Executive Summary: Key Legal and Evidentiary Issues

• Dispute focused on whether Beley Point Farm Inc. held a registered, deeded easement or only an easement of necessity over the Smiths’ land.
• Historic title documents, plans, and statutory provisions on conveyancing and land titles were central to proving that the access right was a registered easement that had not expired.
• The respondents’ physical closure and obstruction of the original roadway raised the issue of substantial interference with a dominant owner’s right-of-way.
• Alleged verbal consent by the former owner to relocate or extinguish the easement was weighed against the Statute of Frauds requirement that interests in land be released in writing.
• The court examined its narrow statutory power to modify or relocate easements and whether moving the right-of-way to the new roadway would cause prejudice to the applicant.
• Remedies turned on whether the applicant was entitled to restoration of the original easement, nuisance damages, and costs, despite other neighbours accepting the new access route.

Facts and parties

Beley Point Farm Inc. owns a cottage property at 20 Beley Point Road in Seguin, Ontario. The property does not front on Highway 632 and can only be reached via a private road, Beley Point Road, which crosses land owned by the respondents, Susan and Leslie George Smith. The McLoughlins, who live in California, control Beley Point Farm Inc. and purchased the property through virtual means in 2020 during the COVID-19 pandemic. Their purchase from the estate of the former owner, Mary Anne Beley, completed on September 15, 2020, and was later transferred into the corporate applicant. In both transfers, the property description contained a registered easement that provided the only vehicular and pedestrian access to the land. The Smiths are long-time owners of the servient land. As early as 2016, they began planning to rezone their lands, create additional lots, and realign the access road to Highway 632. Their plan involved closing the old entrance and building a new one roughly 30 metres away, with a new internal roadway layout serving multiple lots.

The registered easement and title history

The dispute turned on the nature of the access right. The applicant relied on a registered easement created by express grant, which appears on title as a right-of-way for “Pedestrian and Vehicular Ingress and Egress and an easement for Telephone, Cable and Hydro Lines” over a specific part of the Smiths’ property, identified as Part 10 on a reference plan. This easement had been referenced repeatedly in instruments affecting both the dominant and servient tenements and was depicted on a registered plan. When the lands were converted into the Land Titles system in 2009, the right-of-way was carried forward and embedded in the parcel descriptions for both sides, in line with the Conveyancing and Law of Property Act and the Land Titles Act. The Smiths argued during the litigation that the easement had expired under the Registry Act because no notice of claim was registered within a statutory notice period. The court rejected this, holding that once the easement had been registered and then carried into Land Titles as an existing interest, it did not simply lapse; it remained binding. The Smiths’ own historical conveyance expressly made their title “subject to” a right-of-way over the relevant part, and the registered plan identified that 30-foot travelled right-of-way. Their planner’s correspondence with Ms. Beley and their lawyer’s later letter to the McLoughlins both treated the right as a registered, deeded easement, not a mere necessity.

Planning approvals and regulatory context

To implement the new roadway, the Smiths engaged with municipal and provincial authorities. They sought rezoning and consents from the Township of Seguin to create new lots, each with its own access, while maintaining access along Beley Point Road. The Township consulted with the Ontario Ministry of Transportation (MTO), because the access point connected to Highway 632. In 2016, MTO indicated it had no objection to the land division and easement structure so long as easements for the new lots and retained lands were registered and all access remained via Beley Point Road. In 2017, the Smiths sought permission from MTO to relocate the highway entrance. MTO eventually approved the relocation, subject to conditions that required: closure of the existing entrance and its restoration to original or better condition; issuance of an Entrance Permit; security for the work; and provision of legally deeded easements over the full length of the private road for all benefiting owners. In 2020, the Township approved the rezoning applications formalizing the new access configuration. Public notices were posted near the existing entrance and a public meeting was held; there is no evidence anyone, including Ms. Beley, opposed the rezoning, and she died shortly after the Township sent a Notice of Passing. Later that year, MTO issued an Entrance and Encroachment Permit, relying on the expectation that new deeded easements would be registered to match the new road alignment.

Dealings with the former owner and the Statute of Frauds

As part of their planning, the Smiths retained a planner, who wrote to Ms. Mary Anne Beley in September 2019. The letter acknowledged her existing right-of-way over the Smiths’ property and confirmed that she legally had free and unencumbered access over Beley Point Road. It advised that reconfiguring the right-of-way would require a lawyer to update deeds and that the Smiths would cover all costs, with their lawyer later guiding her through amendments when the time came. Mrs. Smith later testified that around this time, Ms. Beley verbally agreed to the relocation of the easement. However, there were no contemporaneous notes, no clear details of what was allegedly said, and—critically—no written document evidencing a release or amendment. The court held that the respondent landlords bore the burden of proving any consent or release and found that Mrs. Smith’s bare assertion was not sufficient. Moreover, even if the conversation occurred as described, the Statute of Frauds requires that the assignment, grant, or surrender of an interest in land be in writing and signed. A purely oral consent to extinguish or relocate a registered easement therefore had no legal effect. Ms. Beley never signed any deed or written release, and no lawyer followed up to amend her title before her death.

