Court of Appeal for Ontario

Date: 2020-02-12 Docket: C65686

Hoy A.C.J.O., van Rensburg and Roberts JJ.A.

BETWEEN

Niranjan Vivekanandan and Sara Azargive Applicants (Respondents)

and

Talyn Terzian and Kevin Gilmour Respondents (Appellants)

AND BETWEEN

Talyn Terzian Applicant (Appellant)

and

Niranjan Vivekanandan and Sara Azargive Respondents (Respondents)

Counsel: Shantona Chaudhury and Brodie Noga, for the appellants Sarah J. Turney and Daniel T. Richer, for the respondents

Heard: October 7, 2019

On appeal from the judgment of Justice Edward M. Morgan of the Superior Court of Justice, dated June 27, 2018, with reasons reported at 2018 ONSC 4052, 96 R.P.R. (5th) 228.

L.B. Roberts J.A.:

A. Overview

[1] This appeal involves a property dispute concerning possessory rights between next-door neighbours who live respectively at 45 and 47 Lawrence Crescent, in Toronto. Specifically, the dispute is over an approximate two-foot wide strip that runs between the two properties to which, according to the various surveys, the appellants have clear title.

[2] The appellants appeal from the application judge’s declaration that the respondents enjoy a prescriptive easement over the portion of the two-foot wide strip that abuts the respondents’ driveway and ownership by way of adverse possession over the portion of the disputed strip that runs into the respondents’ backyard and is enclosed by a gate.

[3] The application judge found that the respondents’ predecessors in title to 47 Lawrence Crescent had acquired a prescriptive easement over the portion of the disputed strip that abuts their driveway through over 20 years of open and continuous use without the permission of the former owners of 45 Lawrence Crescent.

[4] With respect to the backyard portion of the strip, the application judge determined that the predecessors in title to 47 Lawrence Crescent had erected a gate which effectively excluded the former owners of 45 Lawrence Crescent from entering the backyard without permission.

[5] In particular, the application judge relied on what he said was the evidence of the former owner of 45 Lawrence Crescent that he entered the disputed backyard area only with the permission of the owners of 47 Lawrence Crescent.

[6] The appellants submit that the application judge made palpable and overriding errors in his consideration of the evidence and in his application of the law governing prescriptive easements and adverse possession. The appellants also argue that the application judge erred in law by failing to consider whether the use of the driveway was by neighbourly accommodation.

[7] For the reasons that follow, I am of the view that the application judge erred and that his decision ought to be set aside.

B. Analysis

(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), 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), 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.

[10] Elements (i), (iii) and (iv) are satisfied. The appeal on this issue turns on the application judge’s consideration of the second factor in determining whether a prescriptive easement arose, that is, whether the alleged easement accommodated the dominant tenement.

[11] In considering whether the alleged easement accommodated the dominant tenement, the application judge had to determine whether the easement over the disputed driveway area was “reasonably necessary” to the better enjoyment of 47 Lawrence Crescent, the dominant tenement.

[12] While the application judge made this determination in relation to the backyard area, he failed to determine whether the alleged easement over the disputed driveway area was “reasonably necessary” to the better enjoyment of the respondents’ property. It therefore falls to this court to do so.

[13] I am not persuaded by the respondents’ submission that the application judge implicitly considered and found that the historic use of the disputed driveway area was reasonably necessary because he adverted to this factor in relation to the backyard area. In his analysis, the application judge found that the backyard portion of the disputed strip “cannot be said to be reasonably necessary for the enjoyment of 47 Lawrence”. However, a finding that the disputed strip in the backyard area was not reasonably necessary for the better enjoyment of 47 Lawrence Crescent is not a finding that the disputed strip in the driveway area was reasonably necessary for its better enjoyment.

