COURT OF APPEAL FOR ONTARIO

CITATION: Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466

DATE: 20150624

DOCKET: C59756

Juriansz, Lauwers and Huscroft JJ.A.

BETWEEN

Condos and Castles Realty Inc.

Applicant (Appellant)

and

Janeve Corp.

Respondent (Respondent)

Alfred S. Schorr, for the appellant

Andrea M. Habas, for the respondent

Heard: June 3, 2015

On appeal from the judgment of Justice Paul Perell of the Superior Court of Justice, dated November 17, 2014, reported at 2014 ONSC 6640.

Lauwers J.A.:

Overview

[1] The application judge dismissed the appellant’s application for a declaration that it had a right-of-way over a private laneway behind some buildings on King Street West in Toronto. The application judge concluded that the appellant’s predecessors in title had not acquired a prescriptive easement over the laneway on the basis that “there was more than 20 years of use of the private right-of-way but the use was by licence and not as of right.”

[2] There is no evidence to support the application judge’s factual finding that the respondent’s predecessor in title permitted his neighbours to cross over his property by way of licence and not as of right. I would therefore allow the appeal.

The Factual Context

[3] The physical layout of the relevant properties is set out in the following sketch, found in the application judge’s reasons at para. 21:

[4] The appellant owns 842 King Street West, which abuts the right-of-way leading to the public lane depicted in the sketch. The respondent owns the four properties known municipally as 844-850 King Street West, as well as the right-of-way directly behind them. The issue is whether the appellant’s predecessors in title to 842 King Street West acquired from the respondent’s predecessor in title a prescriptive easement over the depicted right-of-way.

The Legal Principles

[5] The appellant brought its application for a prescriptive easement on the basis that its predecessors in title exercised a continuous, uninterrupted, open and peaceful use of the private laneway as a right-of-way for vehicular and other traffic from the rear of its property westward to the public laneway, without the owner’s express consent, for over 20 years before the first registration of the property in the Land Titles System in 2003, taking into account s. 31 of the Real Property Limitation Act, R.S.O. 1990, c. L.15.

[6] The appellant’s legal burden was to “demonstrate a continuous, uninterrupted, open, and peaceful use of the land, without objection by the owner”, as the application judge noted at para. 38, citing 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007, 98 R.P.R. (4th) 21. He added:

The evidence required to establish title by prescription will vary with the nature of the user. Where the use is notorious and the owner of the servient tenement makes no objection, then his or her acquiescence to the use as a right of the dominant tenement can more readily be inferred.

[7] The application judge drew particularly on Henderson v. Volk, 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379, [1982] O.J. No. 3138 (C.A.). He quoted and relied on para. 20 of this decision, where Cory J.A said:

It is right and proper for the Courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant is established in a case such as this. 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. It is reasonable to require those seeking to rely upon the Limitations Act or the doctrine of lost modern grant to establish by clear evidence both a continuous use and acquiescence in such use by the owner of the servient tenement.

[8] With respect, however, these words must be understood in the context. Henderson v. Volk involved pedestrian use of property between two residences. Cory J.A. explained that the distinction between vehicular and pedestrian traffic was significant. He said at paras. 18-19:

The evidence required to establish title by prescription will vary with the nature of the user. The use of a passageway by noisy delivery trucks would be hard to hide. The use of a lane for passage by tractor trailer rigs with motors roaring and air brakes hissing would be difficult to disguise. In those instances the owner of the servient tenement can readily be taken to know of the user of his property. If he makes no objection then his acquiescence to the use can readily be inferred.

It is different when a party seeks to establish a right-of- way for pedestrians over a sidewalk. In those circumstances the user sought to be established may not even be known to the owner of the servient tenement. In addition, the neighbourly acquiescence to its use during inclement weather or in times of emergency such as a last minute attempt to catch a bus, should not too readily be accepted as evidence of submission to the use.

[9] In my view, the inconspicuous nature of pedestrian traffic distinguishes Henderson from this case, which concerns vehicular traffic. In a case of straightforward vehicular use of a laneway as a right-of-way, the applicable principle is more direct, as Laskin J.A. pointed out in 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, 114 O.R. (3d) 241, at para. 105: “[T]he 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.”

[10] There is no doubt that the burden of proof is and remains on the claimant in such cases, but the evidentiary burden may shift as the evidence unfolds. That is what occurred in this case.

The Evidence

[11] All five subject properties. 842-850 King Street West, were part of a subdivision registered in 1874. On November 8, 1982, David Chan registered four of the properties, 844-850 King Street West, under survey Plan 63R-2752. The application judge noted, at para. 23:

It can be inferred from the registration of survey Plan 63R-2752 that Mr. Chan was positioning himself to sell the four properties comprising 844-850 King St. West as four discrete properties. Of these four properties, 850 King St. West had access to the public lane, and to afford the remaining three properties access to the public laneway, Mr. Chan created registered mutual private rights-of-way.

[12] When survey Plan 63R-2752 was registered in 1982, Agostino and Maria Lopes (now deceased) were the registered owners of 842 King Street West, the neighbouring property to the east. In December 2001, the Lopes sold the property to Patricia Pelech, who sold it to Inner City Films, the respondent’s immediate predecessor in title, in September 2005.

[13] The trial judge observed, at para. 24, that 842 King St. West “was a family home, and there is evidence that family members parked their vehicles at the rear of 842 King St. West and used the private right-of-way to access the public laneway.”

[14] Morry Katz was a tenant in the house at 844 King St. West from 1982 or 1983 until 2010. His son, Michael, then occupied the house until 2012. The Lopes family were the Katz's neighbours. Mr. Morry Katz testified that he saw various members of the Lopes family drive their vehicles across the private-right-of-way. His own belief was that the private right-of-way was a public road. The application judge noted, at para 27:

There is evidence from Mr. Morry Katz and from the documents filed on the Application that indicates that there was a garage for cars on 842 King St. West but that the garage was removed, probably by Ms. Pelech.

