



COURT OF APPEAL FOR ONTARIO

CITATION: Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116

DATE: 20170213

DOCKET: C61890

Gillese, Benotto and Roberts JJ.A.

BETWEEN

Emil Mihaylov and Sofia Mihaylov

Applicants (Appellants)

and

1165996 Ontario Inc. and Donald Abel

Respondents (Respondents)

Stephen R. Jackson, for the appellants

Ryan O'Neill, for the respondents

Heard: November 25, 2016

On appeal from the judgment of Justice David G. Stinson of
    the Superior Court of Justice, dated February 25, 2016, with reasons reported
    at 2016 ONSC 1379, 69 R.P.R. (5th) 161.

Gillese
    J.A.:

OVERVIEW

[1]

This appeal arises from a conflict between two neighbours about an underground
    water pipeline.  It poses a number of questions, including the following: is the
    underground pipeline an easement despite the fact that the document which
    purports to grant it neither declares the location of the pipeline nor contains
    a description of it?  If an easement was granted, this court must also decide difficult
    questions relating to its scope.

[2]

The court below found that an easement had been granted, first in an
    agreement made in 1968 and then again by an agreement made in 1979.  As I
    explain in the reasons that follow, the 1968 agreement was the grant of a
    licence, not an easement.  And, while I agree that an easement was granted in 1979,
    in my view, the relief ordered below exceeds the scope of that easement.  Accordingly,
    I would allow the appeal in part.

BACKGROUND

[3]

In June of 2012, Emil Mihaylov and Sofia Mihaylova (together, the
    Mihaylovs or the Applicants) bought waterfront property (the Mihaylov
    Land) that fronts onto Sturgeon Lake (the Lake) in Ontario.
[1]
The Mihaylovs use the land for their own recreational purposes and they also rent
    out cottages that are located on it.

[4]

Sometime during the mid to late 1960s, a galvanized steel water line (the
    Pipeline) was buried beneath the Mihaylov Land so that water from the Lake
    could pass to an adjoining property.

[5]

When the Mihaylovs acquired their property, it was subject to Instrument
    No. R147470.  That instrument is discussed below.  It is sufficient at this
    point to note that Instrument No. R147470 refers to a document entitled Water
    Pipe Easement and provides that the owner of the adjoining property shall be
    able to leave the said water line in its present position, and to draw water
    from Sturgeon Lake.

[6]

1165996 Ontario Inc. (116) owns the adjoining property in question (the
    Abel Land).  The Abel Land is situated to the west of the Mihaylov Land and
    has no direct access to the Lake.

[7]

116 took title to the Abel Land on July 31, 1998.  At the time of purchase,
    the legal description of the Abel Land included an easement for a water line
    over the Mihaylov Land.

[8]

Donald Abel is the president and sole shareholder of 116.  I will refer
    to 116 and Mr. Abel together as the Respondents.

[9]

Both the Mihaylov Land and the Abel Land were originally registered
    under the Land Registry system.  In 2010, the Abel Land was transferred to the
    Land Titles system.  When the Mihaylovs purchased their land in 2012, it had
    already been transferred to the Land Titles system.

[10]

Mr. Abel lives on the Abel Land with his family.  He and his wife run a
    small business known as the Lakeview Cottages & General Store.  Among other
    things, the Abels run a small general store and rent out seven small cabins and
    cottages located on the Abel Land.

[11]

The ownership of both the Mihaylov Land and the Abel Land has changed a
    number of times over the years. The various predecessors in title entered into
    three agreements relevant to these proceedings.  The dates of those agreements
    are:  October 8, 1966; May 15, 1968; and May 11, 1979.

The 1966 Agreement

[12]

In 1966, Muriel S. Johnson owned the Mihaylov Land.  Apparently Ms.
    Johnson entered into an agreement dated October 8, 1966 (the 1966 Agreement)
    with Frederick G. Hill and Mary Hill, under the terms of which Ms. Johnson agreed
    that the Hills had the right during their ownership to lay a pipe line over [her]
    lands.  It appears that the Pipeline was installed pursuant to this agreement.

[13]

The 1966 Agreement was never registered on title to either the Mihaylov
    Land or the Abel Land.  Because the 1966 Agreement could not be located, it was
    not before the court below and is not part of the record. On the record, what
    is known about the 1966 Agreement comes from the preamble in the 1968 Agreement,
    below.

The 1968 Agreement

[14]

In May of 1968, Ms. Johnson still owned the Mihaylov Land.

[15]

On May 15, 1968, Ms. Johnson entered into an agreement with Paul Plewes,
    Harvey Duxbury and Ruth Duxbury (the 1968 Agreement).

[16]

The 1968 Agreement consists of a preamble, three operative provisions
    and a legal description of the land belonging to Ms. Johnson.  It reads as follows:

THIS INDENTURE made the 15th day of May, 1968

BETWEEN:

MURIEL S. JOHNSON

of the Township of Fenelon

in the County of Victoria,

Married Woman,

hereinafter called
THE PARTY OF THE
    FIRST PART
;

AND:

PAUL PLEWES
,

of the Town of Weston in the

County of York, Esquire, and

HARVEY DUXBURY
,

of the Municipality of Metropolitan

Toronto in the County of York,

Esquire, and

RUTH DUXBURY

his wife of the same place,

as tenants-in-common,

hereinafter called
THE PARTIES OF THE
    SECOND PART
;

WHEREAS by agreement dated the 8th day of October,
    1966, the prior owner of the property, Frederick G. Hill and Mary Hill, had the
    right during their ownership to lay a pipe line over the lands of the Party of
    the First Part;

NOW THIS AGREEMENT WITNESSETH that in consideration
    of the sum of One Dollar, the Party of the First Part hereby covenants and
    agrees that the Parties of the Second Part shall be able to leave the line in
    its present position and to draw water from Sturgeon Lake.

The Parties of the Second Part covenant and agree
    that if they should have to enter on the lands of the Party of the First Part
    to make any repairs which the Party of the First Part agrees that they may do,
    that they will repair any damage done to the lands of the Party of the First
    Part as a result of such repairing.

The Parties of the Second Part covenant and agree
    that they will pay for this easement the sum of Ten Dollars per year.  The
    first payment to be made on the 1st day of July, 1968 and on the 1st day of
    July in each and every year during the currency of this agreement.

The Party of the First Part is the owner of the lands
    described as follows: [the legal description of the Mihaylov Land followed].

[17]

The 1968 Agreement was deposited in the Registry office where it was
    referable only to Ms. Johnsons land.

