Executive Summary: Key Legal and Evidentiary Issues

• Scope and interpretation of access easements and a water well and waterline easement over a steep, single-lane driveway separating neighbouring Bowen Island properties.
• Allegations that the plaintiff’s construction-related and future residential use of the southern portion of the easement road would be excessive and unsafe, raising potential trespass and substantial interference issues.
• Dispute over whether the plaintiff is bound by restrictive and negative covenants in the registered easement agreement and a separate restrictive covenant prohibiting certain structures.
• Contested evidence on road safety, traffic levels, prior accidents, and construction activity, requiring credibility assessments not suitable for determination on affidavit evidence alone.
• Interlinked questions about an alleged “assumption agreement” and whether a water well easement should have been discharged, which the court found could not fairly be resolved on a partial, “litigating in slices” summary basis.
• Result that the plaintiff’s summary trial application was dismissed as unsuitable under the summary trial rule, with no declaratory or injunctive relief granted and each party bearing their own costs of the application.

Factual background and property setting

The dispute arises between neighbouring landowners on Bowen Island, British Columbia. The plaintiff, Reginald Norris, owns the dominant tenement; the defendants, Jean Michel Krief and Patricia Benell, own the servient tenement. Separating their lands is a paved, approximately 2,300-foot driveway located on the defendants’ side of the property line, running up a steep hillside with a notable drop-off along the southern, higher elevation segment. This driveway is referred to as the Easement Road. The plaintiff’s title benefits from several registered rights in a document entitled “EASEMENT AGREEMENTS, SECTION 219 COVENANT AGREEMENTS AND PRIORITY AGREEMENTS” (the “Registered Agreement”), originally entered into in 2007 by his predecessors (Whitaker and Gould) and the defendants. That instrument grants a primary access easement over the northern part of the Easement Road, a secondary access easement over the southern segment, and a separate water well and waterline easement. The plaintiff’s property is developed in two main areas. On the lower (northern) part, he has four cabins, three of which are rental units and one his own residence, together with a yoga studio that is accessed via the primary access easement. In 2024, he decided to build a new house on the upper, southern portion of his land, at the highest elevation of his property. To do so, he used the Easement Road for construction traffic and created a new gravel access point from the southern stretch of the road onto his construction site, known as the construction access site. The defendants objected to this intensified use of the upper section of the Easement Road. They maintain that the road is narrow, steep and bordered by a slope with buildings below, and that regular construction and later residential traffic using the new southern access point creates a serious safety risk for users of the road and people and structures below. They also assert that the driveway is not designed for heavy construction use or increased, uncoordinated traffic from both owners.

Procedural history and interlocutory injunction

Litigation commenced in June 2024. The plaintiff’s amended notice of civil claim (July 2025) alleges breaches of the access easements, nuisance and trespass, breaches of the water easement and an assumption agreement, and even false imprisonment of cabin guests and yoga students. He seeks declaratory relief, permanent injunctions, and damages. The defendants’ second amended counterclaim (June 2025) alleges the plaintiff has made unauthorized and unreasonable use of the driveway, as well as nuisance and trespass, and seeks, among other remedies, cancellation of what they call the “Alleged Water Well Easement” under section 35 of the Property Law Act. They also seek their own injunctive relief and damages, and they plead that the plaintiff’s use of the secondary access easement is dangerous and excessive. In December 2024, on cross-applications for interim relief, a different judge (MacDonald J.) granted an interlocutory injunction in favour of the defendants. That order restrained the plaintiff, pending trial, from using certain parts of the Easement Road for construction purposes, from creating any new access points, and from modifying or altering designated access points. In granting that interim relief, the judge explicitly did not make binding factual findings for trial but accepted, at the irreparable harm stage, that allowing construction traffic to continue could pose a safety risk and that the defendants could suffer irreparable harm if someone were seriously injured or killed. The plaintiff emphasized that this interim assessment of safety was made without expert evidence on the driveway’s safety or risks of construction-related use. He asserted that the ongoing injunction prevented him from accessing the construction site via the Easement Road since mid-2024, causing delay and increased construction costs, and argued that a prompt determination of his rights under the easements was urgent. In July 2025, a case planning order, made by consent, set down a summary trial application limited to the interpretation and application of the registered easements, while allowing the summary trial judge to give different directions if needed.

