COURT FILE NO.: 08-CV-43375

DATE: 2015/10/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID MCCLATCHIE and VICTORIA MCCLATCHIE

Plaintiffs

– and –

THE CORPORATION OF THE TOWNSHIP OF RIDEAU LAKES and ALLEN CHURCHILL, by his litigation guardian Alma Churchill, Defendants

Robert De Toni, for the Plaintiffs

Thomas Connolly, for the Defendant, Allen Churchill

HEARD at Ottawa: October 15, 16, 17, 18 and 29, 2013

AMENDED REASONS FOR JUDGMENT

The text of the original decision was corrected on October 8, 2015

and the description of the correction is appended

kane j.

[1] The plaintiffs’ currently reside in a home located on the shores of Rideau Lakes in Eastern Ontario. Title to the land surrounding their home and whether their property is land-locked constitute the central issues in this action.

[2] The court on a motion for summary judgment dismissed the plaintiffs’ claim against the Corporation of the Township of Rideau Lakes on April 9, 2013.

RELIEF SOUGHT

[3] The plaintiffs seek the following relief against Mr. Churchill:

(1) A determination and declaration that they are the owners of Part 1 on Exhibit 7 (the “Riddell Survey”) by adverse possession pursuant to sections 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c.L.15 (the “Act”) .

(2) A determination and declaration that the plaintiffs, by way of equitable proprietary estoppel, have a prescriptive easement, namely a right-of-way over Parts 4 and 5, on the Riddell Survey. (Parts identified on the Riddell Survey, exhibit 7, shall be referred to as “Part R-1”, “Part R-2” etc.)

(3) In the alternative, a determination and declaration that the plaintiffs by necessity are entitled to an easement, namely a right-of-way, over Part R-4 and Part R-5.

(4) In the further alternative, a determination and declaration that the plaintiffs are entitled to an easement or right-of-way over Part R-4 and Part R-5 pursuant to the Road Access Act, R.S.O. 1990, c. R.34.

[4] The defendant Churchill submits that the plaintiffs have no legal interest or title beyond their ownership of Lot 16 on Plan 198 (“Lot 16-198”), formerly part of part of Lot 20, Concession 5, Township of South Elmsley (Lot 20-5). Churchill’s position is that:

(a) he alone owns the land surrounding Lot 16-198, including the 40 foot road allowance shown on plan 198 (the “Road Allowance”);

(b) that the fixture encroachments of the McClatchies on the Road Allowance must be removed; and

(c) that the plaintiffs may not cross his land to access their home on Lot 16-198, unless they agree to his financial terms.

[5] By counterclaim, Churchill seeks:

(a) A declaration that the plaintiffs and their successors in title have no interest or right in the farm lands of the defendant, namely: (i) Part 1 on Plan 28R-3361 which is the land south of the Road Allowance including Parts R-4 and R-5 and (ii) and lands to the south and west of Lot 16-198, being the Road Allowance; and

(b) A mandatory order or injunction that the plaintiffs remove anything constructed on the lands of the defendant prior to June 1, 2014, namely: a corner of the garage of their house, a septic field, tank and pump unless otherwise agreed to.

[6] Although it has no bearing on the above legal issues, it is regrettable that this trial was necessary given the age and circumstances of the parties as follows, as well as what is in issue. This is but one of several historical disputes involving Mr. Churchill and water lot owners on Plan 198.

[7] The plaintiffs are 72 years of age. Mr. McClatchie currently has untreatable cancer. He is a retired school teacher from Northern Ontario. His wife worked for a time as a real estate agent and then stayed home to raise their grandchildren. This property has been their home since retirement in 2001 when they moved from Northern Ontario.

[8] Mr. Churchill attended this trial daily but was unable to testify because he has Alzheimer disease. The plaintiffs consented to the introduction of portions of Mr. Churchill’s transcript from his examination for discovery as evidence. His wife and litigation guardian did not testify. The defence called no witnesses.

[9] Mr. Churchill is a retired religious Minister with a Phd. from Oxford University. Prior to his career in the Ministry, he worked for five years as a member of the Royal Canadian Mounted Police.

[10] Mr. Churchill owns the water front Lots 26-198, 27-198, 33-198 and 34-198 and most but not all of Lot 20-5.

[11] Plan 198 includes a Road Allowance, the purpose of which was to provide access to the subdivided water front lots. It currently and historically does not provide access to Lot 16-198. Access for decades to that lot has been provided over a gravel driveway on Lot 20-5 which the defendant is now disputing the right to use which would result in Lot 16-198 becoming landlocked.

[12] The Road Allowance on Plan 198 ends behind Lot 16-198 which by implication, means its use at that point is limited to the owners of Lot 16-198.

BACKGROUND

PLAN 198

[13] Plan 198 was registered in 1922. It created 38 water front lots on Rideau Lakes and the Road Allowance out of Lot 20-5. The Road Allowance runs along the back of Lots 38-198 to Lot 16-198.

[14] Lots 16-198 and 15-198 are separated by a creek thus ending the Road Allowance at the back of those lots.

[15] Plan 198 contemplates access to Lots 16-198 through to Lot 38-198 by the Road Allowance from the highway dividing Concessions 5 and 6 and beginning at Lot 38-198.

[16] Physically, access to Lots 16-198 through to Lot 35-198 does not exist via the Road Allowance and never has for reasons hereafter explained. Access from the closest highways to lots 16-198 through to Lot 35-198 instead, has been provided for decades by alternate gravel roads or driveways over Lot 20-5. There are three separate gravel or paved driveways running over Lot 20-5 to access Lots 16-198 through to Lot 35-198 not involving access via the Road Allowance. The fourth entrance is via the Road Allowance and provides direct access to a maximum of three of the water lots on Plan 198, namely Lot 36-198 to Lot 38-198.

[17] The Road Allowance was never assumed by the municipality. Whether the Road Allowance was owned by the municipality or was a private road allowance, has been a matter of much discussion and litigation since Mr. Churchill’s purchased of Lot 20-5 in 1980. Mr. Churchill over time has himself expressed varying opinions as to whether he or the Township owned the Road Allowance.

PRIOR OWNERS AND OBSERVATIONS RE HISTORICAL CONVEYANCES

[18] The predecessor in title to Mr. Churchill of Lot 20-5 was Robert Bourne. Mr. Bourne purchased Lot 20-5 in 1946 together with other lands. Mr. Bourne’s purchase of Lot 20-5 was together with and subject to a right-of-way in common with all others entitled for ingress, egress, and regress for persons, animals and vehicles over and along the Road Allowance at the rear of the 38 water lots on Plan 198. The registered instruments in evidence indicate that Mr. Bourne was a farmer. This purchase by Mr. Bourne also included a conveyance to him of several of the waterfront lots.

[19] The respective owners of Lot 16-198, Lot 20-5, Lots 28-198, 33-198 and 34-198 include the following conveyances:

LOT 16, PLAN 198

Purchaser(s)

Date of Purchase

Legal Description

Consideration

Lillian Christena Frayne

April, 1954

All of Lot 16, Plan 198

$1

Wilson D. Brown

April, 1959

All of Lot 16, Plan 198

$500

Edna I. Brown

April, 1967

All of Lot 16, Plan 198

$1 (under terms of separation agreement)

Brian Clare Bailey

September, 1969

All of Lot 16, Plan 198

$3,000

Dennis Wayne Collis

September, 1979

All of Lot 16, Plan 198

$84,000

James W. Parsons and Gertrude Madeline Parsons

May, 1980

All of Lot 16, Plan 198

$90,000

John Alexander Banford and Deborah Fay Banford

David Lewis McClatchie and Victoria Oria McClatchie

August, 1982

September 25, 2001

Lot 16, Plan 198 together with a right-of-way over Part of Lot 21-5 designated as Part 2, Plan 28R-2363 and subject to a right-of-way over Part 2, Plan 28R-2363 in favour of the owners of adjacent land designated as Parts 1 and 3 on Plan 28R-2363.

