As promised, I will now reveal the citation of the fence dispute case in my previous two blog posts. The citation is Fallowfield et al. v. Bourgault et al, 2003 CanLII 4266 (ONCA). The analysis is lengthy: 114 paragraphs with roughly twenty odd cases and authorities referred to. For the sake of brevity, this post will only be a very simplified commentary of the decision. *Please note that this commentary is not intended as legal advice! * (The numbers in square brackets indicate the paragraph numbers in the decision.)
Recall that Neighour A erected the fence entirely on his own property. Furthermore, the fence was on land that was not encumbered by the easement. Unfortunately, the presence of the fence reduced Neighbour R’s access to the easement. The application judge ordered the fence to be removed, or at least, be modified to allow his neighbor unobstructed access to the easement. The judge framed the issue as “whether the fence constructed by the [appellants] on their own property constitutes an obstruction of the [respondents’] use of a registered easement over a 2’ strip of the [appellants’] land between their 2 houses.” The test to be considered was “whether the fence, as constructed, substantially interferes with the easement’s legitimate use.” 
The decision was overturned at the Court of Appeal. The decision was split.
The majority held that the application judge erred in her legal analysis by deciding whether there was interference before examining the scope of the easement . The majority interpreted the wording of the grant as to the scope (physical boundaries) and purpose of the easement. The majority found no reason to imply additional, or “ancillary” rights that might allow R to cross over to A’s property to access to the easement. Ancillary rights which tend to expand the express dimensions of the easement should only be granted when “the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable.” [ 11]
The majority’s opinion was that R was, in effect, claiming an ancillary right to cross over to A’s front lawn, which is equivalent to extending the easement beyond “its described boundary” . The majority felt that the reduction in access merely created an inconvenience for R. There was no necessity for R to cross over to A’s property to access the easement. The majority put it as follows:
“…it might be more convenient for the respondents to bring a wheelbarrow that is wider than two feet onto the easement without tipping it sideways, it is not necessary to do so. There is no evidence to suggest that the two-foot opening is not wide enough to accommodate ladders, smaller wheelbarrows and other equipment that may be necessary to effect repairs.” 
The dissenting judge’s adopted quite a different view. Amongst various things, she cited the principle that “an owner’s right to erect a fence on his or her own property is not absolute, but, instead, is subject to a neighour’s easement rights.”  The real issue should be whether “the appellant’s fence ‘practically and really in any way obstruct[s]” the respondents’ right to use the easement for the purposes of maintaining and repairing their home. In my view, there can be no question but that the fence is such an obstruction.”  As to the matter of necessity versus convenience, the dissenting judge made this interesting comment:
“The fact that an empty wheelbarrow can be tilted sideways in order to gain access is no answer where the purpose of the easement is to permit ‘repair and maintenance’ of the respondents’ home; a wheelbarrow will have materials in it if it is being taken onto the easement in order to effect repairs to the house.” 
Predicting the outcome of a case, even a seemingly simple case like this one is difficult. In this case, there were four judges involved, two Court of Appeal judges ruling in favour of Neighbour A, two (the application judge and the dissenting judge) siding for the other. As I read this decision, a few questions came to mind. Is one judge’s legal analysis necessarily more “correct” than the other? Did the application judge really made an “error”? Or is this concept of “error” just a matter of opinion? At the end of the day, it seems that even with all the rigours of our legal system, the resulting judgement depends on a bit of luck.
Access the decision here:
**Note** This blog post is not intended as legal advice. For advice on how to apply court decisions to your case, please consult a lawyer.