



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:


Duncan 
          v. Sherman,







2006 
          BCCA 14



Date: 20060112





Docket: CA033034

Between:

Wayne 
    Duncan

Respondent

(Petitioner)

And

Dawn 
    Sherman

Appellant

(Respondent)

And

Wayne 
    Osborne (
aka
Wayne Robinson)

Appellant

(Respondent)












Before:


The 
          Honourable Mr. Justice Donald




The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Levine








Wayne 
          and Dawn Osborne


Appearing In Person




P.W. 
          Avis


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




December 15, 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 12, 2006








Written 
          Reasons by
:




The 
          Honourable Madam Justice Levine




Concurred 
          in by:




The 
          Honourable Mr. Justice Donald

The 
          Honourable Madam Justice Newbury





Reasons for Judgment of the Honourable Madam Justice 
    Levine:


[1]


This appeal 
    concerns a dispute about the use of an easement.


[2]


The appellants 
    purchased their property, referred to as Lot A, from the respondent. The 
    respondent created Lot A when he subdivided a larger parcel, retaining Lot 
    B for himself. At the time of subdivision, the respondent created an easement 
    over Lot
A
, in favour of the owner of Lot B. The 
    easement provided for access to Lot B, in these terms:

1.

GRANT OF EASEMENT OVER LOT A

1.1

The Lot A Owner, as the registered owner 
    of Lot A, grants to the Lot B Owner, as the registered owner of Lot B, for 
    the benefit of and to be appurtenant to Lot B, for the use and enjoyment of 
    the Lot B Owner at any time and from time to time, the non-exclusive right, 
    liberty and easement to enter on, go across, pass and
repass
over and through, with or without motor vehicles, the Lot A Easement Area 
    for the purposes of obtaining access to and egress from Lot B.


[3]


The boundary 
    between Lots A and B, and the easement, extend west to east, following an 
    existing road. Lot A is situated to the north of and above Lot B. It looks 
    over Lot B and the road.

The appellants 
    evidence was that when they purchased the property, they were concerned about 
    the use of the easement by the respondent and preserving their view. They 
    say that, through their common real estate agent, they negotiated the access 
    to the easement and the manner in which it would be fenced.


[4]


The contract 
    of purchase and sale of Lot
A
included an Addendum, 
    prepared by the real estate agent. The Addendum consisted of a copy of the 
    Reference Plan of the Easement as registered in the Land Title Office, on 
    which certain handwritten markings had been made.


[5]


A copy of 
    the Addendum is attached.

The numbers 
    1, 2, 3, 4 were not on the Addendum included in the contract of purchase 
    and sale; they were added by the appellants for the purposes of reference 
    at the hearing of the appeal. The numbers provide convenient markers to describe 
    the context of the dispute.


[6]


The important 
    handwritten markings on the Addendum are the following:



at
the top of the document:

Addendum 
     Page 6 to contract between Wayne Duncan (seller) and Dawn Sherman (buyer) 
    dated January 20, 2004



below
the drawing of the easement:

Buyer 
    and seller agree to a 50%/50% sharing of the costs of fencing from Spider 
    Lake Road to the line jog (as indicated) by the ponds with post and wire fencing 
    with 2 gates (as indicated).
Fencing to be constructed on 
    the south side (Lot B side) of the existing driveway.



along
the path of the easement:



at
the west: 
    an arrow and the note gate (approx.). (The number 1 is at an existing 
    access to Lot B. The appellants wanted the existing access moved to the location 
    indicated by the arrow, which I will refer to as gate 1 for the purposes 
    of these reasons for judgment.)



at
number 3, 
    about four-fifths of the way between the western and eastern boundaries of 
    the easement: an arrow and the note gate (approx.) (referred to as gate 
    3 for these purposes).



at
number 4, 
    the eastern boundary of the easement: an arrow and the note end of jointly 
    paid fencing, followed by an asterisk. Below that note
is
another asterisk, and the note: Fencing = 6 high deer 
    and rabbit wire fencing.


[7]


The issue 
    on the appeal is the proper interpretation and application of the Addendum.

The respondent took the view, which was accepted by the chambers judge, 
    that the Addendum was an agreement for sharing the cost of fencing the boundary 
    of the easement.

The appellants say that the Addendum also 
    limited the respondent to two access points (at gates 1 and 3) from Lot B 
    to the easement (and the road) and specified the type of fence that the respondent 
    could build.


