J. Murray Davison

The appellants appealed a trial judgment that dismissed their claims of substantial interference with an easement and nuisance against the respondents, while granting a permanent injunction preventing parking in the right-of-way tunnel.

The respondents cross-appealed the scope of the parking injunction.

The Court of Appeal dismissed both appeals, finding no palpable and overriding error in the trial judge's interpretation of the easement, application of the substantial interference test, or the tailored scope of the parking injunction.

The trial judge's costs award was also upheld.

This decision addresses costs following a trial concerning easement rights and property interference.

The plaintiffs' (Paiva) claims against the Town of Newmarket were dismissed, and their claims against the Buckley defendants were largely dismissed, except for a limited injunction.

The Buckley defendants' counterclaim for an injunction was granted.

The court, applying the Courts of Justice Act and Rules of Civil Procedure, awarded costs to the Town of Newmarket and the Buckley defendants as the overall successful parties, while reducing their claimed amounts due to excessive hours billed and, for the Buckley defendants, instances of breaching court orders.

This trial concerned a long-standing dispute over an easement (right-of-way) through a tunnel between adjacent commercial properties at 247, 253, and 255 Main Street South, Newmarket.

The plaintiffs, owners of 255 Main Street, alleged that the defendants, owners of 247 and 253 Main Street, substantially interfered with their easement rights through increased use, physical alterations, and parking.

The plaintiffs also sued the Town of Newmarket for enabling the interference.

The defendants counterclaimed, asserting the plaintiffs illegally parked on their property.

The court found that while increased use and minor alterations did not constitute substantial interference, the defendants' parking in the tunnel did.

The court dismissed the plaintiffs' claims for damages and against the Town of Newmarket, but granted an injunction preventing parking in the tunnel.

The court also granted the defendants' counterclaim, enjoining the plaintiffs from parking on the 253 Main Street parking pad, finding no ancillary right or prescriptive easement for parking.