ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-504000

DATE: 20141117

BETWEEN:

CONDOS AND CASTLES REALTY INC.
Applicant

– and –

JANEVE CORP.
Respondent

Alfred Schorr for the Applicant

Andrea Habas for the Respondent

HEARD: November 12, 2014

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

1The Applicant, Condos and Castles Realty Inc., owns a property at 842 King St. West in the City of Toronto. The property is now registered under the Land Titles Act, R.S.O. 1990, c. L.15. On the rear part of its property, there is a parking area that connects to a private laneway, a right-of-way, which is a registered ownership interest burdening the adjoining properties, 844, 846, 848, and 850 King St. West.

2The Respondent, Janeve Corp., owns the adjoining properties. The registered right-of-way traverses the rear of Janeve Corp.’s properties, and the private right-of-way has a terminus at the boundary of the 842 King St. West property. In other words, Condos and Castles’ property is not a dominant tenant with rights to use the right-of-way.

3However, Condos and Castles - and more significantly its predecessors in title - have been using the adjoining private right-of-way across Janeve Corp.’s property, although none of the owners of 842 King St. West have been registered as a dominant tenant over the adjoining properties.

4In this Application, Condos and Castles seeks a declaration that its predecessors in title acquired an easement by prescription to use the right-of-way that burdens Janeve Corp.’s lands.

5More particularly, Condos and Castles applies for: (a) a declaration that it has an easement (right-of-way) over the northerly portions of Janeve Corp.’s properties identified by Parcel Registration PIN numbers 21244-0307 (LT) and 21244-0305 (LT) and 21244-0306 (LT) to a width equal to that of the laneway to the west of the aforesaid properties.

6The grounds for the Application are: (a) Condos and Castles and its predecessors in title, for in excess of at least 20 years before the first registration of the aforesaid lands in the Land Titles System, have exercised a continuous uninterrupted open and peaceful use of the laneway as a right-of-way for vehicular and other traffic from the rear of its property westward to a width roughly equivalent to that of the laneway to the west without express consent; (b) and s. 31 of the Real Property Limitation Act, R.S.O. 1990, c. L.15.

7For the reasons that follow, I dismiss the Application.

B. FACTUAL BACKGROUND

1. Evidentiary Background

8I begin my description of the factual background to the Application by observing, as will become apparent below, that the evidence submitted by Condos and Castles about the history of the properties now municipally known as 842-850 King St. West is very-very sparse.

9The subject properties were part of a subdivision of land (Plan D179) that was registered in 1874, and so they have a very long history, but Condos and Castles mainly provided information for the period from November 8, 1982, when survey Plan 63R-2752 was registered under the Registry Act, R.S.O. 1990, c. R.20 by David Chan, the then owner of 844-850 King St. West, to March 26, 2003, when the subject lands became registered under the Land Titles System.

10The goal of Condos and Castles’ evidence was to establish that between March 26, 1983 and March 26, 2003, during which time the subject properties described in Plan 63R-2752 were registered under the Registry Act, Patricia Pelech, the owner of 842 King St. West, and her predecessors in title, Agostino and Maria Lopes, had acquired a prescriptive right-of-way over Mr. Chan’s properties.

11To make its case, Condos and Castles provided the evidence of Paul Raszewski, Morry Katz, and Michael Katz.

12Mr. Raszewski is the Chief Executive Officer of Condos and Castles. From 1999 to 2008, it owned a property across the street at 833 King St. West, where it carried on business as a real estate broker. Mr. Raszewski had no personal knowledge of the state of affairs at the rear of the subject properties.

13Morry Katz was a tenant at 844 King St. West, which was a house, from 1982 or 1983, until 2010, when he vacated the house, which was then occupied by his son, Michael, until 2012. The Lopes family were the Katz’s neighbours.

14Mr. Morry Katz lived next door to the Lopes until September 2005, when the Lopes sold to Ms. Pelech, who lived at 842 King St. West until she sold the property to Inner City Films, the immediate predecessor in title to Condos and Castles.

