Court of Appeal for Ontario

Date: February 10, 2017 Docket: C62573

Judges: Simmons, Lauwers and Hourigan JJ.A.

Between

Maria Elizabeth Quintanar Plaintiff (Appellant)

and

Dean Anthony Goods and Lea Anne Ruth Goods Defendants (Respondents)

Counsel

Maria Elizabeth Quintanar, in person

Michelle M. Dwyer, for the respondents

Heard and released orally: February 7, 2017

On appeal from the judgment of Justice M.R. Gibson of the Superior Court of Ontario, dated July 26, 2016.

Endorsement

[1] The motion judge granted summary judgment dismissing the appellant's action claiming a declaration that a right-of-way is in full force and effect; an injunction restraining the respondents from blocking the right-of-way; and damages for trespass. In his reasons, the motion judge expressed an opinion on at least one issue that was not before him being the application of the City's bylaw. He also failed to address other issues that were before him, including whether the evidence tendered on the motion was properly admissible and whether portions of the fence constructed by the respondents on the edge of the right-of-way had the effect of blocking the appellant's access to it.

[2] In the circumstances, the motion judge's order cannot stand and is therefore set aside.

[3] Costs of the appeal are to the appellant on a partial indemnity basis fixed in the amount of $7,500 including disbursements and applicable taxes.

[4] Costs of the motion below are to the appellant in the cause.

Janet Simmons J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.