Case information

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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.

Property — Immovables — Servitudes — Enclosed land — Right of way — Owner of land to which there was no access from public road seeking right of way on existing road — Alternative road considered unfit for intended use by owner of enclosed land — Whether Court of Appeal and Superior Court erred in law in applying arts. 997 and 998 of Civil Code of Québec with regard to burden of proving that land enclosed, in terms of inadequate, difficult or impassable nature of access from public road, and in presence of allowance road — Whether Court of Appeal and Superior Court erred in law in not considering limits imposed by Charter of human rights and freedoms — Civil Code of Québec, CQLR c. C-1991, arts. 997, 998 — Charter of human rights and freedoms, CQLR c. C-12, s. 6.

Under arts. 997 and 998 of the C.C.Q., the owner of land to which there was no access from the public road sought a right of way on an existing road that wound across a series of neighbouring properties. Some neighbouring owners contested the right of way, arguing that there was an alternative access road. However, the owner of the land to which there was no access argued that the alternative road was unfit for its use of the land, which included driving heavy-duty trucks. The owner therefore sought a declaration that its land was “enclosed land” and a servitude of right of way on the existing road.

The trial judge declared that the lot in question was enclosed, recognized a right of way on the existing road and ordered compensation for the neighbouring owners. The Court of Appeal dismissed the appeal of two owners who contested the right of way. It stated that, since the proposed alternative road was inadequate, difficult and impassable based on the intended use, it was clear that the lot in question was enclosed. The existing road was the most appropriate way out in light of the condition of the place, the benefit to the owner of the enclosed land and the lack of inconvenience to the owners of the servient land.