[8]


The dispute 
    arose when the respondent built an eight-foot high solid cedar fence along 
    the southern boundary of the easement, extending from about halfway between 
    the western and eastern ends of the easement to the eastern end. The fence 
    included gate 3. This is not in dispute. At the western end of the fence (number 
    2 on the attached Addendum), however, the respondent built an entrance (referred 
    to for these purposes as gate 2) for a circular driveway. The appellants 
    object to the solid cedar fence and to gate 2, maintaining that neither is 
    provided for in the Addendum.


[9]


After some 
    verbal exchanges between the parties concerning the location of gate 2, the 
    appellants blocked the respondents access to his property at gate 2 by digging 
    a trench and parking a tractor there. Respondents counsel wrote to the appellants 
    stating that: Our client has the right to enter on to the easement area at 
    any point along the easement area where his property line interfaces with 
    the easement area. The appellants replied, stating their disagreement with 
    that interpretation of the easement and that the respondent was entitled 
    to reasonable access, and claiming that the Addendum provided for fence 
    construction and gate placements.



[10]


The respondent 
    filed a petition in Supreme Court, claiming the following relief:

1.

The Petitioner has the unrestricted right 
    of access at any time to come and go, with or without motor vehicle, over 
    any part of the Lot A easement area as described in that certain easement 
    agreement registered in the Land Title Office at Victoria on the 31st day 
    of January, 2002 under no: ET011673; (the "Easement")

2.

For a declaration that the Petitioner 
    is entitled to enter on the easement area from the lands described as Lot 
    B, Block 360, Newcastle District, Plan VIP73306, hereinafter referred to as 
    "Lot B" at all points along the common boundary between Lot B and 
    the Easement;

3.

It is unlawful for the Respondents to 
    restrict, limit or otherwise interfere with the Petitioner's access to the 
    easement area at any point along the common boundary between Lot B and the 
    Easement;


[11]


The chambers 
    judge referred to
Lewis v.
Wakeling
(1923), 54 O.L.R. 647 (Ont. C.A.), cited by the appellants for the principle 
    that a grantee of an easement could not expect to have the right [of] access 
    along the whole unfenced line, as was sought in that case, but only that he 
    might have reasonable access to his property, and to
Dainow
v.
Tait
, 2003 BCSC 1040, for that view, 
    in a more contemporary context.

Interpreting 
    the Addendum as providing only for sharing the cost of the fencing, the chambers 
    judge concluded that [t]he creation of the two accesses to Lot B over some 
    236 metres of the easement areadoes not constitute an unreasonable use of 
    the easement rights.


The chambers judge granted the relief sought 
    in the petition.


[12]


The respondent 
    concedes that the relief sought and granted by the chambers judge is overly 
    broad.

It goes far beyond what the 
    chambers judge found was reasonable access to the easement.

For that reason alone, the appeal must be allowed 
    and the order varied.


[13]


The crux of 
    the appeal, however, is the interpretation of the Addendum. In my opinion, 
    the Addendum was not only an agreement for the shared cost of fencing the 
    easement. The notations of gate locations and the type of fence to be constructed 
    are as much a part of the content of the Addendum, and therefore of the contract 
    of purchase and sale of which it formed a part, as are the terms relating 
    to sharing the cost of fencing.


[14]


A contract 
    is to be interpreted by giving effect to all of its words: see
Marquest
Industries Ltd. v. Willows Poultry 
    Farms Ltd.
(1968), 1 D.L.R. (3d) 513 at 517-518, 527 (B.C.C.A.), and
Langley Lo-Cost Builders v. 474835 B.C. Ltd.
(2000), 76 B.C.L.R. 
    (3d) 278, 2000 BCCA 365 at
paras
. 39-41. In
Langley
,
McEachern
C.J.B.C (as he then was) summarized the 
    canons of construction of commercial agreements, quoting from
Marquest
, as follows:

[39]

Probably the leading case 
    in this province is
Marquest
Industries Ltd. v. Willows Poultry Farms Ltd.
(1968), 1 D.L.R. (3d) 
    513 (B.C.C.A.) at 517-518, where Bull J.A. wrote:

The 
    primary rule of construction has been expressed by the maxim,
ut

res

magis

valeat

quam

pereat
or as paraphrased in English, "a 
    deed shall never be void where the words may be applied to any extent to make 
    it good". The maxim has been basic to such authoritative decisions as
Scammell
v.
Ouston
, 
    [1941] 1 All E.R. 14;

Wells v. 
    Blain
, [1927] 1 D.L.R. 687, [1927] 1 W.W.R. 223;
Ottawa Electric 
    Co. v. St. Jacques
(1902), 31 S.C.R. 636, as well as many others, 
    which establish that every effort should be made by a Court to find a meaning, 
    looking at substance and not mere form, and that difficulties in interpretation 
    do not make a clause bad as not being capable of interpretation, so long as 
    a definite meaning can properly be extracted.

