COURT OF APPEAL FOR ONTARIO

CITATION: Barbour v. Bailey, 2016 ONCA 98

DATE: 20160204

DOCKET: C58076

MacFarland, Rouleau and Roberts JJ.A.

BETWEEN

Gerald Harry Barbour

Objector/Respondent

(Appellant)

and

Angelina Bailey

Possessory Claimant/Applicant

(Respondent)

Jeffrey E. Streisfield, for the appellant

Izaak de Rijcke and Robert Fenn, for the respondent

Sean Dewart, for the moving party/appellant on the costs appeal, Jeffrey E. Streisfield

Heard: June 16, 2015

On appeal from the judgment of Justice Susan Healey of the Superior Court of Justice dated November 29, 2013, with reasons reported at 2013 ONSC 7397, 39 R.P.R. (5th) 36, and from the costs orders dated April 14 and June 18, 2014, with reasons reported at 2014 ONSC 2343 and 2014 ONSC 3698.

Roberts J.A.:

A. Overview

[1] These appeals mark the culmination of a 20-year dispute between neighbours of adjacent properties on Nottawasaga Bay in Tiny Township, Ontario. At the heart of this dispute is the right of ownership and possession of a piece of property known as Part 2 of Parcel 10, on the registered plan of survey Plan BA-2608. The appellant, Gerald Barbour, holds paper title to Part 2. The respondent, Angelina Bailey, claims possessory title to it.

[2] On November 29, 2013, following a lengthy trial de novo, the trial judge granted judgment in favour of Mrs. Bailey. The trial judge found that Mrs. Bailey had acquired possessory title over the entirety of Part 2 of Mr. Barbour’s property by way of adverse possession or, alternatively, a prescriptive easement or right-of-way.

[3] By her orders of April 14 and June 18, 2014, the trial judge also required that Mr. Barbour pay Mrs. Bailey’s costs in the amount of $490,000.00 and that Mr. Barbour’s counsel reimburse Mr. Barbour for 20 per cent or $98,000.00 of the costs awarded to Mrs. Bailey, and pay personally the costs of the Rule 57.07 motion.

[4] For the reasons that follow, I would allow Mr. Barbour’s appeal from the trial judge’s finding of adverse possession, and partially allow his appeal from the trial judge’s finding of an easement in that I would limit the easement to non-vehicular traffic on the path over Part 2 marked “track” on the survey prepared by R.J. Stewart, O.L.S., and registered on title on October 15, 2004 as Plan BA-2608. I would also set aside the trial judge’s costs orders.

B. Factual and procedural background

(1) Description of the Property in Dispute

[5] Part 2 of Parcel 10 of Lot 21 is the property in dispute in these proceedings. Part 2 extends south from Parcel 9 to the southernmost border of Parcel 10. It is located east of Tiny Island. Tiny Island is designated as Part 1 on the plan of survey prepared by J.W. Hiley, dated July 17, 2006. I have attached the Hiley survey to these reasons as Appendix A. For ease of visual reference, I have also attached as Appendix B to these reasons a diagram (not to scale) that shows the position of Part 2 of Parcel 10 in relation to Tiny Island.

[6] Parcel 10 was originally part of Lot 21, a much larger property. In 1914, Lot 21 was subdivided into ten parcels. Parcel 10 is the most southerly parcel. I have attached to these reasons a diagram of the ten parcels of Lot 21 as Appendix C.

[7] Since 1949, Mr. Barbour has owned Parcel 10. Until 1976, when he built a permanent home on his property and began to live there all year round, Mr. Barbour used his property seasonally and on weekends during the rest of the year. At the time this appeal was heard, Mr. Barbour was 99 years old and lived in a retirement residence.

[8] According to Mr. Barbour’s deed, his property extends to the water’s edge. Part 2 includes the beach in front of Mr. Barbour’s mainland property. It also comprises part of an isthmus that joins Tiny Island to the beach of Part 2 when the isthmus is above water. The beach and the isthmus on Part 2 are shown on Appendix B.

[9] In December of 1988, Mrs. Bailey purchased Tiny Island from Rebecca Van Aller. Mrs. Bailey also acquired various other small parcels of land to the north of Mr. Barbour’s property on Parts 3 to 8, including a registered right-of-way that provides access to Nottawasaga Bay from the concession road, and parking spots located on the property north of Part 2.

[10] Since the purchase of Tiny Island, Mrs. Bailey and her family have continuously used their property during the summer months, at Christmas, and on weekends throughout the rest of the year.

(2) Historical Use of the Property

[11] There is no dispute that as a result of the fluctuating levels of Nottawasaga Bay, Tiny Island has at times been totally, and at other times only partially, surrounded by the waters of Georgian Bay. During periods of lower water levels, the isthmus joins Tiny Island to the beach of Part 2.

[12] As far back as 1943 and continuing to the present, during those periods when the water levels have been low enough so that it is possible to reach Tiny Island from the beach of Part 2, the owners of Tiny Island have travelled to it mostly by foot and sometimes by motor vehicle over a narrow strip of land starting to the north of Part 2 of Mr. Barbour’s property and descending south, over the beach and isthmus of Part 2. In particular, the former and present owners of Tiny Island have travelled over Part 2 on a path that they identified as that marked “driveway” on the Hiley survey.

[13] During the periods when Tiny Island has been completely surrounded by water and walking or driving over the isthmus to Tiny Island was impossible, its owners travelled to Tiny Island from the beach of Part 2 of Mr. Barbour’s property by boat or by wading through the water, leaving their motor vehicles parked on the property that they owned north of Part 2.

[14] Nothing in the evidence suggests that before 1995, Mr. Barbour objected to the owners of Tiny Island passing over his property in this way.

[15] Moreover, for at least 70 years, the various owners of Tiny Island, Mr. Barbour, other neighbours, and local residents have regularly enjoyed the use of the beach of Part 2 of Mr. Barbour’s property: walking, golfing, biking, playing and snowshoeing on it, as well as swimming, fishing, waterskiing, and boating off its shore. There is no suggestion that any objection to these uses was made by, or that express permission for these uses was sought from, Mr. Barbour or the previous owners of Parcel 10.

[16] In addition to the foregoing uses of and activities on Part 2, the Baileys have, on occasion, hired contractors and service providers who have travelled over Part 2 to reach Tiny Island. The Baileys have arranged and paid for maintenance of the path that they use to travel over Part 2 to Tiny Island, including obtaining two permits from the Ministry of Natural Resources to lay clean rocks on the isthmus in 1992 and to backfill and repair the path in 1993. They also continue to pay for yearly snow removal on the path. Again, there is no suggestion that before 1995, Mr. Barbour objected to or expressly permitted these activities.

[17] Although it has been more convenient for the owners of Tiny Island to pass over the path on Part 2 of Mr. Barbour’s property, they have always had and still have access to Tiny Island without travelling over it. First, the Baileys, like the previous owners before them, have water access to the island by boat, by virtue of their ownership of, or registered rights-of-way over, the various parcels of Parts 3 to 8, including their right-of-way from the concession road to Nottawasaga Bay. Further, access to Tiny Island is possible by walking along the water’s edge of Part 2, rather than the path, and then passing by foot or wading over to Tiny Island.