Lot 16 – 198, together with a right-of-way over part of lot 21 – 5 and part of lot 20 – 5 being Parts 3 and 4 on Plan 28R-9462 and part of Lot 20 – 5 designated as Part 3 on plan 28R-3361

$1,000

$235,000

It is to be noted that all of these conveyances, prior to the conveyance to the plaintiffs, do not include a right-of-way on the Road Allowance, or at all. The conveyance to the plaintiffs contains a conveyance of a right-of-way over only a portion of the Road Allowance but is silent as to the actual access exercised to Lot 16-198, namely over Parts R-4 and R-5. The evidence is that the owners of Lot 16-198 since at least 1980, accessed Lot 16-198 by a gravel road running over Lot 20-5 and Parts R-4 and R-5 in particular.

LOT 20, CONCESSION 5

Purchaser(s)

Date of Purchase

Legal Description

Consideration

Robert George Bourne

Allen Douglas Churchill and

Helen Churchill

July 2, 1947

March, 1980

Lot 20, Concession 5 bound on the north and east by Rideau Lakes, on the south by the road allowance between Concession 4 and 5and the west by the dividing line between lots 20 and 21, Concession 4 and 5 as shown on plan 198, together with and subject to the Road Allowance in favour of the water lots on Plan 198.

Part of Lot 20, conc. 5 designated as Parts 1, (being Lot 20-5) part 2 (part of the Road Allowance) & 3 (part of the Road Allowance) on Plan 28R-3361, subject to a right-of-way for others over Part 2, Plan 28R-3361 (the northern section only of the Road Allowance) and together with a right-of-way together with others over Part of Lot 17, Plan 198 designated as Part 4, Plan 28R-3361

$1.00

$8,000

This conveyance includes the Road Allowance behind Lot 16-198 to Lot 27-198 on Plan 198. It does not include the easterly portion of Lot 20-5 subsequently transferred to Mr. Churchill, nor does it include the remaining portion of the Road Allowance behind Lots 28-198 to Lot 38-198, with the rear of Lot 38-198 being the access point to the Road Allowance from the concession highway.

From Allen Douglas Churchill, Executor of Estate of Robert George Bourne (vendor) to

Allen Douglas Churchill

April 9, 1986

Part of Lot 20, conc. 5 designated as Parts 1, 2, 3, and 6, Plan 28R-4860 subject to a right-of-way over Parts 2 and 3, Plan 28R-4860

Nil –

distribution of residue of estate

This deed conveys most but not all of the remaining portion Lot 20-5, as well as the Road Allowance behind the water front Lots 28-198 to 35-198, but not the Road Allowance behind Lots 36-198 to Lot 38-198 where the Road Allowance connects to the highway. The result therefore is that the Road Allowance on Plan 198 behind Lots 35-198 to Lot 16-198 does not access the highway as envisioned on Plan 198.

LOTS 33 AND 34, PLAN 198

Purchaser(s)

Date of Purchase

Legal Description

Consideration

From Allen Douglas Churchill, Executor of Estate of Robert George Bourne (vendor) to

Allen Douglas Churchill and

Helen Churchill

April 9, 1986

Part of Lots 33 & 34, Plan 198 designated as Part 5, Plan 28R-4860 together with a right-of-way over Lot 20, conc. 5 designated as Part 2, Plan 28R-3361 and Parts 2 & 3, Plan 28R-4860

Nil – distribution of residue of estate

This deed conveys most but not all of the remaining portion Lot 20-5, as well as the Road Allowance behind the water front Lots 28-198 to 35-198, but not the Road Allowance behind Lots 36-198 to Lot 38-198 where the Road Allowance connects to the highway. The result therefore is that the Road Allowance on Plan 198 behind Lots 35-198 to Lot 16-198 does not access the highway as envisioned on Plan 198.

LOT 28, PLAN 198

Purchaser(s)

Allen Douglas Churchill, Executor of Estate of Robert Bourne (vendor) to

Helen Churchill

Date of Purchase

April 9, 1986

Legal Description

Lot 28, Plan 198 together with a right-of-way over Lot 20, conc. 5 designated as Part 2, Plan 28R-3361 and Parts 2 & 3, Plan 28R-4860

Consideration

Nil – distribution of residue of estate

[20] Once again, Lot 28-198 is not provided access from the highway over the Road Allowance. Instead, access is granted over land internal to Lot 20-5 and then over the portion of the Road Allowance located behind Lot 28-198. Similar access, internally over Lot 20-5 was deemed necessary and so conveyed by Mr. Churchill over Lots 33-198 and 34-198. Mr. Churchill and his lawyers in 1986 recognized the absence of a right-of-way to access these three lots from the highway by the Road Allowance, as is apparent on Plan 28R-4860. That same inaccessibility by the Road Allowance applies to Lot 16-198.

[21] The court notes that in each of the three above 1986 conveyances by Mr. Churchill as estate trustee, he was represented by the law firm of Baker, Butterworth, Woodwark & Stevens in Perth, Ontario. Mr. Churchill and that law firm in these conveyances were obviously aware of the importance of access to these water lots, the inability to provide lot access by the Road Allowance and therefore the need to grant a right-of way over Lot 20-5.

[22] The additional relevance of that law firm is that in their 2001 purchase of Lot 16-198, the McClatchies were represented by lawyers from that same firm, namely by Woodwark & Stevens in Perth, Ontario. The same Mr. Stevens provided legal advice to Mr. Churchill by 1988, as to steps he could take to protect his legal title to Lot 20-5 regarding the owners of the water lots.

[23] Mr. Churchill’s recognition in 1986 as to the necessity of conveying a right-of-way over Lot 20-5 in relation to Lots 28-198, 33-198 and 34-198 is to be compared to his current refusal to grant a similar right-of-way to Lot 16-198.

[24] There is no legal requirement that landowners voluntarily encumber their land in order to create access to abutting land owners. The defence’s suggestion however that Mr. Churchill has acted in relation to Lot 16-198 since 1988, as a friendly reasonable neighbour is inaccurate. What he has done after purchasing Lot 20-5 in 1980 for $8,000, is to then police the owners of subdivision lots created some 60 years earlier, including revoking or threatening to revoke their right of access for his own financial gain. Such an approach may not be legally objectionable but must be considered in review of the evidence before this court including the absence by the defendant of any claim to title of the Road Allowance before Pedlar J. and Kershman J. This approach must also be considered in light of the clear intention in creating Plan 198 that each of the 38 subdivided lots was intended to have access to those lots over the Road Allowance and the substitution thereof by the multiple internal laneways over Lot 20-5.

[25] The Court of Appeal in the cases noted below, draws a distinction between a dominant abutting owner trying to take land from a registered owner, such as might have been the case before Pedlar J., versus someone like the plaintiffs, who without wrongdoing on their part, find their access, home and investment threatened for the financial benefit of Mr. Churchill. These considerations do not alter the law to be applied. They are a direct reflection however as to how these legal issues come before this court.

ROAD ALLOWANCE ON PLAN 198

[26] The following factual determinations confirm that the Road Allowance provides no access to Lot 16-198 namely:

(a) Evidence of the plaintiffs is that the Road Allowance physically does not provide access to Lot 16-198 and a number of other waterfront lots on Plan 198.

