



COURT
    OF APPEAL FOR ONTARIO

CITATION:
Yekrangian v. Boys, 2021 ONCA 629

DATE: 20210917

DOCKET: C68401

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

Seyedehzahra Delnaz Yekrangian
    and Elle Hariri Cameron

Applicants (Appellants)

and

Christopher Allan Boys, Kristy
    Anne Boys and Stefan Brogren

Respondents (Respondents)

Melvyn L. Solmon and Rajiv Joshi, for
    the appellants

Jonathan Barr and Amiri Moses Dear, for
    the respondents

Heard: March 3, 2021 by video conference

On appeal from the judgment of Justice Andra
    Pollak of the Superior Court of Justice, dated May 12, 2020, with reasons
    reported at 2020 ONSC 2320, 20 R.P.R. (6th) 113.

B.W. Miller J.A.:

Overview

[1]

The appellants purchased a Toronto residential
    property in 2017, intending to replace the existing house with a much larger one.
    They have been prevented from proceeding with their plans by the existence of
    rights of way registered on title in favour of two neighbouring properties. Because
    the rights of way are registered on title, the appellants had notice of them prior
    to completing the purchase. The appellants believed, relying on advice from
    their realtor, that the rights of way had been abandoned. Their neighbours  the
    beneficiaries of the rights of way  believed otherwise. The appellants sought a
    declaration that the rights of way had been abandoned, and an order deleting
    them from title. The application judge disagreed and dismissed the application.
    The appellants appealed.

[2]

As I explain below, I would dismiss the appeal
    as it pertains to the right of way in favour of 176 Strachan Avenue (except to
    the extent that the right of way is obstructed by the house at 121 Massey
    Street), but allow the appeal as it pertains to the right of way in favour of
    174 Strachan Avenue. The extension of the brick house at the servient tenement,
    121 Massey Street, in place since at least 1986, totally obstructs the 174
    Strachan right of way, and makes the right of way useless for accessing 174
    Strachan. Because the previous owners in title of 174 Strachan did not object
    to a total obstruction of their right of way, the only available inference is
    that they intended to abandon it. The same inference is unavoidable with
    respect to the partial obstruction of the right of way in favour of 176
    Strachan caused by the presence of the house extension at 121 Massey Street.

Background

(1)

Factual overview

[3]

The houses situated on the dominant tenements 
    174 and 176 Strachan  are row houses with rear gardens abutting 121 Massey
    Street, the servient tenement. 174 and 176 Strachan lack direct access to their
    rear gardens except through the houses themselves. They each benefit from a registered
    right of way that runs up the driveway of 121 Massey Street at a width of
    approximately eight feet, then bends, in an L shape, to run along the length
    of their respective rear gardens at a width of approximately eight feet. The
    appellants intended construction would completely obstruct both rights of way.

[4]

The respondents Christopher Boys and Kristy Boys
    are the owners of 174 Strachan and the respondent Stefan Brogren is the owner
    of 176 Strachan. The appellants Seyedehzahra Delnaz Yekrangian and Elle Hariri
    Cameron are the owners of 121 Massey.

[5]

The rights of way were established by the deed
    for 121 Massey dated September 28, 1905.

[6]

The respondents concede that there have been
    encroachments on both rights of way over the years. A previous renovation not
    later than 1986 extended the rear of the house at 121 Massey to within
    approximately one foot of the property line with 174 and 176 Strachan. The
    house extension runs along the entire length of 121 Masseys boundary with 174
    Strachan, and along seven feet of its boundary with 176 Strachan. Previous
    owners of 174 and 176 Strachan planted trees near the property line with 121
    Massey. A previous owner of 176 Strachan constructed a fence along the entirety
    of the boundary with 121 Massey, and that fence was rebuilt by the respondent Mr.
    Brogren. At various times garden sheds at the rear of 121 Massey were built on
    the rights of way. Finally, sometime between 2017 and 2018, the owners of 123
    Massey, another neighbouring property, built a residence that encroached by one
    foot eleven inches onto the rights of way.

(2)

The Decision Below

[7]

The appellants applied to the Superior Court
    for: (i) a declaration that the two rights of way had been abandoned, and (ii)
    an order that the two rights of way be deleted from the records associated with
    the servient and dominant tenement lands. Ultimately, the application judge
    dismissed the application.

