Meyers v. Renaud, 2023 ONSC 6310

COURT FILE NO.: CV-23-0034

DATE: 2023-11-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Henry Meyers and Ingrid Patricia Meyers

Applicants

– and –

Lawrence Victor Renaud and Iris Audrey Renaud

Respondents

Mark Vernon, for the Applicants

Tom Serafimovski, for the Respondents

HEARD: September 7, 2023

DECISION ON APPLICATION

S.K. Stothart J.

1The applicants (the “Meyers”) and the respondents (the “Renauds”) own neighbouring cottage properties in Kearney, Ontario. For over 20 years, the Meyers have used a registered right of way over the Renaud property to access their cottage.

2In August, 2022, the Renauds installed two gates on either side of the right of way and on December 2, 2022, they locked them. They offered the Meyers a key, but with conditions.

3The Meyers submit that these two locked gates substantially interfere with their ability to use the registered right of way. They bring this application seeking orders that the Renauds remove the gates, be prohibited from erecting gates or other obstructions over the right of way, be prohibited from directly or indirectly interfering or impending the Meyers’ use and enjoyment of their right of way, and related damages.

Background

4The Meyers purchased their property on September 30, 1999. Their property is legally described as PCL 23377 SEC SS; PT LT 1 Con 12 Bethune; PT LT Con Bethune PT 4 PSR466; t/w Pt 3 PSR466 as in LT168864; t/w PT 5 42r10287 as in LT168864; Kearney. PIN 52158-0032 (LT).

5Up until recently, the Meyer property was municipally known as 95 Gray Jay Lane, Kearney, Ontario. It is now known municipally as 91G Sunken Island Lane, Kearney, Ontario. The municipal address changed when the right of way was blocked by locked gates preventing emergency vehicle access to the Meyer property using Gray Jay Lane.

6The Renauds purchased their property on September 4, 1998. Their property is legally described as: Firstly: Part Lot 1, concession 12 Bethune, Part 2 Plan 42R14717, save & except Part 1 Plan 42R21544; Secondly: Part Lot 2, concession 12 Bethune, Part Lot 1, concession 12 Bethune, Part 5 Plan 42R10287 & Part 1 Plan 42R14717 s/t Part 5 42R10287 as in LT168863; Town of Kearney. Pin: 52158-0381 (LT). It is municipally known was 77 Gray Jane Lane, Kearney, Ontario.

7The Renaud property is subject to a deeded right-of-way (ROW) over a laneway that crosses their property. This laneway is called Gray Jay Lane. The ROW was purchased and registered on January 6, 1989. It is described as follows:

Right of Way in favour of all those entitled thereto, in, over, along and upon Part of Parcel 2763, Parry Sound Section, being Part of Lots 1 & 2, Concession 12. Township of Bethune (now Town of Kearney), District of Parry Sound, designated as part 5, Plan 42R-10287.

Restrictions: At the acceptance of this Transfer/Deed. The Transferee herein is acknowledging that the Transferor has no responsibility in any manner whatsoever to maintain or remove snow from the said Right-of-Way, or in any fashion to keep the said Right-of-Way clear and passible.

Right-of-Way Appurtenant: it is provided that this Right-of-Way is granted appurtenant to lands being: Parcel 11, 007, Parry Sound South Section Being Part of Lots 1 & 2, concession 12 Township of Bethune (now Town of Kearney), District of Parry Sound Designated as Parts 2 & 4, Plan PSR-466.

8Gray Jay Lane commences at Highway 518 and proceeds east to the Renaud property. The ROW commences at the beginning of the Renaud property and includes a motor vehicle laneway that proceeds in a mostly north/east direction over the Renaud property to the Meyer property. The ROW is also called Gray Jay Lane. The ROW is 66 feet wide and is in favour of the Meyers and another property owner, Alexander Moore. The laneway has been used historically for pedestrian and vehicular access to the Meyer property, the Moore property, as well as other cottage properties to the east of the Meyers. Up until recently, Gray Jane Lane ended at a dead end.

