COURT FILE NO .: 15-64235 DATE: 20170717 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN CHARLES BROWN and JOANNE MUGGETTE BROWN Applicants – and – KAREN SAVAGE Respondent
Joseph W.L. Griffiths, for the Applicants Ronald F. Caza and Lyndee Therrien, for the Respondent
AND BETWEEN:
COURT FILE NO.: 16-67511
KAREN SAVAGE Applicant – and – JOHN CHARLES BROWN and JOANNE MUGGETTE BROWN Respondents
Ronald F. Caza and Lyndee Therrien, for the Applicant Joseph W.L. Griffiths for the Respondents
HEARD at Ottawa: 23 May 2017
MEW j.
Reasons for Decision
[1] Two applications have been brought concerning the use by John Brown and Joanna Brown of what has been variously described as a laneway, driveway or lane that runs along the back of 4568 Northwoods Drive, Woodlawn, a property owned by Karen Savage.
[2] The Browns live at 4572 Northwoods Drive, which is next door to the Savage property. Both of the properties are located on a strip of land bordered, to the northeast by Buckham’s Bay (which is part of the Ottawa River) and, to the southwest, by Northwoods Drive, a public thoroughfare.
[3] Since 1995, when the Browns purchased their property, vehicular access to the property has been via the laneway running across the Savage property. However, there has never been a formal easement or other right-of-way entitling the Browns to such use.
[4] Karen Savage bought her property on 8 July 2013. She acquired the property from Arthur Papineau who, in turn, had acquired the property from the Nicholson family in 1987. She says that she did not know about the Browns’ use of the laneway until after she moved in.
[5] Rick Charlebois, whose family has lived at 4550 Northwoods Drive since 1945, provided a statement indicating that the laneway used by the Browns has likely existed as such since at least the 1960s.
[6] Ms. Savage felt that the Browns’ use of the laneway encroached on her enjoyment of her property. She had a lawyer write a letter on 14 January 2015 telling the Browns that she would no longer permit them to use the laneway and providing them with 60 days to arrange for alternative access.
[7] The Browns say that there is no other reasonable means of vehicular access to their property.
[8] There have been some unfortunate incidents since the lawyer’s letter sent by Ms. Savage. By-law officers from the City of Ottawa and the police have been involved. There have been charges for alleged violation of section 2(1) of the Road Access Act, R.S.O. 1990, c. R.34 and for mischief and obstruction of property contrary to section 430(1)(c) of the Criminal Code of Canada. Those proceedings are on hold pending the determination of these applications.
[9] Each of the parties seek orders from the court which would give effect to the rights they assert in relation to the laneway.
Issues
[10] The following issues emerge from the relief requested by the Browns and Ms. Savage respectively:
(a) Do the Browns own the laneway by virtue of adverse possession of it? (b) Have the Browns acquired the right to use the laneway by virtue of a prescriptive easement established under the doctrine of lost modern grant? and (c) Should a closing order be made in Ms. Savage’s favour in respect of the laneway, pursuant to section 2(1)(a) of the Road Access Act?
Adverse Possession
[11] Adverse possession is a long standing common law device by which the right of the prior possessor of land may be displaced by a trespasser, whose possession of the land goes unchallenged for the requisite period of time. A claim for adverse possession is dependent upon the claimant establishing that he or she:
(a) had actual possession of the land in question; (b) had the intention of excluding the true owner of the land from possession; and (c) had effectively excluded the true owner from possession throughout a ten year period.
[12] The ten year period begins to run when the “trespasser” starts using the land as possessor. Because of the conversion of the system of property registration in Ontario to Land Titles, which, in the present case, occurred on 30 June 1997, any claim for adverse possession had to have existed for at least ten years prior to that date.
[13] To establish actual possession of land, the acts of possession must be “open, notorious, peaceful, adverse, exclusive, actual and continuous”: McClatchie v. Rideau Lakes (Township) 2015 ONCA 233 at para. 11.