(b) The plaintiffs’ evidence includes the fact that the portion of the Road Allowance at the rear of Lots 20-198 to 25-198, ends at Lot 25-198 due to a large rock cliff or embankment with only wagon tracks leading south into the bush towards Lot 20-5. There is no evidence where these wagon tracks lead to, such as on to Lot 20-5 and then returning to the Road Allowance. There is no evidence that these wagon tracks are or have ever been used to provide access for Lots 16-198 to 25-198. Access to those lots appears instead is by two of the internal gravel roads across Lot 20-5.

(c) Hydro poles are embedded in the width of the Road Allowance, as shown on Plan 28R-9462.

(d) Portions of land constituting the Road Allowance have been conveyed to lot owners as indicated in the decision of Kershman J. in McClatchie v. Rideau Lakes (Township), 2013 ONSC 1884; 2013 CarswellOnt 4122 (S.C.J.), para. 46.

(e) The above conveyances of Lot 16-198 do not include a right-of-way over the Road Allowance.

(f) The inclusion of a right-of-way in the above conveyances to Mr. and Mrs. Banford and to Deborah Fay of a right-of-way over Part 2, Plan 28R-2363 would have been unnecessary if access to those lots was available by the Road Allowance.

(g) The repeated admissions of Mr. Churchill on his discovery that the existing road access used by the plaintiffs over Parts 4-R and 5-R, is the only access to Lot 16-198.

(h) Construction of buildings by water lot owners on the Road Allowance as reflected in the Goltz sketch, exhibit 6, involving Lot 17-198 and as referred to in the decision of Pedlar J. in Churchill v. Irvine-Shields (May 23, 2007), Perth, 38/96 (S.C.) para. 22.

(i) Mr. Churchill’s above conveyances in 1986 of Lots 28-198, 33-198 and 34-198 includes a right-of-way over Part 2, Plan 28R-3361, being an internal road over Lot 20-5 west of the Road Allowance which would not be necessary if access to those lots was available via the Road Allowance. To the extent access to those lots is not available via the Road Allowance off the concession road, such lack of access is equally applicable to Lot 16-198.

PART R-1

[27] Part R-1 is a portion of the Road Allowance lying south and west of Lot 16-198. Mr. Churchill seeks a declaration that he is the owner of Part R-1 and that the plaintiffs must remove everything constructed on that land.

[28] When the Banfords purchased Lot 16-198, they built the present house and sewage system in 1983. A small portion of the attached garage overhangs onto Part R-1. The septic tank, pump and the raised septic sewage field are located on Part R-1. A small corner of the septic field extends into Part R-9. The evidence seems to indicate that this construction beyond the limits of Lot 16-198 was in error and not intentional. The sketch of the sewage field attached to the Township application in fact indicates the septic bed is located within Lot 16-198 which is not the case.

[29] Mr. Churchill’s current position that he owns Part R-1 contradicts his prior position that the Township, and or waterfront lot owners, owned or controlled the land constituting the Road Allowance.

[30] Mr. Churchill sued the owners of Lot 18-198 in 1996. He sought among other things a mandatory order, similar to that requested here, that the owners of Lot 18-198 remove asphalt they had placed on a hilly portion of their driveway over the Road Allowance and to the south thereof. Pedlar J. in Churchill, supra, refused the relief requested as to the Road Allowance and stated:

[15] When no agreement was reached, the applicant, Allen D. Churchill, gave written notice to the former respondents to remove the asphalt, as well as the tool shed and all other items belonging to them, from his land. It must be noted that, at the time, the applicants believed they also were the owners of Part 3, shown on Plan 28R-3361, which is the 40-foot road allowance, and requested that the items be removed from that portion of the land as well. Through extensive investigation and research between the parties and various lawyers for the Municipality, it has been agreed that the Municipality owns Part 3, being the 40-foot road allowance. This application then relates only to that portion of the triangular piece of property in question that extends beyond the 40-foot road allowance out into Part 1 on the said plan, which is the property of the applicant. [Emphasis added]

[31] Mr. Churchill was successful in obtaining other relief before Pedlar J. against the owner of Lot 18-198 who had signed an agreement with Mr. Churchill to use a portion of the land south of the Road Allowance behind Lot 18-198. After the paving occurred, Mr. Churchill prepared a new 10-year agreement to use a relatively short portion of the right-of-way for an increased consideration, from some $10 per decade, to thousands of dollars per decade which the owner found unacceptable.

[32] On the issue of costs, Pedlar J. ordered that each party bear their own costs despite Mr. Churchill’s overall success in the action. The trial judge on this cost issue stated: “I also seriously question whether the former respondents had any idea about the significant consequences of signing Exhibit 8 and were put in a very difficult position when the applicant dramatically sought to change the nature and extent of that agreement by seeking such a significant increase in fees for permission to use the right-of-way, with no guarantee that those fees would not again be increased dramatically in the future.”

[33] There are similar signed agreements in this action prepared by and now relied on by Mr. Churchill do defeat the plaintiffs’ pursuit of legal rights of ownership and to access Lot 16-198.

[34] Mr. Churchill was not alone in believing that the he did not own or control Part R-1 and that it in fact was a Township road or public right-of-way. The evidence indicates that a number of lawyers who had investigated this issue and Mr. Banford were of the same belief.

[35] As indicated, the Township was removed as a defendant in this action in April, 2013. The plaintiffs in this action sought a declaration against the Township that Part R-1 be declared a public highway in accordance with the Registry Act, R.S.O. 1914, c. R.24 and the Surveys Act, S.O. 1920, c.48 and that the plaintiffs are entitled to exclusive occupation of such land.

[36] The Township successfully had itself removed as a defendant in April of 2013 on a motion for summary judgment. Kershman J. determined that the Township was not the registered owner of the Road Allowance. As counsel for Mr. Churchill acknowledged during this trial, Mr. Churchill did not take the position before Kershman’s J. on the Township’s motion for summary judgment, that he was the owner of Part R-1. Defence counsel stated that his client’s position before Kershman J. was that Mr. Churchill did not know who owned the Road Allowance, including Part R-1.

ADVERSE POSSESSION AND PART R-1

[37] Legal title to land may be extinguished after 10 years of adverse possession by a non-owner: sections 4 and 15, the Act.

[38] The doctrine of adverse possession is based on the registered owner’s failure to take action within the 10 year limitation period: Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.) para. 14.

[39] Whether title to land is acquired by adverse possession is a question of fact, to be determined on the evidence in each case: Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 p. 4 (C.A.).

[40] The claimant to possessory title must demonstrate that during the 10-year period, the claimant:

(a) had actual possession;

(b) had the intention of excluding the true owner from possession, and

(c) effectively excluded the true owner from possession.

It is necessary to establish each of these three elements: Masidon, supra. p. 4

[41] Possession by the claimant must be “open, notorious, constant, continuous, peaceful and exclusive of the right” of the registered owner. This requirement has alternatively been expressed as “open, notorious, peaceful, adverse, exclusive, actual and continuous possession”: Masidon, supra, p. 4 and Teis, supra, para.13.

[42] The claimant of possessory title must demonstrate that his possession had the effect of excluding possession by the registered titleholder, namely what use the legal owner made or intended to make of the land in dispute when occupied by the claimant: Masidon, supra, pp. 4 and 8.

[43] Open notorious possession by the claimant demonstrates their use of the property as an owner might and puts the registered owner on notice that the tenure statutory period has begun to run: Teis, supra, para. 14.

[44] Adversity requires the claimant to be in possession without the permission of the owner. If the claimant acknowledges the right of the registered owner during the limitation period, possession is not adverse: Teis, supra, paras. 13 and 16.

