



COURT OF APPEAL FOR ONTARIO

CITATION: Clarke v. Kokic, 2018 ONCA 705

DATE: 20180829

DOCKET: C64649

Lauwers, Miller, and Nordheimer JJ.A.

BETWEEN

Dale Clarke and Lorraine Clarke

Applicants (Respondents)

and

Esad Kokic and Behra Kokic

Respondents (Appellants)

Brian R. Kelly, for the appellants

Trenton Johnson, for the respondents

Heard: August 27, 2018

On appeal from the order of Justice Bloom of the Superior
    Court of Justice, dated October 30, 2017, with reasons reported at 2017 ONSC
    6485.

REASONS FOR DECISION

[1]

The Clarkes own the building
    at 101 St. Andrew St. W. in Fergus, Ontario. It is attached to the adjacent
    building at 135 St. David St., which is owned by the Kokics. Under the title
    deeds, the Clarkes have an easement over part of the Kokics property, which
    provides interior access to the upper floors and roof of their own property.
    When the easement was first granted, the Clarkes predecessors in title had no
    other access to the third floor or roof of 101 St. Andrew except through 135
    St. David St., though this is no longer the case.

[2]

This dispute arose in the
    context of the Clarkes renovations to adapt the property for commercial use on
    the first two floors and residential use on the third. The renovations include slightly
    widening the third floor door frame through which the easement passes to make
    it a fire exit, and replacing the doors on the second and third floor to comply
    with the relevant building and fire regulations. The Kokics interfered with the
    right of way, and the Clarkes applied for declaratory and injunctive relief.

[3]

The application judge
    declared the easement valid and ordered the Kokics not to interfere with the
    Clarkes rights under the easement, including the right to make the renovations.
    The Kokics appeal from that decision.

[4]

At the conclusion of the
    hearing, we dismissed the appeal with reasons to follow. In our view, the
    application judge did not err in finding that the easement permitted the Clarkes
    to alter the door frames and doors in question in order to use the easement as
    an emergency exit. Further, the rule against perpetuities has no application to
    this case.

A.

The Renovations

[5]

The Kokics argue that the
    Clarkes renovations impermissibly change the use of the easement, from
    providing access to space that has been unused or has been used only for storage,
    into use as an emergency exit.

[6]

The title deeds set out the easement
    language:

AND RESERVING a right-of-way for
    all persons entitled thereto in common with others having a like right, over,
    through and along the

existing
hallways and stairways in the
    first, second and third storeys of said stone building (Emphasis added)

[7]

The easement is then
    described in metes and bounds format.

[8]

We observe that while the
    Kokics characterize the modest widening of the doorframes on the third floor as
    increasing the size of the easement, this is inaccurate. The grant is silent on
    the size of the doorframe and the dimensions of the easement remain the same as
    before. Neither the widening of the door frames nor the replacement of the
    doors increases the burden on the servient tenement.

[9]

The Kokics rely on
Fallowfield
    v. Bourgault
(2003), 68 O.R. (3d) 417, [2003] O.J. No. 5206. Speaking for
    the majority, Feldman J.A. distilled the relevant principles, at para. 11:

In interpreting the meaning and intent of an express easement,
    the concept of ancillary rights arises. The grant of an express easement
    includes such ancillary rights as are reasonably necessary to use or enjoy the
    easement. However, to imply a right ancillary to that which is expressly
    granted in the easement, the right must be necessary for the use or enjoyment
    of the easement, not just convenient or even reasonable.

[10]

The
    appellants rely on the word existing in the easement language.  They argue
    that the respondents have no ancillary right to make changes to the doors and
    door frame to facilitate a fire escape, because these changes are not necessary
    for the use of the easement. They assert that permitting the alteration of the
    door frames may be convenient, but they are not necessary, largely because the
    respondents had an alternative, which was to build fire escapes out of the
    windows.

[11]

The
    application judge found that the use of the easement in the event of a fire was
    within the scope of the original grant. It contemplated ingress and egress for all
    purposes, which perforce included escaping a fire. The original grant is broad
    enough to include the use of the easement as an emergency exit, and the renovations
    do nothing more than render it usable for that purpose. The renovations are
    reasonably necessary, in the sense used in
Fallowfied
, in that they
    are necessary for the Clarkes to lawfully use the easement for one of the
    purposes for which they are entitled to use it. The fact that the Clarkes could
    fulfill the same purpose by some other means not involving the easement, is
    irrelevant to the necessity analysis. Because the Clarkes already had the right
    to use the easement for ingress and egress, including as an emergency exit,
    they did not need to substitute alternative emergency exits as the Kokics
    suggest.

[12]

While
    the redevelopment of 101 St. Andrew could result in increased use of the right
    of way, the use of the easement remains of the same general nature. The potentially
    increased burden on the servient tenement at 135 St. David St. by virtue of
    more frequent use does not fall outside the scope of the initial grant (
Almel
    v. Halton Condominium Corp. No. 77
, (1997) 98 O.A.C. 72, [1997] O.J. No.
    824, at para 8).

[13]

The
    application judges decision was reasonable and supported by the evidence. He
    made no errors in finding that the renovations were reasonably necessary for
    the exercise and enjoyment of the easement.

B.

the rule against perpetuities

[14]

The
    Kokics argue that the ancillary rights under the easement are void because of
    the rule against perpetuities. We disagree.

[15]

It
    is not clear that this issue was before the application judge, but in any
    event, the rule against perpetuities has no application in this case. The rule
    does not restrict the duration of property interests, but the length of time
    that may elapse between the creation of a contingent interest and the vesting
    of that interest (
Sutherland Estate v. Dyer
, (1991) 4 O.R. (3d) 168,
    [1991] O.J. No. 1457 (Gen. Div.), at para. 18). As stated by the court in
Dyer
at para. 18: the rule applies only to contingent interests.

[16]

An
    express easement includes the ancillary rights reasonably necessary for the use
    and enjoyment of the easement. These rights vested at the time of grant and are
    not contingent interests. Thus, the rule against perpetuities does not apply to
    them.

Disposition

[17]

The
    appeal is dismissed with costs to the respondents, as agreed, in the amount of
    $10,000 inclusive of disbursements and taxes.

P.
    Lauwers J.A.

B.W.
    Miller J.A.

I.V.B.
    Nordheimer J.A.


