Executive Summary: Key Legal and Evidentiary Issues

• Vern Emard sought a declaration that the Grassy Mountain Road (GMR) is a public road, or alternatively, that an easement of necessity exists over the GMR Lands to access his property.

• Multiple written and unwritten road use agreements between Devon Canada and adjacent landowners demonstrated ongoing proprietary control inconsistent with public road dedication.

• Evidence of road usage from 1993 to 2015 was purpose-specific and limited to commercial operators, local landowners, and occasional hikers — insufficient to establish long, continuous, uninterrupted public use.

• A late-filed affidavit from the previous owner of Kootenay Wood Preservers was excluded due to prejudice to the defendants, lack of explanation for the delay, and minimal probative value.

• No evidence was adduced to establish that Mr. Emard's property was "absolutely inaccessible" without the GMR, as required for an implied easement of necessity under Alberta law.

• The application was dismissed in its entirety, with costs submissions permitted within 45 days if the parties could not agree.

The dispute over Grassy Mountain Road

Grassy Mountain Road (GMR) is located north of the Town of Blairmore in southwestern Alberta. The road runs through the Municipal Districts of Crowsnest Pass and Ranchland No. 66, providing access to activities related to the Grassy Mountain Coal Project, private properties of adjacent landowners, and some local hiking trails. Vern Emard, the plaintiff, has owned property on Grassy Mountain since 1993 and had used the road without restriction until the dispute arose. The defendants, Mike Young and Benga Mining Limited (operating as Riversdale Resources, now known as Northback), own the majority of the lands over which the GMR runs. Since 2015, Northback has been asserting its privacy interest over the road by installing a locked gate, erecting signs indicating the road is private and warning against trespass, and entering into road use agreements with several adjacent landowners. Mr. Emard refused to enter any road use agreement with Northback, taking the position that the GMR is either a public road or that an easement runs over the GMR Lands that allows him to use the road to access his property.

The claims advanced by Mr. Emard

Mr. Emard brought an application before the Court of King's Bench of Alberta seeking three forms of relief: a declaration that the GMR is a public road; alternatively, a declaration that a common law easement of necessity runs over the GMR Lands; or, failing both, a direction that the matter proceed to trial for a determination of liability and damages. The hearing was conducted by way of a Special Chambers application on February 26, 2026, before Justice E.J. Funk. The case had a lengthy procedural history — Mr. Emard first filed his application in 2023, and between 2023 and 2025 both parties filed several affidavits, participated in questioning on affidavits, and agreed to a consent order regarding deadlines for filing and exchanging briefs for the February 2026 hearing.

The excluded affidavit evidence

Two weeks before the hearing, Mr. Emard located a phone number that led to the previous owner of Kootenay Wood Preservers (KWP), which had owned lands on Grassy Mountain for its logging operations from roughly 1990 to 1992 and had used the GMR (then owned by Devon) to access those lands. This individual, now residing in British Columbia, attended at a Notary Public to swear an affidavit regarding his knowledge of KWP's use of the road between 1990 and 1992. The Court refused to admit this affidavit, applying the test from Cornelson v Alliance Pipeline Ltd, which considers the length of delay, the explanation for the delay, and relative prejudice to the parties. Justice Funk found the delay was long, with no real explanation for the Applicant's discovery of the phone number just two weeks before the hearing. The prejudice to Northback was significant because the proposed evidence came after Northback had filed its brief and could not be tested through cross-examination or questioning. The affidavit's probative value was also minimal because the affiant spoke generally of his understanding of road use without stating the basis for that understanding, and the affidavit was silent regarding any inquiries KWP might have made about the private versus public nature of the road.