[8]

The central issue before the application judge was
    whether the appellants had met their burden of establishing that the respondents,
    or their predecessors in title, had ceased using the rights of way, and whether
    this non-use indicated an intention to abandon the rights of way. It is
    uncontested that the application judge correctly stated the governing legal
    principles.

[9]

The rights of way were noted in the deeds for
    174 and 176 Strachan. Although this evidence was not determinative, the
    application judge found that it was some evidence that there was no intention
    to abandon the rights of way as of the date of the last purchase and sale of
    those properties.

[10]

In reaching her ultimate conclusion that the
    rights of way had not been abandoned, the application judge found that the nature
    of both rights of way is to permit access to the rear of 174 and 176 Strachan for
    property maintenance like renovations, repairs, and landscaping  rather than to
    provide day-to-day pedestrian access  and that the totality of the evidence
    did not establish non-use.

[11]

To the contrary, the application judge found
    that the rights of way remained useable, and had in fact been used to access
    the rear of 174 and 176 Strachan as recently as 2015. She relied heavily on the
    evidence of a contractor employed by the respondents in 2015, who said that he used
    the rights of way to access the rear garden of 176 Strachan (and from there to
    access the rear garden of 174 Strachan), notwithstanding the encroachments. She
    accepted the contractors evidence that he had backed his truck up the driveway
    of 121 Massey and delivered construction materials, including dry-wall, PVC
    drain pipes, and bags of cement, over the boundary fence to 176 Strachan, and
    then from 176 Strachan into the rear garden of 174 Strachan.

[12]

The application judge placed no weight on the
    testimony of a former tenant of 121 Massey, who testified that she had refused permission
    to persons who had asked to use the rights of way. The tenant had told them the
    rights of way were no longer in existence. Neither her refusals nor her belief
    that the rights of way had been extinguished provided any evidence that the
    beneficiaries of the rights of way had intended to abandon their legal rights.

[13]

The application judge also rejected the former tenants
    evidence that the house extension, sheds, trees, and fences had totally
    obstructed the rights of way and made them impassable, and placed little weight
    on surveys that the appellants argued demonstrated the totality of obstruction.
    She found the survey and testimonial evidence about the dimensions of the sheds
    to be inconclusive.

[14]

The application judge thus concluded that the
    evidence supported a finding of use for a specific purpose: to access the rear
    gardens of 174 and 176 Strachan for property management. She concluded that the
    appellants failed to establish that the respondents, or their predecessors in
    title, had expressly or impliedly abandoned the rights of way.

Issues on Appeal

[15]

The appellants raise multiple grounds of appeal.
    It is convenient to group them as follows:


I.

the application judge erred by misinterpreting
    the rights of way;


II.

the application judge erred by finding the
    appellants had not established non-use of the rights of way and finding the
    rights of way had not been abandoned.

The Fresh Evidence

[16]

The appellants sought leave to adduce the
    following fresh evidence on appeal: (i) a copy of a survey for 121 Massey dated
    December 16, 1986; (ii) a reported Ontario Municipal Board (OMB) decision; and
    (iii) a deed of land for 174 Strachan registered in 1967. Additionally, the
    appellants included in their factum a sketch or diagram purporting to show the
    rights of way.

[17]

I would not accept the fresh evidence. None of
    it satisfies the test for admission established in
Palmer v.
    The Queen
, [1980] 1 S.C.R. 759. No satisfactory explanation
    was provided as to why this evidence, which pre-existed the hearing of the
    application, was not introduced then. In any event, none of the evidence is capable
    of affecting the result.

[18]

The survey evidence, which is intended to
    support the argument that a shed precluded the use of the rights of way, is simply
    duplicative of other survey evidence that the application judge found
    unpersuasive. The OMB decision is irrelevant to the matters in dispute. The appellants
    argue that the deed should be admitted under the courts discretion to accept
    evidence necessary to provide the court with a full background of the matter, but
    I do not consider it necessary. The sketch similarly provides no additional
    information bearing on the application judges determination that the rights of
    way had not been abandoned.

