Court File No. 14112/94

 

ONTARIO COURT (GENERAL DIVISION)

(Sault Ste. Marie)

 

 

 

 

 

BETWEEN:

TRACY-LYNN BROADBENT and JEFFREY DAVID BROADBENT

Plaintiffs -and-

DONALD JAMES TOWNSEND and ANNE-MARIE TOWNSEND

Defendants

REASONS FOR RULING

Delivered Orally by the Honourable Mr. Justice W. L. Whalen on October 31, 1994

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Appearances:

 

P. Feifel, Counsel for the Plaintiffs

 

D. J. Townsend, Personally


 

1.

Reasons for Order

Whalen, J.

REASONS FOR ORDER.

 

WHALEN. J. (Orally):

 

The defendants enjoy an unrestricted right of way across lands owned by the plaintiffs. The right of way is stated to be for the purpose "ingress, egress and regress, in, over, along and upon" it. The defendants have not complained that this access to their property has been impeded, or that it is inadequate. However, the defendants are concerned that the access road is in an area that may flood (although it has not done so, or at least not seriously in the seven or so years that they have owned the property). They have admitted concern that the road be raised so that they have safe passage should the need arise, although it has not yet. Although the defendants suggest that the full width of the right of way, as described in the grant, has not been cleared, they have not demonstrated how their access over the roadway as cleared impedes their access or the effect clearance may have on the plaintiffs.

 

 

The defendants admit to having tampered with trees.  Mr. Townsend denies here having chopped trees on the plaintiff’s property at or near the

 

2.

Reasons for Order

Whalen, J.

road in question. However, a police officer has deposed that Mr. Townsend admitted to doing so and the officer observed damage. The officer observed this damage and received the statement on October 23 or 24, 1994.

 

The defendant admits to a history of dispute over this right of way with the prior owner and he asks for the right to take whatever steps he feels will be necessary to ensure an ambulance can gain access to his home. The defendants justify their position by an alleged comment by S. D. Loukidelis, J. in a pre-trial for another proceeding, although that comment would appear to be in the context of permitting the defendants to remove trees directly blocking their access.

 

I am satisfied, especially upon the basis of the affidavit of Officer Lobert, that the defendants have been involved in actions in respect of the right of way and the growth along it that would affect the plaintiffs' lands without justification of right or necessity. The defendants seem interested and almost obsessed with their own plan for development of this right of way.  Perhaps they can demonstrate need.  However, they have not

 

3.

Reasons for Order

Whalen, J.

done so here, nor have they demonstrated any interference with the use they have been granted. I am satisfied that the tests for granting of interlocutory relief have been met and that the plaintiffs' property rights and enjoyment may be interfered with unless the interlocutory relief sought is granted. Therefore, order to issue as requested in paragraphs one and two of Notice of Motion, subject to review upon further return of this motion, which is adjourned to November 18, 1994, at 10:00 a.m. I would propose to award costs to the plaintiffs in the cause.

 

What that means is I am putting all of this "on ice" and saying that you cannot touch those trees: you cannot dig a hole or cover a hole: or do anything with that roadway except to go across it. It is going to have to stay like that until you have a trial and if you can show that you have to widen it, or you can demonstrate that it should be raised because there is going to be some flood or some impairment of use of your property, then that is fine, but you cannot take the law into your own hands.  Mr. And Mrs. Broadbent own the property, and they have the right to have it demonstrated to

 

4.

Reasons for Order

Whalen, J.

 

them and perhaps proven if they do not accept it, that in some way your use and enjoyment of your

property is impeded because of the flood plane or whatever it may be. That is going to be for another day, but in the meantime you have exactly what you're given, the right to go over the property to get to and from it. If trees are cut down they are not easily put back and it is not up to you, Mr. Townsend, or Mrs. Townsend, to decide unilaterally that you can cut trees, or widen, or do what you want. So the only way I can preserve this for another day so that there be something to decide is to say no one is going to touch it--you are not going to touch it and that is how I leave it.

THIS IS TO CERTIFY that the foregoing is a true and accurate transcription

of the record made by sound recording apparatus transcribed to the best of my skill and ability.

                                                                                                                                                                                                                                   Certified Court Reporter      

Dated this 3rd day of November, 1994, at the City of Sault Ste. Marie, Ontario