The 1979 Agreement

[18]

On May 11, 1979, another agreement relating to the Pipeline was entered
    into (the 1979 Agreement).  The 1979 Agreement reads as follows:

WATER PIPE EASEMENT

THIS INDENTURE made this 11th day of May, A.D. 1979

BETWEEN:

ROBERT JAMES ARCHIBALD MARSHALL
,
    of the Township of Fenelon, in the County of Victoria, Gentleman, and
PATRICIA ENA MARSHALL
, his spouse, of the same place, as
    joint tenants and not as tenants in common,

hereinafter called
THE PARTIES OF THE
    FIRST PART
;

-and-

DOUGLAS ALLAN
and
EILEEN ALLAN
, as to an undivided one-fifth interest,
DONALD DENYER
and
JOYCE DENYER
as to an undivided one-fifth interest,
GORDON DENYER
and
DIANE PIPER
as to an undivided one-fifth
    interest,
LINDSAY McCOY
and
MARGARET
    McCOY
as to an undivided one-fifth interest, and
BRIAN
    SMALL
and
VALERIE SMALL
as to the remaining
    one-fifth interest,

hereinafter called
THE PARTIES OF THE
    SECOND PART

WHEREAS by agreement dated May 15, 1968, and
    deposited on June 7, 1968, as number 93844, PAUL PLEWES, HARVEY DUXBURY and
    RUTH DUXBURY were granted a water pipe easement over the lands described in
    Schedule "A" attached hereto to serve the lands described in Schedule
    "B" attached hereto,

AND WHEREAS the Parties of the First Part are the
    owners of the lands described in Schedule A attached hereto;

AND WHEREAS the Parties of the Second Part are the
    owners of the lands described in Schedule B attached hereto;

NOW THIS AGREEMENT WITNESSETH that in consideration
    of the sum of ONE DOLLAR ($1.00), the parties of the first part hereby covenant
    and agree with the parties of the second shall be able to leave the said water
    line in its present position, and to draw water from Sturgeon Lake.

THE PARTIES of the Second Part covenant and agree
    that if they should have to enter on the lands of the Parties of the First Part
    to make any repairs which the Parties of the First Part agrees that they may
    do, that they will repair any damage done to the lands of the Parties of the
    First Part as a result of such repairing.

THE PARTIES of the Second Part covenant and agree
    that they will continue to pay for this easement the sum of TEN DOLLARS
    ($10.00) per year.

THIS AGREEMENT shall enure to the benefit of and be
    binding upon the Parties hereto
,
their heirs, executors, administrators,
    successors and assigns
.

[19]

Schedule A to the 1979 Agreement sets out the legal description of the
    Mihaylov Land and Schedule B sets out the legal description of the Abel Land.

The Precipitating Events

[20]

In June 2014, the water supply to the Abel Land from the Lake was
    disrupted, due to a leak in the Pipeline.  Without the Mihaylovs permission or
    notice, Mr. Abel went onto the Mihaylov Land and installed an above ground poly-vinyl
    chloride waterline (the "PVC Line").  The PVC Line ran across the
    Mihaylov Land.

[21]

Mr. Abel said that he installed the PVC Line because he was not able to
    locate, fix or replace the existing water line due to the location of the Mihaylovs
    mobile trailer on the Mihaylov Land.  Mr. Abel also said that he was not able
    to contact the Mihaylovs before he installed the PVC Line because the Mihaylovs
    reside in Toronto and normally occupy the Mihaylov Land only on weekends, and
    he did not have the Mihaylovs phone number or email address.

[22]

When Mr. Mihaylov discovered the PVC Line in early July 2014, he asked Mr.
    Abel to remove it.  The record indicates that, to date, the PVC Line has not
    been removed.

[23]

Mr. Mihaylov says that Mr. Abel continues to enter onto the Mihaylov
    Land, without the Mihaylovs permission or notice, to service and maintain the
    PVC Line.

[24]

In early May 2015, again without the Mihaylovs permission, Mr. Abel
    excavated part of the Mihaylov Land in an apparent attempt to upgrade or repair
    the underground Pipeline.

[25]

Apparently in order to protect the Pipelines foot valve, Mr. Abel also installed
    a PVC structure in the shallow waters of the Lake in front of the Mihaylov Land. 
    The Applicants allege that this structure interferes with free navigation near
    the shoreline and their riparian rights of egress and ingress along their
    shoreline.  Mr. Abel disputes the location of the foot valve and says that it
    does not interfere with free navigation near the shoreline nor with the Applicants
    riparian rights.

[26]

The Applicants contend that the Pipeline is no longer a necessity for the
    Respondents because there is an active well on the Abel Land.  The Respondents
    say that the shallow well on the Abel Land is not capable of supplying sufficient
    water to the cabins and cottages and the ability to draw water is integral to
    the running of their business.  They also say that they have spent over $10,000
    on a filtration system to purify the water drawn from the Lake.

The Proceedings Below

[27]

In June of 2015, the Applicants brought an application in which they
    asked the court to declare, among other things, that the Respondents had no
    interest in their property and that the easement registered in 1979 no longer
    encumbers it (the Application).  116 and Mr. Abel are the named Respondents
    to the Application.

[28]

The Respondents brought a counter-application seeking, among other
    things: a declaration that the easement registered against the title to the
    parties respective properties as Instrument No. R147470 is valid and that they
    have an interest in the lands upon which the Pipeline is situate; an order
    requiring the Mihaylovs to remove any and all obstructions from the Water Pipe
    Easement; and, an order permitting the Respondents to enter onto the Mihaylov Land
    for the purpose of burying a new water line within the boundaries of the
    existing Water Pipe Easement (the Counter-Application).

THE DECISION BELOW

[29]

The judge hearing the Application and Counter-Application identified two
    issues for resolution: (1) did the 1968 Agreement and the 1979 Agreement create
    an easement; and (2) if so, does the easement remain valid.

[30]

The application judge rejected the Applicants contention that the 1968
    Agreement and the 1979 Agreement were licences.  In his view, both of those
    documents possess all four characteristics of an easement: the Abel Land is the
    dominant tenement and the Mihaylov Land is the servient tenement; the easement
    accommodates the Abel Land by providing it with water from the Lake; the owners
    of the two parcels of land are different persons; and permitting the
    installation and use of a water pipe across or under the servient tenement is a
    right that can form the subject-matter of a grant.

[31]

The application judge then considered the Applicants alternative
    submission that a violation of the
Planning Act
, R.S.O. 1970, c. 349
    (the 1970 Act) invalidated the 1979 Agreement.  He noted that the parties
    agreed that: (1) the subdivision control provisions of the 1970 Act applied to
    both properties by 1979; and (2) in relation to R147470, there was no
    registered plan of subdivision that provided for an easement and no consent
    from the local land division committee.  He also noted that s. 29(2) of the
    1970 Act prohibited any conveyance that did not meet these (or other
    inapplicable) requirements, where the grantor retained an interest in abutting
    land.

