It has long been clear that a landowner who grants a right-of-way over his land does not give up the right do what he wants with that land, as long as the use does not interfere with the easement, as granted.
On October 24, 2014, the Ontario Court of Appeal affirmed this principle and provided a helpful overview of the law as it relates to encroachments on rights-of-way.
The case of Weidelich v. de Koning involved a right-of-way running behind a series of six row houses in Toronto. The right-of-way allowed the owners of these houses, known in law as the “dominant owners”, to access their garages. The owners of the house at the entrance to the right-of-way built an addition to their home that encroached upon a part of the right-of-way.
The Court of Appeal upheld the “substantial interference” test, stating that “an encroachment on a private right-of-way is actionable only where the encroachment substantially interferes with the dominant owner’s ability to use the right-of-way for a purpose identified in the grant”.
The dominant owner does not own the land upon which the right-of-way runs, but only enjoys the reasonable use of that land subject to the terms of the grant. However, the landowner cannot create an obstruction that prevents the dominant owner from substantially and practically exercising his right as conveniently after as before the obstruction. Further, the wording of the grant of the right-of-way may be so broad as to its use, or so specific as to its necessary dimensions, that almost any form of interference may be unlawful.
Hence, every case of encroachment on a right-of-way will turn on the specific circumstances, including the terms of the grant, the nature of the encroachment and its impact on the use of the right-of-way. The law also differs with respect to public as opposed to private roads.
With this decision, the Court of Appeal also made clear that it is irrelevant if a landowner deliberately encroaches onto lands subject to a right-of-way, so long as the interference is not “substantial”. In this regard, the Court held that Albiston v. Liu (a decision of the Small Claims Court) was wrongly decided.
Turning to the result in Weidelich, the Court of Appeal denied the neighbours’ appeal. It was uncontested that the addition to the house did not impede the neighbours’ ability to drive to and from their garages. The laneway remained at least 4.4 metres wide where the addition was built. Since the addition to the landowners’ home did not substantially interfere with the neighbours’ use of the right-of-way, it was not actionable.
By: Kyle GossenRead More
Davies Howe Partners congratulates Matthew Di Vona on his call to the bar earlier this month. Matthew summered and articled with DHP and we are delighted to have him join our firm as an associate practicing in the areas of land-use planning, municipal and development law. For his his full bio please click here.
Congratulations Matt!Read More
Lexpert®, Canada’s legal expert Directory, named Jeff Davies of Davies Howe Partners LLP one of Canada’s Leading Infrastructure Lawyers in a recent report. This Lexpert® story was published in the September issue of the Report on Business Magazine published by the Globe and Mail. Highlighting the rapid growth of public private partnerships in Canada, and tying effective legal modules to their continued success, Lexpert® described the selected lawyers as leading the “legal vanguard of Infrastructure evolution thus far.”
Click here to read the full report.Read More
On Sept 15th Pickering Council voted 4-3 to endorse Durham Live, a proposal made by Pickering Developments Inc. Durham Live is a proposal to re-zone vacant land in the Bayly and Church Streets area to a major tourist destination, which may include a variety of 40+ uses including a casino. DHP partner Katarzyna Sliwa, represented Durham Live.
For additional media coverage please see the following links:
“Ajax still questioning massive Pickering casino proposal” – durhamregion.com, Sept 03
“Pickering casino proposal marathon meeting forced to halt at 1 a.m.” – durhamregion.com, Sept 03
“Pickering casino project takes a step forward” – durhamregion.com, Sept 10
“Pickering council approves Durham Live re-zoning: What happens next?” – durhamregion.com, Sept 17Read More
Jeff Davies was recently quoted in Law Times, where he expressed his views on Toronto’s proposed Development Permit System (“DPS”). Jeff pointed out that, while well-intentioned, a DPS may have more problems and fewer benefits than its proponents expect and will “merely be the same creature dressed in different clothes.” Read the full article here.Read More
The Cobourg Internet, a community website, reported on a recent local OMB hearing.
The author describes Davies Howe Partners’ associate Katarzyna Sliwa as ‘super sharp. If she cross examines you, you lose.’ We agree! Click the link for the full report on her OMB victory.
Davies Howe Partners is proud to announce that 3 of our partners have been identified as Leading Practitioners in Property Development in the 2014 Canadian Legal Lexpert Directory. Our leading practitioners for 2014 are:Read More
The December 2013 ice storm caused significant damage to Toronto’s trees. The City estimates that up to 20 percent of the City’s trees may have been damaged in the storm.
The damage is a setback for a City known for its green canopy. The City’s Parks, Forestry, and Recreation Department’s Forest Management Plan 2012-2022 identified the pre-ice storm canopy cover in the City in the range of 26.6% to 28%. The same Plan lists as its first strategic goal the expansion of the urban forest to achieve a canopy cover of 40%.
We expect the City will continue with the direction in the Forest Management Plan to protect and maintain the existing canopy and to stress, now more than ever, the need for ongoing tree plantings. The Toronto Parks & Trees Foundation is running a “Recover The Canopy” campaign to gives residents and others an opportunity to make a tax-deductible donation to help rebuild Toronto’s damaged tree canopy.
In a City proud of its trees, these trees are carefully regulated during the planning approval process. Chapter 813 of the City’s Municipal Code regulates the care, maintenance and removal of trees. This Chapter also regulates the injury or destruction of trees and the minimum tree protection zone where construction is contemplated near trees.
By: Isaiah BanachRead More