Gillard v. Gillard

Gillard v. Gillard

The appeal was dismissed because the trial judge permissive‑use finding was open on the evidence and there was no error in his application of the law to the facts, so no prescriptive easement was established.

Source-derived case information.

Citation
C40380
Parties
Plaintiffs/appellants: John Gillard and Lorraine Gillard; Defendants/respondents: David Gillard and Maxine Lane
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
27 October 2004
Procedural Posture
Civil / Appeal From Trial Judgment
Outcome
Appeal dismissed
Legal Topics
Prescriptive Easement, Permission Vs. Adverse Use, Appeal and Costs
Source Language
english
Property Law Easements Prescription Civil Procedure Prescriptive Easement Permission Vs. Adverse Use Appeal and Costs

Source-derived case record

Summary, issues, holding and outcome

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Parties

John Gillard and Lorraine Gillard

Plaintiffs/appellants

David Gillard and Maxine Lane

Defendants/respondents

Procedural Posture

Civil / Appeal From Trial Judgment

Legal Issues

  1. 1 Whether long continued use gave rise to a prescriptive easement
  2. 2 Whether the use was permissive or adverse
  3. 3 Whether the trial judge erred in law in applying prescriptive easement principles

Ratio Decidendi

The appeal was dismissed because the trial judge permissive‑use finding was open on the evidence and there was no error in his application of the law to the facts, so no prescriptive easement was established.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to the respondent in the amount of $5,000.00, all inclusive