St. Hilaire v., 2022 BCSC 2168

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: St. Hilaire v. 0772255 BC Ltd., 2022 BCSC 2168 Date: 20221213 Docket: 19711 Registry: Duncan Between: Neil St. Hilaire and Susan St. Hilaire Plaintiffs And 0772255 BC Ltd. and 1056430 BC Ltd. Defendants Corrected Judgment: The text of the judgment was corrected at paragraph 29 on December 19, 2022. Before: The Honourable Mr. Justice Baird Reasons for Judgment Counsel for the Plaintiffs: A. LaCroix Counsel for the Defendants: B. McDaniel S. Handle (A/S) Place and Dates of Trial: Duncan, B.C. August 29 – September 2, 2022 Place and Date of Judgment: Duncan, B.C.

December 13, 2022 INTRODUCTION [ 1 ] The plaintiffs, Neil and Susan St. Hilaire, and the defendant 0772255 BC Ltd., own neighbouring commercial properties on Fisher Road near Cobble Hill, B.C. There is a registered easement (“the easement”) across the defendant’s property which constitutes the only legally permitted means of vehicular access to the plaintiffs’ property from Fisher Road.

The easement is essentially a private roadway 5.5 metres in width. [ 2 ] The dispute between the parties has to do with the defendant’s use of part of the easement area to park a 45-foot transport trailer into which it loads empty drink containers over a number of days every week. When the trailer is full, a local trucking company hauls it away and immediately replaces it with an empty one of the same size. The process of gradually filling it with drink containers then begins anew.

The plaintiffs seek a permanent order prohibiting the defendant from obstructing the easement. [ 3 ] The plaintiffs have settled their dispute with 1056430 BC Ltd. BACKGROUND [ 4 ] The plaintiffs bought their property in 2002. Neil St. Hilaire operated a custom wood manufacturing business on it. He shipped and received materials and product by truck. The plaintiffs’ property is now rented to commercial tenants who require use of the easement for the same purposes. The defendant bought its property in 2014.

It operates a recycling facility called Island Return It, where customers drop off empty drink containers, electronic equipment, light bulbs, small appliances, batteries, and so on. [ 5 ] The defendant’s principal is Vincent Spronken. He alleges that in 2015 Neil St. Hilaire gave him permission to use the easement for parking the 45-foot trailers. Mr. St. Hilaire recalls speaking with Mr. Spronken, but denies making any representations or promises to this effect. Neither of them could recall specifics of the conversation. Nothing was written down and no consideration was offered or accepted.

There is no dispute, however, that the trailers have been a permanent fixture in the same location on the defendant’s property for approximately seven years, or that along their length they encroach upon the easement area from between 2 and 2.2 metres of the 5.5 metres of available width. It seems that the plaintiffs raised no complaint about this until approximately May of 2019. The present lawsuit was filed in 2020.

[ 6 ] Mr. Spronken concedes that placement of the trailers at the relevant location constitutes a breach of the easement agreement. He argues, however, that the trailers do not introduce a substantial interference with the plaintiffs’ right to “pass or repass” over the easement, and that it is now inequitable for the plaintiffs to insist on their removal having so long permitted or acquiesced in their permanent occupation of part of the easement area.

He maintains that the plaintiffs’ lawsuit is unnecessary, and that they are seeking a remedy which is of no practical benefit to them, but which will cause the defendant needless expense and inconvenience. [ 7 ] The easement grant dates back to 1993. Its original width was 10 meters. Mr. St. Hilaire consented to a reduction of the easement area in 2012. This was at the request of a previous owner of the defendant’s property who discovered that his commercial building encroached upon the easement. The neighbour proposed a reduction from 10 to 4.5 metres of width. Mr. St. Hilaire did not agree to this proposal.

As far as he was concerned, 5.5 metres was the minimum width of passage that he required for his purposes. This is the width of the easement in the present grant. The defendant agrees that the terms of the easement are valid and enforceable. [ 8 ] Mr. St.

