Karen Power

The appellants appealed the dismissal of their motion to set aside a default judgment.

The Court of Appeal allowed the appeal, noting that the motion judge provided no reasons and the respondent's claim relied on a standard mortgage clause that was not in the material before the court.

The default judgment was set aside on terms that a defence be filed within 30 days, with the writ of seizure and sale remaining in place but enforcement stayed.

The respondent used a portion of the appellants' driveway to park his car, relying on a prescriptive easement.

The application judge granted a declaration of a prescriptive easement, finding that a 40-year right had crystallized before the appellants' predecessor in title gave written permission in 1991.

On appeal, the Court of Appeal held that the application judge erred in calculating the time period under the Real Property Limitations Act, as the 20 or 40-year period must be the period 'next before' the commencement of the action.

The 1991 written permission defeated the statutory claim.

Furthermore, the doctrine of lost modern grant did not apply because the use was always with the oral permission of the predecessors in title.

The appeal was allowed and the application dismissed.