Albion v. Brown, 2026 ONSC 2548

CITATION: Albion v. Brown, 2026 ONSC 2548

COURT FILE NO.: CV-25-00000762-0000

DATE: 2026-05-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jeffrey Peter Albion and Jennifer Marie Coxe

Applicants

– and –

Michael Edward Brown and Sarah Jane Brown

Respondents

Erik Savas, counsel for the Applicants

Richard Campbell, counsel for the Respondents

HEARD: January 16, 2026 at Kitchener

THE HONOURABLE JUstice A. J. Ohler

REASONS FOR JUDGMENT

[1] The applicants and the respondents are neighbours. Since the respondents moved in, on or about August 17, 2018, they have accessed a parking area behind their home via a right of way across the applicants’ backyard.

[2] The applicants seek (i) a declaration that the right of way is to be used for pedestrian access only; (ii) a permanent injunction prohibiting the respondents and their successors in title from operating any vehicle over the right of way; (iii) a permanent injunction prohibiting the respondents from trespassing on any part of the applicants’ lands not within the right of way, and; (iv) an order that the respondents pay general damages of $50,000 and $35,000 in punitive damages for trespass on the applicants’ property.

[3] For the reasons set out below, the application is dismissed.

FACTS

The Properties and Right of Way

[4] The applicants, Jeffrey Albion and Jennifer Coxe live at 15 Fisher Mills Road (“Fisher Mills”) in Cambridge, Ontario. Fisher Mills runs east-west. The applicants’ home faces Fisher Mills. Immediately to the east of their property runs Laneway 200. The laneway runs north/south, from Fisher Mills to Shaw Avenue West.

[5] The respondents, Michael and Sarah Brown live at 19 Fisher Mills, immediately to the west of the applicants.

[6] Schedule “A” is a photograph of Laneway 200, looking south to Fisher Mills. This photo, taken in June 2023, shows the rear of the applicants’ property. There is a wooden fence, separating the applicants’ backyard from their parking area. The fence runs east-west. To the north of the fence is the applicants’ parking area, with space to park two vehicles, perpendicular to the laneway. The applicants’ fence does not come to a 90-degree angle at edge of the applicants’ property and Laneway 200. As confirmed during cross-examination of the applicant Jeffrey, there is a “turning angle” off the fence, what he described as a “triangle cut out of it to make pulling in easier off the laneway.”

[7] The entrance to the right of way is immediately north of the applicants’ parking area.

[8] The applicants have installed two wooden stakes where the right of way meets the laneway, one at the north and one at the south. To the north of the right of way, a fence separates the applicants’ property from their rear neighbours. The neighbours’ fence does not run all the way to the laneway; it stops some distance away.

[9] Schedule “B” is a photograph taken in June 2023, standing in Laneway 200, looking west along the right of way. The respondents’ parking area is visible in the distance. The right of way is made of gravel. Greenery, grass or weeds, grow in the centre of the right of way. To the left (or south) of the right of way, is the applicants’ parking area. There appears to be a slight change in grade between the applicants’ parking area and the right of way. To the right (or north) of the right of way, is the north neighbours’ fence.

[10] In this photo, four large bags of dirt and a wooden planter are visible along the length of the right of way. Further east, at about the halfway point of the applicants’ parking area is a white plastic stake with a red reflective strip at the top, held in place with rocks.

Legal Descriptions and Registrations of the Right of Way

[11] The original grant of the right of way and the circumstances at the time are relevant to the issues on this application.

[12] Francis Fach owned a parcel of land to the west of Laneway 200. On March 5, 1905, Fach sold the easterly 29 feet of his property to John Havey. The Fach property became 19 Fisher Mills, i.e. the respondents’ property; the Havey property became 15 Fisher Mills, belonging to the applicants.

[13] The 1905 grant from Fach to Havey reserved “the right of way with others over the north eight feet of the land hereby conveyed westerly from lane or alleyway.” On the typewritten grant, the words “the north eight feet of” have been struck through in ink by way of two double lines. There is a small checkmark above the words struck through and there is handwriting above. The handwriting is impossible to read. The grant is silent as to the purpose of the right of way or its use.

[14] One year after the conveyance to Havey, Fach transferred 19 Fisher Mills to Bertha Thorne. In addition to the right of way, this conveyance reserved the right to use water from a well on 15 Fisher Mills.

[15] The record on this application does not establish when the homes at 15 and 19 Fisher Mills were built, but the parties agree that they are historic homes, likely built around the time of the 1905 grant. The applicants and the respondents also agree that both homes were, at one point in time, heated by coal furnaces and both homes had coal chutes at the rear of the properties for the delivery of coal.

[16] The parties have filed numerous indentures and grants concerning the two properties over the following 120 years. Two require some consideration.

[17] On May 20, 1964, Charles and Regena Wildman bought 19 Fisher Mills. In this indenture the right of way is described as:

[W]ith others from lane or roadway westerly, of the easterly twenty-nine feet of the said Lot sold to one John Havey. RESERVING the right to use water from the well on the said premises according to agreement made in deed to one Havey of the lands sold to him.

