Alex Ciccone

The appellants challenged the dismissal of an application concerning the location and scope of a right-of-way serving their land-locked lot, the effect of a later agreement, alleged interference caused by a fence, and an oppression claim against a not-for-profit corporation connected to the development.

The Court of Appeal held that the application judge was entitled to find that the governing right-of-way was created by a 1961 shareholder resolution, that the 1974 agreement did not create a different route, and that the fence did not substantially interfere with the granted easement.

The court also rejected a new regulatory theory concerning conservation authority approval and found no evidentiary basis for the oppression claim.

Applying deferential appellate review, the court found no palpable and overriding error or extricable legal error and dismissed the appeal.

The applicant sought an order compelling the Long Point Region Conservation Authority (LPRCA) to enforce a permit issued to his neighbours, who had constructed a retaining wall contrary to the approved grading plan.

The LPRCA had investigated the applicant's complaint but exercised its discretion to take no enforcement action, concluding the completed work conformed with the applicable legislation.

The Superior Court found that while the LPRCA has the discretionary authority to enforce its permits through stop orders or charges, it is not mandatory.

Applying the reasonableness standard of review, the Court held that the LPRCA's decision not to take enforcement steps was justified, transparent, and intelligible.

The application was dismissed.

The applicants, Paul and Roberta Bennett, sought a declaration of a right-of-way over property owned by the respondents, Kimberly Chadwick and Cressview Lakes Corporation, and an order requiring removal of a fence allegedly impeding their access.

The dispute centered on the location of the right-of-way and whether the applicants’ access was impeded.

The court found that the original right-of-way was over Lot 45 (not Lot 46), as established by a 1961 resolution and a 1974 agreement, and that the fence did not impede access.

The application was dismissed.

Following the dismissal of the applicant's judicial review application, the court issued a supplementary endorsement fixing the respondent's partial indemnity costs.

On consent of the parties, costs were fixed at $30,000, payable by the applicant.