ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-1105/11
DATE: 20130912

BETWEEN:

DARYLL SKRABA and ROLLAND LEBRASSEUR
Plaintiffs

– and –

RITA CRISAFI and RODGERS MWIMBA and BANK OF MONTREAL
Defendants

Gerard E. McAndrew, for the Plaintiffs.

D. Peter Best, for the Defendants, Rita Crisafi and Rodgers Mwimba.

HEARD: August 29, 2013

gauthier, j.

The Motion:

[1] The Defendants, Rita Crisafi and Rodgers Mwimba (“the Defendants”), seek the following order: partial summary judgment for an order dismissing the Plaintiffs’ claim under paragraph 1(b) of the Statement of Claim for a declaration that they have a prescriptive rights-based parking easement over that part of the Defendants’ property described in the Statement of Claim as “the Driveway Lands”.

The Facts:

[2] The Plaintiffs claim a right-of-way by prescription over the 4.1 feet (28 feet in depth) of the Defendants’ property, as a parking easement. This land is referred to as the “Driveway Lands”. The Defendants’ property is located at 407 Morris Street, in Sudbury. It was previously owned by Gerald Burton.

[3] The Plaintiffs purchased the property at 403 Morris Street, Sudbury, from Barbara Lloyd on May 30, 1984.

[4] 403 Morris Street is next to and to the west of 407 Morris Street. The Driveway Lands are between the residences of 403 and 407 Morris Street.

[5] At the time the Plaintiffs purchased 403 Morris Street, they were advised by Barbara Lloyd that the driveway was her property. In reality, the Driveway Lands form part of the western side of the Defendants’ property, 28 feet in depth and 4.1 feet in width.

[6] Since they purchased the property, the Plaintiffs have used the Driveway Lands to park vehicles, for access to the backyard, and for storage. The Plaintiffs state that their use of the driveway, including the area where they spread gravel and remove snow, extended from the foundation of the residence at 403 Morris Street to the foundation of the building at 407 Morris Street. The Plaintiffs further submit that they use and require the full width of the driveway to get into and out of vehicles parked in the driveway.

[7] On May 25th, 2004, both the Plaintiffs’ property and the Burton property were converted to the Land Titles registration system from the Registry Act system.

[8] The Defendants purchased 407 Morris Street on December 11, 2009, and rented it out. When they bought the property, the Defendants obtained a Declaration of Possession from the vendors swearing that they were not aware of any adverse possession claims.

[9] In 2010, the Defendants erected a fence on the lot line which the Plaintiffs say has prevented them from using the Driveway Lands; only one vehicle can be parked on the Plaintiffs’ side of the fence if the side mirrors of the vehicle are folded inward, and as a result the occupants of the vehicle are forced to exit through the rear hatch of the vehicle.

[10] By way of the Statement of Claim issued on January 21, 2011, the Plaintiffs claim the following against the Defendants:

(a) A Declaration that they are the absolute owners of the herein described “Disputed Lands”;

(b) In the alternative, a Declaration that they are the absolute owners of all of the Disputed Lands save and except the “Driveway Lands” over which they have an exclusive easement for the ingress, egress and parking of automobiles to the exclusion of the titled owner free and clear.

[11] Counsel have advised me that the claim based on adverse possession in (a) above will require a trial in which the same evidence which is before me will be lead.

[12] The motion for summary judgment relates to the claim for easement only.

The Law:

Summary Judgment:

[13] The Defendants bring a summary judgment motion pursuant to Rule 20.01(3) of the Rules of Civil Procedure, which provides that:

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the Statement of Claim.

[14] On such a motion, I may weigh the evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence: Rule 20.04(2.1).

[15] Although the Rule permits the court to weigh evidence and draw reasonable inferences, it does not permit the use of hearsay evidence: Beatty v. Waterloo Regional Municipality, 2011 O. J. No. 2597, 2011 ONSC 3599.

[16] The moving party bears the burden of establishing that there is no genuine issue requiring a trial.

