Banville et al. v. White, (2002) 167 B.C.A.C. 86 (CA)

• Judge: Finch, C.J.B.C., Ryan and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 16, 2002
• Jurisdiction: British Columbia
• Citations: (2002), 167 B.C.A.C. 86 (CA);2002 BCCA 239

Banville v. White (2002), 167 B.C.A.C. 86 (CA);

    274 W.A.C. 86

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. AP.039

Marc Andre Banville and Joan Ann Fisher-Banville (appellants/plaintiffs) v. Frank Ellison White and Heather Louise White (respondents/defendants)

Frank Ellison White and Heather Louise White (respondents/plaintiffs) v. Marc Andre Banville and Joan Ann Fisher-Banville (appellants/defendants)

(CA28538; 2002 BCCA 239)

Indexed As: Banville et al. v. White

British Columbia Court of Appeal

Finch, C.J.B.C., Ryan and Low, JJ.A.

April 16, 2002.

Summary:

The owners of adjacent lots shared a com­mon private driveway. Both lots were for­merly included in one parcel. When the owners of the original parcel subdivided, they granted an easement over lot 1 in favour of lot 2, to allow driveway access to both properties. Similarly, the original owners granted a reciprocal easement over lot 2 in favour of lot 1. Over the years, the common boundary of lots 1 and 2 was mod­ified twice. The second boundary modi­fica­tion had the effect of placing part of the right-of-way and easement over lot 1 within the boundaries of lot 2. To the south and west of that second boundary modification was a "turnaround" area located on lot 2 outside the easement over lot 1. The present owners of lot 1 (the Banvilles) and of lot 2 (the Whites) became involved in a dispute about the "turnaround". The Whites sought modification of the easement granted in their favour to include the turnaround, pursuant to s. 35(2) of the Property Law Act. In the alternative, the Whites sought rectification of the easement. The second area of dispute was over the use of the driveway itself. The Banvilles objected to the placement by the Whites of portable curbs and to the use of the driveway by the Whites for parking.

The British Columbia Supreme Court, in a decision reported at [2001] B.C.T.C. 628, granted an order modifying the easement to include the turnaround, pursuant to s. 35(2). The court ruled that parking was permitted within the area covered by the easement, so long as it did not obstruct passage on the driveway or cause damage to the easement area. The court further ruled that the instal­lation of portable curbs on the easement was unobjectionable, as long as they did not obstruct the Banvilles' right to pass and repass by motor vehicle or otherwise. See also [2001] B.C.T.C. Uned. 282, re trial costs. The Banvilles appealed.

The British Columbia Court of Appeal allowed the appeal in part.

Deeds and Documents - Topic 5051

Rectification - When available - General - The British Columbia Court of Appeal, per Finch, J.A., stated that s. 31 of the Prop­erty Law Act (and its current equival­ent, s. 35), did not give the power of rec­tification; rectification was an equitable remedy - See paragraph 36.

Deeds and Documents - Topic 5055

Rectification - When available - Intention of parties - The British Columbia Court of Appeal, per Finch, C.J.B.C., stated that in order to make a successful claim for rec­tification, it was necessary to show there was a common intention not reflected in the conveyance or contract as actually produced - However, the intention did not have to be shown in express words - See paragraph 29.

Deeds and Documents - Topic 5181

Rectification - Proof and evidence - Stan­dard of proof - The British Columbia Court of Appeal, per Finch, C.J.B.C., stated that the standard of proof required for rectification was "very clear and con­vincing proof" - See paragraph 29.

Real Property - Topic 7068

Easements, licences and prescriptive rights - Creation by prescription - Bars (per­mis­sion, etc.) - The British Columbia Court of Appeal, per Finch, C.J.B.C., noted that the acquisition of property rights by prescrip­tion was abolished by s. 24 of the Land Title Act, R.S.B.C. 1996, c. 250 - See paragraph 27.

Real Property - Topic 7172

Easements, licences and prescriptive rights - Variation of easements - By court - The British Columbia Court of Appeal held that s. 35 of the Property Law Act did not permit modification of an easement against the interests of the servient tenant - See paragraphs 18 to 26, 56.

Real Property - Topic 7298

Easements, licences and prescriptive rights - Extent of right granted - To dwellings - The owners of adjacent lots shared a com­mon private driveway - Both lots were formerly included in one parcel - When the owners of the original parcel subdi­vided, they granted an easement over lot 1 in favour of lot 2, to allow driveway access to both properties - Similarly, the original owners granted a reciprocal ease­ment over lot 2 in favour of lot 1 - The British Columbia­ Court of Appeal held that the ease­ment permitted temporary stopping on the easement, but not parking or the place­ment of portable curbs - See paragraphs 43 to 54, 56.

Cases Noticed:

Firman v. Michaleski, [1995] B.C.J. No. 2696 (S.C.), refd to. [para. 23].

Sidhu v. Chandra et al., [1997] B.C.T.C. Uned. 630 (S.C.), refd to. [para. 24].

Butlin's S.T., Re, [1976] Ch. 251, refd to. [para. 29].

McQuiggan v. Sharp, [1984] B.C.J. No. 1054 (S.C.), consd. [para. 30].

Bank of Montreal v. Vancouver Pro­fes­sion­al Soccer Ltd., [1987] B.C.J. No. 1326 (C.A.), refd to. [para. 31].

Shaughnessy Estates v. Vancouver (City) (1983), 40 B.C.L.R. 389 (S.C.), refd to. [para. 32].

Hawkes Estate v. Silver Campsites Ltd. et al. (1991), 79 D.L.R.(4th) 677 (B.C.C.A.), refd to. [para. 32].

Gasparin et al. v. Arduini, [1995] B.C.J. No. 234 (C.A.), consd. [para. 35].

Brundrett et al. v. Muckle et al., [1997] B.C.A.C. Uned. 118 (C.A.), consd. [para. 45].

Bossler v. Burton, [1993] B.C.J. No. 1614 (S.C.), refd to. [para. 51].

Hankey v. Hankey, [1994] B.C.J. No. 71 (S.C.), refd to. [para. 51].

Statutes Noticed:

Property Law Act, R.S.B.C. 1996, c. 377, sect. 35 [para. 18].

Authors and Works Noticed:

Sara, Colin, Boundaries and Easements (2nd Ed. 1996), generally [para. 29]; pp. 313, 315, 330 [para. 48].

Counsel:

S.E. Jenko, for the appellants;

D.L. Armstrong, for the respondents.

This appeal was heard at Victoria, British Columbia, on January 7, 2002, by Finch, C.J.B.C., Ryan and Low, JJ.A., of the British Columbia Court of Appeal.

The decision of the court was delivered at Vancouver, British Columbia, on April 16, 2002, and the following opinions were filed:

Finch, C.J.B.C., dissenting in part - see paragraphs 1 to 55;

Ryan, J.A. (Low, J.A., concurring) - see paragraphs 56 to 65.