COURT OF APPEAL FOR ONTARIO

CITATION: Hydro One Networks Inc. v. Shiner, 2023 ONCA 346

DATE: 20230515

DOCKET: C70580

Doherty, Feldman and Trotter JJ.A.

BETWEEN

Hydro One Networks Inc.

Applicant (Appellant)

and

Amos Allen Shiner

Respondent (Respondent)

Reeva M. Finkel, Brendan Jones, and Ines Ferreira, for the appellant

Marc Kemerer, for the respondent

Heard: November 15, 2022

On appeal from the judgment of Justice Julianne A. Parfett of the Superior Court of Justice, dated March 28, 2022, with reasons reported at 2022 ONSC 1893.

Feldman J.A.:

Overview

[1]          Hydro One Networks Inc. (“Hydro One”) applied for a declaration that it holds a permanent easement by prescription over a portion of a road on the respondent’s land. That road gives Hydro One access to land over which it has a registered easement that contains its transmission lines and towers.

[2]          The transmission lines and towers were built in the 1930’s, an easement over that land was granted in 1948, and that easement was registered in 1950. Hydro One has used the road that is in dispute to access its transmission lines and towers. The issue before the court was whether that use was of sufficient nature and duration to meet the test for a prescriptive easement before the lands were registered under the Land Titles Act, R.S.O. 1990, c. L.5 and transferred into the Land Titles system in 2008.

[3]          The application judge declined to make the declaration. For the reasons that follow, I would allow the appeal.

Decision of the Application Judge

[4]          This appeal is from a judgment made on an application. The record before the application judge consisted of an original affidavit from Hydro One, a responding affidavit from the respondent Amos Allen Shiner, a number of further affidavits from Hydro One employees and former employees and from owners of neighbouring properties, and a further responding affidavit from Mr. Shiner. Only Mr. Shiner was cross-examined.  

[5]          The application judge made a number of factual findings from the record. Some of those findings are challenged on the appeal as constituting misapprehensions of the evidence resulting in palpable and overriding errors. I will address those in the Analysis section of these reasons.

[6]          As background, the application judge found that the respondent purchased property in 2017 at the address 152 Addington Road, Cloyne, Ontario. In the 1930’s, Hydro One’s predecessor company, Hydro-Electric Power Commission of Ontario (HEPCO), built a transmission line and towers that passed through the property then owned by the O’Donnell family. In 1948 HEPCO was granted an easement over the portion of the property that contains the transmission lines and towers. That easement was registered in July 1950.

[7]          The registered easement (the “Hydro Easement”) extends from Highway 62 to Highway 41 running south of the village of Cloyne. Its validity is not in dispute.

[8]          Hydro One employees require access to the Hydro Easement in order to service and maintain the transmission towers and trim the vegetation around the transmission lines. Traditionally, they travelled to the Hydro Easement over a road that traverses a number of private properties, including the respondent’s property. The respondent now objects to Hydro One’s use of the portion of the road on his property, and he has locked two gates at either end of the road, preventing access to Hydro One.

[9]          Under the heading: “Evidence”, the application judge states that Hydro One contends that it has used the entire road since 1966, and concedes that it is a private road, with different portions owned by different landowners. The disputed portion is owned by the respondent.

[10]       In June 2020, the respondent advised Hydro One workers that they were no longer permitted to use his portion of the road. In 2021, Hydro One workers observed a gate at one end and a chain blocking access at the other end.

[11]       Hydro One’s evidence is that its workers had never asked permission to use the road.

[12]       The respondent points to other access routes that Hydro One could use to access the Hydro Easement. Hydro One’s response is that the other routes are not passable by its equipment or would take them several hours out of their way. Hydro One points to its Transmission Licence and the Transmission System Code, both issued by the Ontario Energy Board pursuant to the Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sch. B, which oblige Hydro One to inspect, maintain, repair and construct transmission assets. As a result, it requires reliable access to the Hydro Easement.

[13]       The respondent’s position was that Hydro One has not used the road continuously since 1966, and only began using it recently and infrequently.

[14]       The application judge found that Hydro One had conceded that “its workers access the easement approximately every one to three years for a foot patrol and every six to eight years for brush clearing.”

