INTRODUCTION

[1] Two adjoining land owners in downtown Orillia dispute the existence and use of a right of way over a laneway located between their two properties.

THE PROCEEDINGS

[2] The proceedings were commenced by way of two competing Applications. The Applications were converted to trial of certain issues by order of McCarthy J., dated December 9, 2014. A four day trial was conducted with written submissions that followed.

THE PARTIES AND THEIR CLAIMS

[3] In its Amended Application, the Plaintiff, RelaxMuskoka Cottages Inc. (“Relax”) seeks the following relief:

(a) an order rectifying the Parcel Register for PIN 58667-0062 (LT), the servient lands to show the laneway as being “subject to” the right of way referenced as R.O. 1310756 in favour of Relax’s property being PIN 58667-0056 (LT), the dominant tenement;

(b) an order compelling the Defendant 2052219 Ontario Inc. (“205”) to remove boulders;

(c) an order compelling 205 to repair damage to the laneway caused by the placement or removal of the boulders at its own expense;

(d) an order directing the Land Registrar for the County of Simcoe to rectify and/or amend the Parcel Register for PIN 58667-0062 (“the laneway”) to make it subject to a right of way in favour of Relax;

(e) in the alternative, an order setting aside the Quit Claim dated June 13, 2006, as invalid and to revert and vest to the last legal ownership in either 1882 or 1903 and further directing the Land Registrar to enter the servient interest on the properties thereto;

(f) a declaration that the use of the right of way over and along the laneway includes vehicular access and is not otherwise restricted to pedestrian access; and,

(g) damages for the loss of rental income revenue and consequential loss of profits due to an inability to lease the commercial and residential units on Relax’s property resulting from the placement of the boulders on the right of way in the amount of $61,234.78.

[4] In its Application, the Defendant 205 seeks the following relief:

(a) an Order prohibiting RelaxMuskoka Cottages Inc., their agents, servants, tenants, employees, officers and directors from trespassing across 205’s property;

(b) a declaration that any right of way Relax may have over the land described as PIN 58667-0062 in the Land Registry Office for the County of Simcoe is void and is of no force or effect;

(c) an Order extinguishing any claimed right of way Relax may have over the land described in PIN 58667-0062 in the land Registry Office for the County of Simcoe;

(d) a declaration that 205 has good and valid title to the land described in PIN 58667-0062 in the Land Registry Office for the County of Simcoe; and,

(e) a declaration that 205 has an easement or right of way over a strip of land on the rear or northerly ten feet of the property owned by Relax, being PIN 58667-0056 in the Land Registry Office for the County of Simcoe, for the purposes of access and winter time piling of snow.

OVERVIEW

[5] The Plaintiff Relax owns a property on which is located a building municipally known as 180 Mississaga Street in downtown Orillia. The property was acquired on July 2, 2008. The building contains two residential units and two commercial units with parking at the rear of the building.

[6] Adjacent to the Relax property is property owned by DRSSL Limited known as 188 Mississaga Street. On this property, a pharmacy building is located. The pharmacy property is located across the laneway from 205’s property. The Relax property is behind (to the west) of the pharmacy and 205 properties.

[7] The Defendant 205 owns property municipally known as 19 Front Street also in downtown Orillia. This property was acquired on August 30, 2004. On this property is located a commercial building with parking along the side and back of that building. 205 also claims ownership of the laneway by a Quit Claim Deed registered on June 13, 2006. The south limit of 205’s property adjoins and runs along the north limit of the laneway.

[8] The laneway is located between the Relax and pharmacy properties on one side and the 205 property on the other side. The laneway is sometimes referred to as the alleyway over which the right of way dispute has arisen between Relax and 205.

[9] Following Relax’s purchase of its property in July, 2008, up to November, 2012, the principals of Relax, Jay and Andrew Martin, and their tenants, drove their vehicles across a neighbour’s lands to the west (PIN 58667-0055) (LT), (“PIN 0055) also known as the Askett property to access the rear parking lot of Relax’s property. Relax acknowledges it was the most convenient and frequently used route to access its rear parking lot.

