Colin Pye

The applicant brought an application under the Road Access Act to close an access road to the respondents, proposing to erect gates that would allow other property owners access while excluding the respondents.

The court found that the applicant failed to demonstrate that closure was reasonably necessary to prevent substantial damage or injury to his property interests.

Furthermore, the court held that public interest considerations, including emergency and utility access, weighed in favour of keeping the road open.

The application was dismissed.

The moving parties sought to dismiss the plaintiff's action under Rule 21.01(3)(b) for lack of legal capacity, arguing the claims were essentially for trademark infringement but failed to plead the Trademarks Act.

The court dismissed this ground, finding the plaintiff's claims were properly grounded in common law breach of contract, passing-off, and unjust enrichment.

The moving parties also argued the action was an abuse of process due to a related proceeding in Toronto.

The court deferred the abuse of process issue, strongly recommending the action be transferred to Toronto and joined with the related proceeding.