COURT OF APPEAL FOR ONTARIO
Tulloch C.J.O., Rouleau and Lauwers JJ.A.
BETWEEN
Paul Bennett and Roberta Bennett
Applicants (Appellants)
and
Kimberly Chadwick and Cressview Lakes also known as Cressview Lakes Corporation
Respondents (Respondents)
Colin A. Brown, for the appellants
Alex Ciccone, for the respondent Kimberly Chadwick
Paula Lombardi, for the respondent Cressview Lakes also known as Cressview Lakes Corporation
Heard: June 12, 2026
On appeal from the judgment of Regional Senior Justice Mark L. Edwards of the Superior Court of Justice, dated June 18, 2025, with reasons reported at 2025 ONSC 3603.
REASONS FOR DECISION
A. overview
1This appeal concerns a longstanding dispute over access to Lot 52 within the Cressview Lakes development. The owners of that lot, the appellants Paul and Roberta Bennett, contend that a fence erected by the respondent, Kimberly Chadwick, unlawfully interferes with their right-of-way over Lot 46 and prevents them from enjoying the access rights historically associated with their property. They further submit that the respondent, Cressview Lakes Corporation (“Cressview”), acted oppressively by permitting the construction of the fence without adequate consultation, failing to disclose relevant corporate records, and relying upon the appellants’ alleged regulatory non-compliance to restrict their participation in corporate affairs.
2The application judge dismissed the appellants’ application. He rejected their argument that the right-of-way began on Lot 46. Instead, after interpreting a 1961 shareholder resolution, he found that the right-of-way commenced on Lot 45 and ran along a different route through Lot 46 to reach Lot 52. He further concluded that the fence did not interfere with this right-of-way and that there was no evidence of oppression by Cressview.
3At the heart of the appeal lies a disagreement about the legal source and location of the right-of-way serving Lot 52. The appellants argue that a written agreement executed in 1974 created a right-of-way by express grant across Lot 46 only and that the application judge erred in concluding that the governing right-of-way remained the route established by a 1961 shareholder resolution. They further submit that the fence erected by Ms. Chadwick has the practical effect of relocating and narrowing the right-of-way, thereby impairing access to their land-locked property. Finally, they argue that the application judge improperly rejected their oppression claim against Cressview.
4At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide those reasons.
5We are not persuaded that the application judge committed any reversible error. His findings concerning the location and scope of the right-of-way, the effect of the 1974 agreement, the continued usability of the right-of-way, and the absence of any evidentiary foundation for the oppression claim, were all open to him on the record. Properly understood, this appeal seeks to revisit factual findings and inferences that attract substantial appellate deference. The appellants have not established any palpable and overriding error warranting intervention.
6For the reasons that follow, the appeal is dismissed.
B. The Route of the Right-of-Way
7The principal issue concerns the location and scope of the right-of-way created by express grant – a form of easement – that serves Lot 52. This issue turns on the interpretation of the wording of the instrument creating the right-of-way in the context of the contemporaneous circumstances. The standard of review is palpable and overriding error absent an extricable error of law: Markowski v. Verhey, 2020 ONCA 472, 26 R.P.R. (6th) 1, at paras. 26-28; Reddick v. Robinson, 2024 ONCA 116, 493 D.L.R. (4th) 134, at paras. 13-15, leave to appeal refused, [2024] S.C.C.A. No. 143.
8The 1961 shareholder resolution provides that the owner of Lot 52 “should have access to Lot 52 by using the present roadway over Lot 45 and Lot 46”.
9The appellants submit that the application judge improperly accepted Ms. Chadwick’s marked-up survey as an accurate depiction of the historical route referenced in the 1961 shareholder resolution. They argue that neither party possessed firsthand knowledge of the original 1961 route and that the marked-up drawing improperly relocated the right-of-way away from the historical driveway and toward the creek. They further contend that the route depicted by Ms. Chadwick is less convenient, less practical, and does not provide access in the same manner as the route historically used by the appellants.
10We do not accept the premise of this submission.
11The application judge did not determine the location of the right-of-way by accepting Ms. Chadwick’s sketch as definitive proof. Rather, he considered the sketch together with the historical documents, survey evidence, photographs, and admissions made by the parties. The sketch functioned as an illustrative aid and not as an independent source of legal rights.
12The application judge found that the instrument creating the right-of-way, the 1961 shareholder resolution, established that it originated on Lot 45 and proceeded across Lot 46 to Lot 52. He further found that there was no admissible evidence demonstrating that the location of the right-of-way had ever been altered.
13Those findings were open to him on the record. The appellants have not identified any palpable and overriding error or extricable legal error that would justify appellate intervention.
C. The EFFECT OF THE 1974 Agreement
14The appellants place significant reliance upon a 1974 agreement, signed by the then-owners of Lots 46 and 52 and witnessed by Cressview representatives. The agreement states that a right-of-way shall be granted across Lot 46 to Lot 52 for so long as the lots exist.
15The appellants argue that the application judge failed to give effect to the plain wording of this document. They submit that it created a right-of-way by express grant over Lot 46 only, that it superseded any earlier arrangements, and that its omission of any reference to Lot 45 was deliberate and legally significant.
16We do not accept that submission.
17The application judge recognized the existence of the 1974 agreement and considered its legal significance. He concluded that the document did not identify the location of any right-of-way. Thus, that agreement could not be interpreted as creating a new and distinct right-of-way different from the one already created by the 1961 shareholder resolution.
18In our view, that conclusion was available to him.
19The 1974 agreement contains no description of the route to be followed across Lot 46. Nor does it purport to terminate, relocate, or replace the access arrangement that had existed since 1961.
