Law360 Canada (July 10, 2026, 9:15 AM EDT) --

Balvinder Kumar

This case deals with landlocked cottages and a dispute over a right-of-way within the Cressview Lakes Corporation.

The dispute arose between shareholders of a non-profit corporation who owned adjacent lots along a creek in the Cressview Lakes area of Caledon, Ont. The principal issue was the location and scope of the usage of the right-of-way in the form of an easement.

Factually, Cressview is a non-profit corporation that obtained property on a plan of subdivision in the area of Cressview Lakes. Cressview issued 16 certificates that granted their holders membership in the corporation and exclusive possession on one or more lots on the certificates. These lots are collectively known as “Cressview Lands.”

The Cressview Lands consist of 19 lots. The applicants/appellants, Paul and Roberta Bennett, are shareholders of the Cressview Corporation. Their membership is attached to Lots 45, 51 and 52 of the Cressview Lands. These lots were transferred to them in August 2013.

The respondent, Kimberly Chadwick, is also a member of the Cressview Corporation. Her membership is attached to Lot 46 of the Cressview Lands, which was transferred to her in November 2021. In June 1961, by a unanimous resolution of the shareholders, it was resolved that the then-owner of the share certificate entitled to exclusive possession of Lot 52 was granted access by using the roadway over Lots 45 and 46. According to this resolution, the access point to the right-of-way was on Lot 45, progressed over Lot 46 until it provided access to Lot 52.

In 1974, another agreement between the members of Lot 46 and Lot 52 granted the right-of-way across Lot 46 as access to Lot 52 as long as these lots exist. The 1974 agreement does not show where the right-of-way is located. The owners of Lot 52 used a driveway across Lot 46.

There has been a longstanding dispute between the Bennetts and Chadwick over the usage of the driveway. Chadwick erected a fence along her property line that prevented the owners of Lot 52 from enjoying access rights and interferes with their right-of-way over Lot 46. Cressview Corporation permitted the construction of the fence without adequate consultation, failing to disclose relevant corporate records and restricting the participation of the Bennetts in corporate affairs. Hence the dispute.

The Bennetts filed an application before the Ontario Superior Court of Justice (Bennett v. Chadwick, 2025 ONSC 3603).

This case revolves around the interpretation of the wording of the instruments creating the right-of-way, and whether the erection of the fence improperly relocated the right-of-way from the historical driveway, which is less convenient, narrowed the right of way, impaired access to their land-locked property and does not provide access in the same manner as the route historically used by the Bennetts.

The Bennetts sought three reliefs. One, a declaration that they have a right-of-way over property owned by Chadwick and Cressview Corporation. Two, an order requiring Chadwick and Cressview Corporation to remove the fence erected by them. Third, the Bennetts sought an oppression order against Cressview Corporation. Based on this, the issues before the application judge were where the right-of-way exists and the point at which the right-of-way is accessed. This means whether the right-of-way access is on Lot 45 or Lot 46 to get to Lot 52. The application judge relied upon two historical documents of 1961 and 1974, a sketch (that served as an illustrative aid), survey evidence, photographs and the submissions of both parties.

The application judge did not accept the submissions of the Bennetts and concluded that:


The Bennetts filed an appeal (Bennett v. Chadwick, 2026 ONCA 468). The appeal surrounds the disagreement about the legal source and location of the right-of-way. The appellate court revisited the fact findings and inferences drawn only to confirm that the Bennetts have not established any palpable and overriding error of the application judge.

The reasons for the appellate court decision were as follows:

1. On the issue of the route of the right-of-way: That the instrument creating the right-of-way, the 1961 shareholder resolution, established that it originated on Lot 45 and proceeded across Lot 46 to Lot 52. There was no admissible evidence demonstrating that the location of the right-of-way had ever been altered.

2. On the issue of the effect of the 1974 agreement: The existence of this agreement was recognized and its legal significance was considered. The agreement did not identify the location of any right-of-way and contains no description of the route to be followed across Lot 46. It also does not purport to terminate, relocate or replace the access arrangement that has existed since 1961. Thus, that agreement could not be interpreted as creating a new and distinct right-of-way different from the one already created by the 1961 shareholder resolution.

3. On the issue of the fence and access: The fence did not block the original right-of-way that the 1961 shareholder resolution created by express grant. This route was never changed, remained available and was capable of being exercised by vehicles, including a pickup truck. The Bennetts were not seeking access to Lot 52 itself but the continued convenience of using Chadwick’s driveway on Lot 46. Less convenience than before does not establish a right to modify the granted route.

4. On the issue of the oppression claim: An oppression claimant must demonstrate a reasonable expectation that was violated by corporate conduct that was oppressive, unfairly prejudicial to, or unfairly disregarded the interests of the claimant. The Bennetts identified a number of grievances concerning the conduct of Cressview. The evidence did not establish conduct that was oppressive, unfairly prejudicial or unfairly disregarded the interest of the Bennetts. The construction of the fence was not unfair and could not result in an oppression claim.

The Court of Appeal dismissed the appeal and concluded that:
The Court of Appeal found no basis for interfering with the application judge’s finding.

Balvinder Kumar practises real estate law (residential and commercial) and is a freelance writer and author with LexisNexis.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.