Court and Parties

Court of Appeal for Ontario Date: 2021-04-28 Docket: C67814

Between: Louis Balogh and Sandra Aileen Balogh, Plaintiffs (Respondents) And: R.C. Yantha Electric Ltd. and Rodney Yantha, Defendants (Appellants)

Before: Feldman, Harvison Young and Thorburn JJ.A.

Counsel: Jeff G. Saikaley and James Plotkin, for the appellants Robert A. Leck, for the respondents

Heard: April 13, 2021 by video conference

On appeal from the judgment of Justice Heather J. Williams of the Superior Court of Justice, dated November 22, 2019, with reasons reported at 2019 ONSC 6748.

Endorsement

Feldman J.A.:

[1] The appellants purchased a piece of land, referred to at trial as “the triangle property,” adjacent to the respondents’ property. The appellants’ land has some water access, but no vehicle access, unless the appellants are entitled to use what was acknowledged at one time to be a private road, referred to at trial as the red track, across the respondents’ property to the triangle property. The appellants asserted a right to use the red track on two bases: either because it is an access road under the Road Access Act, R.S.O. 1990, c. R.34, or because the appellants’ predecessors in title acquired a prescriptive easement over it in accordance with the doctrine of lost modern grant, by 20 years’ continuous use prior to June 14, 1999, when the respondents’ lands were transferred into the Land Titles system.

[2] The trial judge rejected both bases and found that the appellants have no right to use the red track across the respondents’ property to access the triangle property. I see no error in the trial judge’s findings or analysis, and would dismiss the appeal.

Background Facts

[3] The respondents purchased lot 27, a vacant rural property, in 2005 and later bought part of lot 26. The appellant, Rodney Yantha, through his company, R.C. Yantha Electric Ltd., bought the other part of lot 26, the triangle property, in 2014 from Gerry Roche, whose family had owned it for decades. The appellant’s father, Eldon Yantha, owns lot 28, formerly a gravel pit, on the other side of lot 27. Rodney Yantha also owns the next lot 29, where there is a hunting camp.

[4] The appellants’ portion of lot 26, referred to as the triangle property, is landlocked but has some water access. There was evidence that there may have been a lumber mill located on the property in the 19th century.

[5] The subject of this action is a path that crosses lot 27 between the triangle portion of lot 26 and lot 28. It is known as the red track because of how it is shown on a map made an exhibit at trial. The appellants claimed the right to access the triangle property over that path, either as an easement that had been acquired under the doctrine of lost modern grant before 1999, when lot 27 went into the Land Titles system, or as an access road under the Road Access Act.

Issue 1: Did the appellants’ predecessors in title acquire an easement by prescription over the red track prior to 1999?

[6] Under the doctrine of lost modern grant, an easement by prescription can be established by the owners of the dominant tenement over the affected portion of the servient tenement based on 20 years of continuous, uninterrupted, open and peaceful use of the land without objection by the owner of the servient tenement. The use must be “as of right” meaning that the owner of the servient tenement must have knowingly acquiesced to the establishment of the easement, not just granted permission or a license to use the land: see Carpenter v. Doull-MacDonald, 2017 ONSC 7560, 92 R.P.R. (5th) 6, at paras. 42-47, aff’d 2018 ONCA 521, 92 R.P.R. (5th) 47.

[7] After hearing evidence from the key witnesses, Gerry Roche, Eldon Yantha, Rodney Yantha, Dr. Louis Balogh, plus several other witnesses, the trial judge found that the appellants had not established an easement based on 20 years of continuous use of the red track. In so finding, the trial judge rejected the evidence of Gerry Roche and of the Yanthas regarding their use of the red track prior to 1999. She based her credibility findings in part on her rejection of their evidence regarding the period after 2008, where she preferred the evidence of Dr. Balogh.

[8] The appellants base their appeal of the finding that no easement was established on two alleged errors. The first is with respect to the trial judge’s finding that when the Roches asked the Yanthas to check on the triangle property over the years by crossing the red track, they did not do so as agents for the Roches because their visits to the property were as much for their own enjoyment, including fishing, hunting, picnicking, and bonfires, as they were to help out the Roches. If the Yanthas were not acting as agents, then their use of the red track did not count as part of the 20 years of possession by the Roches. The appellants submit that the trial judge erred in law in making this finding.

[9] The legal issue turns on the application of two decisions of this court on the agency issue, Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al., [1968] 2 O.R. 293 (C.A.), and Carlini v. Hammoud, 2011 ONCA 285.

[10] In Temma, the issue was whether a right of way by easement had been established over a laneway that was used by independent delivery vehicles to access the appellant’s commercial enterprise. The court held that even if the nature of that use would otherwise have met the test to establish an easement, the fact that the truckers were independent of the owner of the dominant tenement meant that they were not under the direction and control of the owner, and their use was not as agent for the owner.

[11] In Carlini, the appellant’s property had a driveway that had been used by the respondent family since 1978. The respondents’ parents’ home was on the lot that originally included the driveway. They later severed the lot and sold the portion with the driveway (i.e., the servient tenement) to their son. The Carlini family continued to use the driveway to access the parents’ property until the son sold the servient tenement to strangers in 2007. The court held that an easement over the driveway had been established well before the sale in 2007 by the collective use of the driveway by the Carlini family members, not strangers, “for a host of purposes associated with the better enjoyment of the dominant tenement”: at para. 5. The court specifically distinguished Temma on that basis.

[12] The appellants submit that the trial judge erred by rejecting the applicability of the Carlini case. We do not agree. The trial judge analyzed the nature of the relationship between the Roches and the Yanthas, and in particular, the basis of the Yanthas’ use of the triangle property at the invitation of the Roches. She found that the arrangement was that the Roches allowed the Yanthas to use the triangle property, and in exchange, the Yanthas would keep an eye on it from time to time. There were no specific dates or checks and no reporting back. Furthermore, the Roches never told the Yanthas to drive to the triangle property or to use the red track to get there.

