Tyler Nicholson

The appellant appealed an order of the Superior Court that declared a prescriptive easement over only the rear portion of a gravel driveway strip between the appellant's plumbing business property and the respondents' residential property.

The application judge had found that the respondents could erect a fence blocking the front portion of the strip because its use was not necessary for the appellant.

The Court of Appeal allowed the appeal, finding that the application judge erred by conflating the criteria for establishing a prescriptive easement with the criteria for determining whether an encroachment substantially interferes with the easement's use.

The court held that the test is whether the dominant owner can use the easement as conveniently as before, not whether the use is necessary.

The easement was declared over the entire strip, and the respondents were enjoined from obstructing it with the proposed fence.

The appellants appealed a Small Claims Court judgment regarding arrears of rent, utilities, and maintenance charges for a land lease community.

The trial judge had dismissed most claims, finding they fell under the exclusive jurisdiction of the Landlord and Tenant Board (LTB) as rent.

The Divisional Court found the trial judge erred by failing to treat a prior LTB consent order—which declined jurisdiction over current claims and deferred them to Small Claims Court—as final and binding.

The appeal was allowed in part, awarding the appellants additional damages for utility arrears up to the date of the LTB order, and costs of the trial.