The Real Property Limitations Act:

[17] Section 31 of the Real Property Limitations Act provides that, to acquire an easement by prescription, the claimant must demonstrate a continuous, uninterrupted, open and peaceful use and enjoyment, for 20 years:

31. No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. R.S.O. 1990, c. L.15, s. 31.

Land Titles Act:

[18] Section 51(1) of the Land Titles Act provides that, as a general rule, there can be no valid adverse possession claims or claims to prescriptive rights in relation to lands registered under the Land Titles Act. However, any valid adverse possession or prescriptive rights that were already legally established at the time when the Land Titles system took over from the Land Registry system, are not prejudiced.

No title by adverse possession, etc.

51. (1) Despite any provision of this Act, the Real Property Limitations Act or any other Act, no title to and no right or interest in land registered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or be deemed to have been acquired heretofore by any length of possession or by prescription.

Operation of section

(2) This section does not prejudice, as against any person registered as first owner of land with a possessory title only, any adverse claim in respect of length of possession of any other person who was in possession of the land at the time when the registration of the first owner took place.

[19] To acquire an easement by prescription, the claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open, and peaceful, for a period of 20 years: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 [Bloor].

Position of the Moving Party:

A – The Plaintiffs cannot establish usage for the 20 years required to acquire the easement.

[20] Initially, the Defendants’ position was that the Plaintiffs did not own their property for a full 20 years before both their property and that of the Plaintiffs’ was converted to the Land Titles system. The Plaintiffs owned their property for 19 years and 360 days. They are short five days.

[21] By the time the motion was argued, the Defendants conceded that cogent evidence of in rem usage by a predecessor in title to the Plaintiffs would be admissible to establish the 20 years of uninterrupted usage. They submitted however that there was no such cogent evidence. The evidence about what Barbara Lloyd told the Plaintiffs is hearsay and therefore inadmissible, and the balance of the evidence about precisely where within the driveway the Plaintiffs observed the Lloyd vehicle to be parked, between February and May of 2004, is insufficient.

B – No knowing trespass.

[22] As the Plaintiffs mistakenly believed that they owned the disputed lands, they cannot satisfy the “as of right” requirement; they were not “knowingly trespassing”, which is required in order to acquire an easement.

[23] The Plaintiffs rely on the following statement from Bloor, at paragraph 101:

The second important point about “as of right” usage is that it does not depend on a dominant owner’s mistaken view of its rights. The dominant owner knows that the servient owner owns the property in question, but uses it anyway.

C – The physical area over which the easement is claimed.

[24] The physical area over which the easement is claimed is excessive and overreaching and is not supported by their evidence of past usage. The Plaintiffs never parked closer to 407 Morris Street than they are parking now.

[25] For this proposition, the Defendants rely in part on photographs forming part of the record for this motion.

[26] They rely as well on the evidence of neighbours (Jamal Rayan and Frank Pelletier) indicating that the western side of the Disputed Lands, where the Plaintiffs allegedly parked, was used by Gerald Burton for snow removal and to store garbage cans, flower pots, recycling boxes and a wagon. This evidence relates to events which occurred between 2006 and 2009.

[27] The Defendants also point out the fact that in 2010, they had a contractor perform renovations at 407 Morris Street, and for a considerable period of time, there was scaffolding and a NIM bin on the property the Plaintiffs claim to have an easement over. The Plaintiffs never complained.

Position of the Plaintiffs:

[28] The Plaintiffs are claiming the exclusive right to park in the driveway between 403 and 407 Morris Street, based on 20 years’ usage.

A – 20 years’ usage is established:

[29] The evidence establishes that the Plaintiffs had the exclusive use of the Driveway Lands from May 30, 1984, to May 25, 2004. No owner or occupant of 407 Morris Street used the lands in a manner that would have interfered with the Plaintiffs’ usage, or at all.

[30] The Plaintiffs rely on their own observations of the Lloyd vehicle being parked in the driveway between February and May of 1984.

[31] They rely as well on the evidence of Maria Poryckyj, who owned 403 Morris Street for a three year period ending in June of 1976. Her evidence is that her husband parked his vehicle in the driveway and that no other person, including the occupants of 407 Morris Street, used the driveway for any purpose. Like the Plaintiffs, Maria Poryckyj believed that she and her husband owned the entire driveway between 403 and 407 Morris Street.

[32] There is as well the evidence of Daniel Viens, who continuously resided at 397 Morris Street, immediately adjacent and to the west of 403 Morris Street, since he was an infant, save for the period from 1980 to 1987 when he was out of town for work.

