Court File and Parties

CITATION: Mitrovic v. Ostojic, 2008 ONCA 144

DATE: 20080228

DOCKET: C47333

COURT OF APPEAL FOR ONTARIO

LANG, MACFARLAND and LAFORME JJ.A.

BETWEEN:

ETHEL MITROVIC and VIOLET JANE VAN DUYNHOVEN Applicants (Respondents)

and

WALTER OSTOJIC Respondent (Appellant)

Counsel: Sandra L. Monger for the appellant Jack Huber for the respondents

Heard: February 26, 2008

On appeal from the order of Justice J.F. McGarry of the Superior Court of Justice dated June 4, 2007.

APPEAL BOOK ENDORSEMENT

[1] The appeal concerns an easement between neighbouring properties.

[2] The application judge concluded that the respondents were entitled to an easement, but made it conditional upon the respondents providing a quitclaim to the appellant. In our view, a quitclaim is not necessary given the passage of time.

[3] The application judge addressed the1984 agreement. However, that agreement was breached by both parties before it was implemented and was no longer alive at the time of the sale of the property to the respondents.

[4] The respondents’ predecessors in title, as found by the application judge when he implicitly accepted the facts set out in the respondents’ factum, enjoyed open, continuous, peaceful, undisturbed and undisputed use of the right of way from 1982 until the appellant erected a barricade in 2006.

[5] The appellant argues that the respondents could not establish a prescriptive right of way because the appellant consented to its use. However, there is no evidence that the appellant consented to a limited-term use of the right of way. To the contrary, all the evidence is that the appellant consented to a permanent easement. We also find support for this result in Hill v. Nova Scotia (Attorney General), [1997] S.C.J. No.115.

[6] Accordingly, the respondents are entitled to the declaration and the order requested in paras. 1(f) and 1(g) of their Notice of Application.

[7] The appellants’ challenge to the application judge’s costs award is also dismissed. The predecessors in title indemnified the respondents for their costs of this litigation in an amount up to $10,000 that was held back from the sale proceeds. Because the agreement provides for indemnification, it does not operate to deprive the respondents of the costs to which they are otherwise entitled, including the costs awarded at trial.

[8] In the result, the appeal on the merits is dismissed, except to the extent necessary to vary the relief granted to comply with the relief granted by this court.

[9] Costs of the appeal to the respondent in the amount of $5,000, inclusive of disbursements and GST.