1043 Bloor Inc. v. 1714104 Ontario Inc.

Ontario Reports

Court of Appeal for Ontario,

Laskin, MacPherson and Gillese JJ.A.

February 14, 2013

114 O.R. (3d) 241 | 2013 ONCA 91

Case Summary

Real property — Easements — Prescription — Doctrine of lost modern grant — Use "as of right" — Plaintiff and his predecessors in title using laneway on neighbour's property to access parking — Running of prescriptive easement interrupted in 1987 when plaintiff's predecessor in title asked defendant's predecessor in title for permission to use laneway and was refused — Request for permission amounting to acknowledgment that use was not "under claim of right" or "as of right" — Alternatively, running of prescriptive easement being interrupted when defendant's predecessor in title posted "private driveway" signs along laneway in 1989.

O used a laneway on neighbouring property owned by the defendant's predecessor in title, S, to access parking spaces behind her building from 1980 to 1986. S did not object. V continued to use the laneway after purchasing the property from O in 1986. In 1987, he asked S to sign a right-of-way agreement over the lane. S refused (the "1987 incident"). V continued to use the laneway. In 1989, S had "private driveway" signs posted along the lane. After purchasing the property from V in 2008, the plaintiff sought a declaration that it had a prescriptive easement and right of way over the lane on the basis that its predecessors in title had uninterrupted, open use of the lane for at least 20 years before April 2003, when the plaintiff's property migrated into the land titles system. The trial judge dismissed the action. She found that there had been continuous and open use of the lane during the relevant time period, but that the 1987 incident interrupted the prescriptive period. The plaintiff appealed.

Held, the appeal should be dismissed.

Per Gillese J.A.: To acquire an easement by prescription, the claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful for a period of 20 years. V's request for permission to use the laneway in 1987 amounted to an acknowledgment that his use was not "as of right" or "under a claim of right". The trial judge did not err in finding that the 1987 incident interrupted the prescriptive period.

Per Laskin J.A. (concurring): V's acknowledgment that S had legal title to the lane was irrelevant to the question of whether V's use was as of right. Usage as of right does not mean usage based on a mistaken view of who holds legal title. V always knew and acknowledged that S legally owned the lane. His claim to a prescriptive easement was based on his uninterrupted usage and S's acquiescence to that usage. V's 1987 request that S sign the right-of-way agreement did not interrupt the prescriptive period. Nor did S's refusal to sign the agreement interrupt the prescriptive period. If anything, S's refusal showed that V's later use was not with S's consent.

Use "as of right" means use without violence. Use without violence is broadly defined. It means not only that there has been no physical obstruction of the easement, but also that the use did not proceed in the face of protests from the servient owner that might be seen as challenging the claimed right. In the context of a dispute between neighbours, where the servient owner, S, was a non-confrontational man, the posting of the "private driveway" signs in 1989 was an [page242] overt act of protest that demonstrated that use was disputed. The posting of the "private driveway" signs was sufficient to interrupt the running of the prescriptive period.

Per MacPherson J.A. (concurring): Gillese J.A. is agreed with: the 1987 incident interrupted the prescriptive period. Laskin J.A. is also agreed with: the 1989 posting of "private driveway" signs was sufficient to interrupt the running of the prescriptive period. On either basis, the prescriptive period did not run for the required 20 years.

Cases referred to

Garfinkel v. Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388, [1955] O.J. No. 562, [1955] 2 D.L.R. 844 (C.A.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379, [1982] O.J. No. 3138, 132 D.L.R. (3d) 690, 13 A.C.W.S. (2d) 110 (C.A.); Kaminskas v. Storm (2009), 95 O.R. (3d) 387, [2009] O.J. No. 1547, 2009 ONCA 318, 310 D.L.R. (4th) 549, 78 R.P.R. (4th) 40, 248 O.A.C. 297, consd

Other cases referred to

Dalton v. Angus (1881), 6 App. Cas. 740 (H.L.); Temma Realty Co. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293, [1968] O.J. No. 1152, 69 D.L.R. (2d) 195 (C.A.)

Statutes referred to

Land Titles Act, R.S.O. 1990, c. L.5, s. 51 [as am.]

Authorities referred to

Burn, E.H., and J. Cartwright, Cheshire and Burn's Modern Law of Real Property, 17th ed. (Oxford: Oxford University Press, 2006)

Ziff, Bruce, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010)

APPEAL by the plaintiff from the order of Conway J., [2011] O.J. No. 2248, 2011 ONSC 2779 (S.C.J.) dismissing an action for a declaration that the plaintiff had a prescriptive easement.

Warren Rapoport, for appellant.

L.J. O'Connor, for respondent.

[1] GILLESE J.A.: — This appeal raises an important question relating to prescriptive easements: can a single act interrupt the prescriptive period?

Overview

[2] The parties are adjacent landowners. The appellant is the owner of 1043 Bloor Street West in Toronto ("1043"). The respondent is the owner of the property immediately to the west, 1045 Bloor Street West ("1045").

[3] The appellant's predecessors built the structure on their land almost right to the lot line, leaving mere inches between their building and the edge of their property. They did not leave themselves any space for a lane or driveway by which to access the parking behind their building. [page243]

[4] The respondent's predecessors, on the other hand, built their property so as to leave a narrow lane[^1] by which they can access the rear of their property. The lane runs between the two properties.

[5] The lane lies almost entirely on the respondent's property. The portion on the appellant's property is three inches at the northern end of the land, gradually narrowing to nothing at the southern end, where the appellant's building lies right on the lot line dividing the two properties.

[6] Both parties use the lane to access the parking behind their respective properties.

