Court of Appeal

Judge:

The Honourable Justice Linda Lee Oland

Appeal Heard:

February 1, 2018, in Halifax, Nova Scotia

Subjects:

Real Property – Rights of way – Location and Scope – Overburdening – Reasonable Use – Costs

Summary:

The appellants appeal two decisions, one which permitted the respondents to widen and reroute the roadway within rights of way granted to the respondents, and the second which awarded costs.  The judge held that the grants were unambiguous and found that it was reasonable to widen the roadway to allow vehicles to pass easily, clear snow efficiently, and avoid future unpleasantness.  She did not decide if the respondents’ anticipated commercial use of the property would overburden the right of way, nor did she refer to the evidence of other grantees of the right of way.  In determining the quantum of costs, she considered a settlement offer made by the respondents to be a significant factor.

Issues:

Whether the judge erred:

(a)  by failing to consider whether the proposed commercial use would overburden the right of way;

(b) by accepting subjective intentions in determining that the proposed changes were reasonable;

(c)  in determining that the language of the grants was clear and unambiguous;

(d) by failing to consider the evidence of the other grantees who share the right of way;

(e)  by determining that the appellants had sought to limit the right of way to the existing travelled way; and

(f)   in deciding the quantum of costs.

Result:

Appeal dismissed.  Since the anticipated business was not operational and its use of the right of way was contingent on future events, it was not necessary that the judge decide whether such use would overburden the right of way. The judge did not err by relying on subjective intentions, or in determining that the language of the grants of rights of way was clear and unambiguous.  Nor, having found that the changes were reasonable, did she err regarding the concerns of the other grantees.  She committed no error in stating that, in essence, the appellants had sought to limit the enjoyment of the right of way to the actual travelled way.

In her costs decision, the judge did err in her recounting of the terms of the settlement offer.  However, she made no error in principle, the costs award is not plainly wrong, and the quantum was not affected by her error regarding the settlement offer.