[13] The trial judge’s conclusion is a finding of mixed fact and law. It was open to her on this evidence, and there is no basis to interfere with it.

[14] The trial judge stated that if she was in error on the agency issue, the claim failed in any event because the nature and frequency of the use of the red track by the Roches prior to 1999 was not sufficient to establish a prescriptive easement. In particular, she was not prepared to accept the evidence of Gerry Roche regarding either the frequency or the consistency of his use of the triangle property over the years, and gave a number of reasons for her credibility findings. For example, Dr. Balogh testified that before Mr. Roche sold the triangle property to the appellants, Mr. Roche once asked him for permission to cross the part of lot 26 that he, Dr. Balogh, owned in order to get to the triangle property to cut down a Christmas tree. This evidence was confirmed by another witness, Ms. Wood, who had had a similar encounter. Dr. Balogh testified that he understood that Mr. Roche only needed to get to the triangle property to cut down his traditional Christmas tree, and that he had no other way to access the property, i.e., Mr. Roche did not believe he could use the red track.

[15] The trial judge also found Mr. Roche to be evasive about previous efforts he had made to secure formal access to the triangle property over a north/south route that was closed off by other property owners. She also found his evidence about his grandfather difficult to reconcile.

[16] The trial judge further found that there was no evidence that the predecessors of the Baloghs knew or ought to have known that the red track was being used to access the triangle property, another essential component of the easement test. For all of these reasons, the trial judge found that the evidence was not sufficient to establish a prescriptive easement over the red track.

[17] The appellants’ second alleged error in the trial judge’s finding that the evidence did not establish an easement, is that her credibility findings were based on five alleged misapprehensions of the evidence involving Dr. Balogh. These alleged misapprehensions are set out in detail in the appellants’ factum.

[18] It is trite law that it is not the role of this court to retry factual issues and conclusions reached by the trial judge, especially findings of credibility. Of course, a misapprehension of evidence on a key issue can give rise to a palpable and overriding error. That is not the case here. The alleged errors the appellants identify involving Dr. Balogh would not impact the trial judge’s findings regarding the Roches’ use of the red track before 1999 and whether their use was sufficient to meet the test to establish a prescriptive easement.

Issue 2: Is the red track an access road under the Road Access Act?

[19] Under the Road Access Act, landowners cannot close off an access road on their property except with a court order (or in other, limited, enumerated circumstances). The purpose of the Road Access Act is to prevent self-help measures by landowners, especially in rural and cottage areas, who may want to prevent others from using an access road to get to their properties.

[20] “Access road” and “road” are defined in s. 1 of the Road Access Act as follows:

“access road” means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land; and

“road” means land used or intended for use for the passage of motor vehicles.

[21] The trial judge referred to this court’s decisions in 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586, 86 O.R. (3d) 561 at para 32, and Blais v. Belanger, 2007 ONCA 310, 282 D.L.R. (4th) 293, and found that because the definition of access road uses the word “serves”, in the present tense, an access road must be one that exists contemporarily, i.e., in the present, and that a former access road can lose its status by disuse or overgrowth.

[22] The trial judge considered two points in time to assess the status of the red track: 2008, when Dr. Balogh erected a fence across the red track; and 2014, when the appellants purchased the triangle property and took down the fence. She found that the red track was not an access road at either point in time because it was not in use at either time.

[23] Regarding 2008, the trial judge identified four factors to suggest that the red track did not serve “as a motor vehicle access route”: (1) the respondents received a statutory declaration made by a predecessor owner, a lawyer, that he was not aware of any easements or anyone traversing lot 27 from 1990 until he sold the property in 2003; (2) in the 1980s or 1990s, Eldon Yantha installed blocking mechanisms on the red track, first between lots 27 and 28, and then between lots 30 and 29; (3) when the respondents bought lot 27, the real estate agent for the seller informed them that they would require a road to access the lot and, as a condition of the Baloghs’ purchase, the seller built an access road to the property from the south east; and (4) when the respondents purchased lot 27 in 2005, the red track was overgrown. Furthermore, when the respondents built their fence across the red track in 2008, there was evidence that the trial judge accepted, that it was not serving as a motor vehicle access route to the triangle property.

[24] Regarding 2014, the trial judge found that no one had driven over the red track between 2008 and 2014, it was overgrown, and the appellant, Rodney Yantha, had had to trim back some overgrowth to make the track driveable for his truck after he purchased the triangle property.

[25] The trial judge concluded that although the red track may have been an access road at one time, it no longer was by 2005 when the respondents purchased lot 27, or in 2008 when Dr. Balogh erected his fence.

[26] The appellants submit that the trial judge erred by failing to recognize that the red track was traversable by an all-terrain vehicle, which qualifies as a motor vehicle under the Highway Traffic Act, R.S.O. 1990, c. H.8, definition, and had therefore not lost its status as an access road by overgrowth. They also submit that when the two definitions, “road” and “access road,” are read together, a road that is intended for use and exists contemporarily meets the meaning of access road, and that otherwise, the words “intended for use” in the definition of “road” would be effectively read out.

[27] The answer to this argument is that this court has already held in Blais and in Kilpatrick, that in order to be an access road, it must exist contemporarily, i.e., it must serve as “a motor vehicle access road to one or more parcels of land” at the relevant point in time. In this case, the trial judge found that at the relevant points in time, 2008 and 2014, the red track was not in use. Because it was overgrown, it was also not, at those points in time, intended for use for the passage of motor vehicles. We see no error in the trial judge’s approach to the law or to her findings of fact and mixed fact and law.