Hilaire acknowledged in evidence that truckers using the easement can get past the trailer if it is the only thing in the way, but he testified that nowadays the easement is frequently blocked off entirely for significant periods of time, not only by the trailer permanently encroaching upon it, but by commercial vehicles parked beside it, and by bales or pallets of recyclable materials dropped on a road allowance just beyond it. He produced a number of photographs and videos confirming this. He said that this has become a major irritant in recent years. Relations between himself and Mr. Spronken have soured.

Unfortunately, no compromise has been proposed or reached. [ 9 ] The substance of the plaintiffs’ claim is that, as the defendant’s recycling business has grown, the trailers’ constant occupation of part the easement area along with other activities related to the defendant’s business have risen to the level of substantial interference with the plaintiffs’ rights afforded by the easement agreement. From Mr. St.

Hilaire’s perspective, this lawsuit it is a matter of putting a stop to his neighbour’s serial and increasingly frequent infringement of his contractual right to pass and repass over the easement. [ 10 ] From the defendant’s perspective it is a matter of practicality and equity. Mr. Spronken takes the view that the easement expressly reserves to the defendant the right to use the easement area for any purpose at any time as long as it does not substantially interfere with the plaintiffs’ more restricted right of passage over it.

He acknowledges that the defendant’s activities sometime block the easement, and that they are likely to continue doing so, but he says that such things, in the scheme of things, are reasonably infrequent and temporary and do not substantially interfere with the plaintiffs’ rights. [ 11 ] Mr. Spronken testified, furthermore, that conduct of the defendant’s business has come to rely, in part, on the placement of the trailers in their customary location based on the plaintiffs’ long-time agreement or acquiescence. He claims because of this that the remedy sought by the plaintiffs would be inequitable.

The defendant has pleaded equitable estoppel and, although not pleaded, referred in argument to the doctrine of laches. THE EASEMENT [ 12 ] I must consider the terms of the easement in the context of the circumstances which existed at the time that the grant was made: Smith v. Balen , 2018 BCSC 918 at para. 52 ; Dodsworth v. Madill , 2019 BCSC 898 at para. 21 . I remind myself that the words of the easement, if at all ambiguous, are to be interpreted in favour of the grantee: Soares v. Café Regional Bar and Grill Inc. , 2013 ONSC 7939 at para. 54 . [ 13 ] The material provisions of the easement are as follows: 1.

The Grantor hereby grants to the Grantee and its successors and assigns in perpetuity an easement over: All that part of the Servient Tenement … marked “Easement Area”…for the purpose of at all times hereafter by day or night to pass and repass along over and upon that portion of the Easement Area for the Grantee, and its successors, assigns, servants, agents and invitees, animals, vehicles, and machinery”. [emphasis in original] 2. The Grantor and Grantee agree that apart from the purposes of this Easement the Grantor shall have sole occupation and use of the Easement Area… 5.

The Grantor and the Grantee hereby covenant and agree that neither shall erect, place or maintain any building or structure on any portion of the Easement Area. 6.

Nothing in these presents shall be interpreted so as to restrict or prevent the Grantor from using the Easement Area in any manner which does not interfere with the Easement herein granted, and the Grantee acknowledges that the Grantor itself, and its successors, assigns, servants, agents and invitees may use the Easement Area for any purpose. [Emphasis in original] [ 14 ] I find that the circumstances existing at the time of the present easement grant include that:

a) the plaintiffs as grantees had consented to the cancellation of the prior easement which was 10 metres wide. They did so on the condition that the easement had to be at least 5.5 metres wide. A 4.5-metre-wide easement was proposed but the plaintiffs rejected it as too narrow.

b) the easement provides access to a commercial property which relies on large trucks for pickups and deliveries.

c) the easement is the only legal access to the plaintiffs’ property.