[15]       The application judge described the positions of the parties. Hydro One’s position was that it had continuous, uninterrupted, open and peaceful use of the road without the owner’s permission for more than 40 years, giving it a prescriptive easement either under the doctrine of lost modern grant, or by s. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15.

[16]       The respondent’s position was that Hydro One had not met its onus of proof, that its use was not continuous, uninterrupted, open and peaceful, that there are several good alternative routes that Hydro One can use to access its easement, and that it had sought his permission to use the road and offered to pay him compensation for that use.

[17]       The application judge described the requirements for a prescriptive easement, for the application of the doctrine of lost modern grant and s. 31 of the Real Property Limitations Act. She determined that the issue was whether Hydro One “can meet the requirement that its use of the road was ‘as of right’ and continuous.”

[18]       The application judge accepted that there was evidence that Hydro One had used the road for more than 20 years prior to 2008 when the land was registered under the Land Titles Act. She referred to Coleman Boomhour, who was a previous Hydro One employee for approximately thirty years, but who did not provide an affidavit. A letter dated September 1, 2021, addressed to whom it may concern was attached to the respondent’s affidavit dated September 17, 2021. Mr. Boomhour confirmed that the road through the property now belonging to the respondent was one of the four access points that was used by Hydro One workers, although he did not use it frequently. She also referred to the evidence of a neighbour, Douglas Hunt, who had seen the road being used by Hydro One since at least 1966.

[19]       The application judge then turned to the issue of whether Hydro One has used the road “as of right” and “did not seek permission from either the previous or present owners of the Shiner property.” While Hydro One’s evidence was that it had never sought permission from the owners to use the road, the application judge found that there was evidence that Hydro One employees had sought Mr. Shiner’s permission in 2018. She therefore found that she could not “conclude that Hydro One’s attitude towards the road was that it could use the road ‘as of right’.”

[20]       The last issue was whether Hydro One’s use of the road was continuous. The application judge found that because Hydro One used the road infrequently, “at most once a year and probably considerably less frequently than that”, its use was not continuous within the meaning of that term as discussed in the case law. She found that Hydro One’s use was “occasional at best” and dismissed the application.

Evidence regarding Hydro One’s historical use of the road and the interaction between the parties after the respondent purchased the land that includes the disputed road in 2017.

[21]       The transmission lines and towers were erected in the 1930’s on a tract of land that passed through the property now owned by the respondent, but previously owned by the O’Donnell family from 1925. In 1948, Hugh O’Donnell granted an easement over the land where the transmission lines and towers were erected to HEPCO. The easement was registered in July 1950. HEPCO employees (subsequently Hydro One employees) accessed that easement over the private road which Hydro One says is called “Hydro Road”, and which is owned by the owners of the property it crossed, including the O’Donnell property.

[22]       A number of Hydro One employees filed affidavits, upon which there was no cross-examination, regarding Hydro One’s use of the road over time. Hydro One serviced its transmission lines and towers from its operations centre in the Village of Cloyne which is about 15 to 20 minutes’ drive from the respondent’s property over the Hydro Road.

[23]       Douglas Hunt owns the property adjacent to the respondent and has been associated with the property for his entire life. Mr. Hunt was 65 years old at the time he swore his affidavit dated January 18, 2022. The Hunt family has owned its property since the early 1900’s. Mr. Hunt saw Hydro One’s trucks on the road about twice a year since he first came to the property in 1966 (42 years before the property was transferred into the Land Titles system in 2008.)

[24]       David Akey, who had a 35-year career with Hydro One, used the Hydro Road in the late 1980’s with a crew to access the easement. During spring, summer and fall, crews used pickup trucks and off-road equipment, while in winter, they parked trucks and trailers at the end of Hunt Road and used all-terrain vehicles and snowmobiles.

[25]       Veronica Seymour, a land use agent at Hydro One, worked in the forestry group from 1997 to early 2008. She said that crews used the Hydro Road as needed on a number of occasions for work in the area of the Hydro Easement. At one time the crew she was in was spraying daily during all spring and summer. They also did brush cutting of the line using the Hydro Road for access. The forestry maintenance program for the transmission lines and towers requires foot patrols every 1 to 3 years to inspect the area around the transmission assets and brushing/right of way clearing every 6 to 8 years. Forestry also attends at other times to remove dangerous trees or brush when repairs or replacements are required. Other repairs include insulator replacement, U-bolt replacement, conductor and shield wire repairs, hardware repairs and tower member replacement.

