Executive Summary: Key Legal and Evidentiary Issues

• The petitioners sought a declaration that an easement registered on the Strata 962 property included an ancillary right to park.
   
• Central to the dispute was whether historical parking on a private road, before construction of the Victoria Regent Hotel Building, informed the intended scope of the Easement.
   
• Surrounding circumstances, including the settlement of earlier litigation between the Monsons and Inner Harbour, were treated as admissible evidence of the parties' intentions when the Easement was formed.
   
• Justice Jackson examined several precedents, including Moncrieff v. Jamieson and Arbutus Bay Estates, to determine whether parking qualifies as an ancillary right of an easement.
   
• Subsequent conduct — the petitioners' and their predecessors' uninterrupted parking in the Easement area since 1981 — was found to be a relevant surrounding circumstance.
   
• Ultimately, the court found that the right to park necessarily accompanies the right of vehicular access granted under the Easement.
   

Facts of the case

Kathryn Caroline Hutchison and John Michael Hutchison, the petitioners, owned two strata lots within Victoria City Strata Plan 490 ("Strata 490"): a commercial unit (the Law Firm Lot), purchased in 2013, and a residential unit (the Residential Lot), which Mr. Hutchison acquired by right of survivorship in September 2009 and transferred to Ms. Hutchison in December 2012. The petitioners have lived in the Residential Lot since September 2013. Strata 490 is attached to the Hartwig Court Property and Building, and access to Strata 490 depends on a right of way registered against the title of an adjoining property, The Owners, Strata Plan VIS 962 ("Strata 962"), known as the Easement. The Easement was entered into in 1980 between Inner Harbour Management Corporation, Cedric Steele Realty Ltd., Diversified Holdings Ltd., Kingsley Enterprises Ltd., and the Monsons, then owners of the Residential Lot, and granted the right to pass and repass over the easement area for purposes of access, with unrestricted hours for the Residential Lot and hours of 7:00 a.m. to 9:00 p.m. for the commercial lots. Since moving into the Residential Lot, the petitioners had parked personal vehicles overnight in designated spots within the Easement area. In May 2024, Strata 962 told the petitioners it did not believe the Easement granted a right to park and proposed a paid licence agreement, which the petitioners declined, leading to the petition.

Policy and legislative provisions at issue

The operative provision is the Easement's grant of "the right to pass and repass whether by foot, on motor vehicle or otherwise" over the easement area "for the purpose of access" to the relevant lots. The Easement contains no express reference to parking, and its hours-of-use clause distinguishes between the commercial dominant tenements, restricted to 7:00 a.m. to 9:00 p.m., and the Monsons' residential use, which was unrestricted as to time. Both parties agreed the Easement was meant to provide vehicular access, but disagreed on whether that access extended to parking or was limited to dropping off and picking up. The court's analysis drew on Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, on contractual interpretation and surrounding circumstances, and on Armstrong v. North Saanich (District), 2025 BCCA 277, regarding implied ancillary rights of easements. Additional authorities addressing whether parking is ancillary to an easement included Brundrett v. Muckle, Banville v. White, 2002 BCCA 239, Arbutus Bay Estates Ltd. v. Canada (Attorney General), MacKenzie v. Matthews, and Square-Boy Limited v. The City of Toronto, 2017 ONSC 7178.

Reasoning and analysis

Justice Jackson found the Easement's reference to "the purpose of access" ambiguous as to scope, making consideration of surrounding circumstances appropriate. She admitted hearsay evidence from Mr. Hutchison about statements by Mr. Hartwig and the Monsons under the principled exception, given their deaths, the reliability of the evidence, and the absence of any challenge to it. The judge found that before the 962 Hotel Building was built, occupants of the Hartwig Court properties and Strata 490 had parked on a private road, and that a related parking dispute brought by the Monsons against Inner Harbour under a prior easement had been settled through execution of the Easement now at issue. Drawing on MacKenzie v. Matthews and Square-Boy Limited v. The City of Toronto, she reasoned that where a right of way's purpose is vehicular access and there is nowhere else to leave the vehicle, parking is ancillary to that access. She distinguished Brundrett v. Muckle and Robb v. Walker as involving easements limited to specific purposes, such as sewer lines, rather than general access. The judge also treated the petitioners' and their predecessors' consistent, unchallenged parking in the Easement area since 1981, known to Strata 962, as admissible surrounding circumstance evidence, despite the general caution against relying on subsequent conduct, because the conduct was unequivocal and proximate to the Easement's formation. She rejected Strata 962's argument that separate parking agreements entered into decades later by Cedric Steele and Kingsley showed an intention to exclude parking, finding those later agreements unreliable and noting the petitioners were not parties to them. Finally, she considered the absence of any other guaranteed parking for the Residential Lot and Law Firm Lot, and the historical assignment of Parking Spots, as supporting the conclusion that parking was an ancillary right.

Ruling and overall outcome

Justice Jackson granted the declarations sought by the petitioners, Kathryn and John Hutchison, ruling that the right to park in the Easement area is an ancillary right that necessarily accompanies the granted right of vehicular access, subject to the existing time restrictions applicable to the Law Firm Lot and other commercial dominant tenements. The court further ordered that the historical practice of assigning parking stalls to the petitioners continue as part of its order. The reasons for judgment do not specify any monetary award, costs, or damages.