2660519 Ontario Inc. v. McWhinnie
The appeal is dismissed because the application judge correctly understood the extent of the easement, there was no live controversy warranting a declaration of rights, and no palpable and overriding error was shown on appeal.
Source-derived case information.
- Citation
- 2025 ONCA 622
- Parties
- Appellant: 2660519 Ontario Inc.; Respondent: Brian Douglass McWhinnie
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 9 September 2025
- Procedural Posture
- Civil Appeal / Appeal
- Outcome
- Appeal dismissed.
- Legal Topics
- Declaration of Rights, Scope of Easement, Live Controversy, Appellate Review Standard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
2660519 Ontario Inc.
Appellant
Brian Douglass McWhinnie
Respondent
Procedural Posture
Civil Appeal / Appeal
Legal Issues
- 1 Whether the application judge erred in defining the land subject to the easement (extent into the channel)
- 2 Whether a declaration of rights was required given the absence of a live controversy
- 3 Whether the application judge's findings were reviewable only for palpable and overriding error
Ratio Decidendi
The appeal is dismissed because the application judge correctly understood the extent of the easement, there was no live controversy warranting a declaration of rights, and no palpable and overriding error was shown on appeal.
Court Disposition
Appeal dismissed.
Orders
- Appeal dismissed
- Costs awarded to the respondent in the agreed amount of $17,500 all-inclusive
Full Case Text
Judgment text and source record
1 paragraphs
2660519 Ontario Inc. v. McWhinnie Collection Decisions of the Court of Appeal Date 2025-09-09 Neutral citation 2025 ONCA 622 Docket numbers COA-25-CV-0146 Judges Miller, Bradley; Zarnett, Benjamin; Madsen, Lene Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: 2660519 Ontario Inc. v. McWhinnie, 2025 ONCA 622 DATE: 20250909 DOCKET: COA-25-CV-0146 Miller, Zarnett and Madsen JJ.A. BETWEEN 2660519 Ontario Inc. Applicant (Appellant) and Brian Douglass McWhinnie Respondent (Respondent) Megan Marrie and Sam Zucchi, for the appellant Jonathan Friedman and James Hutchinson, for the respondent Heard and rendered orally: September 5, 2025 On appeal from the judgment of Justice Jocelyn Speyer of the Superior Court of Justice, dated January 10, 2025, with reasons reported at 2024 ONSC 6083. REASONS FOR DECISION [1] The application judge dismissed the appellant’s application in which it sought, among other relief, a declaration of rights respecting an easement held by the respondent over a portion of the appellant’s lands. The appellant argues that the application judge made a palpable and overriding error as to the land subject to the easement, specifically, that it extended from the shoreline into the channel. [2] We disagree. Paragraphs 3 and 18 of the application judge’s reasons show that she appreciated the scope of the easement. [3] We see no error in the application judge’s refusal to grant a declaration of rights on the basis that none was required. On her findings there was no live controversy, and she was not required to declare rights in hypothetical future situations. [4] The appeal is dismissed. Costs are awarded to the respondent in the agreed amount of $17,500 all-inclusive. “B.W. Miller J.A.” “B. Zarnett J.A.” “L. Madsen J.A.”