A recent decision by the Ontario Superior Court of Justice has provided clarity on attempts to impose limitations or restrictions on the use of right-of-ways (ROW). This decision is of importance to Ontario cottage owners who rent their non-waterfront properties as they now have confidence that access to the beach from a deeded right-of-way access cannot be unreasonably limited to exclude their paying guests.

Fisher v. Saade, 2021 ONSC 1241

The applicant in the case, the Fishers, own waterfront property which is traversed by a ROW that is deeded to an adjacent, land-locked property owned by Mr. Saade. The Fishers attempted to restrict use of the ROW by Mr. Saade beyond what was outlined in the ROW, which provided that the ROW was for the “owner’s use”, claiming that Mr. Saade’s paid tenants’ use of the ROW was improper as the ROW was used for commercialized purposes and not for the “owner’s use” as outlined in the ROW. However, the court found that Mr. Saade, as well as his guests and paying tenants, are within their rights to use the ROW, indicating that reference to “owner’s use” of the ROW could not be narrowly interpreted to exclude paying guests or invitees, while also considering that cottages are often rented by owners. It is always important to understand what rights are granted under a ROW as restrictions are permitted and not all ROWs are equal, but this decision confirms that narrow interpretations cannot be used to unjustly limit use of the ROW. It should be noted that the court addressed Mr. Saade’s other use of the ROW, which included the installation of a ramp and dock was unacceptable. For more details: read the ruling.