Law Times

Law Times • March 16, 2015 Page 7 www.lawtimesnews.com COMMENT surprising appeal ruling shows why easements matter ou have to wonder what drove Charles Gale to wake up one day and decide to write a treatise on the law of easements. After all, it's hard to really consider any easement case to be genuinely fascinating, but the decision of the Court of Appeal in Wei- delich v. de Koning probably comes close. The decision took the surveying and real estate development world by storm after its release at the end of 2014. Perhaps because the holding was counterintuitive for much of the real estate bar or perhaps because the decision, both at trial and on appeal, totally reversed what had been the perceived legal status quo to date, Lerners LLP quickly labelled it one of the top five civil appeals from the Court of Appeal. The facts in Weidelich v. de Koning were simple. A dominant tenement owner, to- gether with others, enjoyed the benefit of an easement for vehicular access from the rear of his property to and from a public road through the servient tenement laneway. There was nothing unusual about that sort of right-of-way access easement. This domi- nant tenement owner then decided to build an oversized garage on his property that not only ran right up to the edge of his own lands but also jutted onto the laneway. By en- croaching onto the laneway, the dominant owner narrowed its effective width from what was supposed to be a 12-metre-wide right-of-way. Another dominant tenement owner, apparently miffed at the change, brought suit to enforce the original 12-me- tre width dictated by the reference plan and the legal description and thereby force the removal of those parts of the garage that were encroaching onto the laneway. Both the Superior Court and the Court of Appeal acknowledged there was no error in the legal description itself. Furthermore, there was no doubt that the ga- rage did in fact encroach onto the laneway by less than a metre. According to the appeal decision, the case "is not about defining the boundaries of the right-of-way. They are clearly delineated in the deed and are not in dispute. Nor is there any dispute that the [garage] encroaches over the boundary line onto the right-of-way." I would hazard a guess that the major- ity of real estate lawyers would find the facts in Weidelich constitute a slam-dunk trespass and the encroachment should be removed. This is especially true since the Court of Appeal for Ontario had previ- ously ruled in Devaney v. McNab that on nearly identical facts, the encroachment was a trespass and, therefore, had to be re- moved (although the degree of intrusion in Devaney was slightly more extreme as it involved a one-metre staircase encroach- ing onto a nominally six-metre-wide right-of-way). Instead, very much to the surprise of surveyors and real estate lawyers, the Su- perior Court in Weidelich took into con- sideration the actual purpose for which the easement was granted and de facto adjusted the boundaries accordingly. The deed creating the easement in Weidelich specifically identified the purpose as be- ing for "vehicular ingress and egress." The Superior Court then went on to consider whether the encroachment did in fact im- pair vehicular ingress and egress through the laneway in any material way. It con- cluded that while the laneway was indeed a bit narrower at the point in question, the encroachment didn't affect vehicular in- gress and egress in any material way. The Court of Appeal up- held the use of the so-called real or substantial interference test advocated by the Supe- rior Court. In other words, at least in Ontario, someone can permanently block parts of a servient tenement at any time as long as the blockage doesn't constitute a real or substantial interference with the ease- ment's purpose. In so doing, the Court of Appeal dis- tinguished the facts in Weidelich from those in Devaney by noting that the ease- ment in the earlier case involved a fairly broad prescribed use ("at all times and for all purposes") whereas the one in Wei- delich had a very narrow prescribed use ("for the purpose of vehicular ingress and egress"). The staircase in Devaney was a real and substantial interference in the context of an easement that was to be available for all purposes, but the garage encroachment in Weidelich didn't rise to that level given the language around the use for vehicular traffic. By inference, had the easement in Weidelich specified that it was for all purposes or had it been silent as to its use, the garage may very well have met the same fate as the staircase in the earlier case. Furthermore, while Devaney and Weidelich were both laneway cases, real estate lawyers should also remember that modern easements go far beyond just shared laneway rights-of-ways. In the modern era of urban intensification with developments such as mixed-use commu- nities and interconnected condominiums, there are endless permutations of shared infrastructure and common elements and easements have become quite ubiquitous. Indeed, it almost seems as if everyone has an easement over everyone else's property. It's common to see dozens of criss-crossing reciprocal easements, drafted with very narrow and specific purposes, in almost any development. After Weidelich, the ef- fective boundaries of those criss-crossing reciprocal easements may no longer be as precise as they may appear on the surveys and may instead depend on what