[7] The appellant sought a declaration that it has a prescriptive easement and right of way over the lane. It claims that its predecessors in title had uninterrupted, open use of the lane for at least 20 years before April 2003, when the appellant's property migrated into the land titles system.[^2]

[8] The appellant wants the declaration so that it can continue to use the lane to access the parking space behind its building. The respondent wants any suggestion of an easement to be removed so that it can develop its building to the lot line, which the zoning by-law permits.

[9] By judgment dated June 15, 2011 (the "judgment"), the trial judge dismissed the appellant's claim. She found that there had been continuous and open use of the lane during the relevant time period. However, she found that an incident that took place in February of 1987 (the "1987 incident") interrupted the prescriptive period. Consequently, February 1987 became the new starting point for the running of the period and, as the period from February 1987 to April 2003 is less than 20 years, a prescriptive easement had not arisen.

[10] The appellant's appeal to this court centres on the trial judge's treatment of the 1987 incident. The appellant describes the 1987 incident as the action of one neighbour attempting to resolve a dispute amicably and says that the trial judge erred in finding that such an action interrupted the running of the prescriptive period.

[11] As I explain below, I see no error in the trial judge's decision. Accordingly, I would dismiss the appeal. [page244]

Background

[12] Much of the following recitation of facts is taken from the reasons of the trial judge.

[13] The chain of ownership of the two properties during the relevant time period serves to introduce the key players and dates in this matter.

Ownership of 1043

September of 1980 -- March of 1986:

Hildegard Welsch

Orpen

March of 1986 -- September 2008:

Fernando Vilhena

September 2008 -- present:

the appellant

(1043 Bloor Inc.)

Ownership of 1045

1966 -- April 2007:

Wolodymer and

Lesia Sochaniwskyj

April of 2007 -- present:

the respondent

(1714104 Ontario Inc.)

Use of the lane from 1980 -- 1986 (Ms. Orpen's tenure)

[14] Dr. Sochaniwskyj conducted his general medical practice at 1045 from the time he purchased 1045 in 1966 until he retired in 1997. The Sochaniwskyjs did not live at 1045.

[15] Ms. Orpen owned 1043 from 1980-86. During her tenure, she operated a hair salon and later a café from the main floor. She rented the remaining space to tenants. Ms. Orpen testified that she and her tenants used the lane[^3] without hindrance by the Sochaniwskyjs throughout the six-year period in which she owned 1043. She also testified that she never sought Dr. Sochaniwskyj's permission to use the lane and that she had no contact with the Sochaniwskyjs during her tenure.

[16] Dr. Sochaniwskyj is now infirm. Neither he nor his wife was able to testify at trial. Alex Sochaniwskyj, one of their sons, [page245] testified. He explained that his father is a mild-mannered man, a former concentration camp survivor who was liberated by the Allies during the Second World War. He testified that he does not recall Ms. Orpen nor does he recall his father interfering with her use of the lane.

[17] When Ms. Orpen sold 1043 to Mr. Vilhena in 1986, she gave him a statutory declaration. The statutory declaration appears to be a standard form with two handwritten additions, some sentences struck out and certain paragraphs added in by means of typing. Mr. Vilhena produced the declaration during these proceedings.

[18] In the declaration, below para. 1, were the following handwritten words: "I have used the laneway next door to get to my driveway since occupying the above premises" (the "first handwritten addition"). No initials appear next to the first handwritten addition. Ms. Orpen's initials do appear next to the other handwritten addition in the declaration. Ms. Orpen testified that the first handwritten addition is not her handwriting and that she has no recollection of seeing it when she signed the declaration.

[19] Paragraph 14 of the declaration had been added in by typing. It reads as follows: "I do not own any lands or have any rights in any lands abutting to the above-mentioned lands".

The 1987 incident

[20] Mr. Vilhena began work as a real estate broker in 1977 and was working in that capacity when he bought 1043 in 1986. He purchased 1043 with the intention of renovating it into an office building for his real estate business.

[21] Under the municipal by-laws, Mr. Vilhena needed three parking spots to obtain a building permit for the renovation. The parking area behind 1043 was not acceptable because Mr. Vilhena did not have a legal right-of-way to access it. He leased three parking spaces from the church located immediately to the east of 1043. This satisfied the municipal requirements for off-site parking and the building permit was issued in August 1986. Mr. Vilhena began the renovation shortly thereafter.

[22] In February 1987, Mr. Vilhena had his lawyer draft a right-of-way agreement over the lane. The agreement was to run for a period of five years, with renewal from year to year thereafter unless terminated by either party on three months' notice, for an annual payment by Mr. Vilhena of $300 per year (the "1987 document").

[23] The 1987 document recited the ownership of the two properties. Another of its recitals states "there exists no mutual [page246] right-of-way in favour of either Vilhena or Sochaniwskyj with respect to the use of that portion of the driveway area owned by the other".

[24] Mr. Vilhena signed the 1987 document and approached Dr. Sochaniwskyj for his signature. Dr. Sochaniwskyj refused to sign it.

[25] Alex Sochaniwskyj testified that he was at his parents' home when his father returned after the 1987 incident. He said that his father was very upset by the 1987 incident and the fact that he was being asked to surrender mastery over part of his property to Mr. Vilhena. Alex Sochaniwskyj testified that he and his brother told their father not to sign the 1987 document and that his father listened to them. Dr. Sochaniwskyj told Mr. Vilhena to deal with his children from then on.

[26] The 1987 document, with Mr. Vilhena's signature on it and unsigned by the Sochaniwskyjs, was in evidence before the court.

After the 1987 incident

[27] Despite Dr. Sochaniwskyj's refusal to sign the 1987 document, Mr. Vilhena and his tenants continued to use the lane.

[28] Mr. Vilhena testified that neither Dr. Sochaniwskyj nor anyone else from 1045 complained about or stopped him from using the lane after the 1987 incident.

