COURT FILE NO.: CV-14-1501 DATE: 20160823 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SARAH MACDONALD and ROBERT ROSS Applicants – and – WILLIAM JOHN TUNNEY Respondent

Counsel: Marianne E. Craig, for the Applicants William J. Tunney, Self-Represented

HEARD: February 3 and 4, 2016

Application under Rule 14.05(3) (g) and (h) of the Rules of Civil Procedure

REASONS FOR DECISION

DiTOMASO J.

INTRODUCTION

[1] This matter concerns a property dispute between abutting neighbours who own land in Kilworthy, District of Muskoka. The Applicants (“MacDonald and Ross”) bring this Application pursuant to Rule 14.05(3) (g) and (h), primarily seeking an injunction restraining the Respondent (“Tunney”) from trespassing upon their lands and from harassing Ms. MacDonald and Mr. Ross.

[2] Mr. Tunney served material seeking to defend the Application against him by asserting adverse possession and/or an easement against the property of Ms. MacDonald and Mr. Ross who deny that Mr. Tunney has any interest in or right to cross their property.

OVERVIEW

[3] Ms. MacDonald and Mr. Ross are common-law spouses of each other and are the registered owners of the property municipally known as 1070 Rainbow Circle, Kilworthy, Ontario (“1070”) which they purchased on April 1, 2014. The legal description of the property is as follows:

Pt Lt 11 Con WMR Morrison Pt 3, 4 & 7 35R7462 except Pt 1 35R15971; S/T MR2055; Gravenhurst; The District Municipality of Muskoka

PIN 48042-0449 (LT)

[4] Mr. Tunney, along with his daughter, Rebecca Ann Tunney, are the registered owners of the property abutting 1070, municipally known as 1058 Rainbow Circle (“1058”) and legally described as:

Pt Lt 11 Con WMR Morrison Pt 1 35R15971 & Pt 1 35R13294; Gravenhurst; The District Municipality of Muskoka

PIN 48042-0445 (LT)

[5] Ms. MacDonald and Mr. Ross allege that Mr. Tunney interfered with their property rights by harassing them, installing various structures on their property, cutting a fence located on their property, putting up a chain fence on their property and cutting down trees located on property owned by them.

[6] To the contrary, Mr. Tunney asserts he has not trespassed on property owned by Ms. MacDonald and Mr. Ross. Rather, he maintains that he is the owner of the property in dispute. He further asserts that he has installed certain structures on his own property, has not cut any fence, has not erected a chain fence on property owned by them and did not cut down trees located on their property.

[7] Ms. MacDonald and Mr. Ross assert that they obtained a survey which confirmed the bounds of their property and illustrated Mr. Tunney’s alleged unlawful shed, gravel and chain within the bounds of their property.

[8] Mr. Tunney asserts adverse possession and a right of way or prescriptive easement to the benefit of his property at 1058 over the MacDonald and Ross property at 1070. As a successor in title to 1058, he maintains that his rights go back to 1973 when John Lesley Blackwell and his wife Gladys J. Blackwell acquired the property.

[9] Mr. Tunney submits he was told by Mr. Blackwell on several occasions that Mr. Blackwell and his wife had purchased 1058 in 1973 and since that time they could only access the backyard of 1058 by crossing over the abutting property to the west (1070) due to a 20 foot high rock cliff that crossed entirely the width of the Mr. Blackwell’s property. Further, Mr. Tunney asserts that from the first day of purchase, Mr. Blackwell had used existing trails and created new ones as required for him and his family to access not only the backyard of Mr. Blackwell’s property but also a hydro easement to the west and south Kashe River to the north of his property by snowmobile, motorcycle and ATV.

[10] Mr. Tunney maintains that Mr. Blackwell has used these trails and other trails in an open and notorious fashion. Mr. Tunney was aware of this and allegedly made no attempt to stop Mr. Blackwell from so doing.

[11] Mr. Tunney also contends that he continued to use these trails which he widened to permit automobile access and also installed three culverts and gravel where required due to low spots.

[12] Mr. Tunney submits that the purpose of this driveway construction over 1070 was to provide year round access to 1058 due to the steep slope on the 1058 driveway that made it impossible to leave the house in certain weather conditions.

[13] Mr. Tunney further contends that for all of the years 1973 through 2014, the use of the right of way and access to a shed referred to as the “tarp shed” was not stopped by any of the previous owners until it was blocked off by Ms. MacDonald and Mr. Ross, despite their allegedly telling him two days before they purchased the property on April 1, 2014 that he could continue its use. Further, he denies any allegations that he has harassed, molested or annoyed Ms. MacDonald or Mr. Ross as a result of their property dispute.

[14] The parties exchanged correspondence through their solicitors and had involved police, each asserting their property rights and each accusing the other of trespass and harassment.

