 from a third party, with a right-of-way over
    Part 6.

[45]

The respondents produced a letter written
    on May 24, 1997, just after they purchased Parts 3 and 6. The letter was sent
    to the prior owner of the appellants lot advising that there was a chain
    across the right-of-way on Part 6 that was locked. In the letter, Dwayne Verhey
    said:

Dale Rhoads  advises that [the chain] is
    there to prevent the public from launching [and] retrieving boats from the
    beach. He explained that this has been a problem in the past, causing damage [and]
    erosion due to spinning tires in the sand by inadequate tow vehicles.

[46]

This letter is evidence that the
    restriction on vehicular access existed before the respondents purchased Parts
    3 and 6. Their only predecessor on title owned the property since 1970 when the
    right-of-way was granted until the respondents purchased the lots.

[47]

It appears that their predecessor
    on title exercised control over the beach to restrict vehicles from crossing by
    placing a chain and lock over the passage. This suggests that this restriction
    is not inconsistent with the right-of-way granted to him.

[48]

Neither the appellant nor her
    affiant Dale Rhoads disputed the existence of the lock and chain or the stated reasons
    for putting them across the road.

[49]

The statement in the letter that
    the former owners of Part 2 could be provided a key or cut the chain is
    evidence of permission in 1997, not a grant pursuant to the right-of-way.

[50]

I note that there is no
    such restriction discussed in respect of pedestrian traffic.

[51]

Accordingly, there was uncontradicted evidence
    upon which the application judge was entitled to rely, that there were
    restrictions on the right to bring motor vehicles across the right-of-way by
    the owner of the right-of-way at the time of the grant in 1970 but no such
    restriction preventing pedestrian traffic.

[52]

Thus, while some family members might have been
    involved in launching and retrieving large boats, the uncontradicted evidence
    in the letter suggests this would have been done with the permission of the
    owner of the beach lot not as a right flowing from the grant of the right-of-way.

(3)

Conclusion

[53]

The standard of review to
    be applied to the application judges findings of fact and mixed fact and law is
    one of
palpable and overriding
    error. Findings of fact and inferences from those facts should not be disturbed
    unless they are clearly wrong, unreasonable, or unsupported by the evidence:

Housen v. Nikolaisen
, 2002 SCC 33,

[2002] 2 S.C.R. 235,
    at paras. 23, 26, and 36.

[54]

An easement
    for all the usual purposes is not an ownership right. It is a right to use
    the property in the way agreed to by the grantor.
Any included ancillary rights must be reasonably
    necessary to use the right-of-way:
Fallowfield
,
at para. 11
.

(a)

Whether the Application Judges Reasons Preclude
    Meaningful Appellate Review

[55]

I do not
    accept the appellants submission that the application judges reasons preclude
    meaningful appellate review. The application judge correctly articulated the
    law in respect of rights-of-way. He then applied the law to the facts and
    considered the language of the conveyance creating the right-of-way and history
    of use, to determine the purpose of the grant of the right-of-way and intention
    of the grantor.

[56]

The application judge
    accepted that Frederick Rhoads intended to grant a right-of-way to provide
    regular access to Lake Waseosa to allow the owners of Part 2 to swim and engage
    in related aquatic activities. He also held that the right-of-way includes the
    right to transport small boats by foot over the property. However, he held that
    the right-of-way does not include allowing the owners of Part 2 to drive motor
    vehicles across Part 6 to tow their boats to and from the water.

(b)

Whether the Application Judge Made Palpable or
    Overriding Errors

[57]

Nor did the application
    judge make any palpable or overriding errors in his decision.

[58]

The appellant had the
    onus of proof but adduced no evidence to support her assertion that the
    easement includes a right to bring motorized vehicles across the right-of-way to
    transport boats.

[59]

Dale Rhoads affidavits
    in support of the appellants application does not state that the grantor
    intended to allow motor vehicles to cross the right-of-way to tow boats to
    water. The appellant acknowledges that [t]here is nothing specific about boat
    size or type in any evidence but states that the reasonable inference was that
    all types of boating should be permitted under the right-of-way. Contrary to
    the appellants assertion, the fact that the application judge may have been
    able to draw different inferences from the evidence does not show a palpable
    and overriding error in his decision.

[60]

Moreover, there was uncontradicted
    evidence before the application judge that a chain with a lock was put over the
    right-of-way by the owner who had owned the property from the time of the grant.
    No evidence was offered to respond to and/or refute that evidence or the
    assertion that this was done to restrict access over the right-of-way by
    motorized vehicles as there was a concern that they were causing damage to the beach.

[61]

The letter in which the
    former owners of the appellants property were told they could obtain a key to
    unlock the chain or take it down, is evidence of permission given to a party in
    1997, not a right intended to be bestowed by the grantor or a right flowing
    from the grant of the right-of-way.

[62]

While the application judge did not explicitly
    refer to the respondents 1997 letter, there was uncontradicted evidence in the
    letter to support his conclusion that there were restrictions on motor vehicles
    driving over the right-of-way on the beach at the time the first grantee owned
    the property.

[63]

Finally, I do not
    accept that the application judge erred by caus[ing] the right of way to be
    limited to pedestrian traffic only without any argument to that effect being
    raised by the parties. The application judge was not asked to, nor did he, rule
    broadly on the means by which the appellant may travel across the right-of-way.
    He properly restricted himself to the issue raised in the notice of application
     whether the right-of-way included the use of Part 6 as a beach for
    recreational purposes. He accepted that one of these recreational purposes was
    launching boats but restricted the right to launch large boats that needed to
    be towed using a motor vehicle.

[64]

Deference is owed to
    the decision of the application judge and there is evidence to support his
    conclusion that the easement was granted to enable the owners of Part 2 ingress
    and egress, to engage in swimming and other related activities, to transport
    boats by foot to and from the water, but not to bring motorized vehicles over
    the land to transport boats to and from the lake.

6.

DISPOSITION

[65]

For these
    reasons, the appeal is dismissed.

[66]

On the agreement of the respondents, the order
    is amended to correct a typographical error in the reference from the easement
    over
Part 2
Plan RD-999 to the easement over Part 6 Plan RD-999.

[67]

As the successful party
    on appeal, the respondents may serve and file brief costs submissions of no
    more than 5 pages within 10 days of this judgment being released. The appellant
    may serve and file her submissions within 10 days of receipt of the respondents
    submissions.

Released: July 22, 2020 (P.L)

J.A.
    Thorburn J.A.

I
    agree. P. Lauwers J.A.

I
    agree. Grant Huscroft J.A.


APPENDIX
    A



