Court File and Parties
COURT FILE NO.: CV-21-193 DATE: 2023/06/08 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Michael Davidson, Applicant AND Michael Lollar, William Smith, and John Gendron, Respondents
BEFORE: Justice Stanley J. Kershman
COUNSEL: David M. Adams and Veronica S. Marson, for the Applicant J. Michael Hickey, counsel for the Respondents
HEARD: December 2, 2022 at Ottawa via Zoom
Decision on Application
Introduction
[1] This application is made by an owner of the property at 5048 Cedar Ridges Lane, Township of South Frontenac (“Township”) on Plan 544 relating to the use of a registered right of way. The land on Plan 544 was originally a cottage area and while there are still cottages on Plan 544, there are also four-season homes.
[2] The Applicant is one of over 50 owners who have a right of way in their favour over certain property owned by various parties, including the three Respondents.
[3] The only matter before the court is this application. There is no application from the Respondents.
Factual Background
[4] The Applicant owns a property at 5048 Cedar Ridges Lane which he purchased in 1999. The property register includes a deeded right of way over various properties, including the three Respondents’ properties. This right away is granted in favour of over 50 properties as shown on Plan 544.
[5] The first Respondent, Mr. Michael Lollar, purchased his property at 5288 Holmes Road in or about 1998.
[6] The second Respondent, Mr. John Gendron, purchased his property at 3278-3284 Silverwood Drive in 1995.
[7] The third Respondent, Mr. William Smith, purchased his property at 3278-3284 Silverwood Drive in 2002.
[8] The right of way was first recorded approximately 65 years ago in 1953 when Plan 544 was surveyed by David T. Humphries, Ontario Land Surveyor on July 12, 1953.
[9] On July 22, 1974, a right of way was granted to the original developer of the lands in instrument number FR254133. The right of way allowed the deeded owners from Plan 544 to cross over the properties on Plan 1752, which is where the Respondents’ properties are located.
[10] The location of the right of way, as confirmed in Plan 544, begins at the south-east limit of the Lollar Property and ends at the north-west corner of the Smith Property. It runs the length of the Lollar Property, Smith Property, and Gendron Property, as well as across other properties on Plan 752 between Cedar Ridges Lane and Holmes Road.
[11] In around 1998 Silverwood Drive was constructed, which is a public paved road that runs parallel to the right of way. Silverwood Drive was built by the Township, and it creates another route for the owners on Cedar Ridges Lane to access their property.
[12] The right of way in favour of the Applicant and the other dominant tenements is described in instrument number F498884 as “together with a right of way over the private road shown on the said plan, and across the said Lot 11, in the First Concession as now travelled to the public highway as in instrument number 386867.”
[13] The right of way over the servient tenements including the Respondents as described in instrument number 254113 is “subject to a right of way in favour of those entitled thereto over the private road shown on the said Plan 544.”
[14] Several subdivisions are in the area including the Mason-Gordon subdivision which is where the Cedar Ridges Lane properties are located. In addition, there is the Heska subdivision built in the 1970s and the Silverwood subdivisions built in the 1980s.
Preliminary Matter
[15] The Respondents seek relief under the moving party’s application, including extinguishing the right of way or modifying it. The court has reviewed the documents filed by the Respondents and finds that they did not file an application pursuant to Rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which seeks the relief that they are now claiming including extinguishing the right of way or modifying the right of way. Furthermore, the court finds that they have not named everyone as parties who would be affected by the relief which they are now seeking.
[16] The issue of whether the Respondents can claim the declaratory relief as sought at the hearing of the application where there is no separate application from the Respondents was dealt with in the case of Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 282, 59 E.T.R. (4th) 174.
[17] Friends of Toronto was an appeal from an application to a single judge which dealt with several issues related to the Mount Pleasant Group of Cemeteries (“MPGC”). MPGC is a not-for-profit, non-share capital corporation created by a special Act of Parliament in the 1800s.