Interpreting the
    Nature and Extent of the Rights of Way

(1)

Standard of Review

[19]

The interpretive question on appeal is whether
    the application judge erred in her characterization of the nature and extent of
    the rights of way. This was a matter of interpreting the deed for 121 Massey. The
    interpretation of the deed is fact specific. It is a matter of ascertaining the
    objective intentions of the parties from the language used in the deed, read in
    light of the factual matrix known to the parties at that time. It is a question
    of mixed fact and law:
Owners Strata Plan LMS 3905 v. Crystal Square
    Parking Corp.
, 2020 SCC 29, at para 101. Accordingly, absent an extricable
    error of law, or a palpable and overriding error of fact, the application
    judges interpretation of the deed is subject to deference on appeal:
H
ousen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26, 36-37;
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 49-50, 53.

(2)

Application

(i)

The Interpretation of
    the Express Grants

[20]

Th
e rights of way
    were created by express grant. The methodology for interpreting an easement
    created by express grant is of long standing and was summarized by this court
    in
Fallowfield v. Bourgault
(2003), 68 O.R.
    (3d) 417 (C.A.), at para. 10:

Where 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
.

[21]

The rights of way were created by a deed for 121
    Massey dated September 28, 1905, registered as Instrument No. 33154F. This deed
    described the rights of way as follows:

RESERVING therefrom a right of way at all
    times for all persons entitled thereto and to the grantors and all those
    claiming under them, over, along and upon the northerly ten feet also the
    easterly portion of the northerly twenty-seven feet and seven inches of the
    hereinbefore described parcel being eight feet nine inches wide at the north
    and five feet eight inches in width at the southerly limit thereof

[22]

The text of the deed does not give the municipal
    addresses or any other descriptors of the dominant tenements, simply referring
    to all persons entitled to a right of way. It is undisputed that 174 and 176
    Strachan are the dominant tenements.

[23]

The rights of way established by the 1905 deed are
    referenced in the title documents for the dominant tenements. These documents
    include Instrument No. CA167742 for 174 Strachan, and Instrument No. CA411669
    for 176 Strachan.

[24]

Although there are two rights of way, in the
    sense that two different properties are entitled to use a portion of the lands
    of 121 Massey and two sets of legal relationships are established, the portion
    of the land that is burdened is more or less identical in both cases.
[1]


(ii)

The Application Judge
    Did Not Conclude There Was a Single Right of Way

[25]

As a preliminary matter, the appellants argued
    that the application judge made an extricable error in principle by
    misapprehending the two rights of way as one and failing to distinguish between
    them.

[26]

The application judge did not make that error.
    Although the application judge did, throughout her reasons, refer to right of
    way in the singular, this was simply an expedience and one that was similarly
    adopted in the 1905 deed. The formulation provided in the 1905 deed refers to
    a right of way at all times for all persons entitled. The deed would have
    been more precise had it specified a right of way at all times for the benefit
    of each of 174 Strachan and 176 Strachan, as this was clearly what was
    intended and provided. The application judges reasons as a whole make it
    abundantly clear that she understood there were two sets of legal relations at issue:
    one between 121 Massey and 174 Strachan, and one between 121 Massey and 176
    Strachan.

(iii)

The Application Judge did
    not require the appellants to produce evidence of non-use

[27]

The appellants argue that the application judge
    erred in principle by requiring them to provide evidence of non-use. The
    appellants argue that the application judge jumped from rejecting the previous tenants
    evidence of non-use, to concluding that the appellants had not proven non-use.

[28]

I do not agree that the application judge erred.
    The application judge was of course entitled to disbelieve the tenants
    evidence that no one had used the rights of way during her tenancy and made no
    error in doing so. She was similarly entitled not to accept as determinative the
    tenants evidence that she denied access to the rights of way. A reading of the
    reasons as a whole demonstrates that the application judge understood she had
    to consider all the relevant evidence from whatever source  and not simply the
    evidence led by the appellants  in order to determine whether the appellants
    had established an intention to abandon the rights of way. She did so.

(iv)

The Application Judge
    Did Not Misinterpret the Purpose of the Rights of Way

[29]

The appellants also argue that the application
    judge erred by misinterpreting the purpose of the rights of way. They argue
    that this error flowed from the application judges alleged failure to draw the
    desired inference from one particular factual circumstance known to the parties
    in 1905  the existence of sheds at the rear of the dominant tenements.

[30]

The 1905 deed describes the bounds of 121
    Massey, in part, by reference to the westerly face of a row of sheds now
    standing on the rear premises of dwelling houses fronting toward Strachan
    Avenue.