9The Meyers have a seasonal cottage on their property. Over the years, the Meyers have used the ROW to access their property as well as their guests, contractors and other invitees. It has been used to receive deliveries and services such as gas, gravel, hydro, septic and waste removal. It was also used by emergency vehicles to access the Meyers’ property. There is no evidence that it has ever been gated.

10Sometime in 2022, the Renauds became aware that Alexander Moore had applied to sever his lot. They were opposed to this severance because they were concerned that this would increase traffic over the ROW. The Renauds made inquiries with their insurance company and became concerned about the lack of liability insurance over the ROW.

11On June 27, 2022, the Renauds’ lawyer, Mr. Chillman (“Chillman”) sent letters to all the cottage owners (the “cottage owners”) who had been using Gray Jay Lane, but who did not have a registered ROW over the Renaud property. In this letter, the cottage owners were advised that they were to refrain from using the laneway as of that date. The cottage owners were also served with trespass notices.

12On August 13, 2022, the Renauds installed a gate on the northeast side of the ROW (the “Northeast Gate”). This was at the entrance to the ROW.

13On August 27, 2022, the Renauds installed another gate on the southwest side ROW (the “Southwest Gate”). This gate was placed where the ROW ended on the Renaud property, and the Meyer property began.

14On September 9, 2022, Chillman wrote to all of the cottage owners and advised them that the gates would be closed and locked as of October 15, 2022 at 5 p.m.

15On September 9, 2022, Chillman wrote to the Meyers and Alexander Moore (“Moore”) and advised them that the gates were closed and would be locked as of October 15, 2022 at 5 p.m. Chillman advised that the Renauds were prepared to release a key to the Meyers and Moore, and allow them to use the ROW, provided they tendered proof of liability insurance for their use of the laneway naming the Renauds as additional insureds. The letter ended with “In the event you do not provide such proof of insurance, you will not receive a key to the gate nor have access to cross over the right-of-way as of 5:00 p.m. on October 15, 2022.”.

16Issues arose between the cottage owners and the Renauds over the gates. The cottage owners took the position that Gray Jay Lane was an Access Road, under the Road Access Act, and that the Renauds could not close the road without an application to the court.

17The Renauds created a numbered company, and purchased property which had another private lane, Sunken Island Lane, that ran across that property. Sunken Island Lane commences further down Highway 518 and proceeds in a southbound direction. At the time, Sunken Island Lane was also a dead-end lane and ended near the location where Gray Jay Lane ended. The numbered company extended Sunken Island Lane to Gray Jay Lane, connecting the two lanes.

18Once the two lanes were connected, the Renauds advised the cottage owners to use Sunken Island Lane to access their properties instead of Gray Jay Lane. The Renauds felt they were protected from liability with respect to the use of Sunken Island Lane because it is owned by a numbered company.

19On November 20, 2022, the Renauds advised the Meyers that they had finished Sunken Island Lane and that they could access their property using it. The Renauds repeated that they were aware that the Meyers had a ROW, but they would not allow them to use the ROW without proof of liability insurance. Further, they would not permit the Meyers to hire anyone to plow the ROW in the winter unless the snow removal contractor had a minimum of 2 million in liability insurance. The Renauds required proof of both liability insurance coverages.

20On December 1, 2022, Chillman wrote to the Meyers advising again that they required proof of insurance coverage regarding the use of the ROW, which named the Renauds as added insureds. The letter went on to state “As our clients will be closing and locking the gate on the Premises, you will have no access to the Premises until you provide sufficient proof of insurance. Once we are in receipt of satisfactory proof of insurance, our clients will provide you with a key to the gate”.

21On December 2, 2022, the Renauds closed and locked both gates at either side of the ROW. The Northeast Gate is 14 feet wide. The Southwest Gate is 16 feet wide. Both require a key to open them.

22On December 5, 2022, the Renauds posted a notice at the Northeast Gate (entrance) stating “Notice - In Order to Access Properties Beyond This Property You Must Use Sunken Island Lane”.

23On January 3, 2023, counsel for the applicants wrote to counsel for the Renauds demanding that the gates be removed unconditionally.