[32]

The Applicants submitted that since the grantors under Instrument No.
    R147470 (
i.e.
, the then owners of the Mihaylov Land) retained title to
    the land through which the easement passed, they retained an interest in land
    that abutted the easement.  Thus, the conveyance of the easement was caught by
    s. 29(2) and, as the 1979 Agreement/Instrument No. R147470 were in breach of
    its requirements, those documents were ineffective to create an easement, or
    any other interest in land, in favour of the grantees.

[33]

Before the application judge, the Respondents conceded that the 1979
    Agreement by itself would require approval under the 1970 Act and that a breach
    of s. 29(2) of the 1970 Act meant that the purported conveyance of the easement
    was void.

[34]

However, the application judge found that s. 50(22) of the
Planning
    Act
, R.S.O. 1990, c. P.13 (the 1990 Act) is applicable to validate the
    otherwise defective creation of the easement over the Mihaylov Land (at para.
    51).  He reasoned as follows.

[35]

Section 50(22) (the curative provision) can remedy historical breaches
    of the subdivision control sections of the
Planning Act
where subsequent
    deeds or transfers contain certain prescribed statements by the grantor, the
    grantors solicitor, and the grantees solicitor.  After the enactment of what
    is now s. 50(22), the various pre-printed forms of transfers, deeds, etc. that
    are used to convey real property in Ontario have included passages that contain
    the statements contemplated in the statute, so that they may be signed or
    completed by the parties.  It is intended that when the statements are
    completed, they will trigger the application of s. 50(22).

[36]

Section 50(22) of the 1990 Act reads as follows:

50(22) Where a deed
    or transfer,


(a) contains a statement by the grantor, verifying that to the
    best of the grantors knowledge and belief the deed or transfer does not
    contravene this section;

(b) contains a statement by the grantors solicitor, verifying
    that,

(i) he or she has explained the effect of this section to
    the grantor,

(ii) he or she has made inquiries of the grantor to
    determine that the deed or transfer does not contravene this section,

(iii) based on the information supplied by the grantor, to
    the best of the solicitors knowledge and belief, the deed or transfer does not
    contravene this section, and

(iv) he or she is an Ontario solicitor in good standing; and

(c) contains a statement by the grantees solicitor, verifying
    that,

(i) he or she has investigated the title to the land and,
    where relevant, to abutting land,

(ii) he or she is satisfied that the record of title to the
    land and, where relevant, to abutting land, reveals no existing contravention
    of this section or a predecessor thereof or of a by-law passed under a
    predecessor of this section or of an order made under clause 27 (1) (b), as it
    existed on the 25th day of June, 1970, of
The Planning Act
, being
    chapter 296 of the Revised Statutes of Ontario, 1960, or a predecessor thereof,
    that has the effect of preventing the conveyance of any interest in the land,

(iii) to the best of his or her knowledge and belief, the
    deed or transfer does not contravene this section, and

(iv) he or she acts independently of the grantors solicitor
    and is an Ontario solicitor in good standing; and

(d) is registered under the
Land Titles Act
or the
Registry
    Act
,

any contravention of this section or a predecessor
thereof or of a by-law passed under a predecessor of this section or of an
    order made under clause 27 (1) (b), as it existed on the 25th day of June,
    1970, of
The Planning Act
, being chapter 296 of the Revised Statutes
    of Ontario, 1960, or a predecessor thereof,
does not and shall be deemed
    never to have had the effect of preventing the conveyance of any interest in
    the land
, but this subsection does not affect the rights acquired by any
    person from a judgment or order of any court given or made on or before the day
    the deed or transfer is registered.  [Emphasis added.]

[37]

The application judge then considered the predecessor provision to s.
    50(22) discussed by Killeen D.C.J. in
Reeve-Burns v. Pelkman

(1989),
    70 O.R. (2d) 113 (Dist. Ct.), at pp. 117 and following.  The quotations that
    the application judge set out from that decision stress, among other things,
    the remedial nature of [now] s. 50(22).

[38]

Thereafter, the application judge found that the transfer/deed by which
    116 came to be the owner of the Abel Land contained the appropriate blank
    statements to be signed.  However, while the statements by the transferor and
    the transferors solicitor were completed, the statement of the solicitor for
    the transferee was not.  As a result, the application judge found that 116
    could not take the benefit of s. 50(22) by reason of its own deed.

[39]

The application judge then reviewed the transfer of the Mihaylov Land to
    a previous owner in 2004.  He found that the prescribed statements had been
    completed.  Similarly, when the Mihaylovs bought their property in 2012, the
    transfer contained the completed statutory statements.

[40]

In the circumstances, the Applicants submitted that s. 50(22) could only
    cure any potential defect in the title to their land  it could not cure a
    defect in the title to the Abel Land.

[41]

The application judge disagreed.  He set out the analysis of Quinn J. in
Jacuniak v. Tamburro
(2002), 4 R.P.R. (4th) 1 (Ont. S.C.), at paras.
    63 and 66.   He applied the logic in those paragraphs and found that when the
    2004 conveyance of the Mihaylov Land took place and the relevant boxes in the
    form of transfer were completed, it gave life to an easement that had been
    stillborn in 1979.  Thus, the application judge concluded, the easement
    conveyed by the 1979 Agreement became legally valid by reason of the conveyance
    of the Mihaylov Land in 2004 (at para. 48).

[42]

The application judge went on to explain that there was no unfairness to
    the Applicants arising from the application of s. 50(22) because they were on
    notice of the existence of the Pipeline easement when they completed the
    purchase of their land.

THE JUDGMENT UNDER APPEAL

[43]

Accordingly, by judgment dated February 25, 2016 (the Judgment), the application
    judge dismissed the Application and granted the Counter-Application.  The Judgment:

1. declares that
    the easement registered against the title to the parties respective properties
    as Instrument No. 147470 is valid
[2]
and the Respondents have an easement over the Mihaylov Land in the location of
    the galvanized water pipe that was the subject of the 1979 [Agreement] (at para.
    2);

2.  orders
    the Applicants to remove any and all obstructions from the Water Pipe
    Easement (at para. 3); and

3.  orders
    that the Respondents are permitted to enter upon the Mihaylov Land for the
    purpose of repairing the existing water line or burying a new water line within
    the boundaries of the Water Pipe Easement provided they shall repair any damage
    done to the [Mihaylov Land] as a result (at para. 4).

