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Supreme Court of Canada Decides Right of Way Issue

The Supreme Court of Canada has refused to grant leave to appeal a decision of the Ontario Court of Appeal in a case that had potentially serious consequences for some Ontario property owners.

In December 2005, we wrote about the Ontario Court of Appeal decision in 1387881 Ontario Inc. v. Ramsay, 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 prescribed by the Act was necessary. The Court upheld the lower court's ruling and 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.

The decision was significant because some commentators felt that, had the Court of Appeal reached the opposite conclusion, it would have opened the door for an owner of a property subject to a registered easement 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 properties in Ontario which rely on just such easements for access or other rights, the potential consequences were serious (although with the ongoing conversion of land from the Registry Act to the Land Titles Act, under which this issue does not arise, the problem is gradually becoming of less practical significance).

While the Court of Appeal's decision provided reassurance to property owners who rely on these sorts of easements, the decision was appealed to the Supreme Court and thus a degree of uncertainty remained.  With the Supreme Court's recent refusal to grant leave to appeal, this matter should now be resolved once and for all.  See 1387881 Ontario Inc. v. Ramsay (2006), 41 R.P.R. (4th) 208.

John Payne

July 6, 2006 in Other | Permalink

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I am surprised that there has not yet been any final solution about this issue. We regularly sell properties that have something to do with the above-mentioned right. We always mention that to the contractors but so far I have thought that there has been no expiry date for that right.

Posted by: PropertyRight | Jan 22, 2008 2:39:56 PM

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