Court of Appeal for Ontario

Docket: C64854

Panel: MacPherson, LaForme and Roberts JJ.A.

Between

Carol Carpenter (Appellant) Applicant

and

Cynthia Doull-MacDonald (Respondent) Respondent

Counsel

Robert Kalanda, for the appellant

Sarah Corman and Hilary Brown, for the respondent

Heard: June 5, 2018

On appeal from: The order of Justice Paul Perell of the Superior Court of Justice dated December 19, 2017, with reasons reported at 2017 ONSC 7560.

Reasons for Decision

[1] The appellant appeals from the dismissal of her application for a declaration that she holds a permanent easement over part of the respondent's property. At the conclusion of the hearing of the appeal, we dismissed the appeal with reasons to follow. These are those reasons.

[2] The appellant and respondent own neighbouring houses, respectively at 11 and 15 Ferncroft Drive in Toronto. The appellant claims a right of easement over the passageway between the two houses that runs to the backyards of the properties. No easement is registered on title to 15 Ferncroft Drive. The appellant bases her claim on the historical use exercised by the former owner of 11 Ferncroft Drive over the respondent's property in order to carry out cleaning and repairs. She submits that the application judge erred in determining that this historical use of the respondent's property was not "as of right" but was instead granted by permission or licence from its former owner, and that the former owner had not acquiesced to such use by the appellant's predecessor.

[3] We do not accept this submission.

[4] The application judge carefully reviewed and applied the correct legal principles, including that a prescriptive easement requires the use of the property over which the easement is claimed to be "a claim of right which is continuous, uninterrupted, open and peaceful for a period of twenty years": see s. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15; and Henderson v. Volk, [1982] O.J. No. 3138 (C.A.), at para. 12. Moreover, the use or enjoyment of the easement "must not be permissive but, instead, as if the claimant had the right to the easement": 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, at para. 59.

[5] The application judge concluded that the historical usage of the respondent's property on which the appellant relies was only "modest, infrequent, and intermittent", and was permitted by the extension of the former owner's neighbourly good will to his fellow war veteran and neighbour of many years. This conclusion was based on the application judge's acceptance of the testimony given by the former owner of 15 Ferncroft Drive, William Tryon, who had lived at the property for almost 60 years. Specifically, Mr. Tryon testified that the historical usage of his property consisted of the former owner of 11 Ferncroft Drive coming onto the passageway perhaps once or twice a year to clean eaves troughs or windows, or service air conditioning lines. As a result, the application judge found that the appellant had not met her evidentiary burden of establishing an easement "as of right".

[6] As noted by the application judge, the threshold for meeting the criteria for establishing an easement is high. It is well-established that courts should proceed cautiously before finding that an easement exists because of the burden it places on a landowner's ownership interest without compensation. Moreover, it may discourage neighbourly accommodations and reward aggressive overreaching. (See: Henderson, at para. 21; 1043 Bloor Inc., at paras. 103-106.)

[7] The application judge's characterization of the occasional permissive historical usage of the respondent's property was open to him on the record. We see no error that would permit appellate intervention.

[8] For these reasons, we dismiss the appeal.

[9] The respondent is entitled to her partial indemnity costs of the appeal in the amount of $9,000.00, inclusive of disbursements and applicable taxes.

"J.C. MacPherson J.A."

"H.S. LaForme J.A."

"L.B. Roberts J.A."