(3) Beginning of the Property Dispute and Proceedings

[18] Mr. Barbour and the Baileys enjoyed friendly, neighbourly relations until Mr. Barbour delivered a letter to the Baileys, dated September 15, 1995, requiring them to sign a licence agreement and pay a $1 licence fee to travel over the part of his property that he described as “the strip of beach from a line drawn from the fence between Nancy Rice [the previous owner of Parcel 9] and myself to the water’s edge and continuing to the island.” At that time, the water levels of Nottawasaga Bay were low enough so that the isthmus connecting Part 2 of Mr. Barbour’s property to Tiny Island was exposed.

[19] The Baileys immediately objected to Mr. Barbour’s stated position, advising him that they owned the land and had a right to pass over Part 2. Mr. Barbour’s lawyers wrote to Mrs. Bailey in March 1996, stating that Mrs. Bailey had not acquired a right, title or interest in Mr. Barbour’s property and did not have any right to cross over it. In July 2000, the Baileys wrote to Mr. Barbour, alleging that they owned the mainland beach of Part 2 and warning him about using the property other than to cross over it to access the water.

[20] In August 2000, Mr. Barbour’s lawyers responded to the Baileys and reasserted Mr. Barbour’s ownership over Part 2 of Parcel 10, stating that Mr. Barbour’s land extended to the waterline. They also indicated that Mr. Barbour was prepared to allow the Baileys pedestrian access along the beach of Part 2, but that the use of motorized vehicles was not allowed.

[21] The exchange of correspondence in which the parties asserted their respective rights over the beach and isthmus of Part 2 continued between Mr. Barbour’s lawyers and the Baileys until March 2001.

[22] Mr. Barbour subsequently commenced an application under the Boundaries Act, R.S.O. 1990, c. B.10, for the purpose of confirming the northerly, westerly and southerly boundaries of his property. Mrs. Bailey filed an objection to Mr. Barbour’s application.

[23] Mr. Barbour’s Boundaries Act application resulted in the August 8, 2003 order of Deputy Director of Titles Jack Keat. Among his conclusions and relevant to the present dispute, Deputy Director of Titles Keat denied Mrs. Bailey’s objection to the westerly boundary of Part 2 that abuts Tiny Island. He also confirmed that the true location of the boundaries of Mr. Barbour’s land would be as set out in the registered plan of survey prepared by Mr. Stewart. Attached as Appendix D to these reasons is a copy of this registered plan of survey.

[24] The Boundaries Act decision confirmed that Mr. Barbour holds paper title to Part 2, with the west and south boundaries being ambulatory and changing with the water’s edge of Nottawasaga Bay. It also confirmed a boundary that bisects the isthmus, as illustrated on the Stewart plan of survey.

[25] Mrs. Bailey instigated an appeal from the Boundaries Act decision to the Divisional Court, but it was dismissed for want of prosecution.

[26] In 2004, Mrs. Bailey brought an application under the Land Titles Act, R.S.O. 1990, c. L.5. In her application, she claimed possessory title to, or alternatively, a prescriptive easement over, the entirety of Part 2 of Parcel 10, including but not limited to the path, beach, and isthmus. Mr. Barbour filed an objection in response to her application.

[27] Following an eight-day hearing, on February 9, 2010, Deputy Director of Titles Carolyn Rosenstein allowed Mrs. Bailey’s Land Titles Act application. She found that Mrs. Bailey had established possessory title to all of Part 2. Mr. Barbour launched an appeal.

[28] On December 1, 2010, Mrs. Bailey commenced an application under r. 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In her application, Mrs. Bailey requested, as alternative relief in response to Mr. Barbour’s appeal from the Land Titles Act decision, that she be granted an interest in the nature of an easement or right-of-way over all or any portion of Part 2 of Mr. Barbour’s property.

[29] Mrs. Bailey’s Rule 14 application and Mr. Barbour’s appeal from Deputy Director of Titles Rosenstein’s decision were heard by way of a new trial in the Superior Court, in accordance with s. 26 of the Land Titles Act. The trial judge ruled in Mr. Barbour’s favour: see 2011 ONSC 4019, 8 R.P.R. (5th) 76. Mrs. Bailey successfully appealed to this court on the ground that the trial judge’s decision was tainted by a reasonable apprehension of bias: see 2012 ONCA 325, 110 O.R. (3d) 161. This court did not consider Mrs. Bailey’s appeal on the merits and ordered a new trial before a different judge. The second trial culminated in the decisions under the present appeal.[^1]

C. Analysis

(1) Possessory Claims

[30] Mr. Barbour submits that the trial judge erred in determining that Mrs. Bailey acquired possessory title over Part 2 of his property by way of adverse possession or that she obtained an interest in the nature of an easement over Part 2.

[31] Mr. Barbour’s and Mrs. Bailey’s respective properties were transferred into the Land Titles regime on September 10, 2001. In accordance with s. 51 of the Land Titles Act, after the transfer into the Land Titles system, it is no longer possible to acquire possessory title, subject to the “grandfathering” of previously established claims. In consequence, as the trial judge correctly noted and the parties agreed, any possessory claim or easement by Mrs. Bailey had to crystallize by September 10, 2001.

(i) Adverse Possession

[32] With respect to the adverse possession claim, Mr. Barbour submits as his principal argument that the trial judge erred in finding that Mrs. Bailey had demonstrated adverse possession when there was no effective exclusion of Mr. Barbour from Part 2 of his property.

[33] Mrs. Bailey argues that the trial judge correctly determined that the Baileys’ actual use of Part 2 was consistent with the bona fide use that a rightful owner would ordinarily be expected to make of her property.

[34] For the reasons that follow, I accept Mr. Barbour’s position. It is therefore unnecessary to address his other submissions on this issue. The difficulty with Mrs. Bailey’s argument is that her use of the property, even if consistent with that of a rightful owner, did not effectively exclude Mr. Barbour from his property. Without establishing this criterion, her claim for adverse possession fails.

[35] The trial judge correctly stated that to establish adverse possession, a claimant to possessory title throughout a ten-year period pursuant to s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, must establish that he or she:

i. Had actual possession of the property in issue;

ii. Had the intention of excluding the true owner from possession of his property; and

iii. Effectively excluded the true owner from possession of his property.

See Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 567, leave to appeal refused, [1984] S.C.C.A. No. 232.

[36] The claimant’s possession must be “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner” for the full term of the ten-year statutory period: Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.), at p. 724 (emphasis added).

[37] A claim for adverse possession will fail unless the possessory claimant meets all of the criteria noted above and time will begin to run against the true owner of the lands only from the last date when all criteria are satisfied: Masidon Investments, at p. 567.

[38] The trial judge held that all three criteria were met.

[39] On the question of actual possession, she found that the evidence established that Mrs. Bailey and her predecessors in title possessed Part 2 by travelling on it and using it for seasonal activities. This possession was “open, notorious, constant, continuous, peaceful, and ha[d] literally occurred under the very eye of the true owner from 1949 onward”: para. 383.

[40] On the intention issue, the trial judge held that Mrs. Bailey did not need to demonstrate that her use of the property was inconsistent with Mr. Barbour’s, by virtue of Mrs. Bailey’s honest but mistaken belief that she was the true owner of Part 2. In such circumstances, the trial judge was prepared to infer that the owners of Tiny Island occupied all of Part 2 with the intention of excluding all others, including Mr. Barbour, as a true owner would have done.

