Canada Case Law

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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Basmadjian v. Kovac

Court

British Columbia Court of Appeal

The Court of Appeal held the pedestrian had the right of way and the driver breached s. 179(3) of the Motor Vehicle Act. Liability was reapportioned 70/30.

• Right of way
• Apportionment of liability
• Jury instructions
• Section 179(3) motor vehicle act
• Misdirection
• Right-of-way

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Taylor v. Ellis

Court

Supreme Court of British Columbia

Liability-only motor vehicle case from Kelowna. The Court found the defendant turned on a yellow light, but held the plaintiff was 100% at fault for entering inattentively and accelerating into the intersection.

• Left-turn collisions
• Right of way
• Apportionment of fault
• Statutory duty to yield (s.174 mva)
• Credibility findings
• Left-turn-collision

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Bains v. Zhao Estate

Court

Supreme Court of British Columbia

Liability-only trial arising from a fatal Highway 99 collision. The court found the deceased pedestrian solely liable and held the plaintiff driver was not negligent.

• Duty of care
• Right of way
• Evasive action
• Apportionment of liability
• Statutory duties under the motor vehicle act
• Motor-vehicle-negligence

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Saini v. Pettipas

Court

Supreme Court of British Columbia

In this motor vehicle negligence trial, the court found the plaintiff entered on a red light, accepted independent eyewitness evidence, and dismissed the claim.

• Traffic signals
• Right of way
• Liability allocation
• Credibility of witnesses
• Costs assessment
• Motor-vehicle-negligence

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Hellmen v. Hartwick

Court

Supreme Court of British Columbia

The court enforced a right-of-way easement, ordered removal of a fence and gate that substantially interfered with northern access, and declared an encroachment easement for existing structures.

• Easement enforcement
• Right of way
• Encroachment
• Injunction
• Compensation
• Title registration

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Kranenburg v. Grice

Court

Court of Appeal for Ontario

The appeal was dismissed because the appellant failed to demonstrate any palpable and overriding error of fact or any legal error in the application judge's analysis; the application judge properly resolved evidentiary conflicts and the appellate court will not refind facts.

Source excerpt

• Right of way
• Evidentiary findings
• Standard of review
• Costs

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Stewart v. Zinck

Court

Supreme Court of Nova Scotia

The court found credible evidence of open, continuous, uninterrupted and peaceful vehicular and pedestrian use of the Quarry Road to access 61 and 63 East River Point Road dating from at least 1985 until 2020, with passive acquiescence by servient owners and no evidence of overt permission; therefore a prescriptive easement/right of way was established (alternatively supported by lost modern grant), warranting a declaratory remedy and mandatory injunction to remove the fence and enjoin interference; counterclaim dismissed.

Source excerpt

• Prescriptive easement
• Lost modern grant
• Right of way
• Injunction
• Evidence (affidavits and hearsay)
• Land registration

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Boudreau v. Boudreau

Court

Supreme Court of Nova Scotia

The deed and registered plan established a 15-foot right of way in favour of the applicant's lot; the grant contained no limitation on vehicular or construction access and historical use included heavy equipment, so the easement includes vehicular and reasonable heavy equipment access; recurrent parking by the respondent(s) amounted to a substantial interference with the applicant's use because it unilaterally altered the right of way and posed practical and safety concerns, warranting a declaration and injunctive relief.

Source excerpt

• Right of way
• Interpretation of easement
• Substantial interference
• Parking on easement
• Remedies (declaration and injunction)

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Strange v. Ed

Court

Supreme Court of British Columbia

The court dismissed a summary-trial easement claim, holding the grant was a right of way for access and that the defendants’ works did not substantially interfere.

• Easement
• Right of way
• Easement interpretation
• Interference with easement
• Summary trial
• Right-of-way

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