[45] Section 13 of the Act provides that acknowledgement of title sufficient to interrupt the limitation period in adverse possession must be in writing.

[46] An intention by the claimant to exclude the registered land owner involves the test of inconsistent use or adversity based on the claimant’s possession in effectively excluding possession by the true owner. This test of inconsistent use however does not apply to a case of mutual mistake about title: Teis, supra, paras. 23 and 28 and Wood v. Gateway of Uxbridge Properties Inc. (1990), 75 O.R. (2d) 769 (Gen. Div.)

[47] Occupation of the land under mistake, or color of right, can justify an inference that the claimant intended to exclude all others from the land, including the registered owners thereof: Masidon, supra, p.10.

[48] The test of inconsistent use does not apply to cases of mutual mistake since that would defeat every adverse possession claim in which the parties were mistaken about title. If the registered owner mistakenly believes that the claimant owns the land in dispute, the registered owner can have no intended use of the land: Teis, supra, para. 25.

[49] The test of inconsistent use is inapplicable when both the paper title holder and the claimant are mistaken about their respective rights. The law should protect good faith reliance on boundary errors and the subtle expectations of innocent adverse possessors who acted on the assumption that their occupation will not be disturbed: Teis, supra, paras. 25 and 27.

[50] In cases of mutual mistake, the court may reasonably infer that the claimants intended to exclude all others thereby meeting or excluding any of the requirements in the above second requirement: Teis, supra, para. 30 and Masidon, supra, p.10.

PHYSICAL EVIDENCE

[51] The evidence of the plaintiffs, the Banfords and the photographs introduced in evidence indicate that there is and has been geographic or physical boundary limits to the apparent lot lines which are larger than the limits of Lot 16-198.

[52] There has for decades, based on the height of the trees, been a physical and visual appearance of such larger limits to Lot 16-198.

[53] There is a row of trees, an old fence running along the east boundary of Bass Creek just west of the westerly limit of Lot 16-198. The land to the west of Lot 16-198 slopes gradually and then abruptly towards Bass Creek.

[54] There is an old rail fence and line of trees which extends southerly along the South boundary of Parts R-6 and R-1.

[55] A line of trees and hedges run along the east boundary of Part R-3, part of Part R-1 and Lot 16-198. These visual indicators are what led Mr. and Mrs. McClatchie to believe that what they were buying included Parts R-1, R-3, R-4 and R-6.

[56] Throughout their ownership, the Banfords and the McClatchies openly occupied and used Part R-1. They cleared snow as required over their driveway. They maintained the lawns and flower beds on this land. Mr. McClatchie constructed a concrete flower bed on the southwest portion of R-1. The raised septic field, septic and septic tank cover on Part R-1 are apparent and obvious to anyone. They appear to be part of the land associated with this home. Service providers, such as gas and oil suppliers, used the same gravel road used by the owners of Lot 16-198 to access that property.

[57] The Banfords knew there was a Road Allowance behind their property but understood they had built on their land. They acknowledged they crossed the Road Allowance to access their property. The Banfords and the McClatchies mistakenly believed they were buying a lot with a distinctive visual outline. Both couples indicated Mr. Churchill did not use what they understood to be the land they thought they had purchased, including R-1. Mr. Churchill’s answers on this point in discovery were vague, unresponsive and do not evidence his use of R-1.

[58] The photographs in evidence confirm the evidence of the Banfords and McClatchies that the land surrounding the house on Part R-1 clearly suggests it is part of the house on Lot 16-198. The surrounding trees and hedges would normally suggest that the land on Part R-1 belongs to the owners of the house.

[59] The raised and apparent septic bed occupies a large section of Part R-1. The other elements of the septic system on R-1 are also obvious as are the maintained lawns, flower boxes, retaining walls and flower beds. The nature, extent and presence of these elements, together with the location of the overhang of the garage, prevented any other use by Mr. Churchill and constituted obvious, continuous possession by the dominant owner of Lot 16-198: Laing v. Moran, [1952] 2 D.L.R. 468 (Ont. C.A.)

[60] Mr. Churchill bought a portion of Lot 20-5 in 1980. On discovery, he stated that he was aware at the time of this purchase of the several interior roads over Lot 20-5 to access the subdivision lots. He stated that to his knowledge, there were no existing agreements with water lot owners as to their use of Lot 20-5 land at the time of his purchase in 1980.

[61] The owners of Lot 16-198, prior to the Banfords, were the parents of Mrs. Banford. There is evidence that those parents and their daughter, Mrs. Banford, used the cottage on Lot 16-198 for some two years. They accessed that property over Parts R-4 and R-5. Their cottage was destroyed by fire after which they sold the land to this daughter and son-in-law in 1982 who built the present house and septic system thereon in 1983.

[62] As is obvious by the lawsuit started by Mr. Churchill in 1996 against the owners of Lot 18-198, he was concerned that some of the owners of the water lots were extending their use and occupation onto property that he owned. There is no evidence of Mr. Churchill approaching the owners of Lot 16-198 for some eight years after his 1980 purchase of a portion of Lot 20-5, namely not until August 6, 1988. From the discovery, it appears Mr. Churchill obtained legal advice as to how to protect his legal title from Mr. Stevens who would later represent the McClatchies in their purchase of Lot 16-198.

[63] Based on the evidence of this case and the above law, I conclude that the plaintiffs have, in relation to Part R-1, established adverse possession thereof including the legal elements as above stated subject to the following.

[64] As to inconsistent use, this court has already indicated that the presence of the septic field and the other septic elements prevented any alternate use by the defendant. The remaining portion of Part R-2 is small in comparison. It is artificial to suggest that Mr. Churchill might have ever intended to use this land which so obviously and proximately wise, is so integrated with the plaintiffs’ property. I infer, as permitted, that the claimant intended to exclude the Churchills from possession over Part R-1. Mr. Churchill’s discovery as submitted does not lend any support that he ever used Part R-1.

[65] In summary, I find that the plaintiffs have on the evidence established the element of inconsistent use.

[66] Alternatively, the test of inconsistent use is not on the facts in this case applicable. As will be seen, Mr. Churchill was acutely aware of the Road Allowance, the expansion or occupation onto his land by some water lot owners south of the Road Allowance and what he needed to do under the Act to protect his legal title.

[67] The fact that the mistake as to the ownership of the Road Allowance involved in the case, the plaintiffs’ belief that they or the Township owned it, and in the case of the defendant, the fact that Mr. Churchill believed that the Township owned it or it was a public road allowance, does not distinguish or exclude the applicability of the above principles regarding mutual mistake in this case: Teis, supra, paras. 25 and 27.

[68] The present case involves mutual mistakes as to the ownership and the nature of the Road Allowance. The owners of Lot 16-198 believed that they or the Township owned it along their waterfront lots. Mr. Churchill was also mistaken in his similar belief that the Township owned the Road Allowance. That variation in the facts does not alter the applicability of the above legal principles as to mutual mistake. Alternatively therefore, I find that the plaintiffs are not required to establish inconsistent use.

[69] The defendant relies upon a number of agreements and correspondence which allegedly contain an acknowledgment of his title to Part R-1 and thereby interrupt any period of adverse possession and defeats the plaintiffs’ claim to title. This court disagrees.

FIRST DOCUMENT

[70] The first document relied upon is a one-page contract between Mr. Churchill, his wife and the Banfords and dated August 6, 1988, eight years after Mr. Churchill became the owner of Lot 20-5 (“Document #1”).