[29] Alex Sochaniwskyj testified that in the two years following the 1987 incident, there were so many cars parked behind 1045 from 1043 that his father often had difficulty finding a parking spot for his own car. During this period, his father made up tickets and put them on cars from 1043 that were parked behind 1045, stating that it was private parking for 1045 only.

[30] Further, in 1989, at his father's request, Alex Sochaniwskyj hired a sign company to create two signs, which read "Private driveway private parking 1045 Bloor Street West". Alex Sochaniwskyj personally bolted one sign to the side wall of 1045, next to the lane. This sign was ripped down shortly after being installed. Alex Sochaniwskyj attached the other sign to a steel post in the back of 1045. Within two weeks of being erected, the second sign had been knocked over.

[31] Mr. Vilhena testified that he did not remove the signs nor have them removed. The trial judge noted that there was no evidence as to who else might have removed the signs nor why anyone who was not using the lane would have wanted to take down the signs.

[32] After the respondent bought 1045 in 2007, it erected a chain barrier to stop access by Mr. Vilhena or his invitees on the [page247] lane. Mr. Vilhena cut the chain. The principals of the respondent are Kenneth McGowen and Bill Monroe. Mr. McGowen confronted Mr. Vilhena about having cut the chain. Mr. Vilhena became very aggressive towards him. Mr. McGowen was in his 70s at the time.

[33] In 2008, when Mr. Vilhena was in the process of selling 1043, he prepared a notice of unregistered right, claiming an unregistered interest in 1045 (the "notice").[^4] On May 6, 2008, Mr. Vilhena signed an agreement of purchase and sale for 1043 with the appellant. On May 7, 2008, he registered the notice.

[34] On closing, Mr. Vilhena delivered a sworn statutory declaration to the appellant stating that he and his predecessor in title, Ms. Orpen, had used the lane continuously and without interruption from 1980 to April 2003, when it was converted to the land titles system. He went on in the statutory declaration to state that "I have never sought permission or been granted consent by any owner of [1045] for access" to use the lane. In the declaration, he also stated that he had never made any "acknowledgment of title . . . inconsistent with my easement and right of way" over the lane.

[35] At the time he swore this statutory declaration, Mr. Vilhena had over 30 years of experience in the real estate field.

[36] At trial, Mr. Vilhena testified that he had forgotten about the 1987 incident when he made the statutory declaration.

The Trial Decision

[37] The trial judge began her legal analysis by setting out the appellant's position: based on the doctrine of lost modern grant, it claimed a prescriptive easement over the lane.

[38] She then set out the legal principles governing the doctrine of lost modern grant. She quoted from Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379, [1982] O.J. No. 3138 (C.A.), at p. 383 O.R., with emphasis on the following sentence:

[T]he claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which is continuous, uninterrupted, open and peaceful for a period of 20 years[.]

(Emphasis added)

[39] The trial judge noted that permissive use cannot establish a prescriptive right and that the use required to prove a prescriptive easement must be "under a claim of right" or "as of [page248] right". She reminded herself that the onus of proving the prescriptive easement is on the claimant and quoted again from Henderson when observing that the courts must proceed with caution before finding that a title is established pursuant to this doctrine.

[40] The trial judge then made her factual findings and considered whether they met the legal requirements for a prescriptive easement. She found that from 1980 to 2003, the owners of 1043 (and their tenants, employees and guests) had used the lane openly and continuously.

[41] The trial judge also found that during the period that Ms. Orpen owned 1043 (1980-86), Dr. Sochaniwskyj acquiesced in her use of the lane. However, she found, "things changed when Mr. Vilhena acquired the property in 1986".

[42] The trial judge then carefully and fully considered the events comprising the 1987 incident, before concluding that it interrupted the running of the prescriptive period.

[43] In reaching this conclusion, the trial judge flatly rejected Mr. Vilhena's testimony that he sought to have the 1987 document executed only at the prompting of his architect because he needed it for his building permit. She noted that the building permit had been issued the year before Mr. Vilhena approached Dr. Sochaniwskyj with the 1987 document and that the municipal parking requirements had been satisfied by means of the lease of three parking spaces from the church to the east of 1043.

[44] The trial judge found that (1) Mr. Vilhena asked his lawyers to prepare the 1987 document to obtain a formal right-of-way over the lane; (2) Mr. Vilhena knew that the deed from Ms. Orpen did not grant him those rights; and (3) Mr. Vilhena knew that a survey which he had had J.J. Konig prepare in 1987 did not reflect the right-of-way.

[45] The trial judge further found that by approaching Dr. Sochaniwskyj with the 1987 document, Mr. Vilhena acknowledged that he did not have a right to use the lane and that he required Dr. Sochaniwskyj's permission to do so. This, she concluded, was inconsistent with the concept that Mr. Vilhena used the lane "as of right".

[46] In reaching this conclusion, the trial judge carefully reviewed the case law and leading texts on what must be established to show that one's use is "as of right" and stated that the claimant must use the land as if he or she had the right to use it without permission.

[47] She explained that the issue was not whether Mr. Vilhena obtained permission to use the lane. Rather, it was whether [page249] Mr. Vilhena did anything inconsistent with using the lane as if he had the right to. The 1987 incident demonstrated that Mr. Vilhena was not using the lane as of right because it was an acknowledgment that he needed permission to use it. Accordingly, the 1987 incident interrupted the running of the prescriptive period.

The Issue

[48] This appeal raises a single issue: did the trial judge err in finding that the appellant had not discharged the burden of proving that its predecessors had used the lane "as of right" for 20 years prior to 2003? Specifically, did the trial judge err in finding that the 1987 incident interrupted the running of the prescriptive period?

Analysis

[49] The appellant argues that the 1987 incident was Mr. Vilhena's attempt to settle a dispute with the Sochaniwskyjs regarding use of the lane during the prescriptive period and that such an attempt does not disentitle it to a prescriptive easement over the lane.

