CITATION: Armstrong v. 571609 Ontario Inc., 2026 ONSC 3831

COURT FILE NOS.: CV-23-00000123

CV-24-00000024

DATE: 2026/07/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LORNE EDWARD ARMSTRONG, BETTY ANN ARMSTRONG, FREDERICK JAMES ARMSTRONG and BRIAN GEORGE ARMSTRONG

Applicants

– and –

571609 ONTARIO INC.

Respondent

AND BETWEEN:

571609 ONTARIO INC.

Applicant

• and -

LORNE EDWARD ARMSTRONG, BETTY ANN ARMSTRONG, FREDERICK JAMES ARMSTRONG and BRIAN GEORGE ARMSTRONG

Respondents

Cameron J. Wetmore for the Applicants

Martin A. Smith for the Respondent

Martin A. Smith for the Applicant

Cameron J. Wetmore for the Respondents

HEARD: May 13, 2026

REASONS FOR DECISION ON APPLICATIONS

tysick, j.

overview

1This case is about road access to the applicants' summer cottage property (the “Armstrong property”) over the respondent corporation’s property (the “Chikopi property”).

2The applicants primarily rely on a right-of-way agreement signed in 1937 between a Mr. Robertson and a Mr. Hollard. Mr. Robertson was a prior owner of the Armstrong property and Mr. Hollard previously owned the Chikopi property.

3Mr. Robertson’s estate sold the cottage property to Mr. George Armstrong on June 4, 1976. The applicants are the children of Mr. George Armstrong and they inherited the cottage property in 2023. Apart from the disputed access over the Chikopi property, the Armstrong property currently has no road access but is accessible by water.

4The respondent corporation has owned and operated Camp Chikopi (a summer boys’ camp) on the Chikopi property since 1985. Although it has had different owners over the years, this boys’ camp has been in existence since 1920.

5Since the Armstrong property was purchased in 1976, a trail has run across the Chikopi property to a location near the Armstrong property boundary. The trail has changed over the years. Part of it has been widened with gravel added. The last section of the trail leading to the Armstrong property is narrower, unsurfaced and runs through dense forest.

6The applicants primarily seek a declaration that they have a right-of-way over the Chikopi property by easement. They argue that the entire trail is the right-of-way described in the 1937 agreement and is, therefore, an express grant of an easement. Alternatively, they claim a right-of-way over the route relying on an easement by necessity or personal proprietary estoppel. Finally, if no right-of-way is recognized, they seek a declaration that the Chikopi trail is an access road as defined by the Road Access Act, R.S.O. 1990, c. R.34 (the “RAA”).

7They also seek orders to prevent the respondent corporation from interfering with their right-of-way/access and permission to survey the right-of-way to prepare a Reference Plan for filing with the Land Registry Office.

8The respondent corporation denies that the trail is a right-of-way and argues that the 1937 agreement only demonstrates an intention to construct a road and that there is no evidence that this road was ever constructed. The respondent corporation also argues that there are no other easement rights over the Chikopi property and that the Chikopi trail does not meet the definition of an access road under the RAA.

9In a counterapplication, the respondent corporation seeks to remove Caution GB163877 from parcel register LT 52084-0064 that was registered on title to the Chikopi property on May 30, 2023 by the applicants. Further, if the Court finds that the disputed trail is an access road under the RAA, the respondent seeks closure of the road or, alternatively, the imposition of conditions or restrictions on its use.

10For the following reasons, I would dismiss the Armstrongs’ application and would grant the respondent corporation’s application only in relation to the deletion of the Caution put on title to the Chikopi property in 2023.

background facts

11The applicants are the current joint owners of a family cottage property located on Ahmic Lake. This property was originally purchased by the applicants’ father, George Armstrong, in 1976 from Robert S. Robertson.

12The Armstrong property has a cottage on it and was used by the Armstrong family primarily in the summer.

13There is no public road access to the property but is accessible by water.

14Since August 31, 1985, the respondent corporation has owned the Chikopi property neighbouring the Armstrong property to the northwest, also on Ahmic Lake. Collette Duenkel is the principal of the respondent corporation and runs Camp Chikopi. The Chikopi property is vast and consists of five parcels of land. However, the Chikopi property at issue in this case is Parcel 5453, a large parcel on which the disputed right-of-way is located.

15Chikopi Road is a municipal road that winds north above the Chikopi property. To access Camp Chikopi, vehicles proceed south down Chikopi road and arrive at a gated entrance to the camp.

16There is also a path that runs south across the Chikopi property ending at a location close to the Armstrong boundary line. It is this path that is the subject of dispute in these applications and will be referred to as the Chikopi trail. The Armstrongs claim they have a legal right to use this trail because of an easement created by a right-of-way agreement signed in 1937. This agreement was entered into by predecessors in title for both properties, being Robert S. Robertson and Donald J. Hollard.

17The respondent corporation does not deny there is a trail across the Chikopi property. But it argues that the right-of-way agreement did not create an easement and, even if it did, there is no evidence that the Chikopi trail is the right-of-way described in the agreement.

18The substance of the right-of-way agreement is found in a caution instrument number 21966 that was registered on Donald Holland’s property (then Parcel 475 which later became Parcel 5453) on September 11, 1939. The caution under the Land Titles Act reads as follows:

“I, Robert S. Robertson, of the City of Toronto, in the County of York, being interested in the land registered in the name of Donald John Hollard as Parcel 475, in the Register for the District of Parry Sound South Section, require that no dealing with such land be had on the part of the registered owner until notice has been served upon me.”