24Further discussion took place between counsel for both parties. Eventually, the Renauds agreed that they did not require proof of insurance for the ROW and agreed to provide a key, with conditions.

25The parties have not been able to come to an agreement with respect to the conditions that would attach to the provision of a key. The Renauds take the position that they will not provide a key unless the Meyers undertake that they will not make copies of the key, will not provide the key to others, and that they will close and lock the gate every time they pass through it.

26The Meyers were prepared to accept a key, on a without prejudice basis, provided they could provide the key or copies of the key to their guests, contractors and other invitees. Further, they and their invitees would not be obligated to close and lock the gates after passing through them. Finally, that they would not be liable for any damage to the gates caused by reasonable use or any failure to close or lock them.

27This was not acceptable to the Renauds.

Position of the parties

The Meyers

28The Meyers submit that the two gates have created a substantial interference with their registered ROW. Unlike the Renauds, the Meyers must go through both gates to access their property using the ROW.

29At each gate, they must stop their vehicle, get out of their vehicle, unlock the gate, open the gate, get back into their vehicle, drive through, stop their vehicle, go back to the gate and close it and lock it. This involves getting in and out of their vehicle four times.

30The Meyers submit that they plan to move to their cottage property full time. This will mean they will need to go through this process through the winter months. They worry about the increased risk of slipping and falling on snow/ice while opening and closing the gates during the winter months.

31The Meyers submit that they wish to have guests or contractors come to their property. They will have to drive out and admit their invitees through both gates or, if permitted by the Renauds, make multiple keys and ensure they are distributed to their invitees in advance.

32The Meyers worry about the restriction in having emergency vehicles access their property. Previously, emergency vehicles accessed their property over their ROW. While Sunken Island Lane has been offered by the Renauds as an alternative, it is a private laneway, over which the Meyers have no legal access. Nor do they have any control over its repair or maintenance.

33The Meyers submit that the gates have restricted their access because of their width and the way they have been erected. The ROW is sixty 66 feet wide, and the gates narrow the width of the travelled portion at their locations. They have had difficulty maneuvering through and around the gates to get to their property, particularly if using a trailer.

34The Meyers submit that they have suffered damages as a result of the closure of the ROW. They had intended on moving to their property on a full-time basis in the spring of 2023. They sold their house and had to rent an apartment until this dispute was settled. They seek special damages to cover their rent for this period of time.

35Further, the Meyers submit that they are entitled to general damages for the loss of use and enjoyment of their ROW in the amount of $10,000.

36The Meyers submit that there has not been a failure to mitigate. Any proposed mitigation would have forced them to accept the Renauds terms.

The Renauds

37The Renauds submit that the locked gates are needed to prevent unauthorized use of the ROW over their property. The Northeast Gate is needed to ensure no one accesses the ROW from Gray Jay Lane. The Southwest Gate is needed to ensure no one accesses the ROW from Sunken Island Lane, which has now been connected to Gray Jay Lane.

38The Renauds submit that there is ample room for the Meyers and their guests to travel through both gates. The travelled portion of the laneway is eleven 11 feet wide. Both gates are wider than that, at 14 feet and sixteen 16 feet. They have cleared a wider area on the laneway to address the issue of getting around the gates and into the Meyer property.

39The Renauds submit that they go through a simple process of unlocking, opening, closing and locking the Northeast gate each time they access their property. They submit that this is not onerous and is not a substantial interference with the ROW.

40The Renauds submit that if the court finds that the gates are a substantial interference with the ROW, the Meyers have not suffered any damages as result. They submit that any loss of use/enjoyment of the Meyers property was created by the Meyers themselves when they failed to fully mitigate any damages.

41The Renauds submit that the Meyers knew as early as September 2022 that the Renauds intended to lock the gates. There was no reason to incur the cost of renting in 2023 when they could have stayed at their principal residence longer.

42Further, the Meyers could have agreed to take the key with the required conditions on a without prejudice basis or could have used Sunken Island Lane, on a without prejudice basis, to access their property without having to go through any gate.

