Whitmell v. Ritchie et al., (1992) 54 O.A.C. 239 (DC)

• Judge: Callaghan, C.J.O.C., Hartt and Montgomery, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: February 19, 1992
• Jurisdiction: Ontario
• Citations: (1992), 54 O.A.C. 239 (DC)

Whitmell v. Ritchie (1992), 54 O.A.C. 239 (DC)

MLB headnote and full text

Bert Edward Whitmell and Judith Ann Whitmell (appellants/applicants) v. James Ritchie, Gertrude Betty Ritchie, Alessandro Flaugnattie, Maureen Sandra Flaugnattie, Steven James Ritchie and Magdalena Ritchie (respondents/respondents)

(No. 546/90)

Indexed As: Whitmell v. Ritchie et al.

Ontario Court of Justice

General Division

Divisional Court

Callaghan, C.J.O.C., Hartt and Montgomery, JJ.

February 19, 1992.

Summary:

The Whitmells applied under the Road Access Act for an order closing an access road. The trial judge dismissed the application and ordered that the Ritchies were entitled to use the road between May 1 and November 1 for $250 per year. The Whitmells appealed.

The Ontario Divisional Court allowed the appeal.

Real Property - Topic 7087

Easements, licences and prescriptive rights - Rights of way - Extinguishment - Whitmell and Ritchie were adjoining lake front property owners - Ritchie used an access road over Whitmell's land over Whitmell's objections, notwithstanding knowledge that the licence under which his predecessor in title used the access road would not be renewed - The trial judge dismissed Whitmell's application under the Road Access Act to close the access road - The Ontario Divisional Court held that the trial judge erred in relying solely on s. 3 of the Act to dismiss the application - A closure order should have been granted upon consideration of s. 6 of the Act.

Cases Noticed:

Deluca et al. v. Paul Guiho Trucking and Construction Ltd. (1984), 4 O.A.C. 7; 46 O.R.(2d) 634 (C.A.), not appld. [para. 11].

Statutes Noticed:

Road Access Act, R.S.O. 1980, c. 457, sect. 1(a) [para. 5]; sect. 3 [para. 6]; sect. 6(1) [para. 8].

Counsel:

John L. Gignac, for the appellants;

John Weingust, Q.C., for the respondents.

This appeal was heard on February 17, 1992, before Callaghan, C.J.O.C., Hartt and Montgomery, JJ., of the Ontario Divisional Court.

The judgment of the Divisional Court was delivered by the Court and released on February 19, 1992.