[18] One of the issues on the Friends of Toronto application was whether the visitation centre and the funeral home operations were outside the legislative objects of the MPGC.
[19] In Friends of Toronto, the Public Guardian and Trustee did not issue a separate notice of application, therefore reliance could only be placed on the relief sought by the Friends of Toronto in its application.
[20] The court held, at paras. 133–141, that a court can set aside a declaratory order where the declaration was not requested in the application that was before the court.
[21] This court finds that no application was issued by the Respondents. This court follows the decision in Friends of Toronto and finds that because no application was issued by the Respondents, they are not entitled to seek closure or modification of the right of way.
Issues
I. Do the Applicants and the other dominant tenement owners depicted on Plan 544 have a deeded right of way over the Respondents’ properties?
II. What is the impact of the right of way being registered under the Land Titles Act, R.S.O. 1990, c. L.5?
III. Was the right of way extinguished by operation of law when Silverwood Drive was constructed providing access to the properties on Plan 544?
IV. Has the right of way been extinguished by abuse of the right?
V. Has the right of way been abandoned by implied release?
VI. If the right of way has not been abandoned or extinguished, are the Respondents entitled to erect gates at both ends of the property and erect signs indicating that the right of way is a private road to restrict use of the right of way to the registered owners of the lots on Plan 544 only.
Issue I - Do the Applicant and the other dominant tenement owners depicted on Plan 544 have a deeded right of way over the Respondents’ properties and the other property owners that are subject to the right of way?
Analysis
[22] Both sides agree that the right of way is included in all of the deeds for the affected properties owned by the Applicant and the other dominant tenement owners depicted on Plan 544. These owners have a registered right of way over the Respondents’ properties together with all other properties that are subject to the right of way.
[23] All of the Respondents were aware of the right of way because it was registered on the title to their properties, and they accepted the right of way when they purchased their properties.
[24] The evidence is that none of the Respondents or any other owners that are subject to the right of way have put their lawyers on notice or commenced actions against their lawyers who acted on their behalf for failing to advise them with respect to the right of way. No complaints have been filed with the Law Society of Ontario about the conduct of their lawyers in acting for them when they purchased their properties. The court makes findings to this effect.
[25] Therefore, the court finds that the Applicant as well of the other dominant tenement owners on Plan 544 have deeded rights of way over the Respondents’ properties as well as over the properties of the other servient tenements not named in this application.
Issue II - What is the impact of the right of way being registered under the Land Titles Act?
Applicant’s Position
[26] This issue was raised by the Respondents. The court does not believe that the Applicant made any substantive submissions on this point.
Respondents’ Position
[27] The Respondents argue that pursuant to section 61 of the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, the court is authorized to modify and discharge restrictive covenants including easements.
[28] They also rely on the case of Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443, 138 O.R. (3d) 109, at paras. 86-92, to argue that section 119(5) of the Land Titles Act allows the court to modify and discharge restrictive covenants, including easements.
[29] According to the Respondents, the section requires the court to be satisfied that the balance of convenience favours granting the application to terminate the right of way, having regards to the rights and interest of the parties.
Analysis
[30] The Respondents argue that they have faced many problems with the right of way. For example, in 1996 a robbery occurred at the back of one of the homes whereby the perpetrator gained access from the right of way. On other occasions firewood was stolen from one of the owners at the rear of the right of way and foul language has been used by people using the right of way, potentially including owners of the dominant tenements of the right of way. Lastly, they argue of being intimidated by owners of the dominant tenements.
[31] Section 61 of the Conveyancing and Law of Property Act provides a party seeking to modify or discharge a covenant or condition running with the land has to apply to the Ontario Superior Court of Justice for an order to modify or terminate such covenant or condition.
