Hydro One Loses Prescriptive Easement Claim Over Private Access Road

• Published date: 06 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Real Estate
• Law Firm: Gardiner Roberts LLP
• Author: Mr James R.G. Cook

Easements that are intended to provide utility companies with access to maintain and service the utilities they provide are common features of many properties in Ontario. If the easement is not registered on title, however, the use of the easement lands must be established under the same legal requirements for an easement, and rights may be gained or lost in the same manner.

In Hydro One Networks Inc. v. Amos Allen Shiner, 2022 ONSC 1893 (CanLII), Hydro One Networks sought a declaration that it held a permanent easement over the portion of a road on the respondent's property in Cloyne, Ontario. Hydro One sought the right to use the road without permission in order to access an easement in favour of the Hydro-Electric Power Commission of Ontario, as well as ancillary orders that would permit access and prevent the respondent from preventing access to the road.

In the 1930s, Hydro One's predecessor company built a transmission line and towers that passed through the property now owned by the respondent. In 1948, an easement was granted to Hydro One's predecessor company on the land upon which the transmission towers were built. Hydro One employees must access the hydro easement to service and maintain the transmission towers and trim the vegetation around them.

To reach the hydro easement, Hydro One employees traditionally travelled over the portion of a road on land now owned by the respondent. There was no question that the road was private and that different portions are owned by different property owners, including the respondent.

The respondent bought his property in December 2017. In 2020, he advised Hydro One workers that they were no longer permitted to use his portion of the road. In 2021, Hydro One workers observed a gate at one end of the road and a chain blocking access at the other end.

Hydro One then brought an application for the right to an easement over the road on the respondent's property. Hydro One's position was that they were required by the applicable regulations issued by the Ontario Energy Board to inspect, maintain, repair and construct transmission assets. Therefore, they required reliable access to the transmission line easement.

Hydro One argued that it had used the road over the respondent's property since at least 1966 and that its workers had never asked permission to use the road.

The respondent countered that there were several other access routes that Hydro One could use to get to the easement on which the transmission...