19Attached to the caution is a sworn statement dated September 11, 1939 reading:

“I, Robert S. Robertson, of the City of Toronto, in the County of York, Chief Justice of Ontario, under oath and say as follows:

1. I am interested in the land mentioned in the annexed caution and the particulars of my interest are as follows: the registered owner of the land granted me a right-of-way over the said land by Agreement dated the 25th day of August, 1937, a copy of which said Agreement is hereto attached.”

20The “Agreement” dated August 25, 1937 between Donald John Holland and Robert S. Robertson and attached to this last sworn statement reads:

“WHEREAS the Party of the First Part is the owner of the larger part of Lot Number 12 in the 6^th Concession of the said Township of Croft and the Party of the Second Part is the owner of Lot Number 12 in the 5^th Concession of the said Township as well as of a small portion of said Lot Number 12 in the 6^th Concession situate at the South-East corner of said Lot, and also of a small portion of Lot Number 13 in the 6^th Concession of said Township adjoining the last-mentioned portion of Lot Number 12 in the 6^th Concession of said Township;

AND WHEREAS a public highway commonly known as the Chicopi Road leads from the Provincial Highway to the said lands of the Part of the First Part near their North-West corner and the Party of the Second Part desires to secure a private right-of-way over and across the lands of the Party of the First Part to provide access from the said Chicopi Road to his own lands aforesaid:

1. NOW THEREFORE THIS AGREEMENT WITNESSETH that the Party of the First Part hereby grants to the Party of the Second Part, his heirs and assigns, as appurtenant to the lands owned by the Party of the Second Part as aforesaid a right-of-way of a width of twelve feet over and across the lands of the Party of the First Part aforesaid from the said Chicopi Road to a point on the boundary between the lands of the Party of the First Part and the lands of the Party of the Second Part at a point near the North-Westerly corner of the lands of the Party of the Second Part.

2. The course of the said right-of-way will be located on the ground by the parties hereto by laying out the roadway to be built and the Party of the Second Part may at his own expense procure a survey to be made of the right-of-way as so laid out and located.

3. It is the intention of the Party of the Second Part to construct along said right-of-way a roadway suitable for travel by motor car, and he agrees that he will engage the Party of the First Part at fair and reasonable remuneration to do such work as the Party of the Second Part may determine to do in the construction of the roadway. The estimated cost of construction of said roadway is approximately $700.00.

4. The Party of the Second Part shall be entitled to the use of the said right-of-way at all times as a means of travelling to and from his lands aforesaid for all the usual purposes of a home for the summer and at such other times as may be desired. The Party of the First Part agrees that he will not grant to others the right to use such roadway.

5. The Party of the Second Part shall have all proper and necessary rights to go upon said right-of way and the lands adjoining it to make repairs required from time to time thereon.

6. Nothing in this agreement contained shall in any way prevent the Party of the First Part, his heirs and assigns, from enjoying and exercising the right as owners to travel along and across the said right-of-way as and when they may desire so long as the use and enjoyment of the said right-of-way by the Party of the Second Part is not thereby interfered with and the roadway is not damaged or put out of repair and any damage or want of repair caused by the Party of the First Part, his heirs and assigns, is promptly made good.

7. This agreement and the benefit and burden thereof shall extend to the heirs and assigns of the respective parties hereto.”

21The bottom of the agreement is signed “D.J. HOLLARD” and “R S ROBERTSON” in the presence of Don Hollard.

22There is no evidence that a survey was ever obtained by Robert Robertson nor that the original signatories ever constructed a 12-foot road suitable for travel by motor car.

23In 2016, Caution 21866 was administratively deleted due to legislative changes to the Land Titles Act with respect to the duration of caution instruments.

24The Armstrongs believed that they had a right-of-way over the Chikopi property when they purchased the land in 1976. George Armstrong’s lawyer, in the final reporting letter dated August 25, 1976, stated:

“With reference to access to your property from the public road known as Chicopi Road an Agreement was entered into August 25, 1937, between the owner of the property, Lot Number 12 in the 6th Concession of Croft Township and your predecessor in title Robert S. Robertson. This Agreement provided that Mr. Robertson, his successors and assigns shall have the right to cross over the lands to the north on the right-of-way not to exceed 12 feet in width for the purpose of gaining access to the lands purchased by yourself.”

25However, this letter does not identify where this 12 foot wide right-of-way is located on the Chikopi property.

26What happened after 1976 is disputed. The Armstrongs filed affidavit evidence outlining their routine use of the Chikopi trail, by foot and vehicle, to access their summer property. The respondent corporation filed affidavit evidence suggesting that any access on the trail was by foot and that the Armstrongs primarily accessed their cottage by boat. They denied vehicular access by the Armstrongs and maintain that the trail was not suitable for vehicular passage.

27In 1978 and 1979, the immediate predecessor in title of the Chikopi property, Camp Chikopi Limited, subdivided its land and sold two lots on Lake Ahmic. The first lot, sold to the Manns, remains undeveloped to this day. The second lot was sold to James and Sally Lilly on August 10, 1979. A cottage was built on this lot and, in 2009, the Lillys sold the lot to Murray and Yvonne Martin (the “Martin property”).

28Both subdivided lots were granted right-of-way easements for access over the Chikopi property. Reference plans of surveys of the easements were registered in August 1979. Reference plan 42R6193 shows the right-of-way easement to the currently undeveloped lot and Reference Plan 42R6197 shows the right-of-way to the Martin property, which benefits the owner of the Martin property only. The right-of-way is 66 feet wide. These easements do not run all the way to the Armstrong property. The evidence was contradictory on the distance remaining to the Armstrong property, anywhere between 25 and 300 feet. A property index map was filed providing a visualization of these easements.¹ It is clear that both registered easements stop short of the property line to the south, being the Armstrong property line.

