Court of Appeal for Ontario

Date: 2026-03-20 Docket: COA-25-CV-0495

Sossin, Gomery and Osborne JJ.A.

Parties

Between:

Louise Murray-Leung and Leslie Murray-Leung Applicants (Respondents)

and

Brian James Dyck and Jodi Lynn Eastwood Respondents (Appellants)

Counsel

William Fawcett, for the appellants

Matthew Jarrett and T. David Marshall, for the respondents

Heard: March 11, 2026

On appeal from the order of Justice Byrdena MacNeil of the Superior Court of Justice, dated April 2, 2025, with reasons reported at 2025 ONSC 2071.

Reasons for Decision

[1] This appeal involves two neighbours whose properties abut one another. This dispute concerns whether the respondents, the Murray-Leungs, have a right to a prescriptive easement over portions of the property of Mr. Dyck and Ms. Eastwood, the appellants.

[2] The two Hamilton properties are 56 Garner, which fronts out onto Garner Road West, and 58 Garner, which sits directly behind it. The two properties were originally a single lot, which was severed by the owner in 1953. They were both converted to the Land Titles Act, R.S.O. 1990, c. L.5, system on January 20, 1997. The respondents purchased 58 Garner Road in 1996. The appellants purchased 56 Garner in July 2017. The only access to 58 Garner is by way of a gravel driveway (the "Driveway" or "Gravel Driveway"), a strip of which is located on the 56 Garner property. The Gravel Driveway is approximately 3.38 metres wide. At the end of the Driveway there is a gravel parking and lawn area that encroaches on 56 Garner.

[3] In 2018, the appellants began raising concerns about the respondents using the full width of the Gravel Driveway, on the basis that it encroached on their property. In October 2019, the appellants sought approval from the City of Hamilton to renovate their house and construct a detached garage. The construction of the garage would have required them to obtain a right of way over the respondents' property and have access from the Gravel Driveway. The respondents refused to consent, and the garage was not built. The application judge found that the relationship between the appellants and the respondents deteriorated after this.

[4] In 2020, the appellants attempted to build a fence on the Gravel Driveway, 6-8 inches off the property line. The respondents objected, believing that the fence would impede or obstruct vehicular and service truck access to their property. Workers began installing fence posts, but stopped after the respondents' lawyer intervened. The application judge accepted that, if the fence had been installed, the respondents would no longer have been able to have their septic tank emptied because the Driveway would not be wide enough for a septic tanker truck.

[5] The appellants moved ahead with renovating their home, using the Gravel Driveway for access. They also placed a number of large objects along the property, including parked cars, plant stands, chairs, ladders, and "armour stones", which the respondents said obstructed their access to the Driveway.

[6] The respondents brought an application seeking either adverse possession or a prescriptive easement in relation to the portions of the Gravel Driveway encroaching on the appellants' property.

i. Decision Below

[7] The application judge found that the respondents had not established adverse possession over the portion of the Gravel Driveway on the appellants' property or over the gravel lawn parking area at the end of the Driveway, but she found that the applicants had successfully established a prescriptive easement.

[8] All parties agreed that, because the properties were converted to the Land Titles Act system in 1997, claims could only be made based upon use prior to that date. The application judge was satisfied, based on the above findings, that the Driveway had encroached onto 56 Garner since at least 1977. Although it was not clear exactly when the Driveway was constructed, aerial images of the properties from 1953 to 2019 showed that the Driveway was present during this entire period and had not moved nor been significantly widened from 1977 to 1997. The application judge rejected the appellants' submission that the Driveway was widened with gravel in 2009, finding that although it may have been temporarily expanded, it eventually reverted to its earlier width.

[9] In terms of the Driveway's use, the application judge found that the owners of 58 Garner had been driving on the disputed land since at least 1977 to access their property. She relied on the evidence of two witnesses for this conclusion: the evidence of one of the prior owners of 58 Garner from 1981-1996, Mr. Morrison, that he and his wife consistently used the Driveway for vehicle access to their property, and the evidence of the septic tank pumping service company owner, Mr. Johnston, who had been using the Driveway to bring a septic tanker truck to 58 Garner since at least 1977.

[10] The application judge found that the applicants had established a prescriptive easement over the disputed area of the Driveway. The previous owners of 58 Garner had used the Driveway for vehicular travel in a continuous, uninterrupted, open, peaceful manner, without permission. She found continuous use of the disputed land had been established since at least 1977, and that the use of the disputed land was necessary to service the property.

[11] The application judge found that the former owners of 56 Garner had acquiesced to the use of the Disputed Land by the owners of 58 Garner since at least 1977. The fact that it was the original owner of 58 Garner who severed her lot to create 56 Garner supported the following inference: the owner of 58 Garner did not require the permission of the owner of 56 Garner to access 58 Garner. The physical layout of the Driveway, which abuts, and, at times, integrates the disputed area of 56 Garner, combined with the fact that the Driveway is the only way to access 58 Garner and was regularly used for this purpose over the period in question, were sufficient to shift the evidentiary burden to the appellants.