[15] This matter came before me on July 6, 2015 at which time, without prejudice to the rights of the parties and determination of this matter, the parties arrived at a consent. By my order of said date, Mr. Tunney removed certain structures from the property in question and agreed not to install any additional cameras. Ms. MacDonald and Mr. Ross agreed not to cross the centre-line of the ravine marked on their survey dated October 22, 2014 and the parties agreed to respect certain boundary lines regarding their properties as marked on said survey. Lastly, the parties agreed to have no direct or indirect communications with each other but to communicate through counsel, if required. Further, the parties agreed to take all reasonable steps to avoid interactions with each other. The order served to provide the parties with an opportunity to cool off and dial down their dispute.

THE ISSUES

[16] The following issues are to be determined:

(a) Has Mr. Tunney established all of the elements required for adverse possession of the area he claims of 1070 Rainbow Circle? (b) Has Mr. Tunney established all of the elements required for a prescriptive easement (right of way) over 1070 Rainbow Circle? (c) If yes, has said easement since been extinguished? (d) Are Ms. MacDonald and Mr. Ross entitled to a permanent injunction?

POSITIONS OF THE PARTIES

Position of Ms. MacDonald and Mr. Ross

[17] Ms. MacDonald and Mr. Ross submit that Mr. Tunney has not established all of the elements required for adverse possession over the area he claims of 1070 Rainbow Circle. Further, he has not established all of the elements required for a prescriptive easement (right of way) over the same property. They submit that they are entitled to a permanent injunction in all the circumstances.

Position of Mr. Tunney

[18] Mr. Tunney submits that he has acquired by way of adverse possession of ownership of a certain part of 1070 Rainbow Circle. Further, he submits he has established all of the elements required for a prescriptive easement (right of way) over part of that property. He denies that his easement has been extinguished. Further, he denies that Ms. MacDonald and Mr. Ross are entitled to a permanent injunction as he owns the property in question and has not harassed, molested or annoyed them or interfered with their property rights.

ANALYSIS

[19] Not in dispute is the fact that there are no documents that show registered easements or refer to unregistered easements. There are no documents that make reference to any property acquired by the owners of 1058 by way of adverse possession. The exception is an easement in favour of Hydro Electric Power Commission of Ontario which is not relevant to this dispute.

[20] It is necessary to set out the chain of title in respect of both 1070 and 1058 Rainbow Circle. A chart summarizing the chain of title to both pieces of property is attached as Appendix A and also attached as Exhibit D to the Affidavit of Tamara Vallis sworn January 7, 2015 (see Application Record Tab 4).

Chain of Title to 1070 Rainbow Circle

[21] The property owned by Ms. MacDonald and Mr. Ross (1070 Rainbow Circle) is summarized as follows:

(a) January 12, 1971 – The Rombos transfer to Michael Cole (Inst. No. 81451), nearly 50 acres which is the whole of the lands upon which Plan 35R-7462 is ultimately deposited on February 12, 1981. The easterly border of this large property was the dividing line between the 1070 and 1058 properties (up until the 1 acre severance discussed later). The lands are noted as being subject to an easement bearing Instrument No. 2055 in favour of the Hydro Electric Power Commission of Ontario; (b) February 12, 1981 – Plan 35R-7462 deposited; (c) August 30, 1984 – Michael Cole transfers Parts 3, 4, and 7 (on 35R-7462), subject to hydro easement No. 2055 over Part 4 to the Crown (“H.M. the Queen (Ontario)”); (d) February 16, 1987 – Crown transfers same to John Blackwell; (e) November 9, 1987 – John Blackwell transfers same to Lorilee Tunney; (f) May 28, 1993 – Lorilee Tunney transfers same to Daniel and Sharon McIntee; (g) September 6, 2001 – Daniel and Sharon McIntee transfer same to Daniel McIntee (minus the 1 acre severed parcel now described as Part 1 on 35R-15971); (h) October 31, 2003 – Daniel McIntee transfers same to the Clarks; (i) September 1, 2005 – The Clarks transfer same to Margot Dunn and Craig Nixon; (j) Royal Bank of Canada takes possession of the property; (k) April 1, 2014 – Royal Bank of Canada transfers same by way of Power of Sale to the Applicants.

Chain of Title for 1058 Rainbow Circle

[22] The chain of title for Mr. Tunney’s property (1058 Rainbow Circle) is summarized as follows:

(a) November 15, 1973 – The Montgomerys transfer to the Blackwells by deed registered as Instrument No. 101408, lands which include the 1058 land (save for the 1 acre parcel which comes from the 1070 lands), which runs at least as long as the boundary of the neighbouring lands in dispute (at the time owned by Michael Cole); (b) November 9, 1987 – The Blackwells transfer to William and Lorilee Tunney, a portion of the lands described above, being Part 1 on 35R-11534, which is a piece of land just over 5 acres, above the approximate current Rainbow Circle road; (c) April 20, 1990 – The Tunneys transfer the above lands to William Tunney alone; (d) April 24, 1990 – The above lands are split into two nearly equal parcels by virtue of Plan 35R-13295 and the above lands are transferred from William Tunney to the Tunneys (Part 1 on 35R-13294) and to Lorilee Tunney (Part 2 on 35R-13294 which is to the east of Part 1); (e) October 23, 1992 – The Tunneys transfer Part 1 on 35R-13294 to William Tunney alone; (f) February 3, 1004 – William Tunney transfers same to the Tarrants; (g) November 4, 1994 – the McIntees transfer the 1 acre severed portion of their lot to the Tarrants for $4,500, registered as Instrument No. 279887, which is designated as Part 1 on 35R-15971, which Plan was deposited on October 27, 1994; (h) October 8, 2010 – The Tarrants transfer the lands described in the above two paragraphs (what is currently the 1058 lands) to William Tunney; (i) April 25, 2012 – William Tunney transfers same to William Tunney and Rebecca Tunney.

