Court of Appeal

Judge:

The Honourable Justice Peter M. S. Bryson

Appeal Heard:

June 5, 2017, in Halifax, Nova Scotia

Subject:

Deeds. Interpretation. Creation of easement (right-of-way).

Summary:

The respondent cottage owners claimed an easement across the Purdy property to the beach on the Northumberland Strait.  Although the cottage owners had generic rights-of-way granted in their deeds, they did not sue on this basis.  Nor was any evidence led explaining the nature and extent of these rights-of-way.  Rather, they claimed a right-of-way was granted to them in the 1996 deed to the Purdys from a common predecessor in title.  The application judge agreed.  The Purdys appealed.

Issues:

(1)         Did the application judge err in his interpretation of the deed to the Purdys which reserved a right-of-way?

(2)         Did the judge err in failing to apply the rule that a reservation should be interpreted in favour of the person from whose title it detracts?

(3)         Did the judge incorrectly rely upon pre-contractual discussion between the Purdys and their predecessor in title?

Result:

Appeal allowed.  The reservation in the deed to the Purdys reserved a right-of-way for the grantor, but not all the cottagers.  The interpretative rule and the pre-contractual discussions favoured the Purdys.  Their predecessor in title did not say he was intending to reserve a right-of-way for the cottagers.  Rather, he assumed they already had such rights.  Any rights-of-way the cottagers may have were not created by the 1996 Purdy deed.  The Court specifically did not comment on any rights-of-way that may arise from the cottagers’ deeds.