The purchase by Beley Point Farm Inc.

When the McLoughlins agreed to purchase the property in 2020, their solicitor sent a requisition letter noting that the land had no municipal road frontage and was accessible only via a private easement over other lands. The requisition demanded confirmation that the right-of-way was in good standing and undisputed, as well as details of maintenance obligations and any arrears. On closing, the estate trustees for Ms. Beley delivered a statutory declaration confirming that access was provided via an easement over private lands, that the easement was in good standing, and that there were no disputes regarding its use. The purchasers thus completed the transaction on the basis that they were acquiring a property with a clear, registered right-of-way over the Smiths’ land.

Construction of the new roadway and closure of the old right-of-way

After securing planning approvals and the MTO permit, the Smiths invested heavily in constructing and improving the new entrance and roadway, reportedly spending around $130,000 on the physical works, not including professional fees. The new entrance off Highway 632 and the new roadway alignment were built, while the original roadway was effectively shut down. The Smiths installed a guardrail, the old road was bulldozed and left to grow over, and it became impassable for vehicles. Other homeowners who had rights over the former entrance agreed to transfer their easements to the new roadway and now use the new access. The applicant was approached after its purchase. In June 2021, the Smiths’ lawyer wrote to the McLoughlins, expressly acknowledging that the Beley Point Farm Inc. property had the benefit of a right-of-way over the original (green-marked) alignment and stating that it was understood the applicant would release that right in exchange for a new easement over land shown in red. The letter contemplated simultaneous registration of the new easement and the release of the old one, with the Smiths paying legal costs if the same lawyer acted for all sides. The applicant refused. When Erica McLoughlin visited the property later that summer, she saw for the first time that the registered easement had already been blocked and physically transformed, and a new entrance and road stood in its place.

The parties’ competing positions

Beley Point Farm Inc. applied to the Ontario Superior Court for a declaration that it holds a registered right-of-way over the original route across the Smiths’ land and for an order requiring that right-of-way to be restored and made usable again. It also sought damages of $10,000 for nuisance, arguing that the unilateral blockage and forced redirection substantially interfered with its property rights and use of the land. The Smiths, in response, launched their own cross-application. They contended that the applicant had, at most, an easement of necessity, not a deeded and enduring registered easement, and that in any event the court should relocate the easement to the new roadway. In the alternative, they argued that the original easement had been extinguished under the Registry Act or through consent from the former owner. They emphasized that the new roadway is safer, paved, and wider; that the additional driving time is minimal (the applicant estimated about two extra minutes); and that all other affected neighbours had accepted the change. From their perspective, the relocation represented an overall improvement that should be confirmed by the court, with the old route remaining closed.

Was there a registered easement and was it extinguished?

The court first addressed whether Beley Point Farm Inc. had a registered easement or merely an easement of necessity. Relying on the wording of the instrument creating the right-of-way, the historic references on title and the reference plan, and the governing statutes, the judge held that this was a registered easement created by express grant that runs with the dominant land. Under the Conveyancing and Law of Property Act, such easements automatically pass with a conveyance unless specifically excluded. Under the Land Titles Act, once an instrument is registered and carried into the parcel register, it is effective according to its nature and intent and binds successors. Having found a registered easement, the court turned to whether it had been extinguished. Drawing on appellate authority, the judge noted that common-law extinguishment is limited to narrow categories, such as when the easement’s purpose has ended, its term has expired, it has been abused, or the dominant and servient lands merge. None of those circumstances applied. The court further considered statutory extinguishment and release. The Smiths’ argument that the easement had expired under the Registry Act failed because the right-of-way had moved into the Land Titles system as a subsisting, registered interest and now appeared in the parcel descriptions for both properties. As for release, the only evidence of consent was Mrs. Smith’s testimony about an informal conversation with Ms. Beley. The court rejected this as insufficient and, independently, held that any purported release of an easement must comply with the Statute of Frauds by being in writing and signed; a verbal agreement could not divest the dominant landowner of a registered access right. The court therefore concluded that neither Ms. Beley nor the applicant had ever relinquished the easement and that it remained fully valid and in force.