[23] The hydro easement that is referenced above is located in the near bottom south west corner of the property owned by Ms. MacDonald and Mr. Ross and is not in any respect close to the disputed area.

[24] It should be noted that the Blackwells owned other portions of land in the area including from March 6, 1987, when the Provincial Crown transferred Part 1 on 35R-7462 (a long thin parcel of land below Part 2), to the Blackwells.

[25] Rainbow Circle Road, which provides access to both 1070 and 1058, is designated as Part 2 on 35R-7462 (see Supplementary Affidavit of Sarah MacDonald sworn April 13, 2015 at Exhibit D). This portion of the road abutting the properties in question was allocated in 1981 to the MTO, and was made up of Part 2 on 35R-7462 from Michael Cole to the west, and Part 11 on 35R-6692 from the Blackwells to the east.

[26] There are two other reference plans that help to visualize the lands in question.

[27] Reference plan 35R-13294 dated March 28, 1990 illustrates the 1058 lands owned by the Tunneys described as Part 1 and Part 2. Mr. Tunney transfers both parts to himself and his wife, Lorilee Tunney by transfer dated April 24, 1990. The lands eventually acquired by Ms. MacDonald and Mr. Ross can be found to the west of a boundary line which also describes “remains of post and wire fence”. Part of the 1070 lands is comprised of Part 3, 35R-7462. Another relevant reference plan is plan 35R-15971 dated October 27, 1994. This reference plan illustrates the one acre severed portion of 1070 which became and merged with the 1058 lands owned by William Tunney and now owned by William Tunney and his daughter, Rebecca. The severed lands are described as Part 1 on 35R-15971. It is a strip of land 70 feet wide and comprises one acre. This one acre strip of land lies immediately to the west of Part 1 shown on plan 35R-13294 dated March 28, 1990 previously referred to.

[28] The last survey of importance is the survey prepared at the request of Ms. MacDonald and Mr. Ross by Deardon and Stanton Limited, Ontario Land Surveyors dated October 22, 2014. This is the survey obtained by Ms. MacDonald and Mr. Ross after this dispute arose with Mr. Tunney. This survey depicts Part 1 claimed by MacDonald and Ross which they claim is property belonging to them. Also shown on this survey is the tarp shed, centre line of the ravine, gravel drive to the tarp shed, a gate and other features relevant to this dispute. This survey can be found in the Application Record, Affidavit of Sarah MacDonald sworn December 22, 2014, Exhibit J. According to Ms. MacDonald, this survey shows Mr. Tunney’s unlawful shed, gravel and chain within the bounds of their property.

One Acre Parcel Severance from the 1070 Lands - Joined to 1058

[29] The evidence also discloses a severance of a one acre parcel from 1070 to be joined to 1058. The first mention of the 1 acre parcel severance appears in the Agreement of Purchase and Sale of 1070 whereby Sharon McIntee delivered an offer to purchase dated May 5, 1993. Notably, despite Lorilee Tunney being the registered owner of 1070, both her and William Tunney are listed as Vendors. The document states that “the Vendor and the Purchaser agree to allow John Tunney at his expense to sever one (1) acre of the land from the subject property as marked on Schedule “B”.” A survey with the proposed acre was attached. The severance was to occur within 2 years. The offer was also conditional “upon the Purchaser and John Tunney mutually agreeing upon a right of way on the subject property to John Tunney mutually agreeing upon a right of way on the subject property to John Tunney’s property on terms satisfactory to themselves within 5 days upon acceptance of this offer.” A waiver of that condition was provided in writing and dated May 13, 1993. It was signed by John Tunney, Lorilee Tunney and Sharon McIntee. These documents can be found attached to the Affidavit of Daniel McIntee Responding Application Record Tab D, Exhibits 1 and 2 sworn March 4, 2015. Mr. McIntee, in his affidavit, stated that the listing price was $165,000 for 1070 but that he and his wife negotiated that price down to $111,000 for the agreement that Mr. Tunney would have “the right to one acre of property to rectify the driveway and shed encroachment.” (See McIntee Affidavit at para. 6).

