Executive Summary: Key Legal and Evidentiary Issues

• Dispute over the existence and enforceability of a servitude by destination of the owner under Article 1183 C.C.Q.

• Whether a subdivision plan can serve as valid written evidence of a servitude without explicit mention in the deed of sale.

• Determination of whether the servitude was opposable to a donee who was allegedly a third party.

• Evaluation of civil liability for defamation and abuse of procedure stemming from conduct during the property dispute.

• Limits of appellate review where trial findings are based on facts and depositions not reproduced on appeal.

• Interpretation and application of articles governing publication of real rights and the concept of third-party protection.

Facts and procedural background

In Majarov c. Briginshaw, 2025 QCCA 534, the dispute arose between neighbouring property owners over a right of way across a strip of land (Lot 5-1) giving access to riverfront properties. Serguei Majarov acquired a large parcel of land in Low, Québec, in 2007, and subdivided it into six lots. One of these lots, Lot 5-1, was a narrow strip designated as a private road (chemin Pink) giving access to other lots. Over the years, Majarov sold five of the lots, including Lot 5-6 to Richard and Angela Briginshaw. Though their deed of sale did not mention a servitude, the parties acted for years as if a right of way existed.

In 2020, the Majarovs blocked the Briginshaws' access to the riverbank via the turnaround at the end of Lot 5-1. The Briginshaws obtained provisional and interlocutory relief from the Superior Court, which was later confirmed in a judgment that declared a servitude by destination of the owner existed in favour of Lot 5-6 over Lot 5-1. The trial judge also found the Majarovs liable for $75,000 in pecuniary and non-pecuniary damages, including defamation, inconvenience, and abuse of procedure. Serguei and Konstantin Majarov appealed.

Legal issues and appellate analysis

The Court of Appeal dealt first with whether the trial judge erred in recognizing a servitude by destination. The appellants argued that a subdivision plan could not serve as the required “writing of the owner” under Article 1183 C.C.Q., and that no such right was published as required under Articles 1182 and 2941 C.C.Q. The Court rejected these arguments, affirming that well-established jurisprudence (including Roberge c. Daigneau and St-Amour c. Major) allows a subdivision plan to constitute valid written evidence of a servitude if it clearly outlines its nature, extent, and location.

The Court further found that Konstantin Majarov could not be considered a third party protected from unregistered servitudes, as he had knowledge of the right of way since 2012 and had admitted its existence in documents. He had acquired Lot 5-1 as a gift from his father and acted jointly in managing the lots.

On the issue of damages, the Court upheld the trial judge’s findings that the appellants engaged in defamatory communications with neighbours and the municipality. Relying on Prud’homme v. Prud’homme, the Court emphasized that defamation does not require falsehoods—true statements made maliciously or without justification can also be defamatory. The trial judge found that the Majarovs’ letters served no legitimate purpose other than to damage the Briginshaws' reputations.

The Court also confirmed the finding of abuse of procedure, citing the appellants’ bad faith and reckless litigation conduct. As the appeal record contained no depositions, the Court could not reassess factual findings, which must stand unless there was a palpable and overriding error.

Final outcome

The Court of Appeal dismissed the appeal in full and ordered the appellants to pay costs. Although the respondents asked for $40,000 in additional damages for abuse of procedure on appeal, the Court declined to grant that request, noting that while the appeal lacked merit, it was not entirely frivolous.

This ruling affirms the legal sufficiency of subdivision plans to establish servitudes by destination and reinforces the obligations of landowners to respect established access rights. It also sends a strong message against abusive litigation and retaliatory conduct in property disputes.