“An encroachment on a private right-of-way is actionable only where the encroachment substantially interferes with the dominant owner’s ability to use the right-of-way for a purpose identified in the grant.” (para. 10)
He went on to say that, “the requirement that the dominant owner proved substantial interference to maintain a claim reflects the nature of the dominant owner’s right. He or she does not own the right of way or the land upon which the right-of-way runs, but only enjoys the reasonable use of that property for its granted purpose. The dominant owner may only sustain a claim predicated on substantial interference with that reasonable use. The distinction is between the rights of ownership and the right of reasonable use for an identified purpose.” (para. 12)
At paragraph 15, the Court adopted the test in the English case of B & Q Plc. v. Liverpool and Lancashire Properties Ltd.,  E.W.H.C. 463, at 257 which stated that “provided that what the grantee is insisting on is not unreasonable, the question is: can the right-of-way be substantially and practically exercised as conveniently as before?”
Whether an encroachment results in a substantial interference requires an analysis of the terms of the grant and the nature of the encroachment. The determination will rest on the facts and the specific circumstances of the individual case. If the grant is very broad as it was in the case of Devaney v. McNab (1921), 51 O.L.R. 106, where the right-of-way was “for all purposes”, then an even a minor obstruction might constitute a substantial interference with the potential reasonable use of that right-of-way.
Finally, the Court dismissed the argument that encroachment by a permanent structure has a material bearing on whether the encroachment is actionable, absent actual, substantial interference with the granted right.
For assistance in evaluating the dispute over rights of way, or an estimate of costs, time and risk, please contact Richard Nishimura (Extension 229) or Douglas Menzies (Extension 222) of our office at 613-722-1313.
Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation matters, including property disputes between neighbours. This blog article by Richard Nishimura is for informational purposes only and does not constitute legal advice.