Executive summary: key legal and evidentiary issues

• Interpretation of the easement's "all related purposes" clause was central to determining whether stopping, loading, unloading, and limited parking were authorized within the easement area.

• Trespass claims by the Cooks were dismissed due to insufficient and inconclusive photographic and video evidence that failed to establish boundaries or duration of alleged transgressions.

• Private nuisance was found against the Cooks for intimidating behaviour, idling a truck to generate exhaust fumes, and threats of legal action against anyone who stopped in the easement area.

• Credibility and reliability concerns regarding aspects of the Cooks' testimony led the trial judge to give no weight to Ms. Cook's testimony on a key incident.

• An undisputed fence encroachment by the Cooks onto the Masseys' property resulted in a court-ordered easement for the life of the fence with compensation awarded.

• The appellate standard of palpable and overriding error was not met on any ground of appeal, leading to dismissal.

The neighbouring properties and the origin of the easement

Diane Cook and her son Justin Marshall (the Cooks) are the registered owners of a property in Chase. Their neighbours, Brenda and Roger Massey, own the adjacent lot. Both properties were originally part of a single parcel owned by the Watts, who subdivided the land and registered an easement against the Cooks' lot in favour of the Masseys' lot. The easement was intended to provide access to the Masseys' property across a small triangular area on the Cooks' lot, making the Masseys' lot the "dominant tenement" and the Cooks' lot the "servient tenement." The Masseys' lot was bare land at the time of subdivision, and the only way for a vehicle to enter or exit the Masseys' lot was through the easement area.

The easement clause at the heart of the dispute

The easement granted the Masseys the "full, free and uninterrupted right, licence, liberty, easement, privilege and permission" to install, use, repair, replace, and maintain a roadway, right of way, or travel area for the purpose of supplying a travel corridor for ingress and egress to the dominant tenement and "all related purposes." This phrase — "all related purposes" — became the focal point of the litigation. The Cooks argued the easement only conveyed a narrow right-of-way for ingress and egress, while the trial judge interpreted it more broadly to include activities related to accessing and developing the Masseys' property, including during residential construction.

The trial decision and the construction dispute

At the Supreme Court of British Columbia (Cook v. Massey, 2025 BCSC 1410), the trial judge interpreted the easement broadly. The judge considered the surrounding circumstances at the time the easement was granted, including that the Watts owned and subdivided the original parcel, that the Watts granted the easement to themselves and were the owners of both the dominant and servient tenements, that the only way for a vehicle to enter or exit the Masseys' lot was through the easement area, and that if a single family residence was constructed on that property, some stopping, loading and unloading, and parking for short periods would necessarily occur in the easement during the construction period. Finding the phrase "all related purposes" ambiguous, the judge concluded these activities fell within its scope. He issued a declaration that stopping, loading and unloading, and limited parking were authorized within the easement area. There was no right of unrestricted parking. Parking of five minutes or less was permitted, and parking of more than five minutes was only permitted if there were objectively exceptional circumstances, such as those that existed from time to time during construction of the Massey residence.

Trespass claims and the evidentiary shortcomings

The Cooks brought trespass claims against the Masseys and a number of their contractors, including the respondent Kamloops Truss Ltd., alleging unauthorized use of the easement area and incursions onto their property during the construction of the Masseys' home. They adduced photographs as well as videos and still images from a surveillance camera on their property. The trial judge found these of limited assistance because it was difficult to determine the boundaries of the easement from the videos, still images and photographs, and it was not possible to determine the duration of any alleged transgressions. Further, the Cooks did not witness many of the events depicted. The judge ultimately found the Cooks failed to prove on a balance of probabilities that there was any unauthorized use of the easement area, concluding that each instance was either authorized use of the easement area or the evidence did not establish a breach.

Private nuisance findings against the Cooks

While dismissing the Cooks' trespass claims, the trial judge found that some of the Cooks' conduct amounted to private nuisance against the Masseys. Applying the test set out in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, the judge found the Cooks had interfered with the Masseys' use or enjoyment of their land in a way that was non-trivial and unreasonable. Specifically, the judge found that Mr. Marshall stood outside in an intimidating manner whenever the Masseys were outside; Mr. Marshall idled his truck for extended periods to generate exhaust fumes to blow into the Masseys' garage; the Cooks routinely ran out of their residence and threatened legal action against anyone who stopped in the easement area; and Ms. Massey had started to take medication as a result of the conduct of the Cooks and feared for her safety. The judge then rejected a significant number of other nuisance allegations advanced by the Masseys, finding the evidence was either poorly developed, did not establish the required level of interference, or pointed to conduct that was within the Cooks' legal rights. The judge awarded the Masseys $5,000 in damages.

The fence encroachment and additional claims

It was undisputed at trial and on appeal that the Cooks' fence slightly encroaches on the Masseys' property. The Cooks were prepared to replace the fence and on appeal suggested they could simply remove its top railing to cure the encroachment. In either case, they would have to enter the Masseys' property — something the Masseys are unwilling to allow. The judge adopted the approach taken in Abel v. Harlton, 2024 BCSC 1072, granting an easement in favour of the Cooks for the life of the fence and awarding compensation to the Masseys. The Masseys sought a $5,000 award relying on the award made in Abel. The Cooks submitted that amount would be "profoundly excessive and disproportionate." The judge agreed with the Cooks and awarded the Masseys $1,500. The Cooks also raised issues about venting from the Masseys' home and roof runoff onto their property; however, the Cooks did not advance a claim about venting in their Amended Notice of Civil Claim, in their direct testimony, or in their closing submissions. As for the roof runoff, while the Cooks' Amended Notice of Civil Claim contained a specific pleading about a January 3, 2022 incident involving a construction worker using a snowblower, the Cooks adduced no evidence and made no closing submission about this incident. The judge also found the easement area requires remediation, noting the Masseys would like to pave their driveway and remediate the easement area but were concerned about problems with the Cooks. The judge characterized the Masseys' concerns as "reasonable, but speculative" and found insufficient evidence to craft a remedy.

The appeal and its outcome

The Cooks appealed to the Court of Appeal for British Columbia, appearing in person and arguing the trial judge erred in his interpretation of the easement, in his findings of fact, in his awards of damages, and by ignoring aspects of their claims. The Court of Appeal, in a unanimous decision authored by Chief Justice Marchand and concurred in by Justice Butler and Justice Warren, dismissed the appeal on April 21, 2026. The Court found the trial judge applied the correct approach to interpreting the easement and arrived at an interpretation that was reasonable and defensible. On the trespass findings, the Court reviewed the video and photographic evidence and determined that even where certain evidence might establish a palpable error — such as a teleloader that appeared to very briefly operate on the Cooks' property — it would not constitute an overriding one, as a brief incursion by one contractor would not have changed the judge's overall view or the outcome of the case. The nuisance award and the fence encroachment compensation were upheld as discretionary and very modest awards. The Court noted it was not in a position to reweigh the evidence, tinker with the judge's factual findings, or replace the judge's exercise of discretion with its own. The Masseys were the successful party, with the awards of $5,000 for private nuisance and $1,500 for the fence encroachment — totalling $6,500 — remaining undisturbed on appeal.