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#18979
Muskoka RIVERFRONT COTTAGE ROAD WAR revives past struggle against UNLAWFUL SHUTDOWN 2019/07/05 23:15  
A Muskoka resort owner's campaign of road shutdowns & alleged obstructions against offsite cottagers, appears to have reached the civil justice system once again.

In 2005 Ontario's Court of Appeal had punished the resort owner's attempts to pre-empt a different cottager Mrs Ramsay's easement rights under the Registry Act. This judgment ( cited below plus its policy & legislative aftermath ) led to a major re-examination of what it took to revitalize expiry-prone rights of ways under the Province of Ontario's Registry Act.

( Most of these environments are believed to be now converted into "qualified" land titles scenarios also subject to expiry unless renewed. But some get a "special deal" ( see below ). These are major building blocks of covenant-linked non-condo communities, but also have application to commercial property issues. )

But ole' habits on this Muskoka road may apparently die very hard . . .

A different group of five cottage owners has had to return.

They here obtain an injunction to halt a campaign of disturbing shutdowns & alleged obstructions attempting to undermine the sole land-based access for those cottages.

One such had been registration of a bizarre self-deed to purport to strip the easementers of the year-round travel rights here confirmed. ( Self-deeds can be notorious "bad faith" tools to undermine covenant rights. One such is torpedoed here )

Media records provide a shocking series of other background events.

The judgment withholds contempt of court measures sought for the extended series of obstructions.

Walker v. Coldin, 2019 ONSC 3255 issued May 28/19 http://canlii.ca/t/j0l83

Walker v. Coldin, 2019 ONSC 4089 issued July 3/19 http://canlii.ca/t/j1886

* *

An ONCA biggy from 2005 : 1387881 Ontario Inc. v. Ramsay, 2005 CanLII 23211 (ON CA) issued June 30 2005 http://canlii.ca/t/1l3dh

( this ain't legal advice : like it or not Ontario's civil courts at 2019 are loath to strike down long expired easements STILL "OPENLY ENJOYED AND ( CONTINUOUSLY ) USED" where a least SOME of the passage claimers are otherwise landlocked. Even where parcels have been converted to qualified Land Titles, the "easement protector" judges variously hang their hat on Registry Act Section 113(5) setting out certain exceptions to the ( otherwise merciless ) application of the Ontario Registry Act's Part III.

" Section 113(5) A (4) reads as follows: (5) This Part does not apply to, (a) a claim,
. . . . (iv) of a person to an unregistered right of way, easement or other right that the person is openly enjoying and using;. . ."

Judges may also complain "Otherwise it ain't fair" !

One can see later "Ramsay-type" OUTCOMES ( with rationales arguably still evolving ) at :

Hoggarth v Mgm Farms and Fingers Limited, 2015 ONSC 2494 http://canlii.ca/t/gh8j9

Gold v. Chronas, 2014 ONSC 6763 http://canlii.ca/t/gfdb8 upheld by ONCA in Gold v. Chronas, 2015 ONCA 900 http://canlii.ca/t/gmm6f )
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#19008
more WILD WEST SHENANIGANS from the Building Scheme universe ( Muskoka RIVERFRONT COTTAGE ROAD WAR) 2019/11/12 18:37  
Postscript :

R v Coldin rejects 3 of 4 of Mr. Coldin's ( Charter and Criminal Code procedural ) challenges as to police undercover surveillance activity.

The surveillance pertained to alleged arson & alleged attempted arson against cottagers. Unconvicted, Mr. Coldin is entitled to not only a presumption of innocence but fullest procedural safeguards.

This is not unlike some residual covenant disputes here and in U.S. states. Seems to include the legacy of a predecessor's Building Scheme with right of way easements on title for private road cottage lot buyers. Ontario's Court of Appeal has laboured in this particular vineyard before. A familiar terrain of "ole' habits sometimes die hard" ? . . .

maybe much more to come . . .

R. v. Coldin, 2019 ONSC 6216 issued Oct 25/19 http://canlii.ca/t/j31cl
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#19132
Has ONCA finally shut down the Muskoka RIVERFRONT COTTAGE ROAD WAR ? 2020/09/24 23:38  
not legal advice as usual.

( Certain otherwise landlocked Muskoka river-fronters have had to defend their road easement for years from unilateral interference by the servient owner as successor of the original development. Yes folks , it's the wacky wild west predating statutory condos /stratas / co-ops etc

This is also the latest iteration of what was once the Ramsay easement battle which saw Ontario's Legislature scrambling to counter certain marketable record / expiry etc title aspects served up by the courts . . )

Today ONCA Ontario's Court of Appeal soundly rejected a challenge of the 2019 injunctions & orders issued above.

The unsuccessful, now S.R.L. self-represented appellant is the servient ( burdened ) owner of a Muskoka riverfront resort out of which 5 sets of landlocked cottages have kept Bracebridge area lawyers busy for decades.

This upheld decision again suggests concern among top level judges that over a century of frequently haphazard severances & subdivisioning - particularly outside large urban areas - has left landlocking dangers & loose ends.

One interesting sidebar :

Is this what goes on in some lower courts in cottage country ? Interestingly ONCA discloses that the ONSC Superior Court judge had NOT reviewed the easement documents, and had even accepted the parties' apparent mis-characterization of the easements as being derived from prescription NOT registered instruments.

Arguably a stunning comment on ( withheld ).

ONCA unusually & directly retrieved the documents without objection by parties. It agrees with the lower court's conclusion . .

See what we might have to go through out here in the wacky Building Scheme universe ?

Walker v. Coldin, 2020 ONCA 603 issued Sep 24/20 http://canlii.ca/t/j9rvg
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#19133
construing a document without actually looking at it 2020/09/25 09:42  
from just-released appeal decision Walker v. Coldin, 2020 ONCA 603 issued Sep 24/20 http://canlii.ca/t/j9rvg :

“ . . . [7] The deeds pursuant to which ( the appellant servient owner ) 138’s predecessor in title granted the rights of way to the respondents’ predecessors in title were not produced in the application materials.

With the consent of the parties, this court ordered that the deeds could be produced on appeal.

The application judge’s conclusion that the rights of way were not seasonally limited is verified by the deeds produced on appeal. The deeds are unambiguous.

The rights of way are for both foot and vehicular traffic and contain no temporal or other restrictions or limitations.

Because the deeds are unambiguous, it is unnecessary to consider extrinsic evidence, such as the letter written in 2003 by a prior owner of the Resort Property or the previous injunctive orders.

We agree with the application judge that the easement is not seasonally limited. . . .” - unquote
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