THE ISSUES

[44]

The Applicants submit that the application judge erred in finding that:

1.

the 1968
    Agreement and the 1979 Agreement are grants of an easement; and

2.

although the
    grant of easement in the 1979 Agreement breached s. 29(2) of the 1970 Act, s.
    50(22) of the 1990 Act applied to validate the otherwise defective easement.

In the event that this court should find that an easement
    was granted and the historical breach of the 1970 Act was cured by s. 50(22) of
    the 1990 Act, the Applicants ask the court to answer the following questions:

3.

Did the
    application judge err in failing to find that: (a) the easement only permits the
    previously installed Pipeline to be left in its present position; and (b) the
    Respondents can make repairs to the Pipeline only with the Applicants
    agreement?

4.

Does the
    Respondents failure to have paid the sum of $10 per year for the easement, as
    required by the 1979 Agreement, render that agreement null and void?

ANALYSIS

ISSUE #1    Did the application judge err in finding that the
    1968 Agreement and the 1979 Agreement are grants of an easement?

[45]

In my view, the 1968 Agreement is a licence and,
    therefore, the application judge did err in finding that it was the grant of an
    easement.  However, I agree with the application judge that the 1979 Agreement was
    the grant of an easement.

[46]

To explain how I reach these conclusions, I will
    begin by distinguishing a licence from an easement.  With those distinctions in
    mind, I will then examine each of the 1966, 1968 and 1979 Agreements to see
    whether the right given by each agreement was a licence or an easement.

Licences and Easements Distinguished

[47]

The following are well-established propositions
    of law which can be found in real property texts such as
Anne Warner La
    Forest,
Anger & Honsberger Law of Real Property
, loose-leaf, 3rd
    ed. (Toronto: Thomson Reuters, 2016) vol. 2, at paras. 16:40.10 to 16:40.20, 17:20.10
    to 17:20.20; and
Gale on Easements
, 19th ed. (London: Sweet &
    Maxwell, 2012), at pp. 4-42, 79-82.

[48]

The right to do something on land belonging to
    another can be a licence or an easement.  A right to walk over a path on
    anothers land is a good example of this.  If I give you the right to walk along
    a path on my land so that you can reach the lake in front of it, that right may
    be a licence or an easement.  In its simplest terms, it depends upon whether I
    gave you alone the right to walk along the path or whether I agreed that the
    right to walk along the path was to bind my land and benefit yours.  The former
    is a personal right known as a licence.  The latter is a proprietary right,
    known as an easement.

[49]

Because a licence is a personal right, a licence
    would give only you the right to walk along the path on my property to reach
    the lake  that right would not extend to anyone else.  Further, that right is neither
    connected to the use of any lands which you might own nor does it amount to an
    estate or interest in my land.  The licence simply makes lawful that which
    would otherwise be trespass.  Without the licence, the act of your entering on
    my land and walking along it to reach the lake would amount to trespass. 
    Importantly, unless we agree otherwise, I may revoke, at will, the permission I
    gave you (
i.e.
, the licence).

[50]

But if the right that I granted was an easement 
    and not a mere licence  the situation is quite different.  Because an easement
    is a proprietary right  not a personal one  the right to walk along the path on
    my land is not limited to you alone; it would attach to your land so that all those
    who lawfully occupy your land (present and future) would have the right to walk
    along the path on my land to the lake.  It would also bind my land so that the
    owners of my land (present and future) would have to permit the lawful
    occupants of your land to walk along the path.  Moreover, because an easement
    is a proprietary interest in or right over my land, while I retain absolute
    dominion over my property, my use of the land is subject to the limitations
    imposed by the easement.

[51]

Re Toscano and Dorion
(1965), 51 D.L.R.
    (2d) 298 (Ont. C.A.) and
Wiener v. Elgin (County)
, [1947] 2 D.L.R. 346 (Ont. H.C.) are two examples of situations in
    which the court used these principles to determine whether the right in
    question was a licence or an easement.

[52]

Four characteristics are essential to the grant
    of an easement:

1.

there must be a dominant and a servient tenement;

2.

the easement must accommodate the dominant tenement;

3.

the owners of the dominant and servient tenements must be different
    persons; and

4.

a right over land cannot amount to an easement unless it is capable
    of forming the subject-matter of a grant.

See
Barbour v. Bailey
, 2016 ONCA 98, 66
    R.P.R. (5th) 173, at para. 56; and
Depew v. Wilkes
(2002), 60 O.R.
    (3d) 499 (C.A.), at para. 18.

[53]

If there is an easement in this case, the Abel
    Land is the dominant tenement and the Mihaylov Land is the servient tenement. 
    The Pipeline accommodates the dominant tenement in that it serves the Abel Land
    and is reasonably necessary for the better enjoyment of that land.  And,
    clearly, the two parcels of land are separately owned and have been throughout. 
    I will consider the fourth characteristic of easements, below, when discussing
    the 1979 Agreement.

[54]

With these broad principles in mind, let us now
    consider the three agreements in play in this matter.

The 1966 Agreement

[55]

In 1966, Muriel S. Johnson owned the Mihaylov
    Land.  As the 1966 Agreement could not be located and is not in the record, our
    knowledge of its terms comes from the preamble to the 1968 Agreement.  That
    preamble reads as follows:

WHEREAS by agreement dated the 8th day of October, 1966, the
    prior owner of the property, Frederick G. Hill and Mary Hill, had the right
    during their ownership to lay a pipe line over the lands of the Party of the
    First Part;

[56]

Based on a plain reading of the preamble, it is clear
    that the 1966 Agreement was the grant of a licence and not an easement.

[57]

The only right given by the 1966 Agreement was to
    lay the Pipeline over Ms. Johnsons land.  That right was limited: Frederick
    G. Hill and Mary Hill had the right during their ownership.  There is nothing
    in the preamble to indicate to what the word ownership was referring.

[58]

As the right to lay the Pipeline on the Mihaylov
    Land could only be exercised by the Hills during the period of their
    ownership, it is clear that the right was given to them personally.  The
    right could not have attached to any land which the Hills might have owned
    because it expired when their ownership ended.

[59]

That the right was given to the Hills personally
    is reinforced by the fact that there is no mention in the 1966 Agreement of
    what lands, if any, the Hills owned.  Even if the Hills did own the Abel Land
    when they entered into the 1966 Agreement, the fact that the 1966 Agreement does
    not mention those lands shows that there was no intention that the right to lay
    the Pipeline was to attach to the Abel Land.

[60]

Therefore, the 1966 Agreement gave the Hills a mere
    licence to enter onto Ms. Johnsons land and lay the Pipeline.