[18] On January 17, 1973, Charles and Regena consented to a modification of the right of way. This indenture restored the eight-foot width struck out in the 1905 grant, and limited its use to the owners of 19 Fisher Mills:

SUBJECT further to a right-of-way in favour of the owners of that part of Lot 3 immediately to the west of the lands herein conveyed [i.e. 19 Fisher Mills Road] and which said right-of-way may be more particularly described as follows: COMMENCING at the northeast angle of said Lot 3; THENCE westerly along the northerly limit of said Lot 3, 29 feet to a point; THENCE southerly and parallel to the easterly limit of said Lot 3, 8 feet to a point; THENCE easterly and parallel to the northerly limit of said Lot 3, 29 feet to the easterly limit of said Lot 3; THENCE northerly along the easterly limit of said Lot 3, 8 feet the place of beginning. [Emphasis added.]

[19] In 2003, Wendy and Greg Hood-Morris bought 19 Fisher Mills from the sons of Charles and Regena Wildman. The right to use the well on 15 Fisher Mills was deleted in the chain of title. The description of the right of way was not changed.

Use of the Right of Way

[20] The evidence on this application included an affidavit and supplementary affidavit jointly sworn by the applicants. The respondent Michael Brown swore an affidavit and supplementary affidavit, as well as affidavits sworn by Wendy and Greg Hood-Morris. The applicant Albion, the respondent Michael and both Wendy and Greg Hood-Morris were cross-examined on their affidavits.

[21] For ease of reference, in these reasons I refer to the applicants and respondents jointly, despite the fact that the applicant Coxe was not cross-examined and the respondent Sarah Brown did not swear an affidavit. At various points, I refer to the parties, as well as Wendy and Greg Hood-Morris by their first names. No disrespect is intended, nor any inferences drawn from the parties who provided evidence or declined to provide evidence, on this application.

Use of the Right of Way by the Respondents’ Predecessors

[22] When Wendy and Greg bought 19 Fisher Mills they were told that they could drive across the right of way to access the gravel parking area in the rear of 19 Fisher Mills. When Wendy and Greg bought the home, both the right of way and the parking area were already laid with gravel. At the time of the purchase, and for the following five years, the then-owners of 15 Fisher Mills did not take any issue with Wendy and Greg’s use of the right of way.

[23] Wendy and Greg owned a number of different vehicles. When driving a larger vehicle, they would make a three-point turn in the laneway to reverse into the right of way, and back into their parking area. When they owned smaller vehicles, they would drive forward and simply turn into the right of way.

[24] There is no other direct evidence of the historic use of the right of way on this application.

[25] The respondents were advised by Ellen Smith, who resides at 24 Fisher Mills, that the Wildmans parked their car behind 19 Fisher Mills. Ms. Smith provided a handwritten statement which was produced to the applicants in answer to an undertaking given during cross-examination. Ms. Smith writes that she has lived on Fisher Mills since 1957. Charles Wildman Sr. parked his car behind 19 Fisher Mills, and after his death, his wife continued to do so. Ms. Smith did not swear an affidavit on this application.

[26] The applicants rely on an aerial photograph of the properties taken in 1971. According to the applicants, this photograph shows a tree growing in the right of way and argue that this tree would have prevented motor vehicles from using the right of way in 1971.

The Applicants’ Purchase of 15 Fisher Mills

[27] On July 4, 2008, the applicants bought 15 Fisher Mills. They acknowledge that they were aware of the existence of the right of way and that Wendy and Greg drove across the right of way and parked their vehicles in the backyard of 19 Fisher Mills. The applicants claim that Wendy and Greg’s use of the right of way was not contentious.

[28] According to Wendy and Greg at some point in time, the applicants installed a stake at the corner of the right of way. According to Wendy, the placement of the stake made it “awkward” for her and Greg to use the right of way; even with a smaller vehicle, it became necessary to conduct a three-point turn to use the right of way. Wendy had the impression that the applicants placed the stake in that position to “try and make it more difficult” to use the right of way. The exact placement of the stake, or the date when it was installed was not provided.

The Respondents’ Purchase of 19 Fisher Mills

[29] In 2018, Wendy and Greg sold 19 Fisher Mills to the respondents. At that time, a wooden fence separated 15 and 19 Fisher Mills. The fence ran north-south between the two properties, stopping at the southern edge of the right of way. The fence then turned west at a 90-degree angle, running some length, though not the full length, of the right of way. Some of the photographs filed on this hearing include this fence; it was removed prior to June 2023, when the photos included as schedules to these reasons were taken.

[30] In contemplating the purchase of 19 Fisher Mills, the respondents were aware that there was a right of way which could be used to access the gravel parking area behind the home. On this application, the respondents filed the listing for the property which indicates there are two parking spaces and a right of way. The photos included on the listing shows the gravel parking area with a car parked in it.

The Respondents’ Use of the Right of Way

[31] The applicants’ issues with the respondents’ use of the right of way began before the respondents moved in.