[14] The record indicates that the Browns, and before them, the previous owners of their property, Jules and Aloha Lafrance, used the laneway to access their home. According to Charles Brown, he had been told by Madame Lafrance, prior to her death, that “they all used [the laneway] year-in, year-out”.
[15] Mr. Papineau, Ms. Savage’s predecessor in title, said that he had understood that the laneway was needed by his neighbours to access their property. He believes that he signed some type of document that stipulated that he was “obliged to leave the laneway accessible to the people that owned the other cottages”. However, no such document has materialised.
[16] According to the Browns, during their ownership of their property, they maintained the laneway. In particular, they would snow blow the laneway in the winter, add gravel as necessary to fill in potholes and cut the grass as required in spring and summer.
[17] Although Mr. Papineau had originally bought his property as a summer cottage, between 1989 and 1995, he winterized his cottage and began residing there year round. He, too, says that he was involved with maintenance of the laneway, clearing it of snow, and, on one occasion, resurfacing it.
[18] Mr. Papineau does, however, acknowledge that the Browns also maintained the laneway, particularly in the last couple of years he was there, because he could no longer do it. Yet when the Browns asked Mr. Papineau if they could pave the laneway, he declined.
[19] At the time the Browns moved in, the laneway was also used by the owners of another property, known as the Girling property, for access to their property. Ironically, sometime after the Browns took up residence, it was the Browns who ended this arrangement, initially by placing building materials, an engine block, debris and other scrapings and parking vehicles at the Girlings’ point of access and, later, by doing excavation work. The owners of the Girling property were eventually forced to grade an alternative access route to their property and to build a parking pad, no doubt at their cost.
[20] It is unclear from Mr. Papineau’s evidence whether he understood that there was a right-of-way in existence at the time of his purchase or whether he simply acquiesced to the use of the laneway by the owners of the Girling property, as well as the Browns and their predecessors.
[21] While it does appear that Mr. Papineau believed that others could use the laneway, the pertinent question is whether the Browns and their predecessors had “exclusive” use of the laneway for the requisite period of time to establish adverse possession.
[22] The evidence that Mr. Papineau cleared the laneway, resurfaced it and was involved, to some extent at least, with repairs of the laneway, undermines the argument that the Browns had exclusive use of the laneway.
[23] Furthermore, it is clear that until the Browns prevented other neighbours from using the laneway, it was not just the Browns who were using the laneway as a means of access to their properties. Although “exclusive” use does not necessarily require physical exclusion of the owner or others, the claimant must be able to demonstrate an intention to “exclude the owner from such uses as the owner wants to make of his property”: Ewing v. Goth 2010 ONSC 1098 at para. 60.
[24] While the use by others would have had some impact on the true owners’ use of the land, there is nothing in the evidentiary record that would suggest that the true owners could not or did not use the laneway themselves. To the contrary, Mr. Papineau’s evidence was that he was never precluded from using the laneway himself and, indeed, crossed the laneway to access his own parking.
[25] The record falls well short of establishing that the true owner of what is now the Savage property was excluded from possession of the land throughout the requisite ten year period.
[26] The Browns’ claim based on adverse possession is therefore rejected.
Prescriptive Easement
[27] An easement may be obtained by prescription either through application of the doctrine of lost modern grant or pursuant to statute (section 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15). For the purposes of these applications, the existence of a prescriptive easement over the laneway was argued on the basis that, if one exists, it would be through operation of the doctrine of lost modern grant.
[28] The doctrine of lost grant is a common law “theory” that holds that where it is found that there has been an equivalent to adverse possession for more than 20 years, it ought to be presumed to have originated lawfully in a grant at the time when the enjoyment began. The deed granting the easement is treated as if it had been made but then lost. The doctrine will not be invoked where it is shown that the use was by permission of the owner of the servient tenement: Smith v. MacGillivary (1908), 5 E.L.R. 561 (N.S.S.C.).
