Executive Summary: Key Legal and Evidentiary Issues

• Parish applied to extinguish an easement burdening lots 17A and 17B benefiting the Respondents' property.

• Respondents did not oppose the application, file evidence, or attend the hearing.

• Court found no extinguishment by operation of law because the purpose of the easement had not permanently disappeared.

• Non-use and Respondents' silence established an implied release under common law principles.

• Extinguishment was supported by the minimal impact of removing lots 17A and 17B from broader easement rights.

• Application was granted without costs due to the Respondents' non-participation.

Facts of the case

The Corporation of the Anglican Parish of Shediac applied to extinguish an easement registered in 2014 over lands now identified as lots 17A and 17B, which were part of a larger roadway system owned by the Saint Martins Road Association Corporation #4. The easement had been granted to benefit the Respondents’ property, located on First Avenue, and was intended to provide uninterrupted access over the private roadways. Following the creation of lots 17A and 17B and their conveyance to the Parish, these lots had not been used as roadways, and the Respondents’ property was located several blocks away. The Respondents were served with the application but did not file evidence, attend the hearing, or express a position.

Outcome of the case

The Court considered whether the easement could be extinguished by operation of law or implied release. It held that extinguishment by operation of law was not available because the purpose of the easement — providing access — had not permanently disappeared, and foot access remained possible. However, the Court found that an implied release had occurred based on the Respondents’ non-use of lots 17A and 17B, their failure to respond to the application, and the limited impact of removing these lots from the overall easement rights. The Court granted the application, extinguishing the easement over lots 17A and 17B. No costs were awarded as the Respondents did not participate.