The 1968 Agreement

[61]

The 1968 Agreement consists of five paragraphs: the
    one-paragraph preamble which refers to the 1966 Agreement, set out and discussed
    immediately above; followed by three operative provisions; and a final
    paragraph which describes the Party of the First Part (
i.e.
, Ms. Johnson) as the owner of the lands bearing the legal
    description of the Mihaylov Land.

[62]

The one-paragraph preamble, as we have seen, shows
    that the Pipeline was laid pursuant to a licence granted by Ms. Johnson to the
    Hills.

[63]

Let us now consider each of the three operative
    provisions.

[64]

In the first provision, the Party of the First
    Part (Ms. Johnson) covenants and agrees that, in consideration of the sum of
    $1.00, the Parties of the Second Part (Paul Plewes, Harvey Duxbury and Ruth
    Duxbury) shall be able to leave the line in its present position and to draw
    water from Sturgeon Lake.

[65]

On a plain reading of the first provision, the
    right to leave the Pipeline in place and draw water from Sturgeon Lake was
    given by Ms. Johnson to Mr. Plewes, Mr. Duxbury and Ms. Duxbury personally. 
    This can be seen because the Parties of the Second Part are described only by
    their names and places of residence and not by reference to ownership of any
    piece of land.  Indeed, there is nothing in the 1968 Agreement to indicate that
    any of Paul Plewes, Harvey Duxbury or Ruth Duxbury owned any land.

[66]

In the second provision, the Parties of the
    Second Part covenant and agree that if they should have to enter on the lands
    of the Party of the First Part to make any repairs which the Party of the
    First Part agrees that they may do, they will repair any damage done to those lands
    as a result of the repairing.

[67]

The second provision is a personal promise by
    Paul Plewes, Harvey Duxbury and Ruth Duxbury that they would make only those repairs
    to the Pipeline that Ms. Johnson agreed they could make and that they would
    repair any damage to Ms. Johnsons land that resulted from the repairs.

[68]

In the third provision, the Parties of the
    Second Part agree to pay for this easement the sum of $10.00 per year.

[69]

Again, the promise to pay in the third provision
    is a personal one given by the three named individuals who are the Parties of
    the Second Part.

[70]

As I previously explained, an easement is a
    proprietary right that gives the owner of the dominant tenement an interest in
    or right over the servient tenement.  There is nothing in the 1968 Agreement to
    suggest that the right to leave the Pipeline in position was intended to attach
    to land owned by the Parties of the Second Part.  Indeed, such a construction is
    not possible given that the 1968 Agreement makes no reference whatsoever to lands
    owned by the Parties of the Second Part.  The only reference to land is in the fifth
    paragraph of the 1968 Agreement and that reference is to Ms. Johnsons land
    alone.

[71]

As we have seen, an easement requires both a
    dominant and a servient tenement and the easement must accommodate the dominant
    tenement.  While there is a legal description of the Mihaylov Land in the 1968
    Agreement and the word easement is used in the third provision, those two
    things cannot change the fundamentally personal nature of the 1968 Agreement. 
    The failure to identify (or even refer to) a dominant tenement is fatal to the
    notion that the 1968 Agreement is the grant of an easement.

The 1979 Agreement

[72]

The 1979 Agreement contains three operative
    provisions that are virtually identical to the three operative provisions in the
    1968 Agreement.  That said, the 1979 Agreement is materially different from the
    1968 Agreement in five ways.

[73]

First, the title to the 1979 Agreement is WATER
    PIPE EASEMENT.  That title does not appear on the 1968 Agreement, which is styled
    as an Indenture.

[74]

Second, the parties to the 1979 Agreement are no
    longer identified only as individuals.  In addition, they are identified in
    relation to their ownership of land.  The Parties of the First Part are
    identified as the owners of the lands described in Schedule A to the 1979 Agreement,
    which is the Mihaylov Land.  And the Parties of the Second Part are identified
    as the owners of the lands described in Schedule B to the 1979 Agreement,
    which is the Abel Land.

[75]

Third, the preamble refers to the 1968 Agreement
    and describes the Pipeline as an easement over the Mihaylov Land to serve the
    Abel Land.

[76]

Fourth, both the Mihaylov Land and the Abel Land
    are clearly identified by means of their legal descriptions in Schedules A
    and B respectively.

[77]

Fifth, the 1979 Agreement concludes with a
    broadly worded enurement clause which states that it shall enure to the
    benefit of and is binding upon the Parties hereto, their heirs, executors,
    administrators, successors and assigns.

[78]

It is also worthy of note that, for the first
    time, the 1979 Agreement was registered on title to both parcels of land as
    Instrument No. R147470.

[79]

In short, unlike the earlier agreements, the
    1979 Agreement is capable of amounting to the grant of an easement.  It refers
    to the parties by their ownership of the dominant and servient tenements
    respectively; contains the legal descriptions of both parcels of land;
    describes the Pipeline as an easement to serve the Abel Land; and contains a
    broadly worded enurement clause that makes the 1979 Agreement binding not only
    on the parties but also, among other things, their successors 
i.e.
, their successors in title.

[80]

To determine whether the 1979 Agreement was the
    grant of an easement, we must consider the characteristics of an easement.

[81]

As I have already mentioned, the first three
    characteristics of an easement are present in the 1979 Agreement.  The Abel
    Land is the dominant tenement and the Mihaylov Land is the servient tenement.  The
    Pipeline accommodates the dominant tenement in that it serves the Abel Land and
    is reasonably necessary for the better enjoyment of that land.  And the dominant
    and servient tenements are owned by different persons.

[82]

But what of the fourth characteristic of an
    easement?  Is that characteristic satisfied by the 1979 Agreement?

[83]

The application judge found that it was.  At
    para. 26 of his reasons, the application judge said that permitting the
    installation and use of a water pipe across or under the servient tenement is a
    right that can form the subject-matter of a grant.

[84]

I agree that permitting the installation and use
    of a pipeline is a right that can form the subject-matter of a grant.  However,
    the grant of the easement in the 1979 Agreement says nothing about the
    installation and use of a water pipe across or under the servient tenement. 
    The 1979 Agreement provides that the owners of the Abel Land shall be able to
    leave the [Pipeline] in its present position.

[85]

Further, the fact that a pipeline is capable of
    forming the subject matter of a grant is not the full extent of the inquiry
    required by the fourth characteristic.  In my view, the fourth characteristic also
    requires the court to consider the express terms of the grant to determine,
    among other things, whether the rights purported to be given by the grant are
    too wide or vague.  I reach this view based primarily on
Re
    Ellenborough Park
, [1956] Ch. 131 (Eng. C.A.),
in which
    the English Court of Appeal grappled directly with the meaning of the fourth
    characteristic.