Terms of the easements and restrictive covenants

The plaintiff relied heavily on the wording of the Registered Agreement, particularly the clauses granting the primary and secondary access easements and the water well and waterline easement. The access easements expressly allow the dominant owner and their servants, agents, workmen, contractors, lessees, tenants and others to use the Easement Road on foot and with animals, bicycles and other non-motorized vehicles, as well as motor vehicles including automobiles, trucks, motorcycles and all-terrain vehicles. From the plaintiff’s perspective, this language is clear and unambiguous: he claims a right to free, full and uninterrupted access over the entire primary and secondary access easement areas for all ordinary vehicular uses, including construction vehicles needed to build his new home and eventual residential traffic to and from the new dwelling. He also relies on the water easement clause, which grants a right to draw water from a shared well on the defendants’ land up to specific volumetric thresholds tied to municipal minimum daily water requirements for one residence and five one-bedroom guest cottages or bed-and-breakfast units. The defendants emphasized a different set of provisions in the same Registered Agreement. Clause 4.02(a) restricts the dominant owner to using and enjoying the easement areas only in accordance with the reservations and restrictions contained in the instrument. Clause 4.02(c) requires the dominant owners and their invitees, servants, agents, workmen, contractors, licensees, lessees and tenants to pass and repass over the easement areas “so as not to interfere with the enjoyment of the Servient Tenement” by the defendants. The plaintiff contended that this is a positive covenant which, as a matter of property law, does not run with the land and therefore does not bind him as successor in title. The defendants argued instead that it is a negative covenant limiting use and therefore runs with the land and remains binding. In addition, the defendants pointed to a separate restrictive covenant registered over the plaintiff’s property in 2007. One key provision states that no buildings or other permanent or temporary structures will at any time be built, constructed, placed or stored upon the defined covenant area. They invoked this clause to reinforce their argument that the plaintiff’s proposed pattern of use and any structures or access arrangements associated with the southern access point must be assessed in light of restrictions agreed when the land was first subdivided.

Competing positions on easement scope and water rights

On the summary trial, the plaintiff sought a series of declarations: that the access easements and water easement are valid and enforceable; that he and those acting for him are entitled to free, full and uninterrupted access to the whole of the primary and secondary access easement areas; that he may alter and improve land within those easement areas to facilitate access, such as clearing brush, levelling, and laying road base; and that he is entitled to draw water from the shared well up to the municipal-based volumetric formula. He further asked for declarations that the defendants had wrongfully interfered with his easement rights, orders setting aside the earlier interlocutory injunction, and permanent injunctions restraining any further interference with his road and water rights. He also requested that any damages caused by the interlocutory injunction be referred to a registrar, associate judge or special referee for assessment. The plaintiff framed the core summary trial question as one of contractual interpretation: he argued that the easement wording is plain, that the rights given to “servants, agents, workmen, contractors, lessees and tenants” necessarily include normal construction use, and that questions of trespass, nuisance, “unlawful means” and the defendants’ attempt to cancel the water easement under the Property Law Act should be left for the full trial. He maintained that there was no real evidence, beyond the defendants’ assertions, that the driveway was unsafe or unsuitable for the construction traffic he proposed. The defendants characterized the key issue differently. In their view, the central question was whether the plaintiff is permitted to use the driveway in the manner he has and proposes to, or whether his use is excessive and therefore amounts to trespass and substantial interference with their enjoyment of the servient tenement. They argued that the summary trial should interpret the Registered Agreement as a whole, including its express restrictions, not rewrite or dilute its terms to validate what they see as an improper expansion of the plaintiff’s rights. As to water rights, they contended that, under the clear wording of the Registered Agreement, the water well easement should have been discharged once certain conditions arose. These included the drilling of a new well on the dominant land in 2021, periods when the defendants’ well no longer supplied water to the plaintiff’s property, and repeated requests by the defendants that the plaintiff consent to discharge. Instead, they alleged that the plaintiff secretly reconnected to their well and used their water and electricity without lawful entitlement. At a broader remedial level, the defendants’ position was that the interlocutory injunction should remain, the water well easement should be discharged, and the plaintiff’s claims should ultimately be dismissed at trial.

Legal framework for summary trial and easements

Justice Stephens began by reviewing the legal test for suitability of summary trial under the Supreme Court Civil Rules and the leading authorities. A summary trial is appropriate only if the court can find the necessary facts from the record and if it would be just to decide the issues summarily, having regard to proportionality, cost, and the risk of unfairness. Conflicts in evidence do not automatically bar summary trial, but the court cannot resolve critical factual disputes merely by preferring one affidavit over another without some reliable basis, such as corroborating documents or independent testimony. The judge also reviewed the modern approach to easement interpretation. Easements are construed like contracts: the court looks at the wording of the grant in light of objective surrounding circumstances known at the time of the agreement, without allowing context to overwhelm the text. The instrument is read as a whole. A grant of easement gives the dominant tenement every reasonable use for its granted purpose, but not exclusive or unrestricted use of the servient land. The rights of the dominant and servient owners must coexist, and actions of either party that cause substantial interference with the other’s rights can amount to trespass or wrongful interference. The doctrine of ancillary rights may imply additional rights reasonably necessary for the comfortable use and enjoyment of the easement, although mere convenience or reasonableness is not enough—necessity is the touchstone. These principles frame disputes about whether increases in traffic, changes in access points, or other intensifications of use are within the scope of the grant or amount to overburdening the easement.