[50] I do not accept this submission as it is neither factually nor legally correct.

[51] I will review the 1987 incident to demonstrate the factual inaccuracy of the appellant's submission. To demonstrate the legal inaccuracy, I will set out the legal principles governing the doctrine of lost modern grant and then consider their application to the facts of this case.

The 1987 incident

[52] The appellant characterizes Mr. Vilhena's actions in the 1987 incident as a good neighbour trying to settle a dispute. This characterization is not borne out by the record.

[53] There was no evidence of a dispute between Mr. Vilhena and the Sochaniwskyjs at the time of the 1987 incident. On the record, it appears that the Sochaniwskyjs were likely unaware of Mr. Vilhena's existence in early 1987 when he approached Dr. Sochaniwskyj with the 1987 document. No prior issues divided them at that time and there had been no prior attempts to restrict Mr. Vilhena's use of the lane. There simply was no dispute to resolve at the time. Indeed, Mr. Vilhena testified at trial that the 1987 incident took place only as a result of his architect's prompting, testimony that is at odds with the suggestion that it was done to resolve a dispute with the Sochaniwskyjs. [page250]

[54] Moreover, the appellant's assertion of a dispute cannot stand in the face of the trial judge's findings of fact, findings that are amply supported on the record. It will be recalled that the trial judge rejected Mr. Vilhena's evidence that the 1987 incident was due to the prompting of his architect because he needed to obtain a building permit. As the trial judge observed, the building permit had been issued in the fall of 1986, well prior to the 1987 incident, and the municipal parking requirements had been satisfied by means of the lease of parking spaces from the church to the east of 1043. To this I would add that the architect's evidence made it clear that it had not asked Mr. Vilhena to do any such thing.

[55] As the trial judge found, the 1987 incident occurred because Mr. Vilhena knew that he did not have the right to use the lane and he needed the Sochaniwskyjs' permission to do so.

The doctrine of lost modern grant

[56] Henderson v. Volk, supra, is the leading Ontario case on prescriptive easements and the doctrine of lost modern grant. In Henderson, at p. 382 O.R., Cory J.A. (as he then was) observed that there had been a "persistent, searching inquiry" as to whether the doctrine of lost modern grant continued to exist in Ontario. On behalf of this court, he found that it did and explained that the doctrine is the foundation for the acquisition of prescriptive easements. The doctrine is based on the legal fiction that the owner of property originally made a grant of the easement to the claimant (or its predecessor), despite the absence of any direct evidence that such a grant had been made.

[57] To acquire an easement by prescription, the claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, for a period of 20 years: see Henderson, at p. 383 O.R.

[58] This appeal turns on the scope of the requirement that use must be "under a claim of right" or "as of right".

[59] In Henderson, at p. 383 O.R., use as of right is described as enjoyment that is not at the will and pleasure of the owner of the property over which the easement is sought to be established (i.e., the owner of the servient tenement). That is, enjoyment of the easement must not be permissive but, instead, as if the claimant had the right to the easement. In short, the claimant's use of the easement must be as if it had obtained a legal grant of the easement from the owner of the servient tenement.

[60] Statements by this court in two other prescriptive easement cases play a significant role in this appeal. The first [page251] statement is found in Garfinkel v. Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388, [1955] O.J. No. 562 (C.A.), at p. 394 O.R.:

. . . acknowledgment by the dominant owner that his [use] is not as of right, at any time during the 20-year period will prevent his acquiring a prescriptive right.

[61] The second is Blair J.A.'s statement in Kaminskas v. Storm (2009), 95 O.R. (3d) 387, [2009] O.J. No. 1547, 2009 ONCA 318, at para. 30:

User "as of right" means that the use has been uninterrupted, open, peaceful and without permission for the relevant period of time.

[62] Finally, it is important to bear in mind the policy considerations that underpin the doctrine of lost grant.

[63] In Henderson, at p. 384 O.R., Cory J.A. described these policy considerations, stressing the need for caution before finding that a prescriptive easement has been established. He wrote this:

It is right and proper for the courts to proceed with caution before finding that title . . . by the doctrine of lost modern grant was established . . . It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor.

[64] In Temma Realty Co. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293, [1968] O.J. No. 1152 (C.A.), this court considered a different aspect of the doctrine of lost grant, namely, the character of the use that must be proved and whether that use accommodated the dominant tenement. Nonetheless, when determining whether a prescriptive right-of-way over a road had been proved, the court was careful to consider the evidence in light of the underlying policy considerations, saying, at p. 297 O.R.:

[W]here such [use by the neighbour] does not injure the road or interfere with the owner's use of it, the tendency of the Courts is to lean against a doctrine that would permit such a neighbourly accommodation from ripening into a legal right as against the true owner.

Application of the doctrine to the present case

[65] With these principles in mind, I turn to the question that lies at the heart of this appeal: what are the legal consequences of the 1987 incident? Did that incident interrupt the running of the prescriptive period?

[66] The appellant acknowledges that had Dr. Sochaniwskyj signed the 1987 document, its claim to an easement would be defeated because use thereafter would have been by way of permission. Permissive use cannot be use "as of right". [page252]

[67] But, the appellant argues, because Dr. Sochaniwskyj did not sign the 1987 document, Mr. Vilhena's use of the lane thereafter was without permission. Thus, it says, Mr. Vilhena's use was as of right within the Kaminskas definition: uninterrupted, open, peaceful and without permission. Accordingly, the 1987 incident did not interrupt the prescriptive period.

[68] The respondent, on the other hand, relies on the statement in Garfinkel. It submits that the 1987 incident amounts to an acknowledgment by Mr. Vilhena (the dominant owner) that his use was not as of right and, as was stated in Garfinkel, such an acknowledgment interrupts the running of the prescriptive period.

