Oct 31, 2018

Well Well Well ... Positive Obligations of Well Owners

Booshehri v. Simovonian, 2018 ONSC 5453 (CanLII)

The legal principle in Lohse v Fleming 2008 ONCA 307 (CanLII) was recently applied in the Booshehri v Simovonian, 2018 ONSC 5453 decision. The plaintiff owned two lots of land directly adjacent to one another; in November 2017, the plaintiff sold one of the lots to the defendant. Lot 15, which is owned by the plaintiff, has a vacant house situated on it; Lot 21, which was purchased by the defendant, is vacant land. Lot 21 has a well, serviced by an electric submersible pump, located on the north-west corner of the property; the well is connected by underground pipe to the plaintiff’s house. Subsequent to the sale of Lot 21, the plaintiff claimed a right of easement over the well and well water located entirely on the defendant’s property. About one month after the sale, the defendant sent the plaintiff a Well Sharing Agreement which outlined the rights and responsibilities between the plaintiff and defendant in connection with the well and well water. The plaintiff refused to sign the agreement. The defendant cut the plaintiff’s access to the water sometime in December 2017. As a response, the plaintiff brought an ex parte motion against the defendant seeking injunctive relief in order to reconnect the supply of water.

On August 15, 2018, DiTomaso J. heard the plaintiff’s motion and granted an interlocutory injunction in favour of the plaintiff which prohibited the defendant from restricting the plaintiff’s access to the well and well water. The plaintiff brought an urgent motion seeking to set aside the injunction arguing that the plaintiff fails to satisfy the necessary test for the granting of an interlocutory injunction. The defendant argued that under Ontario law, well owners are subjected to the burden of maintaining wells and guaranteeing that well water is safe to drink and use; such obligations are positive in nature which would defeat any easement rights.

Sutherland J., referring to Lohse v Fleming, found that “[w]here positive acts are required, absent privity of contract, no easement exists…Positive covenants “could not run with the land.” Indeed, the court found that the plaintiff wished for the defendant to undertake positive steps, incur expenses, maintain the well, pay for the cost of the well, pay for any upgrades the well required, and take any and all action which would satisfy the legal obligation that the water from the well is safe to drink and use. Upholding the finding of the appeal court in Lohse v Fleming, the court found that “[t]he easement requested is not subject to an easement since it requires a positive act on behalf of the defendant. As already stated above, an easement cannot be granted when positive acts are required…”. Although the court stated that it makes no finding as to whether the plaintiff is entitled to an easement, the court did, without reservation, find that the plaintiff has failed to satisfy the RJR MacDonald test which was modified by the Supreme Court in R v CBC 2018 SCC 5 (CanLII); in R v CBC the court stated that the party seeking injunctive relief bears the burden of showing that a case is very likely to succeed at trial, in other words, on a preliminary review of the case, an application judge must be satisfied that there is a strong likelihood on the law and evidence that the plaintiff will succeed at trial. Having reviewed the law and evidence, and specifically relying on the decision of Lohse v Fleming, the court found that the plaintiff has failed to satisfy the first stage of the modified RJR MacDonald test; as a result, Sutherland J. ordered that the injunction granted on August 15, 2018, is not continued and is immediately terminated.