Esad Kokic, et al. v. Dale Clarke, et al.

(Ontario) (Civil) (By Leave)


Property - Real property, Easements - Property — Real property — Easements — Application for declaratory relief granted — Principles applicable to easements and ancillary rights — Whether the case law is inconsistent and requires clarification.


Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Clarkes own a building located at 101 St. Andrew St. W. It is attached to the adjacent building at 135 St. David St., which is owned by the Kokics. Under the title deeds, the Clarkes have an easement over part of the Kokics’ property, which provides 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 include 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 Court of Appeal dismissed the appeal.