FINDINGS OF FACT [ 15 ] I infer from all of the evidence that Mr. St. Hilaire is an agreeable sort of person who is motivated to accommodate his neighbours as much as possible, but that his willingness to do so has reasonable and clear limits. Mr. St. Hilaire denies that he granted Mr. Spronken permission to park trailers on the easement in perpetuity, and I do not accept that he is likely to have done so having previously insisted in negotiations with a former neighbour that 5.5 metres of width along the easement was the minimum that he required. [ 16 ] While Mr. St.

Hilaire acknowledges that he had a discussion with Mr. Spronken in 2015 about parking trailers on the easement, on all of the evidence I conclude that it was informal in nature and was not intended to permanently alter the contractual rights or obligations of the parties under the easement agreement. In my view, it likely amounted to nothing more than a generalised recognition that, under the terms of the grant, the defendant could use the easement area however it liked as long as it did not interfere with the plaintiffs’ right to its use in the manner reserved to them.

I am not satisfied that the discussion in question had any binding legal significance. [ 17 ] I heard testimony from eight witnesses during this trial and had the benefit of an agreed statement of facts, for which I am obliged to counsel. I was also shown photographs and videos of the easement and its use by both parties. I do not intend to repeat or summarise all of the evidence, or refer to every argument made for either side.

As far as I am concerned the issues raised by this litigation are reasonably straightforward and fall to be resolved on the basis of the following material facts which I have drawn from the all of the evidence: • There is another driveway (“the driveway”) onto the plaintiffs’ property over which vehicular traffic of all kinds can pass without using the easement. • The driveway has never been lawfully approved by the relevant regulating authority owing to deficient sightlines along Fisher Road for exiting traffic. • In any event the driveway can become impassable in seasonal flood or snow conditions, in which case the easement becomes the sole means of access to the plaintiffs’ property. • At present, most of the vehicles entering and leaving the plaintiffs’ property use the driveway, but before the defendant acquired the neighbouring property, between 80 and 90 per cent of the traffic onto and from the plaintiffs’ land used the easement. • The diminution in the easement’s use by the plaintiffs, their tenants, invitees and agents is due, in part at least, to the obstruction introduced by the trailers permanently placed on it, and as the years have passed, to the defendant’s other activities obstructing the easement from time to time, and this has rendered use of the easement significantly less convenient to the plaintiffs. • Even if the 45-foot trailer is the only obstruction on the easement, larger vehicles travelling to the plaintiffs’ property must veer onto the adjacent road allowance, which the defendant does not own or control, and which, unlike the easement, is not paved. • The defendant has put down gravel on the road allowance to render it more durable and to improve access to the plaintiffs’ property, but he does not seem to have been granted permission to do this by the government authority which owns or controls the road allowance, and he is under no obligation to continue doing so. • Neither the plaintiffs nor the defendant have any right to prevent third parties from using the road allowance, and I heard evidence that, often enough, cars are parked in the road allowance adjacent to the easement such that passage to the plaintiffs’ property is obstructed over both, especially for larger vehicles. • There are no assurances that the road allowance will always be available to the plaintiffs and their invitees to pass over.

The easement, on the other hand, runs with the land and redounds to the plaintiffs’ benefit in perpetuity. • Between 2015 and 2019 the plaintiffs did not ask the defendant to remove the trailer from the easement or raise any objection to its general manner of using the easement area. • Since this proceeding was commenced in January, 2020, no interlocutory injunction has been sought by the plaintiffs and the trailers have remained on the easement area to the present day. [ 18 ] Mr.

Spronken testified that that the commercial building on the defendant’s property is 6,000 square feet in area, 4,200 of which is devoted to its recycling operations, plus an additional 1,800 square feet reserved for general storage. Mr. Spronken told me that the storage space was only 70 to 80 per cent full and he agreed, somewhat reluctantly, that there was available space within the defendant’s building that was at least the equivalent of the storage capacity provided by the trailers constantly parked in the easement.

