Court of Appeal for Ontario

Date: 2025-09-09

Docket: COA-25-CV-0146

Panel: Miller, Zarnett and Madsen JJ.A.

Between

2660519 Ontario Inc. Applicant (Appellant)

and

Brian Douglass McWhinnie Respondent (Respondent)

Counsel

For the Appellant: Megan Marrie and Sam Zucchi

For the Respondent: Jonathan Friedman and James Hutchinson

Heard and rendered orally: September 5, 2025

On appeal from: The judgment of Justice Jocelyn Speyer of the Superior Court of Justice, dated January 10, 2025, with reasons reported at 2024 ONSC 6083.

Reasons for Decision

[1] The application judge dismissed the appellant's application in which it sought, among other relief, a declaration of rights respecting an easement held by the respondent over a portion of the appellant's lands. The appellant argues that the application judge made a palpable and overriding error as to the land subject to the easement, specifically, that it extended from the shoreline into the channel.

[2] We disagree. Paragraphs 3 and 18 of the application judge's reasons show that she appreciated the scope of the easement.

[3] We see no error in the application judge's refusal to grant a declaration of rights on the basis that none was required. On her findings there was no live controversy, and she was not required to declare rights in hypothetical future situations.

[4] The appeal is dismissed. Costs are awarded to the respondent in the agreed amount of $17,500 all-inclusive.

"B.W. Miller J.A."

"B. Zarnett J.A."

"L. Madsen J.A."