[14] What does “reasonably necessary mean”? There is a distinction between what is meant by “necessity” and “reasonably necessary”. A prescriptive claim need have no element of “necessity”, namely, that use of the disputed portion is required for the owner of the dominant tenement to use his or her own land: Caldwell v. Elia, [2000] O.J. No. 661, at paras 13-14. However, there must be a connection between the easement and the dominant tenement, as opposed to a personal right. A personal benefit or an advantage to the owner of the dominant tenement does not rise to the level of an accommodation reasonably necessary for the better enjoyment of the dominant tenement. See: Depew, at para. 20; Barbour, at para. 58; Caldwell, at para. 19. What is “reasonably necessary” is fact specific and will depend on the nature of the property and the purpose of the easement. See Depew, at paras. 19, 24; Barbour, at para. 57.

[15] The respondents’ evidence concerning the historic use of the disputed driveway area consisted primarily of parking on the driveway close to the side door of 47 Lawrence Crescent, most notably for the purposes of unloading small children, groceries and other things from their cars. This involved swinging car doors over the disputed driveway area and stepping out of cars on to that same land.

[16] In my view, the predecessors in title’s evidence of historic use of the disputed driveway area falls short of establishing that it was continuous or permanent. Rather, it was tied to specific time-limited activities that by their nature are sporadic – children grow out of car seats and not every car trip involves grocery shopping or bringing things into the house. Moreover, it was clear that this use did not always require occupation of the disputed driveway area. While the predecessors in title always used their own part of the driveway, they did not always park over the disputed driveway area or park alongside the disputed driveway area and use it to exit their vehicles. As the photographs of the disputed driveway area reveal, the driveway was wide enough that the predecessors in title could park their cars on their own driveway without occupying the disputed driveway area.

[17] This was virtually the same kind of use that this court in Hodkin v. Bigley, 20 R.P.R. (3d) 9 (C.A.), confirmed was not reasonably necessary for the better enjoyment of the dominant tenement. In that case, the disputed strip also ran between the parties’ driveways. The prescriptive easement claimant complained that the erection of a fence on the disputed strip prevented her from using her driveway and accessing her garage. The trial judge’s rejection of this position was upheld by this court for the following reasons, at paras. 11 and 12:

I see no error in the trial judge's finding that "[t]he four or four and a half feet that the defendant owns ... is not critical or even significant to the enjoyment of the house by the owners of Number 11." The appellant still had substantial use of her driveway even after the respondent's land was fenced off.

The benefit that accrued to the appellant before the erection of the fence facilitated the appellant's parking but I agree with the trial judge that it cannot be said to accommodate the dominant tenement in such a way as to justify the creation of an easement. I see no merit in this ground of appeal. [Emphasis added.]

[18] In Caldwell, at para. 16, referring to Hodkin v. Bigley, this court described this kind of use as personal to the owner of the dominant tenement:

The use asserted in [Hodkin v. Bigley] involved the plaintiff swinging the door of her car out over the defendant’s land and her stepping out of the car on to that same land. This use would be personal to the plaintiff rather than an accommodation to her property and thus not ‘reasonably necessary’ to the use of the property … . [Emphasis added.]

[19] The conclusions reached in Hodkin and Caldwell are pertinent here. The historic use relied upon by the respondents may have been personally convenient to their predecessors in title, but it did not serve as a reasonably necessary accommodation to their property. As in Hodkin, the respondents’ predecessors in title still had substantial use of their driveway without using the disputed driveway area.

[20] In my view, since the alleged easement over the disputed driveway area is not reasonably necessary for the better enjoyment of 47 Lawrence Crescent, the application judge erred in finding that the respondents had demonstrated that a prescriptive easement arose. Given my conclusion on this point, it is not necessary to consider whether the predecessors in title’s use was the result of neighbourly accommodation.

(2) Adverse possession

[21] As the application judge correctly stated, to establish title by adverse possession, the respondents had the burden of proving:

(i) actual “open, notorious, constant, continuous, [and] peaceful” possession of the backyard portion of the disputed strip for the statutory period of ten years in accordance with s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15;

(ii) that such possession was with the intention of excluding the true owner; and

(iii) that the true owner’s possession was effectively excluded for the statutory period.

(See Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (C.A.), at p. 567, leave to appeal refused, [1984] S.C.C.A. No. 232; Barbour, at paras. 35-36.)

