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Ontario Court of Appeal places limits on the scope of deeds of easement

Oct 18, 2018

The Ontario Court of Appeal has affirmed that a deed of easement will not create an exclusive right of way to a grantee of an easement unless the deed expressly says so.  Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, held that a deed of easement, which granted certain individuals a private right of way for use of a driveway, only granted the individuals a right to use the driveway in common with others.

 The Facts

Idalgo and Nancy Raimondi (the “Easement Holders”) purchased a residential property in Caledon, Ontario (the “Residential Property”), which is surrounded by 90 acres of parkland (the “Willoughby Property”). The Willoughby Property is owned by the Ontario Heritage Trust (the “OHT”).

The only vehicular access to the Residential Property is via a driveway through the Willoughby Property. The Easement Holders do not own the driveway, but they hold an easement over it to access the Residential Property. This right of way was conferred by a deed of easement when the OHT severed the Residential Property from the Willoughby Property in 1993. The deed of easement states that the Easement Holders have been granted a “free, uninterrupted and unobstructed” right of way.

There are a number of popular hiking trails on the Willoughby Property, some of which predated the severance of the Residential Property from the Willoughby Property. The driveway that leads to the Residential Property is the most popular access point for hikers using the trails. The OHT did not permit the public to drive on the driveway, but the public was expressly invited to walk up the driveway to access the trails.

The Easement Holders brought an application seeking a declaration that the easement granted them exclusive use of the driveway, and that members of the public who walked over the driveway to access the trails were therefore trespassers.

The Easement Holders argued that: (1) they had the exclusive right over the driveway, based on the language of the deed of easement; and (2) the OHT had substantially interfered with the Easement Holders’ right of way by inviting the public to use the driveway.

The OHT argued that the deed of easement and the surrounding circumstances demonstrated that the Easement Holders did not have the right to exclusive use of the driveway.  The OHT provided evidence that it had made public statements that revealed a continued intention to allow public use of the driveway. The OHT also provided evidence of correspondence between the OHT and the initial easement holders (who owned the Residential Property before the Easement Holders) that demonstrated an understanding between the parties that the initial easement holders were not acquiring an exclusive right of way.

The application judge held that the clear language of the deed of easement did not grant the Easement Holders the exclusive use of the driveway.  The application judge also held that the OHT had not substantially interfered with the Easement Holders’ right of way because foot traffic on the driveway did not constitute a “substantial interference”.

The decision was upheld on appeal, with the Court of Appeal affirming the Easement Holders did not have any exclusive right over the driveway and that the use by the public of the driveway did not substantially interfere with the Easement Holder’s right of way.

The Takeaway

This decision illustrates that the language of a grant will govern its interpretation.  Even if a deed confers a right of way that is “uninterrupted and unobstructed”, that does not mean that the right will be exclusive, unless the deed expressly says so.

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