[26]       Kevin Calhoun, a current security specialist with Hydro One, filed an affidavit dated August 5, 2021 and a responding affidavit dated January 14, 2022 based on his own knowledge as well as on information from other employees. He testified that over all the years of use of the Hydro Road by Hydro One employees with vehicles and equipment, no one from Hydro One or its predecessors ever sought permission to use the road.

[27]       The respondent’s property was owned by the O’Donnell family from 1925 to 2017. Larry and Sandra O’Donnell owned it from February 27, 2004 until they sold it to the respondent, James Michael Shiner, and Judith Anne Shiner on December 6, 2017. The property was transferred solely to the respondent on June 4, 2020. Larry O’Donnell had no issue with Hydro One using the Hydro Road. Once Hydro One contacted Larry O’Donnell to inform him that they were going to use the Hydro Road, but they never asked permission to do so. He also swore that the 2017 purchasers, including the respondent, were made aware that Hydro One had access to the Hydro Easement by way of the Hydro Road, and in cross-examination, the respondent acknowledged that both his own lawyer and Larry O’Donnell “made it clear” to him that Hydro One maintained its transmission line assets on the Hydro Easement.

[28]       After he bought the property, the respondent complained to Hydro One that some crew members had been spraying near his beehives, that Hydro One did not do enough to maintain the Hydro Road, and that some employees had been rude to him and treated him like a trespasser. He told Mr. Calhoun that Hydro One could not use the portion of the Hydro Road that crosses his property and that he intended to destroy it if Hydro One tried to use it. He also said that he planned to build a barn and a maple sugar shack on it, which would block Hydro One’s use. He further stated that he allowed others to use the portion of the Hydro Road on his property but would not allow Hydro One employees except for emergency access and then only with his permission.

[29]       Another employee of Hydro One, Curtis Young, testified that having worked for Hydro One for approximately 20 years, when the crew attempted to enter the right of way to perform insulator work in the summer of 2018, the respondent prevented them from using the road, saying that other Hydro One employees had damaged his property and hunters had left gun shells and other debris. He requested that Hydro One put up fencing and gates and deliver gravel for the road. Mr. Young testified that this request was to keep trespassers from the property and not to either make Hydro One ask for permission or allow the respondent to deny access. It was Mr. Young who installed the fences across the right of way and four gates were also installed by Hydro One. Hydro One installed locks on all the gates and the respondent was to install them as well to provide access to both parties.

[30]       Another Hydro One employee, Bruce Young, the superintendent of the TX Transmission Lines Civil, who worked for Hydro One for just under 36 years, also testified about the interaction with the respondent. He was copied on written correspondence with the respondent. He confirmed that there was no agreement that the respondent was to have sole control or that Hydro One would have to seek permission from the respondent to use the Hydro Road to get to the Hydro Easement. The installation of fences, gates, and a culvert and the delivery of gravel were contained in an agreement and a full and final release which were never signed by the respondent.

[31]       The documents that were emailed to the respondent reflect an agreement by the respondent to accept the provision of the gates, fences, gravel and a culvert in satisfaction of any claims for damage.

[32]       A further affidavit was provided by Blake Northey, a 39 year Hydro One employee and Senior Line Foreman. He attended the respondent’s property with his supervisor in the summer of 2018 to access the Hydro Easement. The respondent refused access, telling him it was because other Hydro One crews had not cleaned up after completing their work and hunters had left gun shells and other debris. Mr. Northey said he would take the concerns to his bosses.

[33]       Mr. Northey recommended installing a gate to keep the public out, not to keep Hydro One out. He never asked permission from the respondent to access his property.

[34]       The respondent filed two affidavits and was cross-examined. He attached a letter dated September 1, 2021 from Coleman Boomhour, a former employee of Hydro One, addressed to whom it may concern, which stated that the Hydro Road was used infrequently to access the easement. The respondent said that Hydro One had only used the road recently. The respondent also stated that to the best of his knowledge, Hydro One asked permission when it wanted to use the road. He attached his correspondence with Hydro One from September 25, 2018, which he interpreted as Hydro One stating it would enter into an agreement with him for the use and improvement of the road, and that it was through that arrangement that he granted Hydro One permission to change insulators and to paint towers. He also stated that Mr. Boomhour’s attached letter confirmed his understanding. Later a different Hydro One crew was rude to him so he denied them permission to use the road.