[22] The appeal on this issue turns on the question of whether the application judge made palpable and overriding errors in concluding that the appellants’ predecessors in title were effectively excluded from the backyard portion of the disputed strip for the statutory period. In my view, he did err by materially misapprehending the evidence of the appellants’ predecessor in title, Amyot Michael Aymong, who owned and occupied 45 Lawrence Crescent from October 1963 to June 2007.

[23] The application judge’s misapprehension of Mr. Aymong’s evidence appears first at para. 38 of his reasons: “Mr. Aymong deposed that he never entered the backyard of 47 Lawrence except with permission of whoever resided there at the time.” The application judge misstated the evidence related to this point again at para. 45 of his reasons: “There is no evidence, however, that Mr. Aymong ever accessed that eavestrough without seeking permission of the owner/resident of 45 Lawrence at the time.”

[24] This was not Mr. Aymong’s evidence. Mr. Aymong’s evidence was the opposite. In para. 16 of his affidavit, he expressly disputed as inaccurate the respondents’ evidence that he never entered the disputed backyard area without permission and deposed that he did so “freely, and at will, periodically throughout the years” that he lived at 45 Lawrence Crescent and that “[t]here was never any discussion with [his] neighbours about [his] entering through the gate, and [he] did so without any problems. [He] never sought permission to do so because [he] was accessing [his] property and [he] did not feel that [he] had to ask”. He deposed that the gate was installed with his permission, for the purpose of containing his neighbours’ children and pets, but that it was understood and accepted that he was always to be accommodated with access to that portion of his property. He further stated that “[he] used this area to reach [his] garage’s roof for re-shingling, as well as cleaning out the eaves troughs, and fixing the eaves”. Similarly, during his cross-examination, Mr. Aymong stated that he did not “recall ever being in a situation where [he] asked permission to go into their backyard”.

[25] The frequency of Mr. Aymong’s entries into the disputed area of the backyard is irrelevant. It is well established that the true owner of the disputed property need not demonstrate the same continuous use that the adverse claimant must show. The true owner is in constructive possession of the entire property even when in actual possession of only a part of it. As such, “[f]airly trivial acts of dominion”, such as the acts described by Mr. Aymong, may demonstrate that the true owner has not been excluded. See Barbour, at para. 45.

[26] The application judge’s material misapprehension of Mr. Aymong’s evidence was palpable and overriding since it was critical to his conclusion that Mr. Aymong was effectively excluded from the backyard portion of the disputed strip: see H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55. In my view, the evidence does not establish that Mr. Aymong was effectively excluded from his own property.

[27] As a result, the application judge erred in finding that the respondents had demonstrated adverse possession over the backyard portion of the disputed strip.

(3) Conclusion

[28] The application judge’s errors tainted his conclusions that the respondents had discharged their burden of proving a prescriptive easement and adverse possession. They are therefore not entitled to deference and I would set them aside.

[29] The respondents’ evidentiary onus is a heavy one. Traditionally, courts have been reluctant to impose burdens on or take away rights from property owners without compensation. The policy reasons behind this reluctance are clear: it would hardly promote good neighbourliness and would discourage acts of kindness: Henderson, at p. 384; English, at para. 30; and 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, 114 O.R. (3d) 241, at para. 83, per Gillese J.A.

[30] In my view, the respondents have not met their heavy evidentiary burden. The evidence in this case falls far short of clearly establishing that the respondents acquired any possessory rights over the appellants’ property.

C. Disposition

[31] Accordingly, I would allow the appeal and dismiss the respondents’ application. I would set aside the judgment and grant the declaratory relief requested in subparagraph 84, 2. a. of the appellants’ factum that Talyn Terzian’s title to 45 Lawrence Crescent alongside the driveway of 47 Lawrence Crescent and alongside the original detached garage is unencumbered by any possessory or non-possessory claims by Niranjan Vivekanandan and Sara Azargive.

[32] I would grant the appellants their partial indemnity costs of the appeal in the amount of $45,000 and of the applications below in the amount of $93,000, both amounts being inclusive of disbursements and applicable taxes.

Released: February 12, 2020 (“A.H.”)

“L.B. Roberts J.A.”

“I agree. Alexandra Hoy A.C.J.O”

“I agree. K. van Rensburg J.A.”