[15] The application judge also noted, at para 41, that the real estate listing agreement on the sale of 842 King St. West from Inner City Films to the appellant stated there was a right-of-way to parking at the rear of the property.

Analysis

[16] After reciting the foregoing evidence, the application judge found there was more than 20 years use of the private right-of-way but he went on to add at para. 40:

…but the use was by licence and not as of right. It appears that Mr. Chan permitted his neighbours to cross over his property and there was no reason for him to think that Ms. Pelech and the Lopes were using his private right-of-way as if they had an ownership right to do so.

[17] Mr. Chan did not testify and there was no evidence about his attitude about the appellant’s use of the laneway. The respondent submitted the appellant could not establish its case without calling Mr. Chan as a witness. I disagree. Once the appellant had proven facts that support the inference of acquiesce in 20 years of use, the evidentiary burden passed to the appellant to lead evidence to rebut the inference by proving the use was by permission.

[18] The following facts are sufficient to shift the evidentiary burden in this case:

• the longstanding physical layout of the area by which 842 King Street West abuts the laneway Mr. Chan turned into a registered right-of-way;

• the existence of a garage accessible only over the right-of-way was located at the rear of 842 King Street West for many years until it was torn down by Ms. Pelech;

• the plain and obvious vehicular use of the right-of-way by the occupants of 842 King Street West, as described by witnesses who were present at the time;

• the absence of any evidence of objection or exercise of control by Mr. Chan; and

• the documentary evidence that the owners of 842 King Street West considered that they enjoyed the right-of-way as noted in listing agreements over the years.

Nor does the application judge explain why this evidence did not call for a response from the respondents.

[19] In my view, Mr. Chan’s acquiescence can be readily inferred from this evidence. A fine line may well exist between acquiescence and permission in many cases: 1043 Bloor Inc., at para. 100. However, in this case, all the evidence points to acquiescence. There is no evidence of permission.

[20] The relationship between acquiescence and permission, and the shifting evidentiary burden, was well laid out by the Nova Scotia Court of Appeal in Mason v. Partridge, 2005 NSCA 144, 261 D.L.R. (4th) 315. Justice Oland held that, in deciding whether Partridge had granted Mason permission to use an old logging road to cross over Partridge's land, the trial judge erred in law by failing to differentiate between acquiescence and permission. At para. 30, Oland J.A. noted that “the trial judge erred by failing to recognize that absence of consent can be established by evidence of acquiescence or evidence sufficient to raise an inference of acquiescence.” At para. 31, citing Gale on Easements, 17th ed. (London: Sweet & Maxwell, 2002), at p. 215, she called acquiescence the "foundation of prescription" and stated that "passive toleration is all that is required for acquiescence".

[21] This accords with the principles in this court’s statement in Monaghan v. Moore (1996), 1996 CanLII 4015 (ON CA), 31 O.R. (3d) 232, [1996] O.J. No. 3900, at para. 8, citing Dalton v. Angus (1881), 6 App. Cas. 740 at pp. 773-74 (H.L.). Doherty J.A said:

[I]n 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. It becomes then of the highest importance to consider of what ingredients acquiescence consists. In many cases, as, for instance, in the case of that acquiescence which creates a right of way, it will be found to involve, 1st, the doing of some act by one man upon the land of another; 2ndly, the absence of right to do that act in the person doing it; 3rdly, the knowledge of the person affected by it that the act is done; 4thly, the power of the person affected by the act to prevent such act either by act on his part or by action in the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done. [Original emphasis omitted; emphasis added.]

[22] In Mason, Oland J.A. added, at para. 45:

[O]nce there is proof of acquiescence in acts of user which are of such a character as to support a claim of right, the claimant has established that the acts were as of right unless the owner points to some "positive acts" on his or her part which either expressly or impliedly grant permission. Here, there was no evidence that the owner, at any time, took any positive steps to prevent the use in question or did anything else from which a grant of permission reasonably could be implied. [Emphasis added.]

[23] In MacNeil v. MacNeil, 2014 NSSC 171, 344 N.S.R. (2d) 350, Edwards J. considered and applied Mason. He noted, at para. 26, “Acquiescence is not implied permission; instead acquiescence is acceptance of actions known to the property owner.” He added, at para. 27, that “the burden of proving acquiescence falls to the claimant seeking prescriptive rights. Upon proof the true owner acquiesced to the use of his property, the burden shifts to the owner to establish some positive act of permission” (emphasis added).

[24] In conclusion, the evidentiary record is that the appellant’s predecessors in title had used the laneway in a continuous, uninterrupted, open and peaceful manner without objection by Mr. Chan for over 20 years. This evidence gives rise to an inference of acquiescence by Mr. Chan. As there was no evidence to rebut the inference the application should have been allowed.

Disposition

[25] I would allow the appeal, set aside the judgment of the application judge, and issue a declaration that the appellant has an easement (right-of-way) over the northerly portions of Janeve Corp.'s properties identified by Parcel Registration PIN numbers 21244-0307 (LT) and 21244-0305 (LT) and 21244-0306 (LT), to a width equal to that of the laneway to the west of the aforesaid properties.

[26] I would order appeal costs payable to the appellant in the amount of $10,000, as agreed, and reverse the costs award made by the application judge, making it payable to the appellant.

“P. Lauwers J. A.”

Released: June 24, 2015 “PL” “I agree R.G. Juriansz J.A.”

“I agree Grant Huscroft J.A.”