[41] Finally, the trial judge held that this possession acted to the effective exclusion of the true owner. She explained, at para. 385:

Accepting as this court has, that Mr. Barbour’s actions in 1995 are evidence that he believed that he owned to the water’s edge, he did nothing between 1949 and 1995 to alert the parties who were using and occupying it to his ownership. Even after 1995, he took no further affirmative steps until letters were sent from his lawyer in 2000. Any use that he made of the land in question was no more than any other cottager in the area; that is, to walk on the beach and occasionally swim or boat from the north beach, and there is no evidence of when he last did so.

[42] In my view, it was open to the trial judge on the evidence before her to conclude that the activities of the Baileys and their predecessors in title at the times that they used Part 2 were “open, notorious, constant, continuous and peaceful”.

[43] I am also prepared to accept for purposes of this analysis that it was open to the trial judge to infer that the owners of Tiny Island intended to exclude all others from possession of Part 2. This court has previously held that the inconsistent use criterion does not apply in cases of mutual mistake: Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216. It has not considered whether the inconsistent use criterion applies in cases of honest unilateral mistake. Assuming without deciding that the same principle may apply in cases of honest unilateral mistake[^2], in my view, the trial judge nonetheless erred in proceeding to hold that Mrs. Bailey had effectively excluded Mr. Barbour from his own property. I say this for three reasons.

[44] First, the trial judge impliedly reversed the burden of establishing effective exclusion by suggesting that the onus was on Mr. Barbour to prove that he had not been dispossessed, rather than on the Baileys to prove that they had dispossessed him.

[45] Second, and related, the trial judge failed to appreciate that a true owner does not need to exercise the same degree of control over his property as an adverse possession claimant must demonstrate. The holder of paper title is regarded as being in constructive possession of the entire property when in actual possession of merely a part. Fairly trivial acts of dominion by an owner will usually suffice: Bruce Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014), at p. 148.

[46] That Mr. Barbour did not use Part 2 of his property all of the time does not matter. Mr. Barbour was not asserting a claim for adverse possession; he is the true owner of the lands and therefore did not have Mrs. Bailey’s burden of proving open, notorious, constant, continuous, peaceful and, in particular, exclusive use of his own property for any ten-year period before 2001. As this court stated in Fletcher v. Storoschuk, at p. 725, “[i]t is trite law that the legal owner of property is in constructive possession of it even if he is not in actual possession of the whole of it” (emphasis in original).

[47] Third, this court has held that even where the inconsistent use test does not apply, the effective exclusion of the true owner throughout the ten-year period remains a requirement to establish adverse possession: Shennan v. Szewczyk, 2010 ONCA 679, 96 R.P.R. (4th) 190, at para. 20.

[48] Here, there was no evidence that Mr. Barbour was effectively excluded from his property. On the contrary, as the trial judge acknowledged, the evidence suggested that Mr. Barbour (who did not testify) used the property as “any other cottager in the area; that is, to walk on the beach and occasionally swim or boat from the north beach”: para. 385. These are precisely the activities the Baileys and their predecessors in title engaged in on the disputed property. They, too, used Part 2 as “any other cottager in the area”. There was nothing in the record before the trial judge to suggest that they did so to Mr. Barbour’s exclusion.

[49] In fact, the opposite is true. In a July 2000 letter to Mr. Barbour, Mr. Bailey wrote, under the heading “Beach access”: “Previously we have not prevented you from crossing over our land in order to access the water from your lot and are prepared to continue to give you permission to do so on an annual basis.” Under the heading “Encroachment”, Mr. Bailey wrote: “You are encroaching on our land on the easterly side of our lot. You have erected a shade tent during the summers of the last three years and this year you have also erected two bird houses and several flower planters.” These are not the statements of an adverse possessor who has effectively excluded the true owner.

[50] Simply put, there was nothing that the Baileys or their predecessors in title did that effectively or otherwise stopped Mr. Barbour from using his property or that materially interfered with his use of his property. Their actions, in the summer and on weekends throughout the year, of entering and exiting the property and of carrying on recreational and maintenance activities did not constitute an ouster of Mr. Barbour, the true owner of the property, who also used it.

[51] As there was no evidence that Mrs. Bailey or her predecessors in title effectively excluded Mr. Barbour from possession of Part 2 during any ten-year period prior to 2001, the trial judge erred in finding that Mrs. Bailey had established adverse possession over Part 2 of Mr. Barbour’s property.

[52] I would therefore set aside the trial judge’s conclusion on this point.

(ii) Easement Claims

[53] I turn next to the trial judge’s alternate conclusion that Mrs. Bailey established an easement or a right-of-way over Part 2 of Mr. Barbour’s property on the bases of prescription (whether statutory or under the doctrine of modern lost grant), necessity, and proprietary estoppel.

[54] On this issue, Mr. Barbour advances several principal grounds of appeal, which I summarize as follows. First, he submits that the trial judge erred in her determination that Mrs. Bailey acquired a prescriptive easement because the evidence in this case was insufficient to establish any 20-year period of uninterrupted use that was more than seasonal, sporadic or infrequent and for a temporary or seasonal purpose. Second, any use was interrupted during the periods when Tiny Island was an island totally surrounded by water. Third, Mr. Barbour’s 1995 objection to the Baileys driving over his beach stopped the running of any limitation period. Fourth, he permitted the use that the owners of Tiny Island made of Part 2 through good neighbourliness, which is insufficient to enable Mrs. Bailey to acquire an easement. Fifth, the trial judge erred in finding an easement by necessity because it is possible to access Tiny Island other than by passing over Part 2 of Mr. Barbour’s property. Finally, the trial judge erred in holding that an easement arose out of proprietary estoppel because Mr. Barbour did not engage in unconscionable conduct.

(a) Prescriptive easement

[55] I start my analysis of the trial judge’s findings with a consideration of the general principles concerning prescriptive easements, which are not in dispute.

General principles concerning prescriptive easements

[56] To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or right-of-way:

i. There must be a dominant and servient tenement;

ii. The dominant and servient owners must be different persons;

iii. The easement must be capable of forming the subject matter of a grant; and

iv. The easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenement.

See Depew v. Wilkes (2002), 2002 CanLII 41823 (ON CA), 60 O.R. (3d) 499 (C.A.), at paras. 18-19.

[57] With respect to the fourth criterion, what is “reasonably necessary” will depend on the nature of the property and the purpose of the easement. In Depew v. Wilkes, at para. 24, this court confirmed that the reasonable necessity requirement for a prescriptive easement is fact-specific and must be applied in a flexible manner, citing with approval the following instructive passage from Anger and Honsberger: Law of Real Property, 2nd ed. (Aurora: Canada Law Book, 1985), at p. 927:

What is reasonably necessary must be a flexible criterion and have reference to current social conditions and the prevailing patterns and trends of conduct. What today might not be regarded to be a reasonable amenity for the better enjoyment of a property might be regarded as a reasonable amenity tomorrow.

[58] However, not every use will be “reasonably necessary” for the purposes of establishing a right to an easement. There must be a connection between the easement and the normal enjoyment of the dominant tenement, as opposed to a personal right belonging to the dominant tenement owner: Depew v. Wilkes, at para. 20. Examples of uses that courts have found to be “reasonably necessary” usually involve a very practical purpose, such as parking spaces or driveways: see e.g. Depew v. Wilkes; and Carlini Estate v. Hammoud, 2011 ONCA 285.

[59] This is reinforced by the fact that in order to be capable of forming the subject matter of a grant (the third criterion listed above), easement rights must not be ones of mere recreation and amusement; the rights in issue must be of utility and benefit to the dominant tenement: see In re Ellenborough Park, [1956] 1 Ch. 131 (Eng. C.A.), at pp. 175-76, cited with approval by this court in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 204.

