Ontario Court Of Appeal Summaries (September 10 – 14, 2018)

Good afternoon,

Following are the summaries for the few civil decisions released by the Court of Appeal this week.

Topics covered included trespass by an owner's invitees over lands that were subject to a right of way granted by the owner to the plaintiff, stay pending appeal in the context of the ongoing administration of the residential schools settlement, appealing a judgment for breach of a commercial lease on the basis of fresh evidence (the landlord re-letting the property shortly after judgment, resulting in over-compensation), mental distress damages for negligence claims, jurisdiction and attornment in a custody dispute, and abuse of process in the context of requesting a reconsideration of an appeal.

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Wishing everyone an enjoyable weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

CIVIL DECISIONS Raimondi v. Ontario Heritage Trust, 2018 ONCA 750

[Feldman, Benotto and Brown JJ.A.]

Counsel:

M.M. Title and P. Virc, for the appellants

19. Gandhi and S. Figliomeni, for the respondent Ontario Heritage Trust

    P.D.S. Jackson and Sarah Whitmore, for the respondent Nicola Ross

    Keywords: Real Property, Easements, Rights of Way, Trespass, Substantial Interference, Fallowfield et al. v Bourgault et al. (2003), 68 OR (3d) 417, Weidelich v de Koning, 2014 ONCA 736

    Facts:

    The appellants own a four acre residential property in Caledon (the "Property"). The Property is surrounded by ninety acres of parkland (the "Willoughby Property") owned by the Ontario Heritage Trust (the "OHT"). The only vehicular access to the appellants' residence is a one kilometre driveway through the Willoughby Property. The appellants have an easement in the nature of a right of way to use the driveway for the purpose of accessing the Property. The right of way was conferred by a deed of easement when the OHT severed the Property from the Willoughby Property.

    The Willoughby Property is home to numerous hiking trails. The OHT continuously improves existing trails and develops new hiking trails into a network connected to the Bruce Trail. The OHT actively encourages the public to use the trail network. N.R. has published a local guide to hiking trails, which includes trails on the Willoughby Property. The driveway that leads to the Property provides the most popular access point for hikers using the trails. The OHT does not permit the public to drive on the driveway, but the public is expressly invited to walk up the driveway to access the trails.

    The appellant's position was that the easement granted them exclusive use of the driveway, and the members of the public who use the driveway to access trails are therefore trespassers.

    Issues:

    (1) Did the deed of easement creating the right of way grant the appellants exclusive use of the driveway?

    (2) Did the OHT substantially interfere with the appellants' use of the driveway by establishing public hiking trails and inviting the public onto the driveway?

    (3) Did the application judge err by dismissing the application for an injunction restraining the publication of N.R.'s hiking guide?

    (4) Did the application judge err by ordering costs against the appellants?

    Holding:

    Appeal dismissed.

    Reasoning:

    (1) No, the deed of easement creating the right of way did not grant the appellants exclusive use of the driveway. In this case, the easement was expressly created by written agreement. The deed did not convey a right to exclusive use of the right-of-way. The clear language of the deed could not support any other finding.

    The application judge found that the language of the deed was "clear and unambiguous in that it makes no reference of a grant to the transferee of exclusive rights to this [right of way]" and the right of way was granted for the limited purposes of ingress and egress, which were not mutually exclusive from other users of the right of way.

    A grant of a private right of way ordinarily confers on the grantee only a right to the reasonable use of the way in common with others. The OHT, as grantor, retains all of its rights as owner of the estate in fee simple, except to the extent that those rights are inconsistent with the rights of the grantee granted by the deed. Subject to the express grant in the deed, the OHT retains the right to use the lands as it sees fit and to invite others to use them.

    (2) No, the OHT did not substantially interfere with the appellants' use of the driveway by establishing public hiking trails and inviting the public onto the driveway. The appellants have the burden to establish substantial interference. The appellants did not meet this burden.

    The appellants' support for substantial interference was: (i) 3,200 visitors walking along the right of way over three years; (ii) the appellants were forced to slow or momentarily stop their vehicles when encountering pedestrians on the right of way; (iii) the presence of pedestrians impeded snow removal; and (iv) unauthorized vehicles entered the right of way six times.

    The application judge properly concluded that these occurrences were at most minor and infrequent and did not rise to the level of substantial interference. The appellants did not provide any evidence as to the frequency of use, the size of groups, or the number of times the appellants encountered pedestrians. Further, there was no evidence that the OHT permitted or condoned such use by vehicles. Indeed, the OHT prohibited unauthorized vehicles from making use of the right-of-way, with clear signage to that effect.

    (3) No, the application judge did not err in dismissing the application for an injunction restraining the publication of N.R.'s hiking guide. There was no basis for an injunction enjoining N.R. from publishing material stating that the driveway may be used by the public for the purpose of accessing public hiking trails. Indeed, there was no evidence that N.R. ever stated that the Property is public property or otherwise encouraged anyone to trespass on it.

    (4) No, the application judge did not err by ordering costs against the appellants. The appellants failed to identify any error in principle that would entitle the Court of Appeal to interfere with the costs...