may con- stitute a real and substantial interference with the intended purpose. Maybe Gale was onto something when he wrote Gale on Easements, a book that, some 19 editions later, is now almost two centuries old. LT uJeffrey Lem is editor-in-chief of Real Property Reports and director of titles for the province of Ontario. The opinions ex- pressed in this article are personal to him and not attributable or referable to the On- tario government. Sex-ed debate suggests ontario politics have matured an we talk about sex? Ontario may have a Liberal government but it has dis- tinctly conservative roots. What else would you expect from a prov- ince that created the Liquor Control Act of 1927? While voters are clamouring for an update of the act, Premier Kathleen Wynne is glacially leaning towards some incremental changes to beer retailing. On the sex education curriculum, however, it's damn the torpedoes and full speed ahead despite the apparent opposition. Strangely enough, this is a good thing. It finally shows those blue roots are fading around issues of moral- ity and a more progressive thinking is taking hold. For fiscal conservatives and social liberals, this is a step forward. Isn't a frank and open discussion around the facts of life both necessary and some- thing that belongs in the average school classroom? Consider also that the prov- ince revised the basic guidelines in 1977 and 1998. I remember 1977 all too well. Do you? There were no cellphones or Inter- net with its abundance of free pornog- raphy. There was no swearing on TV and barely any in the movies. The On- tario film censor board was a year away from banning Pretty Baby, with Brooke Shields playing a 12-year-old prostitute, as child pornography. Even in 1998, sexting didn't yet exist and nude selfies were years away. In that context, our un- derstanding of sex education was prehistoric by today's standards in which cable TV is a free for all and a movie about bondage and submis- sion is mainstream fare and titillating subject matter for breakfast TV shows. The outrage that followed the tabling of the program, however, was entirely pre- dictable, right down to the protests on the snow-cov- ered lawns of the legislature buildings and the knee-jerk reactions captured in headlines across the province. What was more interesting is that after the opponents' 15 minutes of news coverage, it all faded away, even more so when the premier labelled them homo- phobes. While there's been lots of discussion about the fact kids will learn about more than the birds and bees at a younger age than ever before and that other aspects of sexuality, such as same-sex relation- ships, will be part of the teachings, the real point is it's time to move forward and it seems the majority of Ontarians see that. A case in point is author and right- wing Christian commentator Michael Coren's take on the program. Instead of ripping it to shreds as a subversive plot, Coren turned on the opponents and told them, essentially, to get a grip because sex edu- cation of this kind is long overdue. I have to admit, agree- ing with Coren was quite a shock, but his last line was the real kicker. "If conservative Chris- tians became as angry and active about poverty, injus- tice, unjust war, and other such issues as they do about sex and sexuality, not only would the world be a bet- ter place but the standing of conserva- tive Christians would be far higher," he wrote in his National Post column. This government is many things. It has a spendthrift, leftist approach driven by an activist agenda with no real understanding or apparent plan to deal with the crippling budget deficit and mounting debt. It's in debt to the special-interest groups that helped it cling to power for the past 12 years and is already showing cracks around the edges from weathering political storms that have yet to abate. However, to declare that because Wynne is a lesbian in a relationship with another woman and that because a for- mer deputy minster of education, Ben- jamin Levin, recently pleaded guilty to child pornography there must be a hid- den agenda at play as part of some kind of gay mafia tactic is not only preposter- ous, it's sickening. Levin was deputy minister of edu- cation from 2004-07 and an adviser to Wynne as part of her transition team. The connection is tenuous at best and, frankly, given the number of people who vetted, read, tweaked, revised, and worked on the policy before the prov- ince originally tabled it in 2010, there's nothing more to it than pure political opportunism. Former premier Dalton McGuinty backed down when similar protests erupted because he was about to go to the polls the following year and he later hedged on the issue because he had a minority government. This time around, Wynne has a ma- jority and things have changed. There's no appetite to make this an issue beyond a couple of rednecks in the Progressive Conservative caucus. It's about time. In an age where sex is everywhere, our kids need a better understanding of both it and their emo- tions. More clearly, we need to educate them about consent and empower them to say no — or yes or maybe. Whatever they choose, they must do so with the best knowledge we can impart. Now let's get back to that Liquor Control Act. LT uIan Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. The Dirt Je rey Lem Je rey Lem Y C Queen's Park Ian Harvey

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