[60] In addition to the above criteria, a claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years. See Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.), at p. 383; and 1043 Bloor Inc. v. 171404 Ontario Inc., 2013 ONCA 91, 359 D.L.R. (4th) 688, at paras. 57, 59.

[61] Specifically, the use as of right of the person seeking to establish an easement cannot be at the will and pleasure of the owner of the property over which the easement or right-of-way is sought to be established. Instead, the use must be as if the claimant had the right to the easement or right-of-way. See Henderson v. Volk, at p. 383; 1043 Bloor Inc., at para. 59; and Mason v. Morrow (1999), 1998 CanLII 1663 (ON CA), 114 O.A.C. 194, at para. 5.

[62] Acquiescence by the owner of the servient property to the use of the person seeking to establish an easement must be more than good neighbourliness. In those instances where the owner of the servient tenement can readily be taken to know of the notorious use of his property, if he makes no objection, then his acquiescence to that use, sufficient to establish a prescriptive title, can readily be inferred: Henderson v. Volk, at p. 384.

[63] Finally, to acquire a prescriptive easement under the Real Property Limitations Act, a claimant’s use must be established to run for 20 years immediately before “some action wherein the claim or matter to which such period relates was or is brought into question”: s. 32.[^3]

Application of the general principles to the present case

[64] The trial judge held that for at least 20 years, Mrs. Bailey and her predecessors in title continuously exercised and enjoyed a right-of-way over all of Part 2. In particular, the trial judge found that since 1943 or possibly earlier, the owners of Tiny Island had continuously used the beach, the path, and the isthmus connecting the beach of Part 2 to Tiny Island, when the isthmus was above water.

[65] Mr. Barbour argues that the trial judge erred in finding an uninterrupted 20-year period of use. He maintains that his 1995 objection to the Baileys’ use of his property interrupted the running of any 20-year period. I would not accept this submission for the following reasons.

[66] For the purposes of ss. 31 and 32 of the Real Property Limitations Act, Mr. Barbour’s 1995 objection to the Baileys’ use of his property did not serve to interrupt their continuous use because they did not submit or acquiesce to it.

[67] Rather, the Baileys immediately disagreed with his objection and continued openly and peacefully to assert what they mistakenly thought was their right to use Part 2 of Mr. Barbour’s property. According to s. 32 of the Real Property Limitations Act, “no act or other matter shall be deemed an interruption within the meaning of [s. 31], unless the same has been submitted to or acquiesced in for one year after the person interrupted has had notice thereof, and of the person making or authorizing the same to be made.”

[68] While I do not accept Mr. Barbour’s submission that his September 1995 letter interrupted the running of the prescriptive period, I have concluded, for the reasons set out below, that the trial judge erred in granting a prescriptive easement over all of Part 2 and for all purposes.

[69] Specifically, the trial judge erred in treating as identical the nature and the duration of the uses that the Baileys and their predecessors in title made of the various portions of Part 2. These uses varied for the beach, the path and the isthmus, and lead to different results.

[70] Further, the trial judge erred in granting an easement that included vehicular use when there was no evidentiary basis for doing so.

Recreational and permissive uses of the beach and isthmus

[71] Turning first to the beach and isthmus of Part 2, it was open to the trial judge to find on the evidence that the Baileys, along with the former owners of Tiny Island, carried out continuous, uninterrupted, open, and peaceful use of those areas of Part 2 for the requisite 20-year period.

[72] However, the trial judge erred in concluding that Mrs. Bailey had proven that the former owners’ and her own family’s recreational uses of the beach and isthmus were reasonably necessary to their enjoyment of Tiny Island, and that Mr. Barbour acquiesced to such use.

[73] First, as already noted, to establish an easement over Part 2 of Mr. Barbour’s property, in addition to the other criteria already reviewed, Mrs. Bailey had to demonstrate that these uses were reasonably necessary for the better enjoyment of Tiny Island.

[74] The trial judge’s finding of the recreational uses that Mrs. Bailey and the previous owners of Tiny Island made of the beach and isthmus of Part 2 in swimming, fishing, putting up a shade tent, placing chairs, snowshoeing, and playing on the beach and isthmus were not, as a matter of law, “reasonably necessary” for their better enjoyment of Tiny Island, as the authorities have defined that term. Rather, these recreational uses were only for their personal recreation or amusement, along with that of Mr. Barbour, the other neighbours, and local residents, who similarly used the beach and isthmus on Part 2.

[75] The owners of Tiny Island had on the island and on their side of the isthmus their own sandy area on which they could and did carry on recreational activities. The fact that these activities periodically spilled over onto Mr. Barbour’s side of the isthmus and his beach on Part 2 does not make them reasonably necessary for the enjoyment of Tiny Island by its owners.

[76] Further, the evidence establishes that Mr. Barbour’s silence about the recreational use of his beach demonstrated mere neighbourly goodwill, and not acquiescence, in allowing the Baileys, his neighbours and anyone else to walk across or play on his beach. As Mr. Bailey testified, it was “an unwritten rule” that anyone could walk across the beach and the evidence of Neil Lackie, a local resident, was that from the 1950s to the 1990s, all of the local residents would walk up and down the beach without any concern or challenge. Their uncontested evidence is consistent with the testimony of Dr. Christopher Van Aller, whose family previously owned Tiny Island, that the isthmus was “sort of a big common beach area”, and that everybody shared it.

[77] The present case is similar to the circumstances of this court’s decision in 394 Lakeshore Oakville Holdings Inc. v. Misek.[^4] In that case, this court upheld the motion judge’s determination that the appellant neighbours had not acquired an easement, but only a revocable personal licence by their nightly walks on the “meandering path over the unmarked grassy area to a sloped path that led to a slate beach”: para. 212. The owners of the property had tacitly permitted these walks because it was the custom to allow such personal, recreational use: para. 215. This court held that the motion judge was entitled to draw the inference that the appellants “were simply the recipients of neighbourly goodwill”: para. 222.

[78] As this court noted in Temma Realty Co. Ltd. v. Ress Enterprises Ltd. (1968), 1968 CanLII 342 (ON CA), 69 D.L.R. (2d) 195, at p. 199, 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.”

[79] For these reasons, the trial judge erred in concluding that Mrs. Bailey had acquired an easement over the entirety of Part 2 of Mr. Barbour’s property through the former owners’ and her family’s recreational uses of the beach and isthmus, which were not reasonably necessary for the enjoyment of Tiny Island, and which Mr. Barbour tacitly permitted only as a neighbourly gesture.

Reasonably necessary use of the path for 20 years

[80] That leaves two questions: did Mrs. Bailey acquire an easement or right-of-way over any portion of Part 2 of Mr. Barbour’s property, and in particular, the path identified on the Stewart survey? If so, was the acquired use of the path for all purposes, including vehicular use?

[81] For the reasons that follow, I am of the view that Mrs. Bailey did acquire an easement over the path on Part 2, including the isthmus when it is above water, but that the trial judge erred in failing to restrict its use to non-vehicular traffic.

[82] Mr. Barbour argues that the use made of the path by the Tiny Island owners was seasonal, sporadic or infrequent and that it was for a temporary or seasonal purpose.

