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Prescriptive Easements

. Paleshi Motors Limited v. Woolwich (Township)

In Paleshi Motors Limited v. Woolwich (Township) (Ont CA, 2020) the Court of Appeal considered a case of prescriptive easements in favour of a municipality:
[9] The Paleshi property was converted to the Land Titles Registry system on September 16, 2002. To establish a prescriptive easement, Woolwich had to show it met the required criteria for the 20 years between September 16, 1982 and September 16, 2002. There was no evidence from anyone who owned the Paleshi property during the 20-year period, or from anyone associated with any owner, as to the owner’s knowledge of the existence of the watermain, or any arrangement that existed between the owners and Woolwich with respect to the watermain. The application judge was left to draw inferences from the circumstantial evidence and the documents filed on title to Lot 21 and documents referred to in those documents.
The Court of Appeal also endorsed [at para 10] this characterization of the elements of a prescriptive easement at the court below:
[19] To establish a prescriptive easement, the party claiming the easement must establish the four essential characteristics of an easement which are:
a) there must be a dominant and servient tenement;

b) the easement must accommodate the dominant tenement;

c) the dominant and servient owners must be different persons; and,

d) the easement must be capable of forming the subject matter of a grant
(Barbour v. Bailey, 2016 ONCA 98 at paragraph 55 and Kaminskas v. Storm, 2009 ONCA 318 (CanLII), [2009] O.J. No. 1547 at paragraph 27).

[20] In addition, the party claiming the easement must show that its use and enjoyment of the easement was continuous, uninterrupted, open and peaceful for a period of 20 years. The claimant must also establish that its use was “as of right” as opposed to by permission (Barbour v. Bailey, 2016 ONCA 98 at paragraph 60 and Kaminskas v. Storm, 2009 ONCA 318 (CanLII), [2009] O.J. No. 1547 at paragraphs 28 and 30).

....

[24] There are a number of policy considerations with respect to prescriptive easements including:
a) courts should tread cautiously before finding a prescriptive easement because to do so creates a burden on the servient owner’s land without compensation;

b) courts should be cautious about finding a prescriptive easement because to readily grant such an easement risks discouraging acts of kindness and good neighbourliness and may punish the kind and thoughtful neighbour while rewarding the aggressor;

c) courts ought reasonably to protect the dominant owners reliance interest where the usage has been only open and uninterrupted for many years and the evidence clearly shows the servient owner has acquiesced in that usage;

d) courts should not propound rules that rewarded dominant owners surreptitious behaviour and that discourage neighbours from approaching one another about potentially litigious issues
(1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 at paragraphs 103 to 106).
. Condos and Castles Realty Inc. v. Janeve Corp.

In Condos and Castles Realty Inc. v. Janeve Corp. (Ont CA, 2015) the Court of Appeal stated the following legal principles on when a prescriptive easement arises (prescriptive easements are similar to adverse possession over lands, but only grant an easement over them - typically a right-of-way):
[5] The appellant brought its application for a prescriptive easement on the basis that its predecessors in title exercised a continuous, uninterrupted, open and peaceful use of the private laneway as a right-of-way for vehicular and other traffic from the rear of its property westward to the public laneway, without the owner’s express consent, for over 20 years before the first registration of the property in the Land Titles System in 2003, taking into account s. 31 of the Real Property Limitation Act, R.S.O. 1990, c. L.15.

[6] The appellant’s legal burden was to “demonstrate a continuous, uninterrupted, open, and peaceful use of the land, without objection by the owner”, as the application judge noted at para. 38, citing 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007 (CanLII), 98 R.P.R. (4th) 21. He added:
The evidence required to establish title by prescription will vary with the nature of the user. Where the use is notorious and the owner of the servient tenement makes no objection, then his or her acquiescence to the use as a right of the dominant tenement can more readily be inferred.
[7] The application judge drew particularly on Henderson v. Volk, 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379, [1982] O.J. No. 3138 (C.A.). He quoted and relied on para. 20 of this decision, where Cory J.A said:
It is right and proper for the Courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant is established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor. It is reasonable to require those seeking to rely upon the Limitations Act or the doctrine of lost modern grant to establish by clear evidence both a continuous use and acquiescence in such use by the owner of the servient tenement.
[8] With respect, however, these words must be understood in the context. Henderson v. Volk involved pedestrian use of property between two residences. Cory J.A. explained that the distinction between vehicular and pedestrian traffic was significant. He said at paras. 18-19:
The evidence required to establish title by prescription will vary with the nature of the user. The use of a passageway by noisy delivery trucks would be hard to hide. The use of a lane for passage by tractor trailer rigs with motors roaring and air brakes hissing would be difficult to disguise. In those instances the owner of the servient tenement can readily be taken to know of the user of his property. If he makes no objection then his acquiescence to the use can readily be inferred.