[31]

The appellants argued before the application
    judge that she should infer from this detail that the purpose of the rights of
    way was to enable the occupiers of the dominant tenements to access these sheds
    on their respective properties. In oral argument before this court, counsel
    suggested that horses would have been kept in the sheds, in the same way that contemporary
    homeowners store vehicles in garages, and would similarly have been accessed by
    the occupiers on a daily or near daily basis. As the sheds  and the horses  no
    longer exist, the original purpose of the rights of way had lapsed, and non-use
    followed.

[32]

The appellants argument tying the nature of the
    rights of way to the sheds is speculative, and the application judge made no
    error in rejecting it. There is no express statement in any of the title
    documents explaining the nature of the rights of way. In order to ascertain the
    nature of the rights of way, the application judge was required to consider the
    context that would have been known to the original contracting parties at the
    time they agreed to the creation of the rights of way. As the appellants argue,
    this context includes the existence of sheds at the rear of 176 and 174
    Strachan, and the rights of way were obviously intended to provide access to
    these sheds and whatever was stored in them. But the application judge made no
    error in rejecting the argument that this must have been the whole of the purpose
    of the rights of way, such that once the sheds were gone, the rights of way became
    obsolete.

[33]

Another contextual factor, which the application
    judge found to be significant, is that there was, and is, no direct access to
    the rear of 174 and 176 from Strachan Avenue, and the parties would have
    contemplated that the owners of 174 and 176 Strachan would, from time to time,
    need periodic access to the rear of their properties for the purpose of
    performing periodic maintenance or renovation. This interpretation of the deed
    establishing the right of way was available to the application judge, and she
    made no error in characterizing the purpose of the rights of way as broader than
    facilitating access to sheds, and including access for periodic maintenance and
    renovation.

Non-Use of the Rights of Way and Intention to
    Abandon

(1)

General Principles

[34]

A right of way is a type of easement. The basic
    principles governing the abandonment of easements by release are of long
    standing and were recently summarized by this court in
Remicorp
    Industries Inc. v. Metrolinx
, 2017 ONCA 443, 138
    O.R. (3d) 109.

[35]

The party asserting abandonment must prove, in
    the absence of express release, that the party holding the easement
    demonstrated a fixed intention never to assert the right conferred by the
    easement, or to transmit it to anyone else:
Remicorp,
at paras. 47,
    50.

[36]

The holders intention is to be inferred from
    all the surrounding circumstances, including any non-use of the easement and
    any acquiescence to encroachments on the easement. Non-use can constitute some
    evidence of an intention to abandon, although it is generally insufficient to
    prove an intention to abandon by itself:
Remicorp
at paras 47, 49, 59.

[37]

A court will not lightly infer that an owner has
    given up the easement, a valuable right in property, for no consideration:
Remicorp
, at para. 47, citing
Gale on Easements
, 20th ed. (London: Thomson Reuters (Professional) UK Limited,
    2017), at paras. 12-26. That is particularly the case where the easement
    appears on title, as it does in this case.

[38]

An intention to abandon is found more readily where
    a permanent structure has been constructed over the right of way, and the
    holder of the right of way has not objected to it: see, analogously,
Tasker
    v. Badgerow,
[2007] O.J. No. 2487, at para. 41. The construction of a
    permanent structure that completely obstructs a right of way communicates that the
    right of way will be permanently and totally denied to the holder. If the
    holder does not object, the court may infer that the holder acquiesced, and may
    infer that the holder intended to abandon it. Where a permanent structure constitutes
    a partial obstruction only, it will be more difficult to infer that the holder
    intends never to assert the right conferred by the easement, and it may be
    possible to conclude that the holder abandoned the use of part of the right of
    way only.

(i)

174 Strachan

[39]

The addition to the house at 121 Massey  a
    permanent structure unlike a fence or a garden shed  has, for all practical
    purposes, completely obstructed the right of way in favour of 174 Strachan for
    at least 35 years. The structure encroaches so far into the right of way that
    only a 1-foot-wide, 7-foot-long gap remains between the boundary fence of 174 Strachan
    and the wall of the house at 121 Massey. There was no evidence before the
    application judge that the right of way in favour of 174 Strachan had been, or could
    be, used for any purpose, other than the evidence of the respondent owner of 174
    Strachan who said that he believed lengthy wooden boards could conceivably be
    run through the gap.