[86]

In
Ellenborough Park
, the question for
    the Court was whether the owners of certain houses surrounding Ellenborough
    Park had an easement over the park.  The park was owned by persons other than
    the homeowners.  The Court concluded that the right to use the park was an
    easement.

[87]

After referring to the four characteristics of
    an easement set out above, the Court remarked that the exact significance of
    the fourth characteristic was at first sight perhaps, not entirely clear (at
    p. 164).  It said that, among other things, the Court had to consider the
    actual terms of the grant to determine whether the rights purported to be
    given are expressed in terms of too wide and vague a character and whether such
    rights would amount to rights of joint occupation or would substantially deprive
    the servient tenement owner of proprietorship or legal possession.

[88]

In effect, the Applicants submit that the grant in
    the 1979 Agreement is too wide and vague because it neither contains the actual
    location of the Pipeline nor gives a description of the easement.  They contend
    that the grant must include a local, registrable or metes and bounds
    description of the easement.  They say that the absence of a specified location
    and description of the Pipeline has led to the current situation in which the
    Respondents contend (at least at some points during the proceedings) that the
    1979 Agreement gives them the right to enter onto the Mihaylov Land and dig
    wherever is necessary to repair the Pipeline.

[89]

I agree, in general terms, that the absence of a
    description of the easement and its location is concerning.  However, as
Ellenborough
    Park

indicates, the court must consider the actual
    terms of the grant to determine whether it is too wide or vague.  Having
    done that, I conclude that the grant is neither too wide nor too vague.

[90]

In the 1979 Agreement, the grant of the easement
    is contained in the first operative paragraph.  That paragraph states that, in
    consideration of $1.00, the owners of the servient tenement agree with the
    owners of the dominant tenement that the latter shall be able to leave the
    said water line in its present position, and to draw water from Sturgeon Lake.

[91]

While the location of the underground Pipeline
    is not specified or otherwise described in the 1979 Agreement, on the record,
    the parties know where it is located.  Mr. Mihaylov describes the Pipelines
    location as follows:  [t]he waterline is buried and runs roughly six inches
    south of and parallel to the north boundary of the Lands.

[92]

Furthermore, the parties were aware of the 1979
    Agreement at the time each bought their parcels of land because Instrument No. R147470
    was registered on title to both parcels.  If they wished to be certain of the
    Pipelines location, they could have taken the steps necessary to determine
    that.

[93]

The absence of a description of the easement is
    more troublesome.  One simple example will demonstrate why.  On the record, we
    know nothing about the Pipeline other than its approximate location and the
    fact that it is apparently made of galvanized steel.  If the Pipeline were six inches
    in diameter when it was installed, could the owners of the dominant tenement
    replace it with a pipeline that was two feet in diameter?  Or with one that was
    six feet in diameter?  The uncertainty engendered by the absence of a
    description of the easement has obvious implications for the owners of both the
    dominant and servient tenements.  Indeed, this uncertainty is evident by a consideration
    of para. 4 of the Judgment, which provides that the Respondents can bury a new
    water line within the boundaries of the Water Pipe Easement.  Because the boundaries
    of the easement are not specified, known or readily ascertainable, how could
    the parties know whether a new water line was within the boundaries or not? 
    Put another way, if the existing Pipeline is found to be six inches in diameter
    and the Respondents seek to install a new pipeline that is two feet in diameter
    in its place, is the new pipeline within the boundaries of the existing
    Pipeline or not?  Without a description of the boundaries of the Pipeline, how can
    that question to be answered?

[94]

This court was not pointed to any case law directly
    on point.  However, counsel for the Applicants urged the court to turn to
Fallowfield
    v. Bourgault

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

[95]

In
Fallowfield
,
    Feldman J.A., writing for the majority, stated that the issue before the court
    was whether certain ancillary rights were reasonably necessary to the exercise
    or enjoyment of an easement.  At para. 15 of
Fallowfield,
Feldman J.A.
    said that it was necessary to first interpret the extent of the easement based
    on the wording of the grant, the circumstances at the time the grant was made,
    and the potential application of the ancillary rights doctrine.  This
    statement suggests that it must be possible to interpret the extent of the
    easement based on the wording of the grant.  Generally, one would have thought
    that some type of description of the easement would be required to interpret the
    extent of the easement.

[96]

Fallowfield

also assists because
    it demonstrates that the courts are loath to imply an ancillary right that
    would have the effect of enlarging the dimensions of an easement outside its described
    boundaries (at para. 24).  Absent some type of description of the boundaries or
    dimensions of the easement, how could the court know whether it was enlarging the
    dimensions of the easement?

[97]

Despite these concerns, in the present case, because
    of the wording of the grant in the 1979 Agreement, the absence of a description
    of the easement is not fatal.  Recall that the grant is contained in the first
    operative provision of the
1979 Agreement.  In that provision, the
    servient tenement owners agree with the dominant tenement owners that the
    latter shall be able to leave the said water line in its present position, and
    to draw water from Sturgeon Lake.  Nothing in the words of grant (or otherwise
    in the 1979 Agreement) gives the Respondents the right to install a new
    pipeline or replace the existing one.  Accordingly, it does not matter that the
    Pipeline is not described more particularly.  The Respondents have the right only
    to have the Pipeline left in position on the Mihaylov Land, no matter what its dimensions.

[98]

Accordingly, in my view, the Applicants have succeeded in part on
    this issue.  I agree that the application judge erred in finding that the 1968
    Agreement was the grant of an easement.  And, while I agree with the
    application judge that the 1979 Agreement was the grant of an easement, I do
    not agree with his view of the scope of that easement.  I will return to a
    consideration of the scope of the grant in the 1979 Agreement, below, when
    discussing the third issue raised on this appeal.

ISSUE #2    Did the application judge err in finding that although
    the grant of  easement in the 1979 Agreement breached s. 29(2) of the 1970 Act,
    s. 50(22) of the 1990 Act applied to validate the otherwise defective easement?

[99]

It will be recalled that the application judge decided that s. 50(22) of
    the 1990 Act applied to validate the easement based on the parties agreement
    on certain propositions.  Those propositions included that: the subdivision
    control provisions of the 1970 Act applied to both properties by 1979; in
    relation to Instrument No. R147470, there was no registered plan of subdivision
    that provided for an easement and no consent from the local land division
    committee; and, at the relevant time, s. 29(2) of the 1970 Act prohibited any
    conveyance that did not meet these (or other inapplicable) requirements, where
    the grantor retained an interest in the abutting land, and the grantor did
    retain such an interest.