[32] In June 2018, the applicant Jennifer watched as a Jeep operated by the respondents’ real estate agent attempted to use the right of way. The Jeep struck some rocks and knocked over a stake demarcating the right of way. According to Jennifer, the respondent Michael got out of the Jeep and “attempted to fix the damage.” Michael then told her, “You do not need all that space behind your vehicles” and that it “makes it difficult to turn” into the right of way. Jennifer explained that the right of way was only eight feet wide.

[33] During cross-examination, the respondent Michael acknowledged an interaction with Jennifer on one of the days that he viewed the property but did not recall speaking to her. The respondents were viewing the home with their real estate agents, a husband-and-wife team. The Jeep had difficulty navigating the right of way and the agents were worried about damaging their vehicle. As Michael recalled it, the husband of the team asked Jennifer whether the applicants would be interested in negotiating a widening of the right of way. Jennifer replied that was not possible because they needed the space for woodworking.

[34] The applicants have kept track of when and how the respondents use of the right of way.

(i) Alternate Parking Arrangements

[35] According to the applicants, the respondents do not always use the right of way to park their vehicles behind their home.

[36] During the day, when the City of Cambridge permits street parking along Fisher Mills, the respondents park in front of their home. The respondent Michael takes his child to school at 7:30 a.m. then returns home. After the school run and before leaving again for work at 9:30 a.m., Michael parks on the street. The dog walker who occasionally visits the respondents’ home also parks on the street.

[37] The respondents also have alternative parking in the area. For instance, when Laneway 200 is impassable due to snow, the respondents park in the driveway of Ms. Smith’s home. The respondents parked there between February 14 and 23, 2025. Michael’s vehicle got stuck in the snow in the laneway and he needed the assistance of others to get out.

(ii) Incidents of Trespass on the Property of Others

[38] According to the applicants, the respondents access the right of way by trespassing on the property of others i.e. land belonging to 11 Fisher Mills.

[39] 11 Fisher Mills is located directly east of Laneway 200 and is visible in the photograph included at Schedule “A.” Like the applicants’ property, there is a wooden fence behind the home which separates the backyard from a gravel parking area. This graveled area is directly across from the mouth of the right of way. The respondents will often pull forward into this gravel area to reverse down the right of way.

[40] On two occasions in January 2022, the side mirror of Michael’s vehicle struck the northerly neighbour’s fence (the vine-covered fence visible in Schedule “A” and “B”.)

(iii) Incidents of Tresspass on and Damage to the Applicants’ Property

[41] Since August 2018, the applicants have kept a detailed record of incidents of alleged trespass and damage to their property. A detailed log of these incidents was filed on this application. Each incident is documented with a photo, video, or still shot from a video, and a short description. The review set out below includes the applicants’ description of the event and the court’s description of what is visible in the accompanying photo, video or still shot.

[42] Between August 2018 and June 2019, the applicants rely on six incidents of trespass and/or damage to property:

August 19, 2018 – a Jeep hit cinderblocks surrounding the applicants’ plastic white parking stake. In the accompanying photo, the plastic parking stake is standing, but is not perfectly straight, rising approximately 10 degrees to the west.

October 17, 2018 – a Jeep hits a wooden planter. The planter is located 104 inches from the northern boundary of the right of way (i.e. five inches outside the right of way). The trim around the top lip of the planter is damaged; the trim has been knocked askew, and there are shards of wood missing.

April 6, 2019 – the respondents park a vehicle on the right of way. It remains parked until the next day.

April 24, 2019 – the applicants’ white plastic parking stake is hit, “almost” damaging the car. The accompanying photo shows the parking stake surrounded by rocks. It is not standing upright but is leaning approximately 10 degrees to the south. The applicants describe this incident as “preventing access to their car.” It is impossible to tell from the angle of the photo whether the parking stake is touching the car, but it certainly is very close.

June 3, 2019 – the respondent Sarah struck a wooden planter belonging to the applicants. She left a note for the applicants, offering to pay to replace it. The applicant Jennifer responded to Sarah’s note via text message. The text message exchange was filed as an exhibit to the applicants’ affidavit. It reads: “Hi Sarah, don’t worry about money for the planters. Thank you for the note, I appreciate it. Cheers, Jenn.” The respondent Sarah responded: “I feel terrible about it… Have a good night!” There is no photo of the damaged planter.

June 30, 2019 – the applicants’ northwest fence post is struck by the Jeep’s tire. The photos accompanying this incident reveal that the tire is indeed touching the fence. There does not appear to be any damage to the fence.

[43] The applicants did not log any incidents of trespass or damage to their property after June 30, 2019. There are no incidents recorded in 2020.

[44] The log resumes again in August 2021:

August 8, 2021 – a pickup truck parks in the right of way while unloading what appears to be bags of sand or dirt. Michael is present. The driver refuses to leave the right of way until after he is finished unloading the bed of his truck. There are multiple photographs of this incident.

January 15, 2022 – a Tucson SUV navigating the right of way turns its wheels against “the” planter. The accompanying photo is a still shot from a video; the planter is not visible and there is no photo establishing damage to the planter.

February 25, 2022 – the Tucson hits the applicants’ fence, to the south of the right of way. This appears to be another still taken from a video. It is impossible to tell that the Tucson has “hit” the fence, though it does appear to be in very close proximity. There is no evidence of damage to the fence.