20As well, the application judge was entitled to consider the surrounding circumstances and historical documentation in interpreting the 1974 agreement. The historical record supported his conclusion that the 1974 document reflected and confirmed an existing access arrangement rather than creating a new right-of-way over a different route. This conclusion is entitled to deference because the appellants have not shown any extricable legal error or palpable and overriding factual error: Reddick, at paras. 13-15.
21The appellants also emphasize that they lawfully used their preferred access route before the fence was built. But as the application judge found, that right was not a right-of-way by express grant that, as an easement, could not be revoked. Instead, it was a licence, a personal non-proprietary right revocable by Ms. Chadwick at will: Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, 134 O.R. (3d) 401, at paras. 49-50, 113-116. As the application judge concluded, Ms. Chadwick lawfully revoked that right when the appellants refused to remove their property from Lot 46.
22The appellants further submit that the absence of the parcel ownership register prevented a proper determination of whether Lots 45 and 46 remained under common ownership in 1974. However, even assuming that further documentation may have been available, the application judge was entitled to decide the case on the evidentiary record before him. The absence of the register does not undermine the findings he made concerning the meaning and effect of the 1974 agreement.
D. The Fence and Practical Access
23The appellants next argue that the fence substantially interfered with their right-of-way. They submit that the application judge focused excessively on whether some access remained available and failed to address whether the right-of-way could still be exercised substantially and practically as conveniently as before. They argue that the fence forces them toward a creek-side route, narrows the available passage, impedes access around their garage, affects the movement of vehicles and equipment, and deprives them of the practical use of the historical driveway.
24We disagree.
25The application judge found that the fence did not block the original right-of-way that the 1961 shareholder resolution created by express grant. That route, he found, was never changed, remained available, and was capable of being exercised by vehicles, including a pickup truck. He rejected the appellants’ evidence that the route was unsafe or unusable. He further found that what the appellants sought was not access to Lot 52 itself, but the continued convenience of using Ms. Chadwick’s driveway.
26These findings are dispositive. They establish that the fence was built on land unencumbered by the right-of-way and, thus, could not constitute a substantial interference: Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 41; Drumonde v. Moniz (1997), 1997 CanLII 3739 (ON CA), 105 O.A.C. 295 (C.A.), at paras. 18, 21. The fact that the appellants may now find access less convenient than before does not establish a right to modify the granted route.
E. The Credit Valley Conservation Authority Issue
27The appellants further submit that the fence effectively shifted access toward the creek and thereby created regulatory consequences requiring approval from the Credit Valley Conservation Authority (“CVC”).
28We agree with the respondents that this argument cannot succeed.
29The application judge was not asked to determine whether CVC approval was required for future work that may or may not occur. Nor was there an evidentiary record capable of supporting the appellants’ assertions regarding future regulatory prejudice.
30To the extent the appellants seek to advance a new theory that the fence constitutes unauthorized development under applicable conservation legislation and regulations, that issue was not properly raised and developed before the application judge. It, therefore, provides no basis for appellate intervention.
F. The Oppression Claim
31Finally, the appellants submit that Cressview failed to disclose corporate records, failed to produce a parcel ownership register, permitted construction of the fence without consulting them, and thereafter relied upon their alleged non-compliance with CVC requirements to restrict their participation in corporate affairs. They argue that these actions frustrated their reasonable expectations as members and constituted oppressive conduct within the meaning of the Ontario Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15.
32The difficulty with this submission is that the application judge found there was no evidentiary foundation capable of supporting an oppression remedy.
33An oppression claimant must demonstrate a reasonable expectation that was violated by corporate conduct that was oppressive, unfairly prejudicial to, or unfairly disregarded the interests of the claimant. Deference is owed to the application judge’s ruling on the oppression claim absent palpable and overriding factual error, legal error, or a manifestly unjust exercise of discretion: Wilson v. Alharayeri, 2017 SCC 39, [2017] 1 S.C.R. 1037, at paras. 24, 59.
34While the appellants identify a number of grievances concerning the conduct of Cressview, the application judge was entitled to conclude that the evidence did not establish conduct that was oppressive, unfairly prejudicial, or unfairly disregarded their interests. Nor was he required to accept the appellants’ contention that the dispute over access to Lot 52 transformed a longstanding property disagreement into a corporate oppression claim.
35Contrary to the appellants’ submission, the reasons permit meaningful appellate review and make clear why the oppression claim failed. As for the claim that Cressview’s alleged decision to permit Ms. Chadwick to build the fence constitutes oppression, the mere fact that the fence harmed the appellants’ interests does not establish that claim. Unfairness is also required: BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, [2008] 3 S.C.R. 560, at para. 71. As the application judge explained, the construction of the fence was not unfair. Instead, it was a response to the appellants’ improper storage of property on Lot 46 and failure to remove it even though Ms. Chadwick and Cressview gave them every opportunity to remedy the situation.
36We, therefore, see no basis to interfere with the application judge’s findings and his dismissal of the oppression claim.
G. Disposition
37Ultimately, the application judge concluded that the appellants continue to enjoy the same right-of-way that has existed since 1961; that the 1974 agreement did not create a different right-of-way; that the fence does not substantially interfere with the exercise of the existing right-of-way; and that the oppression claim against Cressview was unsupported by the evidence.
38Those conclusions were open to him on the record and disclose no palpable and overriding error.
39The appeal is dismissed.
40The respondents are entitled to their costs of the appeal. Costs fixed in the amount of $11,500 all-inclusive to each of Cressview and Ms. Chadwick.
“M. Tulloch C.J.O.”
“Paul Rouleau J.A.”
“P. Lauwers J.A.”