Court File and Parties

COURT FILE NO.: 10702/15 DATE: 2016/07/26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Josue Elisma and Amenide Sainte-Juste M. Scott Martin, for the Applicants Applicants

- and -

Charles Michael Geil and Lana Joyce Geil Sean D. Heeley, for the Respondents Respondents

APPLICATION HEARD at Welland, Ontario: April 19, 2016 The Honourable Justice T. Maddalena

DECISION ON APPLICATION

Background Facts

[1] The applicants are owners of 62 Burgar Street, Welland which is immediately adjacent to property owned by the respondents situated at 68 Burgar Street, Welland.

[2] The applicants purchased the 62 Burgar Street property on or about December 23, 2011 from Rose Scodellaro. Mr. and Mrs. Scodellaro, now both deceased, purchased the property at 62 Burgar Street on or about October 1963.

[3] The respondents are owners of 68 Burgar Street, Welland, having purchased it from Raymond and Stacey David on or about March 1, 2013. Mr. and Mrs. David purchased the property on July 31, 1979.

[4] The 68 Burgar Street property is located directly south of the applicants’ property at 62 Burgar Street, Welland.

[5] Both 62 Burgar Street and 68 Burgar Street were converted to “Land Titles qualified” on November 23, 1998 by the Land Titles Registrar.

[6] Both 62 Burgar Street and 68 Burgar Street share a mutual paved driveway.

[7] Approximately 7.5 feet of the paved driveway is located on the property of 68 Burgar Street. The balance of the driveway, approximately 2.3 feet, is located on the applicants’ property.

[8] 62 Burgar Street has a garage and extra parking spaces located behind the home and at the back of the property. The applicants and predecessors in title have always accessed the garage and parking spaces via the mutual driveway.

[9] On or about December 2014 the respondents erected a fence on the property line between 62 and 68 Burgar Street. That fence remains to this day.

[10] The respondents state, since the erection of the fence, the applicants have used the space on the opposite side of 62 Burgar Street to park and drive their vehicles to the parking and garage at the back of the property.

Position of the Applicants

[11] The applicants state that, because of the manner in which the house at 62 Burgar Street is situated, various owners and occupants of 62 Burgar Street have necessarily been required to use a portion of the driveway of 68 Burgar Street in order to access their garage and park their vehicles in the back of the property.

[12] The applicants state that various owners of 62 Burgar Street made use of the mutual driveway, likely since 1925 when the garage and house were built, but at least since 1963, all without the permission from the owners of 68 Burgar Street.

[13] However, on or about December 2014, the respondents constructed a fence on the property line of 68 Burgar Street which now precludes the occupants of 62 Burgar Street from accessing the parking garage and the parking areas at the rear of the property.

[14] The applicants claim entitlement to a prescriptive easement over a part of 68 Burgar Street that is approximately 7.5 feet in width together with the driveway on the 62 Burgar Street property. The applicants claim that evidence demonstrates that the use of the respondents’ driveway was continuous and for a period of 20 years, such that the use of the respondents’ land became “as of right”. Accordingly, the applicants request a declaration that they are entitled to a prescriptive easement over the northerly 7.5 feet of 68 Burgar Street commencing at Burgar Street and extending east towards the rear of the property for a distance of 98.8 feet.

[15] The applicants further request an order directing the Land Titles Registrar (Land Titles Registry Office #59) to amend the title to 68 Burgar Street, Welland to show it as subject to an easement and amend the title to 62 Burgar Street to show it as together with the easement.

Position of the Respondents

[16] The respondents submit that even with the presence of the fence, there is sufficient room between the fence and the home at 62 Burgar Street to drive a car down that portion of the driveway to access the garage and back parking. Particularly if the applicants paved their front lawn, a car would be able to drive down the driveway even with the fence in place.

[17] The respondents submit, further in the alternative, that the applicants are able to use the property on the opposite side of the home at 62 Burgar Street to access the back parking and the garage, which is what has been happening since the fence was erected in 2014.