I consider this to be an understatement. [ 19 ] The defendant’s claim that it will suffer monetary loss from reduced operational efficiency if the trailers are ordered removed was not persuasively made out in evidence. It came only in the form of a conclusory statement from Mr. Spronken. I was not told in concrete or convincing terms, for example, what additional cost would be involved if, instead of trailers being left permanently on site, transport vehicles, perhaps smaller ones, were summoned on an “as needs” basis when a full load was ready for pickup. [ 20 ] Although Mr.

Spronken produced a variety of photographs, videos, drawings and plans for me to look at, I was not shown any photographs of the interior of defendant’s commercial building to substantiate the claim that there is insufficient room within it to store the drink containers pending collection. I infer from all of the evidence, including that of Mr. Spronken himself, that this is because such photographs would fail to confirm it.

I was also told nothing about how much money, if any, the defendant paid for the privilege of keeping large trailers on its property that are owned by another company, or how it would be more expensive to do things another way.

[21] I conclude from this absence of evidence that, without undue inconvenience or expense, the empty drink containers which, atpresent, are gradually loaded over a number of days onto the parked trailers obstructing the easement could instead be stored within thedefendant’s commercial premises until they amount to a full load for pick-up. Mr. Spronken agreed, ultimately, that this could be doneintermittently either from a loading door off the storage area, or from the one presently used for the purpose adjacent to the easement. [22] I do not accept Mr.

Spronken’s claims that such comparatively minor adjustments are impossible or unduly expensive, much lessthat he organised the interior renovations and appointments of the defendant’s building and recycling operations based upon an informaland undocumented discussion that he had with Mr. St. Hilaire in 2015. SUBSTANTIAL INTERFERENCE [23] As I have said, the defendant concedes that the permanent placement of the trailers in the easement is a breach of the terms of thegrant. The trailers constitute a “structure” within the meaning of the term used in paragraph 5 thereof. [24] Mr.

Spronken emphasised in evidence, however, that the easement area remaining after the trailer’s encroachment upon it(between 3.3 and 3.5 metres), combined with an adjacent public road allowance, whose surface he has voluntarily improved, providesadequate access to and from the plaintiffs’ property. In practical terms, he says, there is no substantial interference with the plaintiffs’right to pass and repass over the easement as agreed. [25] I do not accept this line of reasoning. The terms of the easement are clear, permanent, and run with the land.

The easementagreement contains an outright prohibition, without qualification, against the placement of any structure upon the easement area, and tothat extent the parties to the agreement have effectively defined for themselves what constitutes a substantial interference: Oakville(Town) v. Sullivan, 2021 ONCA 1 at para. 24. In Grenier v. Elliott, 2007 BCSC 598 at para. 35, this court adopted the principle that incases where an encroachment is permanent, it is actionable: [35] The test for whether there has been an actionable disturbance of a right-of- way was stated in Miller v.

Maclean (1972), (NS SC), 7 N.S.R. (2d) 371 (S.C.T.D.) where the court at para. 49 referred to the following passage from Anger andHonsberger, Canadian Law of Real Property at 1012: The test of whether there has been an actionable disturbance of the right-of-way is whether the way could be practically andsubstantially exercised as conveniently after as before the interference...To be actionable, the interference must be substantial...but ifthere is an obstruction either wholly or partially to the right-of-way caused by a building the interference is actionable whether it is of asubstantial nature or not as it amounts to an abridgement of the easement which if submitted to for a sufficient time will forever depriveone of the right to use as a way the portion encroached upon... [26] The same principle applies in the present case.

The parties have agreed upon a number of facts, one of which is that the trailerconstantly obstructing the easement is a “structure” roughly 45 feet long and 8.5 feet wide. It encroaches the easement area by roughly2.2 metres at one end and 2 metres at the other. This means that between 36% and 40% of the easement area is occupied by the traileralong its 45-foot length. In my view there is no doubt that this constitutes both a substantial and actionable interference with theplaintiffs’ right of way over the easement. [27] In Celsteel Ltd. v. Alton House Ltd., [1985] 1 W.L.R. 204 (Ch.