[83] I disagree. The fact that the Tiny Island owners used the path during the summers and on weekends and holidays does not preclude their acquisition of an easement or right-of-way over the path. The acts necessary to establish continuous use depend on the type of property. For some types of property, such as a cottage property, as in this case, seasonal and weekend use is consistent with the type of continuous use an owner would make of the property and therefore satisfies the criterion of continuous use: Lanty v. Ontario (Minister of Natural Resources) (2006), 89 L.C.R. 161 (Ont. S.C.), at para. 109, aff’d 2007 ONCA 759, 61 R.P.R. (4th) 161. See also Teis, at p. 222.

[84] It was open to the trial judge to conclude on the evidence that for a 20-year period, Mrs. Bailey and her predecessors in title made continuous, uninterrupted, open, and peaceful use by foot of the path over Part 2 of Mr. Barbour’s property shown on Appendix D, including the isthmus when it was above water, and that their use of the path was not permissive in its nature.

[85] Mr. Barbour’s failure to object to this use of the path by the owners of Tiny Island until 1995 did not amount to his tacit permission out of “good neighbourliness”, as he has argued. This was not simply occasional use by the owners of Tiny Island, but a path that they regularly and routinely took whenever they travelled by foot to or from Tiny Island.

[86] In the face of this continuous, open and peaceful passage by foot over the path, which Mr. Barbour must have observed, his silence constituted acquiescence to such use. There was no evidence that Mr. Barbour gave permission to the owners of Tiny Island to use the path over Part 2, that the owners sought his permission, or, unlike the recreational use of his beach, that the use of the path was the product of established custom on the part of all the neighbouring cottagers.

[87] Mr. Barbour argues that the trial judge erred in failing to follow the Boundaries Act decision and to give effect to the law of accretion. In particular, he alleges that she failed to take into account that the ambulatory boundaries of Part 2 and the reversion to the Crown of the isthmus when submerged under water precluded the acquisition of an easement.

[88] I do not accept Mr. Barbour’s position.

[89] During the periods when the boundaries ambulated and the isthmus was under water, the owners of Tiny Island continued regularly to pass by foot over the path and then wade over the area of the submerged isthmus to reach the island. The ambulatory boundaries and status as Crown land of the isthmus when under water did not affect the continuous use that the owners of Tiny Island made of the path over Part 2. Specifically, they did not prevent the creation of an easement over the path, extending to the water’s edge, even when the isthmus was under water.

[90] Finally, the owners’ use by foot of the path over Part 2 to reach Tiny Island was reasonably necessary to the better enjoyment of their property. The fact that an alternative route to Tiny Island existed to Mrs. Bailey and her predecessors in title for their use, including that they had water access to it by boat from their registered right-of-way, does not preclude a finding that their pedestrian use of Mr. Barbour’s property was reasonably necessary for the better enjoyment of their property: see Depew v. Wilkes, at para. 26. In this case, such pedestrian access is connected with the normal enjoyment of the cottage property.

[91] The evidence accepted by the trial judge does not, however, establish any continuous 20-year period of use of the path on Part 2 by motor vehicle because of the various periods that the isthmus was under water and travel by motor vehicle ceased. In particular:

(i) The evidence of Nancy Rice, previous owner of Parcel 9 and sister of Rebecca Van Aller, was that water separated Tiny Island from the mainland for a period of a few years between 1949 and 1958; during this period, the water was very shallow and she and her family waded across, or rowed over to Tiny Island in a rowboat or canoe from the beach of Part 2. At those times, the family did not drive to Tiny Island, but rather left their car on their property north of Part 2, walked down the path on Part 2, and then waded or boated over to Tiny Island.

(ii) Dr. Christopher Van Aller, the son of Rebecca Van Aller, testified that his first recollection of driving to Tiny Island was in 1966, when his mother bought an International Scout in order to be able to drive to Tiny Island. He also testified that the isthmus disappeared in about 1974 when the water became quite high and then remained under water until the mid-1980s, when it formed again. However, by that time, his mother was hesitant to drive on the beach, due to her age and health. He recalled seeing canoes, a motorboat, and someone waterskiing between the island and mainland of Part 2 when the water was high. He also confirmed that during the times when the water was high, his family would not drive over the isthmus to Tiny Island, but rather would leave their car on their property north of Part 2 and walk down the path, and then wade or boat over to the island from the beach on Part 2. Although he testified that he and his family members would sometimes drive their vehicles to the bottom of the beach on Part 2, unload their supplies and return the vehicles to the parking space north of Part 2, he also confirmed that they did not always drive.

(iii) Heidi Lauridsen, the daughter of Nancy Rice and the niece of Rebecca Van Aller, testified that there was one occasion in or around 1985 when it was “simply impossible” to get to Tiny Island from the beach of Part 2 because of the height of the water. She confirmed that during this period of time, her aunt walked along the beach and reached Tiny Island by wading over from the beach on Part 2 and that the family parked their cars on their property north of Part 2. She testified that most of the time they would walk to the island and that she would walk along the beach on Part 2. She said that they would sometimes drive to Tiny Island whenever they had a load of things to deliver and when it was clear of water.

(iv) Neil Lackie’s evidence was that Tiny Island was separated from Part 2 at times in the 1950s and that there was some water in the 1960s. He recalled canoeing and taking his little motorboat around the entirety of Tiny Island.

(v) Charlene Lowes testified that Tiny Island was an island until sometime in the 1960s. She said that in the 1960s, there was a peninsula between Tiny Island and the mainland beach on Part 2. She recalled that subsequently the water became higher and at that time, the owners used a rowboat to reach Tiny Island. She recalled Rebecca Van Aller walking down to the shoreline, putting her things in a rowboat and pulling the boat behind her to the island. She said that the highest water level was in the mid to late 1980s.

(vi) Natasha Bailey, the daughter of Mrs. Bailey, testified that she paddled in a canoe between Tiny Island and the mainland beach of Part 2 over ten years ago and that water separated Tiny Island from the beach for more than a year.

[92] The trial judge found that “[t]here have been times when the owners of Tiny Island have not been able to use all of Part 2 because it has been partially covered with water” (para. 347) and that this “occurred in the mid to late 1980s and late 1990s” (para. 9).

[93] This means that, on the evidence that the trial judge accepted and in accordance with the parties’ Agreed Statement of Facts, there were extended periods of time during which the owners of Tiny Island could not and did not continue by motor vehicle over the path and isthmus on Part 2 to reach Tiny Island. Rather, during those periods of time when the isthmus was under water, the owners of Tiny Island would leave their motor vehicles parked on their property north of Part 2 and would gain access to the island by wading or rowing across the water from Mr. Barbour’s beach on Part 2. This evidence falls short of establishing the kind of continuous, uninterrupted use for 20 years that is required for an easement for the purpose of vehicular traffic.

[94] In Henderson v. Volk, at p. 384, this court warned against granting an easement in the absence of clear evidence of both continuous use and acquiescence in such use by the owner.

[95] In this case, it would make little sense to suggest that Mr. Barbour had to object to the owners of Tiny Island driving over Part 2 to access their property when, on the evidence accepted by the trial judge, there were long stretches of time during which the isthmus was under water and the previous owners did not drive. Simply put, Mr. Barbour could not have acquiesced to something that was not taking place.

[96] In short, there is no evidence of continuous vehicular use of the path by the owners of Tiny Island for any uninterrupted 20-year period prior to September 2001, when Tiny Island and Mr. Barbour’s property entered the Land Titles system.

