Court File and Parties

CITATION: Welton v. Glickman, 2008 ONCA 591

DATE: 20080818

DOCKET: C47008

COURT OF APPEAL FOR ONTARIO

ROSENBERG, GILLESE and BLAIR JJ.A.

BETWEEN:

DAVID WELTON and IVA WELTON

Plaintiffs (Respondents)

and

BARBARA GLICKMAN and MELVYN MOSCOE, TRUSTEES

Defendants (Appellants)

Counsel: H. Winkler for the appellants B. Renken for the respondents

Heard: August 14, 2008

On appeal from judgment of Justice Hugh M. O’Connell of the Superior Court of Justice dated March 21, 2007.

ENDORSEMENT

[1] David Welton owned[^1] property in the Town of Blue Mountains which fronted onto Georgian Bay. In 1963 he sold a piece of the property - lot 29 – to John Tickins. His cottage is on the adjacent piece of property, lot 28. At the same time, Mr. Welton built a driveway that both lots 28 and 29 could use. The driveway is located on lot 29. It provides Mr. Welton with access to his cottage.

[2] Mr. Welton alone has serviced and maintained the driveway since 1963. Maintenance is regularly required because of water erosion due to heavy rainfall.

[3] The defendants acquired lot 29 in 1985.

[4] When difficulties arose between the parties, Mr. Welton brought a claim in which he sought a declaration that he was entitled to an easement in the form of a right-of-way for continued use of the driveway. After a short trial, O’Connell J. made the declaration in a judgment dated March 21, 2007.

[5] The appellants (defendants in the action) ask this court to set aside that judgment and dismiss the claim. Their primary argument is that the trial judge erred in finding that Mr. Welton had used the driveway “as of right” and not pursuant to the permission of the owner of the servient land. In making this argument, counsel for the appellants directed the court to testimony given by Mr. Welton at trial and on examination for discovery which, he submitted, demonstrated that Mr. Welton used the driveway as a result of an agreement with Mr. Tickins.

[6] It is well established law that to acquire an easement by prescription, a claimant must show that he or she has enjoyed an easement without violence, secrecy or permission for a period of at least 20 years prior to the commencement of the action for a declaration. In other words, the claimant must demonstrate a use and enjoyment of the easement, for the 20 year period, under a claim of right which is continuous, uninterrupted, open, peaceful, and with the knowledge and absence of objection from the owner of the servient lands. See, for example, Temma Realty Co. Ltd. v. Ress Enterprises Ltd. 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293 (C.A.) and Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.).

[7] After setting out the applicable legal principles, the trial judge explained why he was satisfied that Mr. Welton had met that burden. In respect of the requirement that use be “as of right”, at para.21 of his reasons, the trial judge states:

The defendants have no basis to say use was by “license” or permission. The use was obvious to all the owners of Lot 29, as to who provided the maintenance and who supplied materials for such maintenance. Mr. Welton’s evidence is not only convincing but it is frank and truthful. He alone knew of the arrangement with Mr. Tickins and subsequent owners up to the arrival of the defendants. His efforts in maintaining such are evident from the photographs.

[8] That is, the trial judge found that Mr. Welton’s use in the relevant 20 year period was not based on Mr. Tickins’ permission nor that of any of the subsequent owners. On the record, it was open to the trial judge to find, as he did, that the “arrangement” that Mr. Welton had with Mr. Tickins did not amount to the former obtaining the latter’s permission to use the driveway. It goes without saying that the trial judge was in the best position to make such a finding and that deference is owed to such a finding.

[9] Accordingly, the appeal is dismissed with costs to the respondent fixed at $5,000, inclusive of disbursements and GST.

“Marc Rosenberg J.A.”

“E.E. Gillese J.A.”

“R.A. Blair J.A.”

[^1]: In the relevant period, his ownership was through his company, with his wife or in his name alone.