Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality)

CITATION: Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality), 2011 ONCA 179

DATE: 20110304

DOCKET: C52743

COURT OF APPEAL FOR ONTARIO

MacPherson, Rouleau and Epstein JJ.A.

BETWEEN

Sunnybrae Springbrook Farms Inc.

Plaintiff (Appellant)

and

The Corporation of the Municipality of Trent Hills, William John Coroz, 1258099 Ontario Inc., Leonard David Brant, James George Butler, and Jacqueline Elizabeth Anne Butler, Mario Cabral and Leonor Cabral, Lina Marie Calomino, Anthony Terence Crosta, Afonso De Medeiros and Filomena De Medeiros, Teresa Dutkiewicz adn Romulad Dutkiewicz and Andrzej Dutkiewicz, Arkadi Karpelson, Laura Alice Kurhan, Nora Marcheasan and Edia Roberto, Marie Eve Mill, Michael Mitas, Keith Mocon, Joseph Victor Muller and Gloria Hildegard Muller, David Nelson Owles and Sharon Mayreen Owles, Noram Joyce Lucy and Thomas Laird Lucy, The Robert Webster Co. Limited, Simon Resch and Maria Resch and Frank Resch, Simon Resch, Daniel Sprongl and Frank Sprongl and Jennifer Cote and Ilana Osenshein, Elizabeth Mary Walker, Raymond Bartley Welsh adn Crol Anne Terris and Terry Luscombe

Defendants (Respondents in Appeal)

AND BETWEEN

James George Butler and Jacqueline Elizabeth Anne Butler, Mario Cabral and Leonor Cabral, Lina Marie Calomino, Anthony Terence Crosta, Afonso De Medeiros and Filomena De Mederios, Nora Marchesan and Edio Roberto, Marie Eve Mill, Keith Mocon, Joseph Victor Muller and Gloria Hildegard Muller, Norma Joyce Lucy and Thomas Laird Lucy, The Robert Webster Co. Limited, Simon Resch and Maria Resch and Frank Resch, Simon Resch, Daniel Sprongl and Frank Sprongl and Jennifer Cote and Ilana Osenshein, Elizabeth Mary Walker, Raymond Bartley Welsh and Carol Anne Terris

Plaintiffs by Counterclaim

and

Sunnybrae Springbrook Farms Inc., Vincent Paneduro also known as Vincenzo Paneduro and Frances Paneduro

Defendants by Counterclaim

Counsel:

Stanley Fienberg, for the appellant

Peter Robertson, for the respondents

Heard and released orally: March 3, 2011

On appeal from the judgment of Justice Peter Lauwers of the Superior Court of Justice dated September 2, 2010.

ENDORSEMENT

[1] The appellant Sunnybrae Springbrook Farms Inc., the owner of property in Northumberland County, appeals the judgment of Lauwers J. of the Superior Court of Justice dated September 2, 2010. The appeal concerns the parties’ respective rights and interests in a laneway called “Sunnybrae Lane”, which passes through cottage country in the municipality of Trent Hills (the “Municipality”). The parties are engaged in an ongoing dispute over who is responsible for upgrading Sunnybrae Lane, which has, over the years, fallen into disrepair. In some areas, it is too narrow for emergency vehicles to enter, and during the winter the road is susceptible to icing.

[2] The appellant is the successor in title to the farm property adjacent to cottage properties owned by the respondents and holds title to most of the laneway. However, the appellant does not use the laneway and does not want to pay for its upgrading. It wants the Municipality to assume the laneway as a municipal road and bear the costs and liabilities of ownership. The Municipality refuses to assume the laneway until the appellant upgrades it to municipal standards, which would come at great expense. The respondent cottagers, who have owned their lots for many years and are the laneway’s primary users, are also not prepared to contribute to its upgrading, although they have done some work on it from time to time.

[3] The appellant commenced an action against the cottagers and the Municipality. It moved for summary judgment seeking a declaration that the cottagers have no prescriptive easement over the part of Sunnybrae Lane that the appellant owns. The appellant also sought an injunction preventing the cottagers from driving on Sunnybrae Lane during the winter months (from November 1 to April 15) of each year until they upgraded the laneway. The cottagers in turn filed a cross-motion for an order to strike the appellant’s statement of claim for disclosing no reasonable cause of action or, alternatively, for summary judgment dismissing the action against them. The cottagers’ primary argument was that their use of the laneway for more than 20 years gave them a prescriptive easement pursuant to s. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15.

[4] Justice Lauwers agreed with the cottagers’ position. He declared that they have acquired an easement by prescription over Sunnybrae Lane and he dismissed the appellant’s motion for an injunction preventing the respondents from accessing the laneway in the winter. The appellant appeals this judgment.

[5] The appellant contends that the motion judge erred in two respects in concluding that the respondents had acquired an easement by prescription over Sunnybrae Lane.

[6] First, the appellant submits that the motion judge erred by failing to apply the principle of illegality to the facts of this case – he should have held that the respondents’ breach of a municipal by-law, relating to buildings fronting on to improved public streets, disqualified them from arguing prescription.

[7] We do not accept this submission. Even if the respondents are in breach of a municipal by-law, which, in our view, is doubtful, there is no connection between this breach and the ownership/easement issue in this case. As suggested by the motion judge, there are alternative remedies, and a regulatory process, for third parties, including the appellant, to challenge an alleged breach of a municipal by-law.

[8] Second, the appellant contends that the motion judge erred in concluding that there was a sufficient evidentiary basis for finding a prescriptive easement, in particular in relation to the issue of winter use of Sunnybrae Lane.

[9] We disagree. There is no palpable and overriding error in the motion judge’s treatment of the evidence. The deed by which the appellant and his predecessor in title acquired the property clearly indicates a right of way in favour of the cottagers. In addition, there was evidence of year round use of the lane going back at least to 1975. The evidence about continuity of use between 1975 and 2010 was a bit more ambiguous, but was sufficient to support the motion judge’s ultimate conclusion that the cottagers “used their properties year round for many years and that some have lived there full time since 1975”.

[10] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $15,000 inclusive of disbursements and HST.