A property owner who was landlocked and whose access to a municipal roadway was through a right-of-way over the next door neighbour’s property used the land easement for his vehicle ingress and egress. The neighbour objected to a vehicle going over the easement and the court was asked to rule on whether the easement could allow only foot traffic.
The court came to the conclusion that the initial grantor did not intend to restrict motor vehicles using this easement. That is because of the width of the easement, the purpose of the easement, its historic use, the use by other vehicles, the knowledge of that by the neighbours and any lack of restriction in the registered deed. The court made a declaration that the owner had access and egress by motor vehicle. (Panabaker [Estate of] v. Robinson, 2014 ONSC 5019)
Landlord/tenant co-occupiers
In a different case, the plaintiff was pregnant with twins. While walking in the parking lot in front of store, she tripped and fell over a pothole. The twins were delivered prematurely.
She sued the landlord and tenant store corporation. The store and the landlord had a lease agreement whereby the landlord was responsible to maintain the parking lot.
One would think that would be determinative of liability. However, the Occupiers’ Liability Act made the store an occupier and landlord as co-occupier (and vice versa). Because the store did not pay attention to the area in front of store and its maintenance, the store was also determined to be liable and could not rely on the mere assignment of maintenance to landlord. (Soomre v. P.A. Ramey Enterprises Ltd. et al, 2012 ONSC 782)
Employee not liable to employer’s insurance company
The female defendant worked for the plaintiff as a summer student. The defendant unfortunately caused a fire resulting in property damage to the employer’s business. The employer made a claim to its insurance company and once the insurer looked at the matter, they commenced an action against the female defendant, alleging that the loss was caused by her negligence.
The Nova Scotia Supreme Court found that an employee’s liability to an employer for ordinary negligence did not give rise to a prima facie duty of care. In other words, the court looked at the employer and employee’s expectations, their representations with regard to the summer work, their reliance on the summer student, the circumstances and facts of such employment and concluded that imposing a duty of care on the female defendant summer student would be unjust and unfair.
The court also found that no duty of care arose and the plaintiff’s insurance company therefore failed. (Portage LaPrairie Mutual Insurance Company v. MacLean, 2012 NSSC 341)
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