[69] In my view, the respondent is correct.

[70] As we have seen, use as of right means that the claimant has used the easement as if it owned the easement -- that is, as if the owner had given the claimant (or its predecessor) a grant of the easement. When a person has a grant, he or she is entitled to use the easement as of right. There is obviously no need to seek the true owner's permission to use the easement when one has the right to use it. Thus, it can be seen, asking permission to use the lane is simply inconsistent with using it as a matter of entitlement (i.e., as of right).

[71] If Mr. Vilhena had the right to use the lane, there would have been no need to seek permission as he did when he asked Dr. Sochaniwskyj to sign the 1987 document. That was the whole point of the 1987 document: to gain the right to use the lane, rather than to remain in the precarious position of relying on the Sochaniwskyjs' neighbourly forebearance. Thus, presenting the 1987 document to Dr. Sochaniwskyj was, in the words of Garfinkel, an acknowledgment by Mr. Vilhena that his enjoyment of the lane was not as of right and that he needed permission to use it.

[72] In fact, the 1987 document contains an express acknowledgment by Mr. Vilhena to this effect. It will be recalled that one of the recitals in the 1987 document states "there exists no mutual right-of-way in favour of either Vilhena or Sochaniwskyj with respect to the use of that portion of the driveway area owned by the other".

[73] The point that an acknowledgment of title will stop the clock from running for claimants seeking to prove a right based on prescription was well expressed in the letter given to the appellant on the closing of the purchase of 1043 from Mr. Vilhena. The appellant's real estate lawyers cautioned the appellant that

[i]n order to acquire and maintain a prescriptive easement, it is important that you do not ever contact the property owner to the west to request [page253] consent to the use of the Laneway, as a request such as this is inconsistent with your prescriptive easement position over the Laneway lands. You must always take the position that your prescriptive easement is as of right[.]

[74] Just so. The 1987 incident was a request for consent (permission) to use the lane and, as such, an acknowledgement by Mr. Vilhena that he needed permission to use it. That acknowledgment was inconsistent with use of the lane as of right.

[75] It is for these reasons that I accept the respondent's submission on this matter.

[76] A word is in order to explain why I reject the appellant's submission. The appellant's submission hinges on his characterization of Mr. Vilhena's use of the lane after the 1987 incident as being "without permission". Such a characterization completely misunderstands the legal implications of Dr. Sochaniwskyj's refusal to sign the 1987 document.

[77] By refusing to sign the 1987 document, Dr. Sochaniwskyj refused to grant Mr. Vilhena an easement over the lane. The legal effect of his refusal was tantamount to saying to Mr. Vilhena "I will not give you any legal right to use the lane. I may permit you to use it, as I have in the past, but only so long as I wish. By refusing to give you any legal right to use the lane, I am telling you that I can and will withdraw my permission at will." In other words, in law, the refusal to sign the 1987 document (i.e., grant the easement) made it clear that any future use by Mr. Vilhena of the lane was solely at the discretion of the Sochaniwskyjs.

[78] This understanding of the legal consequences of Dr. Sochaniwskyj's refusal to sign the 1987 document is borne out by the events in the two years that followed the 1987 incident. During that period, it will be recalled, Dr. Sochaniwskyj's use of his own lane was being impeded by Mr. Vilhena (and his tenants and invitees). Dr. Sochaniwskyj took steps to preclude their use of the lane (i.e., to withdraw his permission at will). Through his son, he paid for and installed a commercially produced sign stating that the lane was private property belonging to 1045. The parking tickets he placed on cars behind 1045 reinforced that message.

[79] This understanding also explains why the reasoning in Kaminskas is fully congruent with that in both Henderson and Garfinkel. In Kaminskas, the issue was whether the granting of permission by the owner of the servient tenement defeated a prescriptive easement. It was within that context that Blair J.A. defined the term "as of right" and held that permission granted did defeat the prescriptive easement. Here, as I have explained, [page254] the refusal to sign the 1987 document made it clear that Mr. Vilhena's use was with the Sochaniwskyjs' permission, and not as of right. Therefore, Mr. Vilhena's use did not meet the definition of "as of right" in Kaminiskas.

[80] Furthermore, the policy considerations that underpin the doctrine of lost modern grant are fully at play in this proceeding. Should the doctrine be found to apply, the owner of 1045 will be subject to the burden of a right-of-way without compensation. Despite being the legal owner of the lane, it will be limited in its own use of the lane. For example, the respondent could not park on the lane in such a way as to preclude the appellant from using it as a right-of-way to gain access to the parking behind 1043. And, despite being the legal owner of 1045, the respondent would lose the right to extend its building to the lot line, even though that is permitted by the municipal by-laws. Such an encroachment on the respondent's ownership rights would be particularly unsettling in light of the fact that Mr. Vilhena took the full benefit of such a right when he was the owner of 1043.

[81] As the evidence makes plain, the Sochaniwskyjs acted throughout as considerate, thoughtful neighbours. They were content to permit the owners of 1043 and their tenants, employees and invitees to use the lane, so long as that use did not interfere with their own use of the lane. Dr. Sochaniwskyj is a non-confrontational man, with a personal history that well explains why he may have been more acquiescent than others might be in similar circumstances. Even when he asserted his ownership rights after the 1987 incident, he did so in a non-confrontational manner. Rather than confronting would-be users of the lane, as we have seen, he had his son post a sign on his building next to the lane, advising that the lane was private property belonging to 1045.

[82] Were there any ambiguity in my mind about whether the 1987 incident interrupted the prescriptive period, I would resort to this court's exhortation in Temma Realty to lean against applying the doctrine in a fashion that would permit a neighbourly accommodation from ripening into a legal right as against the true owner.