[29] The availability of a prescriptive easement is, like adverse possession, quite limited. Furthermore, the acquisition of easements by prescription over property in the land titles system has been abolished: Land Titles Act, R.S.O. 1990, c. L.5 S.51: 1043 Bloor Inc. v. 1714194 Ontario Inc. (2013) 2013 ONCA 91, 114 O.R. (3d) 241 (C.A.) at para. 92.
[30] A claimant seeking to establish a prescriptive right must demonstrate that use was exercised without violence, secrecy or permission: 1043 Bloor Inc. v. 1714194 Ontario Inc. (2013), 2013 ONCA 91, 114 O.R. (3d) 241 (C.A.) at paras. 94-96.
[31] Where use, in this case of the laneway, is by permission, or on the consent, of the servient owner (Ms. Savage and her predecessors), it cannot be said to be “as of right”: 1043 Bloor Inc., at para. 96.
[32] Gillese J.A. in 1043 Bloor Inc. explained the usage of the term “as of right” for the purposes of prescriptive easements in these terms at para. 98:
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.
[33] As previously discussed, there is evidence that the Browns have not enjoyed unfettered use of the laneway. Mr. Papineau declined their request to pave the laneway. On another occasion, the Browns were requested to, and did, move a boat that they had parked on the laneway. Mr. Papineau’s actions show that the Browns’ use of the laneway was neither “uninterrupted” nor “unchallenged”.
[34] The claim for a declaration of prescriptive easement therefore fails.
Should a closing order be made?
[35] It does not automatically follow that, in the absence of an ownership interest in the laneway or a prescriptive easement in favour of the owners of the Browns’ property, Ms. Savage should be entitled to a closing order.
[36] The parties agree that the laneway is an “access road” as defined by section 1 of the Road Access Act (“a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land”).
[37] The Road Access Act addresses disputes between the users and owners of private roads. Section 2(1) prohibits the blocking of a private road if that results in preventing “all road access to one or more parcels of land”. The existence of this statutory bar on the ability of a landowner to assert her property rights against others with no title has been described as “a drastic and extraordinary measure” which reflects the proposition that it is repugnant for a parcel of land to be rendered useless by being inaccessible by land: Atkins v Carter at para. 14.
[38] An access road may, however, be closed upon the application of a person to a judge, upon the giving of 90 days’ notice to the parties affected, for an order closing the road: section 2(1)(a) of the Road Access Act.
[39] Section 3 of the Road Access Act provides:
- (1) The judge may grant the closing order upon being satisfied that,
(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest; [or] (b) in the case of an access road that is not a common road, persons described in subsection 2 (3) do not have a legal right to use the road; … (2) The judge may impose such conditions on a closing order as he or she considers reasonable and just in the circumstances.
[40] In 553173 Ontario Ltd. v. Bank of Montreal (1995), 26 O.R. (3d) 617, Leitch J. wrote at para. 39:
… considering the purpose of the Act and the specific provisions of s.2(1), I find that in order for a road to be declared an access road, the road, if closed, must be prevent all road access to one or more parcels. Only then would it be justifiable to interfere with the land owner’s property rights even in the very narrow manner in which the Road Access Act provides.
[41] Ms. Savage argues that she does not require a road closure order because there are alternative means for the Browns to access their property.
[42] As already noted, one side of the Browns’ property is bordered by Northwoods Drive, which is a public highway. Ms. Savage retained Gary Carriveau, a civil engineer, to provide an expert opinion answering the following questions:
(a) Can a driveway be constructed to access the Browns’ property directly from Northwoods Drive; (b) Can a parking pad be constructed in front of or beside the Browns’ property so that users may park on the parking pad and then walk to the front door of the property; (c) What would be estimated cost of installing a driveway and/or parking pad; (d) What would be construction timeline for the installation of a driveway and/or parking pad be; and (e) Are there any safety concerns mitigating against the installation of a driveway and/or parking pad.
[43] Mr. Carriveau’s report is accompanied by an Acknowledgement of Expert’s Duty (Form 53) and a copy of his curriculum vitae. The Browns do not challenge the admissibility of Mr. Carriveau’s opinion evidence, although they do argue that I should not accept his conclusions.