[18] The respondents further dispute that their driveway is “reasonably necessary” for use by the applicants.

[19] Further, the respondents submit that the applicants have not met their onus to show continuous and without objection use by the owner for a period of 20 years prior to the property being transferred to Land Titles.

[20] The respondents state there is insufficient evidence to show that the use was continuous for over 20 years and insufficient evidence to show that the use was “as of right” and without the permission of the owners of 68 Burgar Street.

[21] Accordingly, the respondents dispute the existence of an easement and request that the applicant’s application be dismissed.

LAW AND ANALYSIS

[22] The four-part test necessary to establish a prescriptive easement is set out in the case of Barbour v. Bailey, 2016 ONCA 98. In para. 56, the Court indicated as follows:

To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or right-of-way:

i. There must be a dominant and servient tenement;

ii. The dominant and servient owners must be different persons;

iii. The easement must be capable of forming the subject matter of a grant; and

iv. The easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenement.

See Depew v. Wilkes (2002), 60 O.R. (3d) 499 (C.A.), at paras. 18-19.

[23] Further, in para. 57 of the Barbour decision, the Court indicated that “the reasonable necessity requirement for a prescriptive easement is fact-specific and must be applied in a flexible manner….”

[24] Further, in Barbour, para. 57, the Court noted quoting from Anger and Honsberger: Law of Real Property, 2nd ed. (Auora: Canada Law Book, 1985), at p. 927:

“What is reasonably necessary must be a flexible criterion and have reference to current social conditions and the prevailing patterns and trends of conduct. What today might not be regarded to be a reasonable amenity for the better enjoyment of a property might be regarded as a reasonable amenity tomorrow.”

[25] Further, the Court noted in para. 58, “There must be a connection between the easement and the normal enjoyment of the dominant tenement, as opposed to a personal right belonging to the dominant tenement owner: …”

[26] Further in para. 59 the Court indicated “easement rights must not be ones of mere recreation and amusement; the rights in issue must be of utility and benefit to the dominant tenement: …”

[27] In para. 60, the Court noted:

In addition to the above criteria, a claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years. …”

[28] Finally, in para. 90, the Court noted as follows:

“… The fact that an alternative route to Tiny Island existed to Mrs. Bailey and her predecessors in title for their use, including that they had water access to it by boat from their registered right-of-way, does not preclude a finding that their pedestrian use of Mr. Barbour’s property was reasonably necessary for the better enjoyment of their property….”

[29] With respect to part one of the four-part test that a dominant and servient tenement must exist, it is clear that the 62 Burgar Street property is the dominant tenement and 68 Burgar Street is the servient tenement.

[30] It is also clear that the dominant and servient owners are different owners.

[31] It is also clear that the easement can be described such that it could be the subject matter of a grant.

[32] The final criteria of the four-part test is whether the easement is “reasonably necessary” to the enjoyment of the 62 Burgar Street property, which is the dominant tenement.

[33] There is a survey prepared by Chambers and Associates Surveying Ltd. dated December 15, 2014.

[34] It is clear from the survey that the driveway of 62 Burgar Street alone is not wide enough at parts to permit passage of a motor vehicle. At the point of the concrete steps, the survey, for example, shows 5.8 feet plus or minus from the concrete steps to the fence.

[35] Although Mr. Sandy Scodellaro was examined and stated in his examination, “you could probably sneak a car in there”, I find it is not likely this could occur without hitting the concrete steps or the fence. By comparison, the property at 68 Burgar Street has a minimum 15 feet for its driveway from the fence line.

[36] The respondents also claim that the use of the driveway is not reasonably necessary since cars may enter 62 Burgar Street from the opposite side and are able to enter into the back of the property and access the garage.

[37] I find that this is not reasonable, given the fact that that particular side of 62 Burgar Street has no cut curb and has trees and bushes in between. It is not meant to park and drive cars through it. I find this would eliminate the proper enjoyment of the property by the applicants.

[38] Also, as the case law has stated, the fact that an alternate method could be available does not preclude a finding that the easement is “reasonably necessary”.

