Canada Case Law

Qi v. Liu

Court

British Columbia Court of Appeal

The chambers judge correctly concluded the Interim Order unambiguously prohibited both partial and total obstructions of the easement; any reliance on the registered Easement to interpret the order was an error of principle but immaterial because the order alone made the obligation clear; and there was no error in not exercising residual discretion because the appellants did not ask the judge to do so, so the contempt finding stands.

Source excerpt

• Interim order interpretation
• Four corners rule
• Residual judicial discretion
• Standard of review
• Parking and obstruction of easement

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Sheringham Water Works Ltd. v. Penner

Court

Supreme Court of British Columbia

The statutory right-of-way registered in 1973 is enforceable; the holder must restore the surface to the condition that existed immediately prior to each entry unless such restoration is not practicable or the servient owner acted in bad faith in making improvements that materially increase the cost or inconvenience of restoration; the servient owner may not deliberately or negligently block access (punitive self-help is unlawful); gates are permissible but may be locked only if the holder is provided a working key or access code; the holder should provide 24 hours' notice absent an emergency…

Source excerpt

• Statutory right-of-way
• Enforceability
• Restoration covenant
• Access rights
• Self-help
• Good faith

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Norris v. Krief

Court

Supreme Court of British Columbia

The notice of application for summary trial was dismissed because the court could not, on the affidavit evidence before it, find the necessary facts to decide key issues justly: (1) there is a genuine conflict of material fact about the safety of the Easement Road and the plaintiff's proposed use that cannot be resolved summarily; (2) the Water Well claim is intertwined with an alleged assumption agreement and discharge under s.35 Property Law Act such that terms cannot be determined on this record; and (3) deciding the easement issues in isolation would impermissibly litigate the dispute in…

Source excerpt

• Interpretation of easement instruments
• Ancillary rights to easements
• Substantial interference/trespass
• Suitability for summary trial
• Interlocutory injunction
• Water easement and discharge (s.35 property law act)

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The Owners, Strata Plan VR 1364 v. The Owners, Strata Plan VR 2027

Court

Supreme Court of British Columbia

The court held that a strata easement for parking and access did not give the dominant owner exclusive use of the shared parking area.

• Easement interpretation
• Exclusive use
• Access rights
• Costs
• Easement-interpretation
• Exclusive-use

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Stutzinger v. Blecker

Court

Supreme Court of Nova Scotia

The deed grants a broad 66-foot right of way allowing vehicular and pedestrian access at any point; the respondent's placement of large, immovable boulders adjacent to the applicants' property prevented vehicle access to part of the dominant tenement and therefore constituted an unreasonable and substantial interference with the easement. The appropriate remedies are a mandatory order requiring removal of the boulders and restoration at the respondent's expense by the specified deadline, a declaratory judgment confirming the right of way, an award of general damages for inconvenience ($1,000)…

Source excerpt

• Right of way
• Easement interpretation
• Servient vs dominant tenement
• Obstruction of easement
• Mandatory injunctions
• Damages

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Whitehead v. Tucker

Court

Court of Appeal for Ontario

Ont. C.A. allows appeal in long-running drainage dispute, finding the contempt motion was wrongly dismissed and substituting an order requiring further remedial steps.

• Interpretation of court orders
• Enforcement of injunctions
• Expert evidence on remediation
• Discretion in contempt proceedings
• Costs and security (lien)
• Civil-contempt

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2660519 Ontario Inc. v. McWhinnie

Court

Court of Appeal for Ontario

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 excerpt

• Declaration of rights
• Scope of easement
• Live controversy
• Appellate review standard

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Cook v. Massey

Court

Supreme Court of British Columbia

BCSC held an easement allowed stopping, loading, unloading and limited parking for construction access, dismissed trespass claims, and found the Cooks liable for nuisance.

• Easement interpretation
• Declaration
• Injunction
• Trespass
• Private nuisance
• Damages

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Zinck v. Stewart

Court

Nova Scotia Court of Appeal

The appeal was dismissed because the proposed fresh evidence was inadmissible under the Palmer test, and the hearing judge correctly found on the evidence that the respondent had established open, uninterrupted, continuous and peaceful use of Quarry Road without permission and that the easement was reasonably necessary; there was no legal or factual error in the judge's application of the law on prescriptive easements, consideration of neighbourliness, or inferences from the view.

Source excerpt

• Prescriptive easement
• Right-of-way
• Admissibility of fresh evidence on appeal
• Necessary use for easement
• Neighbourliness/permission
• Injunctions and costs

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Stanton v. Stanton

Court

Nova Scotia Court of Appeal

The stay motion is dismissed because the appellants failed to establish an arguable issue capable of persuading an appellate panel and failed to show irreparable harm; the new bias allegation lacked evidentiary foundation, the trial judge’s factual and credibility findings are owed deference, and the respondent’s undertaking to preserve the Fish House eliminated the asserted irreparable harm related to loss of the structure.

Source excerpt

• Stay of execution
• Fulton test
• Irreparable harm
• Balance of convenience
• Credibility findings
• Appellate deference

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