[45] In the summer of 2022, the applicants removed the wooden fence running north-south between the two homes, including the portion that ran along the southern edge of the right of way. In September, the applicants retained a surveyor to mark the limits of the right of way, by installing the wooden boundary stakes. These are the stakes visible in Schedule “A” and “B.”

[46] The applicants logged the following incidents:

September 2, 2022 – the north stake is knocked askew; there is no visible damage to the stake in the accompanying photo.

January 20, 2023 – the Tucson is alleged to have struck the applicants’ landscaping rocks. The accompanying still from a video reveals the right of way and adjoining areas covered in snow; it is impossible to tell if the Tucson has hit the landscaping rocks.

February 3 and 7, 2023 – the Tucson is alleged to have struck the south property stake. This is not visible on either of the stills provided.

March 10, 2023 – an unknown vehicle strikes the north stake; in the accompanying photo, the stake is leaning at a 45-degree angle.

March 24, 2023 – the Tucson is alleged to have struck the south stake, knocking it completely over. There is no damage to the stake.

(iv) Installation of a Gate on the Right of Way

[47] In May 2023, the applicants wrote to the respondents to advise that they intended to install a gating system to the east and west of the right of way. The applicants inquired whether the respondents would be prepared to abandon the right of way. A response to this letter, if one was provided, was not filed on the application.

[48] The alleged incidents of trespass continued:

August 17, 2023 – a Honda Civic is alleged to have struck the north stake. The stake is not visible anywhere in the accompanying video.

June 23, 2023 – the Tucson strikes the south stake. The respondent Sarah exits the vehicle to adjust the stake.

July 16, 2023 – the Tucson strikes the south stake. The accompanying photo shows the vehicle in contact with the stake, which remains upright.

April 23, 2024 – the Tucson is alleged to have struck the north stake. According to the applicants, “parts of our planter previously struck by an unknown vehicle is lying in the middle of the easement.” The photo shows wooden trim around the top of the planter lying on the ground.

June 14, 2024 – the Tucson strikes the south stake. The stake is not visible in the photo.

June 21, 2024 – the Tucson makes contact with a flexible plastic construction fence along the south side of the right of way, installed to protect construction on the applicants’ property, i.e. the aforementioned well.

[49] By letter dated October 20, 2024, the respondents requested information on the applicants’ proposed gate project, requesting assurance that the gates would function in the event of a power failure or snow. A response to this letter, if one was provided, was not filed on the application.

[50] The applicants hired a contractor to install steel gate posts at the mouth the right of way. The opening between the two posts is 80 inches, a full 16 inches narrower than the eight foot wide right of way and rendering its use by the respondents’ vehicles impossible.

(v) Creation of a Temporary Right of Way

[51] By letter dated November 1, 2024, the respondents demanded the applicants remove the steel posts obstructing the right of way.

[52] On November 27, 2024, the applicants created a temporary right of way for the respondents’ use. The temporary right of way is located south of the existing right of way, through what was the applicants’ parking area. According to the applicants, the temporary right of way is 98 inches wide, two inches wider than the existing eight foot right of way. The temporary right of way is demarcated by several wooden property stakes.

[53] The applicants have recorded the respondents’ use of the temporary right of way, including incidents of alleged trespass outside the boundaries of the right of way. Several short video clips were filed with the court. The initial package filed on this application included recordings made on December 6, 2024, January 2, 2025 and March 23, 2025. Additional recordings were filed during the hearing, with the consent of the respondents.

(vi) Continued Use of the Temporary Right of Way

[54] On June 17, 2025, the metal gate posts were removed.

[55] On September 5, 2025, the day the respondent Michael was cross-examined, a snow fence blocked access to the right of way. Two large holes where the posts and accompanying concrete had been removed had not been re-filled. Accordingly, the respondents continued to use the temporary right of way.

[56] During the argument of this application in January 2026, the respondents continued to use the temporary right of way.

(vii) The Respondents’ Position re Incidents of Trespass

[57] The respondents acknowledge that they have used the gravel area behind 11 Fisher Mills to reverse into the right of way, as pulling forward is “extremely difficult.” The respondents claim to have the consent of the owner of 11 Fisher Mills to pull onto his gravel area to execute this maneuver and filed a will say statement from the owner to that effect.

[58] The respondents do not dispute that they may have hit the fence belonging to the northerly neighbour on occasion but could not recall any specific incident in January 2022.

[59] The respondents do not contest the incidents included in the applicants’ log and filed on this application. They concede that the eight foot right of way is narrow, but argue that their difficulty in navigating the right of way is in large part caused by the applicants’ interference with their use of the right of way, by installing wooden stakes at its limit.

[60] According to the respondents, the wooden property stakes make it “extremely difficult” to navigate the right of way, particularly in the winter months. The placement of rocks, boards and bags of dirt in the right of way, or at its very edge, interfere with the useable portion of the right of way.

[61] Moreover, the applicants have prevented the respondents from maintaining the right of way. For instance, the applicants’ have told the respondents that they cannot clear snow or cut weeds growing in the right of way. As a result of the overgrowth, the eight-foot width of right of way is becoming narrower.

