Executive Summary: Key Legal and Evidentiary Issues

• Theatre Network (TN) requested an easement of necessity to access CSIC’s land for completing the South wall of the Roxy Theatre.

• Legal test requires total inaccessibility to the land for its use or enjoyment; mere inconvenience is insufficient.

• TN had alternative access from both 124 Street (east) and the lane (west), disqualifying it under the strict necessity standard.

• The necessity was deemed self-created as TN knowingly designed the building requiring access to CSIC land without obtaining consent.

• Claims of safety risks were undermined by outdated reports and the City’s prior grant of an occupancy certificate.

• The court granted CSIC’s application for summary dismissal and dismissed TN’s application, awarding costs to CSIC.

Facts of the case

Theatre Network Society (TN) applied for summary judgment seeking an easement of necessity over property owned by CSIC Services & Holding Ltd (CSIC) to allow completion of the South exterior wall of the newly constructed Roxy Theatre. The original theatre had been destroyed by fire, and reconstruction commenced in 2019. TN argued that it was not possible to complete work on the South wall—such as removing formwork, preparing for waterproofing and insulation, and installing cladding—without accessing CSIC’s adjoining land at ground level, roof level, and in the airspace above.

TN asserted that the incomplete wall posed safety risks to the public and surrounding property and relied on a 2021 Group 2 Architecture report (the Ramsey Report) to support these claims. In response, CSIC filed a cross-application for summary dismissal of TN’s claim.

Legal framework and court reasoning

The court evaluated whether TN was entitled to an easement of necessity, which Alberta law only permits when land is “absolutely inaccessible or useless” without it. This strict standard excludes easements for reasons of convenience or efficiency. The Court cited:

• Nelson v 1153696 Alberta Ltd., 2011 ABCA 203

• Toronto-Dominion Bank v Wise, 2016 ONCA 629

• Condominium Plan No. 7810477 v Condominium Plan No. 7711723, 1997 CanLII 14869 (AB KB)

• Bairn Corporation v Gabert

Justice Donald Lee determined that TN’s land was not landlocked, as it could be accessed from both 124 Street to the east and via the rear lane to the west. The court emphasized that TN designed the new building despite knowing it lacked CSIC’s consent for land access. Thus, the claimed necessity was self-imposed.

The theatre had already been operating for several years, weakening the claim that access to CSIC’s land was necessary for the use and enjoyment of TN’s property. The court noted the Ramsey Report was over two and a half years old, and that no safety issues were identified in a 2023 engineer’s report (Elliot Report). Further, TN had been granted an occupancy certificate by the City of Edmonton, indicating the building met safety requirements.

Court's conclusion and outcome

The Court ruled that TN’s request did not satisfy the legal standard for an easement of necessity. TN’s design choices, made while the lot was vacant, caused the current access issue. The court found no legal basis—in common law or statute—to grant the easement.

Accordingly:

• TN’s application for summary judgment was dismissed

• CSIC’s cross-application for summary dismissal was granted

• Costs were awarded to CSIC for both the failed application by TN and the successful cross-application by CSIC

This decision was issued by Justice Donald Lee of the Court of King’s Bench of Alberta on February 26, 2025, following a hearing on February 3, 2025, in Edmonton. Appearances were made by Grayson Bateyko for TN and Janice Agrios K.C. for CSIC.