[39] The next part of the legal test requires an analysis of whether the enjoyment of the easement was continuous, uninterrupted, open and peaceful and without permission for a period of 20 years prior to the registration of Land Titles on November 23, 1998.

[40] The legal test is confirmed by the court in the case of 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONSC 672. In para. 57 of that case, the Court noted as follows:

To acquire an easement by prescription, the claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open, and peaceful, for a period of 20 years: see Henderson, at p. 383.

[41] Further in para. 98 of 1043 Bloor Inc., the Court noted as follows as well:

… Where a servient owner acquiesces in another person’s use of land for a long period of time, and does nothing to prevent that use though able to do so, the law reasonably concludes that the use has been rightfully enjoyed – enjoyed “as of right”. The law then protects this usage by granting a prescriptive easement.

[42] Further, once acquiescence to the use is established, then the evidentiary burden shifts to the owner of the servient tenement to show that there was, in fact, permission and not as of right.

[43] The onus shift is outlined in the case of Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, [2015] O.J. No. 3320. At para. 17, the Court stated as follows:

… Once the appellant had proven facts that support the inference of acquiesce in 20 years of use, the evidentiary burden passed to the appellant to lead evidence to rebut the inference by proving the use was by permission.

[44] Further, in the case of Mason v. Partridge, 2005 NSCA 144, the Court noted in para. 45 as follows:

… [O]nce there is proof of acquiescence in acts of user which are of such a character as to support a claim of right, the claimant has established that the acts were as of right unless the owner points to some “positive acts” on his or her part which either expressly or impliedly grant permission. Here, there was no evidence that the owner, at any time, took any positive steps to prevent the use in question or did anything else from which a grant of permission reasonably could be implied.

[45] In regards to all of this, I first note that the evidence presented by the applicants is not relevant since they acquired the property in December 2011 after the land was placed in the Land Titles registry system.

[46] Further, the firsthand evidence of the respondents is also not relevant since they acquired the property in March 2013, also well after the land was registered in the Land Titles system.

[47] Further, the affidavit of the respondents sworn the 29th October 2015 refers to the hearsay evidence of Mr. David, a predecessor in title. It is important to note there is no firsthand evidence from Raymond David who owned 68 Burgar Street from 1979 through to 2013.

[48] The respondents’ affidavit purporting to present the hearsay evidence of Raymond David goes to the very issues in dispute in this application. Thus, that evidence on an application is not admissible as hearsay in accordance with Rule 39.01(5) of the Rules of Civil Procedure, which states as follows:

An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.

[49] Thus, little or no weight is given to the hearsay evidence of Mr. David as referred to in the affidavit of the respondents.

[50] The only significant firsthand evidence in this application is that of Sante (“Sandy Scodellaro”). I find his evidence compelling. Sandy Scodellaro was examined on March 9, 2016. He is one of four children of the prior owners of 62 Burgar Street. His parents owned 62 Burgar Street from 1963 to 2011, and his mother, who was widowed at the time, sold it to the applicants.

[51] Sandy Scodellaro resided at 62 Burgar Street with his parents from 1963 to 1978.

[52] After he moved out of his parents’ property, he moved to a neighbourhood that was not far away and indicated in his evidence that he would return to visit his parents at least “two or three or four times a week”. (Page 9 – transcript)

[53] His father died in 1979. His mother continued to live in the home until she sold it in 2011 to the applicants.

[54] Sandy Scodellaro confirmed in his evidence that behind the house was a parking area and garage used for parking cars. The Scodellaros and their tenants would use the driveway located on the respondents’ side of the fence to access their parking. He stated that in order to access the back parking and the garage, it was necessary to access the “middle” of the mutual driveway in order not to hit the side steps of the house. (Page 34 – transcript)

[55] The side entrance to the house at 62 Burgar Street shows concrete steps that are 5.8 plus or minus feet to the fence erected by the respondents.