15Michael Katz lived with his father at 844 King St. West for a couple of months in 1989 and for six months in 1990. Beginning in 2000, he began operating a business and living at 844 King St. West. He left in 2012.

16There was no evidence from Mr. Chan.

17There was no evidence from Ms. Pelech.

18There was no evidence from any of the Lopes, apparently a large family of numerous children, parents, and in-laws.

19There was no evidence of any other residents of the neighbourhood.

20The only other evidence on the Application was the evidence of Marie Hugette Wing, an officer and director of Janeve Corp. She knew nothing about the use of the private right-of- way between March 26, 1983 and March 26, 2003.

2. The History of the Subject Properties between 1982 and 2003

21Set out below is a rough sketch of the properties on King St. West.

PUBLIC LANE

RIGHT OF WAY

842

852

850

848

846

844

KING ST. WEST

22On November 8, 1982, Mr. Chan registered survey Plan 63R-2752, which described four discrete properties. He was the owner of the four properties, which are municipally known as 844-850 King St. West. (These are the properties now owned by Janeve Corp.)

23It can be inferred from the registration of survey Plan 63R-2752 that Mr. Chan was positioning himself to sell the four properties comprising 844-850 King St. West as four discrete properties. Of these four properties, 850 King St. West had access to the public lane, and to afford the remaining three properties access to the public laneway, Mr. Chan created registered mutual private rights-of-way.

24At the time when survey Plan 63R-2752 was registered, Agostino and Maria Lopes were the registered owners of the neighbouring property, municipally known as 842 King St. West. (This is the property now owned by Condos and Castles). This was a family home, and there is evidence that family members parked their vehicles at the rear of 842 King St. West and used the private right-of-way to access the public laneway.

25Mr. Morry Katz was a tenant at the house neighbouring the Lopes’ home, and he saw various family members drive their vehicles across the private-right-of-way. His own belief was that the private right-of-way was a public road.

26In December 2001, the Lopes sold 842 King St. West to Patricia Pelech.

27There is evidence from Mr. Morry Katz and from the documents filed on the Application that indicates that there was a garage for cars on 842 King St. West but that the garage was removed, probably by Ms. Pelech.

3. 2003-2014: The History of the Dispute between the Parties

28In September 2005, Ms. Pelech sold 842 King St. West to Inner City Films Inc.

29In August 2006, Janeve Corp. became Mr. Chan’s neighbour to the west. It purchased 852 King St. West.

30In 2008, Condos and Castles submitted an offer to purchase 842 King St. West. It did so based on a Toronto Real Estate Board listing that indicated that there was a right-of-way to parking at the rear of the property. A visual inspection of the property would have revealed parking at the rear with access to a lane that connected to an elbow shaped public lane.

31There, however, is nothing in the agreement of purchase and sale that indicates that Inner City Films promised to convey a right-of-way as part of the property being conveyed. Mr. Raszewski has no recollection of giving his corporation’s lawyer any instructions about a right-of-way.

32On August 29, 2008, Condos and Castles’ purchase of 842 King St. West closed.

33It may be noted that Condos and Castles is in the business of land transactions and that it was represented throughout.

34Condos and Castles’ purchase transaction closed with a conveyance that did not include any registered rights over the right-of-way crossing 844-850 King St. West. There is no evidence of any communications between Condos and Castles with Mr. Chan about access across his property.

35On January 23, 2012, Janeve Corp. purchased 844-850 King St. West from Mr. Chan.

36In August 2013, Janeve Corp. decided to renovate its property and part of its project was to repave the private laneway across the rear of its properties.

37The construction caused inconvenience for Condos and Castles, and unfortunately the relationship between the parties soured. The result, colloquially speaking, is that the parties “lawyered up,” and Condos and Castles took the position that it was obvious that it had acquired a prescriptive easement and when Janeve Corp. refused to agree, this Application followed.