[32] Section 119(5) of the Land Titles Act reads as follows:
Notice and modification or discharge of covenants
119 (5) The first owner and every transferee, and every other person deriving title from the first owner, shall be deemed to be affected with notice of such condition or covenant, but any such condition or covenant may be modified or discharged by order of the court on proof to the satisfaction of the court that the modification will be beneficial to the persons principally interested in the enforcement of the condition or covenant.
[33] The Respondents argue that there is overwhelming evidence that the right of way has been abandoned for at least 10 years before the Respondents’ property was conveyed from the registry system to the land titles system.
[34] The Respondents rely on Remicorp Industries Inc. v. Metrolinx for authority to do this and to justify the termination of the right of way.
[35] The court in Remicorp Industries Inc. v. Metrolinx held that the application judge erred in finding that the access easement had been abandoned by implied release. In addition, the court found that inclusion of an easement in a conveyance supports the absence of intention to abandon.
[36] In Remicorp Industries Inc. v. Metrolinx, the court also found that the access easement had not been extinguished by operation of law and that lack of use and lack of need did not amount to extinguishment by operation of law.
[37] Based on the evidence in this case, the right of way has existed since 1974 and no issue was made about it until 2020 when the pandemic occurred. The servient tenements knew about the right of way from the date that they purchased their properties as it was included in their deeds.
[38] In the case of the Respondent, Mr. Smith, he purchased his property approximately five years after Silverwood Drive was opened and he accepted the right of way on his title without objection.
[39] There is little evidence the firewood theft was by the Applicant or any of the other dominant tenements. There is no evidence that the robbery in 1996 had anything to do with the dominant tenements. The animosity and intimidation between the parties is understandable in these circumstances.
[40] There was little evidence that these problems were being caused by the dominant tenements of the right of way as opposed to third parties. The court makes a finding to this effect.
[41] Therefore, the court finds that based on the evidence the balance of convenience favours the Applicant and the other dominant tenements and does not favour the Respondents or the other servient tenements.
[42] Furthermore, as set out in the findings under the heading “Preliminary Matter” above, the court would not allow the relief sought by the Respondents.
[43] Therefore, the court finds that the Respondents’ argument fails.
Issue III - Was the right of way extinguished when Silverwood Drive was constructed which provided access to the properties on Plan 544?
Applicant’s Position
[44] The Applicant argues that this right of way was granted by deed and the wording of it relates to access, which is not restricted to vehicle access only.
[45] He argues that the right of way is used for other forms of access, including recreational access and access to the community mailbox which is located at the east end of Holmes Road. It also provides an emergency route in the event that Silverwood Drive is closed. It is a preferred and safe road for pedestrians given that Silverwood Drive does not have a sidewalk.
Respondents’ Position
[46] The Respondents argue that when an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created. They rely on the case of Square-Boy Limited v. The City of Toronto, 2017 ONSC 7178, at para. 32.
[47] The Respondents argue that the reason the original right of way was created, was to provide seasonal vehicle access from a public highway to summer cottages located on Plan 544 which is 66 feet in width to accommodate vehicles travelling in both directions.
[48] They argue that since Silverwood Drive was constructed, the purpose of the right of way no longer exists as vehicles are not able to drive on the right of way because it is not level and has not been maintained as a road.
[49] They also argue that the Township of South Frontenac and the developer of the subdivision had intended the right of way to be temporary, but due to an oversight by the Township, the right of way was not closed following the construction of Silverwood Drive.
Analysis
i) Intention to Close Right of Way
[50] In 1974, the right of way was granted to the original developer of the lands. It allowed the deeded owners of Plan 544 to cross over the properties on Plan 1752, which includes the properties owned by the Respondents.
[51] At the time the right of way was granted, many of these properties were cottage properties. As the area has developed, some cottages have been replaced with all-season homes.
[52] In or about 1998, Silverwood Drive was constructed by the Town of Inverary. It is a paved road that runs parallel to the right of way. Silverwood Drive creates an alternate route for the owners on Cedar Ridges Lane to access their properties.