[30] Sharon and Daniel McIntee were the Applicants in a Land Division Application request to sever a 70 foot wide parcel from their property to be joined in title to the abutting property to the east (1058 Rainbow Circle). The reason stated for the Application was “for a lot addition to clear the encroachment of a driveway”. The request was granted. One of the survey drawings attached showed a handwritten reference to “storage shed” on the “proposed retained” portion. The Minutes of the Meeting also make reference to the retained lot containing an existing dwelling and shed. It also shows the driveway which provided access to 1058 from Rainbow Circle Road and how it lines up right against the boundaries of the 1070 and 1058 properties. The 70 foot wide, 1.063 acre parcel was severed and registered on November 4, 1994. (See Supplementary Application Record Affidavit of Sarah MacDonald sworn April 13, 2016 Exhibits F and G, also Responding Application Record Affidavit of William John Tunney sworn March 4, 2015 Tab A Exhibit 4)

[31] Also in the Responding Application Record can be found at Exhibit 1 to Mr. Tunney’s Affidavit lands marked in pink denoting those lands claimed by him by way of adverse possession and the lands marked in yellow which also represent lands claimed by him by way of right of way or prescriptive easement. Mr. Tunney sketched in and coloured these parts using the Dearden and Stanton survey dated October 22, 2014 obtained by Ms. MacDonald and Mr. Ross. Also denoted on this Exhibit by Mr. Tunney is a broken green line representing the centre line of the ravine.

(a) Has Mr. Tunney established all of the elements required for adverse possession of the area he claims of 1070 Rainbow Circle?

[32] The onus of establishing adverse possession over the 1070 lands rests with Mr. Tunney.

[33] Other than the Affidavits of Mr. Tunney and his friends and spouse (Margot Dunn), there is no documentary evidence to support adverse possession of 1070 Rainbow Circle.

[34] Ms. MacDonald and Mr. Ross also submit that the evidence of Mr. Tunney’s affiants should be carefully considered and given less weight as they are non-arm’s length individuals – being friends of and in the case of Margot Dunn, a spouse/girlfriend of, Mr. Tunney.

[35] In terms of the test for adverse possession, the party claiming a possessory title must establish all three of the following requirements, failing which his claim cannot succeed:

(a) Actual possession for the statutory period by himself and those through whom he claims; (b) That such possession was with the intention of excluding from possession the owner or persons entitled to possession; and (c) Discontinuance of possession for the statutory period by the owner and all other, if any, entitled to possession.

[36] With respect to the first requirement, the acts of possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. “Adverse” has been further defined to require that the claimant is in possession without the permission of the owner and where the use is “as of right”. If the claimant acknowledges the right of the true owner then the possession is not adverse.

[37] With respect to the second requirement, the analysis focuses on whether the claimant’s use of the land is inconsistent with the owner’s enjoyment of the land for the purposes for which he intended to use it.

[38] Although Mr. Tunney submitted in reply as an alternate argument that this is case of mutual mistake of boundary lines, I do not agree. This is not a case of mutual mistake of boundary lines. Mr. Tunney obtained a plan of survey 35R-13294 dated March 28, 1990 which clearly showed Parts 1 and 2 and a boundary line between 1058 and 1070 running north/south where it is noted “remains of post and wire fence”. He knew exactly where his lands were located particularly when he sought the one acre severance from the 1070 lands to be merged with his own lands of 1058. Ms. MacDonald and Mr. Ross knew exactly where their lands were located after obtaining a survey from Deardon and Stanton in October of 2014 which showed the encroachments of the tarp shed, gravel drive and gate. I reject entirely the argument advanced by Mr. Tunney that this is a case of mutual mistake. If there was any mistake, it was his.

[39] It is well-settled that adverse possession may only be established if at the date of being converted into Land Titles, all the elements of adverse possession are existing. In other words all rights crystallize on that date. In this case, both properties were converted to Land Titles on August 23, 2004. Thus, Mr. Tunney must prove, among other items that, the exclusive use period of ten continuous years existed at a minimum from August 23, 1994 to August 23, 2004.

[40] Sections 4 and 15 of the Real Property Limitations Act provide:

Limitation where the subject interested

4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

Extinguishment of right at the end of the period of limitation

15. At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.

[41] Section 51(1) of the Land Titles Act provides:

No title by adverse possession, etc.

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

[42] At the time of August 23, 1994, 1070 Rainbow Circle was owned by Daniel and Sharon McIntee, and 1058 Rainbow Circle was owned by the Tarrants.

[43] At the time of August 23, 2004, 1070 Rainbow Circle was owned by the Clarks, and 1058 Rainbow Circle was owned by the Tarrants.

[44] Mr. Tunney has not provided evidence from these owners. Neither the Clarks nor the Tarrants have sworn affidavits in this proceeding. Further, the Blackwells are deceased and according to Mr. Tunney, their daughter would not provide him with an affidavit.

[45] I find that the only direct and best evidence that exists comes from a Declaration of Possession signed by the Clarks on August 31, 2005 in conjunction with the sale of their 1070 property to Margot Dunn and Craig Nixon. The Declaration is of the same force and effect as if made under oath. It clearly states that the Clarks have no knowledge of any claim adverse to their title and are positive that none exist. Further, they declare that their possession and occupation of the lands have been undisturbed by adverse possession or otherwise. I accept the submission on behalf of Ms. MacDonald and Mr. Ross that at the critical time where rights crystalized on August 23, 2004 (i.e. date of conversion to Land Titles), the elements of adverse possession were not met. The Clark Declaration of Possession speaks to a time contemporaneous with the conversion of title. It “straddles” such conversion. I find the Declaration is both relevant and reliable.