[83] The policy of the law in this area is clear: the law ought not to discourage considerate neighbourly behaviour by creating the fear that those acts will later be construed as acquiescence sufficient to give your neighbour rights over your land. To use the language of Henderson, the doctrine of lost grant ought not to punish Dr. Sochaniwskyj for being a kind and good neighbour nor ought it to reward the aggressor, Mr. Vilhena. [page255]

Conclusion

[84] The trial judge was in the best position to determine whether the 1987 incident demonstrated that Mr. Vilhena sought permission to use the lane and, hence, was an acknowledgment that he was not using it as of right. There is no basis for appellate interference with those findings. Further, in my view, the trial judge correctly applied the relevant legal principles in concluding that the 1987 incident interrupted the prescriptive period.

Disposition

[85] Accordingly, I would dismiss the appeal with costs in the agreed-on amount of $16,000, all inclusive.

LASKIN J.A. (concurring): --

A. Introduction

[86] I have read the judgment of my colleague Gillese J.A. Although I reach the same result as she does, I do so for different reasons.

[87] Both the application judge and my colleague rely on the document Vilhena proffered to Sochaniwskyj in February 1987, which Sochaniwskyj refused to sign. According to the application judge and Gillese J.A., that document amounted to an acknowledgment by Vilhena that he was not using the lane "as of right". And further, in my colleague's words, at para. 79 of her reasons, "the refusal to sign the 1987 document made it clear that Mr. Vilhena's use was with the Sochaniwskyjs' permission, and not as of right".

[88] I do not agree. If Sochaniwskyj had signed the document, he would have granted permission to Vilhena to use the lane and Vilhena would have acknowledged that going forward he was using the lane with Sochaniwskyj's consent or permission. Permission would have broken the running of the prescriptive period. However, Sochaniwskyj did not sign the document. In my view, if any inference can be drawn from Sochaniwskyj's refusal to sign the document, it is that Vilhena's later use of the lane was not with permission.

[89] However, Sochaniwskyj's later conduct -- specifically, asking his son to post signs restricting use of the lane to residents or guests of his property -- was sufficient to defeat Vilhena's claim to a prescriptive easement. Posting the signs was an overt act of protest against Vilhena's use of the lane that interrupted the running of the prescriptive period. For this reason, I do not [page256] believe the appellant is entitled to an easement. Therefore, I reach the same result as my colleague and would dismiss the appeal.

[90] Gillese J.A. has thoroughly set out the factual background of this litigation, and it is unnecessary to repeat it here. In these reasons, I will deal with the legal requirements of a prescriptive easement by lost modern grant, the policy considerations underpinning this dispute and their application to this case.

B. Prescriptive Easements by Lost Modern Grant

[91] As my colleague notes, the acquisition of a prescriptive easement by lost modern grant rests on a judicial fiction. The law pretends that an easement was granted at some time in the past but that the grant of the easement has gone missing. A prescriptive right emerges from long, uninterrupted, unchallenged use for a specified period of time -- in Ontario, 20 years: Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Carswell, 2010), at p. 386.

[92] But while the right to a prescriptive easement protects the dominant owner's reliance on long usage, courts are naturally reluctant to find a prescriptive right because doing so burdens the servient owner's land without compensation.[^5] And now, in Ontario, the availability of a prescriptive easement is quite limited. We have abolished the acquisition of easements by prescription over property in the Land Titles system: Land Titles Act, R.S.O. 1990, c. L.5, s. 51.[^6]

[93] However, a prescriptive easement by lost modern grant continues to be available in Ontario outside the land titles system. The requirements for acquiring one are well established. The use must be continuous for the prescriptive period and it must be "as of right". This appeal turns on the "as of right" requirement.

[94] "As of right" is a technical, legal phrase that consists of three elements. First, the dominant owner's use must be without violence or force. In this context, violence is broadly defined -- even use, for example, in the face of protest by the servient owner may demonstrate that the dominant owner's use was not without violence. [page257]

[95] Second, the dominant owner's use must be without secrecy. The law will not allow a prescriptive right to be acquired where the use has not been open. If a dominant owner's use has been covert, then it cannot be inferred that the servient owner acquiesced in the use.

[96] Third, the dominant owner's use must be without the servient owner's permission. Where use is by permission or on the consent of the servient owner, it cannot be said to be "as of right". Permission can be withdrawn at any time; thus, use by permission is inconsistent with use "as of right": see Ziff, Principles of Property Law, at p. 388; E.H. Burn and J. Cartwright, Cheshire and Burn's Modern Law of Real Property, 17th ed. (Oxford: Oxford University Press, 2006), at pp. 614-15.

[97] Blair J.A. summed up these three elements of "as of right" usage in Kaminskas v. Storm, at para. 30:

User "as of right" means that the use has been uninterrupted, open, peaceful and without permission for the relevant period of time. It is often described using the Latin maxim nec vi, nec clam, nec precario (i.e., without force, without secrecy, and without "precario"). "Precario" in this sense is taken to mean "[t]hat which depends not on right, but on the will of another person" . . . Nec precario, therefore, means "without permission."

(Internal citations omitted)

[98] Two points about these elements of "as of right" usage are important for this appeal. First, what underlies all three elements is the notion of acquiescence. Where a servient owner acquiesces in another person's use of land for a long period of time, and does nothing to prevent that use though able to do so, the law reasonably concludes that the use has been rightfully enjoyed -- enjoyed "as of right". The law then protects this usage by granting a prescriptive easement.

[99] In Dalton v. Angus (1881), 6 App. Cas. 740 (H.L.), Fry J. emphasized that prescriptive rights rest on acquiescence, at pp. 773-74 App. Cas.:

But leaving such technical questions aside, I prefer to observe that, in my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.