29Caution instrument number 21966 was deleted from the Martin property when they purchased it in 2009 without objection from the Armstrongs.

30In the mid-1990s, a gate was installed where Chikopi Road meets Camp Chikopi. It was a locked gate, and George Armstrong originally had a key to the lock. When the camp was running in the summer, the gate was rarely locked. It was occasionally locked in the Spring and Fall.

31Problems with access to the trail started in July 2015 when Brian Armstrong and his family were heading to the cottage for a week’s vacation. A truck was blocking part of the trail. This caused some conflict between Brian Armstrong and the Duenkels, which was resolved as access was permitted the next day.

32In August, 2015, the Armstrongs received a letter from the Duenkels describing incidents of trespass on the Chikopi property. It stated that their lawyer had done a cursory review of title and were of the view that the Armstrongs did not have a right-of-way over the Chikopi property.

33After 2015, George Armstrong used the cottage property significantly less as his wife went into long-term care that year. In 2016, he noticed that his key no longer worked in the gate. From that point on, when the gate was locked in the off-season, the Armstrongs would send an email to Colette Duenkel asking for the gate to be open, which she usually did.

34Caution instrument number 21966 was administratively deleted in October 2016 because of legislative changes to the Land Titles Act, R.S.O. 1990, c. L.5.

35Due to the COVID pandemic, the summer cottage property was not used in 2020. In January, 2021, George Armstrong passed away. His wife passed away on December 1, 2022, and on May 16, 2023, the applicants became the registered owners of the Armstrong property.

36The Armstrongs last tried to access their property over the Chikopi property on May 18, 2022. Fred Armstrong emailed Colette Duenkel to access the property that weekend but did not receive a response. When he arrived at the gate, it was locked. When the issue was discussed between them in August 2022, Colette Duenkel took the position that the Armstrong property did not have any right of access over the Chikopi property.

37On May 30, 2023, the applicants registered a notice of unregistered estate, right, interest in land pursuant to s. 71 of the Land Titles Act against title to the Chikopi property. This notice bears instrument number GB163877.

38On November 28, 2023, the Armstrongs commenced this application seeking legal recognition of an easement or, alternatively, a declaration that the trail used by them to access their property is an access road pursuant to the RAA.

39The respondent corporation filed a counterapplication dated March 4, 2024, seeking removal of the 2023 caution on title. Additionally, if this Court finds that the trail is an access road, the respondent seeks closure of the road or the imposition of conditions regarding the use. The parties agree that regardless of the outcome of these applications, the Notice registered on May 30, 2023 bearing instrument number GB163877 pursuant to s. 160 of the Land Titles Act should be deleted.

40Both parties agreed that the two applications should be heard together.

issues

41There are three primary issues raised in the applications:

(a) Do the Armstrongs have a right-of-way over the Chikopi property by way of easement that has not been abandoned?

(b) Do the Armstrongs have a protected right to access their property pursuant to the RAA?

(c) If there is a protected right to access the property pursuant to the RAA, should the Chikopi trail be subject to closure or restrictive covenants/conditions?

analysis

Issue 1: Do the Armstrongs have a right-of-way over the Chikopi property by way of easement that has not been abandoned?

Easements generally

42In 1832732 Ontario Corp. v. Regina Properties Ltd., 2018 ONSC 7643 (paras. 40-51), Perell J. helpfully reviewed the law on easements and laid out the following principles applicable to the creation of an easement:

(i) An easement may be created by grant, reservation, operation of law, statute, or s. 15(1) of the Conveyancing and Law of Property Act.²

(ii) An easement is an inheritable, non-possessory ownership interest in land. It is a right of usage over a property described as the servient tenement that is annexed to a parcel of land, which is described as the dominant tenement.

(iii) A positive easement grants to the owner of the dominant tenement a right to use the servient tenement’s land in a way that would otherwise be a nuisance or trespass.

(iv) A right-of way is an alleged positive easement.

(v) Where an easement is created by 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 the reasonable contemplation of the parties when the easement was created.

43Perell J. sets out four major characteristics of an easement at paras. 45-49:

(i) There must be a dominant tenement that enjoys the benefit of the easement and a servient tenement that bears the burden of the easement. The grantee of the easement must have an interest in the dominant tenement when the grant is made.

(ii) The easement must better or advantage the dominant land, and not just the grantee personally. The right granted must serve and be reasonably necessary for the enjoyment of the dominant tenement.

(iii) The dominant and servient tenement cannot be owned by the same person.

(iv) The easement must be capable of forming the subject matter of a grant, that is, it must be of a type recognized by the law, be defined with adequate certainty, and be limited in scope.

44To determine if an easement can form the subject matter of a grant, the court should consider whether the rights purported to be given by the grant are too wide or vague: Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, at para. 85 (“Mihaylov”).

45If the nature of the permitted use or its dimensions are uncertain or unlimited in scope, easements will not be recognized as enforceable: U.S. Steel Canada Inc. (Re), 2023 ONSC 6419, at para. 54.

Easement by express grant

46The Armstrongs argue that they have a positive easement, created by express grant, in the nature of a right-of-way over the Chikopi property. They say the express grant is contained in the 1937 right-of-way agreement.