[40]

Although what is suggested by Mr. Boys  the use
    of the gap to transport narrow wooden boards  is not physically impossible,
    the standard is not physical impossibility. The gap permits no access to the
    rear garden for the purpose of property maintenance, or for any other purpose.

[41]

The contractor himself did not use the gap when
    he accessed 174 Strachan. He testified that he instead transported his
    materials over the boundary fence between 121 Massey and 176 Strachan into the
    latters rear garden. From the rear garden of 176 Strachan, he moved the
    materials over the boundary fence between 176 and 174 Strachan, into the rear
    garden of 174 Strachan. He did not testify that he pushed the materials through
    any remaining gap still existing beside the house extension, nor was there a
    finding that this would have been possible. Even if it were possible to move
    wooden boards through the gap as Mr. Boys suggested, it would not be possible
    to move the other types of materials described by the contractor  such as PVC pipes
    and bags of cement  that were used for property maintenance.

[42]

Accordingly, I conclude that the application
    judge made a palpable and overriding error in not finding that the house
    extension constitutes a complete obstruction to the use of the right of way by
    174 Strachan. It is inconceivable that the extension could have been built without
    the knowledge and acquiescence of a predecessor in title, who could not have
    failed to appreciate that it constituted a complete and permanent obstruction.
    The application judge erred by not finding that there had been an intention to
    abandon the right of way by a predecessor in title to the respondents
    Christopher Boys and Kristy Boys.

(ii)

176 Strachan

[43]

The right of way in favour of 176 Strachan is
    only partially obstructed by the house extension, and to a degree that does not
    prevent its use by 176 Strachan. The presence of the extension, in itself, is therefore
    not sufficient to establish that predecessors in title to 176 Strachan had any
    intention to abandon the right of way in its entirety, as opposed to abandoning
    only one portion of it that is unnecessary for it use. It is therefore
    necessary to consider the other obstructions.

(i)

The Sheds

[44]

The appellants argued that the rights of way
    were obstructed by a wood frame shed and a teal coloured shed that later
    replaced it. The appellants argue that the nature of the obstruction was
    established both by property surveys and the evidence of the tenant. As
    explained below, I do not agree that the application judge misapprehended the
    evidence related to the sheds.

The surveys

[45]

The appellants introduced three surveys into
    evidence: (1) an undated survey of 121 Massey; (2) a 1987 survey of 176
    Strachan, and (3) a 1988 survey of 174 Strachan.

[46]

The surveys were tendered for three purposes.
    The first was to establish that there were at one time sheds at the rear of the
    dominant tenements. The second purpose was to provide more direct evidence that
    the rights of way had been abandoned by the time of the surveys, by the
    notation on the 1987 survey apparently never in existence and on the 1988
    survey not in use. The third purpose was to establish that the frame shed
    (succeeded by the teal coloured shed) at the rear of 121 Massey completely
    obstructed the right of way, and rendered it impassible.

[47]

The application judge was critical of this
    evidence, characterizing it as not properly introduced, unsworn and gave it minimal
    weight, if any.

[48]

It is not entirely clear why the application
    judge characterized the surveys as not properly introduced. It is not uncommon
    for historical property surveys to be introduced as attachments to affidavits
    that were not sworn by the authors of the surveys. The older the survey, the
    less likely that that its drafter will be available to give evidence. Regardless,
    the application judge nevertheless accepted the surveys into evidence and noted
    their evidential limitations. As explained below, there was no error here.

[49]

First, with respect to the use of the 174
    Strachan survey to establish the historical presence of sheds at the rear of
    174 and 176 Strachan, this fact was not disputed, and the evidence was
    unnecessary.

[50]

Second, the two notations on the surveys attesting
    to the non-use or non-existence of the rights of way were hearsay. There was no
    evidence as to the source of these notations, or the basis for the conclusions they
    expressed. The application judge made no error in refusing to rely on them.

[51]

Third, the application judge made no error in
    finding the surveys did not establish that the wood frame shed rendered the
    rights of way impassable. The surveys that depicted the wood frame shed did not
    measure the gap between the shed and the wall of the house at 121 Massey or
    give a complete rendering of the sheds dimensions.