[44] Mr. Carriveau proposes three alternative arrangements, each providing access to the Browns’ property directly from Northwoods Drive. Common features of the three options include:
(a) Construction of a parking pad or driveway on the Browns’ property. (b) Building retaining walls (due to the difference in elevation between the land abutting Northwoods Drive and the Browns’ house). (c) Installation of a set of stairs to access the house from the parking pad.
[45] Mr. Carriveau acknowledges that physical changes would also have to be made to improve sight lines and highlights other safety concerns for vehicles accessing from and egressing onto Northwoods Drive which would have to be addressed. In particular, due to the incline of Northwoods Drive and the presence of a curve at the crest of the incline, even after measures have been taken to improve sight lines, it would remain unsafe for vehicles to back directly out from the Browns’ property onto Northwoods Drive. To address this concern, two of the options put forward by Mr. Carriveau involve the construction of a parking pad big enough to allow two cars to park and the ability to perform a three-point turn to manoeuvre into a position to drive forward onto Northwoods Drive. A third option would be a five metre wide “loop” driveway, which would overcome the inconvenience of having to turn vehicles around before exiting from the Browns’ property onto Northwoods Drive.
[46] I observe that, after the Browns had brought the use of the laneway by the owners of the Girling property to an end a parking pad was built on the Girling property adjacent to Northwoods Drive. James Girling, the current owner, parks his vehicle on the parking pad and accesses his house by walking down to the cottage by foot. The record does not disclose how the elevation of the parking pad on the Girling property compares to that proposed by Mr. Carriveau in relation to the Browns’ property. Nor is there any indication whether similar safety concerns exist about vehicles backing out of the Girling property, although Mr. Carriveau did observe that there were other properties with parking pads that were aligned at 90 degrees off Northwoods Drive, requiring them to back out onto the road, but that in “most cases” these parking pads were located on straight stretches of the road where sightlines were good, allowing for backing out on to the road to be done quite safely.
[47] The estimated cost of the options proposed by Mr. Carriveau ranges from $23,500 to $35,000.
[48] In his affidavit, Mr. Brown states his belief that, because of the grade and curve of Northwoods Drive, it is impossible to build a safe “entranceway” onto the Browns’ parcel at any other location.
[49] Significantly, no expert evidence has been offered to counter the opinions expressed by Mr. Carriveau.
[50] As a practical matter, the onus is on the Browns to demonstrate that there is no alternate access to their property. In this context, “no alternate access” refers to the legal box around the parcel of land and not to physical inconveniences unless such physical impediments are insurmountable: Bogart v. Thompson (2002) 1 RPR (4th) 199 (Ont. S.C.J.) at para. 28. The test “is closer to impossibility than it is to inconvenience or expensive”: Atkins v Carter, at para. 26.
[51] The circumstances in the present case are distinguishable from those in 2008795 Ontario Inc. v. Kilpatrick (2007), 2007 ONCA 586, 86 O.R. (3d) 561 (C.A.), where the court rejected a property-owner’s assertion that an adjacent unopened road allowance provided alternate access to the claimants’ properties. Whereas in Kilpatrick, the property owners could not use the unopened access road without first obtaining regulatory approval for the road allowance to be opened (an outcome that could not be assured) and then building a road from scratch, the Browns can, according to Mr. Carriveau, access their property directly from an existing public road by doing as Mr. Girling did and installing a parking pad or driveway.
[52] In the absence of anything more than Mr. Brown’s bald assertion that it is impossible to build a safe entranceway to the property to provide alternative access, I accept Mr. Carriveau’s evidence that there is a viable alternative access route to the Browns’ property, albeit that such access comes at a price.
[53] In anticipation of the possibility of such a finding, the Browns argue that section 3(1) nevertheless provides the court with a residual discretion to refuse to grant a closing order. As noted by Gillese J.A. in Margettie v. Snell, 2009 ONCA 838, at para. 42:
Section 3(1) provides that the judge "may" grant a closing order. It is trite law that words are to be given their plain meaning. The word "may" is permissive. If a judge may grant the closing order, the converse is also true - he or she may refuse to grant the closing order.