In other words, every clause in a contract must, if possible, be 
    given effect to
. Also, as stated as early as 1868 in
Gwyn
v.
Neath
Canal Navigation Co.
(1868), L.R. 
    3 Ex. 209, that if the real intentions of the parties can be collected from 
    the language within the four corners of the instrument, the Court must give 
    effect to such intentions by supplying anything necessarily to be inferred 
    and rejecting whatever is repugnant to such real intentions so ascertained.

[40]

It must be mentioned, however, 
    that at p. 527 Bull J.A. limited the generality of the above dictum when he 
    said:

...
if
I can possibly derive a sensible meaning from 
    the clause I must do so
.

At the 
    same time I must not develop from the words of the clause (read in their context) 
    any conception more elaborate than they express or fairly imply; nor must 
    I develop something which is at variance with any of the language of the clause.

As Denning, L.J., said in
Anglo-Saxon Petroleum Co. Ltd. v.
Adamastos
Shipping Co. Ltd.
, [1957] 2 Q.B. 233 at p. 269:

If 
    we reject the contradictions, inconsistencies and incongruities, and put something 
    in their stead, we shall be making for the parties a contract which we may 
    think is reasonable but to which they have never subscribed, because it would 
    bear no relation to the written words.


In 
    the same case in the House of Lords, [1959] A.C. 133, Viscount
Simonds
said at p. 158:

No 
    doubt there are rules or canons of construction applicable to careless and 
    slovenly, as to other, documents.

I 
    have tried to apply them, resolute, on the one hand,
to construe commercial 
    agreements broadly and not to be astute to find defects in them or reject 
    them as meaningless
and, on the other, not to make a contract for the 
    parties which they have not thought fit to make for themselves.

Nor have I forgotten that it is only by sufficiently 
    clear words that an exception to an obligation (whether arising at common 
    law or under the contract itself) can be established:

More 
    than one of the learned Lords there referred to this language of Lord Wright 
    in
Hillas
& Co. Ltd. v. 
    Arcos Ltd.
(1932), 147 L.T. 503 at p. 514:

That 
    maxim, however, does not mean that the court is to make a contract for the 
    parties, or to go outside the words they have used, except in so far as there 
    are appropriate implications of law, as for instance, the implication of what 
    is just and reasonable to be ascertained by the court as matter of machinery 
    where the contractual intention is clear but the contract is silent on some 
    detail.

[41]

I think what Bull J.A. 
    said, as last quoted above, fairly represents what the Supreme Court of Canada 
    said in
Murphy v.
McSorley
, [1929] 
    4 D.L.R. 247.

Thus, I must be careful 
    not to add anything that cannot fairly be inferred from the words of the May 
    agreement but at the same time,
I must try to give commercial validity 
    to a business arrangement if it is fair and reasonable to do so upon the application 
    of the rules relating to the construction of agreements
.

[My underlining.]


[15]


In this case, 
    if the notations on the Addendum of the gate placements and type of fence 
    are not given effect, the Addendum is robbed of any substantive meaning.

As noted by the chambers judge, s. 3 of the
Trespass Act
, 
    R.S.B.C. 1996, c. 462, provides for the equal sharing of the cost of fencing 
    boundaries in any event. The Addendum was not required for that purpose.

It would not give effect to the parties intentions to interpret the 
    Addendum in a manner that ignores some of the words used.


[16]


The respondent 
    does not dispute that the Addendum was included in the contract of purchase 
    and sale, but takes the position that the Addendum has no contractual effect 
    because he did not communicate directly with either of the appellants.

That argument may be easily dealt with, again 
    by quoting from
Langley
, at
paras
. 
    18-20:

[18]

One of the leading cases is
Smith v. 
    Hughes
(1871), L.R. 6 Q.B. 597 at 607, where Blackburn J. wrote:

If 
    whatever a man's real intention may be, he so conducts himself that a reasonable 
    man would believe that he was assenting to the terms proposed by the other 
    part, and that other party upon that belief enters into the contract with 
    him, the man thus conducting himself would be equally bound as if he had intended 
    to agree to the other party's terms.