[12] The appellants were ordered to stop interfering with the easement. This included removing any items placed along the Driveway.

ii. Analysis

[13] The application judge observed that an easement by prescription can arise either under s. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, or pursuant to the doctrine of lost modern grant. Both have the same four requirements:

(i) a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land;

(ii) the properties cannot be owned by the same person;

(iii) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and

(iv) there must be 20 or 40 years of continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner: Hunsinger v. Carter, 2018 ONCA 656, 91 R.P.R. (5th) 175, at para. 9.

[14] The appellants take no issue with the application judge's articulation of the test for a prescriptive easement but submit that she erred in her application of this test. Specifically, the appellants contend that the application judge misapprehended key evidence on whether the Gravel Driveway remained "essentially" unchanged over the period in question, and that the application judge reversed the onus in finding that the respondents had not demonstrated that service vehicles could not access the respondents' property through the Driveway without encroaching on the appellants' property.

The application judge did not err in finding the Gravel Driveway remained essentially unchanged

[15] We see no basis to disturb the application judge's findings. The application judge held that the most reliable evidence is the photographic evidence from the time period in question.[^1] Specifically, aerial photographs from 1953 to 1985 and an aerial digital animation of the properties from 1960 to 2019 showed the Driveway leading from Garner Road West up to the house now owned by the respondents. The application judge found those images showed, "the driveway in essentially the same location as it is now": at para. 53.

[16] The appellants argued the photographs in question could not be relied on for this finding, either because they did in fact show the Gravel Driveway's location shifted (and, in particular, the dimensions of its encroachment on the appellants' property), or because the photographs were simply unreliable.

[17] The respondents argue it was open to the application judge to rely on this evidence to the extent she did, particularly in light of the balance of probabilities standard which governed her determination.

[18] We agree. It was open to the application judge to rely in part on the aerial photographs to conclude that the Gravel Driveway remained in essentially the same location over the material time period. While the appellants attempted to show that the Gravel Driveway's position in relation to the appellants' property clearly did shift in different photographs over time, there was no expert testimony on these photographs, nor was there information on the scale or perspective of the aerial photographs. We do not accept the photos preclude the application judge's factual findings, which are entitled to deference, as acknowledged by the parties. The application judge also relied on other evidence from Mr. Johnston with respect to accessing the Gravel Driveway to empty the septic tank at what is now the respondents' property, and Mr. Morrison whose evidence was that the Gravel Driveway also was used by oil truck, snowplows, an 18-wheeler, a water truck, hydro trucks, and septic trucks to access the property. She concluded the usage of the Gravel Driveway would have included the areas encroaching on what is now the appellants' property.

[19] Accordingly, we reject this ground of appeal.

The application judge did not reverse the burden of proof

[20] We also reject the argument that the application judge shifted the burden to the appellants to establish key elements of the prescriptive easement. The application judge explained, at para. 31, that once a prescriptive easement claimant has proven facts that support the inference of acquiescence in 20 years of use, the evidentiary burden passes to the respondent to lead evidence to rebut the inference by proving the use was by permission, relying on Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, 55 R.P.R. (5th) 171, at para. 17. She found the appellants had led no evidence in this regard.

[21] After explaining the evidence in support of the prescriptive easement that she accepted, the application judge stated, at para. 62, "The [appellants] have not demonstrated that it is possible to get service trucks down the length of the [respondents'] driveway without encroaching on the Disputed Land."

[22] This statement did not reverse the onus on establishing the prescriptive easement, which the application judge expressly confirmed fell on the respondents. Rather, the application judge confirmed that the appellants had failed to counter the respondents' evidence, which she accepted.

[23] Again, we see no error either with the application judge's analysis or her conclusion on this point.

iii. Disposition

[24] For these reasons, the appeal is dismissed.

[25] The respondents are entitled to their costs of the appeal, in the all-inclusive amount of $8,500.

[26] The respondents also seek costs from an earlier motion in this court relating to the appellants' request for extension of time to perfect the appeal, as the appellants had neglected to obtain the final form of the order from the application judge. The respondents contested this request, believing the appeal lacked merit. The extension of time was granted, with costs deferred to the panel hearing this appeal. In these circumstances, we award the respondents $1,500 on the motion, for total costs of $10,000.

"L. Sossin J.A."

"S. Gomery J.A."

"P.J. Osborne J.A."

[^1]: The appellants note that, although this evidence was attached to the respondent Ms. Murray-Leung's affidavit, it was the appellants who put it on the record at the application hearing. Nothing turns on this.