Jaz Management Services Ltd. v. VBI Group Inc., 2013 ONCA 644

APPEAL BOOK ENDORSEMENT

1We agree with the application judge’s conclusion that the appellant’s evidence did not establish the requisite 20 year user of the alleged easement over the respondent’s parking spaces prior to the transfer to land titles in 2002. On its face, the affidavit filed by the appellant did not state the affiant’s personal knowledge of the use of the property prior to its acquisition in 1986. Contrary to the appellant’s submission before this court, the issue was highly contentious and the affiant stated no source of her information and no basis for her belief concerning the use to which the property was put before 1986. Her affidavit did not comply with rule 39.01(5) of the Rules of Civil Procedure and the application judge rightly rejected her evidence on this issue. The fact that she was not cross-examined on her affidavit did not make her evidence admissible.

2This was sufficient reason to dismiss the application. We agree with the respondents, however, that the evidence did not establish that the respondents’ parking spaces were being used by the appellant, its tenants and visitors, “As of right” – that is, without permission: see Kaminskas v. Storm (2009), 2009 ONCA 318, 95 O.R. (3d) 387 (C.A.). At its highest, the evidence is consistent with each party occasionally using the other party’s parking spaces, as a matter of convenience, and without either asserting or relinquishing any property right. This is not a use “as of right”, so as to create a prescriptive easement: 1043 Bloor Inc. v. 171404 Ontario Inc., 2013 ONCA 91.

3We see no error in principle in the costs award made by the application judge, nor was it plainly wrong and there is therefore no basis for appellant interference with that award.

4Accordingly, the appeal is dismissed and the application for leave to appeal costs is denied.

5Costs to the respondents fixed at $13,000.00, inclusive of disbursements and applicable taxes.