[71] Mr. Churchill having received some legal advice prepared Document #1 and asked the Banfords to sign it. The document states:

This is an agreement whereby Allen & Helen Churchill, owners of the Road Allowance and land immediately to the south and west of Lot 16, shown on registered plan 198 in the Township of South Elmsley, and owned by John & Debbie Banford, give permission to John & Debbie Banford to use said road allowance for casual and incidental purposes (access, parking, lawn), for the sum of one dollar annually. (Emphasis added)

[72] The Banfords, without legal advice, complied with the defendant’s request, signed Document #1 and paid $1 annually to Mr. Churchill. The Banfords have little recollection of the circumstances surrounding their signing of this document. They were asked to sign the document and did so.

[73] Document #1 refers to the Churchills being the “owners of the Road Allowance and land immediately to the south and west of Lot 16.” Mr. Churchill is obviously referring to two things by his inclusion of the word “and” between the identification of the Road Allowance and the land immediately to the south and west of the lot. The land immediately to the south and west of Lot 16-198 includes the Road Allowance and Part R-1. Plan 198 and the Goltz sketch indicate that there is land in Lot 20-5 to the south and west of the Road Allowance.

[74] The central points however in the agreement as prepared by Mr. Churchill are: (a) the distinction between the Road Allowance and the land immediately to the south and west of Lot 16-198; and (b) the acknowledgement that the Churchills own land to the immediate south and west and the Road Allowance.

[75] The defendant’s present position is that the Banfords and the plaintiffs have a legal right-of-way on the Road Allowance. Permission therefore would not be needed in Document #1 to use the Road Allowance to access Lot 16-198.

[76] Annual payments were made under this contract. There is no evidence Document #1 was terminated until it was replaced in 1998.

[77] Document #1 makes no reference to the encroachment of the house or septic system on the Road Allowance. There is no evidence of discussion between the parties as to the same during the term of this agreement.

[78] The written acknowledgement in this contract interrupts and defeats a claim to adverse prior possession to Part R-1 during the term of this contract.

[79] Mr. and Mrs. Banford subsequently separated. Title to the subject property was transferred to Mrs. Banford on December 9, 1994. That event did not result in Mr. Churchill asking for a new agreement. That did not occur until September 14, 1998, being just in excess of 10 years after entering into Document #1 dated August 6, 1988.

SECOND DOCUMENT

[80] The date of the second contract between the Churchills and Ms. Banford is September 14, 1998 (“Document #2”). Mr. Churchill again prepared the agreement. He appeared at the residence of Ms. Banford and asked her to sign it. Again, without legal advice, she signed the document and continued to pay $1 per year until she sold the property some three years later to the plaintiffs.

[81] Document #2 states:

This is an agreement whereby Allen & Helen Churchill, owners of the land immediately to the West and South of lot 16, shown on registered plan 198, part of lot 20 in the Township of South Elmsley, within the new Township of Rideau Lakes, Ontario, and owned by Debbie Banford, give permission to Debbie Banford to use said Churchill land for purposes of access, parking, and lawn (but not for buildings, fences, etc.), for the sum of one dollar annually. …

[82] The contract then states that the permission therein created “may be terminated by either party upon one month’s notice.” Despite the mutuality of that provision, it clearly was intended for the benefit of the Churchills only in order to limit their commitment and notwithstanding annual payments were required.

[83] There are a number of inconsistences and differences between Document #2 and Document #1.

[84] Lot 16 on Plan 198 is not part of Lot 20, Concession 5.

[85] Document #2 states that the rights therein related to land outside of Lot 16-198, may be terminated on notice. That contradicts Mr. Churchill’s current position that the owners of Lot 16-198 have a legal right to use the Road Allowance.

[86] Document #2 dropped the reference in Document #1 to the Road Allowance. The court concludes deletion of the Road Allowance from Document #2 was intentional and not simply an omission by Mr. Churchill for the reasons below.

[87] By 1998, Mr. Churchill had owned Lot 20-5 for some 18 years. He was acutely aware of the Road Allowance, the building by some on the Road Allowance and the encroachment of water lot owners on land to the south of the Road Allowance. According to his counsel in this trial, Mr. Churchill made agreements with a number of the owners of these waterfront lots.

[88] By 1998, Mr. Churchill had sued at least the owner of Lot 18-198 in an action started in 1996. In that action, he claimed relief over the Road Allowance in the removal of asphalt but then acknowledged, as per Pedlar J. as above quoted, that the Township owned the Road Allowance and not the Churchills. That led to the dismissal of this portion of his claim.

[89] Mr. Churchill, knowing the importance of obtaining written acknowledgement of his title in order to defeat adverse possession and his experience in preparing and getting these contracts signed, must in preparing Document #2 have dropped his previous reference to the Road Allowance because of his recognition or belief, as later acknowledged before Pedlar J., and contained in a similar contract he later obtained from the plaintiffs, that the Road Allowance was owned by the Township and not by himself.

[90] To interpret Document #2 as referring to and including the Road Allowance ignores the deletion of reference thereto and renders the use of this term in Document #1 meaningless. It ignores the protective actions taken by Mr. Churchill to protect his ownership interest with similar water lot owners.

[91] What in fact was occurring was the evolution of Mr. Churchill’s knowledge over some 20 years in relation to the Road Allowance and his belief that the Township owned it. That is why the wording of these contracts begins in 1988, with the statement that he and his wife owned the Road Allowance, then to the deletion of that statement in the 1998 contract and then finally the open admission in the 2002 contract that his ownership begins to the south of the Road Allowance.

[92] Ms. Banford signed Document #2 without discussion between the parties as best she can remember. She seems to frequently sign documents presented to her without explanation or questioning, as referred to below.

[93] Document #2 does not constitute an acknowledgement of title of the defendant nor intercept adverse possession over the Road Allowance, including Part R-1.

THIRD DOCUMENT

[94] The McClatchies purchased the property on September 25, 2001. Mr. Stevens was their lawyer on this purchase. The conveyance transfers title to Lot 16-198 together with a right-of-way over a portion of Lot 21-5, then over Lot 20-5, shown as Parts 3 & 4 on Plan 28R-9462 which leads up to the rear of Lot 20-198 and then west on part of Lot 20-5, shown as Part 3 on Plan 28R-3361. This latter right-of way consists of a short portion of the Road Allowance behind three or four cottage lots.

[95] The Banfords, and Mr. Churchill on discovery, admitted that the northerly portion of access to Lot 16-198 was over Parts R-4 and R-5 and not as described in this conveyance.

[96] Within weeks of this September, 2001 closing, Mr. Churchill arrived at the doorstep of the McClatchies with a portion of the November, 1999 Goltz sketch which included Lot 16-198, the Road Allowance to the south of that lot and a triangular portion of the land south of the Road Allowance below Lot 16-198. Mr. McClatchie testified that Mr. Churchill’s stated interest related to the triangular portion of land south of the Road Allowance.

[97] Mr. Churchill showed Mr. McClatchie the Goltz sketch. He said there were title issues to the property the plaintiffs had just purchased and that he would like to prepare an agreement to address what he considered to be issues. Mr. Churchill did not say what title issues he was referring to. It was a short one-sided conversation. Mr. Churchill stated he would prepare and return with an agreement which he did the following summer in June, 2002.

[98] Legislation and the courts protect the rights of registered owners of land. Courts have repeatedly frowned upon parties who attempt to take or encumber land belonging to a registered owner.

[99] In considering what is the underlying policy of the Act, the court in Masidon, supra, pp. 9 and 10, states the purpose of the legislation is not to assist a mere trespasser or dishonest person who is attempting to deprive an owner of his or her land, as stealing another’s land is not what the legislation is intended to allow.