[97] Moreover, the courts have been careful to restrict easements to the actual, continuous and uninterrupted 20-year use that has been openly and peacefully made of the property in issue. As this court noted in Henderson v. Volk, at p. 383:

[T]he nature of the user cannot be changed by the owner of the dominant tenement. As an ancient example, a way used for the passage of carriages cannot be used for driving horned cattle or swine. In the same vein, the user is not entitled to change the character of his land so as to substantially increase or alter the burden on the servient tenant. Nor may the user increase the intensity of his use and thereby alter or increase the burden upon the servient tenement.

[98] The fact that the former owners of Tiny Island continuously travelled by foot over a path on Part 2 to reach Tiny Island from the beach on Part 2 does not give the Baileys a right to travel on that path by motor vehicle when their vehicular use of the path has not been continuous for an uninterrupted period of 20 years. The change of use from pedestrian traffic to vehicular traffic substantially increases and alters the burden on Mr. Barbour’s property.

[99] In addition, it has only been since the Baileys’ ownership of Tiny Island that vehicular traffic over the path on Part 2 has substantially increased in intensity. Unlike the Baileys, the previous owners of Tiny Island did not regularly use the island year round, nor did they always drive.

[100] In contrast, since the waters have subsided and the isthmus emerged in the mid to late 1980s, the Baileys have frequently driven to Tiny Island in the summers and on weekends and holidays throughout the rest of the year. They have hired contractors who have sometimes used the path over Part 2 of Mr. Barbour’s property, and the Baileys have even deposited material on the path and isthmus in order to build it up and make it more stable. Until the Baileys undertook this work, the path used by the owners of Tiny Island consisted only of hard-packed sand.

[101] The fact that the Baileys’ increased travel by motor vehicle did not go unnoticed or unremarked upon by their neighbours and was the subject of complaints demonstrates the substantial intensification of their vehicular use of the path.

[102] In addition to Mr. Barbour’s September 1995 objection to the Baileys driving over his beach without payment of a fee, earlier opposition came in 1993 from another neighbour, Judith Skelton-Grant, whose cottage was located north of Part 2 and who was the President of the Addison Beach Association at that time. In her September 14, 1993 letter to the Baileys, Ms. Grant set out her objection as follows:

This is just to put in writing what I said on the telephone on the weekend – that we do not want you driving across our property. I am sympathetic to the difficulty you experience in reaching the island once the snow in the woods gets deep…but the solution is not driving from the concession along the shore, across all of the privately owned beach properties. It sets a bad precedent, is aesthetically unpleasant, and impinges on others’ ownership rights.

[103] Mrs. Bailey testified at trial that she understood Ms. Grant’s concerns and complied with her request.

Conclusion on the prescriptive easement claim

[104] For these reasons, the use of motor vehicles over Part 2 falls short of the 20-year requisite period to establish an easement. There was no continuous 20-year period during which the previous owners drove over Part 2. Having acquired the property only in 1988, the Baileys have not satisfied this criterion. Finally, the evidence does not establish any continuous 20-year period during which the previous owners and the Baileys drove over Part 2, even when the previous owners’ use of motor vehicles and the Baileys’ use is combined.

[105] Mr. Barbour could not have acquiesced to vehicular use of Part 2 when there were significant stretches of time during which it did not occur. Moreover, Mrs. Bailey cannot rely upon the 20-year period during which the previous owners and her family used the path to access Tiny Island by foot in order to establish a prescriptive easement for the use of motor vehicles because to do so would substantially increase the burden on the servient tenement.

[106] Therefore, while the trial judge correctly found that Mrs. Bailey acquired an easement or right-of-way over the path on Part 2 of Mr. Barbour’s property, by virtue of its use by Mrs. Bailey and her predecessors in title, she erred in failing to restrict Mrs. Bailey’s easement to the non-vehicular use that the owners of Tiny Island continuously made of the path during the required 20-year period. Mrs. Bailey’s use should therefore be restricted to non-vehicular passage over the path on Part 2.

(b) Easement of necessity

[107] As a further basis for finding that Mrs. Bailey had acquired an easement over Part 2 of Mr. Barbour’s property, the trial judge stated that an easement of necessity existed, which she described as follows, at para. 405:

To the extent that the parcel was accessed and enjoyed by its owners in the past by crossing dry land on the shore, an easement of necessity existed or arose by operation of law immediately after the merger of title by Dr. Kynoch in 1961. While the shore of Nottawasaga Bay is accessible to the owners of Tiny Island through the extension of Part 6 on the Hiley Plan (“the Cut”) to the water’s edge, Mrs. Bailey’s predecessors in title never relied exclusively on boat access to reach the island, and Mrs. Bailey did not bargain to buy a “boat access only” island.

[108] The trial judge erred in concluding that an easement of necessity arose in these circumstances.

[109] In Depew v. Wilkes, this court cited, at para. 21, the following description of easements of necessity from Gale on Easements, 16th ed. (London: Sweet & Maxwell, 1997), at p. 148:

A way of necessity, strictly so called, arises where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the part so left inaccessible is entitled, as of necessity, to a way over the other part.

[110] Tiny Island has never been inaccessible except over Part 2. The evidence accepted by the trial judge demonstrates that the previous owners of Tiny Island regularly used a boat to access the island, predominantly, but not exclusively, during periods when water levels were high and the isthmus was covered.

[111] Betty Van Aller, Nancy Rice, Heidi Lauridsen, and Dr. Christopher Van Aller all gave evidence to the effect that the Van Allers used a rowboat to reach Tiny Island, either by rowing it over or pulling it behind them as they waded across. More particularly, Betty Van Aller stated in her statutory declaration that her family had placed a dock on the mainland opposite the island for the purpose of boat access to the island.

[112] While the trial judge was correct to find that Mrs. Bailey’s predecessors in title never relied exclusively on boat access to reach Tiny Island, in the circumstances of this case, water access to the island is nonetheless possible and was used by the previous owners.

[113] For the reasons already discussed in relation to prescriptive easements, I have found that the use of the path by foot was reasonably necessary for the owners’ enjoyment of their property. However, this does not prove necessity because Tiny Island was and is accessible by water, as well as by walking along the shoreline.

[114] That the owners of Tiny Island have long preferred to walk or drive over Part 2 and may have found that route quicker and more convenient than travelling on their registered right-of-way and then by boat to reach Tiny Island, or else on foot along the shoreline, does not give rise to an easement of necessity. It cannot be said that in the absence of an easement over Part 2, the Baileys would be left without a legally enforceable means of accessing Tiny Island.

[115] As a result, the trial judge’s finding of an easement of necessity is set aside.

(c) Proprietary estoppel

[116] With respect to the application of the doctrine of proprietary estoppel, citing this court’s decision in Schwark Estate v. Cutting, 2010 ONCA 61, 316 D.L.R. (4th) 105, at paras. 16 and 34, the trial judge considered whether the following requisite criteria had been satisfied in the context of this case:

i. Encouragement of Mrs. Bailey by Mr. Barbour;

ii. Detrimental reliance by Mrs. Bailey to Mr. Barbour’s knowledge; and

iii. Mr. Barbour seeking to take unconscionable advantage of Mrs. Bailey by reneging on an earlier promise.

