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INTERESTS IN LAND - Positive easements - Rights of way

Thursday, June 13, 2019 @ 6:37 AM  


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Appeal by de Jocas and the other applicants from an order that determined the respondents did not substantially interfere with an easement in favour of the appellants. The parties owned five neighbouring cottage properties that bordered a lake. Historically, in order to access the cottages, the cottagers used a road, Brewers Close, which was claimed to be the location of an easement over the five properties. In 2015, the respondents altered the route of Brewers Close as it crossed their property. They used boulders and trees to block the old route. The application judge found he could not determine the validity of the easement based on the evidentiary record before him but assuming it was valid, found no substantial interference.

HELD: Appeal allowed; the matter was remitted for a fresh hearing. The evidentiary record before the application judge was insufficient to permit him to conclude the easement was not invalid based on vagueness or uncertainty or that there was no substantial impairment of the use of the easement arising from the respondents’ actions. Evidence ought to have been adduced as to the title history of the properties involved, the genesis of Brewers Close, and, to the degree possible, the precise dimensions and location of it. Without knowing the extent of the easement, it could not be determined whether there was substantial interference with that easement.

De Jocas v. Moldow Enterprises Inc., [2019] O.J. No. 2475, Ontario Court of Appeal, D. Watt, G.I. Pardu and I.V.B. Nordheimer JJ.A., May 13, 2019. Digest No. TLD-June102019008