[100] The court in Masidon then draws the distinction between such dishonest attempts to defeat registered owners versus parties who occupying land under a colour of right or mistake as to title or boundaries. Mr. and Mrs. McClatchie are the latter and not the former as is reinforced by the following evidence.

[101] Mr. McClatchie was puzzled following Mr. Churchill’s first visit in October, 2001 as no one had told he or his wife on or before closing, that there were any title or access issues. After several calls to Mr. Stevens, they finally received his reporting letter on the transaction dated November 20, 2001. That report states that the absence of any right-of-way over Lot 20-5 to Lot 16-198 in the deed to the Banfords and then to Ms. Banford alone, is “not surprising considering that your property is part of one of the oldest plans of subdivision in the area (1922), and in those days it was assumed that the ownership of a lot on a plan of subdivision carried with it the right of access.” That is an unusual explanation for the absence of a right-of-way over Lot 20-5 in deeds registered in 1982 and 1994.

[102] The reporting letter states that to address the issue, Mr. Stevens obtained before closing a declaration of possession from Ms. Banford evidencing her open use of the right-of-way described in the McClatchie deed over Lot 20-5 since 1982.

[103] Access to Lot 16-198 over Parts R-4 and R-5 since 1980 was obvious to everyone. The statutory declaration relied upon on the plaintiffs’ closing inaccurately describes the access exercised since at least 1980. Actual access to Lot 16-198 was over Parts R-4 and R-5 and not as described in the declaration signed by Ms. Banford.

[104] In addition, no one asked and Ms. Banford did not tell her lawyer that she and her former husband had signed Documents #1 and #2 and their payment of $1 annually to Mr. Churchill.

[105] The fact that Mr. Stevens had advised Mr. Churchill in the past on the advisability of obtaining written acknowledgement of title to prevent claims of adverse title or possession seems to have been forgotten by the plaintiffs’ lawyer at the time of their purchase.

[106] The conduct by the two law firms explains how the McClatchies now find their title and investment under the cloud and attack of Mr. Churchill. The McClatchies had an honest but mistaken belief as to what they had purchased. The visual appearances of what appeared to be the outlines of the lot were obvious.

[107] The plaintiffs’ agreement of purchase and sale creates an obligation on the vendor to provide a “Boundary survey” before closing.

[108] The letter of requisition asks for “an up-to-date survey of the subject lands”. It states that the vendor’s title omits access over Lot 20-5 and should contain a description which is then described. That access description however is inaccurate. The purchasers requisitioned the amendment of the legal description to include such erroneous access and affidavit evidence to establish a valid prescriptive right-of-way over the subject roadway.

[109] The letter responding to such letter of requisition from Mr. Bird for the vendor, contains no response to the itemized requisitions. It merely encloses draft documents which include a draft declaration of possession which, as to access to Lot 16-198, everyone agrees is inaccurate.

[110] Mr. Bird prepared the declaration of possession and merely inserted the access description from the letter of requisition which describes the access over a series of parts on several reference plans. Mr. Bird had Ms. Banford attend and sign the inaccurate declaration without showing her the reference plans referred to therein. Once again, it appears Ms. Banford was unconcerned with what she was being asked to sign. She simply signed it.

[111] Mr. Stevens did not alert the McClatchies that the requisitioned “up-to-date survey of the subject lands” was not being provided thereby preventing the purchasers the option to order their own survey before closing.

[112] The McClatchies still lived in Northern Ontario at the time of closing. They attended a lawyer’s office in North Bay to sign the necessary documents. Mrs. McClatchie at that meeting asked to see the survey of Lot 16-198. She was led to believe that no survey was available because “surveys are not done in Eastern Ontario”. That was incorrect.

[113] The McClatchies at this meeting were asked to and signed an inaccurate document which states that they had been explained the difference between a lawyer’s opinion on title, and title insurance, and that based on that explanation, they chose to proceed with title insurance. No such explanation was given to them.

[114] As stated, the above legal work is not material to the legal issues in this case beyond demonstrating how the McClatchies regrettably found themselves and their investment under challenge from Mr. Churchill that they do not own Part R-1, the requirement that they remove anything thereon and his position that they do not have a legal right of access to their property.

[115] I now return to the third document relied upon by Mr. Churchill as acknowledgement of his title thereby defeating the plaintiffs’ claim to adverse possessory title.

[116] The third document prepared by Mr. Churchill and signed, is dated June 12, 2002 (“Document #3”). The McClatchies paid the first increased annual fee of $100 in 2002. They refused to pay it in 2003 or thereafter.

[117] Document #3 begins by reciting that the Churchills are the owners of the land immediately to the south of the Road Allowance running adjacent to the south side of Lot 16, Plan 198. It provides that the Churchills give the plaintiffs, owners of lot 16, permission to use said Churchill land, that part shown roughly as a triangle on the survey plan, drawing # 99034J02.dwg, of John Goltz, Surveyor, for the purposes of travel, parking, and lawn (but not for erecting buildings or fences, or laying asphalt, etc.) for the sum of $100 annually. The document concludes that such permit may be terminated by either party upon one month’s notice.

[118] The Goltz sketch shows the slight overhang of the then plaintiffs’ garage but contains no notation of the septic system on the Road Allowance. There was no discussion regarding the garage overhang onto the Road Allowance or the placement of the septic system at the time of signing Document #3.

[119] Any prior thought the Churchills may have had that they owned the land within the limit of the Road Allowance was abandoned as is confirmed in Document #3. In the same way, Mr. Churchill stood in front of Pedlar J. and agreed that he did not own the land within the Road Allowance.

[120] The stated focus of Document #3 in June, 2002, was the triangle portion of land below, or south of the Road Allowance. Specifically, Document #3 deals with Parts R-2, R-3, R-4, R-6, and R-9. The triangular portion of the Goltz survey does not include Part R-5, or at least the grand majority thereof.

[121] Document #3, within the context of s. 13 of the Act, is a written acknowledgement of the Churchills’ ownership of Parts R-2, R-3, R-4, R-6 and R-9. It contains no acknowledgement of Churchills’ ownership of the Road Allowance or Part R-1.

[122] I do not accept, nor is it argued, that Mr. Churchill decided on June 12, 2002, or within weeks of the plaintiffs’ purchase that he, only at that point, was not the owner of the Road Allowance. There is no logical reason or evidence to tie such decision to that 2001 or 2002 time period. Mr. Churchill must have arrived at this conclusion before October, 2001 or June 12, 2002 for the reasons stated above in relation to Document #2.

[123] It is noted that Mr. Churchill never advised the Branfords since 1983, nor the McClatchies commencing in 2001, that their home and septic system were on the Road Allowance, on his land or that they must remove the same. He never announced that position until September, 2007 when his counsel expressed that requirement, but only if the McClatchies did not accept Mr. Churchill’s financial demands, not in relation to the location of the house and septic system, but instead as to their use of the access driveway over Lot 20-5 to their home.

[124] Mr. Churchill has a Phd. and was well versed in the issues regarding his lands and the waterfront owners. He did not simply forget to include reference to the Road Allowance in Document #2. His deletion was intentional and reflected his acceptance that he did not own or control the Road Allowance as is reflected in Document #3.

[125] The defendant has now twice in two actions appeared in court and taken the position that he does not own the Road Allowance or he took no ownership position as to it. These factors combined with the ambiguity indicated above in Document #2 must be read against his drafting of such document and leads me to conclude that Mr. Churchill had given up any claim of ownership to the Road Allowance by September 14, 1998.

[126] This results in a 10-year period of adverse open possession of Part R-1 before transfer of all of these lands into Land Titles on December 22, 2008, namely 10 years without written acknowledgement of Mr. Churchill’s ownership of Part R-1 during which there existed open, obvious, exclusive, adverse possession.

