CITATION: Millstone Consulting Services Inc. v. Cleary, 2009 ONCA 755

DATE: 20091102

DOCKET: C49288

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Juriansz and Rouleau JJ.A.

BETWEEN:

Millstone Consulting Services Inc.

Plaintiff (Appellant)

and

Paul David Cleary, Francis Loyola Cleary and John Michael Cleary

Defendants (Respondents)

AND BETWEEN:

Paul David Cleary, Francis Loyola Cleary and John Michael Cleary

Plaintiffs by Counterclaim (Respondents)

and

Millstone Consulting Services Inc., Paula Von Stedingk, Vicko Von Stedingk, and Murray Edward McGee

Defendants by Counterclaim (Appellants)

Ryder Gilliland, for the appellant, Millstone Consulting Services Inc.

Gavin J. Tighe, for the respondents

Heard and orally released: October 28, 2009

On appeal from the judgment of Justice R. Boyko of the Superior Court of Justice dated July 28, 2008.

ENDORSEMENT

[1] It is accepted that the trial judge erred in the principles of law she applied to the evidence. In particular, she misstated the period to which the doctrine of Lost Modern Grant applies as being limited to the 20-year period before the conversion of the property to the Land Titles system in 2001. The appellant asks this court to find that the evidence established the required 20 years of open and continuous use during an earlier period of time.

[2] The appellant relies solely upon the testimony given by Murray McGee. As the trial judge pointed out, Mr. McGee was absent from the property for significant periods of time. The trial judge attached “very little weight” to a statutory declaration which Mr. McGee adopted in evidence. It is clear she did not regard him as a reliable witness. She also drew an adverse inference from the failure of the appellant to call the evidence of Mr. McGee’s sister who would have been in a much better position to testify about the use of land in issue.

[3] We have considered the evidence of Mr. McGee on which the appellant relies. We find it is insufficient to establish, on its own, an easement based on the doctrine of Lost Modern Grant. Despite the errors made by the trial judge, we are not persuaded that there has been a substantial wrong or miscarriage of justice. On this record, the result would not have been different had she applied the proper principles.

[4] The appeal is, therefore, dismissed. Costs to the respondent are fixed in the amount of $10,000, inclusive of GST and disbursements.

“D. O’Connor A.C.J.O.”

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”