[100] Admittedly, a fine line may well exist between acquiescence and implied permission or consent. And, as I discuss next, the policy considerations surrounding a prescriptive easement may, in some contexts, argue for taking a generous view of [page258] implied permission. Nonetheless, whether a servient owner acquiesces in another's use of the property or impliedly permits or consents to its use turns on the facts of each particular case.

[101] The second important point about "as of right" usage is that it does not depend on a dominant owner's mistaken view of its rights. The dominant owner knows that the servient owner owns the property in question, but uses it anyway. "As of right" usage depends only on long, uninterrupted and unchallenged usage, which the servient owner could have prevented but did not.

C. Policy Considerations

[102] The policy considerations relating to easements by prescription, and to this case in particular, are varied.

[103] One obvious consideration is that awarding an easement by prescription burdens the servient owner's land without compensation. This policy consideration suggests that courts should tread cautiously before concluding that a dominant owner has acquired an easement by prescription.

[104] A second policy consideration is the one referred to by Cory J.A. in Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379, [1982] O.J. No. 3138 (C.A.), at p. 384 O.R.: "Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor." This consideration, too, argues for caution before making a finding that a prescriptive easement by lost modern grant has been acquired.

[105] A third consideration, however, is that the courts ought reasonably to protect the dominant owner's reliance interest where the usage has been open and uninterrupted for many years and where the evidence clearly shows that the servient owner has acquiesced in that usage.

[106] A final policy consideration applies directly to this case. The courts should not propound rules that reward a dominant owner's surreptitious behaviour and that discourage neighbours from approaching one another about potentially litigious issues. Instead, the rules should encourage property owners to alert one another to concerns about mutual usage and to reach fair and reasoned resolutions to these concerns.

[107] Moreover, holding that a dominant owner's attempt to secure an agreement to use the servient owner's property by itself defeats the acquisition of a prescriptive easement creates perverse incentives. This holding encourages dominant owners to follow the very advice given by the appellant's real estate lawyers: never contact the servient owner, never seek the servient [page259] owner's consent or permission, pretend that your use is of right. A dominant owner would have no incentive to try to reach an amicable agreement with the servient owner and every incentive not to do so.

[108] By receiving a proposed agreement, a servient owner is also given notice of the dominant owner's potential claim and, consequently, an opportunity to protect its interests. For instance, a servient owner could always defeat the acquisition of a prescriptive easement by granting express permission to the use, or by insisting on a modest fee paid periodically.

D. Application to this Case

(a) Use of the lane before 1987

[109] The application judge found -- and this finding is not challenged on appeal -- that from 1980-86, Ms. Orpen used the lane openly and without permission to access her parking at the back of 1043 Bloor West. In other words, Sochaniwskyj acquiesced in her use. Similarly, it would seem that Sochaniwskyj acquiesced in Vilhena's use from the time Vilhena purchased the property in 1986 to February 1987.

(b) The 1987 document

[110] In February 1987, Vilhena asked Sochaniwskyj to sign an agreement giving Vilhena the right to use the lane to access his parking for five years, at an annual fee of $300. Sochaniwskyj refused to sign the agreement. What is the effect of Vilhena's proffering of the agreement, and of Sochaniwskyj's refusal to sign it, on the third element of "as of right" use -- that the dominant owner's use be without the servient owner's permission? That is the main question on appeal.

[111] Both the application judge and my colleague say that the mere proffering of the agreement, though it was not signed, amounted to an acknowledgment by Vilhena that his use was not "as of right": see Garfinkel v. Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388, [1955] O.J. No. 562 (C.A.), at p. 394 O.R. Gillese J.A. also says that Sochaniwskyj's refusal to sign the agreement shows that Vilhena's future use of the lane was only with Sochaniwskyj's permission. Respectfully, I take a different view from that of the application judge and Gillese J.A.

[112] I begin by looking at Vilhena's use up to February 1987, that is, up until the time he proffered the agreement. Certainly, up until then, Vilhena used the lane without Sochaniwskyj's permission. The evidence shows that Sochaniwskyj acquiesced [page260] in Vilhena's use. And, nothing in the provisions of the proposed agreement suggests otherwise.

[113] I then turn to the proffering of the agreement itself and to Sochaniwskyj's refusal to sign it. Did either alter the basis on which Vilhena used the lane after February 1987?

(i) The effect of Vilhena's proffering of the agreement on his future use of the lane

[114] By proffering the agreement, Vilhena unquestionably sought Sochaniwskyj's permission to use the lane. But because Sochaniwskyj refused to sign the document, there was no agreement -- no meeting of the minds -- and therefore no acknowledgment of the basis of Vilhena's later use of the lane. His later use could have been with Sochaniwskyj's permission, or it could have been with Sochaniwskyj's acquiescence, or it could have been in the face of Sochaniwskyj's protests. That was a factual question the unsigned agreement does not resolve, and the application judge did not determine.

[115] Gillese J.A. suggests that because the proposed agreement was an acknowledgement of Sochaniwskyj's title, it "stopped the clock from running". I disagree. It seems to me that Vilhena's acknowledgment that Sochaniwskyj had legal title to the lane is irrelevant to the question whether Vilhena's use was as of right. As I said earlier, usage as of right does not mean usage based on a mistaken view of who holds legal title. Vilhena always knew and acknowledged that Sochaniwskyj legally owned the lane. Vilhena's claim to a prescriptive easement was based on his uninterrupted usage and Sochaniwskyj's acquiescence to that usage.

[116] Therefore, I conclude that the unsigned February 1987 agreement, standing alone, did not amount to an "acknowledgement by the dominant owner [Vilhena] that his user is not as of right": Garfinkel, at p. 394 O.R. Because Sochaniwskyj did not sign the agreement, the agreement did not amount to an acknowledgment of anything. Therefore, by itself, the agreement did not interrupt the running of the prescriptive period. The policy considerations that I referred to earlier support this conclusion.

