Court File and Parties

CITATION: Defina v. Antunes, 2008 ONCA 710

DATE: 20081015

DOCKET: C45518

COURT OF APPEAL FOR ONTARIO

O'Connor A.C.J.O., Simmons and Lang JJ.A.

BETWEEN

Giovanni Defina and Caterina Defina

Plaintiffs/ Appellants on Appeal

and

Claudia Sofia Antunes, Manuel Pires Rei, John Doe #1, John Doe # 2, John Doe #3 and John Doe #4

Defendants/ Respondents on Appeal

AND BETWEEN

Claudia Sofia Antunes and Manuel Pires Rei

Plaintiffs on Counterclaim/ Respondents on Appeal

and

Giovanni Defina and Caterina Defina and Lisa Del’Casale and Giuseppe Del’Casale

Defendants by Counterclaim/ Giovanni DeFina and Caterina DeFina, Appellants on Appeal

Counsel:

G. Gryguc and E. Zeppieri, for the appellants

J.B. Donnelly, for the respondents

Heard: October 7, 2008

On appeal from the judgment of Justice Sarah E. Pepall of the Superior Court of Justice, dated May 16, 2006.

APPEAL BOOK ENDORSEMENT

[1] The trial judge found as a fact that the Del Casales did not give permission or a license for the use of the disputed lands. Rather the trial judge found that any agreement between the parties related only to the erection and removal of the fence.

[2] Alternatively, the trial judge found that if permission was given initially, it was not renewed.

[3] There was evidence to support each of these findings. Accordingly we see no basis to interfere with the trial judge’s finding that there was a prescriptive easement.

[4] We see no error in the way the trial judge addressed the issue of costs.

[5] Accordingly the appeal is dismissed. Costs to the respondents are fixed in the amount of $11, 000.00 inclusive of disbursements and GST.