[35]       The email of September 25, 2018 from Bruce Froats, Land Agent of Hydro One, to Mr. Shiner, with copies to Barry Young, Blake Northey, Gary Morrow and Bruce Young all at Hydro One states:

Hi Amis, you requested Hydro One's commitments to you be put down in writing/formal agreement. Please see attachment outlining the details of Hydro One's (Blake Northey) commitments to you regarding access to your property.

As discussed with you, Hydro One Civil has committed to doing this work in the Spring of 2019. When all work has been completed we can date the agreement and sign it.

Please call Blake, if you find anything that is not correct surrounding the details with which you discussed.

Hydro One crews will be accessing the easement Monday Oct 1 2018 @ your property then heading West along corridor to change insulators.

Gary Morrow will be Supervising this Project, if you have any concerns, Gary can be reached @ [Omitted] or myself @ the # below. [Email Signature and Phone Numbers Omitted.]

[36]       The respondent summarized his position in para. 19 of his affidavit dated September 17, 2021:

To summarize, Hydro has rarely used the Subject Road and even then has only used it, to the best of my knowledge and experience, with the permission of the land owner. Thus there is no basis for a claim for a prescriptive easement, particularly one without compensation and indemnity. As it has promised to do so in the past, Hydro can enter into an agreement with me for the use of the Subject Road.

Issues on Appeal

[37]       Did the application judge err: 1) by misinterpreting the meaning of the requirement that the prescriptive use must be “continuous”? 2) by finding a) that Hydro One thought it needed permission to use the road in 2018, and b) that therefore Hydro One’s use of the road before 2008 was not “as of right”?

Analysis

(1)         Legal requirements for a prescriptive easement

[38]       Section 31 of the Real Property Limitations Act sets a 20-year period or a 40-year period for the creation of prescriptive easements. The section provides:

No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing..

[39]       Establishing a prescriptive easement under the doctrine of lost modern grant was recently described by this court in Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266, 156 O.R. (3d) 46, at para. 6 (“Balough (ONCA)”) as follows:

[40]       Under the doctrine of lost modern grant, an easement by prescription can be established by the owners of the dominant tenement over the affected portion of the servient tenement based on 20 years of continuous, uninterrupted, open and peaceful use of the land without objection by the owner of the servient tenement. The use must be “as of right” meaning that the owner of the servient tenement must have knowingly acquiesced to the establishment of the easement, not just granted permission or a license to use the land: see Carpenter v. Doull-MacDonald, 2017 ONSC 7560, 92 R.P.R. (5th) 6, at paras. 42-47, aff’d 2018 ONCA 521, 92 R.P.R. (5th) 47. Therefore, a prescriptive easement can be established after 20 years of continuous, uninterrupted, open and peaceful use without objection by the owner of the servient tenement if it was as of right, meaning without permission of the owner of the servient tenement. That permission could have been sought either orally or in writing during the 20-year period under the Real Property Limitations Act or pursuant to the doctrine of lost modern grant. However, under the Real Property Limitations Act, after 40 years, the right is absolute unless permission to use the land was given in writing during the 40 years.

(2)         Did the application judge err by misinterpreting the meaning of the requirement that the prescriptive use must be “continuous”?

[41]       The application judge adverted only to the need to prove 20 years’ use prior to 2008 in order to establish a prescriptive easement. She acknowledged that there was evidence of 20 years’ use of the Hydro Road by Hydro One, including the evidence of Douglas Hunt, the neighbouring property owner who “had seen Hydro One using that road since at least 1966.” I note that that evidence, which was accepted, established 40 years of use, subject to the issues of “as of right” and whether the use was “continuous”.

[42]       The application judge found there was no evidence that Hydro One used the road continuously within the caselaw meaning. She referred to three cases for the proposition that continuously does not mean infrequently or occasionally. In my view, the application judge erred in her interpretation of the continuous use requirement of the test for a prescriptive easement.