The Law

43Where an easement is created by an express grant, the nature and extent of the easement, including any ancillary rights, are determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed, or were within reasonable contemplation of the parties when the easement was created. To imply a right ancillary to that which is expressly granted in the easement, the ancillary right must be necessary for the use or enjoyment of the easement. MacKenzie v. Matthews, 1999 19931 (ON CA), 1999 CarswellOnt 3435 (Ont.C.A.) at para. 12; Fallowfield v. Bourgault, 2003 4266 (ON CA), 2003 CarswellOnt 5194 (Ont.C.A.) at para. 15; Raimondi v. Ontario Heritage Trust, 2018 ONCA 750 at para. 11; Oakville (Town) v. Sullivan, 2021 ONCA 1 at para. 14; Markowsky v. Verhey, 2020 ONCA 472 at paras. 26-28.

44The owner of the dominant tenement (“DT”) cannot alter the type of the use of the right of way beyond its original scope, however the burden on the servient tenement (“ST”) can be reasonably increased as long as the use is of the same general nature. Almel Inc. v. Halton Condominium Corp. No. 77 (1997), 1997 14498 (ON CA), 98 O.A.C. 72 (Ont.C.A.) at para. 3; Rudolph Furniture Ltd. v. 797574 Ontario Ltd., 1998 CarswellOnt 4225 (Ont.S.C.J.) at para. 19.

45In this case, the DT are the Meyers, and the ST are the Renauds.

46In assessing whether the DT’s rights have been improperly diminished by the actions of the ST, the court must determine whether the diminishment is substantial. The test to be applied is “whether practically and substantially the right of way could be exercised as conveniently as before”. Weidelich v. De Konig, 2014 ONCA 736 at para. 10.

47The DT does not own the right of way, or the land on which the right of way runs, but only enjoys the reasonable use of that property for its granted purpose. The DT may only sustain a claim predicated on substantial interference with that reasonable use.

48There is no mathematical way to determine what constitutes an unreasonable demand upon an easement, or a substantial interference with the rights conferred by the easement. Each case depends on the proper construction of the instrument creating the easement, and the factual circumstances. Wilson v. McQuade, 2022 ONSC 847 at para. 46; MacKenzie v. Matthews, at para. 12, Weidelich v. De Konig, at para. 14

Analysis

49I begin my analysis mindful that the onus rests on the Meyers, as applicants, to establish, on a balance of probabilities, that their ROW has been substantially interfered with. The test to be applied is whether practically and substantially the Meyers ROW can be exercised as conveniently as before.

50In order to determine whether the erection of the two locked gates substantially interferes with the reasonable use of the ROW, I must first determine the nature and extent of the Meyer’s ROW and any ancillary rights that they may have.

What is the nature and extent of the Meyer’s registered ROW?

51The wording of the ROW is quite broad. It simply states that the Meyers have a Right of Way in their favour, in, over, and along the Renaud’s property. The ROW provides for only one restriction, that the ST’s (currently the Renauds) have no responsibility in any manner whatsoever to maintain or remove snow from the ROW.

52The historic use of the ROW has been to provide access to and from the Meyers property from Highway 518 (amongst other uses). The parties agree that this has reasonably included both pedestrian and vehicular use. The Renauds agree that the ROW provides ingress and egress to and from the Meyers’ property.

53I find that reasonable ancillary rights to the ROW would include the right to maintain the laneway located on the ROW, including removing snow, so that the laneway can be used safely by pedestrians and motor vehicles. This is reasonably necessary for the use and enjoyment of the easement. I also accept that the users of the ROW (including the Meyers) have historically maintained the road.

54I also find that there is an ancillary right that permits the Meyers to allow their invitees to use the ROW to access their property. I find that this is also reasonably necessary for the use and enjoyment of the ROW. In my view, it would have been reasonably contemplated at the time of the grant that the Meyers would have guests visit them at their cottage. Further, that the Meyers might require contractors to attend to complete repairs at the cottage or have service providers attend to maintain services to the cottage. There is no restriction in the ROW that limits use of the easement solely to the Meyers, personally.

55I am also satisfied that the Meyers are not required to maintain liability insurance for the ROW. There is no restriction contained in the wording of the ROW that requires the DT (in this case the Meyers) to obtain and maintain liability insurance over the ROW, naming the ST (the Renauds) as added insureds.