[62] Over the winter of 2025, both respondents sold their vehicles and purchased new, smaller vehicles. According to the respondent Michael, these new vehicles easily navigate the temporary right of way. During cross-examination, Michael could not say whether it would be possible to pull forward into the right of way with these smaller vehicles; he had not tried to do so. The right of way had not been restored by September 2025 when the respondent Michael was cross-examined.

Damages and Impact on the Parties

[63] The applicants claim general and punitive damages for the respondents’ trespass. Actual damages include the wooden planter (value approximately $100), the construction fence (value approximately $40) and wooden stakes (approximately $5 per stake). The applicants did not produce any receipts in support of expenses incurred.

[64] The applicants claim they have suffered mental and emotional stress; every day they are fearful of trespass and damage to their property. They check their security cameras daily for incursions by the respondents. The applicants cannot develop their property, including by replacing the fence removed in the summer of 2022, as they are fearful any replacement will be damaged by the respondents’ use of the right of way.

[65] The respondents agree that this entire ordeal has been the source of much stress; they feel they are under constant monitoring by the applicants.

ISSUES AND LAW

[66] There are three issues requiring determination on this application:

(i) Do the respondents have a valid right of way over the applicant’s lands?

(ii) What use can the respondents, or their successors in title, make of the right of way?

(iii) Are the applicants entitled to damages for trespass and if so, in what amount?

The Legal Characteristics of a Right of Way

[67] The applicants do not dispute the existence of the right of way. Nevertheless, a review of the principles with respect to the creation of a valid easement provides helpful context for considering the issues on this application.

[68] There are four conditions to establishing a right of way:

1. There must be a dominant tenement and a servient tenement;

2. The easement must accommodate the dominant tenement;

3. The owners of the dominant and servient tenement must be different persons; and

4. A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, 134 O.R. (3d) 401 at para. 52.

[69] In this case, the four conditions for a valid easement are met.

[70] There is a dominant tenement, 19 Fisher Mills, and a servient tenement, 15 Fisher Mills. The easement accommodates the dominant tenement; 19 Fisher Mills has the right to traverse the right of way. The owners of 19 and 15 Fisher Mills are different persons, and the right is capable of forming the subject matter of a grant.

[71] In considering the application before the court, it is important to bear in mind that the right to reasonable use of the servient tenement includes ancillary rights, those necessary to the enjoyment of the right of way: Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.), at paras. 11, 22. Accordingly, the right to use a right of way includes the right to make a road, and alterations to the lands of the servient tenement that are reasonably necessary for access: West High Development v. Veeraraghaven, 2011 ONSC 1177 at paras. 108, 115.

[72] In most cases, the obligation to maintain a right of way rests with the dominant tenement: West High Development, at para. 102. For instance, in Peters v. Palmer (2000), 34 R.P.R. (3d) 143 (Ont. S.C.) at para. 36, the court found that the right of way included the ancillary right to throw snow onto the adjacent land, as may be necessary to keep the right of way open in the winter.

[73] The servient tenement is not precluded from placing chattels or erecting a structure on an easement, so long as what is done does not substantially interfere with the dominant tenement’s use of the easement: Fallowfield, at para. 33.

Establishing the Purpose and Use of a Right of Way

[74] The principles for determination of the purpose and use of a right of way are well-settled.

[75] In Smith v. Morris, [1935] O.R. 260 (C.A.), the starting principle was stated as follows:

My study of the cases leads me, however, to the conclusion that an easement constituted by grant is to be interpreted according to the intention of the parties at the time of the grant, having regard primarily to the words of the grant itself, though in a case like the present, the surrounding circumstances are also relevant as evidence to interpret the rights which are implied in the particular case. In this connection I refer to the statement of the law by Jessel M.R. in the case of Cannon v. Villars (1878), 8 Ch. D. 415, at 420:

Now I will say a word or two about the law. As I understand, the grant of a right of way per se and nothing else may be a right of footway, or it may be general right of way, that is a right of way not only for people on foot but for people on horseback, for carts, carriages, and other vehicles. Which it is, is a question of construction of the grant, and that construction will of course depend on the circumstances surrounding, so to speak, the execution of the instrument. Now one of those circumstances, and a very material circumstance, is the nature of the locus in quo over which the right of way is granted. If we find a right of way granted over a metalled road with pavement on both sides existing at the time of the grant, the presumption would be that it was intended to be used for the purpose for which it was constructed, which is obviously the passage not only of foot passengers, but of horsemen and carts. Again, if we find the right of way granted along a piece of land capable of being used for the passage of carriages, and the grant is of a right of way to a place which is stated on the face of the grant to be intended to be used or to be actually used for a purpose which would necessarily or reasonably require the passing of carriages, there again it must be assumed that the grant of the right of way was intended to be effectual for the purpose for which the place was designed to be used, or was actually used.

Where you find a road constructed so as to be fit for carriages and of the requisite width, leading up to a dwelling-house, and there is a grant of a right of way to that dwelling-house it would be a grant of a right of way for all reasonable purposes required for the dwelling-house, and would include, therefore, the right to the user of carriages by the occupant of the dwelling-house if he wanted to take the air, or the right to have a waggon drawn up to the door when the waggon was to bring coals for the use of the dwelling-house.