The evidence of the tenant and the
    contractor

[52]

Although the former tenant of 121 Massey
    testified that the gaps on each side of the frame shed were not sufficiently
    wide to allow for access of any kind to 176 Strachan, the application judge
    found her evidence unreliable on this and other matters. She was entitled to do
    so. She accepted the evidence of the contractor that he in fact managed to make
    use of the rights of way to access 176 Strachan in 2015, notwithstanding the
    presence of the shed.

[53]

On appeal, the appellants argue that the
    contractor must have been mistaken and used some other access point, such as a
    neighbouring property that was then vacant. But this was not argued at the
    hearing of the application and was not put to the contractor on
    cross-examination. It would be improper to consider this proposition for the first
    time on appeal.

[54]

The application judge did not misapprehend any
    of this evidence before her. She was entitled to prefer the evidence of the
    contractor over that of the tenant, and made no error in concluding that the
    survey evidence was consistent with the evidence of the contractor. The survey
    evidence did not establish that the portion of right of way between the shed
    and the house was too narrow to be used in the manner stated by the contractor.
    And as further explained below, the contractors evidence was not inconsistent
    with the evidence as to the degree of obstruction established by the boundary
    and driveway fences.

(ii)

The Boundary Fences

[55]

A previous owner of 176 Strachan built a fence
    on the boundary with 121 Massey, and the respondent owner of 176 rebuilt it. The
    appellants claim that this is significant for two reasons. First, where the
    owner of a dominant tenement erects a fence, this can be some evidence of an
    intention to abandon the right of way:
Overs v. ten Kortenaar
(2006)
, 46 R.P.R. (4th) 118 (Ont. Sup.
    Ct.), at paras. 7, 11. Second, the appellants argue that the existence of the
    fences is good reason to doubt that the rights of way could have been used as described
    by the contractor.

[56]

I do not agree. The application judge found the rights
    of way granted the residents of the dominant tenement the right to access their
    rear gardens, including for property maintenance purposes. The installation of
    a fence that is incompatible with daily pedestrian use does not necessarily
    indicate an intention to abandon a right of way that exists for these other purposes.

[57]

The application judge found that the fence at
    the boundary of 176 Strachan and 121 Massey was not an insurmountable barrier to
    accessing the rear of 176 for property maintenance, a purpose that might only
    arise once every 30 or 40 years. It would not be unreasonable for a dominant
    tenement to erect a fence across a right of way to keep out pedestrian
    trespassers, or to keep in small children, without intending to forego the right
    to use the right of way for maintenance and renovation. This is so, regardless
    of whether the fence could be worked around - as appears to have been the case
    - or if the fence had to be temporarily removed, or a gate temporarily installed.
    None of these measures would be disproportionate to the use to which the right
    of way would be put, and do not suggest an intention to abandon. The
    application judge made no error in finding that the installation of the
    boundary fences did not make the rights of way unusable, given the nature of
    the rights of way.

(iii)

The Driveway Fence

[58]

The appellants also argue that the application
    judge further erred by misapprehending the tenants evidence about another fence
    said to obstruct the rights of way. This fence was installed by the previous tenant
    of 121 Massey across her driveway to keep out vehicles and pedestrians and,
    according to the tenant, to communicate that the rights of way had been
    terminated. This fence contained a gate for pedestrian use. It was later
    replaced with another fence featuring a door that also allowed vehicular access.

[59]

The appellants argue that this driveway fence constituted
    a complete obstruction, that the dominant tenements acquiesced to it, and that it
    constitutes evidence of abandonment. Additionally, the appellants argue that the
    presence of the fence prevented the use of the rights of way and provides reason
    to disbelieve the evidence of the contractor that he actually used the rights
    of way to access 176 Strachan. They argue that it would not have been possible
    for the contractor to have driven his vehicle up to the boundary fence and
    unloaded, given the presence of the first fence.

[60]

The application judge found that the fence had
    not, in fact, prevented the contractor from using the rights of way in 2015. The
    application judge accepted the contractors evidence that he reversed his truck
    down the driveway of 121 Massey and lifted his building materials over the boundary
    fence. The appellants argue this account was impossible, as it does not address
    how he got the materials over or through the driveway fence.

