Case information
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38368
Esad Kokic, et al. v. Dale Clarke, et al.
(Ontario) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
v.
Counsel
Party: Kokic, Esad
This party is not represented by counsel.
Party: Kokic, Behra
This party is not represented by counsel.
Party: Clarke, Dale
Counsel
Ontario AgriCentre
100 Stone Road West, Suite 301
Guelph, Ontario
N1G 5L3
Telephone: (519) 780-4651
FAX: (519) 822-1583
Email: tjohnson@millerthomson.com
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Clarke, Lorraine
Counsel
Ontario AgriCentre
100 Stone Road West, Suite 301
Guelph, Ontario
N1G 5L3
Telephone: (519) 780-4651
FAX: (519) 822-1583
Email: tjohnson@millerthomson.com
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Summary
Keywords
Property — Real property — Easements — Application for declaratory relief granted — Principles applicable to easements and ancillary rights — Whether the case law is inconsistent and requires clarification.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The Clarkes own a building located at 101 St. Andrew St. W. It is attached to the adjacent building at 135 St. David St., which is owned by the Kokics. Under the title deeds, the Clarkes have an easement over part of the Kokics’ property, which provides interior access to the upper floors and roof of their own property. When the easement was first granted, the Clarkes’ predecessors in title had no other access to the third floor or roof of 101 St. Andrew St. W except through 135 St. David St., though this is no longer the case.
The Clarkes began renovations to adapt the property for commercial use on the first two floors and residential use on the third. The renovations include slightly widening the third floor door frame through which the easement passes to make it a fire exit, and replacing the doors on the second and third floor to comply with the relevant building and fire regulations. The Kokics interfered with the right of way, and the Clarkes applied for declaratory and injunctive relief. The application judge declared the easement valid and ordered the Kokics not to interfere with the Clarkes’ rights under the easement, including the right to make the renovations. The Court of Appeal dismissed the appeal.
Lower court rulings
Ontario Superior Court of Justice
125-17, 2017 ONSC 6485
Application for declaratory relief granted with costs
Court of Appeal for Ontario
C64649, 2018 ONCA 705
Appeal dismissed with costs
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2019-07-30 | Close file on Leave | |
| 2019-07-30 | Certificate of taxation issued to, Trenton D. Johnson | |
| 2019-07-30 | Decision on the bill of costs, in the amount of $1,285.59, Reg | |
| 2019-07-30 | Submission of the bill of costs, Reg | |
| 2019-07-09 | Reconsideration not accepted for filing, (letter from the Registrar) | |
| 2019-05-28 | Bill of costs, (Letter Form), Missing: proof of service (received 2019-07-19), Completed on: 2019-07-22 | Dale Clarke |
| 2019-05-28 | Letter acknowledging receipt of a complete motion for reconsideration | |
| 2019-05-13 | Motion for reconsideration of the application for leave to appeal, (Letter Form), Completed on: 2019-05-13 | Esad Kokic |
| 2019-05-13 | Notice of withdrawal, (Letter Form), Withdraws as counsel for the applicants, on consent., Completed on: 2019-05-13 | Esad Kokic |
| 2019-04-12 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2019-04-12 | Judgment on leave sent to the parties | |
| 2019-04-11 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C64649, 2018 ONCA 705, dated August 27, 2018, is dismissed with costs. Dismissed, with costs |
|
| 2019-02-25 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2018-12-10 | Applicant's reply to respondent's argument, (Book Form), Completed on: 2018-12-10 | Esad Kokic |
| 2018-11-29 | Certificate (on limitations to public access), (Letter Form) | Dale Clarke |
| 2018-11-29 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2018-11-29 | Dale Clarke |
| 2018-11-01 | Letter acknowledging receipt of a complete application for leave to appeal, FILE OPENED 2018/11/01 | |
| 2018-10-25 | Certificate (on limitations to public access), (Included in the application for leave to appeal) | Esad Kokic |
| 2018-10-25 | Application for leave to appeal, (Book Form), Completed on: 2018-10-25 | Esad Kokic |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Kokic, Esad | Applicant | Active |
| Kokic, Behra | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Clarke, Dale | Respondent | Active |
| Clarke, Lorraine | Respondent | Active |
Counsel
Party: Kokic, Esad
This party is not represented by counsel.
Party: Kokic, Behra
This party is not represented by counsel.
Party: Clarke, Dale
Counsel
Ontario AgriCentre
100 Stone Road West, Suite 301
Guelph, Ontario
N1G 5L3
Telephone: (519) 780-4651
FAX: (519) 822-1583
Email: tjohnson@millerthomson.com
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Clarke, Lorraine
Counsel
Ontario AgriCentre
100 Stone Road West, Suite 301
Guelph, Ontario
N1G 5L3
Telephone: (519) 780-4651
FAX: (519) 822-1583
Email: tjohnson@millerthomson.com
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Summary
Keywords
Property — Real property — Easements — Application for declaratory relief granted — Principles applicable to easements and ancillary rights — Whether the case law is inconsistent and requires clarification.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The Clarkes own a building located at 101 St. Andrew St. W. It is attached to the adjacent building at 135 St. David St., which is owned by the Kokics. Under the title deeds, the Clarkes have an easement over part of the Kokics’ property, which provides interior access to the upper floors and roof of their own property. When the easement was first granted, the Clarkes’ predecessors in title had no other access to the third floor or roof of 101 St. Andrew St. W except through 135 St. David St., though this is no longer the case.
The Clarkes began renovations to adapt the property for commercial use on the first two floors and residential use on the third. The renovations include slightly widening the third floor door frame through which the easement passes to make it a fire exit, and replacing the doors on the second and third floor to comply with the relevant building and fire regulations. The Kokics interfered with the right of way, and the Clarkes applied for declaratory and injunctive relief. The application judge declared the easement valid and ordered the Kokics not to interfere with the Clarkes’ rights under the easement, including the right to make the renovations. The Court of Appeal dismissed the appeal.
Lower court rulings
Ontario Superior Court of Justice
125-17, 2017 ONSC 6485
Application for declaratory relief granted with costs
Court of Appeal for Ontario
C64649, 2018 ONCA 705
Appeal dismissed with costs
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available