[53] The Respondents argue that the right of way was supposed to have been closed by the Township after Silverwood Drive was built. The evidence of this argument is set out in the affidavit of Ronald Sleeth, an elected Township official. He says that a failure to close the right of way was due to an oversight which occurred during an amalgamation of the Township in about 1997. Mr. Sleeth said that in his previous position as Reeve of Storrington prior to amalgamation, that he had asked that the right of way be closed. According to Mr. Sleeth, this did not occur due to an oversight. Nothing further was done to extinguish the right of way after amalgamation.
[54] The court finds that if Storrington, before amalgamation, intended to close right of way, it could have done so. For whatever reason, whether oversight or otherwise, the right of way was not closed.
[55] The court finds that if the Township had intended to close right away after amalgamation, it could have done so. Instead, the Township did not close the right of way.
[56] The right of way became an issue around the time of the pandemic, in 2020. At that time, the Township was asked to close the right of way. The Township took the position that this issue was a civil dispute between landowners and would not become involved. The Township’s position is set out in an email between Mr. Gendron, one of the Respondents, and Mr. Neil Carboni of the Township.
[57] The court finds that the Township views this as a civil dispute between landowners.
[58] The court finds that, notwithstanding the evidence by Mr. Sleeth and the non-closure of the right of way, the Respondents took no legal action against the Township.
[59] The court finds that at some point in time there may have been an intention by someone in authority to close the right of way, but that intention was never followed through with any form of action. No process was set in motion to close the right of way and the right of way was never closed. There is no paper trail evidence of action to close the right of way before the court.
ii) Circumstances under which right of way was ended
[60] The Respondents rely on Square-Boy Limited v. The City of Toronto, 2017 ONSC 7178, at para. 32, for the proposition that the easement should be considered in the circumstances that existed when the easement was created; and that the easement is extinguished when the purpose for which it was created comes to an end, in this case with the construction of Silverwood Drive.
[61] In Square-Boy, the court adopted the principles in Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.), at para. 10, that are applicable to the construction of easements, namely where an easement is created by express grant, the nature and extent of the easement by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created: see Halsbury’s Law of England, vol. 14, 4th ed. (London: Butterworths, 1980), at p. 26, para. 54.
[62] The purpose of the easement when it was created was to allow access to and from the Cedar Ridges Lane properties. That access was not restricted to vehicle access. The wording of the right of way is clear and unambiguous. It contains no restriction as to use. Furthermore, there is no affidavit evidence from anyone who was involved in the creation of the right of way as to its purpose, its length or any restriction thereto.
[63] The court finds that the surrounding circumstances upon which the right of way was created was to provide unrestricted access to the dominant tenements. The court finds that there is no restriction as to the purpose of the right of way.
[64] Furthermore, the court finds that no provision was made to terminate the right of way after Silverwood Drive was built and no action was taken to close it.
iii) Change in circumstances and use
[65] The Respondents further submit, that if a substantial and significant change in circumstances follows the original grant, e.g., a new access road, the new right of access substitutes the right of way and the original grant is extinguished. They rely on Bost Properties Inc. v. Highland Developments Inc., 2002 CarswellOnt 418 (S.C.), at paras. 32–37, for this proposition. In Bost Properties, part of a laneway (which was the right of way) was subsequently conveyed to the Regional Municipality of Waterloo and dedicated as a public highway. The court applied the principle of substantial and significant change in circumstances. The Respondents argue that the right of way in the case at bar is not preferrable to the new access via Silverwood Drive.
[66] The Respondents argue that Silverwood Drive has substituted the original right of way because the construction of Silverwood Drive is a substantial change.
[67] The Respondents further submit that, even if the right of way does not have an expiry date, it does not exist in perpetuity: Giecewicz v. Alexander (1989), 3 R.P.R. (2d) 324 (Ont. H.C.), at paras. 36-37.