[43]       The application judge relied on the case of Carpenter v. Doull-MacDonald, 2017 ONSC 7560, 92 R.P.R. (5th) 6, aff’d 2018 ONCA 521, 92 R.P.R. (5th) 47 where the claim was based on one family using a passageway between houses once or twice a year. The court found that the other neighbour allowed this because they were friendly. There was no intention to grant or allow an easement. While the infrequency of the use contributed to the court’s conclusion in that case, the paragraph relied on by the application judge to describe the legal principles underlying this matter described “a landowners’ neighbourly accommodation” as insufficient to establish an easement. In other words, the court in Carpenter perceived the owner of the servient tenement as having consented to the infrequent acts by the neighbours, thus, preventing the establishment of an easement.

[44]       The second case relied on by the application judge was the lower court’s decision in Balogh v. R.C. Yantha Electric Ltd., 2019 ONSC 6748, 15 R.P.R. (6th) 131, aff’d 2021 ONCA 266, 156 O.R. (3d) 46 that crossing over the track in dispute once a year to cut down a Christmas tree was not continuous use. Again, the decision that there was no prescriptive easement established in that case turned on a number of factors, including that the use had been with permission and not as of right. The decision of this court upholding the original decision on appeal did not turn on whether the alleged use was continuous.

[45]       The third case referred to by the application judge is Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, 55 R.P.R. (5th) 171, where a prescriptive easement was established where the applicant and its predecessors had driven over the private right of way frequently for more than 20 years. The issue in that case was not whether the use was continuous and no comment was made on it by the court beyond describing the elements necessary to prove the existence of a prescriptive easement.

[46]       In order to establish an easement by prescription, the claimant’s use of the property over the 20-year period must be “continuous, uninterrupted, open and peaceful” and without objection by the owner of the servient tenement: Balogh (ONCA), at para. 6; Carpenter, at para. 43. All of these requirements work together to indicate a pattern of behaviour that was accepted by the owner of the servient tenement over a long period so that the user would come to rely on the right to that use. Whether the use is “continuous” is viewed in that context.

[47]       The following passage from p. 278 of Gale on Easements[1] has been quoted with approval in Axler et al. v. Chisholm (1977), 16 O.R. (2d) 665, at pp. 669-670 and in Creeggan v. Fijalkowski, 1990 CarswellOnt 5116 (Ont. Dist. Ct,), at para. 11:

[I]t is mainly a question of fact and degree whether the nature of a given enjoyment establishes an easement of an intermittent character or whether the enjoyment is so lacking in continuity as to be otiose. Thus it is not to be understood that the enjoyment of an easement must necessarily be incessant; although, in a great variety of cases, it would obviously be so such as in the case of windows, or rights to water. In those easements which require the repeated acts of man for their enjoyment, as rights of way, it would appear to be sufficient if the user is of such a nature, and takes place at such intervals, as to afford an indication to the owner of the servient tenement that a right is claimed against him – an indication that would not be afforded by a mere accidental or occasional exercise.

[48]       In Axler, Craig J. then concluded about the use (the off-season storage of a removable cottage dock on the adjacent lands) in that case:

In this case the user was intermittent but in my view, having in mind the nature of the user, this intermittent use would not of itself deprive the plaintiff of an easement by prescription.

[49]       It was incumbent on the application judge to view the evidence regarding the nature, frequency and pattern of use by Hydro One of the Hydro Road over the period of 40 years in order to determine whether it met the criteria to establish a prescriptive easement.

[50]       The application judge stated at para. 14 of the reasons that “[i]t is conceded by the Applicant [Hydro One] that its workers access the easement approximately every one to three years for a foot patrol and every six to eight years for brush clearing.” Later in the reasons, the application judge noted that the evidence of Hydro One’s affiants was that the road was used “at most once a year and probably considerably less frequently than that.”

[51]       These statements constitute a misapprehension of the evidence. First, Douglas Hunt’s evidence, which was accepted, was that he observed Hydro One vehicles accessing the right of way twice a year since 1966. There was further evidence from Ms. Seymour that when Hydro One was undertaking spraying operations from about 1997 to early 2008 that spraying would occur daily during the spring and the summer. The interaction with Mr. Shiner involved access in order to perform insulator work. There was also evidence of the types of vehicles used by Hydro One to access the easement and discussion of the need to have access to deal with emergency hydro situations as they arise.

