Case information

Property — Servitudes — Lower court declaring applicants’ property encumbered by a right of way in favour of respondents’ property, as evidence demonstrated a servitude by destination of the owner over an access road on applicants’ property — Court of appeal dismissing the appeal, as it could not interfere with trial judge’s findings of fact and there were no errors in law — Whether application raises issue of public importance.

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The Bringinshaws sought access to their cottage property via a right of way on an access road on property owned by the Marajovs. The Marajovs denied the right of way existed.

The Bringinshaws were granted provisional and interlocutory relief by the Superior Court and the Majarovs were ordered to allow them unimpeded access to the road. The trial judge rendered the order permanent, declaring that the Majarovs’ lot was encumbered by a right of way in favour of the Bringinshaws’ lot, as the evidence clearly demonstrated that there was a servitude by destination of the owner and that the Majarovs were aware of it and had recognized it on several occasions. The court also awarded non-pecuniary damages against the Majarovs for their behaviour. The Court of Appeal dismissed the appeal and ruled that it could not interfere with the trial judge’s findings of fact and that the Majarovs failed to show any error in law.