Michael W. Carlson

Neighbouring landowners disputed whether a private roadway crossing the respondents’ property constituted an access road under the Road Access Act and whether the moving parties could lawfully close it.

The responding parties asserted that the road had served as their only vehicular access route for decades and sought a declaration that it was an access road and an injunction preventing interference.

The court found the roadway met the statutory definition of an access road but held that the responding parties had an alternative motor vehicle access route through another private lane connecting to a municipal road.

Because alternate access existed and the respondents had no legal right of way over the applicants’ property, the statutory conditions for closing the driveway were satisfied.

The court exercised its discretion to grant a closing order and dismissed the counter‑application.

Neighbouring property owners brought an application seeking an injunction preventing interference with their access to a laneway used as the sole vehicular access to several residential properties.

The respondents owned the servient property containing the laneway and argued that any historical right-of-way had been extinguished under the 40‑year search rule in the Registry Act because the servient easement was absent from title.

The court found the applicants openly used the laneway and relied on it for access, and held that proprietary estoppel applied because the respondents had allowed such use and later attempted to deny it in an unconscionable manner.

The court also interpreted s. 113(5)(a)(iv) of the Registry Act as preserving openly used unregistered easements, including rights-of-way that were historically registered but later omitted from title.

An injunction was granted prohibiting the respondents from interfering with the applicants’ use of the laneway.

The applicants sought an order enforcing their deeded right-of-way over a shared laneway and prohibiting the respondents from blocking it.

The responding neighbour argued that the applicants had abandoned their right-of-way through historical non-use and the erection of fences.

The court held that mere non-use is insufficient to prove abandonment and found no evidence of a deliberate act to abandon the easement.

The court granted the application, enjoining the respondents from blocking the laneway, and awarded partial indemnity costs to the applicants.

The plaintiffs moved to dismiss the defendants' appeal for delay, and the defendants brought a cross-motion to extend the time to perfect their appeal of a Master's order striking their pleadings.

The Master had previously struck the defendants' pleadings due to repeated failures to comply with timetables and court orders.

The Divisional Court found that the defendants failed to demonstrate a bona fide intention to appeal within the prescribed time, that the delay was excusable, or that the appeal had merit.

The court granted the plaintiffs' motion to dismiss the appeal for delay and dismissed the defendants' cross-motion for an extension of time.