D.) the issue considered was whether the reduction of a right ofway from 9 metres to 4.14 metres was actionable. The grantees in that case were lessees who owned parking garages along the right ofway. The grantor wished to construct a car wash which would have reduced the width of part of the right of way from 9 metres to 4.14metres. The grantor argued that the residual 4.14 metres was all that was required for the grantees to pass over the right of way. Thecourt at p. 218, paras.

C-F, made the following observations about this line of argument which I would adopt: I am reluctant to accept that a grantor, having granted a right of way over a nine-metre driveway, can reduce the width of the way bymore than a half over an appreciable distance and then require the grantees to accept the reduction on the ground that what is left is allthat they reasonably need.

It seems to me that the proposed reduction will materially and permanently detract from the quality of the reardriveway and the plaintiffs’ rights over it…It does not seem to me possible to say that the permanent narrowing of the rear drivewayfrom nine to 4.14 metres over the length of the proposed car wash would leave the rear driveway as convenient for the reasonable use ofthe plaintiffs as it was before the reduction. The plaintiffs have been granted a right of way over a nine-metre driveway.

The enjoymentthereof to which they are entitled under their respective grants, cannot, in my judgment, be limited by requiring them to accept a 4.14metre driveway. If the freeholders wanted the right to construct a car wash on the driveway and thereby to reduce its width to 4.14metres it was, in my judgment, incumbent on them to reserve that right in the leases. Not having done so, they are not, in my view,entitled to remedy the omission by arguing that 4.14 metres is all the plaintiffs reasonably need.

The plaintiffs are, in my judgment,entitled under their grants to the relative luxury, if that is what it is, of a nine-metre right of way. That, after all, is part of what they havepaid for. [28] In Dodsworth v. Madill, at para. 32, furthermore, this court ruled that a significant narrowing of a legitimate easement is virtuallyalways a substantial interference: [32] The fact of the matter is that the narrowing of a bone fide easement is “almost automatically a diminution of the practical benefit ofthe Easement”: see Langlois v. Tessaro, 2018 BCSC 1463 at para. 35, quoting Wallster v.

Erschbamer, 2011 BCCA 27 at para. 21.While both of those decisions involved applications to modify easements pursuant to s. 35 of the Property Law Act, S.B.C. 1996, c. 377,I am satisfied this statement is equally applicable to the question of whether there is a substantial interference with use of an easement. [29] In Soares v. Café Regional Bar and Grill Inc., the defendant parked delivery vehicles on a right of way which interfered with theplaintiff’s lawful entitlement to pass over it whenever necessary to access to her residential property.

In finding for the plaintiff, the courtcited with approval the analogous case of Anthony v. F.W. Woolworth Co., (ON SC), [1962] O.R. 1005, 35 D.L.R. (2d)82 (O.H.C.J.), which stands for the proposition that, where parties to a grant have reciprocal use of a right of way, one party cannot

obstruct it for unreasonable lengths of time to the detriment of the others to whom its free and unobstructed use is reserved. [30] In my view, this is another such case. I would add that the availability of an alternative means of access to the plaintiffs’ propertyvia the driveway is irrelevant. It has long been and continues to be the case that the easement is of substantial practical benefit to theplaintiffs.

The defendant has not brought, and in my view could not plausibly bring, proceedings under s. 35 of the Property Law Act,S.B.C. 1996 c. 377, seeking cancellation of the easement on the basis of obsolescence. In any event, the ongoing use of the driveway,because it is not officially permitted or approved, is not guaranteed, and apart from that it sometimes becomes impassable in badweather, in which case, as I have said, the easement is the only means of getting to the plaintiffs’ property.

MATTERS OF EQUITY [31] An estoppel, whether promissory or proprietary, would require the defendant to prove detrimental reliance upon representationsmade by the plaintiffs: see Dodsworth v. Madill at para. 41. In the present case, an equity might be established if the plaintiffs made anassurance that they would relinquish their access to part of the easement on a permanent basis, and the defendant relied on this assuranceto its detriment so that it would be unconscionable for the plaintiffs to go back on the assurance: Idle-O Apartments Inc. v.