(ii) The effect of Sochaniwskyj's refusal to sign the agreement

[117] Gillese J.A. says that, by refusing to sign the agreement, Sochaniwskyj was, in effect, telling Vilhena that any future use of the lane would only be with his (Sochaniwskyj's) permission. She writes, at para. 77 of her reasons: [page261]

By refusing to sign the 1987 document, Dr. Sochaniwskyj refused to grant Mr. Vilhena an easement over the lane. The legal effect of his refusal was tantamount to saying to Mr. Vilhena "I will not give you any legal right to use the lane. I may permit you to use it, as I have in past, but only so long as I wish. By refusing to give you any legal right to use the lane, I am telling you that I can and will withdraw my permission at will." In other words, in law, the refusal to sign the 1987 document (i.e., grant the easement) made it clear that any future use by Mr. Vilhena of the lane was solely at the discretion of the Sochaniwskyjs.

[118] And again, at para. 79:

Here, as I have explained, the refusal to sign the 1987 document made it clear that Mr. Vilhena's use was with the Sochaniwskyjs' permission, and not as of right. Therefore, Mr. Vilhena's use did not meet the definition of "as of right" in Kaminiskas.

[119] Respectfully, there is no evidence to support the conclusion that Sochaniwskyj's refusal to sign the agreement meant that Vilhena's later use, or indeed his previous use, was with Sochaniwskyj's permission. If Vilhena had Sochaniwskyj's permission, then presumably Sochaniwskyj would have told him so, or signed the agreement, or negotiated another agreement. But he did none of these things. If anything, Sochaniwskyj's refusal to sign the agreement showed that Vilhena's later use was not with Sochaniwskyj's consent. And, indeed, the evidence of Sochaniwskyj's subsequent conduct suggests that Vilhena's later use was without Sochaniwskyj's permission and against his will.

[120] Therefore, in my view, neither Vilhena's proffering of the agreement nor Sochaniwskyj's refusal to sign it stopped the running of the prescriptive period. To determine whether the prescriptive period was interrupted, we need to examine what actually happened after February 1987.

(c) Use of the lane after February 1987

[121] Vilhena said that he continued to use the lane after February 1987 as he had in the past. Thus, he claims that his usage was open, uninterrupted and "as of right". Although the application judge made no finding about the basis on which Vilhena used the lane after February 1987, the evidence of what Sochaniwskyj did is not seriously disputed. And, in my view, the evidence of Sochaniwskyj's conduct after he refused to sign the proposed agreement contradicts Vilhena's claim.

[122] In 1989, Sochaniwskyj asked his son to have two commercial signs made by a sign company. The signs said: "Private Driveway Private Parking 1045 Bloor Street West." They cost approximately $250. At his father's request, Sochaniwskyj's son bolted one sign to the side wall along the lane, angled towards the street about ten feet above the ground, and another to a [page262] steel post in the parking area in the back of the property. Though Vilhena denied at trial that a sign was mounted in the lane, the respondents do not seem to dispute that it was in fact posted.

[123] A couple of weeks later, the sign posted in the lane was removed and the other sign was knocked down. It is unclear from the record who removed the signs, though Vilhena denied any involvement. When asked why his father did not replace the signs, Sochaniwskyj's son testified that his father had not wanted to spend the money when "he knew that they would just get taken down again".

[124] Use "as of right" means use without violence. Use without violence is broadly defined. It "means not only that there has been no physical obstruction of the easement, but also that the use did not proceed in the face of protests from the servient owner that might be seen as challenging the claimed right": Ziff, Principles of Property Law, at p. 388.

[125] In the context of a dispute between neighbours, where the servient owner is a "non-confrontational man", the posting of the signs was an overt act of protest that demonstrated the use was disputed. The underlying policy considerations militate against the courts taking a narrow view of the meaning of "protest" in cases like this. We should not require servient owners to take expensive, drastic or aggressive measures to assert their rights, so long as their actions clearly signify that the use is contested. The signs are enough, in my view, to show that Vilhena's use of the lane after February 1987 was not without violence.

[126] For these reasons, I agree with the result reached by the trial judge and Gillese J.A and would dismiss the appeal.

E. Conclusion

[127] In my view, the 1987 document by itself did not defeat the acquisition of a prescriptive easement by lost modern grant. However, Sochaniwskyj's later posting of "Private Driveway" signs along the lane was sufficient to interrupt the running of the prescriptive period. Accordingly, I would dismiss the appeal.

[128] MACPHERSON (concurring): -- I agree with Gillese J.A. that "the 1987 incident interrupted the prescriptive period" and with her analysis in support of this conclusion.

[129] I agree with Laskin J.A. that "Sochaniwskyj's later posting of 'Private Driveway' signs along the lane was sufficient to interrupt the running of the prescriptive period" and with his analysis in support of this conclusion. [page263]

[130] On either basis, the prescriptive period did not run for the required 20 years. Accordingly, I too would dismiss the appeal.

Appeal dismissed.

Notes

[^1]: In the proceedings below, the lane is sometimes referred to as a driveway. [^2]: 1043 migrated to the land titles system on April 28, 2003. It was undisputed at trial that any prescriptive rights had to have accrued prior to that date. [^3]: The rear part of the lane was a garden during this period. Although claimed at first instance as part of the right-of-way, in oral submissions in this court, the appellant stated that no claim was made to that rear part of the lane. [^4]: In these proceedings, the respondent took the position that the notice was fraudulent, void and of no effect as against it. [^5]: A servient owner is the owner of land over which one exercises an easement. A dominant owner is an owner who seeks the right to an easement. [^6]: The lane and adjoining property at issue in this dispute were transferred into the land titles system in 2003. Thus, the appellant had to establish the requisite use during a 20-year period before 2003.

End of Document