[19]

This dictum is often quoted as authority 
    for the proposition succinctly stated by
McLachlin
J. (now C.J.C) in
Osorio v. Cardona
(1984), 15 D.L.R. (4th) 
    619 that, "The test for intention to create legal relations is objective."  It 
    is stated in S.M.
Waddams
,
The
Law of Contracts, 4th ed.
(Toronto: Canada Law Book Inc., 1999), at 
    106 that "it is not what the signer inwardly intends but what he appears 
    to a reasonable
promisee
to do that is relevant."

[20]

There is very little authority
about
the basis upon which intention to contract should be 
    found.  In
Tilden Rent-A-Car Co. v.
Clendenning
(1978), 83 D.L.R. (3d) 400 (Ont. C.A.), it was suggested at 405, that a person 
    "who attaches his signature to the contract intends by doing so to acknowledge 
    his acquiescence to its terms, and that the other party entered into the contract 
    upon that belief."  In A.G. Guest, ed.,
Chitty on Contracts, 
    27th ed.
(London: Sweet and Maxwell, 1994), it is noted at 152 that 
    in normal commercial transactions, where the intention to be contractually 
    bound is at issue, the onus of proving that such an intention did not exist 
    "is on the party who asserts that no legal effect is intended, and the 
    onus is a heavy one":
Edwards v. Skyways Ltd.
, 
    [1964] 1 W.L.R. 349.  Those, however, were cases where the form 
    of the documentation was clearly contractual.


[17]


Thus, on the 
    proper interpretation of the Addendum, the respondent agreed to access the 
    easement from two locations along its length.

The entrance to his circular driveway at gate 
    2 was not provided for, and it would be contrary to the agreement between 
    the parties to allow him to maintain it. Further, as a matter of law, as noted 
    by the chambers judge,
Lewis v.
Wakeling
(in which the Ontario Court of Appeal relied on the principles articulated 
    by the English Court of Appeal in
Pettey
v. Parsons
, [1914] 2 Ch. 653), is authority for the principle that 
    a grantee of an easement is entitled to reasonable access to his property, 
    not access along the whole unfenced line.

The Addendum provided for reasonable access, and there is no reason 
    not to enforce the agreement. The respondent is not entitled to access to 
    the easement at gate 2.


[18]


In their counter-petition, 
    the appellants sought an order that the fence constructed by the respondent 
    be modified or rebuilt to conform to the terms of the Addendum. Despite the 
    clear intentions of the parties that the fence be of wire and not solid wood, 
    an order requiring that it be rebuilt would impose an unreasonable burden 
    on the respondent and probably further exacerbate the tensions between the 
    parties. The existing fence was built at considerable expense to the respondent; 
    an expense not shared by the appellants. While the fence does not comply with 
    the specifications set out in the Addendum, in the circumstances I would allow 
    it to remain, but would order that any further fencing built by the respondent 
    comply with the terms of the Addendum.


[19]


The appellants 
    also seek the return of the sum of $13,500, which they say are extra moneys 
    they paid for the Addendum. This is, in essence, a claim for damages or diminution 
    of their property value because of the failure of the respondent to adhere 
    to the terms of the Addendum. They provide no evidence, however, that the 
    value of their property has been affected by the construction of the cedar 
    fence. I would make no order in this regard.


[20]


Lastly, the 
    appellants seek orders that it is unlawful for the respondent to wander, 
    park, and/or unload from any portion of the easement area and declaring that 
    the respondent must keep the easement area reasonably clean and free from 
    waste, refuse, rubbish, garbage, dirt, and other objectionable material such 
    as snow. These claims were made in the appellants submissions in chambers, 
    but were not made in their counter-petition and for that reason were not dealt 
    with by the chambers judge. This Court is not in a position to deal with them 
    at this stage of the proceedings. The chambers judge observed however, and 
    I agree, that snow removal would be part of the [respondents] obligations 
    under the easement. At the hearing of the appeal, respondents counsel acknowledged 
    his clients responsibility for snow removal.


[21]


The location 
    of gate 1 was not addressed either in chambers or on the appeal.


[22]


In the result, 
    I would allow the appeal, set aside the order appealed from, and order that 
    the respondent comply with the Addendum to the extent that no gate or driveway 
    access to the easement may be created at the location referred to in these 
    reasons for judgment as gate 2 and any future fencing along the easement must 
    conform to the specifications set out in the Addendum.


[23]


The appellants 
    are entitled to their costs of the appeal and of the chambers hearing in Supreme 
    Court.

The 
    Honourable Madam Justice Levine

I 
    AGREE:

The Honourable Mr. Justice Donald

I 
    AGREE:

The 
    Honourable Madam Justice Newbury

ADDENDUM




