Cited in West High Development, at para. 85.

[76] In Almel Inc. v. Halton Condominium Corp. No. 77 (1977), 98 O.A.C. 72 (C.A.), the court succinctly stated, at para. 3:

The governing principles are not in issue. Where a right of way has been created by express grant, the scope of permissible use depends on the words used. The circumstances existing at the time of the grant may also be looked at to construe the nature and extent of the rights conveyed. See Laurie v. Winch, [1953] 1 S.C.R. 49. In the case of a general grant, as here, the permissible use is not limited to the original use. Although the owner of the dominant tenement cannot alter the type of use of the right of way beyond its original scope, the burden on the servient tenement can be reasonably increased so long as the use is of the same general nature, and it can reasonably be said to have been in the contemplation of the parties at the time of the grant.

[77] More recently in Fallowfield, at para. 10, the court held:

Where 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. This principle is set out in Halsbury's Laws of England, vol. 14, 4th ed., (London: Butterworths, 1980), at p. 26, para. 54:

The nature and extent of an easement created by express grant primarily depend upon the wording of the instrument. In construing a grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances.

[78] The determination of the reasonable use of a right of way is a fact-heavy inquiry considering the language of the grant, the circumstances at the time of the grant and the circumstances as they exist at the time of the application: Fisher v. Saade, 2021 ONSC 1241, at para. 15, citing Fallowfield; RelaxMuskoka v. 2052219 Ontario Inc., 2017 ONSC 5131, at paras. 299-300.

[79] The onus is on the applicant to establish an evidentiary basis to limit the respondent’s use: RelaxMuskoka at para. 288, citing West High at para. 100.

Analysis re Purpose and Use of the Right of Way

[80] The right of way was first created in 1905 and modified in 1973.

[81] The 1905 grant does not include language that suggests the right of way was reserved to access the laneway, i.e. as “giving ingress and egress” between one parcel of land and a road: see RelaxMuskoka, at para. 51; Weidelich, at paras. 6, 8; West High Developments, at para. 3. Indeed, it is entirely silent as to its purpose and use; it is a grant of the most general kind. There is no evidence as to the intent of Fach when he reserved the right of way – for himself and others – over the land conveyed to Havey. The conveyance did not contain words describing the purpose of the right of way, nor did it limit the use of the right of way to any particular means or even its size and location.

[82] The applicants have provided several arguments in support of various interpretations of the purpose of the right of way.

[83] First, the applicants submit that the right of way was granted to give access to a well located in the north end of 15 Fisher Mills. The applicants rely on the 1964 grant, referring to that well.

[84] I am not persuaded that the right of way was created to provide access to a well on the lands of 15 Fisher Mills. The well does not appear in the 1905 grant but appears one year later. If the right of way was intended for access to a well by Fach and others on the lands of 15 Fisher Mills, it is not obvious why the right of way would mention the laneway.

[85] As an alternative, the applicants argue that the right of way was intended to permit the delivery of coal, bread and milk (or other deliverables) to the rear of 19 Fisher Mills. The parties agree that the homes at 15 and 19 Fisher Mills were constructed with coal chutes to facilitate the delivery of coal for heating purposes. According to the applicants’ research – not detailed in their affidavit – coal deliveries were made by horse-drawn carts up and down alleyways; hand carts were used to haul coal across the right of way to the rear of 19 Fisher Mills. Based on the difficulty of turning into the right of way with a modern motor vehicle, it would have been “impossible” for a horse and buggy to turn into the right of way. Again, there is no admissible evidence to the effect that coal deliveries, or any other deliverable would have been walked down to the rear of 19 Fisher Mills properties. In any event, I note that the portion of the deed limiting the width of the right of way to eight feet was struck through on the 1905 grant. For whatever reason, Fach and Havey chose not to restrict the right of way to the width of eight feet at the time of the conveyance.

[86] Considering the wording of the grant itself, it is plain and obvious that the purpose of the right of way was to permit Fach and others to access the laneway adjacent from 19 Fisher Mills.

[87] For the applicants, whatever purpose contemplated by Fach and Havey in 1905, the parties could not possibly have intended use by motor vehicles. In 1905, area residents did not own personal motor vehicles. As reported by a website called “The Turner Tales, Local Stories by Lary,” the first motor vehicle in the area did no appear until 1906, was owned by more than one person, and was stored in a covered garage, not at a family home.

[88] There is some logic to the applicants’ argument: how could parties reasonably contemplate access via motor vehicles at a time when most families did not own motor vehicles? But that does not mean that access by any vehicle whatsoever was not within the contemplation of the parties.

[89] There is no evidence on this application as to when the homes at 15 and 19 Fisher Mills were built, but I do not think it beyond the contemplation of the parties that carts or other forms of conveyance might be employed to bring building supplies to the rear of the properties. Fach and Havey did not restrict the right of way to eight feet; it must have been within the reasonable contemplation of the parties that an eight-foot strip would be too narrow for all contemplated purposes.

