Court of Appeal for Ontario

Citation: Carlini v. Hammoud, 2011 ONCA 285

Date: 2011-04-12

Docket: C50719

Before: Cronk, MacFarland and Rouleau JJ.A.

Between:

Anthony Carlini, the Personal Representative of the Estate of Maria Carlini, deceased Applicant (Respondent in Appeal)

and

Abdullah Hammoud Respondent (Appellant)

Counsel:

James K. Ball, for the appellant

Steven D. Bezaire, for the respondent

Heard and released orally: March 29, 2011

On appeal from the judgment of Justice R. J. Harper of the Superior Court of Justice, dated June 8, 2009.

Endorsement

[1] This case concerns the determination of whether the respondent estate enjoys a prescriptive easement over a disputed driveway.

[2] The appellant challenges the application judge’s conclusion that the respondent estate does enjoy a prescriptive easement over the driveway based on the continuous, frequent, uninterrupted, open and peaceful use of the driveway, without express permission, since 1978 by the deceased, Maria Carlini, and/or her family members.

[3] We see no basis on which to interfere with the application judge’s disposition. A right enjoyed by a person over the land of another has the status of an easement if it accommodates and serves the dominant tenement and it is reasonably necessary for the better enjoyment of that tenement: see Depew v. Wilkes (2002), 60 O.R. (3d) 499 (C.A.), at para. 19.

[4] The dominant tenement in this case was the property owned by Mr. and Mrs. Carlini senior. On the evidence accepted by the application judge, the driveway was originally owned exclusively by them and was used by them, and by their sons and others, in a variety of ways to facilitate the better enjoyment of the Carlinis’ property. After they severed their property in 1978, and sold the lot on which the disputed driveway is located (the servient tenement) to one of their sons and his wife, usage of the driveway to facilitate the enjoyment of their property (the dominant tenement) continued without objection until the servient tenement was resold to the appellant in 2007. The prescriptive easement, therefore, was established well prior to the sale of the servient tenement to the appellant.

[5] None of these parties, save the appellant, were strangers to one another. On the contrary, they were all family members who collectively used the driveway for a host of purposes associated with the better enjoyment of the dominant tenement. These facts distinguish this case from Temma Realty Co. Ltd. v. Ress Enterprises Ltd., [1968] 2 O.R. 293 (C.A.).

[6] The uses in question were conventional uses associated with vehicular access to a residential property, including a garage. The driveway in question was and remains the only access route to the garage.

[7] The credibility-based factual findings of the application judge regarding the use of the driveway by the owners of the dominant tenement and their agents are supported by the evidential record. These findings attract deference from this court. Although neither Mr. or Mrs. Carlini senior drove a car, the evidence nonetheless established the requisite pattern of use of the driveway by Mr. and Mrs. Carlini senior and others to enjoy vehicular access to the Carlinis’ residence and the associated garage, sufficient to ground a prescriptive easement.

[8] As a final point, there appears to have been no dispute before the application judge as to the location and boundaries of the disputed driveway. If the parties are unable to agree on the appropriate document to be registered on title to confirm the proper legal description of the property that is subject to the easement, the matter should be raised before the application judge for clarification and, if necessary, for further order by him.

[9] The appeal is dismissed. The respondent estate is entitled to its costs of the appeal fixed, as agreed by counsel, in the amount of $3,000, inclusive of disbursements and all applicable taxes.

"E.A. Cronk J.A."

"J. MacFarland J.A."

"Paul Rouleau J.A."