COURT FILE NO.: CV-21-18 DATE: 2022/03/28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HYDRO ONE NETWORKS INC. Applicant – and – AMOS ALLEN SHINER Respondent

COUNSEL: R. Finkel, for the Applicant M. Kemerer, for the Respondent

HEARD: By videoconference on March 11, 2022.

Reasons for Decision

Parfett J.

[1] The Applicant, Hydro One Networks Inc. (Hydro One) requests a declaration that it holds a permanent easement over the portion of Hydro Road (also known as Hunt Road), that is located on lands registered to the Respondent to use without permission in order to access an easement in favour of the Hydro-Electric Power Commission of Ontario. Hydro One also requests ancillary orders that would permit access and prevent the Respondent from preventing access to the road.

Background

[2] The Respondent owns property at 152 Addington Road, Cloyne. He purchased the property in December 2017.

[3] In the 1930’s, Hydro One’s predecessor company, Hydro-Electric Power Commission of Ontario (HEPCO), built a transmission line and towers that passed through the Respondent’s property. In 1948, an easement was granted to HEPCO in relation to the land on which the transmission towers were built. This easement extends from Highway 62 to Highway 41 and runs south of the village of Cloyne.

[4] The validity of this easement is not in dispute.

[5] Hydro One employees must access the hydro easement to service and maintain the towers and trim the vegetation around the transmission towers.

[6] To reach the hydro easement, Hydro One employees have traditionally travelled over the portion of road now owned by the Respondent.

[7] The Respondent objects to Hydro One’s use of his road and he has placed two gates at either end of the section of road that runs through his property.

Evidence

[8] The Applicant contends that Hydro One has used this road since at least 1966. It concedes that the road is private and different portions are owned by different property owners, including the Respondent.

[9] In June 2020, the Respondent advised Hydro One workers that they were no longer permitted to use his portion of the road. In 2021, Hydro One workers observed a gate at one end of the road and a chain blocking access at the other end.

[10] According to the Applicant, its workers had never asked permission to use the road.

[11] The Respondent suggests that there are several other access routes that Hydro One can use to get to their easement. However, Hydro One argues that the other routes are either impassible by their equipment or would take them several hours out of their way.

[12] Hydro One states that ‘pursuant to the Transmission System Code and the Applicant’s Licence, both of which are issued by the Ontario Energy Board pursuant to the Ontario Energy Board Act, 1998, they are required to inspect, maintain, repair and construct transmission assets. Therefore, they require reliable access to the easement.

[13] The Respondent disputes the assertion by Hydro One that they have used the road continuously since 1966. He contends that Hydro One only starting using this road relatively recently and then only infrequently.

[14] It is conceded by the Applicant that its workers access the easement approximately every one to three years for a foot patrol and every six to eight years for brush clearing.

Positions of the Parties

[15] The Applicant contends that it has had continuous, uninterrupted, open and peaceful use of the road without the owner’s permission for more than 40 years and consequently, the doctrine of lost modern grant applies. Alternatively, it argues that they have a prescriptive easement based on s. 31 of the Real Property Limitations Act.

[16] The Respondent argues that the Applicant has not met its onus. He states that the Applicant’s use has not been ‘continuous, uninterrupted open and peaceful’. He also asserts that the Applicant has sought his permission to use the road and even offered him compensation for that use. Furthermore, he indicates there are several good alternative routes that could be used by the Applicant’s workers.

Legal Principles

[17] The elements necessary to prove the existence of a prescriptive easement are as follows:

• There must be a dominant and a servient tenement;
• The dominant and servient tenements must be different;
• The easement must accommodate (better or advantage) the dominant land. In other words, the right must serve and be reasonably necessary for the enjoyment of the dominant tenement; and
• The easement must be capable of forming the subject matter of a grant. It must be defined with adequate certainty and be limited in scope.

[18] Pursuant to the doctrine of lost modern grant, an easement may be established if there is at least twenty years of uninterrupted use by the dominant tenement and that use meets the criteria of being open, peaceful and without permission. The use must be ‘as of right’ meaning that the servient tenement must acquiesce to the establishment of the easement and not just grant permission. See also Skraba et al. v. Crisafi et al., 2014 ONSC 6780 at para. 24 and Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266 at para. 6.

[19] Under the Real Property Limitation Act, a claim for a prescriptive easement can be defeated by demonstrating the dominant tenement had the owner’s oral or written consent.

[20] As noted in Carpenter v. Doull-MacDonald, 2017 ONSC 7560 at paras. 36-39 and 45:

The threshold for meeting the criteria for establishing a prescriptive easement under the Limitations Act or by lost modern grant is high, and courts are hesitant to recognize an easement by prescription because doing so would permit a landowner’s neighbourly accommodation of sufferance to ripen into a legal burden on his or her lands without compensations. Use permitted by neighbourliness and enjoyed on that basis is insufficient to establish an easement by prescription.

Analysis

[21] In my view, this case turns on whether Hydro One can meet the requirement that its use of the road was ‘as of right’ and continuous.

[22] The road and the relationship between Hydro One and the Respondent conform to the elements required to establish a prescriptive easement.

[23] However, the matter gets trickier after that.

[24] Hydro One needs to establish they used the road for more than 20 years prior to 2008 when the land was registered under the Land Titles Act. There is some evidence to that effect. Mr. Boomhour indicated that although he did not use it very frequently, the road through the Shiner property was one of four access points used by Hydro One workers. He worked for Hydro One for approximately 30 years. Mr. Hunt who owns the neighbouring property stated that he had seen Hydro One using that road since at least 1966.

[25] Hydro One must also establish that its use was ‘as of right’ and that they did not seek permission from either the previous or present owners of the Shiner property. The evidence on that point is contradictory. Hydro One asserts it never sought the permission of the owners to use the road.

[26] However, there is evidence that in fact Hydro One did seek permission and it comes from its own employees. In an email sent by Bruce Froats to the Respondent, he notes that ‘Hydro One’s commitments to you [will] be put down in writing/formal agreement. Please see attachment outlining the details of Hydro One’s (Blake Northey) commitments to you regarding access to your property’.

[27] In the circumstances, I cannot conclude that Hydro One’s attitude towards the road was that it could use that road ‘as of right’.

[28] In addition, there is no evidence that Hydro One used the road ‘continuously’. As noted in the caselaw, ‘continuously’ does not mean ‘infrequently’ or ‘occasionally’. The evidence of Hydro One’s own affiants is that the road was used at most once a year and probably considerably less frequently than that.

[29] In the Carpenter case, the passageway between the two houses was used by the Applicant’s family once or twice a year. The court stated, ‘the Langtrees occasionally used the passageway, but they did not manifest that they owned it and they did not manifest that they were using it as of right; rather they were just benefiting from the neighbourliness between two families of war vets.’

[30] In the Balogh case, the evidence accepted by the hearing judge was that the land in question was accessed over the track owned by the servient tenement approximately once a year to cut down a Christmas tree. He concluded that the use was not continuous.

[31] These two cases differ markedly from the case of Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466 at paras. 17-20 where the party claiming a prescriptive easement had driven over the right of way almost daily for over twenty years.

[32] As a result, I cannot find that Hydro One’s use of the road was continuous. Its use was occasional at best.

[33] Consequently, Hydro One has failed to demonstrate that its use of the road was such that it created a prescriptive easement.

[34] The application is dismissed.

Costs

[35] If the parties are unable to resolve the issue of costs themselves, they can submit written submissions of no more than two pages with a bill of costs attached.

The Honourable Madam Justice Julianne Parfett Released: March 28, 2022