[54] The fatal difficulty with the Browns’ argument is that, given my finding that there is alternate access to the property, Ms. Savage does not require a road-closing order to prevent the Browns from using the laneway: see Limlaw v. Ryan (2009), 2009 ONCA 832, 99 O.R. (3d) 514 (C.A.) at para. 64. Consequently, the discretion provided for in s. 3(1) is not engaged.
[55] In circumstances such as these, the correct approach is that intimated by the Simmons J.A. in Limlaw where, in footnote no. 2 to her reasons, she stated:
… it is inadvisable for a landowner to erect a barrier that excludes a neighbour from a private road without first obtaining a declaration that the neighbour has alternate access if that issue is controversial. Otherwise, the landowner runs the risk of violating the prohibition in s. 2 and committing an offence under s. 7.
[56] With certain caveats, I find that Ms. Savage is entitled to make use of her property by excluding the Browns and others seeking to access the Browns’ property from using the laneway.
[57] The caveats arise from the fact that, although I have accepted the Carriveau report as the basis for my finding that there is an alternative means for the Browns to access their property, it will take time to implement that alternative access to the Browns’ property. The Browns should therefore be permitted reasonable use of the laneway to access their property for a limited period of time. It also needs to be recognised that the construction of the alternative access to the Browns’ property may require planning or other regulatory approvals.
Disposition
[58] For the foregoing reasons, the Browns’ application (Court file no. 15-64235) is dismissed and Ms. Savage’s application (Court file no. 16-67511) is granted to the extent of sub-paragraphs 1 (a) to (c) and (e) to (g) of the notice of application and subject to the following additional provisions:
(a) despite the declaration that Ms. Savage may make use of her property as she sees fit, such uses shall limited to those which are lawful do not otherwise interfere with the use and enjoyment by others of their properties; (b) the enforcement of my judgment in favour of Ms. Savage is suspended for a period of one year from the date of this order, but only to the extent that Ms. Savage shall not close or block the laneway and thereby prevent the use of the laneway by others for the limited purpose of providing vehicular access to and from the Browns’ property; (c) the Browns’ use of the laneway the for the limited purpose and time described in subparagraph (b) shall not otherwise unreasonably interfere with the use and enjoyment of her property by Ms. Savage and its occupants; (d) during the period of suspension, but not thereafter (except as may be provided for by Rule 59.06 of the Rules of Civil Procedure), the Browns may ask the court to grant different relief than that now awarded on the ground that despite diligent and bona fide efforts having been made by them or on their behalf, any necessary planning or other regulatory approvals that are required to effect alternative access to their property have not or will not be granted by the authorities concerned; (e) either party is at liberty to request from the court a variation or termination of the period of suspension set out in subparagraph (b) and shall do so by a motion which sets out the relief sought, the reasons therefor and the evidence relied upon.
[59] I will not remain formally seized of this matter for the purposes of any further motions arising in connection with the preceding paragraph or in relation to any other motion to amend, set aside or vary my judgment. In the interests of judicial efficiency however, the parties should in the first instance contact me through the Trial Coordinator in Kingston to determine my availability to hear such motion, prior to bringing a motion in the usual way if I am not available to assist.
Costs
[60] Ms. Savage has been substantially successful and is presumptively entitled to her costs of these applications. The parties have provided me with their costs summaries. If counsel are unable to agree costs, the parties may deliver written submissions, not to exceed three pages in length, on:
(a) to whom costs should be awarded; (b) scale of costs (including any rule 49 considerations that may be applicable); (c) quantum.
Ms. Savage’s submissions should be received by me c/o the Trial Coordinator at Kingston within 21 days of the date of release of these reasons; the Browns’ within fourteen days after the date of receipt of Ms. Savage’s submissions.
[61] If there are any issues arising from the implementation of these reasons or the form and content of the formal judgments, I may be spoken to.
Graeme Mew J.
Released: 17 July 2017