[68] In their argument, the Respondents focus on the right of way being for vehicle use. A review of the wording of the right of way finds that there is no restriction on the use of the right of way for vehicle access only. In addition, there is no restriction as to what the right of way is to be used for or any termination date or event for the right of way.
[69] While there may not be vehicle traffic, the evidence is that there is pedestrian traffic, cyclist traffic, and some type of motorized vehicles driving on the land. The court make a finding to this effect.
[70] Based on the evidence, the court finds that there is clear evidence that the Applicant and dominant tenements have been using the right of way.
[71] The court rejects the argument of the Respondents that the right of way is unnecessary because Silverwood Drive has been constructed.
[72] Furthermore, the court accepts the Applicant’s submissions that the right of way is a preferred route for pedestrians and others including cyclists because there is no sidewalk on Silverwood.
[73] The case of Fyfe v. James (2006), 42 R.P.R. (4th) 221 (Ont. S.C.), dealt with a similar issue. In Fyfe, the court held that an access easement was not extinguished after a new alternate access road was built. The court distinguished the facts in Bost Properties and rejected the Respondents’ argument that, because the new road provided full ingress and egress to the relevant properties, the right of way was no longer necessary, and therefore extinguished. The grant did not provide for the easement to be extinguished by alternative access, nor did it stipulate a time limit.
[74] The court notes that in Bost Properties the use of the property had undergone a radical change since the easement was granted: from farmland to highly developed residential property.
[75] Furthermore, in Bost Properties the facts were substantially different from this case. In Bost Properties, only one person was entitled to use the right of way compared to 50+ families in the present case. Furthermore, in Bost Properties, the right of way created access to farm fields for agricultural purposes which no longer existed. In addition, the house to which access was to be granted no longer existed.
[76] The court finds that in the present case there is no radical change in the use of the properties in the area since the easement was granted. Some changes have occurred which include that some of the cottages have now been converted into all season homes and the fact that Silverwood Drive creates an alternate access route to the property.
[77] In Bellhouse v. Kaas, 2020 ONSC 7452, the court found that construction of an alternate access route did not extinguish an easement. The court stated that the deeded owners of the concrete steps still use the stairway and the fact that the owners no longer needed them did not eliminate a benefit to them.
[78] In the present case, the court finds that there is no mention in the easement about any time limitations or an expiry of the easement.
[79] Therefore, the court finds that the Respondents’ argument on this point fails.
iv) Extinguishment by operation of law
[80] Paragraph 70 of Remicorp Industries Inc. v. Metrolinx instructs that an easement may be extinguished by operation of law in two ways. The first way it may be extinguished is by statute. The court has previously in this decision rejected the argument that it was extinguished by statute as set out under Issue II.
[81] The second way it may be extinguished is by operation of the common law. The case cites examples including unity of ownership and possession of the dominant and servient lands, or destruction of either the dominant or servient lands.
[82] The court finds in this case that there is no evidence of unity of ownership and possession of the dominant and servient lands and that there is no evidence of destruction of either the dominant or servient lands.
[83] Based on the aforesaid reasoning, the court finds that the right of way has not been extinguished by operation of law.
Issue IV - Is the right of way extinguished by abuse of the right?
Applicant’s Position
[84] The Applicant submits that there was no abuse of the right, rather, the right of way has been used by pedestrians and others for decades, and it does not pose any driving hazards.
[85] The Respondent submitted a series of short video clips in which people use the right of way. The Applicant submits that all of the activities contained in the videos are reasonable uses of the right of way (vehicle passage, accessing mailbox, walking, biking, snowmobiling, all-terrain vehicles, access to the property).
Respondents’ Position
[86] The Respondents argue that at common law an easement can be extinguished by operation of law where there has been an abuse of the right: see Remicorp Industries Inc. v. Metrolinx, at para. 65.
[87] The Respondents also argue that the use of the right of way, particularly for a use or purpose not exercised in acquiring the right of way, such as for ingress and egress from the summer cottage or as a snowmobile run or track, may constitute a trespass or abuse of the right of way. The Applicant is not permitted to expand the use contemplated by the original grant.