Whether the GMR was dedicated as a public road

The Court applied the common law test for public road dedication, which requires "cogent or substantial evidence" of an intention by the landowner to relinquish all proprietary rights over the road and to divest oneself of ownership, together with public acceptance of that dedication, as established in Nelson v 1153696 Alberta Ltd. The Court considered the factors identified in Twogee Developments Ltd v Felger Farming Co Ltd: agreements concerning road use; long, continuous uninterrupted public use; who uses the road; who built, maintained and controlled it; and whether there were signs, gates or other assertions of privacy. On the issue of road use agreements, the record revealed multiple agreements between Devon and adjacent landowners dating back to 1993, including a written agreement with the Pagonis family (for which Devon paid a yearly amount) and another with Raynelle Kyle and Gerry and Janet Smith in 2003 (later transferred to Donkersgoed Feeders Ltd in 2005 when it purchased the Kyle/Smith lands). These agreements demonstrated that Devon, as owner of the GMR Lands, treated the road as private property over which it could control access, impose conditions, and negotiate permissions. On the issue of public use, the Court found the evidence covered only 22 of the road's approximately 70-year existence, and during those years the road was primarily used by commercial operators, adjacent landowners and their guests, and occasional hikers and campers — uses that were purpose-specific and tied to private property access, not public passage. Relying on the decisions in Nelson, Cook's Road Maintenance Assn v Crowhill Estates, and Twogee, the Court concluded that these patterns of use were more consistent with the owner of GMR Lands granting permission or exercising tolerance, rather than an intention to dedicate. The GMR did not function as part of a broader network of roads, did not connect two public roads or two communities, was not a thoroughfare, did not lead to any public facilities, had no public amenities, and was surrounded by privately owned lands. The totality of the evidence was inconsistent with a finding that Devon intended to relinquish its proprietary interests and dedicate the GMR to the public.

Whether an implied easement of necessity existed

Mr. Emard alternatively argued for an implied easement of necessity, which under Alberta law requires proof of prior common ownership of both dominant and servient tenements, a severance of that common ownership, and that as a result of severance the dominant tenement became "absolutely inaccessible" without traversing the servient lands — mere inconvenience or increased difficulty does not suffice. Mr. Emard advanced two theories of historical common ownership. The first relied on the relationship between Devon and KWP, arguing that because no road use agreements between them were placed in evidence, Devon must have understood and accepted that the road was either open to the public or that KWP had an unregistered easement over Devon's GMR Lands. The Court rejected this, noting that the absence of evidence of agreements is not proof that no agreements existed, and that Devon did negotiate and enter into road use agreements with adjacent landowners after KWP sold its Easement Lands, which undermines Mr. Emard's assumption. The Court further noted that Mr. Emard failed to adduce evidence that KWP's Easement Lands were otherwise landlocked or inaccessible without access to the GMR. The second theory traced ownership back to Western Canadian Collieries and subsequent corporate successors who at various points owned both the GMR and Easement Lands, but the Court found these historical land transfer documents offered no evidence regarding available access routes at the time and provided no evidence that any parcel was left landlocked following severance. On the question of absolute necessity for current access, Mr. Emard himself acknowledged in his affidavit evidence that at least one alternate route to his property existed, involving approximately 35 kilometres of mixed or unmaintained roads with areas he described as "impassable" or "not suitable for his vehicles." The Court accepted his descriptions of inconvenience and increased difficulty but concluded that accessibility exists. The Court also noted that Mr. Emard failed to provide evidence establishing that alternate routes required trespass over the lands of others, with only counsel's oral submission that such routes "most likely" involved trespass — which the Court noted is not evidence, and the law requires evidence of actual trespass, not likely or possible trespass.

The ruling and outcome

Justice E.J. Funk dismissed Mr. Emard's application in its entirety on March 10, 2026. The Court denied the declaration that the GMR is a public road, finding that Mr. Emard failed to establish the first branch of the test — an intention to dedicate. The Court also denied the declaration of an easement of necessity, finding that Mr. Emard had not met the strict requirements for a grant of an implied easement of necessity over the GMR Lands. With both substantive claims denied, there was no basis to direct the matter to trial for a determination of liability and damages. The successful parties were the defendants, Mike Young and Benga Mining Limited (operating as Riversdale Resources / Northback). No specific monetary amount was awarded or ordered in the decision; however, if the parties are unable to agree on costs, they may make written submissions to the Court within 45 days of receipt of the Reasons, with submissions to be no longer than five typed pages, excluding attachments and authorities, and including a Bill of Costs.