The Ontario Superior Court of Justice ruled on a case where the duties surrounding easements and who has the obligation to maintain an easement were at issue. An easement is a legal right to use another person’s land for a specified purpose and must have four characteristics to be effective. There must be a dominant and a servient tenement – the “dominant” land is benefitted by the “servient” land over which the easement applies; the easement must “accommodate” the dominant tenement in that it is reasonably necessary for the enjoyment of that land; the owners of the dominant and servient tenements must be different persons (you can’t have an easement over your own land); and a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant (for instance, the right can’t be vague or uncertain). Case law has established that where an easement is created by express grant, the nature and extent of the easement should be determined based on the language of the instrument that created it, taking into account the circumstances at the time the easement is created.
In the recent court decision, the “dominant” owner was found to have no positive obligation to repair and maintain a drain located on the “servient” owner’s land. The servient land was located adjacent to the Highway 401 corridor. In 1959, the owner of the servient land, part of a farm, had granted the Province an easement for the installation of a drainage system. The drain was properly installed but, as the years went by, the drain deteriorated and caused the farm property to retain water. The servient owner experienced crop loss and had to undertake significant repairs to the drain at a cost of roughly $60,000. The servient owner sued the Province (and later the Municipality that took over the easement) to recover his losses. After the Plaintiff passed away, his estate carried on the action and asked the Court to grant summary judgment (a decision made by the court without a full trial) against the Municipality.
After repairing the drainage system, the Plaintiff had contacted the Province and the Municipality to inform them of the problems in hopes of having the repair costs covered. The Municipality informed the Plaintiff that it only had the right to maintain the drain and not an obligation to do so. Hearing this news caused the Plaintiff to write a letter to the Mayor of the Municipality setting out the background behind the drainage easement. The Municipality did not respond to the letter or take responsibility for the repair costs, which led to the Plaintiff commencing his action.
The Plaintiff’s claims included requests for a declaration that the Municipality is liable for the continuing maintenance of the drain, reimbursement of the costs to repair and replace the drain, and damages for the loss of crops. The Court considered several issues in deciding the claim, including the applicable test for summary judgment, the nature of the easement, whether the Municipality had a positive obligation to repair the drain, and whether the Municipality was liable to the Plaintiff for the cost of the drain repair and/or the crop loss and in what amount(s).
In considering what the nature of the easement was, the Court determined that both the original easement (originally granted to the Province) and the transferred easement (as transferred from the Province to the Municipality) are valid in law. The Highway 401 corridor was considered to be the dominant tenement and the Plaintiff’s property was the servient tenement; the original easement and the transferred easement accommodated the drainage of the highway (reasonably necessary for the use of the highway); the owners of the dominant and servient tenements were different persons; and, the right to build and maintain a tile drain on a strip of the property was a right capable of forming the subject matter of a grant. Having concluded that the easements are valid, the Court then addressed the Plaintiff’s claim that the Municipality had a positive duty to repair and maintain the drain and cover the costs incurred. The Court ruled against the Plaintiff based on its interpretation of the easement.
The Court referenced the legal principles established by the Supreme Court of Canada in a 2014 decision that stated evidence should be examined by considering the mutual and objective intention of the parties. When it comes to easements, the words of the grant must be interpreted in an ordinary and grammatical meaning that aligns with the circumstances of the parties involved at the time the easement was created. The Court found in this case that the original easement was silent with regard to any obligation to repair. While in some cases, the party enjoying the use of the easement will be liable for repairs, that was not the case in this scenario.
Absent express language in the grant of the easement, the “dominant owner” (the person benefitting from the easement) does not have an obligation pursuant to the grant of easement to keep the easement in proper condition. However, that doesn’t necessarily leave the “servient” owner (whose land is subject to the easement) without a remedy. Where the dominant owner acts negligently or commits a nuisance, they can still be held liable for repair costs and damages. In this case, the Plaintiff’s estate was permitted to continue with a claim for damages based on the law of nuisance.
Read the decision at: 2024 ONSC 2811 (CanLII).
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