47The Armstrongs say that all four characteristics of an easement are present in this case. The Armstrong land is the dominant tenement and the Chikopi land is the servient tenement. The 1937 agreement sets out that the dominant and servient tenements were owned by different people: Mr. Robertson and Mr. Hollard. It sets out that the rights and obligations in the agreement will pass to heirs and assigns. It sets out the purpose of the easement which is to allow the users of the Robertson property to travel to and from their property over the Hollard land limiting the scope and preserving the servient tenement’s rights as owners. They suggest the agreement is clear that the right-of-way could always be used to travel to and from the Robertson property, including by car, and provides for the right to make repairs as necessary.

48They argue that title to the Chikopi property is subject to this express grant of easement pursuant to s.71(2) of the Land Titles Act, since the Caution was still registered on title when the respondent corporation purchased the land. Further, s.44(1) of the Land Titles Act provides that all registered land is subject to existing rights of way, registered or not.

49The respondent corporation argues that the 1937 agreement is not valid since it is not accurately described on title to the Armstrong property or the Chikopi property. They say that there is no sufficient description of the right-of-way, such as a survey or legal description on title and there is no evidence that, aside from the Caution, the agreement was registered on title to both properties. It submits that the fact that no roadway was ever constructed to the northwest corner of the Armstrong property as anticipated by the agreement proves that the agreement never established an easement.

50They also argue that the Caution and the right-of-way agreement were deemed expired on September 12, 1979 or 40 years after registered on title, pursuant to s.119(9) of the Land Titles Act. Therefore, even if there were a valid right-of-way created in 1937, it has expired and is no longer of any force or effect. Finally, they argue that the nature and context of the right-of-way and the road has changed substantially over the years, thus creating a serious risk of injustice to the Chikopi property if the parcel register is rectified to include the Caution and the right-of-way agreement on title.

51The first three characteristics of an easement are easily met in this case. The 1937 agreement involved two separate owners of land. The land was described sufficiently and involves the Armstrong property and the Chikopi property. The Armstrong property, being the dominant tenement, would enjoy the benefit of the right-of-way and the Chikopi property, being the servient tenement, would bear the burden of the right-of-way over its land. Mr. Robertson, being the grantee of the easement, had an interest in the Armstrong property being the registered owner when the grant was made. Given that the agreement was appurtenant to the lands and extended to heirs and assigns of the parties, it was a right-of-way that would better the dominant land and not just Mr. Robertson personally. Being able to access the summer cottage property by land was reasonably necessary for the enjoyment of the dominant tenement who otherwise had no public road access to the property.

52It is the fourth characteristic of an easement that poses the most challenge in this case. Was the right-of-way described in the 1937 agreement capable of forming the subject matter of a grant, that is, it must be of a type recognized by the law, be defined with adequate certainty, and be limited in scope?

53There is no dispute that a right-of-way properly identified with adequate certainty can be the subject matter of a grant.

54In this case, the scope of the agreed upon right-of-way was sufficiently limited to entitle the dominant tenement use of the right-of-way at all times “as a means of travelling to and from his lands aforesaid for all the usual purposes of a home for the summer and at such other times as may be desired”. The easement was also limited to use by the dominant tenement since the servient tenement agreed that use of the right-of-way would not be granted to others.

55The harder issue is whether the right-of-way was defined with adequate certainty. The agreement defines the right-of-way as follows:

“a right-of way of a width of twelve feet over and across the lands of the Party of the First Part aforesaid from the said Chicopi Road to a point on the boundary between the lands of the Party of the First Part and the lands of the Party of the Second Part at a point near the North-Westerly corner of the lands of the Party of the Second Part.”

56The agreement then goes on to anticipate that the course of the right-of-way will be located on the ground by the parties by layout of a roadway to be built and the Party of the Second Part may procure a survey to be made of the right-of-way. It states that it was the intention of the Party of the Second Part (being Mr. Robertson) to construct a road suitable for motor car access and that he could engage Mr. Holland to do such work at fair and reasonable remuneration.

57There is no evidence that the parties located this right-of-way on the ground and no evidence that Mr. Robertson ever procured a survey or engaged Mr. Holland to construct the road. Further, a surveyed right-of-way was never registered on either property. Two years after the execution of the 1937 agreement, a Caution was registered attaching only the original agreement.

58Does the agreement identify the easement with adequate certainty? To answer this question, we examine the express terms of the grant to determine whether the rights purported to be given are expressed in terms too wide and vague a character thereby substantially depriving the servient tenement owner of proprietorship or legal possession: see Mihaylov, at para. 89.

59The Armstrongs ask the Court to use the location of the current Chikopi trail as proof of adequate certainty of the easement. In my view, the location of that trail offers little assistance in determining whether the 1937 agreement is certain as to the location of an easement. The fact that owners of the Armstrong property traversed a trail to their property in 1976 does not assist the Court in determining the location of the right-of-way anticipated by the 1937 agreement.

60The agreement was signed almost 40 years before the Armstrongs purchased their property. The Court received no evidence about the use of the Chikopi trail as an access route prior to 1976. That trail could have been created at any point prior to 1976 and for several different purposes. There was unchallenged affidavit evidence that the trail was used for running/walking by campers of Camp Chikopi and others.

61The reality is that there was no certainty of the exact location of the right-of-way when the 1937 agreement was signed. Had there been certainty, there would have been no need for the parties to lay out the course of the right-of-way on the ground for the roadway to be built later. The only description offered is that the right-of-way would be 12 feet wide starting on Chikopi road to a point on the boundary of both lands near the “North-Westerly” corner.

62In Mihaylov, the Court grappled with the fourth characteristic of an easement in terms of certainty of the easement. In that case, the easement in question related to a water pipeline that had previously been buried beneath the servient tenement’s land. The Court found that two original agreements relating to the pipeline created licenses rather than easements. However, there had been a subsequent agreement that met the characteristics of an easement. The applicants argued that the easement was not sufficiently certain in that the location of the pipeline was not identified nor was there a registrable description of the easement. The Court of Appeal found that there was an easement since the parties knew at the time the agreement was executed where the pipeline was located and could have taken steps to determine its exact location.