Have the applicants established a substantial interference with their use of the ROW?

56The test for an actionable encroachment with respect to a ROW is whether there is a “substantial and practical interference” with the use and enjoyment of the easement for the purpose identified in the grant. This determination is a factual one which turns on the specific circumstances of each case.

The installation of gates

57Whether the installation of gates substantially and practically interferes with the use and enjoyment of an easement is fact specific. It requires the court to look at, amongst other things, the purpose of the easement, its historic use, and the reasonableness of the interference.

58Both parties have provided me with cases where courts have looked at whether the installation of a gate, in those circumstances, amounted to a substantial and practical interference with a legal easement. I have referred to the dominant tenement (the person who possesses the easement) as DT and the servient tenement (the person over who’s land the easement runs) as ST in my summary of these cases.

59In MacKenzie v. Matthews, at para. 16, the Ontario Court of Appeal rejected a ST’s request to install a locked gate over an easement. The court noted that the application judge had been satisfied that there was evidence of unauthorized use of the easement and that it was reasonable for the servient tenement to want to take steps to stop this unauthorized use. However, the court concluded that a locked gate would significantly inconvenience the DT and their guests, was not contemplated by the grant and not required by the circumstances. The court concluded that an unlocked gate would constitute a minimal interference with the rights of the DT and would satisfy the need for a deterrent for unauthorized users.

60In Przewieda v. Caughlin, 2015 CarswellOnt 10824 (Ont.S.C.J.) the court dealt with a case where a strip of land was used by multiple cottage owners to access a beach. The easement was only used for pedestrian access to the beach. The ST placed a locked gate over the easement and provided keys to each cottage owner. The cottage owners objected, stating that they would have to lock and unlock the gate repeatedly, the gate made it more difficult to carry various items to and from the beach, and they would have to keep track of the key they were provided. The court found the locked gate to be a substantial interference.

61In Donald v. Friesen (1990), 1990 6646 (ON SC), 72 O.R. (2d) 205 (Ont.Dist.Ct.) the DT used a right of way to access a quarry. The ST installed a locked gate and provided the DT a key. The court found that gating the easement was never discussed or contemplated by the parties. Further, there was no evidence that the DT had abused the easement with excessive traffic. The court found that there was substantial interference with the easement and ordered injunctive relief and damages.

62In Livingston v. Millham, [2005] B.C.J. No. 1988 (B.C.S.C.) the ST was concerned about the way the DT was using the easement road, specifically the speed and sobriety of the drivers. The ST proposed to install gates at either end of the road, that could be opened by hand or automatically. The court found this to be a substantial interference with the use and enjoyment of the road.

63In Moore v. Greece (Republic), [2012] O.J. No. 5205 (Ont.S.C.J.) an easement ran the rear length of the ST’s property and was used by the DT to access a parking lot behind the Greek embassy. The ST was concerned that people were sleeping in the laneway and that it was littered with needles and syringes. The ST sought court approval to install gates at both ends of the ROW, which would be locked or equipped with an automatic key system, to prevent unauthorized use. The court found this would be a substantial interference with the embassy’s intended use and enjoyment of the right of way, which contemplated unimpeded access and that the laneway had been used this way for at least 20 years.

64In Wilson v. McQuade, 2022 ONSC 847 (Ont.S.C.J.), the court found that the installation of one metal locked gate at the beginning of a right of way did not amount to a substantial interference. In that case, the DT’s cottage was a three-season cottage, that was closed during the winter season. The easement was a driveway to the cottage, that was 20 feet wide and 185 feet long. There is no mention in the case about there was a restriction on the use of keys.

65In Lewko v. Budd, 2019 ONSC 3594 (Ont.S.C.J.) the Court found that a locked gate was not a substantial inference with the use of an easement. In that case, the DT had an easement that allowed for pedestrian travel over the ST’s property to access a lake. The court found that the DT would only have to bring a key, unlock the gate, close it and re-lock it, which would take thirty seconds or less.