[90] The width of the right of way and those who could access it was restricted by the 1973 indenture. To determine the purpose and use of the right of way, the court must consider not only the circumstances existing at the time of the original grant, but also the circumstances existing in 1973 when Charles and Regena Wildman agreed to restrict the size of the right of way and limit access to themselves and their successors in title.

[91] The 1973 indenture does not specify the purpose of the right of way or limit its use to any particular means. I have no difficulty concluding that the purpose remains the same as that in 1905, to permit access to the rear of 19 Fisher Mills via Laneway 200. Nothing in the wording restricts the respondents, or their predecessors in title, from driving a motor vehicle across the right of way.

[92] Acknowledging that there is no evidence as to the level of motor vehicle ownership in 1973, I do not think it controversial to take judicial notice that personal ownership of a motor vehicle was within the reasonable contemplation of the parties.

[93] The applicants argue that the 1973 indenture could not possibly have contemplated access via motor vehicle because the eight-foot width is too small to accommodate same. In this respect, the applicants rely on Peters v. Palmer in which the court took judicial notice that the average width of a motor vehicle is about six feet. For the applicants, there is no way the parties would have intended an eight-foot right of way to be used by motor vehicles.

[94] In 2108133 Ontario Inc. v. Kapcan Foods Ltd. (Ont. S.C.) at paras. 2, 4 and 21, an eight-foot wide right of way was found to be sufficient to permit access via motor vehicle.

[95] The width of the right of way is no barrier to use by motor vehicles, provided motor vehicles can safely navigate its parameters.

Safety Concerns re Access Via Motor Vehicle

[96] The applicants argue that even if the right of way was intended to be used via motor vehicles, the right of way is not safe for such use. In support, the applicants rely on incidents of trespass onto their property and accompanying damage.

[97] The applicants rely on the ruling in RelaxMuskoka, in which the court held that a right of way that was 9.2 feet wide was not safe for vehicular access. In that case, the subject right of way was not being used by motor vehicles at the time of the application. The width of the right of way was not uniform; the entrance was 9.2 feet but narrowed at one point to only 6.92 feet. The right of way was located between commercial buildings; some of the tenants had doors that opened directly onto the laneway: RelaxMuskoka, at paras. 306-309. None of these concerns are present in this case.

[98] The respondents argue that they can safely navigate the right of way when it is not obstructed by the applicants.

Analysis

[99] There is nothing inherently unsafe as to the size, dimensions, or location of the right of way, as was the case in RelaxMuskoka.

[100] First, the evidence of Wendy and Greg Hood-Morris establishes that the right of way may be safely navigated by motor vehicles; they used the right of way in various vehicles for the entirety of the 15 years they resided at 19 Fisher Mills. That is sufficient to establish that the eight-foot width right of way is safe for motor vehicle access.

[101] Second, the evidence also establishes that the respondents are able to safely navigate the right of way in their motor vehicles.

[102] To start, there are periods of time in which the applicants have not documented any incidents of alleged trespass or damage. This includes the period between June 2019 and August 2021.

[103] Between August 2018 and September 2022, a period of four years, the applicants documented six incidents of alleged trespass. One incident involved a vehicle parked within the right of way overnight, which I do not understand the applicants to be relying on as evidence that the right of way cannot be safely accessed by motor vehicles.

[104] The remaining five incidents involve vehicles driven by the respondents coming into contact with the applicants’ rocks, wooden planter, and fence. There is no evidence that the applicants’ rocks or fence sustained any damage. The only evidence of damage is to a wooden planter. Neither give rise to any safety concerns.

[105] Between September 2022 and October 2024, the applicants documented what they allege to be 11 incidents of trespass. I am prepared to find that during this time period there were nine occasions on which the respondents collided with the applicants’ property while using the right of way. One instance involved the plastic construction fence. There was no damage. On eight occasions, the respondents collided with wooden stakes demarking the right of way. Again, there was no damage.

[106] I am not satisfied that the use of the right of way by motor vehicles gives rise to any safety concerns. There is nothing to support a claim that the right of way is unsafe. The only evidence of a safety concern is that presented by the wooden stakes installed at the entrance to the right of way – at the corner where the right of way meets the laneway at a sharp 90-degree angle – not the dimensions of the right of way itself, that appears to be the safety issue.

[107] A review of the photographs is again helpful.

[108] As is plain in the photo included as Schedule “A”, the location of the stakes so close to the limit of the laneway is unusual, in comparison to the location of fences and other items in the laneway. For instance, the northerly neighbour’s fence does not extend to the boundary of the laneway; it stops well before. The applicants’ southern fence separating their backyard from their parking area does not extend to the limit of the laneway; as acknowledged by the applicant Jeffrey during cross-examination, it has a “turning angle” or a “triangle cut” to make turning easier. The applicants have placed their own white plastic parking marker a substantial distance from the edge of the laneway.

[109] Only the respondents are required to navigate a very sharp turn. I have no difficulty concluding that any issues with respect to the respondents’ difficulties in navigating the right of way, from September 2022 to October 2024, has been caused by the conduct of the applicants, i.e. placement of the wooden stakes.