FOURTH DOCUMENT

[127] The August 14, 2002, letter of permission is signed solely by Mr. Churchill. It contains no acknowledgement of title as to Part R-1 and is not relevant.

[128] The plaintiffs wanted permission to put up a sign on land owned by the defendants. They asked for permission to do that and Mr. Churchill agreed.

[129] The sign is located at the south end of, but not on part of Part R-5 as is evident from the photographs in evidence.

[130] This document in addition was never signed by the plaintiffs nor disclosed to them until after commencement of this action.

FIFTH DOCUMENT

[131] The plaintiffs refused the defendant’s request in 2003 to pay the second annual instalment under Document #3 relating to the land south of the Road Allowance. They expressed concern to Mr. Stevens about what they understood they had purchased and access to their property. Mr. Stevens said he would look into the matter.

[132] Mr. Stevens was retained by the title insurer to investigate what steps might be taken to remedy the situation.

[133] Mr. Stevens pursued two fronts but not in consultation with or on the specific instructions of the plaintiffs.

[134] Mr. Stevens wrote the Township on January 13, 2004. He indicated that the consensus of opinion was that the Road Allowance is a public road. He asked the Township if it would agree to close the Road Allowance behind Lot 16-198 and convey that land to the plaintiffs. He indicated the McClatchies had a second issue regarding access which he felt was resolvable with the Churchills.

[135] Mr. Stevens, three months later, wrote Mr. Churchill on April 27, 2004 and advised that he was working with the Township in an attempt to see if it will close the Road Allowance behind Lot 16-198 but the Township seemed unwilling or unable to take a definite position on that request, however he is continuing to pursue that objective. He then asks Mr. Churchill whether he would be willing to discuss the other issue posed by the Goltz sketch namely, access to Lot-198. He concludes this letter by asking whether Mr. Churchill would be willing to (a) convey a right-of-way over the gravel driveway and (b) sign a deed transferring whatever interest the defendant might have in the Road Allowance south of Lot 16-198.

[136] It must be kept in mind that this letter to Mr. Churchill as to the Road Allowance is approximately two years following Document #3 which states that the Churchills own the land south of the Road Allowance and are not therefore claiming any ownership interest in the land forming the Road Allowance.

[137] As to the Road Allowance, Mr. Stevens is inquiring whether the defendant would be willing to provide what amounts to a quit claim deed, in other words, whatever interest, if any, the Churchills may have. He is not requesting a conveyance of their title in the Road Allowance. The distinction is important. A quit claim deed excludes any implication that the grantor has good title to the land: R. Kratovil, Real Estate Law 49 (6th ed. 1974).

[138] We then have the without prejudice response from counsel for Mr. Churchill dated September 20, 2007.

[139] Mr. Stevens’ letter contains no acknowledgement of the defendants’ legal title to Part R-1. It is an exploratory letter and request regarding the Road Allowance sent secondary to the primary initiative with the Township and should not be interpreted otherwise.

[140] Initiatives like this to avoid litigation generally are similar to an offer of settlement, therefore privileged and not something to be used to the detriment of a party: 1043 Bloor Inc. v. 1714104 Ontario Inc. 2013 ONCA 91 at paras. 106 and 107. While that is the opinion of the minority in that case, the majority concluded otherwise because there was no evidence of a dispute between the parties in that case and because the request sent a written right-of-way agreement to the title holder with an agreement to sign the same. The clouds of this present litigation were already formed by 2004. The plaintiffs had refused annual payments since 2002.

[141] This nature of the letter from Mr. Stevens to Mr. Churchill, combined with his prior letter to the Township, cannot be viewed as a “single act” acknowledging Mr Churchill’s title and interrupting the prescriptive time period as to Part R-1 as in 1043 Bloor Inc., supra.

[142] The absence of the words “without privilege” on the letter from Mr. Stevens is not conclusive of that issue.

[143] For the reasons above stated, there was no acknowledgement of title to Mr. Churchill of Part 1 on the Riddell Survey within the ten year period preceding December 22, 2008 by any of the documents relied upon by Mr. Churchill.

[144] In conclusion, the plaintiffs have established adverse possession and their title under the Act to Part R-1.

PRESCRIPTIVE EASEMENT

[145] The plaintiffs at trial withdrew their argument that they are entitled to a prescriptive easement or right-of-way over Parts 4 and 5 on the Riddell Survey.

EQUITABLE PROPRIETARY ESTOPPEL AND PARTS R-2, R-3, R-4, R-5 AND R-9

[146] The plaintiffs have not established that Mr. Churchill encouraged or acquiesced in the claimant acting to their detriment in expectation of acquiring rights over these lands. Detrimental reliance is absent, as a result of which there is no element of unconscionably.

[147] The defendant was aware of his ownership of the land south of the Road Allowance and took steps to protect it. The plaintiffs acknowledge the defendant’s title to that land in Document #3.

[148] The plaintiffs’ creation of a parking pad over Part R-2 was only after seeking and obtaining permission of the defendant based on his ownership of the land.

[149] No rights were obtained by way of equitable estoppel to Parts R-2, R-3, R-4, R-5 and R-9.

DOCTRINES OF EASEMENT BY NECCESITY AND LOST GRANT OVER PARTS R-4 AND R-5

[150] Mr. Churchill on his examination for discovery and the testimony of the Banfords and the McClatchies makes clear that the only road access to Lot 16-198 is, and was, over Parts R-4 and R-5.

[151] The issue becomes whether the doctrine of easement by necessity applies in this case and particularly when the plaintiffs have acknowledged the defendant’s title to land forming Parts R-4 and R-5.

[152] There is a presumption that when land is divided into separate lots with one portion being conveyed to a purchaser, the purchaser will have access to the lot purchased and that it not be landlocked and inaccessible: Dobson v. Tulloch (1994), 17 O.R. (3d) 533 p.8 and Angers and Honsberger: The Law of Real Property, 2nd ed. (Aurora: Canada Law Book 1985), at p. 934.

[153] Easements of necessity are created by implied grants when land previously owned by one person is severed. As stated in Anger & Honsberger, Law of Real Property, 2nd Thomson Reuters Limited, looseleaf, Vol. 2 at 17:20.20(d), “when land owned by one person is divided and part of the land conveyed to another, even if there are no words in the instrument expressly creating an easement, a court will imply that the new owner was granted easements of necessity”.

[154] If a vendor divides his land and sells parcel A to a purchaser, the law will imply a grant of easement over the vendor’s land to permit the purchaser to have access if parcel A is land-locked: Caldwell v. Elia, [2000] 95 A.C.W.S. (3d) 185, (C.A.) at para. 14.

[155] Easements will be created by implication of law when an owner of land grants part of that land and retains other parts himself, namely an easement necessary for the reasonable enjoyment of the land granted is usually implied in favour of the purchaser: Dobson v. Tulloch, supra, p. 8.

[156] A grant of a right-of-way of necessity is presumed to have been made when land is sold which is inaccessible except by passing over the adjoining land of the owner. A grant of right-of-way of necessity is presumed when land is severed by sale so that one portion is inaccessible except by passing over the other portion: Hirtle v. Ernst (1991), 110 N.S.R. (2d) 216 at p. 6.

[157] In Dobson, supra, p. 8, the parties agreed that “necessity must be evaluated at the time of the grant; …” Secondary sources state that principle.

[158] Plan 198 was registered in 1922 to create and presumably convey some or all of the 38 subdivided lots to others, which occurred in the case of Lot 16-198. The then owner of Lot 20-5, or their planner, lawyer and surveyor involved in creating that plan, recognized the need to provide access to these 38 lots. Marketability of the 38 lots created would have been negatively impacted without a right of access. They therefore created the 40 foot wide Road Allowance on Plan 198.