[46] I further find that the severance that occurred on November 4, 1994 (i.e. 3 months inside the 10 year requirement) defeats the 10 year requirement. The Agreement had been to sever one acre of land from 1070 to be joined in title to 1058. It is submitted on behalf of Ms. MacDonald and Mr. Ross and I agree that this Agreement addressed all boundary issues and eliminated all potential rights of possession by Mr. Tunney.

[47] I find that if Mr. Tunney had felt that he had an additional and increased interest further west on 1070 than the 70 feet indicated in the drawing on the survey attached to the Agreement of Purchase and Sale, then he would have raised it at that time. His claim now is to yet another large portion of 1070 (more than 1 acre). I find the claim is not only untimely but also not credible.

[48] Closer examination of the Agreement of Purchase and Sale with the McIntees can be found in the Responding Application Record attached to the Affidavit of Daniel McIntee sworn March 4, 2015. The lands identified as being the subject matter of the severance can be found at Schedule B. However, and also noteworthy, is what can be found at Schedule A. This Agreement of Purchase and Sale was conditional. It reads “this offer is conditional upon the Purchaser and John Tunney mutually agreeing upon a right of way on the subject property to John Tunney’s property on terms satisfactory to themselves within five days upon acceptance of this offer”. This condition was waived. Mr. Tunney argues that he did not require any documentation evidencing rights acquired by right of way and therefore, the condition was waived. If this were true, then the significant unanswered question is why was this condition inserted in the Agreement of Purchase and Sale in the first place. The subject of the right of way must have been of concern to the parties, including Mr. Tunney. However, no documentation was obtained by Mr. Tunney in this regard. In my view, the condition was inconsistent with Mr. Tunney’s assertion that no right of way documentation or agreement was required because he did not require permission for rights he already possessed. If this were so, it would not have been necessary for the condition to have existed at all.

[49] Further, Daniel McIntee’s Affidavit states that the Agreement and ultimate severance dealt with a driveway and shed encroachment, as if to suggest that the 1058 residence owned a shed situated on 1070. Contrary to this assertion, it is clear from the Severance Application and Decision that the shed on 1070 was to be retained by the 1070 lands and was by no means an “encroachment”.

[50] I find that the tarp shed now on 1070 was erected by Mr. Tunney on or about June 4, 2014, but certainly after May 5, 2014 as evidenced by a photo taken by Ms. MacDonald and Mr. Ross showing a unique tree marking the location, with no structures in proximity.

[51] Mr. McIntee also speaks of a “gravel driveway through the bush linking the 1070 entrance to Mr. Tunney’s property…”. However, he is the only other owner of 1070 that refers to a gravel driveway. As of April 1, 2014 there was no gravel driveway through the bush. This suggests that Mr. McIntee has either confused the prior characteristics of 1070 with the current state of affairs as he is a frequent guest at 1058, or there was gravel that has since been removed – possibly as early as the change in ownership to the Clarks on October 31, 2003.

[52] I accept the evidence of Ms. MacDonald and Mr. Ross as to the characteristics of the 1070 lands at the time they took possession on April 1, 2014. I accept their evidence based on their Affidavit evidence and the photographs which they took. I find that as of April 1, 2014 there was:

(a) No tarp shed; (b) No gravel around the tarp shed or any area Mr. Tunney now claims a right of way over/adverse possession; (c) No chain dividing the alleged right-of-way to the adverse possession area Mr. Tunney now claims; (d) No bench; and (e) No swingset.

[53] I accept the evidence of Ms. MacDonald and Mr. Ross that none of the above items were put on their property by Mr. Tunney as at April 1, 2014.

[54] I have carefully reviewed the Applicant and Supplementary Application Record delivered by Ms. MacDonald and Mr. Ross and the Exhibits contained therein. I have also carefully reviewed the Responding Application Record and the Affidavits of Mr. Tunney, Margot Dunn, Catherine Rivard, Daniel McIntee, Jacqueline Byberg, together with Mr. Tunney’s Supplementary Affidavit sworn April 7, 2015, and Supplementary Affidavit of Margot Dunn sworn April 6, 2015. Mr. Tunney argues that this is the best evidence upon which I ought to rely and that I should place little weight on the Clark Declaration of Possession.

[55] Having reviewed Mr. Tunney’s original Affidavit, I can only find that reference to what Mr. Clark told him is clearly hearsay evidence. There is a further reference to advice received from Mr. Tunney’s lawyer. However, Mr. Tunney’s lawyer did not provide any affidavit evidence in respect of this dispute notwithstanding Mr. Tunney relying heavily on what he was told by his lawyer at various times. This is all hearsay evidence. Similarly, while there is reference to what he was told by the Tarrants, there is no affidavit evidence filed in support of what Mr. and Mrs. Tarrant may have told Mr. Tunney or Margot Dunn. While Mr. McIntee provided his sworn Affidavit of March 4, 2015, it is directly contrary to the Declaration of Possession of the Clarks which can be found in the Supplementary Application Record, Supplementary Affidavit of Sarah MacDonald sworn April 13, 2015 at Exhibit I.