[88] The Respondents argue that the right of way is now being used by the Applicant and his neighbours for purposes that were not intended or permitted in the original grant. They argued that it has become a recreational trail and off leash dog park, as well as used for walks, cycling, running, snowmobiling, travel by golf carts, ATVs, and dirt bikes. According to them, part of the right of way is used as a parking lot.
[89] The Respondents argue that the Applicant and their neighbours steal firewood from the servient owners’ properties.
[90] According to the Respondents, the right of way is also used for the same purposes by individuals from other subdivisions who never had a right of way over the Respondents’ properties.
[91] The Respondents argue that the Applicant and his neighbours have become confrontational and use foul language.
[92] Therefore, the Respondents submit the right of way has been extinguished due to the abuse of the right.
Analysis
[93] As stated previously, a review of the wording of the right of way indicates that it is not restrictive in terms of how the right of way is to be used. Therefore, it can be used for other purposes including by vehicles, pedestrians, cyclists or other means. The right of way must only be used by those entitled thereto in their deeds as well as their direct family members and guests who are with them. The court makes a finding to this effect.
[94] As relates to the use of foul language, it appears that this only occurred after the pandemic started and the Respondents set up gates which stopped the Applicant and other dominant tenements from using the property. The court finds that the problems concerning foul language occurred because of the erection of the gates and not in spite of it.
[95] As to the argument about a robbery which was perpetrated using the right of way, this occurred once in 1996 and there is no evidence of any occurrence thereafter. Furthermore, there is no evidence of who was involved in the robbery.
[96] As to the issue of stealing firewood from the right of way, there is no evidence that involved any of the dominant tenements. It could have been stolen by anyone.
[97] Therefore, the court finds that the right of way has not been extinguished by an abuse of right.
Issue V - Has the right of way been abandoned by implied release?
Applicant’s Position
[98] The Applicant argues that there has been no abandonment of the right of way by implied release. He argues that he and many other dominant tenement property owners are using the right of way and have been doing so consistently over the years.
Respondents’ Position
[99] The Respondents argue that abandonment is a question of fact, and it can occur by conduct of the dominant tenement owners. The release can be implied including from the acquiescence to acts. They say that if there is evidence of non-use and evidence, albeit circumstantial, of the acquiescence, abandonment can be inferred.
[100] The Respondents argue that the circumstances and evidence in this case lead to the presumption or inference that the Applicant and his neighbours have abandoned the right of way for vehicle access to their properties on Cedar Ridges Lane after the construction of Silverwood Drive. They say the accepted, more direct and preferred municipal road to travel from their properties to Holmes Road is Silverwood Drive and not the right of way.
[101] Lastly, they argue that the intention of the Applicant to release and abandon his interest in the right of way for vehicle access is implied by his own actions and inactions. The Respondents argue that the Applicant has stopped using the right of way for vehicle passage and have allowed it to become overgrown and unsafe for vehicle traffic. Instead, the Applicant and others use it for recreational purposes only, including parking, and not for the purpose of the original grant.
[102] The Respondents argue that by his own admission the Applicant does not consider the right of way to be for vehicle access to the Cedar Ridges Lane properties.
Analysis
[103] The Respondents focus on the use of the right of way for vehicle use. A review of the wording of the right of way does not say specifically that it is for vehicle use. It says it is for use which could mean any number of uses including vehicle, pedestrian, cyclist use etc.
[104] Furthermore, there is little or no evidence of a lack of use or acquiescence by the dominant tenements with respect to the use of the right of way. The fact that they have not maintained it for vehicle use is not evidence of abandonment. It may be evidenced that they stop using it for vehicle passage but not for other forms of passage.
[105] The court accepts the evidence of the Applicant and others who submitted affidavits on behalf of the Applicant that they have not abandoned the easement. They continue to use the same subject to the gates and signs placed on the right of way by the Respondents.