CharlynInvestments Ltd., 2014 BCCA 451 at para. 49. [32] I have already said that, on all of the evidence, given the history of the matter, Mr. St. Hilaire is unlikely to have agreed to apermanent encroachment on the easement area, and that, whatever Mr. St. Hilaire and Mr. Spronken discussed in 2015, it did not havethe result of altering the contractual arrangements between the parties. It is not clear to me on the evidence that this informal,unrecorded, and long-ago conversation led to any enforceable meeting of the minds concerning the trailers.

I do not accept that anyequities arose from it. [33] Even if there were an assurance made of the type alleged by the defendant, or if the plaintiffs could be said to have conductedthemselves so as to encourage a mistaken belief in such an assurance, I am not satisfied for the reasons already discussed that thedefendant has relied on it to the extent of any meaningful detriment.

In all of the circumstances, I have decided that it is not dishonest orunconscionable for the plaintiffs to insist on their rights under the easement agreement in face of the defendant’s ongoing and substantialinterference with their full and convenient exercise of those rights. I am not convinced that the defendant will suffer any real harm orprejudice if it is ordered to stop doing it. [34] It may be that the plaintiffs’ waited longer than they might have to raise a complaint about the trailers, but in my view, this was amatter of neighbourly forbearance and does not give rise to an equitable estoppel.

In any event, Mr. Spronken admitted on cross-examination that, whatever else the parties might have discussed back in 2015, he never mentioned to Mr. St.

Hilaire, and it formed nopart of any alleged agreement creating an equity in the defendant’s favour, that in addition to leaving the trailers permanently in theeasement area, he intended to create additional and not infrequent obstructions with other trucks, trailers and stacks of recycling materialalongside the trailers and on the adjacent road allowance. [35] I find that these activities have developed incrementally over the years, and came only gradually to form a significant problem asfar as the plaintiffs were concerned, which accounts for much of the delay.

In any event the plaintiffs’ claim is a legal one, based on theeasement contract, and for that reason the doctrine of laches is not applicable. Even if it were, the authorities are clear that mere delay isinsufficient to trigger it: M. (K.) v. M. (H.), (SCC), [1992] 3 S.C.R. 6 at para. 98. I think it equally clear that the absenceof objection is not the same as acquiescence. The failure to object does not alter the fact that the easement is valid and enforceable, andthe plaintiffs and their successors are entitled to use its full width from one end to the other.

The fact that an encroachment on aneasement has existed for many years cannot excuse the use of the area of the easement contrary to its terms: Birch v. Brenner, 2015BCSC 466, rev'd on other grounds 2017 BCCA 22. REMEDY/DISPOSITION [36] Permanent injunctions are routinely issued in easement cases: Smith v. Balen, at paras. 90-92, 103. Irreparable harm and balanceof convenience are not relevant to the granting of a final injunction: Cambie Surgeries Corp. v.

British Columbia (Medical ServicesCommission), 2010 BCCA 396 at para. 28. [37] The test is whether the plaintiff has established a legal right to a remedy and whether an injunction is appropriate in thecircumstances. In cases involving substantial interference with rights under an easement agreement, the remedy granted is almostinvariably the permanent removal or prevention of the interference. I see no reason to do otherwise here, and make the following finalorders:

a) The defendant will, within 90 days from the date of this judgment, remove the trailer from the easement and not replace it.

b) The defendant, its tenants, servants and agents, are permanently prohibited from placing, parking or leaving, or permitting to beplaced, parked or left on the easement area any vehicle, structure or obstruction, except at such times as the use thereof is not required bythe plaintiffs, their tenants, servants or agents to pass or repass over it.

c) Costs of these proceedings to the plaintiffs on Scale B. “Baird J.”