Canada Case Law

Clouter v. Garrett

Court

Supreme Court of Nova Scotia

The court accepted expert evidence that the water flows in a naturally occurring defined swale predating the subdivision, so the Garretts did not commit a nuisance or trespass by directing water into that swale; conversely, the Plaintiffs' post‑development alterations (raising the secondary driveway culvert and infilling) unlawfully impeded the natural flow and constituted a nuisance, obliging the Plaintiffs to remediate (lower the culvert) and the Defendants to remove the encroaching portion of their French drain; no damages were awarded because remedial work will restore prior condition, an…

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• Nuisance
• Trespass
• Stormwater drainage
• Easements
• Injunctions
• Costs

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Grape Island Property Owners Association Inc. v. Orillia (City)

Court

Court of Appeal for Ontario

The Court of Appeal dismissed an appeal in a proprietary estoppel claim over a City water lot, holding there was no clear assurance or reviewable error.

• Proprietary estoppel
• Easement
• Licence of occupation
• Municipal policy revocation
• Costs
• Proprietary-estoppel

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The Dawson Group v. 1259963 Ontario Ltd.

Court

Supreme Court of Nova Scotia

Court found no enforceable First Oral Agreement re Bay Right of Way and no enforceable Second Oral Agreement altering repayment; Respondents waived claim to Bay Right of Way under s.7 of APS; Respondents are in default for failure to pay principal, interest and property taxes; payments by Applicant were merged into mortgage debt; no fiduciary breach established; Applicant entitled to enforce VTB mortgage security subject to full accounting and Court approval of amounts owing.

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• Vendor take-back mortgage
• Easements
• Oral agreement to vary written contract
• Constructive trust
• Forbearance
• Default under mortgage

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Moreau v. Hawkins

Court

Supreme Court of British Columbia

The court dismissed a stay application, holding the petition over Easement K should proceed despite a parallel Ministry water licence process.

• Easement
• Water licence
• Stay of proceedings
• Abuse of process
• Jurisdiction
• Easements

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Ferguson v. Doak Shirreff LLP

Court

Supreme Court of British Columbia

The court found a solicitor negligent for advising that a valid easement supported access to a vacation property, and held the plaintiff’s mitigation steps were reasonable.

• Solicitor negligence
• Easement interpretation
• Access rights
• Causation
• Mitigation
• Quantum of 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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Armstrong v. North Saanich (District)

Court

British Columbia Court of Appeal

The Court of Appeal dismissed both appeals, upholding permits for stairs on an easement and confirming the easement included an ancillary right to build them.

• Easements and ancillary rights
• Judicial review - reasonableness
• Statutory interpretation of municipal powers
• Procedural fairness
• Development and building permits
• Easements

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Brown v. Volcz

Court

Supreme Court of British Columbia

The court dismissed a neighbour dispute over driveway access, finding no equitable easement or rectification and awarding costs to the respondents.

• Proprietary estoppel
• Equitable easement
• Rectification of instrument
• Costs (indemnity clause)
• Licences and revocable permission
• Proprietary-estoppel

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David v. Song

Court

Supreme Court of British Columbia

British Columbia Supreme Court judgment on libel, easement obstruction and nuisance claims arising from neighbour disputes in Lions Bay.

• Libel
• Apology act
• Malice
• Justification
• Driveway easement obstruction
• Repavement cost allocation

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1004364 BC Ltd. v. Kelowna (City)

Court

British Columbia Court of Appeal

La Cour rejette l’appel et confirme que la nullité de certaines clauses positives n’invalide pas le reste du droit de passage statutaire.

• Statutory right of way
• Easements
• Positive covenants
• Interpretation of instruments
• Severance
• Injunctions

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