Fallowfield v. Bourgault

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Feldman, Simmons and Gillese, JJ.A.
• Citation: (2003), 180 O.A.C. 101 (CA)
• Date: 09 May 2003

Fallowfield v. Bourgault (2003), 180 O.A.C. 101 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. DE.107

Susan Pearl Fallowfield and Kenneth Harold Fallowfield (applicants and respondents by counter-application/respondents) v. Claude Bourgault and Mary Feltmate (respondents and applicants by counter-application/appellants)

(C39081)

Indexed As: Fallowfield v. Bourgault et al.

Ontario Court of Appeal

Feldman, Simmons and Gillese, JJ.A.

December 19, 2003.

Summary:

The appellants (Bourgault et al.) and respondents (the Fallowfields) were next door neighbours. Their houses were four feet apart and subject to a mutual repair easement between the houses from front to back corner. The appellants built a fence in their front yard on land not subject to the easement which reduced the respondents' access to their easement to about a 26" width. The respondents sought declaratory relief.

The Ontario Superior Court, per Seppi, J., in an endorsement reproduced at paragraph [8] below, granted the declaration, and ordered that a portion of the fence be removed to allow the respondents an unobstructed and unfettered access to the easement of a minimum of four feet. The appellants appealed.

The Ontario Court of Appeal, Gillese, J.A., dissenting, allowed the appeal. The court held that as worded the easement extended only to the front corners of the respective houses and did not grant any right to the respondents to enter the easement from the appellants property in front of the easement (i.e., as worded the respondents could only enter the easement from their own property). The court rejected the respondents' argument that they had an ancillary right to enter their easement by crossing over the appellants' property situated in front of the easement. The court stated that because the easement was not extended by an ancillary right, the fence constructed by the appellants on their own property that was not subject to the easement could not, in law, constitute an obstruction of the respondents' right to the reasonable use of the easement granted to them. The motions judge therefore erred when she found that the fence constructed by the appellants constituted a substantial interference with the respondents' right to make reasonable use of the easement. The judge erred by characterizing the issue as one of substantial interference without first considering the meaning and the extent of the easement.

Real Property - Topic 7021

Easements, licences and prescriptive rights - Creation by express grant - General - [See second Real Property - Topic 7077 ].

Real Property - Topic 7077

Easements, licences and prescriptive rights - Rights of way - Extent of (incl. interpretation) - The appellants and respondents were next door neighbours - Their houses were four feet apart and subject to a mutual repair easement between the houses - The appellants built a fence in their front yard on land not subject to the easement which partially blocked the respondents' access to the four foot strip - The respondents sought declaratory relief - A motions judge ordered that a portion of the fence be removed - The appellants appealed - The Ontario Court of Appeal allowed the appeal - The easement did not grant any express right to the respondents to enter the easement from the appellants' property in front of the easement and the easement did not give rise to an ancillary right to do so - The court stated that because the easement was not extended by an ancillary right, the fence constructed by the appellants on their own property that was not subject to the easement could not, in law, constitute an obstruction of the respondents' right to the reasonable use of the easement granted to them.

Real Property - Topic 7077

Easements, licences and prescriptive rights - Rights of way - Extent of (incl. interpretation) - The Ontario Court of Appeal stated that "where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created" - See paragraph 10 - The court stated further that "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" - See paragraph 11.

Real Property - Topic 7220

Easements, licences and prescriptive rights - Interference or obstruction - Interference with right of way - [See first Real Property - Topic 7077 ].

Cases Noticed:

Jones v. Pritchard, [1908] 1 Ch. 630 (Ch. D.), refd to. [para. 12].

Goodhart v. Hyett (1883), 25 Ch. D. 182 (Ch. D.), refd to. [paras. 14, 78].

Wheeler v. Black (1887), 14 S.C.R. 242, refd to. [paras. 14, 74, footnote 2].

Drumonde v. Moniz (1997), 105 O.A.C. 295 (C.A.), refd to. [paras. 24, 61].

Hunter v. McDonald (1977), 254 N.W.2d 282, not folld. [paras. 29, 84, footnote 3].

National Trust for Places of Historic Interest or Natural Beauty v. White, [1987] 1 W.L.R. 907 (Ch. D.), refd to. [para. 29].

Todrick v. Western National Omnibus Co., [1934] Ch. 190 (Ch. D.), refd to. [para. 29].

Engineering (V.T.) Ltd. v. Barland (Richard) & Co. (1968), 19 P. & C.R. 890 (Ch. D.), refd to. [paras. 30, 92].

Pettey v. Parsons, [1914] 2 Ch. 653 (Ch. D.), refd to. [paras. 32, 91].

MacKenzie v. Matthews et al. (1999), 126 O.A.C. 152; 46 O.R.(3d) 21; 180 D.L.R.(4th) 674 (C.A.), refd to. [paras. 33].

Ledrew v. Geist, [1988] O.J. No. 852 (Dist. Ct.), refd to. [paras. 33, 74].

Lafferty et al. v. Brindley et al. (2001), 8 R.P.R.(4th) 279 (Sup. Ct.), varied on other grounds (2003), 179 O.A.C. 50 (C.A.), refd to. [paras. 33, 74].

Celsteel Ltd. v. Alton House Holdings Ltd., [1985] 1 W.L.R. 204 (Ch. D.), refd to. [paras. 34, 89].

Keefe v. Amor, [1965] 1 Q.B. 334, refd to. [paras. 33. 90].

Lewis v. Wakeling (1923), 54 O.L.R. 647 (C.A.), refd to. [paras. 34, 74].

Rice v. Bleta, [1986] O.J. No. 136 (H.C.), refd to. [paras. 37, 74].

Pugliese v. National Capital Commission (1977), 17 O.R.(2d) 129 (C.A.), affd. [1979] 2 S.C.R. 104, refd to. [para. 84].

Smith v. Morris, [1935] O.R. 260 (C.A.), refd to. [para. 88].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577, refd to. [para. 104].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed. 1980), vol. 14, pp. 10, para. 20 [para. 11]; 26, para. 54 [para. 10]; .

Note, Easements - Nuisances - Right to Convenient Use, 1977 Wis. L. Rev. 1226, generally [para. 37].

Counsel:

Gerrard McGeachy, for the appellants;

Todd C. Hein, for the respondents.

This appeal was heard on May 9, 2003, before Feldman, Simmons and Gillese, JJ.A., of the Ontario Court of Appeal. On December 19, 2003, the judgment of the Court of Appeal was delivered and following judgments were filed:

Feldman, J.A. (Simmons, J.A., concurring) - see paragraphs 1 to 44;

Gillese, J.A., dissenting - see paragraphs 45 to 115.