63In the case at bar, the parties to the 1937 agreement did not know where the right-of-way would run as it had not yet been laid out on the ground. Until the right-of-way was laid out, there would be no way to register the right-of-way on title since its location over the vast Chikopi property would be uncertain.

64In my view, a starting point from Chikopi road to an ending point on the boundary of the “North-westerly” section of the Armstrong’s property is not a sufficient descriptor to determine the location of the intended right-of-way. One could predict it would be a straight line south from Chikopi road to the north-west corner of the Armstrong property. However, the maps filed show there is no such road, nor trail. If the Court is required to predict the location of the easement anticipated by the 1937 agreement based solely on a starting point and vague ending point with no measurements, there is no certainty and no valid easement created.

65Accordingly, I find that the 1937 agreement did not create a valid easement given the lack of location certainty. Therefore, it is unnecessary for me to consider whether the Land Titles Act extinguished the easement and whether the respondent corporation would suffer injustice if title were rectified by the court and the right-of-way agreement re-registered.

Easement by necessity

66Although the Armstrongs’ Notice of Application included an alternative argument that they have an easement of necessity over the Chikopi property, this argument was not addressed in their factum. For the sake of completeness, I will address it briefly.

67Easements of necessity are easements presumed to have been granted when the land that is sold is inaccessible except by passing over adjoining land retained by the grantor. It is an implied grant. The easement must be necessary to use the property, mere inconvenience without the access is not enough to create the easement: see McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, at para. 48.

68The evidence was clear that the Armstrongs enjoyed water access to their property. In fact, they sometimes preferred such access when unloading supplies given the steep hill down to the cottage from the parking spaces. Accordingly, the land was not landlocked or inaccessible. Therefore, the claim for an easement by necessity is dismissed.

Equitable easement in accordance with the doctrine of personal proprietary estoppel

69The Armstrongs also sought a declaration that they have an equitable easement in the nature of a right-of-way relying on the doctrine of personal proprietary estoppel.

70The Supreme Court of Canada in Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754, at para. 15 clarified the test to establish a cause of action based on proprietary estoppel. To succeed, applicants must establish:

i) A representation or assurance is made to a claimant; based on which, the claimant expects he or she will enjoy some right or benefit over the property.

ii) The claimant relies on that expectation by doing or refraining from doing something, and his or her reliance is reasonable in all the circumstances; and

iii) The claimant suffers a detriment because of this reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on his or her word.

71The Armstrongs’ claim for proprietary estoppel must fail. There is no evidence that the respondent corporation made any representation to the Armstrongs that they enjoyed a right-of-way over the Chikopi property. Although the Duenkels did give permission to the Armstrongs to use the Chikopi property to access their cottage during the summer and in the camp off-season, there was no acknowledgement of a right-of-way.

72Bob Duenkel sent a letter to Mr. and Mrs. George Amstrong on August 16, 2015 advising that permission to access the Armstrong property over the Chikopi property would be restricted to their family and their personal vehicles. This letter was written following alleged incidents of trespass on the Chikopi property, which caused significant and irreparable damage to the land. Trees were allegedly removed without permission and damage was caused to a septic system by ATVs and heavy trucks.

73The letter stated that after a “cursory title review of our property….., the only property that appears to have a deeded right-of-way over the trail is the Martin property”. The letter then confirms that the Duenkels will continue to give the Armstrongs permission to use the Chikopi trail, but set restrictions.

74After August 16, 2015, the Armstrongs had to request written permission to use the Chikopi trail during the non-summer months when the gate was locked. Six permission letters were issued to the Armstrong family between 2016-2020.

75There is simply no reasonable basis upon which the Armstrongs could believe that they enjoyed a generous right-of-way or easement over the Chikopi land based on representations by the Duenkels on behalf of the respondent corporation. Proprietary estoppel avoids unfairness or injustice that would result to one party if the other were permitted to break her word and insist on strict legal rights. There must be an unambiguous promise which is taken seriously: Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754, at paras. 16 & 26.

76There is no evidence that prior to 2015, the Duenkels represented or assured the Armstrongs that they enjoyed a right-of-way over their property.

77In 2015, the Armstrongs were advised that there was no right-of-way and that permission to use the Chikopi land to access their property would be limited. It was also clear that the permission was being extended as an attempt to be neighbourly, and not due to an enforceable legal claim to access the Chikopi property.

78The position of the respondent corporation that there is no right-of-way or easement over the property and that access has been granted by permission only is not unconscionable and has been their position for over a decade. It was a position motivated by a desire to protect their property and the campers who visit the property every summer.

79Therefore, there is no promise or representation such that the now strict adherence to a legal right has established a detriment to the Armstrongs. There is no basis to grant an equitable right-of-way or easement pursuant to the doctrine of proprietary estoppel and I dismiss that claim.

Abandonment of easement

80Given my conclusion that the Armstrongs do not enjoy an easement over the Chikopi property, abandonment need not be considered.

Issue 2: Do the Armstrongs have a protected right to access their property pursuant to the Road Access Act?

81The Armstrongs argue that the access trail on the Chikopi property starting at Chikopi road, over the Martin’s easement, and continuing through the Chikopi trail to their property is an access road governed by the RAA. As such, the respondent corporation cannot close the access road as it prevents road access to their land. They also argue that water access is not an alternative to road access.