[61]

The application judge made no error in her apprehension
    of the contractors evidence. The contractor was cross-examined on his
    affidavit and answered all questions put to him by counsel. Therefore, if there
    is any lacunae in the record as to whether or to what degree the driveway fence
    presented an obstacle to the contractor, that lacunae arises directly from the
    cross-examination of the contractor. On the record before her, the application
    judge was satisfied that the contractor did what he claimed, and that the
    presence of the driveway fence did not prevent his use of the right of way. Whether
    the contractor drove up to the fence and hauled the materials over it, or
    carried the materials through the gate in the driveway fence to the boundary
    fence is neither impossible nor inconsistent with his evidence. There is no palpable
    error here.

(iv)

Conclusion on non-use
    and abandonment

[62]

As explained above, the application judge made
    no error in concluding that the appellants did not meet their burden of
    establishing non-use. More significantly, they did not meet their burden of
    proving on a balance of probabilities that either the current owners of 176
    Strachan or their predecessors in title intended to abandon the right of way in
    total.

[63]

The fences and sheds do not obstruct the right
    of way to the same extent as the extension of the house. They are not
    structures of any permanence, nor have they prevented the right of way from
    being used to access the rear of 176 Strachan for occasional maintenance,
    renovation, and repair. To the extent that the fences constituted an
    obstruction, they were and are easily removable. Similarly, a garden shed is
    not typically constructed in a manner that makes it impractical or
    disproportionately expensive to remove or modify to facilitate the sort of
    access contemplated by the rights of way. The sheds were either easily
    removable or the appellants failed to discharge their burden of establishing
    that they were not. Permitting sheds and fences (and even constructing a fence)
    did not, in this case, suggest abandonment.

(v)

The argument for
    variation of the right of way in favour of 176 Strachan

[64]

What are the implications of the encroachment of
    the extension of the house at 121 Massey onto the right of way in favour of 176
    Strachan? As stated above, the extension of 121 Massey sits on part of the
    right of way in favour of 176 Strachan that, unlike the right of way in favour
    of 174 Strachan, does not completely block access to the dominant tenement.

[65]

The appellants ask, as an alternative to deleting
    the right of way from title (and for the first time on appeal), that this court
    modify the right of way in favour of 176 Strachan and provide a declaration
    that 176 Strachan has abandoned the portion of its right of way currently obstructed
    by the house extension. They ask for an order deleting this portion of the
    right of way from title.

[66]

The respondents resist this request on the basis
    that it is improper for the appellants to seek this relief for the first time on
    appeal, particularly since survey evidence as to the precise boundaries of the
    house extension at 121 Massey, tested under cross-examination, is not before
    the court. I agree that the record before this court does not allow for a determination
    of the precise dimensions of the portion of the right of way on which the house
    is situated and the portion remaining. However, it is an inescapable conclusion
    that if the predecessors in title to 174 Strachan  by acquiescing to the
    construction of the extension of 121 Massey  abandoned their right of way, then
    the predecessors in title to 176 must similarly have abandoned that portion of
    the right of way on which the house extension sits. As it is not possible for
    this court to make a finding of the dimensions of the right of way so impacted,
    I would remit the matter to the Superior Court for a determination of the dimensions
    of the portion of lands subject to the right of way in favour of 176 Strachan that
    are occupied by the house extension at 121 Massey, and for an order deleting that
    portion of the right of way in favour of 176 Strachan from title.

Disposition

[67]

I would dismiss the appeal with respect to the application
    for a declaration that the right of way in favour of 176 Strachan has been
    abandoned in its entirety. I would allow the appeal with respect to the alternative
    application for a declaration that the part of the right of way in favour of
    176 Strachan situated beneath the house at 121 Massey has been abandoned. I
    would remit the matter to the Superior Court for a determination of the
    dimensions of the remaining part of the right of way that has not been
    abandoned, and the issuing of whatever order is necessary to amend the titles
    of 176 Strachan and 121 Massey.

[68]

I would allow the appeal with respect to the
    right of way in favour of 174 Strachan, which has been abandoned, and would
    order that the right of way be deleted from the title of the dominant tenement
    identified by PIN 21298-0107.

[69]

The parties are invited to submit brief
    submissions on costs, not exceeding three pages, to be submitted within four
    weeks if the parties are unable to come to an agreement.

Released: September 17, 2021 JMF

B.W.
    Miller J.A.

I
    agree. Fairburn A.C.J.O.

I
    agree. B. Zarnett J.A.





[1]

There are minor differences in the dimensions given in the two
    instruments, but for the purposes of this analysis they are inconsequential.