[100]

Nothing in these
    reasons is to be taken as approval of those propositions.  No challenge was
    taken to their correctness in this court.

[101]

The sole
    question raised on this issue is whether the application judge correctly found
    that s. 50(22) of the 1990 Act applied and validated the (allegedly) defective
    easement.  The Applicants renew the argument that they made below: when 116
    acquired title to the Abel Land, the solicitor for the transferee did not
    complete the solicitors statement; therefore, the easement was not conveyed to
    116 (the purported dominant tenement); and s. 50(22) cannot be read to remedy
    the defect in title to the Abel Land.  At most, they say, s. 50(22) could cure
    any potential defect in title to the Mihaylov Land.

[102]

I agree with the
    application judge, for the reasons that he gave, that s. 50(22) of the 1990 Act
    applied to validate the easement.

[103]

Accordingly, I
    would not give effect to this ground of appeal.

ISSUE #3    Did the application judge err in failing to find
    that: (a) the easement permitted only the previously installed water Pipeline
    to be left in its present position; and (b) the Respondents can make repairs to
    the Pipeline only with the Applicants agreement?

[104]

Paragraph 4 of
    the Judgment permits the Respondents to enter upon the Mihaylov Land for the
    purpose of repairing the existing water line or burying a new water line within
    the boundaries of the Water Pipe Easement.  However, on a plain reading of the
    1979 Agreement, the Respondents have no right to install or bury a new water
    line on the Mihaylov Land and they can make repairs to the existing Pipeline only
    with the Applicants prior agreement.

[105]

Therefore, in my
    view, the answer to the question posed by Issue #3 is yes, he did so err.

The Standard of Review

[106]

The parties did
    not address the standard of review that this court is to apply to the
    application judges interpretation of the 1979 Agreement.  It was that
    interpretation which led to para. 4 of the Judgment.  Assuming that the
    standard is the deferential one enunciated in
Sattva Capital Corp. v.
    Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, in my view, no deference
    is owed to the application judges interpretation because it is based on an
    erroneous legal premise.

[107]

The application
    judges determination that the 1979 Agreement was the grant of an easement
    consists of a single paragraph (at para. 31 of his reasons).  Its brevity is
    understandable, as the application judge finds that it continued rights that
    already existed as a result of the 1968 Agreement.  However, as I explain
    above, the application judge erred in law in finding that the 1968 Agreement
    was the grant of an easement.  Therefore, the 1979 Agreement did not continue
    the rights of an easement.  Rather, for the first time, the 1979 Agreement was
    the grant of an easement.  Because the application judges interpretation of
    the 1979 Agreement is based on an erroneous legal premise (that it continued
    pre-existing easement rights), deference is not owed to his interpretation of
    its terms.

No Right to Bury a New
    Water Line

[108]

The application
    judges interpretation  which would permit the Respondents to bury a new water
    line on the Mihaylov Land  runs contrary to the express language of the grant. 
    As Rothstein J. wrote in
Sattva
: [w]hile the surrounding
    circumstances will be considered in interpreting the terms of a contract, they
    must never be allowed to overwhelm the words of that agreement (at para. 57).

[109]

The grant of the
    easement in the 1979 Agreement is contained in the first operative provision. 
    For ease of reference, I set it out again now.

NOW THIS AGREEMENT WITNESSETH that in consideration of the sum
    of ONE DOLLAR ($1.00), the parties of the first part hereby covenant and agree
    with the parties of the second shall be able to leave the said water line in
    its present position, and to draw water from Sturgeon Lake.

[110]

On a plain
    reading of this provision, the owners of the servient tenement grant the owners
    of the dominant tenement a single right: to leave the Pipeline in place and to
    draw water from the Lake.  Had the parties intended that the owners of the
    dominant tenement could replace the Pipeline, it would have been a simple
    matter to have included words to that effect.  They did not.

[111]

The application
    judge interpreted the words of grant as if they gave the dominant tenement a
    free-standing right to draw water from the Lake by means of a pipeline.  With
    respect, that interpretation ignores the initial words of the grant which
    limits the right to having the Pipeline left in place.  The limits of the right
    are determined by reference to the language of the express grant creating the
    right:
Golisky v. Romanuik
, [1951] 2 D.L.R. 475 (Ont. C.A.), at para.
    6.  The interpretation of a written agreement must be grounded in the text and
    read in light of the entire document (
Sattva
, at para. 57).

[112]

And, I see
    nothing in the words of the 1979 Agreement that would permit an expansion of
    the express words of grant to include a right on the part of the dominant
    tenement owners to install a new pipeline.  In saying this, I am mindful of the
    repair provision in the 1979 Agreement, a matter to which I will return
    shortly.  Before doing so, however, I would like to discuss the surrounding
    circumstances at the time the 1979 Agreement was executed because, in my view,
    such a consideration deepens our appreciation of the intention of the parties,
    as expressed in the words of grant.

[113]

The surrounding
    circumstances include the fact that the 1979 Agreement was the third of three
    agreements made in respect of the Pipeline, the other two being the 1966 Agreement
    and the 1968 Agreement.  As I have already explained, under the 1966 Agreement,
    Ms. Johnson gave a licence to Frederick G. Hill and Mary Hill to lay the Pipeline
    on her land.  From what we know of the 1966 Agreement, Ms. Johnson received
    nothing in exchange for granting the Hills that licence.  It was the act of a
    kind and generous neighbour.  As the right given was a licence, Ms. Johnson
    could have revoked it at will.  If that had occurred, not only did the right to
    lay the Pipeline disappear, so too did the right to draw water from the Lake by
    means of it.

[114]

Under the 1968
    Agreement, Ms. Johnson gave a licence to Mr. Plewes, Mr. Duxbury and Mrs.
    Duxbury which permitted the Pipeline to remain in place on her land.  Without
    that licence, Ms. Johnson had the right to remove the Pipeline at will.  She
    received nominal consideration for the licence  $1 on execution of the 1968
    Agreement and $10 per year for the currency of the 1968 Agreement.  Again, the
    1968 Agreement appears to be a neighbourly act of kindness. In the
    circumstances, it is understandable that she gave Mr. Plewes and the Duxburys a
    very limited right  the right to have the Pipeline left in place on her
    property.  Again, however, as the 1968 Agreement was a licence, Ms. Johnson
    could have revoked it at will and removed the Pipeline.

