SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Currie and Marilyn Presta, Applicants

-and-

Robert E. Chatterton, Karen Moss and Eric Healey, Respondents

BEFORE: F.L. Myers J.

COUNSEL: Michael Carlson, for the Applicants

James C. Morton, for the Respondents

HEARD: June 2, 2014

endorsement

[1] The applicants seek an order enforcing their rights to use a deeded right-of-way over the laneway held in the name of the (deceased) respondent Robert E. Chatterton. More specifically, they seek an order prohibiting the respondents Moss and Healey from blocking the laneway.

[2] The applicants live at 155 Hannaford Street, Toronto. Ms Moss lives two doors away at 159 Hannaford Street. In between the two is the home of the respondent Healey at 157 Hannaford Street. Mr. Healey takes no position in this proceeding.

[3] In addition to owning the lots on which their houses stand, all three neighbours are the holders of rights-of-way over the “L” shaped laneway that runs from Hannaford Street along the side of Ms Moss’s house and then along the back of the houses of Ms Moss and Mr. Healey to abut the property of the applicants. At its most basic, the following picture represents the properties and the laneway each running east off Hannaford Street (which would be along the left margin of the page):

Currie – 155 Hannaford

Healey – 157 Hannaford

Moss - 159 Hannaford

[4] The applicants want to use the laneway to access their residence at the rear of their property. Ms Moss says that the applicants or their predecessors in title have abandoned their rights to use the laneway. She says that she is entitled to park her car beside her house so as to block the laneway and both she and Mr. Healey (or their predecessors) have fenced off the laneway so as to appropriate portions of it into their backyards.

[5] A few issues need to be noted at the outset. First, the rights-of-way in this case are all supported by and expressly referred to in deeds that are valid on their faces. These are not prescriptive easements but clearly deeded interests in land duly registered under the Land Titles Act.

[6] Second, Mr. Chatterton, the registered owner of the laneway that is subject to the three rights-of way, is apparently no longer alive. I adjourned the first return of this application to allow the applicants to give notice to the Public Guardian and Trustee who appeared to me to have a possible interest in the laneway by way of escheat based on the applicants’ evidence that they could find no living heirs of Mr. Chatterton. The Public Guardian and Trustee found living heirs of Mr. Chatterton. He has an adult child and at least two grandchildren who appear to be alive. The applicants have chosen to refrain from correcting the title of the proceeding or adding the living Chattertons as parties. On that basis alone, I am reluctant to declare any rights in the laneway that may affect the owners’ interests.

[7] In addition, as noted above, the principal argument advanced by Ms Moss is that the applicants have abandoned their right-of-way. If that is correct, it seems to me that it is a matter between the owner of the laneway and the applicants. I asked the parties to make written submissions on the doctrine of jus tertii. That doctrine prevents third parties from relying upon the rights of the true owner to defeat the interest of a person in possession of property. Both sides say that the doctrine does not apply to this case. In this case no one is trying to defeat a party’s possessory title by relying on a third party’s ownership of title superior. But, none of the cases relied upon by any of the parties supports one holder of a right-of-way attacking another right-of-way holder’s rights over the same land based on abandonment. Abandonment is an issue between the holders of the dominant and servient tenements (i.e. the owner of the laneway and the owner of the right-of-way over the laneway). I am told by the parties that there is other litigation in which Ms Moss may be asserting title to the portion of the laneway that abuts her house. I know nothing of that case, the parties, the issues or, most significantly, whether anything that I may do in this case might affect the issues in that case. Mr. Morton asserts that Ms Moss’s claim to possession of the portion of the laneway that abuts her house gives her the right to assert the true owner’s rights against the applicants. I fail to see how Ms Moss has a right to park her car on the laneway or to take a piece of the laneway for her backyard just because the applicants may no longer be entitled to use the laneway. Both the respondent Healey and the owner of the laneway have interests in the laneway. That is, abandonment by the applicants alone still does not give her the rights that she claims to hold. Accordingly, I do not accept that Ms Moss’s claim to possession entitles her to assert the owner’s rights against the applicants.

[8] The law concerning abandonment of a deeded right of way is not controversial. Abandonment is a deliberate act and is not caused merely by disuse. A lack of use of a right-of-way for an extended period of time may be grounds for an inference to support abandonment, but there are cases in which very lengthy periods of lack of use have been held not to amount to abandonment. That is, a party can wait and choose to use its right-of-way when it wants to do so. There is also law that prescription does not apply to limit a deeded right-of-way in Ontario.