[56] Notwithstanding Mr. Tunney’s urging to the contrary, I prefer the evidence found in the Clark Affidavit over the evidence of Mr. Tunney’s friends and partner/spouse Margot Dunn for previous reasons stated. In particular, I accept the evidence found in the Clark Declaration as follows:

1. Subject to a mortgage or charge in favour of CIBC Mortgages Inc. to be discharged on completion of the above-noted sale transaction, we are the absolute owners of the Lands and either personally or by our tenants have been in actual, peaceable, continuous, exclusive, open, undisturbed and undisputed possession and occupation of the Lands and the houses and other buildings used in connection therewith since on or about the 31st day of October, 2003, when we obtained a conveyance hereof as joint tenants by Instrument No. RO352653.

2. We have no knowledge of any claim or interest by any person or corporation to the Lands which is adverse to or inconsistent with our title and we are positive that none exists.

3. Our possession and occupation of the Lands has been undisturbed throughout by any legal proceedings of any nature or adverse possession or otherwise. During our ownership, we have not made any payment or acknowledgement of title to any person or corporation respect of any right, title, interest or claim upon the Lands and we do not have any knowledge of any other person or corporation having made any such payment or acknowledgment.

[57] In terms of the element of the test for adverse possession which requires proof of intention to exclude on the part of dispossessor, none of the affiants suggest there was an intent on the part of any of the 1058 owners to dispossess the 1070 owners from that portion of their Lands. Furthermore, none of the 1070 owner affiants have stated that they were in fact excluded from using that, or any, portion of their lands.

[58] I also accept evidence on behalf of MacDonald and Ross that the first time they became aware of Mr. Tunney’s claim for adverse possession was upon receipt of the correspondence from Mr. Tunney’s lawyer dated June 2, 2014. That letter not only supported Mr. Tunney’s claim for a right of way but also, for the first time, advanced a claim for adverse possession abutting 1058 of about 20 feet in width at the south end of the property widening out to about 70 feet at the rear (north end). This was all part of what was described by Ms. MacDonald and Mr. Ross as Mr. Tunney’s “expanding claim” I find that this “expanding claim” lacks merit and also lacks any specificity. A claim for adverse possession denoted in pink on the MacDonald/Ross survey provided by Mr. Tunney is for lands consisting of approximately 1.5 acres. He has never provided a survey specifically setting out the location of the lands he claims. He has simply coloured a portion of land on that survey and claimed ownership of that land with insufficient proof of his claims.

[59] I find that Mr. Tunney has not met his burden of proof in establishing all three requirements to successfully support his claim for adverse possession. For reasons given, his claim for adverse possession fails.

(b) Has Mr. Tunney established all of the elements required to obtain a prescriptive easement (right of way) over 1070 Rainbow Circle?

[60] The onus of establishing the elements required to obtain a prescriptive easement rests with Mr. Tunney.

[61] Other than the Affidavits of Mr. Tunney and Margot Dunn, I find there is no documentary evidence to support a prescriptive easement over 1070 Rainbow Circle. I have carefully considered the evidence of Mr. Tunney’s affiants and I give them less weight as they are non-arm’s length individuals, being friends of, and in the case of Margot Dunn, a spouse/girlfriend of Mr. Tunney.

[62] The four elements required to establish an easement are as follows:

(a) There must be a dominant and servient tenement; (b) The easement must accommodate the dominant tenement; (c) The dominant and servient owners must be different persons; and (d) The lands in question must be capable of forming the subject matter of a grant.

[63] Furthermore, in Ontario, for a claimant to be successful he must prove continuous, uninterrupted, open and peaceful use of the Land for a period of 20 years.

[64] It is well-settled that the 20 years continuous possession and continuous use required to establish a prescriptive easement must have occurred prior to and existing on the date the lands in question were converted to Land Titles. As stated previously, in this case, both properties were converted into Land titles on August 23, 2004. Thus, Mr. Tunney must prove, among other things that the 20 years’ of continuous use existed at a minimum, from August 23, 1984 to August 23 2004.

[65] At the time of August 23, 1984, 1070 Rainbow Circle was owned by Michael Cole, and 1058 Rainbow Circle was owned by the Blackwells.

[66] At the time of August 23, 2004, 1070 Rainbow Circle was owned by the Clarks, and 1058 Rainbow Circle was owned by the Tarrants.

[67] Mr. Tunney has not provided evidence from any of these owners. None of the above mentioned have sworn affidavits in this proceeding. What is more, we know that the Blackwells are deceased and therefore will never have their evidence before the Court. While the Blackwells conveyed 1058 directly to the Tunneys in 1987, the chain to ownership of Lorilee Tunney of 1070 in 1987 went through a number of owners – from Michael Cole to the Crown, then to John Blackwell.

[68] The only direct evidence we have is from the Declaration of Possession signed by the Clarks on August 31, 2005 in conjunction with the sale of their 1070 property to Margot Dunn and Craig Nixon, as described previously. In it the Clarks (who owned since 2003) declare that “there is no encumbrance or easement affecting the Lands except as the records of the Land Registry Office disclose”, and with respect to the latter, Ms. MacDonald and Mr. Ross therefore submit that at the critical time where rights crystallized in August 23, 2004 (i.e. date of conversion to Land Titles), the elements required for a prescriptive easement are not met. On this point, I accept their evidence and find in their favour.

