Oakville (Town) v. Sullivan, 2021 ONCA 1
Loopstra Nixon was successful in defending the easement rights of the Town of Oakville ("Town") and Oakville Hydro that had been encroached upon by a citizen's pool amenities. At the application stage, Loopstra Nixon successfully argued that the erection of the pool amenities was in contravention of an express prohibition of the easement held by the Town and Oakville Hydro. The easement prohibits "the erection of any building or structure" within that strip of land and the pool amenities were found to constitute a building. The appellants failed to establish proprietary estoppel applied due to the existence of other structures and trees in the easement and were ordered to remove the pool amenities.
On appeal, the Court of Appeal upheld the Application Judge's decision, finding that there was an actionable encroachment on the easement. The Court of Appeal found that the erection of the pool amenities was outright prohibited by the easement indenture and that in itself, constituted a substantial interference with the rights of the Town and Oakville Hydro. The Court of Appeal did not accept that: the rights of the easement should be read down based on surrounding circumstances, e.g. the easement had been partially abandoned and proprietary estoppel precluded enforcement of the easement. As such, the appeal was dismissed. The appellants were ordered to comply with the application judge's order, removing the pool amenities from the easement.