[106] Accordingly, the court finds that there is no abandonment by implied release.
Issue VI - If the right of way has not been abandoned or extinguished by operation of the law, are the Respondents entitled to put up gates at either end of the property and put up signs indicating that the right of way is a private road to restrict access to the registered owners of the property on Plan 544 only?
Applicant’s Position
[107] The court did not hear any position taken by the Applicant with respect to the installation of gates at the ends of the right of way or the concept of signs indicating that this is a private right away.
Respondents’ Position
[108] The Respondents argue that if the right of way is not closed, then as servient owners they are not precluded from erecting a fence on an easement as long as it does not substantially interfere with the other parties’ use of the easement. They argue that they are entitled to build a boundary fence on that portion of the land that is subject to the right of way as long as the owner of the dominant tenement has reasonable access to the right of way through an unlocked gate: Fallowfield v. Bourgault (2003), paras. 33-34. They argue that the minor inconvenience of opening and closing a gate does not amount to a substantial interference.
[109] The Respondents argue that the documents registered on title to the Respondents’ properties contemplate the construction of gates. They say that the properties on Plan 544 and the Respondents’ properties are subject to restrictive covenants requiring them to keep gates closed between their lands and the Public Highway.
[110] The Respondents argue that any gate installation would be required to comply with municipal bylaws governing the installation of the same.
[111] The Respondents submit that an unlocked gate at the ends of the right of way would constitute minimal interference to the limited use of the right of way by the Applicant and others having deeded access.
Analysis
[112] The users of the right of way are to be the owners of the properties on Plan 544 that have deeded right of way. The right of way is not available to the owners of other properties that have no deeded rights of way, even though they may live in the area.
[113] Therefore, the court finds that the right of way is to be for the owners of the properties having deeded rights of way and their immediate families together with any guests who are accompanying them at the time that they are using right away.
[114] The evidence is that people who have no deeded right of way are using the right of way. The court finds that they are not entitled to do so. Furthermore, the evidence is that certain vehicles have attempted to enter the right of way because of the instructions received on their GPS systems.
[115] The court finds that it is appropriate for the Respondents and other servient tenements to put up unlocked gates at the ends of the right of way provided that these gates comply with all municipal or other regulations.
[116] Furthermore, the court finds that it is appropriate for the Respondents or other servient tenements to place signs on the right of way to advise that this is a private right of way and it is only available for the use of the registered owners on Plan 544, their immediate families and guests accompanying them at the time. The placement and maintenance of such gates and signs shall be the responsibility of the servient tenements including the Respondents. The signs shall comply with all municipal or other regulations.
[117] The request by the Respondents to modify the width of the right of way with the use of fences is refused. As stated previously, there is no application by the Respondents for this relief and they have not provided notice to the dominant tenements affected by this relief.
Conclusion
[118] For all of the reasons aforesaid, the court finds that:
I. The right of way in favour of the Applicant and the other deeded owners is still in full force and effect and can be used by them without interference;
II. It is appropriate for the Respondents to erect gates at the ends of the right of way that are unlocked and that comply with all municipal or other regulations;
III. It is appropriate for the Respondents to erect signs on the right of way to advise that it is a private right of way and is only available for use by the registered owners on Plan 544, their immediate families, together with any guests accompanying them at the time. The signs shall comply with all municipal and other regulations; and,
IV. The placement and the maintenance of the gates and signs are at the expense of the Respondents and the other servient tenements.
Costs
[119] The parties have provided costs outlines and/or bills of costs to the court. The parties will be allowed 21 days from the release of this decision to resolve the issue of costs. If they are unable to do so, they shall obtain a date and time from the trial coordinator to argue the issue of costs. Each party will be allowed 20 minutes to set out their positions.
[120] Order accordingly.
Mr. Justice Stanley J. Kershman Date: June 8, 2023