82The respondent corporation submits that the Chikopi trail is not an access road. It argues that the last section after the Martin property easement is simply a bush trail. It also points to two unopened road allowances which lead from Chikopi Road to the Armstrong property arguing that the property is not landlocked. Even if the trail was an access road at one time, the respondent corporation argues that its status was lost due to disuse or overgrowth, and the landowner has no obligation to repair or maintain it.

Road Access Act

83These are the relevant provisions of the RAA:

Definitions

1 In this Act,

“access road” means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land;

“judge” means a judge of the Superior Court of Justice;

“maintain” includes the leaving of a barrier or other obstacle on an access road or common road;

“motor vehicle” means a motor vehicle as defined in the Highway Traffic Act;

“road” means land used or intended for use for the passage of motor vehicles. R.S.O. 1990, c. R.34, s. 1; 2006, c. 19, Sched. C, s. 1 (1).

When access road may be closed

2 (1) No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefor, not owned by that person unless,

(a) the person has made application to a judge for an order closing the road and has given ninety days notice of such application to the parties and in the manner directed by this Act and the judge has granted the application to close the road;

(b) the closure is made in accordance with an agreement in writing with the owners of the land affected thereby;

(c) the closure is of a temporary nature for the purposes of repair or maintenance of the road; or

(d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of prescriptive rights. R.S.O. 1990, c. R.34, s. 2 (1).

Conditions for closing order

3 (1) The judge may grant the closing order upon being satisfied that,

(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest;

(b) in the case of an access road that is not a common road, persons described in subsection 2 (3) do not have a legal right to use the road; or

(c) in the case of a common road, the persons who use the road do not have a legal right to do so. 2001, c. 25, s. 483.

Conditions

(2) The judge may impose such conditions on a closing order as he or she considers reasonable and just in the circumstances.

Saving

6 (1) Nothing in this Act shall be construed to confer any right in respect of the ownership of land where the right does not otherwise exist at law and nothing in this Act shall affect any alternative remedy at law available to any applicant or other person. R.S.O. 1990, c. R.34, s. 6 (1).

84The RAA was passed in 1978 to prevent the arbitrary closing of private roads, especially in cottage country where owners or tenants are totally dependent on these roads for access to their property: 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586, 86 O.R. (3d) 561, at para. 11 (“Kilpatrick”).

[85] Persons using an access road cannot claim a legal right to do so under s.3(1)(b) just because the road is an access road. Instead, they have immunization from an action in trespass when travelling on the access road in a motor vehicle for purposes of access only: S. 6 RAA, Kilpatrick, at paras. 20-22.

86Section 2 of the RAA requires that the owner of the road apply for a court order for closure of the access road when the closure will result in the prevention of access for another piece of property. If the property affected by closure has alternative road access, no court application is required, and the owner may close the road. The onus is on the access seeker to show that the closure of the access road prevents all road access to one or more parcels of land: Atkins v. Carter, 2004 CanLII 8193 (ON SC).

87Unopened road allowances subject to municipal approval do not constitute road access within the RAA: Kilpatrick, at para. 31. Also, water access and shore allowances do not qualify as alternate road access: Atkins v. Carter, 2004 CanLII 8193 (ON SC), at para. 14.

88Given the only alternative access to the Armstrong property is an unopened road allowance and water access, I am satisfied that the Armstrongs have shown that closure of the Chikopi trail would prevent road access to their summer property. As such, if the Chikopi trail is an access road as defined by the RAA, the respondent corporation must bring an application to close the access road given the lack of alternative road access.

What is an “access road” as defined by the RAA?

89“Access road” as defined in s.1 of the RAA, is a road located on land not owned by a municipality and not a public highway that serves as a motor vehicle access route to one or more parcels of land. The Chikopi trail is owned privately and is an access route to the Amstrong property. But is it a motor vehicle access route?

90The Ontario Court of Appeal in Blais et al v. Belanger, 2007 ONCA 310, 282 D.L.R. (4th) 98, considered a dispute very similar to the present one. In that case, the respondents purchased land and then brought an application shortly thereafter for a declaration that the road crossing the appellant’s land is an access road and a common road under the RAA and sought an injunction to restrict the appellant from placing a barrier or other obstacle over the road. At the initial hearing of the application, Poupore J. ordered a trial of the issue as to whether the road crossing the land was an access road and a common road within the meaning of the RAA. The narrow issue in that case was whether there was a third branch of the access road that traversed a field and an area of bush and continued onto the respondents’ property. At the trial of the issue, several witnesses testified about whether there was a third branch of the road and how and when the respondents used this road. According to witnesses, the bush on the third branch of the road would grow up unless cleared.

91Juriansz J.A., writing for the Court of Appeal, accepted the trial judge’s acknowledgement that persons using an access road are not entitled to use the road for their own purposes, except to enter or leave their property in a motor vehicle. But the Court of Appeal then held that the trial judge did not appreciate some of the ramifications of such a legal principle. The following ramifications were noted in paras. 29-32:

i) The user has no right to repair or maintain the road under the RAA. Absent a legal right in respect of the land, an entry for repair or maintenance would amount to a trespass. The RAA neither expands nor reduces the scope for the acquisition of rights of way or easements under the common law.

ii) The RAA does not place obligations on the property owner to maintain an access road across the property. Recognition of such an obligation could lead to disputes between the parties regarding the standard of the road repair and liability for damage due to lack of repair or maintenance.

iii) It is not up to the courts to conjure up a regime to regulate the repair and maintenance of access roads that are not common roads.

iv) Given this, an access road could, through deterioration, cease to be a road. The RAA provides no assurance to those who use and depend on road access that it will continue to be available in the future.