[69] Case law is clear that the use made, must be “as of right”. Therefore, permission to use, a request to use or compensation provided will defeat a prescriptive easement claim. Ms. MacDonald and Mr. Ross submit that the facts pertaining to the purchase of 1070 by the McIntees in 1993 are inconsistent with the use of 1070 to access 1058, “as of right”. The Agreement of Purchase and Sale by the McIntees for 1070, specifically included that the sale was conditional on the purchaser and John Tunney agreeing upon a right-of-way. The waiver was then provided within the time required and signed by John Tunney and Sharon McIntee. Ms. MacDonald and Mr. Ross submit that insertion of this clause, presumably at the request of Mr. Tunney, and the assumed permission by the McIntees for Tunney to use 1070 are entirely inconsistent with a use “as of right”. What is more, Mr. McIntee’s affidavit states that he negotiated a lower price for the property. In this regard, it can be said that there was consideration flowing to the McIntees for Mr. Tunney to use the McIntees 1070 lands. As a result of the above, the subsequent use would be considered as permissive use and not counted towards the required 20 years’, or alternatively, at the very least it would reset the clock back to zero, with a new starting point for calculating the prescriptive easement.

[70] In addition, Ms. MacDonald and Mr. Ross state that the subsequent severance resolved all boundary and access issues, defeating a claim of prescriptive easement. It is notable that the deed for the 1 acre parcel contains no mention of an easement.

[71] With respect to the element of the test that requires that the dominant and servient owners must be different persons, Ms. MacDonald and Mr. Ross submit that the various overlap in ownership of the 1070 and 1058 Rainbow Circle lands defeats Mr. Tunney`s easement claim. For example, within the 20 year period, there was common ownership of the two properties; (a) in 1987 with 1070 owned by John Blackwell and 1058 owned by him and his wife; (b) for a lengthy duration Lorilee Tunney owned the 1070 lands and William Tunney and Lorilee Tunney owned the 1058 lands. Unity of ownership is inconsistent with an easement. One does not require an easement in order to enjoy rights over one’s own property since the exercise of those rights is an incident of ownership. In this way, the owner of the servient tenement by the common occupier could not be prevented by the owner of that tenement. In other words, in law, John Blackwell could not prevent the use of 1070 by the owners of 1058 – being himself and his wife.

[72] With respect to the elements of the test that the claim must be capable of forming the subject matter of a grant and that the easement must accommodate the dominant tenement, Ms. MacDonald and Mr. Ross submit that Mr. Tunney’s description of the alleged history of use does not properly equate to an easement. The Tunneys first obtained the 1058 property in 1987 – 3 years short of the required period. For the period prior to that all we are presented with is the non-specific recollections of Mr. Tunney of what Mr. Blackwell apparently told Mr. Tunney about crossing over the abutting property to the west, and about using existing trails and creating new ones “to access not only his backyard but also the Hydro easement to the west and south Kashe river to the north of his property by snowmobile, motorcycle and ATV.” The evidence does not indicate the location of this use. Furthermore, it is not apparent how these trails accommodated the dominant tenement, as they may have been simply for leisure activities, as well as providing access from 1058 across 1070 to another area of land entirely.

[73] Even if the account of use by the Blackwells as told now by Mr. Tunney is accurate, which is denied, the boundaries in question have changed considerably: a) the dividing line moved 70 feet to the west as a result of the 1 acre severance; and b) Rainbow Circle was placed over top of the properties. It is equally possible that the Blackwells crossed over what is the road portion that was taken out of 1070 or the 1 acre parcel – which would not create an easement in the area claimed by Mr. Tunney.

[74] Marked as Exhibit 1 on the Application were Plates 23 and 25, Highway 11 Recommended Plan, Town of Gravenhurst, District of Muskoka. Mr. Tunney tendered these documents in evidence. I had asked him to show on each of these documents where his claim to a right of way was located. All that he could provide the court was a yellow line on each of these documents which is his best estimate as to where his right of way as claimed exists. This evidence was of absolutely no assistance to the court. Again, it lacked any specificity at all; not providing any particulars regarding the right of way. Neither did it provide any relativity to the location of 1070 and 1058 as depicted on better plans and surveys. Also, Mr. Tunney’s yellow markings on a copy of the Dearden and Stanton survey lacked specifics.

[75] For these reasons, I find that Mr. Tunney has not satisfied his onus of establishing the elements required to obtain a prescriptive easement or right of way.

(c) If yes, has said easement since been extinguished?

[76] I have found that Mr. Tunney has not established all of the elements required to establish a prescriptive easement through 20 years of continuous use. Even if such a prescriptive easement has been established (which I find it has not) such an easement has been extinguished. An easement may be extinguished by way of the following:

(a) By operation of law: a) The purpose for which it was created comes to an end; b) The period for which the easement was created terminates; c) The right is abused; or d) The same person comes to own the dominant and servient lands in fee simple or “unity of ownership”. (b) An express release; or (c) An implied release, which may occur through abandonment or prescription.

