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INTERESTS IN LAND - Extinguishment of easements - Positive easements

Monday, March 08, 2021 @ 8:55 AM  


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Appeal by NBC Holdings from an order that required it to relocate an easement at its expense and the award of special costs against it. The respondent operated a commercial nursery on its lot. The nursery was dependent on a private water supply from a well on the appellant’s lot, which ran through buried pipe across the Cassidys’ lot to the respondent’s lot. An easement agreement in favour of the respondent covered the maintenance, repair and replacement of the well and pipe that made up the water supply system. It was entered at a time when a municipal water supply was not available. The easement prohibited the construction of buildings and structures over a defined area. In admitted breach of the easement agreement, the appellant constructed a substantial wall over the easement. The appellant brought a petition to cancel the easement. A municipal water supply was currently available, but the parties disputed whether it was sufficient for the respondent’s purposes. The chambers judge ordered the easement to be relocated at the appellant’s expense.

HELD: Appeal allowed. The petition was dismissed. The parties and the chambers judge misunderstood the scope of the jurisdiction under s. 35 of the Property Law Act, which provided a comprehensive code for the modification or cancellation of the interests in land identified but did not provide for enforcement. Specific performance, or enforcement generally, of the clauses in the easement agreement could not be pursued by a petition under s. 35 of the Act but rather through the traditional trial process. Neither party made an application to modify the easement and the chambers judge made none of the findings of fact necessary before a modification order could be made. The parties were at liberty to pursue a traditional civil claim in the Supreme Court. The chambers judge erred in principle by awarding special costs against the appellant. A failure to resolve an issue out of court did not attract special costs. The choices the appellant made prior to the commencement of the litigation were properly the subject of a claim for relief in a civil action, not a special costs award following a petition. The special costs award was set aside.

NBC Holdings Ltd. v. Aarts Nursery Ltd., [2021] B.C.J. No. 31, British Columbia Court of Appeal, R.J. Bauman C.J.B.C. and G. Dickson and J.J.L. Hunter JJ.A., January 12, 2021. Digest No. TLD-March82021001