92The Court of Appeal then examined the evidence led at trial including historical evidence about the use of the road. Juriansz J.A. remarked at para. 36, “[c]ertainly evidence of the historical existence of a road is relevant to the determination of whether an access road exists. However, the question under the Act is whether a road that is used or intended to be used by motor vehicles exists contemporarily.” Relevant to this consideration is whether the party seeking access has taken steps to clear the route. As the Court of Appeal noted at para. 38, “landlocked landowners cannot, by acts of trespass, bring into being an access road across the land of another”.

93In Campbell v. Ontario (Niagara Escarpment Commission), 2021 CanLII 23918 (ON ERT), the Niagara Escarpment Commission refused to recognize a route that the applicant sought to recognize as an access road and sought permission to make improvements. Referring to the Kilpatrick and Blais decisions, the Commission said that the purpose of the Road Access Act is “not to create new roads or to turn tracks in the bush into access roads”: at para. 43.

94In summary, these cases provide the following guidance when determining whether a road is an access road:

i) It must serve as a motor vehicle access route.

ii) It must be a route serviceable by motor vehicle without the requirement of repair/improvements since the RAA does not grant those powers to the user nor does it impose that obligation on the property owner.

iii) The Court should not be required to create a regime for the repair and maintenance of the route for the route to remain an access road.

iv) An access road can lose its status through deterioration of the road.

v) Although historical evidence of a road is relevant to the determination, the Court must consider whether it exists contemporarily.

vi) The Court should consider whether the user has had to take steps to make the route passable by clearing or improvement.

vii) In the end, is the Court being asked to turn tracks in the bush into a road where one otherwise does not exist?

Is Chikopi trail an access road?

95There is no question that the registered right-of-way over Chikopi property to the Martin property is an access road. That section of property was widened and gravel applied by owners of the property after the right-of-way was granted. However, that does not assist the Armstrongs as it does not give them complete access to their property. They must traverse the last part of Chikopi trail to get to their property. Does that additional trail meet the definition of an access road? If it does not, the trail can be blocked or closed by the respondent corporation without restriction as the RAA does not apply.

96Adopting the approach of the Court in Balogh v. R.C. Yantha Electric Ltd., 2019 ONSC 6748 (aff’d 2021 ONCA 266), I must determine whether the Chikopi trail was an access road serving vehicular traffic when the applicants were effectively denied unfettered access. Did the respondent corporation’s action of changing the gate’s lock and not providing a key to the Armstrong family in or around 2015 create an illegal barrier over an access road? If so, the RAA prohibits this action.

97But even if I do find that the Chikopi trail was an access road at that time, the analysis does not stop there. I must also consider whether the road has lost this status.³ If repair and maintenance would be required to serve vehicular traffic now, it can no longer be an access road as there is no right on the part of the Armstrongs to make it passable and no obligation on the respondent corporation to maintain it.

98Several affidavits were filed describing how, and when, the Chikopi trail was used by the Armstrongs and others. The evidence spanned a timeframe from 1976 to present. If the sole issue for me to determine was whether the Chikopi trail was an access road in 2015, it is unlikely that I could decide the issue on the conflicting affidavit evidence. A trial of that issue would have to be ordered as it was in the Blais decision. The Armstrongs’ affidavit evidence showed consistent vehicular use over the trail for many years. The responding affidavit evidence denied any such vehicular use and suggested that the trail was unsuitable for motor vehicle passage.

99However, I am satisfied that I can dispose of both applications on the evidentiary record before me. For even if the Chikopi trail did meet the definition of an access road in 2015, I am of the view that it no longer does based on the following unchallenged affidavit evidence:

i) Right before the Armstrongs took title to the property in 1976, there was debris over the route between Chikopi road and the Armstrong property which the Armstrongs did their best to clean up before trying to traverse it with a vehicle. There was also a rundown bridge over a culvert that the Armstrong mother was “skeptical about.”⁴

ii) Following the purchase in 1976, the Armstrongs would use the entire route to access their property by vehicle but often friends would not take the route as there were exposed rocks that could cause damage to vehicles of low suspension.⁵ Any car could lose a muffler driving through the route if they were not a good driver.⁶

iii) The Armstrongs would have to clear debris from fallen branches all the time.⁷

iv) Occasionally, there were trees fallen on the route.⁸

v) Starting in the early 90s, the Armstrongs had an old pick-up truck which they used to carry people and supplies from Chikopi road to their property. Family and friends would mostly park at the entrance to the Chikopi property and then get driven by the Armstrongs or walk into the property.⁹

vi) A photo of the truck illustrates the apt description as “old”. It was white but is covered with rust patches, scratches and dents. It is a vehicle that one would not be concerned about even on an off-road trail.¹⁰

vii) John Vanbeek, a friend of the Armstrongs, gave them the truck because the condition of the road was poor and the Armstrongs didn’t want to risk damaging their own vehicles.¹¹

viii) Neil Dolman was a camper and staff member at Camp Chikopi starting in 1978. He witnessed the Armstrongs use a boat to get back and forth to their cottage leaving vehicles at the entrance to the Camp. He saw George Armstrong walk on the Chikopi trail on a few occasions. He described the trail as an overgrown dirt path with many mud holes, washouts and fallen trees.¹²

ix) After August, 2015, George Armstrong and his wife used their summer property less frequently, a few trips each summer.¹³

x) The last time the applicant Brian George Armstrong visited the Armstrong property was in 2018.¹⁴

xi) The Armstrong family did not access the property in 2020 due to the COVID pandemic.¹⁵

xii) On April 19, 2021, counsel for the Armstrongs sent an email to counsel for the respondent corporation. In that letter, counsel advises that the Armstrongs have not had much need for access for the last 3 or 4 years and the Armstrong children do not access the cottage much at all.¹⁶

xiii) Photographs taken by Fred Armstrong in July 2021 shows the gravel road leading to the Martin property and the rest of Chikopi trail leading to the Armstrong property. The trail appears narrow with some tire tracks with grass grown up in between. It is heavily treed on both sides and branches are observed on the trail. The trail appears suitable for off-road vehicles or foot traffic.¹⁷

xiv) The next attempted visit to the Armstrong property was by Fred Armstrong on May 18, 2022, after the death of George Armstrong. Fred was unable to get to the Armstrong property because the Camp Chikopi gate was locked.¹⁸

xv) The Armstrong property was transferred to the applicants on May 16, 2023 and they commenced this application later in November, 2023.

