The 15-year legal dispute between two downtown Newmarket building owners could be at an end after an appeals court ruling.
Ontario’s Court of Appeal ruled in favour of Buckley Insurance Group Jan. 27 in an appeal case brought forward by Olga Maria Paiva. The years-long battle involves disagreement over a tunnel on the Buckley property at 247 Main St. that Paiva must use to access shipping/loading docks at her property at 255 Main.
Paiva has insisted that Buckley is interfering with her easement rights and that the Town of Newmarket enabled this through an agreement signed with the property owner. While judges have found there is no substantial interference with those rights, they have ordered a permanent injunction to prevent Buckley Group from parking vehicles in the tunnel blocking Paiva’s access rights.
While the appeal judge ruled against Paiva's appeal, it also ruled against an appeal from Buckley Group to remove that injunction.
“I see no error in how the trial judge exercised his discretion with respect to the costs award. I would grant leave to appeal that order, but dismiss the appeal,” Justice Lorne Sossin said in the ruling regarding Paiva’s appeal.
The Buckley property at 247 Main runs from Main Street west to east, down across an elevation change and across the Holland River. Paiva’s property at 255 Main St. is two doors south of Buckley’s building, and also descends a level, but does not cross the river. Buckley’s building has a tunnel on the west side of the river, allowing for vehicular traffic to pass through the middle of Buckley’s building and access Paiva’s building, the sole means of Paiva's access to shipping/loading docks at 255 Main.
Paiva has been seeking court orders to stop construction and activity there. Legal disputes carried on for years, leading to a trial in May 2023 in which Paiva sought to bar Buckley from obstructing or altering the right-of-way, while Buckley attempted to stop Paiva from parking on a pad at 253 Main and to pay for the easement’s upkeep.
That trial judge found that while Paiva does have the right to uninterrupted right-of-way through the tunnel, Buckley did not substantively interfere with those rights, except in incidents where Buckley permitted use of the tunnel for parking. Paiva sought $210,000 in damages, which the trial judge dismissed.
The Town of Newmarket was also named in the lawsuit for permitting Buckley to make alterations to the tunnel, but the judge dismissed any liability for the town, after finding that such alterations were not a substantive interference with Paiva’s easement rights.
The trial judge ruled on an injunction against any parked cars in the tunnel. The judge ordered Paiva to pay legal costs to the town amounting to $76,670 and Buckley appellants were awarded $80,895 and $20,284 in disbursements for legal costs.
After reviewing "the extensive record of allegations" made by the Paiva appellants, he found that over 13 years of alleged obstructions, "only a handful of instances" impeded her easement rights. He concluded that these incidents, whether viewed individually or cumulatively, did not constitute substantial interference,” the ruling said.
Ultimately, the appeals court found the trial judge was correct.
“The trial judge did not err in setting out the scope of the easement and finding no substantial interference,” the ruling states.
The Buckley Group and Pavia both declined to comment on the case with the matter concluded.
Paiva attempted to argue it was the successful party due to the parking injunction and so shouldn’t have to pay costs, but the trial judge disagreed, which the appeals court backed, deciding the Buckley group was the more successful party in the trial for defending against the allegations of substantial interference.
However, the appeals court also dismissed the Buckley appeal of the parking injunction, finding it “adequately justified” to maintain Paiva’s access.
The appeals court made no order as to costs between the Paiva and Buckley Group but awarded the Town of Newmarket another $10,000 in legal costs from Paiva.