Case information

Property — Easement — Interpretation — Evidence — Admissibility — Weight — Strip of land leading to and running along shores of Lake Ontario subject to easement — Easement granted “for pedestrian access only in order to use and enjoy the shores of Lake Ontario” — Scope of easement — Allowable uses of land subject to easement — Meaning of “shores of Lake Ontario” — Whether evidence of subjective intentions and specific discussions inadmissible — Whether such evidence may be admitted as part of surrounding circumstances.

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The owners of two properties on the shores of Lake Ontario also owned a vacant lot separated from the lake by their properties. They organized for the vacant lot to be divided into three new lots. The new lots purchased by the Reddicks also included a 20'x300' strip of land connecting that lot with the shoreline which was subject to an easement for the other two new lots. The easement provided that it was “for the purposes of pedestrian access only in order to use and enjoy the shores of Lake Ontario, such use and enjoyment shall not include camping or the use or operation of motorized vehicles”. The land subject to the easement was zoned as “special open space”. A dispute arose as to the permitted uses of the land subject to the easement and the meaning of “shores of Lake Ontario”.

The application judge concluded that the words used in the easement, construed broadly, and considering, among other things, the intention of the original owners at the time the easements were created, did not restrict the applicants to pedestrian access to the area between the high and low water marks. He declined to further define how the easements could be used, advising the parties to apply their common sense. A majority of the Court of Appeal allowed the applicants’ appeal. It held that the application judge’s interpretation of the deed was owed deference, but that he had erred in principle in interpreting the easement, had misapprehended critical evidence, and had relied on inadmissible evidence of subjective intent as to the creation of the easement. Those were extricable errors of law, and were subject to review on a correctness standard. It set aside the judgment of the court below and declared that “shores of Lake Ontario” in the easement meant the land lying between the high and low water marks, that the applicants were only entitled to pedestrian access to get to and from those shores, but that the Reddicks had the full bundle of rights associated with legal title to the land subject to the easement, subject to certain prohibitions.