It is different when a party seeks to establish a right-of- way for pedestrians over a sidewalk. In those circumstances the user sought to be established may not even be known to the owner of the servient tenement. In addition, the neighbourly acquiescence to its use during inclement weather or in times of emergency such as a last minute attempt to catch a bus, should not too readily be accepted as evidence of submission to the use.
[9] In my view, the inconspicuous nature of pedestrian traffic distinguishes Henderson from this case, which concerns vehicular traffic. In a case of straightforward vehicular use of a laneway as a right-of-way, the applicable principle is more direct, as Laskin J.A. pointed out in 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 (CanLII), 114 O.R. (3d) 241, at para. 105: “[T]he courts ought reasonably to protect the dominant owner’s reliance interest where the usage has been open and uninterrupted for many years and where the evidence clearly shows that the servient owner has acquiesced in that usage.”
. Hunsinger v. Carter

In Hunsinger v. Carter (Ont CA, 2018) the Court of Appeal sets out doctrine applicable to easement by prescription:
(1) Establishment of an easement by prescription

[9] An easement by prescription can arise either under s. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, or pursuant to the doctrine of lost modern grant. Both have the same four requirements, which were properly recognized by the application judge: i) a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land; ii) the properties cannot be owned by the same person; iii) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and iv) there must be 20 or 40 years’ (see: Kaminskas v. Storm, 2009 ONCA 318 (CanLII), 95 O.R. (3d) 387, at paras. 31-36) continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner. See: Henderson et al. v. Volk et al. (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.).

[10] After a property has been registered under the Land Titles system, a pre-existing prescriptive easement over the land can be established if the four criteria can be proved to have been met before the land was transferred into Land Titles: Carpenter v. Doull-MacDonald, 2017 ONSC 7560 (CanLII), at paras. 54-55.

(2) Ability to encroach

[11] Where an easement has been found to exist, an adjoining owner will be entitled to encroach on it unless that encroachment amounts to substantial interference with the use of the easement. In Gale on Easements, 19th ed. (London: Sweet & Maxwell, 2012), at para. 13-06, the authors quote the test from Cockburn C.J. in Hutton v. Hamboro (1860), 175 E.R. 1031 (U.K. Assizes):
[W]here the obstruction of a private way was alleged … the question was whether practically and substantially the right of way could be exercised as conveniently as before.
[12] In Weidelich, Doherty J.A. discussed how that test should be applied in the context of a right of way granted in a deed. He concluded at para. 15 that “[t]he dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose.” He adopted as correct the articulation of the test in the case of B & Q Plc v. Liverpool and Lancashire Properties Ltd., [2000] E.W.H.C. 463 (U.K. Ch.), as follows:
In short, the test … is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?
. Vivekanandan v. Terzian

In Vivekanandan v. Terzian (Ont CA, 2020) the Court of Appeal commented as follows on the law of prescriptive easements:
(1) Prescriptive easement

[8] The application judge correctly set out the essential elements that the respondents, asserting a dominant tenement and easement over the disputed driveway area, had to prove:

(i) there must be a dominant and a servient tenement;

(ii) an easement must accommodate the dominant tenement;

(iii) dominant and servient owners must be different persons; and

(iv) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

(See Depew v. Wilkes (2002), 2002 CanLII 41823 (ON CA), 60 O.R. (3d) 499 (C.A.), at para. 18; Barbour v. Bailey, 2016 ONCA 98, 345 O.A.C. 311, at para. 56.)

[9] In addition, the respondents, as the application judge also correctly observed, had to demonstrate that their predecessors in title engaged in at least 20 years of continuous, uninterrupted, open and peaceful use of the disputed portion of the driveway: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.), at pp. 382-83; Kaminskas v. Storm, 2009 ONCA 318, 95 O.R. (3d) 387, at para. 23. The use must not have been permissive: Henderson, at p. 383; Kaminskas, at para. 23. Further, since the Land Titles Act, R.S.O. 1990, c. L.5, s. 51(1) provides that possessory rights can no longer accrue once a property enters the Land Titles system, the “uninterrupted and unchallenged” use had to be for a period of at least 20 years prior to 2002: English v. Perras, 2018 ONCA 649, 425 D.L.R. (4th) 110, at para. 29.



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