Wendy J. Earle

An appeal concerning the validity and location of an access easement reserved by CN when it sold property to Remicorp in 2002.

CN later transferred its easement rights to Metrolinx in 2010.

The application judge found the easement had been abandoned by implied release and by operation of law, and ordered it relocated from Part 5 to Part 1 of the property.

The Court of Appeal allowed Metrolinx's appeal, finding the application judge erred in concluding abandonment occurred.

The court held that non-use alone is insufficient to establish abandonment without evidence of intention to abandon, and that the three registrations on title (2002, 2003, and 2010) evidenced the absence of such intention.

The court also found the application judge erred in relocating the easement, as this deprived Metrolinx of its contractual rights under the easement agreement without proper application of the legal test under the Conveyancing and Law of Property Act and Land Titles Act.

On competing summary judgment motions, the plaintiff sought commission recovery arising from a completed sale of commercial property, while the defendant sought dismissal of the action.

The court held the record established no enforceable agreement requiring the defendant vendor to pay commission on the closed transaction, particularly given contractual terms assigning commission responsibility to the purchaser.

The court further found that, even if such an agreement could be inferred, dual agency conflict principles and inadequate disclosure would bar recovery.

Applying Rule 20 to dispose of the matter without trial, the court granted the defendant's cross-motion and dismissed the action.