Substantial interference with the easement

The court next examined whether the Smiths had substantially interfered with the easement. It found that they had not merely made the easement less convenient but had effectively eliminated its use by closing the road with a guardrail, bulldozing it, and allowing it to become overgrown. The dominant owner could no longer travel over the land legally granted as a right-of-way. While the Smiths had constructed an alternative access and invited everyone to use it, the applicant had no defined legal rights over that new route. The judge drew on prior case law emphasizing that a servient owner cannot unilaterally deprive the dominant land of its deeded easement while substituting a different piece of land instead. In the court’s view, the Smiths had clearly and substantially interfered with the applicant’s registered easement by preventing any practical use of the original route altogether.

Should the court relocate the easement to the new roadway?

A key question was whether the court should exercise its statutory powers to modify or relocate the easement to reflect the new road that had already been built. Two Ontario statutes, the Conveyancing and Law of Property Act and the Land Titles Act, allow the Superior Court to modify or discharge conditions or covenants running with land, including, in practice, certain easement-like restrictions. However, the statutes do not specify in detail how the discretion should be applied. Case law has developed a restrictive test: the court must be satisfied that the modification will be beneficial to those principally concerned, and that the balance of convenience strongly favours the change. The jurisdiction is to be exercised with great caution and rarely where there is any real prejudice to the responding landowner. The Smiths argued that the new entrance and road were physically superior—wider, paved, safer, and used by all other neighbouring lot owners. They pointed out that there was no evidence the applicant’s property value had declined and emphasized that the additional driving time was minimal. The court acknowledged these advantages and accepted that, objectively, the new road might be “better” on several measures. Yet, from the applicant’s standpoint, the original easement remained more direct and aesthetically preferable, and—crucially—it was precisely the right-of-way they had purchased and that appeared on their registered title. The judge held that he could not say there was no prejudice to the applicant in forcing a relocation contrary to its wishes, particularly in a legal framework that provides no statutory compensation mechanism when a court unilaterally alters property rights. To grant the Smiths’ request would in effect rewrite the parties’ agreements and create uncertainty for all owners of easements who rely on registered rights.

Notice, conduct, and equities

The Smiths contended that notices of the proposed relocation had been posted in obvious places along Beley Point Road and that property owners, including the applicant, had failed to object at the time. The court acknowledged that public notices had indeed been posted, and that technically there had been opportunities to speak at the municipal level. However, the applicant’s ultimate beneficial owners lived in the United States and were not in a practical position to see roadside notices or attend local meetings. The judge stressed that, given the central importance of the right-of-way to access the cottage, the Smiths ought to have directly engaged with the applicant and secured its informed consent before carrying out construction that would block the registered easement, rather than notifying them after the new entrance was already in place. On the facts and equities as a whole, the court found that the Smiths’ unilateral actions were not justified and that the applicant was entitled to insist on the easement it had bought.

Remedies, nuisance claim, and costs

Having found a valid registered easement and substantial interference, and concluding that the statutory criteria for relocation were not met, the court granted declaratory and mandatory relief in favour of the applicant. It ordered that the Smiths must restore the original right-of-way, remove the guardrail and any other barriers, and refrain from blocking, altering, or otherwise interfering with the applicant’s use of that registered route. The court declined to comment on whether the new road must be closed; that issue was left for the parties to manage, and the Smiths’ cross-application to move the easement formally to the new roadway was dismissed. The applicant had also claimed $10,000 in damages for nuisance, premised on the inconvenience of the longer route and the disruption to its access. The court refused to award any monetary damages. It held that an “ever so slightly longer drive” to the cottage did not warrant a nuisance award of $10,000 or any other amount on the evidence presented. On costs, the judge held that the applicant was the more successful party and was presumptively entitled to its costs, subject to any settlement offers exchanged. However, the amount of costs was not fixed in the reasons. Instead, the parties were directed to exchange short written submissions and cost outlines following the release of the decision, after which the court would determine the quantum.

Overall outcome of the case

In the final result, Beley Point Farm Inc. succeeded in establishing that it holds a registered, enduring easement over the Smiths’ property and that this easement cannot be unilaterally extinguished or relocated by the servient owners. The court found that the Smiths substantially interfered with that easement by blocking and destroying the old roadway and that the statutory power to relocate such rights must be used sparingly and only when there is no real prejudice to the dominant owner—conditions not met here. Consequently, the Smiths were ordered to restore the original right-of-way and cease interfering with its use, while their cross-application to move the easement to the new roadway was dismissed. Beley Point Farm Inc. was recognized as the more successful party and is presumptively entitled to recover its legal costs, though the precise cost amount is to be set following further submissions, and no damages were awarded on the nuisance claim. As a result, there is no specific monetary award or fixed costs figure determined in this judgment in favour of the successful party.