COURT OF APPEAL FOR ONTARIO
DATE: 20000301
DOCKET: C32006
RE: WINSOME ELIZABETH SMITH and EDMUND DeFREITAS
(Appellants) –and– FELD CONCRETE FOUNDATIONS LIMITED,
YEE FUR YOUNG and SUE FONG YOUNG (Respondents)
BEFORE: FINLAYSON, LABROSSE and GOUDGE JJ.A.
COUNSEL: Steven Bellissimo, for the appellants
Indrek Uukkivi, for the respondents
HEARD: February 24, 2000
On appeal from the judgment of Epstein J. March 30, 1999.
E N D O R S E M E N T
[1] The appellants take issue principally with the finding by
the trial judge that the use of the easement claimed was
permissive on the part of the servient tenants, that is to say,
it did not constitute adverse possession. As the trial judge put
it: “From 1972 to 1983 Jones effectively controlled all three
properties.” The appellants submit that Jones did not own two of
the properties. They were owned by a limited company called Sobo
Investments Limited, which was controlled by Jones. The
appellants assert that the trial judge ignored the legal reality
that there was not common ownership of the three properties.
[2] However, as the respondent submitted in his factum, the
issue is not unity of ownership per se but rather the actual
knowledge of Jones, both personally and as the directing mind of
Sobo. This case was not a situation where the use was either
adverse or made as a matter of right during the period of
ownership of the three properties by Sobo and Jones. Sobo owned
both 26 and 34 Vaughan Road and therefore no adverse right could
arise in favour of 34 Vaughan Road. Any use of the parking area
of 26 Vaughan Road for ingress or egress to 32 Vaughan Road was
with the full knowledge and consent of Jones since the same
knowledge resided in him, whether personally or as an officer,
director and shareholder of Sobo.
[3] In order that a prescriptive easement may be claimed on a
commercially developed parcel of land, the claimant or its tenant
must show a sufficient user either by himself or by persons
acting under his direction and control. Such a user must be a
use and enjoyment of the right-of-way under claim of right (and
not merely permitted as an act of co-operation or good
neighbourliness by the servient tenement) which was continuous,
uninterrupted, open and peaceable for a period of twenty years
immediately prior to the commencement of the action making claim
to it.
[4] In the alternative, the appellant submitted that the
easement was obtained pursuant to permission granted by the three
property owners over a twenty-year period. However, even on the
facts this argument cannot avail the appellant. The permission,
whatever its effectiveness in law, terminated when the ownership
of one of the properties changed in 1983. No prescriptive right
could have arisen either before or after that date.
[5] The reasons of the trial judge reveal no error and,
accordingly, the appeal is dismissed with costs.
Signed: “G.D. Finlayson J.A.”
“J.M. Labrosse J.A.”
“S.T. Goudge J.A.”