Concerns about litigating in slices and the water well easement

One threshold concern for the judge was the parties’ attempt to carve off a limited set of issues for summary trial. Both sides urged the court to deal only with interpretation and application of the registered easements, leaving other causes of action—such as nuisance, trespass, false imprisonment, and cancellation of the water easement—for the scheduled full trial. Justice Stephens noted that “litigating in slices” can weigh against summary disposition, especially when the sliced-off issues are intertwined with those reserved for trial. In this case, the plaintiff’s requested relief regarding the water well easement was particularly problematic. The judge considered the water well dispute to be closely connected with questions about whether there was an “assumption agreement” binding the plaintiff to certain terms on purchase of the dominant land and with the defendants’ claim that the water easement should be discharged under the Property Law Act. The evidence on these matters was thin and contested. The parties disagreed even on whether there was a formal written assumption agreement in the record or, alternatively, some adoption by conduct and, if so, what its terms were. In the judge’s view, it was not possible, on the summary trial affidavits, to determine the existence, scope and legal significance of any assumption agreement. Attempting to interpret and declare rights under the easements while leaving these related issues for trial would amplify the “slicing” problem and risk an incomplete, potentially inconsistent outcome.

Safety of the easement road and evidentiary conflicts

The most significant barrier to deciding the case summarily was the deeply contested factual issue of safety. The summary trial record showed that the Easement Road is a steep, mostly single-lane paved driveway with limited pull-outs and a sharp drop-off, especially near the new construction access point. The defendants described prior accidents in which vehicles had gone over the edge and referenced their tenants’ similar incidents, particularly in winter conditions. They deposed that the road becomes much more dangerous in the southern/upper portion and that regular construction traffic or frequent two-way residential traffic at that end would create serious hazards. They emphasized the difficulty of reversing uphill along the steep drop-off if two vehicles met near the construction access, and they expressed genuine fear that someone might be seriously injured or killed if the road were used as the plaintiff proposed. By contrast, the plaintiff and his supporting witnesses, including a Bowen Island contractor, described the road as typical for the area, with its terrain and single-lane character, and asserted that they had no safety concerns about using it for the construction project. The contractor pointed out that he had worked on sites with worse access conditions without incident, and he described standard safety measures he applies when necessary. Other deponents similarly characterized the driveway as not unusually hazardous for local standards. Both sides challenged each other’s credibility and reliability. The defendants argued that parts of the plaintiff’s discovery evidence on safety were internally inconsistent. The plaintiff responded that discovery transcripts and third-party affidavits showed the defendants’ prior statements about the road, and their own use of it for large vehicles, to be exaggerated or misleading. Against this background, Justice Stephens concluded that he could not fairly resolve the safety controversy on affidavits alone. Any proper assessment would likely require oral testimony, cross-examination, and possibly expert evidence at a conventional trial. The issue of safety was not peripheral: it related both to whether the plaintiff’s use was within the intended scope of the easement and to whether, even if within scope, it might amount to substantial interference and trespass. Given how central and contested this question was, the court held that it could not find the necessary facts or achieve a just result on a summary basis.

Outcome on summary trial and effect on the parties

In the end, Justice Stephens held that the plaintiff’s summary trial application was not suitable under Rule 9-7. The combination of factors—litigation in slices, unresolved and intertwined questions about the water well easement and assumption agreement, and especially the sharp conflict in evidence on road safety and the intensity of proposed use—meant that the court lacked a reliable factual foundation to pronounce on easement interpretation and the plaintiff’s requested final relief. As a result, the court did not grant any of the declarations or permanent injunctions sought by the plaintiff, did not set aside the earlier interlocutory injunction, and did not order a reference to assess damages allegedly caused by that injunction. Instead, the notice of application for summary trial was dismissed on the basis of unsuitability, with directions that the remaining issues proceed to the full trial already scheduled for July 2026. On the question of costs, both parties had elected to proceed by way of summary trial and had pressed the court to determine the case in that format. Given that the application was dismissed on suitability grounds, and not on a clear win on the merits for either side, the judge ordered that each party bear their own costs of the application. No damages were awarded and no quantified costs were ordered payable by one side to the other. In effect, on this decision, the defendants were the more successful party procedurally, as they resisted the plaintiff’s attempt to obtain final declarations and to overturn the existing injunction, while the plaintiff achieved none of his requested substantive relief. However, there was no monetary award or cost recovery in favour of any party in this decision, and the total amounts (if any) that may ultimately be ordered for damages or costs in the underlying dispute cannot yet be determined from this judgment alone.