C. DISCUSSION AND ANALYSIS

38In 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007, at some considerable length, I described the law about what is required to establish a prescriptive easement. I will not repeat that analysis here, but rather will borrow from that decision (without including all the citations) to set out the principles that apply to the immediate case; visualize:

• To establish a prescriptive easement under a limitations statute, the claimant must demonstrate a continuous, uninterrupted, open, and peaceful use of the land, without objection by the owner.

• The doctrine of lost modern grant establishes that where there has been 20 years of uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfill the requirements of prescription, the law will adopt the legal fiction that such a grant was made.

• The somewhat obscure and difficult theory behind a claim for an easement based on prescription under a limitations statute or under the doctrine of lost modern grant is that the evidence establishes that the owner of the servient tenement has with knowledge consented or acquiesced to the establishment of an incorporeal ownership interest in land as opposed to simply permitting or licensing the use of the land without conferring an ownership interest in it.

• To acquire an easement by prescription under a statute of limitations or under the doctrine of lost modern grant, the claimant’s use of the land must be “as of right” or, as described in the old authorities, “nec vi, nec clam, nec precario”—“without violence, without stealth (secrecy), without permission”.

• To say that the use of the easement must be “as of right,” is to say that the enjoyment of the easement is not just permissive (i.e., not just a licence) and the owner of the dominant tenement must actually manifest an ownership right to use the easement.

• The person claiming the easement must show that the owner of the land has acquiesced in his enjoyment. The latter must have acquiesced yet not given permission. It is not easy to tell whether or not there was, in fact, acquiescence in a particular case.

• A claimant may rely on the use of predecessor owners to make up the requisite period of “as of right” use.

• Use by permission or licence is insufficient for establishing a prescriptive easement. Use permitted by neighbourliness and enjoyed on that basis is insufficient to establish an easement by prescription.

• For the claim to an easement to succeed, there must be evidence that the owner of the servient tenement knew or ought to have known what was happening on his or her land.

• The evidence required to establish title by prescription will vary with the nature of the user. Where the use is notorious and the owner of the servient tenement makes no objection, then his or her acquiescence to the use as a right of the dominant tenement can more readily be inferred.

• The onus of proof of the requisite use is on the claimant. Those seeking to rely upon the Limitations Act or the doctrine of lost modern grant to establish by clear evidence both the continuous use and acquiescence in such use by the owner of the servient tenement.

• The threshold for meeting the criteria for establishing a prescriptive easement under the Limitations Act or by lost modern grant is high, and courts are hesitant to recognize an easement by prescription because doing so would permit a landowner’s neighbourly accommodation of sufferance to ripen into a legal burden on his or her lands.

39In Henderson v. Volk (1982), 1982 1744 (ON CA), 35 O.R. (2d) 379 (C.A.), a case, like the case at bar, about a claim for a prescriptive easement, Justice Cory stated at p. 384:

It is right and proper for the Courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant is established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor. It is reasonable to require those seeking to rely upon the Limitations Act or the doctrine of lost modern grant to establish by clear evidence both a continuous use and acquiescence in such use by the owner of the servient tenement.

40Applying the above principles to the evidence in the case at bar leads to the conclusion that there was more than 20 years use of the private right-of-way but the use was by licence and not as of right. It appears that Mr. Chan permitted his neighbours to cross over his property and there was no reason for him to think that Ms. Pelech and the Lopes were using his private right-of-way as if they had an ownership right to do so.

41The fact that when Condos and Castles purchased 842 King St. West in 2008 from Inner City Films the real estate listing agreement indicated there was a right-of-way to parking at the rear of the property does not prove that between March 26, 1983 and March 26, 2003, Ms. Pelech and the Lopes had acquired a prescriptive right-of-way over Mr. Chan’s properties, which were subsequently purchased by Janeve Corp.

D. CONCLUSION

42For the above reasons, Condos and Castles’ Application is dismissed.

43If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Janeve Corp.’s submissions within 20 days of the release of these Reasons for Decision followed by Condos and Castles’ submissions within a further 20 days.

Perell, J.