[117] The trial judge properly equated the third criterion of “unconscionable conduct” with “fraudulent conduct”, and also correctly noted that it can only be established by Mrs. Bailey meeting the following five-part test:

i. Mrs. Bailey must have made a mistake as to her legal title;

ii. She must have expended some money or must have done some act (not necessarily on the defendant’s land) on the faith of her mistaken belief;

iii. Mr. Barbour must have known of the existence of his own right, and it must be inconsistent with the right claimed by Mrs. Bailey;

iv. Mr. Barbour must have known of Mrs. Bailey’s mistaken belief of her rights; and

v. Mr. Barbour must have encouraged Mrs. Bailey in her expenditure of money or other acts, either directly or by abstaining from asserting his legal right.

See Schwark Estate v. Cutting, at para. 27.

[118] The trial judge found that the doctrine of proprietary estoppel applied for the following reasons:

i. The Baileys improved their own land, but not Mr. Barbour’s land;

ii. Mr. Barbour could not have missed the Baileys making those improvements;

iii. The Baileys’ conduct made it clear that they believed that they had every right to travel over and to use Part 2; and

iv. Permitting Mr. Barbour to now rely on a strict application of his legal title would be unconscionable.

[119] The trial judge found that the Baileys were unilaterally mistaken about the extent of their legal rights in relation to Part 2 of Mr. Barbour’s property. In particular, on the Baileys’ second visit to Tiny Island with their real estate agent, they understood as a result of where the owner, Rebecca Van Aller, pointed that the property extended over Part 2 as far as the tree line at the back of the beach, and up north to the southerly boundary of Parcel 9, Nancy Rice’s property.

[120] Further, just before closing, Mrs. Bailey saw part of the 1942 Cavana survey, which depicted Tiny Island, the isthmus, a portion of the beach adjacent to Tiny Island, and the path that the Baileys and other witnesses identified at trial on the Hiley survey as the path on Part 2 over which they travelled. A reduced copy of this survey was attached to the Baileys’ Agreement of Purchase and Sale of Tiny Island. For ease of visual reference, I have attached it as Appendix E to these reasons.

[121] However, while the Baileys may have believed that they owned all or some of Part 2, the evidence establishes that their mistaken belief about their ownership of it was the product of their own failure to make appropriate inquiries.

[122] Prior to purchasing the island, the Baileys did not inquire about vehicle access. On the initial occasions that the Baileys visited Tiny Island in 1988, they did not drive down the beach, but rather left their motor vehicles in the parking spot north of Part 2, and walked down the path on Part 2 and across the isthmus to Tiny Island. Mrs. Bailey also admitted that before purchasing Tiny Island, she had Mr. Barbour’s deed that stipulated his ownership of Part 2 all the way to the water’s edge, including the path and the beach. She did not see the full version of the 1942 Cavana survey until after the closing of the transaction. However, she declined to have a survey conducted. She appears to have based her belief of ownership over Part 2 primarily on the assertions made by the former owner of Tiny Island concerning her family’s use of Part 2.

[123] The trial judge correctly found that the Baileys’ mistake was unilateral. There was no evidence that Mr. Barbour was aware of the Baileys’ mistaken belief about their rights prior to their assertions of ownership in 1995 in response to his request that they pay a licence fee to travel over his beach.

[124] There was also no evidence that Mr. Barbour encouraged the improvements of the path and isthmus that the Baileys undertook in 1992 and 1993, or that he induced them to undertake the improvements they made to the cottage on Tiny Island soon after they bought it.

[125] In fact, the Baileys planned to renovate their property before meeting Mr. Barbour. Mrs. Bailey testified that on her very first visit to Tiny Island with the real estate agent, she knew that renovations would have to be carried out. The evidence of the Baileys was that they decided to make extensive improvements to the cottage on Tiny Island during the first year that they owned it because it was an old, dusty log cabin with a very dark interior and it was not winterized. Plans were drawn up that summer and significant renovations immediately followed. Mr. Bailey admitted during cross-examination that Mr. Barbour did and said nothing to cause them to undertake the improvements to their property.

[126] In light of this, the trial judge erred in concluding that Mr. Barbour’s silence when the Baileys were making their improvements meant that he had encouraged their acts, such that his conduct in later asserting his legal rights was so “unconscionable, inequitable or unjust” as to invoke proprietary estoppel: Schwark Estate v. Cutting, at para. 28.

[127] For all of these reasons, the trial judge erred in concluding that the doctrine of proprietary estoppel applied to the circumstances of this case.

(iii) Location of the Easement

[128] As I have determined that Mrs. Bailey has the right to an easement or right-of-way over the path and isthmus, when above water, of Part 2 for the purpose of access to Tiny Island by foot, it is necessary to determine the easement’s boundaries. As this court stated in Luloff v. Kaiser, 2002 CanLII 44992, at para. 2, the prescriptive right of a claimant to an easement must be confined to the land that the claimant used continuously for a period of 20 years.

[129] The trial judge granted Mrs. Bailey title over all of Part 2 of Parcel 10 – namely, an area greater than the land that Mrs. Bailey and her predecessors in title continuously used for an uninterrupted period of 20 years. As a result, she did not make a finding as to the dimensions and location of the path used by Mrs. Bailey and her predecessors in title.

[130] In my view, it is not necessary to remit this matter back to the trial judge or a surveyor to determine the exact dimensions and location of the right-of-way because the witnesses at the second trial, including Mrs. Bailey and the family members of Tiny Island’s former owners, as well as the experts who attended the property, identified the path that they used as that marked on the Hiley plan of survey as “driveway” (see Appendix A).

[131] The lay witnesses described the path as hard-packed sand that wound its way naturally through sand dunes. Mrs. Bailey made the location of the path more definite by the deposit of material onto the path that she identified as “driveway” on the Hiley plan of survey.

[132] Mr. Hiley testified that when he visited the property, he saw a wheel track in the sand. He said that the track generally was in the same place as where he indicated the “driveway” on his survey, although he agreed that there could be 15 feet of shift either way as the sand blew onto the track, and that the track had an ambulatory boundary that might not remain exactly the same. He echoed the evidence of the other witnesses that the wheel track flowed naturally and that persons using the track would take more or less the same route. He believed that the track would be in a similar location to where he showed it on his plan of survey. Mr. Hiley’s plan of survey was admitted on the consent of the parties, as noted in the trial judge’s February 22, 2013 Order.

[133] Mr. Stewart testified that when he visited the property, he observed and measured an actual track across the beach that he indicated was illustrated and labelled “driveway” on the Hiley plan of survey and that it corresponded to the “track” illustrated with two dotted lines on the plan of survey that he prepared (see Appendix D).

[134] This evidence establishes that the path marked as “track” on Mr. Stewart’s registered plan of survey was more or less the path that the owners of Tiny Island travelled on foot across Part 2 of Mr. Barbour’s property. While there has been some variation in the actual route travelled because of the shifting in sand over the years, the path used has always been within a well-defined, naturally-flowing path that the witnesses had no difficulty in identifying and that the surveyors for the parties were able to designate on their respective plans of surveys.

[135] Mrs. Bailey is therefore entitled to an easement in the nature of a right-of-way for non-vehicular passage on the path marked “track” on the Stewart plan of survey for the purposes of ingress and egress to and from Tiny Island.

(2) Other Grounds of Appeal

(i) Bias and Trial Unfairness

[136] Mr. Barbour argues that the trial judge’s exclusion of evidence, including transcripts from earlier proceedings, created trial unfairness for, and demonstrated the trial judge’s bias against, Mr. Barbour.