66In Gardiner v. Robinson, 2006 BCSC 1014 the ST’s property consisted of a ranch. The property previously had two gates controlling access to the easement and a gate at the end of a bridge. The new owners of the ST replaced the older gates and installed an additional one. They locked the gates and provided keys to the DT. The DT sought an order that all of the gates and locks be removed. The court found that the historical use of the easement had included the existence of gates. The court was satisfied that there was evidence of a substantial increase in traffic, and it was reasonable for the ST to have gates to control access. The court concluded that the gates should be locked with combination locks and not locks that required keys.

67In this case, the evidence is that the Meyers have had unimpeded access to their property over the ROW for over 20 years. There is no evidence that there has ever been a gate installed on the ROW.

68I am satisfied, on a balance of probabilities, that the installation of two locked gates over the ROW substantially and practically interferes with the Meyers use of the ROW. In my view, the following are important facts that support my conclusion:

a. The Meyers have had unimpeded access over the ROW for over 20 years;

b. If the Meyers are driving, the two locked gates require the Meyers to get in and out of their vehicle four times every time they drive to their property, and every time they leave their property;

c. The two locked gates, and the insistence that the Meyers not provide a key to any invitee, means that the Meyers must either drive out or walk out to meet any invitee, including any contractors or guests, in order to grant them access to their property. They have never had to do this in the past;

d. Even if the Renauds permitted the Meyers to make copies of the keys, the Meyers would have to manage those keys and arrange to have the keys given to any invitees in advance;

e. The Meyers intend to live at their property full time. This will increase the inconveniences referred to above;

f. During the winter, the requirement to repeatedly get in and out of their vehicles, increases the risk of injury to the Meyers. I have received no evidence that the Renauds intend to arrange for, and pay for, snow maintenance and sanding at the location of the two gates;

g. The effect of the locked gates has resulted in the municipality having to divert emergency vehicles to Sunken Island Lane to access the Meyer property (and other properties); and

h. The use of Sunken Island Lane for emergency vehicles access will depend on the permission granted by the owner of the property over which Sunken Island Lane crosses. It will also depend on how the owner of the property maintains the laneway during all seasons, ensuring it is passable. If the Renauds choose to sell this property, there is no guarantee that the new owner will permit access to emergency vehicles over this property.

69I am not satisfied that there is evidence of increased unauthorized use of the ROW, such that the gates are necessarily required. The ROW was used, without objection, by the Meyers, Mr. Moore, and other cottage property owners for some time. It was only when Mr. Moore sought to sever his lot, that the Renauds became concerned that this might increase traffic. This led them to discover that they would have difficulty obtaining liability insurance. I have received no evidence as to the outcome of Mr. Moore’s severance application. I have received no specific evidence of any incidences of trespass, other than one ATV driving up to the gates and turning around.

70With respect to the concern that users of Sunken Island Lane may now access the ROW at the location of the Southwest Gate, that situation was created by the Renauds when they joined the two lanes.

71I note that the cottage owners are now using Sunken Island Lane, and only the Meyers and Mr. Moore require the use of ROW. It is reasonable to conclude that this will reduce traffic over the ROW.

72The true issue seems to be that the Renauds are worried about their liability if something happens on the ROW. However, the terms of the ROW do not require the Meyers to obtain liability insurance. I have not been provided with any legal authority that would support the requirement that liability insurance be maintained over a ROW.

What impact, if any, does the creation of Sunken Island Lane have on this matter

73In my view, while the creation of Sunken Island Lane may or may not address the Road Access Act issues at play with respect to the cottage owners who do not have a deeded right of way over the Renaud property, it does not detract from, or impact, the rights that accrue to the Meyers by virtue of their registered ROW.

74As I have stated earlier, the Meyers have no legal right to use Sunken Island Lane. While the numbered company that currently owns the property has agreed to the use of Sunken Island Lane, that could change with a change in ownership.

75The Meyers have a legal right to use the ROW and are entitled to exercise that right. The ROW is necessarily associated not only with the reasonable use of the Meyers property, but the value of their property as it is a legal right that can be transferred to new owners.