[56] Although Sandy Scodellaro said at one point in his examination that one could “sneak” a car through with the fence, I conclude it would be very difficult or impossible to do so without hitting the concrete curb or fence.

[57] Further, Sandy Scodellaro stated in his evidence that at the time he lived at or visited 62 Burgar Street, no one ever told him he could not drive down the driveway. (Page 35 – transcript)

[58] Further, no one ever prevented him or his family or tenants from using the driveway.

[59] Sandy Scodellaro’s father never requested permission from Mr. David or anyone to use the driveway. (Page 37 – transcript)

[60] In fact, he emphatically stated, “No such thing as have to ask him, i.e. Mr. David for permission”. (Page 38 – transcript)

[61] Sandy Scodellaro confirmed his father and he would assist with snow and ice removal and maintenance of the mutual driveway. He further confirmed that if someone was hired to clean the snow, each would pay one half of the bill. Further, with respect to winter snow removal, he would often shovel the whole driveway. (Page 40 – transcript)

[62] According to Sandy Scodellaro, the owners of 68 Burgar Street never took the position that the Scodellaros or their tenants could not use the driveway or that it was not mutual. It was never an issue of permission from the owner of 68 Burgar Street. (Page 41 – transcript) He and his father owned automobiles and used the mutual driveway. (Page 43 – transcript) He emphatically stated that his father “never sought permission from Mr. David with respect to the use of the driveway” and he was never aware of any objections to the use of the driveway.

[63] Further, there was no fence in the driveway from 1963, that is, from the time his parents purchased the property in October 1963 until his widowed mother sold it in December 2011.

CONCLUSIONS

[64] The applicants have met the four-part test outlined in Barbour.

[65] Based on the evidence, I conclude that the driveway was in use as a mutual driveway likely from the time the home and the garage at 62 Burgar Street were built in 1925 and throughout.

[66] However, from the evidence of Sandy Scodellaro, I accept that the driveway was used as a mutual driveway from at least 1963 onward to 1998 when the land was registered in Land Titles.

[67] I find there is no credible evidence to establish that permission was given by the owners of 68 Burgar Street at any time to rebut the presumption of continuous, uninterrupted, open and peaceful use of the mutual driveway. Further, the physical layout supports the conclusion that the garage and parking area of 62 Burgar Street are only accessible from the mutual driveway likely from 1925, but certainly since 1963 through to 1998.

[68] From the evidence of Sandy Scodellaro, I conclude the use of the mutual driveway was plain and obvious from at least 1963 until it entered into the Land Titles registration system in 1998.

[69] There is no evidence that permission was granted to use the mutual driveway, nor is there evidence as to when such permission could have been granted. Thus, I accept that the applicants have established the right to a prescriptive easement. The applicants are entitled to an order requiring the removal of the fence.

[70] The applicants, in submissions, submitted that historically the use of the mutual driveway was 7.5 feet but conceded in argument that 5 feet would be reasonably necessary for the proper enjoyment of the property.

Orders Made

[71] The following orders are made:

(a) There is judgment that the applicants are entitled to a prescriptive easement for ingress and egress of vehicles and pedestrians over the 68 Burgar Street property as follows:

the northerly five (5) feet of the 68 Burgar Street property commencing at Burgar Street and extending east towards the rear of the property for a distance of approximately 98.8 feet (“the easement”);

(b) An order directing the Land Registrar for the City of Welland, Land Registry Office No. 59 to amend the title to 68 Burgar Street to reflect that it is subject to the easement.

(c) An order directing the Land Registrar for the City of Welland, Land Registry Office No. 59, to amend the title to 62 Burgar Street to reflect that it is together with the easement.

(d) An order directing the respondents, at their own expense, to immediately remove the fence they have constructed on the easement.

COSTS

[72] Unless otherwise agreed, submissions on costs shall be in writing, limited to two pages, plus a Bill of Costs and any offers to settle. The applicants’ submissions are due by August 10, 2016, and the respondents’ submissions are due two weeks thereafter on August 24, 2016.

Maddalena J.

Released: July 26, 2016