[77] I also find that Mr. Tunney claims that the purpose of the easement was for access to the back of his 1058 property. I accept the evidence on behalf of Ms. MacDonald and Mr. Ross that this purpose no longer exists as Mr. Tunney has a perfectly suitable driveway to the area allegedly served by this access across 1070 and thus the easement is extinguished. Furthermore, or in the alternative, Ms. MacDonald and Mr. Ross submit that the alleged right has been abandoned. While discontinuance of use of an easement is not in itself abandonment, it is evidence from which abandonment may be inferred. Indications of abandonment by 1058 and/or prevention by 1070, include:

(a) Mr. McIntee indicated there was a gravel driveway going up through the bush to access 1058 to the east, but the gravel is absent – certainly by the time Ms. MacDonald and Mr. Ross purchased the property in 2014, suggesting purposeful removal or disuse; (b) Margot Dunn told Sarah MacDonald that when Mr. Tunney moved into 1058 in 2010, he had to clear out all the debris in the culverts with openings on 1070 because they were blocked, suggesting prior owners of 1058 did not access the 1070 property and therefore unlikely to be using the alleged right-of-way; (c) The photo taken by Ms. MacDonald and Mr. Ross of the alleged access point through which Mr. Tunney crossed over 1070 to 1058 did not have the appearance of a recently and highly used right of way as so claimed.

[78] In conclusion, I find that Mr. Tunney has not proved the required elements of adverse possession or of a prescriptive easement. Although he has relied upon s.44(1) of the Land Titles Act, this provision does not provide any assistance or relief to Mr. Tunney in all of the circumstances. Further, as of the date of crystallization of his rights on the date of conversations from the Registry to the Land Titles System, he did not have either adverse possession or a prescriptive easement in respect to the lands in question. Even if he was successful in showing that an easement was created (which he did not) Mr. Tunney is no longer entitled to such an easement because it has since been extinguished.

(d) Are Ms. MacDonald and Mr. Ross entitled to a permanent injunction?

[79] I find that the test for a permanent injunction is satisfied. Mr. Tunney is permanently restrained from entering on to or interfering with the real property owned by Ms. MacDonald and Mr. Ross known municipally as 1070 Rainbow Circle, Kilworthy, Ontario. The test for a permanent injunction requires the moving party to establish its legal rights. Ms. MacDonald and Mr. Ross have done so. Thereafter, the court must determine whether an injunction is an appropriate remedy.

(a) Ms. MacDonald and Mr. Ross have established their legal rights

[80] Ms. MacDonald and Mr. Ross have established their legal rights to quiet enjoyment of the entirety of their property as outlined by the bounds described by the survey dated October 22, 2014. Mr. Tunney has failed to establish any entitlement to rights over their property, namely, no adverse possession and no prescriptive easement (right of way).

(b) A permanent injunction is the appropriate remedy

[81] The appropriate remedy is an order restraining Mr. Tunney from interfering with the property rights of Ms. MacDonald and Mr. Ross. Such a remedy appropriately balances the rights of the parties.

[82] In respect of my order of July 6, 2015 Mr. Tunney has removed various items from the disputed area. If there is any gravel by the tarp shed he shall remove that gravel as well. If he has installed any cameras in the disputed areas he is to remove those cameras forthwith. Mr. Tunney is permitted to cross over the boundary line of the properties as marked on the Dearden and Stanton Survey dated October 22, 2014 only for the purpose of removing any gravel or his cameras. He shall be required to take the necessary steps to repair the situation consistent with the rights of Ms. MacDonald and Mr. Ross.

[83] The parties have accused each other of trespass, incivility, hostility, and anger. I make no specific findings in this regard only to say that they are both to blame and have not acted as good neighbours to each other as they should have and could have done so. They need to mend their ways. They need to do better if they are to remain neighbours.

CONCLUSION

[84] For reasons given, it is ordered that:

[85] Mr. Tunney is permanently restrained from entering on to or interfering with the real property owned by Ms. MacDonald and Mr. Ross municipally known as 1070 Rainbow Circle, Kilworthy, Ontario, legally described as Pt Lt 11, Con WMR Morrison, Pt 3, 4 and 7, 36R7462 Except Pt 1 35R15971; S/T MR2055; Gravenhurst; The District Municipality of Muskoka.

[86] Title to the real property of Ms. MacDonald and Mr. Ross, described above is not subject to any right of way, easement or rights of possession in favour of Mr. Tunney or his predecessors in the title.

[87] As to the issue of costs, the parties have agreed to attend a hearing before me scheduled by the trial coordinator. They are to contact the trial coordinator within 7 days of receiving this Judgment in order to arrange a hearing for costs. On the hearing for costs, I shall require a concise statement as to costs not exceeding two pages in length, cost outlines, draft bills of costs together with any relevant authorities. These written submissions are to be exchanged and served by the parties and filed with my Judicial Assistant at Barrie within 21 days of receiving the costs hearing date.

DiTOMASO J.

Released: August 23, 2016