[137] The test for reasonable apprehension of bias is a high one. Mr. Barbour has not met the high threshold to establish bias, which requires that “an informed person, viewing the matter realistically and practically – and having thought the matter through – [would] conclude…that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394. See also Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 60.

[138] There are no particulars of bias alleged against the trial judge other than a very vague statement in Mr. Barbour’s factum that the trial judge’s pre-trial and mid-trial rulings demonstrate a bias in favour of the possessory claimant.

[139] I would not accept this ground of appeal. None of the rulings indicates bias on the trial judge’s part against Mr. Barbour. Essentially, in complaining that she ruled against him and that the rulings were incorrect, Mr. Barbour is seeking to re-litigate these issues. Neither of these complaints supports his allegation of bias.

[140] Further, while it was unfortunate that the trial judge initially misconstrued the scope of the consent order concerning the documents and transcripts to be admitted, her explanation was reasonable, and she provided the parties with the opportunity to make further submissions about the issue before she made her final decision.

[141] Moreover, Mr. Barbour has not shown how the omission of these materials from the trial has caused him any trial unfairness or prejudice. In particular, his evidence from previous proceedings was not materially different from the Agreed Statement of Facts admitted in the present trial. As a result, it cannot be said that Mr. Barbour was not given a fair opportunity to put forward his position at trial or that, if the materials had been admitted, the outcome would have been different.

[142] Finally, and without developing his argument, Mr. Barbour submits that based on the voir dire, the trial judge should not have qualified Mr. Brubacher, a surveyor specializing in collecting and analyzing spatial data, as an expert witness in any field. I would not give effect to Mr. Barbour’s contention.

[143] The trial judge properly exercised her role as gatekeeper. Her reasons demonstrate that she was aware of the relevant criteria in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, for the qualification and admission of expert evidence. She carefully considered Mr. Brubacher’s qualifications and the areas in which Mrs. Bailey sought to have him qualified as an expert. She was alert to the limits of Mr. Brubacher’s expertise and expressly restricted his expert qualification and the ambit of his testimony to within those identified limits. I would not interfere with her decision.

(ii) Expiry of the Limitation Period

[144] Mr. Barbour says that Mrs. Bailey’s claims are statute-barred because Mrs. Bailey should have known of the problems with her property boundaries when she purchased Tiny Island in 1988 and she “sat on her rights” until 2004 when she launched her Land Titles Act application. He contends that by the time Mrs. Bailey instigated her Rule 14 application, the ten-year limitation period under s. 4 of the Real Property Limitations Act for asserting a claim for adverse possession or an easement had long expired.

[145] Given my reasons for allowing the appeal with respect to Mrs. Bailey’s claim for adverse possession, it is unnecessary to address Mr. Barbour’s argument on this aspect of the appeal.

[146] I would not give effect to Mr. Barbour’s submission concerning Mrs. Bailey’s easement claim. She did not sit on her rights. She continuously and openly enjoyed and used the right-of-way over Part 2 until the Boundaries Act decision.

D. Disposition

[147] The trial judge’s order that Mrs. Bailey is granted fee simple title over all of Part 2 of Parcel 10 is set aside.

[148] The trial judge’s order is varied to allow a grant to Mrs. Bailey of an easement in the nature of a right-of-way in perpetuity for non-vehicular passage on the path marked “track” over Part 2 of Parcel 10, Concession 13 in Tiny Township, as shown on Mr. Stewart’s plan of survey that was registered on title on October 15, 2004 as Plan BA-2608, for the purposes of ingress and egress to and from Tiny Island, shown as Part 1 on the Hiley survey.

[149] An order shall issue accordingly.

E. Costs

[150] Given the disposition of this appeal, the trial judge’s order granting costs to the Baileys is set aside.

[151] The trial judge’s order directing Mr. Streisfield to pay 20 per cent of those costs personally, and the costs of the Rule 57.07 motion, is also set aside.

[152] I would allow the appeal from the costs order against Mr. Streisfield personally because the process followed by the trial judge was flawed in that it did not give him a reasonable opportunity to be heard.

[153] First, the trial judge did not allow Mr. Streisfield the opportunity to respond to criticisms concerning his performance before she made findings against him in her reasons for judgment that formed the basis for her order that he should reimburse Mr. Barbour for part of Mrs. Bailey’s trial costs.

[154] For example, in her reasons for judgment, the trial judge held that she had come to the “regretful conclusion” that Mr. Streisfield “allowed Mr. Stewart to disregard [his] duty to the court”: para. 321. She considered it “of grave seriousness” that Mr. Streisfield proffered Mr. Stewart as an expert witness despite what she considered “hallmarks” of Mr. Stewart’s bias: para. 323. She made these findings without having heard submissions from Mr. Streisfield on these matters.

[155] Second, she ordered Mr. Streisfield to pay Mrs. Bailey’s costs of the Rule 57.07 motion itself, without having heard any submissions.

[156] The process followed by the trial judge is contrary to the provisions of r. 57.07(2) of the Rules of Civil Procedure that no order under r. 57.07(1), providing that a lawyer is responsible for costs, shall be made unless the lawyer is given a reasonable opportunity to make representations to the court.

[157] Mr. Streisfield was not given that opportunity in this case and the orders against him must therefore be set aside.

[158] In the circumstances, it is unnecessary to consider the other grounds of appeal advanced on this issue. I would note that the trial judge did not have the benefit of this court’s recent decision in Moore v. Getahun, 2015 ONCA 55, 125 O.R. 3d 321, leave to appeal refused, [2015] S.C.C.A. No. 119.

[159] If the parties cannot agree on the disposition of the costs of the appeal, the first trial, and the second trial (including the costs hearings before the trial judge), they shall make written costs submissions of no more than five pages, double-spaced, plus cost outlines and any settlement offers, as follows: Mr. Barbour shall serve and file his costs submissions within two weeks of today; Mrs. Bailey shall serve and file her costs submissions within two weeks thereafter; and Mr. Barbour shall provide any reply submissions to Mrs. Bailey’s submissions within ten days after that.

Released: February 4, 2016

“L.B. Roberts J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A. ”

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

[^1]: Section 27 of the Land Titles Act directs that further appeals from orders under that Act lie to the Divisional Court. In this case, the trial judge’s Amended Judgment disposed of both Mrs. Bailey’s claim under the Land Titles Act and granted her declaratory relief in the nature of an easement or right-of-way. Accordingly, this court determined it had jurisdiction to hear the appeal.

[^2]: In Marotta v. Creative Investments Ltd. (2008), 69 R.P.R. (4th) 44 (Ont. S.C.), Tulloch J. (as he then was) considered the Superior Court jurisprudence post-Teis and concluded, at para. 74, that the inconsistent use test does not apply “in specific situations involving contiguous land, a bona fide belief on the part of the adverse possessor that he or she owned the disputed lands, and no claim by or physical contact of the owner in relation to the disputed lands”: para. 74. The final criterion does not arise on the facts of this case.

[^3]: Given my reasons for affirming that the trial judge was correct in finding that Mrs. Bailey acquired a prescriptive easement for non-vehicular use under the Real Property Limitations Act, it is unnecessary for me to consider the trial judge’s alternative finding that an easement was acquired under the doctrine of lost modern grant.

[^4]: 394 Lakeshore Oakville Holdings Inc. v. Misek is one of the cases grouped with and reported under the same citation as Combined Air Mechanical, supra, and discussed at paras. 182-231 of that decision.