



COURT OF APPEAL FOR ONTARIO

CITATION: White v. Curtis, 2018 ONCA 767

DATE: 20180919

DOCKET: C63729

Rouleau, Benotto and Miller JJ.A.

BETWEEN

Gordon White and Mary
    Magwood

Plaintiffs/Defendants by counterclaim
(Appellants)

and

Borden Curtis and Jana Curtis

Defendants/Plaintiffs by counterclaim
(Respondents)

Keith MacLaren and Bryce Dillon, for the appellants

J. Gregory Richards and Neville C. Johnston, for the
    respondents

Heard and released orally: September 14, 2018

On appeal from the judgment
    of Justice B.W. Abrams of the Superior Court of Justice, dated April 7, 2017,
    with reasons reported at 2017 ONSC 2190.

REASONS FOR DECISION

[1]

The appellants appeal the dismissal of their claim for a declaration
    that they have a right of way over the property of the respondents. They argue
    that the original grant met all four of the requirements to establish an
    easement by grant. In their submissions, they alleged that the trial judge
    erred in considering post-grant evidence as to intention and use and also erred
    in finding that the grant contained in the document was ambiguous.

[2]

We do not agree with these submissions.

[3]

In our view, the trial judge correctly found that the grant was
    ambiguous. There are no metes and bounds descriptions in the grant. The grant
    refers to passage over a strip of land presently used as a roadway, but only
    indicates that it continues southerly to the north shore of the lake. Based
    on the record before him, the trial judge found, at para. 214, that,

the right over land in this case does not amount to an
    easement because it is incapable of forming the subject-matter of a grant. Put
    simply, the Plaintiffs did not establish, on the evidence, the nature of the
locus
    in quo
of the servient tenement over which the right of way was granted as
    it existed at the date of the grant.

[4]

These findings were open to the trial judge on this record and are owed
    deference in this court.

[5]

As submitted by the respondents, the evidence at trial demonstrated that
    different access points to the lake existed at the time of the grant and
    further, even accepting the appellants submission that the access was intended
    to be over the specific lot that the pleadings referred to, there was no
    evidence as to where on that lot the easement would in fact have run.

[6]

In our view, the failure on this element of the test is fatal to the
    appellants claim.

[7]

For these reasons, the appeal is dismissed. Costs to the respondents are
    fixed in the amount of $12,500 inclusive of disbursements and applicable taxes.

Paul
    Rouleau J.A.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.