[33] Daniel Viens’s evidence is that the occupants of 403 Morris Street have been parking their vehicles in the driveway between 403 and 407 Morris Street since the 1960s.

B – “As of right” usage:

[34] The Plaintiffs also rely on the Bloor case and point out the sentence that immediately follows what is set out above:

“As of right” usage depends ONLY (my emphasis) on long, uninterrupted and unchallenged usage, which the servient owner could have prevented but did not.

[35] The fact that the Plaintiffs mistakenly believed that they held paper title to the entire driveway does not disentitle them to an easement over the Defendants’ property.

Analysis:

[36] The record provides undisputed evidence that the Plaintiffs used the Driveway Lands, to the exclusion of the owner, for 19 years and 360 days, ending on May 25, 2004.

[37] Although the evidence about what Barbara Lloyd told the Plaintiffs is inadmissible, the observations made about Barbara Lloyd parking on the Driveway Lands during her ownership of 403 Morris Street, and the evidence of Daniel Viens, go some distance to establishing the necessary 20 year usage.

[38] Therefore, to say that there is no genuine issue requiring a trial based on insufficient usage of the property (less than 20 years), is not correct. I would dismiss the motion for this reason.

[39] I will however address the other arguments proffered by the moving parties.

[40] The moving parties suggest that the test in Bloor includes a legal requirement that the dominant owner “knowingly trespassed”. In other words, the claimants must prove that they acted like they had the right to use the property, but knew that they did not. Since a successful claim for prescriptive easement depends on a situation where the claimant knowingly trespasses without permission, the test will not be met where there is mistaken belief as to ownership.

[41] I do not believe that the Bloor case stands for the proposition put forward by the moving parties.

[42] The Bloor case involved a claimant seeking permission to use the easement from the servient owner.

[43] It is in the context of the facts in Bloor that the court made reference to the concept of the dominant owner knowing that the servient owner owns the property, but uses it anyway.

[44] Bloor ultimately rests on the meaning of “use as of right”, which is interpreted to require that the enjoyment of the easement be without permission.

[45] The court concluded from the analysis of “as of right” that the request to use the land amounted to an interruption of the prescriptive period. At paragraph 71, the court noted that:

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

[46] Read as a whole, Bloor stands for the proposition that where usage was “continuous, uninterrupted, open, and peaceful”, and the evidence indicates that the servient owner did nothing to prevent such usage throughout the statutory period, the easement may be legally acquired. Whether or not the party mistakenly believed they were the legal owners is not fundamental to the analysis, in particular given the emphasis in Bloor on the servient owner’s acquiescence.

[47] There is no requirement that a claimant “knowingly trespass”.

[48] The mistake as to ownership does not disentitle the Plaintiffs from an easement over the driveway.

[49] Finally, I also reject the argument that the physical area over which the easement is claimed is excessive. When one examines the two photographs attached as Exhibits B and C to the Affidavit in Reply of Rita Crisafi, sworn June 13, 2013, there is no mistaking that the vehicles are not parked in the same place in both photographs.

[50] Rita Crisafi’s statement that “the plaintiffs never occupied the entire “Driveway Lands” right up to the west wall of the house on 407 Morris Street, and always parked their cars mainly on their own driveway on their own property…”, is rejected.

[51] The evidence on behalf of the Plaintiffs supports their claim for the exclusive right to park in the entire driveway between 403 and 407 Morris Street. The evidence of flower pots, etc., being placed along the west wall of 407 Morris Street on occasion between 2006 and 2009 does not have much impact on the Plaintiffs’ claim.

Conclusion:

[52] The motion for summary judgment is dismissed.

[53] If the parties are unable to agree on costs, they shall communicate with the trial co-ordinator within thirty (30) days of today’s date, to secure a date and time for a costs hearing, failing which neither party will be entitled to costs of the motion.

Madam Justice L. L. Gauthier

Released: September 12, 2013

COURT FILE NO.: C-1105/11
DATE: 20130912

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

DARYLL SKRABA and ROLLAND LEBRASSEUR
Plaintiffs

– and –

RITA CRISAFI and RODGERS MWIMBA and BANK OF MONTREAL
Defendants

RULING ON MOTION

GAUTHIER, J.

Released: September 12, 2013