Conclusion

76I am satisfied that the Meyers have established a substantial interference with the use and enjoyment of their ROW. I am satisfied that the installation of two locked gates, with additional conditions imposed with respect to the use of keys, was unreasonable in the circumstances of this case.

77Although not submitted by the Renauds, I have considered whether there could be an alternative with respect to the gates, such as having the gates locked with combination locks or kept unlocked. In my view, the use of any lock, even a combination lock, still results in a substantial interference with the ROW. Further, the existence of the gates, even if unlocked, still results in a substantial interference with the ROW. Both of these alternatives still involve getting in and out of the vehicle four times when entering the property, and four times when leaving the property. It also still results in an increased risk of injury in the winter, by having the Meyers (and/or their invitees) get in and out of their vehicle repeatedly and deal with the gates.

78I am satisfied that the Renauds should be ordered to remove the gates, be prohibited from erecting gates or other obstructions over the ROW, and be prohibited from interfering, directly or indirectly, with the Meyers use of their ROW.

79I am not satisfied that I should issue a permanent injunction preventing any owner of the respondent’s property from erecting gates or other obstructions. My review of the authorities cited by the parties establishes that there may be circumstances where it may become reasonably necessary for a ST to install a gate or an obstruction. In those circumstances, the ST should either seek out the consent of the DT or apply to a court for a determination of the issue.

Damages

80The Meyers seek special damages in the amount of $23,340 which reflects the rent they have had to pay while awaiting resolution of this matter. They further seek general damages for interference with the use and enjoyment of the ROW in the amount of $10,000.

81I am not satisfied that the Meyers are entitled to the special damages they seek. I have only been provided with minimal information on this issue. For example, I do not know when they decided to move permanently to the Kearney property, whether and when they communicated this intent to the Renauds, the date on which they listed their principal residence for sale, and the date on which their principal residence sold. I simply do not have enough information to properly assess the alleged special damages.

82I am satisfied that the Meyers are entitled to general damages for the substantial interference with the use and enjoyment of their ROW. I agree that the Renauds should have applied to a court for a determination about whether they could install the two locked gates and whether they could impose the conditions they have insisted on. They should have refrained from taking any steps to impede access to the ROW until the issue was determined by a court.

83Instead, the Renauds made a unilateral decision to install two gates and then locked them. They then insisted that the Meyers agree to a conditional use of the ROW, which included an insistence on liability insurance (which was later dropped) and an insistence that the Meyers could only have one key and could not copy it or provide it to their invitees. I find that the Renauds had no authority to make the use of the ROW conditional upon new terms unilaterally imposed by them.

84This has led to the complete inability of the Meyers to use their legally registered ROW, on the terms in which it was created, between December, 2, 2022 and today’s date.

85The Renauds submit that the Meyers could have agreed to receive a key on their terms, on a without prejudice basis, pending the determination of this application. The other side of that argument, is that the Renauds could have provided keys unconditionally to the Meyers, pending the determination of this application, something that they were not prepared to do.

86In my view, damages in the amount of $10,000 are appropriate in the circumstances of this case to reflect what has been almost an entire year of substantial interference with the Meyer’s ROW.

Order

87For the reasons set out above, I make the following orders:

a. The respondents, Lawrence Victor Renaud and Iris Audrey Renaud, are prohibited from directly or indirectly interfering or impeding the applicants’, Henry Meyers and Ingrid Patricia Meyers, use and enjoyment of their right of way over Part 5 on Plan 42R-10287;

b. The respondents must forthwith remove the existing locks, gates and posts on each side of the Part 5 right of way and may not install any gate or obstruction without prior order of a court of competent jurisdiction; and

c. The respondents shall pay damages for the loss of use and enjoyment of the Part 5 right of way, to the applicants in the amount of $10,000, payable forthwith.

Costs

88If the parties cannot agree on the issue of costs, the applicants shall provide written submissions on the issue of costs, no more than 2 pages in length, by November 30, 2023. The respondents shall provide written responding submissions on the issue of costs, no more than 2 pages in length, by December 15, 2023.

The Honourable Madam Justice S.K. Stothart