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Ontario Court of Appeal Decides Right of Way Issue

The Ontario Court of Appeal has released its decision in a case that could seriously affect the property rights of many Ontarians.

In April 2005, we wrote about 1387881 Ontario Inc. v. Ramsay, a decision of the Ontario Superior Court of Justice regarding whether the benefit of a registered right of way could be preserved beyond the 40 year expiry period under the Registry Act by merely referring to the easement in a subsequent deed, or whether registration of a Notice of Claim in the form prescribe by the Act was necessary. The lower Court decision held that a reference to the right of way in a subsequent deed was sufficient to preserve it. The case was appealed. Some commentators had expressed fear that, if the Court of Appeal reversed the lower Court, it would open the door for owners of the properties subject to registered easements created more than 40 years ago to delete the easement by, for example, registering a deed to itself not referring to the easement. As there are still many properties in Ontario which rely on just such easements for access or other rights, the potential consequences could be very serious.

In June 2005, the Court of Appeal released its decision, and upheld the lower Court’s ruling ((2005), 32 R.P.R. (4th) 161). It considered the relevant provisions of the Registry Act in their entirety and the policy objectives underlying the current statutory regime, and concluded that the rights of way had not expired. It confirmed that a claim against land can be preserved in two ways: by registration of a Notice of Claim or by a “true acknowledgment” of the claim set forth in an instrument registered within the notice period. 

This decision should provide some reassurance to property owners who rely on these sorts of rights of way for access to their properties, or who rely on registered easements for other rights. However, the respondents have applied for leave to appeal to the Supreme Court of Canada. If leave is granted, this important issue will once again be before the courts for a definitive answer.

John Payne

December 15, 2005 in Other | Permalink

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