xvi) A Google Maps Image from 2023 depicts a gravel road traversing the Chikopi property. The gravel road ends but a trail continues through the bush in the direction of the Armstrong property. The trail through the bush is not visible at all through the trees given the forest density.¹⁹

xvii) Fred Armstrong deposed that he had no doubt that the Chikopi trail is now overgrown and that it “could be easily dealt with once the access issue is resolved”.²⁰

100A clear picture of the Chikopi trail emerges from this evidence. It is a trail of anywhere between 25-300 feet with tire tracks that traverses a heavily wooded area leading to the Armstrong property. It is narrow and grass grows up between the tracks. The Armstrongs were hesitant to permit friends and family to drive their vehicles over the trail and would use an old truck to use the trail rather than their personal vehicles. And only “good drivers” were capable of driving on the trail without causing damage like losing a muffler.

101Even in 1976 when the Armstrongs purchased the cottage property, the trail required clearing so that they could drive over it to get to the boundary of their property. It also required consistent clearing over the years due to debris and fallen branches and trees.

102The continued use and clearing of a trail of this nature will, as a matter of course, improve its condition over time. However, none of the applicants have used the trail since 2021 (although I recognize that Fred attempted to in 2022). The applicants acknowledge barely using the trail in the 2021 email.

103If this part of Chikopi trail were recognized as an access road, the Court would have to create a regime to permit trespass by the Armstrongs to maintain the road or, alternatively, impose maintenance obligations on the respondent corporation. Who would be responsible for clearing the trail again after years of disuse? If a tree falls on the trail, who must remove it? Who is liable for any damages to vehicles using the trail?

104Put simply, to recognize the Chikopi trail as an access road would amount to the Court turning tracks in the bushes into an access road for the benefit of the Armstrongs. This is not the purpose of the RAA.

105As a result, I find that the section of land known as the Chikopi trail running from the end of the Martin property right-of-way and running several feet to the Armstrong property is not an access road as defined by the RAA. Therefore, the respondent corporation can prevent access to that trail without the necessity of seeking closure under the RAA. Given that there is no access road, there is also no need to impose conditions or restrictions on the trail’s use.

conclusion

106For the above reasons, the Armstrongs’ application is dismissed in its entirety.

107The respondent corporation’s application is granted in that Parcel register LT 52084-0064 is rectified by deleting the Notice registered on May 30, 2023 bearing instrument number GB 163877 pursuant to section 160 of the Land Titles Act.

108The respondent corporation was wholly successful in this matter and is presumptively entitled to costs.

109If the parties cannot agree on costs, the respondent corporation shall serve and file written submissions within 30 days of the release of these reasons. The Applicants’ responding submissions shall be served and filed within 30 days of the receipt of the materials served by the Respondents. Any reply submissions shall be served and filed within 7 days of the receipt of the responding submissions. All costs submissions shall be limited to five pages, plus a bill of costs and other relevant enclosures, such as offers to settle.

Tysick J.

Footnotes

1. 1Exhibit J to the Affidavit of Fred Armstrong sworn November 23, 2023.
2. 2R.S.O. 1990, c. C.34
3. 3See Ahokas v. Gross, 2025 ONSC 4966 for a helpful example of a road losing its status as an access road over time.
4. 4Affidavit of Fred Armstrong sworn November 13, 2023, at para. 13.
5. 5Affidavit of Fred Armstrong sworn November 13, 2023, at para. 31.
6. 6Cross-examination of Fred Armstrong April 22, 2025, at page 53, line 270.
7. 7Cross-examination of Fred Armstrong April 22, 2025, at page 23, line 110.
8. 8Cross-examination of Fred Armstrong April 22, 2025, at page 28, line 136.
9. 9Affidavit of Fred Armstrong sworn April 18, 2024, at paras. 17-19.
10. 10Exhibit H of the Affidavit of Fred Armstrong sworn April 18, 2024.
11. 11Cross-examination of John Vanbeek on April 23, 2025, at page 11, line 63.
12. 12Affidavit of Neil Dolman sworn May 17, 2024.
13. 13Affidavit of Fred Armstrong sworn November 13, 2023, at para. 37.
14. 14Affidavit of Brian George Armstrong sworn April 16, 2024, at para. 5.
15. 15Affidavit of Fred Armstrong sworn November 13, 2023, at para. 41.
16. 16Exhibit P of the Affidavit of Fred Armstrong sworn November 13, 2023.
17. 17Exhibit I of the Affidavit of Fred Armstrong sworn November 13, 2023.
18. 18Affidavit of Fred Armstrong sworn November 13, 2023, at para. 45.
19. 19Exhibit N of the Affidavit of Fred Armstrong sworn November 13, 2023.
20. 20Affidavit of Fred Armstrong sworn April 18, 2024, at para. 21.