Court of Appeal for Ontario
Before: Hourigan, Wilson and Madsen JJ.A.
Between
Richard J. Kubiniec Plaintiff (Appellant)
and
Andre Dy and Suzana Marija Mrakovcic-Dy Defendants (Respondents)
Counsel: Derek Sinko, for the appellant Michael W. Carlson, for the respondents
Heard: February 5, 2025
On appeal from the judgment of Justice D.J. Gordon of the Superior Court of Justice, dated March 24, 2023.
REASONS FOR DECISION
1This appeal involves an unfortunate dispute between neighbouring cottage owners on Crescent Beach, Lake Erie, regarding access to lands that have historically provided the appellant with more convenient access to the lake compared to what is available from his own property. On March 24, 2023, following a five-day trial, the appellant’s claims for adverse possession or a prescriptive easement over part of the respondents’ lands were dismissed.
2The respondents are the registered owners of Parts 1, 2, 3, and 4 of Reference Plan 59R-8662 and have owned those lands since 2016. The appellant owns the parcel immediately to the west of the respondents’ land and has owned his property since 1970. Both parties’ lands include waterfront access, but the appellant’s shoreline is rocky, marshy, and without a sand beach, rendering access to the lake less convenient. The appellant and his family have therefore for many years traversed Parts 3 and 4 of the respondents’ lands, to access the waterfront more conveniently. While that access had generally occurred without incident, conflict has arisen occasionally, most recently in 2016, when the respondents called the police seeking to have the appellant charged with trespass.
3In 2017, the appellant commenced the underlying action seeking a declaration of adverse possession or, in the alternative, a prescriptive easement over Part 4, in addition to a prescriptive easement over part of Part 3 (a footpath leading towards the beach). His position, in essence, was that since 1970, he and his family had used Part 4 to gain access to Lake Erie for swimming and boating and to enjoy their cottage property; that they had done so continuously and on an uninterrupted basis until 2016 without permission from the registered owner; and that this use was and is necessary for their better use and enjoyment of their own property. He tendered evidence that he had maintained Part 4, as well as a footpath on Part 3.
4In a comprehensive judgment, the trial judge dismissed the appellant’s claims, which included a review of the chain of title since 1887 that is not seriously contested on appeal. The trial judge also dismissed the respondent’s cross-claims for damages for trespass and a permanent injunction preventing further acts of trespass.
5On appeal, the appellant focused his oral submissions on the issue of the prescriptive easement over Parts 3 and 4 (the “disputed lands”). He advanced two relatively narrow arguments: that the trial judge erred in not finding that the respondents had acquiesced to the appellant’s use of lands for the required period of time, and relatedly failed to apply a “shifting onus” with respect to permission and acquiescence; and that he erred in his determination that the easements were not “reasonably necessary” to the appellant. We are unable to accept either argument, both of which seek to disturb findings of fact that were readily available to the trial judge and are owed deference by this court.
6The trial judge correctly set out the law regarding prescriptive easements, which requires that for a period of twenty years, the claimant demonstrate use as of right that is open, continuous, uninterrupted and without permission; that the servient owner must have acquiesced to the use; and that the acquiescence must be more than good neighbourliness: Barbour v. Bailey, 2016 ONCA 98, 345 O.A.C. 311, at paras. 56-63. It was agreed that the twenty-year period in this case concluded on December 18, 2000, with the conversion to the Land Titles system.
7The trial judge found as a fact, as was available on the evidence before him, that the appellant’s use of the disputed lands during the period in question was with the respondents’ predecessors-in-title’s tacit permission, an act of good neighbourliness consistent with the local community culture and a “long-standing tradition.” He stated, “I fail to see how such permissive use in these circumstances can lead to a proprietary right.” We do not accept the appellant’s argument that somehow the local culture as it related to Part 4 was different than in relation to Part 3. Nor do we accept the argument on the facts of this case, that the lack of objection amounted to acquiescence. The analysis of the trial judge demonstrates no error: see Barbour, at para. 62; Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al. (1968), 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293 (Ont. C.A.) at p. 199; English v. Perras, 2018 ONCA 649, at paras. 33-36, citing Mason v. Morrow (1998), 1998 CanLII 1663 (ON CA), 114 O.A.C. 194 (Ont. C.A.).
8The trial judge similarly made no error in his determination that the easement sought was not reasonably necessary for the appellant’s enjoyment of his property. As noted by the trial judge, that determination is a flexible criterion, dependent on the nature of the property and the purpose of the purported easement, and not merely for recreation or amusement. Convenience, he correctly noted, is not the test. The enquiry is fact-specific: Barbour, at paras. 57-58. The trial judge found, as was available on the evidence, that the appellant’s property is not landlocked, that while access to the lake in front of his own property is less convenient, “he still has the access needed,” and that the appellant can also use the “Friendship Trail”, another route north of the Crescent Beach properties that the appellant could use and would only add a few minutes to reach his destination. We find no error – and certainly no palpable and overriding error – in the conclusion that the easement is not reasonably necessary.
9There is also no error in the trial judge’s adverse possession analysis. He correctly stated that a claimant seeking possessory title must show actual possession; the intention to exclude the true owner from possession; and that the true owner was in fact effectively excluded from possession. Further, the possession must be open, notorious, constant, continuous, peaceful and exclusive: Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.), at p. 724; Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 567, leave to appeal refused, [1984] S.C.C.A. No. 232. His conclusion that the appellant neither intended to exclude nor did exclude the true owners from the disputed lands is amply supported by the record. As he stated: “[the appellant’s] use of the land falls far short of exercising ‘dominion’, a term he frequently used, or to establish possession.” There was no error in trial judge additionally observing that the appellant also did not exclude others in the neighbourhood from the disputed land.
10The appeal is dismissed. Costs are set at the agreed upon sum of $20,000, inclusive of disbursements and HST, payable by the appellant to the respondents.
“C.W. Hourigan J.A.”
“D.A. Wilson J.A.”
“L. Madsen J.A.”