[10] Although Relax asserts Andrew Martin and Relax’s tenants have also driven through the laneway to access the rear parking lot of Relax’s property, this assertion is very much in dispute. 205 contends no vehicles used the laneway to access the rear properties, certainly from 1990 up to and including May of 2013.

[11] 205 contends that Relax and its tenants also accessed Relax’s parking lot by travelling over 205’s lands at the rear of 205’s building by using another and different laneway accessed off Matchedash Street which street runs parallel to Front Street, a block to the west.

[12] Vehicular access from the Askett property (PIN 0055) to Relax’s rear parking lot was no longer accessible after November 2012, when the new owner of PIN 0055 erected a fence along the boundary of PIN 0055 and Relax’s property.

[13] After the fence was erected precluding access through the Askett property, Relax, Messrs. Martin and their tenants drove across the rear of 205’s property to access Relax’s back parking lot. Not only did they drive vehicles over the “back” route off Matchedash Street but they also accessed Relax’s back parking lot using the “front” route over the entranceway and back parking lot of 205’s property at 19 Front Street. Typically, they would drive up 205’s entranceway off Front Street to 205’s back parking lot and then turn left, driving through 205’s rear parking lot to Relax’s own rear parking lot.

[14] Relax’s access unauthorized by 205 continued until May of 2013 at which time 205 placed boulders along the laneway and Relax’s property line and placed boulders at both ends of the laneway preventing all access to Relax’s property. As a result, all vehicular access to Relax’s property has been blocked since May 2013.

[15] In May 2015, the boulders along the laneway and Relax’s property line and at the back end of the laneway were moved to 205’s property in accordance with a survey prepared by Dearden and Stanton Ltd., Ontario Land Surveyors, dated May 14, 2015.

[16] The boulder placed at the Front Street end of the laneway has not been moved and continues to remain in that location

[17] Relax’s Notice of Application was issued on November 26, 2014. 205’s Notice of Application followed and was issued on December 16, 2014.

THE EVIDENCE

Visual Presentation

[18] This dispute involves various parcels of land which are located on Lot 2, southwest of Front Street, previously known as Gerald Alley, Plan 8 in Orillia, Ontario. The parcels include:

• PIN 58667-0056 (LT) – the Plaintiff Relax’s property (color code – orange)

• PIN 58667-0062 (LT) – the laneway (color code – yellow)

• PIN 58667-0063 (LT) – the Defendant 205’s property (color code – pink)

• PIN 58667-0061 (LT) – the pharmacy property (color code – green)

[19] These parcels are further identified on the Property Index Map found at Exhibit 1, Tab 3. The properties are color-coded on that map corresponding with the above and attached as Appendix ‘A’ to these Reasons.

[20] The Askett property (0055) to the west of the Relax property is not color-coded. Neither is an adjacent property (0057) located behind 205’s property formerly owned by a company controlled by Jack Keyzer.

[21] For further assistance to the court and referred to during the evidence of various witnesses was Plan 51R-10536 dated May 11, 1981, prepared by Dearden and Stanton Ltd. (See Exhibit 1, Tab 1). On this plan, Part 1 is identified as the property owned by 205 at 19 Front Street. Part 2 is identified as the laneway. The pharmacy property and the Relax property front onto Mississaga Street and back on to the laneway.

[22] At Exhibit 1, Tab 2 can be found Plan 51R-13255 dated January 28, 1985, prepared by Dearden and Stanton Ltd. Identified as Part 4 on this survey is the pharmacy’s building wall which runs over part of the laneway.

[23] Also, John Chester Stanton, O.L.S., of Dearden and Stanton Limited (Ontario Land Surveyors) prepared a Plan of Survey dated May 14, 2015. This survey depicts the laneway along with the three adjoining properties: 205 (19 Front Street), the pharmacy (188 Mississaga Street) and Relax (180 Mississaga Street). The May 2015 survey can be found at Exhibit 7, Tab 6.