[159] The large stone cliff on the Road Allowance at Lot 25-198 and the creation of the three gravel driveways over Lot 20-5, evidence that the intended access to the waterfront lots, or at least to Lot 16-198, never existed via the Road Allowance. The construction and continuing existence of gravel drive ways must have been obvious to the owners of Lot 20-5. One of those owners then sold and conveyed title to portions of the Road Allowance to other parties.

[160] Prior owners of Lot 20-5 it would appear permitted the creation and existence of the much narrower gravel driveways in substitution of the Road Allowance, at least as to Lot 16-198. In short, the planned route of access over the Road Allowance was, with apparent consent and actions of the then owner of Lot 20-5, replaced by the gravel driveway in order to attain the original Plan 198 objective, namely providing access over Parts R-4 and R-5 to Lot 16-198.

[161] Transfers of Lot 16-198, since at least 1954, have not included a right-of-way over the Road Allowance.

[162] Mr. Churchill determined that there were no user agreements in place at the time of his purchase of Lot 20-5. He choose to begin charging for the right of access, including his right to terminate such access on one month’s notice and thereby create inaccessibility to Lot 16-198.

[163] The doctrine of the “lost grant” was developed in the context of easements of prescription. At common law, an easement of prescription would be presumed if the claimant could show that the right was continuously enjoyed since time immemorial. Under the common law in England, this meant back to 1189, the first year of the reign of Richard I. Given the obvious evidentiary difficulties in proving the enjoyment of the easement since 1189, the courts would presume that such long-term enjoyment existed if the claimant could prove the right was enjoyed for 20 years: Ziff et al., A Property Law Reader, 2 ed. 20908 Thomson Canada Limited at pp. 753-757.

[164] At common law, the theory of "lost grant" developed to deal with the problem of proof of use of real property in the distant past.

[165] In Dobson v. Tulloch, (1994), 17 O.R. (3d) 533 (Ont. Ct. Gen Div.), Pardu J. applies the doctrine of “lost grant” when she addresses whether the claimant has proven that an implied grant of apparent accommodations was established and the timing requirement dating back to 1189.

[166] To establish the easement of apparent accommodations, the claimant had to prove that the way existed and was apparent at the time of the grant, and that it was necessary to the reasonable enjoyment of the property at the time of the grant which in Dobson was 1891. Most of the evidence in Dobson did not go back to 1891. Pardu J. applied the doctrine of the “lost grant” to assist in inferring that the way existed and was reasonably necessary to the enjoyment of the property in 1891. She held, at pp. 7-8:

In Abell v. Woodbridge (Village) (1917), 39 O.L.R. 382 at p. 389, 37 D.L.R. 352 (H.C.J.), Masten J. quoted with approval Lord Herschell in Phillips v. Halliday, [1891] A.C. 228 at 231, 61 L.J.Q.B. 210 (H.L.):

Where there has been long-continued possession in assertion of a right, it is a well-settled principle of English law that the right should be presumed to have had a legal origin if such a legal origin was possible, and the courts will presume that those acts were done and those circumstances existed which were necessary to the creation of a valid title and went on to conclude that in view of the long use of an easement, the presumption applied in favour of the establishment of a legal origin of the easement.

In the case before me, because of the continuous and uncontested use of the way over Parcel 1153 Algoma from at least 1911 to the 1970s, it seems apt to conclude that the way was in existence in 1891 and was necessary for the reasonable enjoyment of the property granted to Moses in 1891. In the application of this principle I do not consider that it is necessary to infer the existence of an express grant of an easement in a deed which has been lost.

It is more likely than not that Moses inspected the property before he acquired it. There is evidence of a road (the concession road) in the area and, in the absence of any evidence that access was gained by water, it is more likely that access took place over land. The path in issue is the only way ever demonstrated to be in existence between the concession road and the defendant's property and, although the evidence is meagre because of the passage of time, on the whole it is more likely than not that the way existed.

[167] The court relies on the doctrine of the “lost grant” to account for the evidentiary difficulties of proving that access to Lot 198-16 was provided over R-4 and R-5, not only since 1980 but back to 1922 and the creation of Plan 198. The doctrine of the “lost grant” provides further support for the conclusion by this court that the Road Allowance did not provide access in 1922, and that an alternate easement was therefore necessary in and provided since 1922.

[168] I return to the doctrine of easement by necessity.

[169] The common law as developed by the courts adapts over time, including new remedies or exceptions to existing remedies and doctrines.

[170] The principle that others may not take or encumber land of a registered owner needs accommodation to the principle that property, especially lots within a plan of subdivision, not be land locked.

[171] It is inherently unjust to create a plan of subdivision with a recognized road allowance to provide access and then allow the creator of the plan to defeat such access by transferring the land of the road allowance providing access to others, thereby defeating the method of access created by the plan establishing the subdivided lots and then permit the plan creator, or his successors in title, to deny the subdivided lot owners access to their property.

[172] The existing rock cliff or wall further confirms that the Road Allowance never provided access to Lot 16-198.

[173] The doctrine of easement by necessity needs to accommodate and remedy intentional actions by the creators of plans of subdivision who intentionally, by conveyance of parts of the road allowance to others, defeat access to the lots created in the same plan of subdivision. To that extent and on these findings, this court holds that the requirement of the doctrine of easement by necessity should be interpreted to relieve the plaintiffs from a result that the Road Allowance prevents application of the doctrine in this case, and the requirement to lead specific evidence that Parts R-4 and R-5 was the accepted and exercised means of access between 1922 and 1980.

[174] Access over Parts R-4 and R-5 to Lot 16-198 is necessary, without which it is land locked. This is not a case of mere inconvenience as in Re Stone, [1982] N.B.J. No. 102.

[175] While recognizing that the onus remains on the plaintiffs, it is the defendant who failed to call evidence to rebut the above evidence demonstrating the need for road access and the insufficiency of water access. Water access is not a relevant issue in this case.

[176] The plaintiffs are hereby granted an easement of necessity over Parts R-4 and R-5.

[177] The above determinations make it unnecessary to decide the issue as to the Road Access Act, R.S.O. 1990 c. R.34.

COUNTERCLAIM

[178] The plaintiffs have no entitlement or legal interest in Parts R-2, R-3, R-6 and R-9 which are owned by Mr. Churchill. There is nothing on those lands requiring removal except in the case of a corner of the septic bed on Part R-9.

[179] The plaintiffs are required to remove the corner of the septic field located on Part R-9 by November 30, 2014.

[180] The gravel on Part R-3 was placed there with the permission of the defendant. The plaintiffs are not required to remove the gravel however they have no legal right in relation to the same.

[181] The counterclaim is otherwise dismissed.

COSTS

[182] Failing agreement, the plaintiffs shall make their submissions as to costs within 30 days from this date. The defendant’s submission as to costs shall be submitted within 20 days thereafter. Reply thereto shall be within 10 days thereafter.

Kane J.

Released: October 8, 2015

APPENDIX

October 8, 2015:

Any reference to Rideau Lake in the original decision released February 5, 2014, is hereby replaced with Rideau Lakes.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID MCCLATCHIE and VICTORIA MCCLATCHIE

Plaintiffs

– and –

THE CORPORATION OF THE TOWNSHIP OF RIDEAU LAKES, ALLEN CHURCHILL, by his litigation guardian Alma Churchill and Alma Churchill

Defendants

AMENDED REASONS FOR JUDGMENT

Kane J.

Released: October 8, 2015