[9] In 455645 Ontario Ltd. v. Rousseau (1981), 19 R.P.R. 1 (Ont. S.C.), Osborne J., as he then was, summarized the governing principles as follows:

1. Abandonment is a question of fact;

2. Non-user is essential to abandonment, at least in these circumstances. Non-user, and nothing more, is not sufficient to permit a conclusion of abandonment;

3. Adverse possession for a period in excess of that provided in The Limitations Act, R.S.O. 1970, c. 246 is not sufficient to bar a right to an easement. As well, such possession if found, does not change the onus on the issue of abandonment;

4. In some circumstances evidence of non-user may lead to a finding of acquiescence on the part of the holder of title to a right of way or easement;

5. All of the evidence bearing upon the issues of non-user, acquiescence and abandonment must be considered. It is an error in principle to fail to consider all the evidence by expedient resort to earlier decisions, the effect of which is non-user is in itself not sufficient to permit a conclusion that an easement right has been abandoned by the possessor of that right;

6. The onus of establishing abandonment is on the defendant in this case. In more general terms, the onus is cast upon the party asserting abandonment. In this case, where there is no dispute as to the evidence, the matter of onus assumes very much less practical significance than is the case where there is a conflict in the evidence, and hence the facts are open to dispute on that account. On the issue of abandonment, if evidence of abandonment, when considered and compared with that opposed to it, has a more convincing force, and a greater probability of truth, then the onus has been discharged. On the other hand, if the trier of fact is unable to say that the evidence on either side of the issue of abandonment preponderates, then the finding on that issue must be against the defendant;

7. If there is evidence of non-user and evidence, albeit circumstantial, of acquiescence, the trier of fact may infer abandonment.

[10] The land was first brought under the Land Titles Act in 2003. Mr. Morton argues that nothing since that time can affect the outcome. Ms Moss bought her house in 2012. The applicants bought their house in 2001. The relevant right-of-ways are shown in all of the deeds. There is no admissible evidence from anyone who was present at any of these properties over the decades prior to 2003. There is a hearsay recitation from another neighbour relied upon by way of information and belief attested to by Ms Moss, but it is plainly inadmissible under Rule 39.01(5). The neighbour could have been served with a summons if she had something to add that could have survived cross-examination. There was no necessity to use hearsay and insufficient reliability in the absence of cross-examination.

[11] Fences were erected between Ms Moss’s house and Mr. Healey’s house and between Mr. Healey’s house and the applicants’ house. Although barely visible, aerial photographs from the 1950s and 1960s appear to show the existence of boundaries of some kind. This suggests that the applicants’ predecessors did not use the laneway or acquiesced in the laneway being fenced off for some period of time. However, there is currently a gate in the fence between Ms Moss’s yard and Mr. Healey’s yard. The gate would not have let a car through. But a person could get through and, therefore, it is not inconsistent with the existence of the right-of-way. Moreover, neither of the fences currently in place is substantial in its construction. Similarly, the fact that a few insubstantial trees have been allowed to grow does not, of itself, mean that the right-of-way became unusable nor necessarily lead to an inference that the applicants’ right-of-way has been abandoned. Practically speaking, the predecessors of Ms Moss and Mr. Healy have arrogated the Chatterton’s laneway as their own back yards. But there is no evidence at all of any positive act of abandonment of the right-of-way by the applicants or their predecessors. The fact that the rights-of-ways over the laneway for all three pieces of land have continued to be referenced in all transactions, including Ms Moss’s recent purchase of her house (of which more is written below), seems to me to counter an inference that mere lack of use alone was intended to be an abandonment. Why would the applicants’ predecessors have conveyed the right-of-way to the applicants in 2001 if they had intentionally given up their rights to use the laneway?

[12] Moreover, Ms Moss’s predecessors recognized the ongoing existence of the applicants’ right-of-way. By letter dated February 12, 2012, in response to the applicants’ assertion of their rights, counsel for Ms Moss’s predecessors confirmed to the applicants’ counsel that they do not own the right-of-way or the trees on it. Counsel for Ms Moss’s predecessors advised that they had instructed their clients not to park on the right-of-way.