[115]

The 1979
    Agreement is significantly different from the 1968 Agreement in that it was the
    grant of an easement and not a mere licence.  That said, it is important to
    note that the words of grant in the 1979 Agreement are the same as those which
    were used in the 1968 Agreement: the servient tenement owners agreed that the
    dominant tenement owners had the right to leave the Pipeline in its present
    position and draw water from Sturgeon Lake.  Just as in the case of the 1968
    Agreement, the owners of the servient tenement received virtually nothing in
    exchange for the grant  $1 on execution and the promise of $10 per year
    thereafter.

[116]

Neither the
    language of the grant nor the circumstances existing at the time of its
    creation support the scope of the easement as found by the application judge. 
    Rather, both lead to the conclusion that the right is confined to that which
    was expressly given: only the right to have the Pipeline left in place.  Of
    course, by virtue of the fact that the 1979 Agreement created an easement,
    rather than a licence, this right could no longer be revoked at will.

The Repair Provision

[117]

The repair provision
    is contained in the second operative provision in the 1979 Agreement.  For ease
    of reference, the wording of the repair provision is set out again now:

The Parties of the Second Part [owners of the dominant
    tenement] covenant and agree that if they should have to enter on the lands of
    the Party of the First Part [owners of the servient tenement] to make any
    repairs which the Party of the First Part agrees that they may do, that they
    will repair any damage done to the lands of the Party of the First Part as a
    result of such repairing.

[118]

It is critical
    to appreciate that the repair provision is a promise flowing from the dominant
    tenement owners to the servient tenement owners and not vice versa.  The
    servient tenement owners could have included a right of repair in the grant but
    they did not.  In the repair provision in the 1979 Agreement, the right of
    repair is a promise given by the dominant tenement owners to the servient
    tenement owners.  And what do they promise?  That they would not make repairs
    to the Pipeline without the prior agreement of the servient tenement owners. 
    The dominant tenement owners could not promise (covenant and agree) that they
    would have a right to repair the Pipeline because that right was not theirs to
    give.  That right belonged to the servient tenement owners because it involved
    acts upon their land.

[119]

The servient
    tenement owners chose not to give a right of repair to the dominant tenement
    owners.  Instead, they accepted the promise of the dominant tenement owners
    that the latter would not repair the Pipeline without their permission and that
    they would repair any damage to the servient tenement resulting from the
    repairing.

[120]

A right of
    repair such as that which the application judge found cannot be implied because
    it runs afoul of the express terms of the repair provision in the 1979
    Agreement.  Moreover, the application judges interpretation of the repair
    provision is based on an incorrect premise  namely, that the grant of the
    easement included the right to repair the Pipeline.  Put another way, his
    interpretation assumed that the servient tenement owner gave the right of repair
    to the dominant tenement owner.  As I have shown, that is not the case. The repair
    provision is a promise flowing from the dominant tenement owner to the servient
    tenement owner.

[121]

Accordingly, I
    would allow this ground of appeal.

ISSUE #4    Does the Respondents failure to have paid the sum
    of $10 per year for the easement, as required by the 1979 Agreement, render
    that agreement null and void?

[122]

The Applicants ask
    this court to determine whether the 1979 Agreement is null and void because the
    owners of the dominant tenement have not made the requisite payments of $10 per
    year.  I would decline to decide this issue because it is, in effect, being
    raised for the first time on appeal.

[123]

I begin by
    noting that this issue was not raised in the pleadings.  It is fundamental to
    the litigation process that lawsuits be decided within the boundaries of the
    pleadings  the parties are entitled to have a resolution of their differences
    on the basis of the issues joined in the pleadings:
Rodaro v. Royal Bank of
    Canada
(2002), 59 O.R. (3d) 74 (C.A.), at para. 60.

[124]

I next consider
    the application judges reasons on the issue.  The full extent of those reasons
    are contained in para. 60, which reads as follows:

[60] The final point concerns the obligation of 116 to pay $10
    per year for the easement. Apparently neither side was aware of this
    requirement until it was raised in 2014 by the Mihaylovs. In view of the
    current controversy, no payments have since been made or accepted. Now that the
    controversy is resolved, I direct 116 to pay the annual sum due to the
    Mihaylovs, retroactive to the date when they became the owners of [the Mihaylov
    Land].

[125]

The brevity of
    the application judges reasons on this issue  coupled with the fact that the
    issue was not joined in the pleadings  indicates that this issue was not
    squarely before the court below, nor was it fully argued.

[126]

Because the issue
    was not squarely raised in the pleadings and the relevant legal principles for
    its resolution have not been articulated nor tested through the adversarial
    process, it is, in effect, being raised for the first time on appeal.

[127]

In the
    circumstances, the court is not in a position to fairly decide this ground of
    appeal and I would decline to do so.

DISPOSITION

[128]

For these
    reasons, I would allow the appeal in part and set aside all but para. 5 of the
    Judgment.  I would declare that:

1. the
    easement granted in the 1979 Agreement and registered against the parties
    respective properties as Instrument No. R147470 is valid;

2. the scope
    of the easement is limited to leaving the existing Pipeline in its present
    position on the Mihaylov Land;

3. the
    Respondents may make only those repairs to the Pipeline which the Applicants agree
    to, in advance; and

4. if the Applicants
    permit the Respondents to enter onto the Mihaylov Land to make repairs to the
    Pipeline, the Respondents shall repair any damage done to the Mihaylov Land as
    a result of those repairs.

[129]

I would also
    make an order restraining and enjoining the Respondents from entering onto the
    Mihaylov Land for any purpose other than with the Applicants express
    agreement.

[130]

The parties agreed that the successful party should receive $4,000
    in costs.  As the Applicants have been largely successful on appeal, I would
    order costs of the appeal in their
favour
in the sum of
    $3,000, all inclusive.

[131]

If the parties are not able to agree on the matter of costs below, they
    may make written submissions on it, to a maximum of three pages, such
    submissions to be filed with the court within 10 days of the date of release of
    these reasons.

[132]

I wish to conclude these reasons by commending counsel for both
    parties for the courteous and reasonable way in which they discharged their
    obligations to their clients and to the court.  As it appears that the
Pipeline
    is in need of repair and the PVC Line on the Mihaylov Land needs to be removed,
    I hope that counsel can use those same qualities to enable the parties to put
    their differences behind them and find an amicable resolution to both matters.

Released: February 13, 2017 (E.E.G.)

E.E. Gillese
    J.A.

I agree. M.L. Benotto J.A.

I agree. L.B. Roberts J.A.





[1]

The Mihaylov Land consists of two parcels: one to the west of
    Long Beach Road and the other to the east of Long Beach Road.  The latter
    parcel is bounded on the east by the Lake.



[2]
In certain places in the documentation, including the Judgment, Instrument No.
    R147470 is inaccurately referred to as Instrument No. 14470.