[52]       The weight of the evidence before the application judge was of a pattern of use of the Hydro Road by Hydro One which was open, peaceful and uninterrupted from 1966 to 2018. Hydro One accessed its registered easement with vehicles, as needed, in order to maintain its transmission lines and towers. In the circumstances, the frequency and nature of the access was sufficient to satisfy the “continuous” criterion, within the meaning of the relevant caselaw.

(3)         Did the application judge err by finding a) that Hydro One thought it needed permission to use the road in 2018, and b) that therefore Hydro One’s use of the road before 2008 was not “as of right”?

[53]       There are two issues to be addressed here. The first is whether the application judge misapprehended the evidence or made a palpable and overriding error in finding that the 2018 agreement that Hydro One made with Mr. Shiner to install gates, fences and gravel indicated that Hydro One believed it required his permission to access the Hydro Road. The second is whether the interaction would have the effect in law of invalidating a prescriptive easement if one had been established prior to 2008 when the lands went into the Land Titles system.

[54]       As indicated, this matter proceeded as an application based on affidavit evidence. There was a serious factual issue in dispute but no trial of an issue was ordered. The letter from Mr. Boomhour was unsworn and no affidavit was provided by Mr. Boomhour. Merely marking a document an exhibit to an affidavit does not convert it into admissible evidence, particularly where it is tendered for the truth of its contents: L.M.U. v. R.L.U., 2004 BCSC 95, 25 B.C.L.R. (4th) 171, at para. 32. It was not admitted based on an analysis of necessity and reliability. By contrast, the evidence given by Hydro One employees was sworn and not challenged on cross-examination.

[55]       In that evidence, the Hydro One employees were consistent that they were seeking to accommodate and appease Mr. Shiner’s concerns regarding the use of his road by Hydro One and by hunters in order to have a good relationship, but they were not seeking his permission to use the road. Without cross-examination challenging that evidence, it was not open to the application judge to reject all of that evidence without explanation. There is nothing in the written correspondence that indicates that the provision of the gates, fencing and gravel was in exchange for the respondent’s permission to use the Hydro Road.

[56]       In any event, the issue before the application judge was whether a prescriptive easement had been established by Hydro One over the Hydro Road over a 20-year period without consent or over a 40-year period without written consent before 2008. There was no evidence of written or oral consent by the O’Donnell family at any time during their ownership from 1925 to 2017. The application judge erred in law by failing to find that Hydro One’s use of the Hydro Road over the prescriptive period was as of right. As a result, the prescriptive easement was established on the record before the court.

[57]       Finally, the availability of other access points to the registered easement does not alter these conclusions. There is considerable evidence in the record regarding other potential access points to the registered easement, and their efficacy. This evidence was not relevant to the declaration request as necessity is not a requirement for a prescriptive easement: Vivekanandan v. Terzian, 2020 ONCA 110, 443 D.L.R. (4th) 678, at para. 14; Caldwell v. Elia (2000), 30 R.P.R. (3d) 295 (Ont. C.A.), at para. 14.

Result

[58]       I would allow the appeal, and grant the declaration that Hydro One established a permanent prescriptive easement prior to 2008 over the portion of the Hydro Road located on the respondent’s property for the purpose of reaching the Hydro Easement to carry out Hydro One’s needs and obligations to inspect, repair, maintain and rebuild its assets on the Hydro Easement and to manage the vegetation and land thereon. I would also grant the request for an order requiring the respondent to remove all obstacles restricting Hydro One’s ability to access the Hydro Easement for the purposes noted above, and the permanent injunctions requested as ancillary orders in the Notice of Application.

[59]       I would not grant the request for the order directing the involvement of the Ontario Provincial Police or local police: see Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.), 1998 CanLII 1441, at para. 10.

[60]       I would order costs to the appellant fixed in the amount of $20,000, inclusive of disbursements and HST and costs of the application fixed in the amount of $15,000, inclusive of disbursements and HST.

Released: May 15, 2023 “D.D.”

“K. Feldman J.A.”

“I agree. Doherty J.A.”

“I agree. Gary Trotter J.A.”