[110] Wendy and Greg Hood-Morris traversed the right of way in a number of different motor vehicles without incident until the applicants installed a wooden stake at the boundary of the right of way. It was Wendy’s evidence that following the installation of the stake, use of the right of way became much less comfortable; indeed, it was necessary to execute a three-point turn to reverse into the right of way.

[111] There is no evidence that a restriction of the use of the right of way is required to address any safety issues.

[112] In coming to this conclusion, I have not considered instances of alleged trespass or ‘damage’ after October 2024. The applicants obstructed the right of way in October 2024, failed to restore it to its original condition, then came to court with evidence that the respondents are unable to navigate a different right of way. The applicants argue that they have “graciously afforded” the respondents “an additional two inches” width for the temporary right of way. Evidence that the respondents cannot drive within the lines of a temporary right of way, located in a different place on the property, is of no assistance to the court in determining whether the existing right of way, which the respondents are legally entitled to use, is safe for motor vehicle use.

[113] The applicants have not met their burden.

Damages for Trespass

[114] The applicants claim $50,000 in general and $35,000 in punitive damages for the respondents’ trespass, i.e. instances in which the respondents have trespassed on their property in navigating the right of way by knocking askew or dislodging the wooden stakes placed along the right of way.

[115] Trespass is an intentional tort. Trespass to land involves a direct, intentional and physical entry onto land in another’s possession. It does not require the applicant to suffer any damage, rather damages flow from the applicant’s right to exclusive possession: Labreche v. Zammit, 2023 ONSC 6786, at para. 49.

[116] As set out in Wallington Grace v. Fort Erie (City of) (Ont. S.C.), at para. 86, the elements of trespass are:

▪ Direct and physical intrusion onto land that is in the possession of the applicant (indirect or consequential interference is not trespass);

▪ A voluntary act by the respondent, though intrusion need not be intentional; and

▪ Some form of physical entry onto or contact with the land, including but not limited to placing or propelling an object or discharging a substance.

[117] The respondents are entitled to use the northerly eight feet of the applicants’ property, and nothing more.

[118] The respondents acknowledge that between September 2022 and October 2024, their vehicles have made contact with the wooden stakes placed at the entrance to, or along the right of way. The respondents acknowledge that Sarah damaged the applicants’ planter in 2019 and offered to pay for it at that time. The applicants declined that offer. I see no reason to make an award in damages now, especially in the absence of any evidence of any out-of-pocket expense caused by the respondents’ conduct.

[119] The incidents of trespass, if any, were de minimus, of mere inches and trivial. They were transitory, lasting only so long as it takes for the vehicle to move through the right of way. There is no evidence to support an award for special damages, the alleged incidents of trespass having caused no damage to the applicants’ property.

[120] Nor is it appropriate to make an award of general damages in this case. The applicants obstructed the right of way in October 2024 by installing steel posts. As of September 2025, the right of way had not been restored to its original condition. The respondents have been obliged to use the temporary right of way at least since November 2024, up to the hearing of this application in January 2026, under constant monitoring by the applicants. Finally, these incidents of alleged trespass have not interfered with the applicants’ use of their property; the stakes at the entrance to the right of way appear to serve no purpose other than marking the very edge of the right of way.

[121] Punitive damages are reserved for exceptional cases, to punish, deter, and denounce wrongful acts that are so malicious, outrageous or high-handed that they are deserving of punishment on their own: McCabe v. Roman Catholic Episcopal Corporation, 2019 ONCA 213, 146 O.R. (3d) 607, at para. 39.

[122] There is no evidence of malicious, outrageous or high-handed conduct on the part of the respondents in this case. There is no evidence that the respondents intentionally drove over the stakes; or drove through the right of way at an unreasonable rate of speed with reckless disregard for the boundaries of the right of way. The evidence before me is that when the respondents are aware that they have collided with the applicants’ wooden stakes, they dutifully exit their vehicles and right the stake. When they damaged the planter, they offered to pay for it. This is the antithesis of high-handed behaviour.

Conclusion

[123] The application is dismissed.

Costs

[124] The parties are strongly encouraged to settle the matter of costs. If the parties cannot, the respondents may file costs submissions of no more than three pages, double spaced, in 12-point font, with a detailed costs outline and any offers to settle attached within 15 days of the release of this decision, and the applicants may file costs submissions on the same terms a further 10 days thereafter. Once filed with the court, a copy of the submissions shall be sent to my attention by email to St.Catharines.SCJJA@ontario.ca with confirmation of filing. If a party does not meet these deadlines, there shall be no costs payable to that party. In the event there are no submissions filed in accordance with these timelines, costs shall be deemed resolved.

A. J. Ohler J.

Date Released: May 5, 2026

Schedule “A”

Schedule “B”

CITATION: Albion v. Brown, 2026 ONSC 2548

COURT FILE NO.: CV-25-00000762-0000

DATE: 2026-05-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jeffrey Peter Albion and Jennifer Marie Coxe

Applicants

– and –

Michael Edward Brown and Sarah Jane Brown

Respondents

REASONS FOR JUDGMENT

A. J. Ohler J.

Date Released: May 5, 2026