[13] As to Ms Moss, counsel for her predecessors wrote, “The new purchasers have also been advised of the existence of the right-of-way, that it is not owned by our clients and that it is not a parking spot”. In fact, an issue concerning parking was noted on the listing form used by the predecessors’ real estate agent to offer their property for sale to Ms Moss and to the public. Ms Moss says that she inquired about the reservation on the listing form and she was assured by the vendor’s real estate agent that it was nothing. Her lawyer on the purchase did not agree. After closing, Ms Moss’s counsel reported to her that “You acknowledged that the existing parking is on a right-of-way and it is not a legal parking spot.” He also recited, “You acknowledged that there is a right-of-way to the north and east of the property as per the survey attached to the Agreement of Purchase and Sale”. This acknowledgement is contained in the agreement itself. Whether Ms Moss has a claim against her vendors’ real estate agent is not an issue before me. Ms Moss recognized that the laneway still exists as a deeded laneway subject to rights-of-way in her purchase. This is just a confirmation that Ms Moss was not buying the portion of the land that abuts her house. It is not necessarily recognition of the ongoing existence of the applicants’ own right-of-way over the laneway.[^1] But it at least gives some equitable colour to the claim being advanced.

[14] In all, assessing all of the evidence before me on the standard set out in Rousseau, supra, I would not find as a fact that the applicants or their predecessors abandoned their right-of-way over the laneway. The few fairly small trees and the fences are equivocal. They support a finding of non-use at least by a wide vehicle. But people are allowed to hold their deeded rights-of-way and not use them until they want to do so. Absent something more, under the case law I would not find abandonment from mere non-use based on a couple of grainy aerial photos. As I noted above, the continued reference to the right-of way in the deeds of the applicants and their predecessors is some indication that they continued to rely on their right-of-way. Ms Moss’s predecessor recognized the applicants’ rights i.e. they did not assert that the applicants had abandoned. The precise timing of when Ms Moss learned the details of her right-of-way is not relevant as it is not probative of whether the applicants or their predecessors intended to abandon their right-of-way. The fact that she parks on the laneway after acknowledging to her counsel her understanding that it was not a parking spot is once again colour that may go to the equities rather than to the merits of the issue of abandonment.

[15] It follows that if I could get to the merits, I would not find that the applicants or their predecessors abandoned their right-of-way based on the very limited evidence before me. But I do not think that I have the necessary parties before me to make that determination. A determination that there is no abandonment means that the true owner remains subject to the right-of-way. That is, it affects the owner’s interests. I can only surmise that neither the applicants nor the respondents served the owners because they have made common cause that neither wants the true owners asserting an interest in the laneway (and asking for money) now or because of some issue in the other litigation that I am told exists. As noted above, Ms Moss seeks to advance an argument as if she is the true owner. I am not satisfied that Ms Moss has standing to raise the issue of abandonment to answer the applicants’ assertion of their deeded rights. I note only in the alternative that if I am found to be wrong on standing, I do not think that Ms Moss has proven the fact of abandonment by the applicants or their predecessors. Based on the title documents, I am prepared to enforce the applicants’ deeded right-of-way as against Mr. Healey and Ms Moss in personam and enjoin them from blocking the applicants’ use of the laneway to access their premises. Nothing herein is intended to bind the true owner(s) of the laneway and my order is expressly without prejudice to any and all rights of the true owner(s) to assert abandonment or any other causes of action or defense that he, she, it, or they may have against the applicants, Ms Moss or Mr. Healey.

[16] I grant the relief sought in paragraphs 1(c) and (d) of the Notice of Application dated October 3, 2003.

[17] The applicants seek costs on a partial indemnity basis of just over $20,000. I have taken into account the factors enumerated under Rule 57, including the time spent, the result achieved, and the complexity of the matter, as well as the application of the principle of proportionality: Rule 1.04(1). In addition, I have considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ONCA), (2004), 71 O.R. (3rd) 291 (C.A.) and Davies v. Clarington (Municipality) 2009 ONCA 722, (2009), 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. In all, it is fair and reasonable for the respondent Moss to pay costs to the applicants jointly the amount of $17,500 inclusive of disbursements and taxes. The claims for the remainder of relief sought in the Notice of Application are dismissed.

F.L. Myers J.

Date: August 7, 2014

[^1]: The legal description refers to the right-of-way being owned “in common with others” so it could be argued that this is a recognition of the applicants’ right-of-way.