Supreme Court of Canada dismisses appeal regarding easements and real property

July 19, 2019

2019 CarswellOnt 5579 

On April 11, 2019, the Supreme Court of Canada dismissed with costs an application for leave to appeal regarding Kokic v. Clarke, 2018 ONCA 705. The leave to appeal application was brought after an appeal in the Ontario Court of Appeal and was dismissed following a successful court application brought forward by Dale Clarke, et al.

The Clarkes owned a building located at 101 St. Andrew St. W., attached to the adjacent building at 135 St. David St., owned by the Kokics. Under the title deeds, the Clarkes have an easement over part of the Kokics’ property, which provided interior access to the upper floors and roof of their own property. When the easement was first granted, the Clarkes’ predecessors in title had no other access to the third floor or roof of 101 St. Andrew St. W except through 135 St. David St., though this is no longer the case.  The Clarkes began renovations to adapt the property for commercial use on the first two floors and residential use on the third. The renovations included slightly widening the third floor door frame through which the easement passes to make it a fire exit, and replacing the doors on the second and third floor to comply with the relevant building and fire regulations. The Kokics interfered with the right of way, and the Clarkes applied for declaratory and injunctive relief. The application judge declared the easement valid and ordered the Kokics not to interfere with the Clarkes’ rights under the easement, including the right to make the renovations. The Ontario Court of Appeal dismissed the appeal. An application for leave to appeal was then brought to the Supreme Court of Canada and was ultimately dismissed with costs.

Trenton Johnson and Sharon Ilavsky (Commercial Litigation) of Miller Thomson represented the successful applicants in the original court application and were successful in the Ontario Court of Appeal.