[24] Further, at the court’s request, counsel for Relax in her Supplemental Brief of Law (part of her Written Submissions) produced a Succession Chart purporting to illustrate ownership and right of way over the laneway and three adjoining properties. The chart is color-coded to match the coloring of the same properties on the Property Index Map (Exhibit 1, Tab 3).

[25] Lastly, during the trial and during the evidence given on behalf of Shirley Partridge, Title Searcher, reference was made to the Index to Exhibit 1 (Plaintiff’s Brief of Documents). This Index sets out relevant documents relating to the various properties at different points in time.

[26] There were also photographs found at Exhibit 1, Tabs 26 and 30 and Exhibit 7, Tabs 1, 4 and 5 (205’s Document Brief) showing views of the properties and laneway including during wintertime.

[27] These documents were of benefit to the court to visualize the location and interplay of the properties in question.

Evidence of the Witnesses

Evidence of Witnesses for Relax

[28] Jay Martin and Shirley Partridge testified on behalf of Relax.

[29] Jay Martin, President of Relax, testified about his knowledge regarding the Relax property and access when it was purchased in 2008. He gave evidence about events leading up to and giving rise to the issues including the placement of the boulders by 205 in May of 2013 which precluded vehicular access to the rear of Relax’s property. He testified as to the issue of damages and the economic impact to Relax’s business as a result of 205 preventing access to the rear parking lot at Relax’s building.

[30] In-chief, Mr. Martin testified that when the Relax property was purchased in 2008, located at the rear of the building were 8 to 10 parking spots, not physically reserved, for use by Relax’s tenants – the occupants of two residential units and two commercial units. Some of the leases with Relax’s tenants found in Exhibit 1 contain terms which provided for parking spots. He described how the parking spots were accessed. When the Relax Property was purchased he understood that there was access to the Relax building through the Askett Property. This property was a neighbouring property located to the west on Mississaga Street. He testified that this was the main, most frequent and convenient access to the Relax Property. However, in the Fall of 2012, this property was sold, the new owner erected a fence and Relax no longer had access to its back parking lot by means of this route. He also testified that he had access through the laneway. Before the Fall of 2012, the route over the Askett Property was the route taken by Relax to access its back parking lot.

[31] Also, Mr. Martin testified that Relax’s back parking spaces were accessed through 205’s rear area which access stopped after 205 placed boulders there in May 2013, thereby preventing Relax from accessing its back parking lot.

[32] After the fence was erected, he could not recall any specific time that the laneway was used to access Relax’s back parking lot. He believed a vehicle could fit through the laneway and relied on a photograph of a vehicle taken by a tenant, Ian Anderson. The vehicle was a Honda Civic. The photograph was taken sometime in 2015 or 2016. Mr. Anderson, although still a tenant of Relax, did not testify at trial.

[33] Andrew Martin, the brother of Jay Martin, although examined for Discovery, did not testify at trial. Jay Martin also testified as to damages. I will review his evidence under this heading in my Reasons later.

[34] In cross-examination, Jay Martin testified that the Relax parking lot was accessed through the Askett Property and through the 205 Property but not over the laneway. He testified that from the time of purchase in 2008 until the fence was built by the new owner to the Askett Property, Relax accessed the Relax Property exclusively over the Askett Property as well as over 205’s property.

[35] In cross-examination, the transcript of Andrew Martin’s evidence on his Examination for Discovery was put to Jay Martin. Andrew Martin’s evidence was that he travelled down the laneway constantly by foot. He testified at one point – “we drove a vehicle through because we wanted to make sure we could get through”. However, he did not know when that was. It was not after the fence was built.

[36] Mr. Martin agreed what precipitated the dispute with 205 was the new owner built a fence and denied Relax access over the Askett Property. When that access was denied, Relax travelled over 205’s property without permission. Between 2008 and 2013, Jay Martin had no evidence of anyone else driving down the laneway.

[37] Mr. Martin agreed that Relax never believed it had any right to travel over 205’s property to get to the rear of Relax’s building. Although he testified he did not know that there was no access over 205’s property, he did not confirm that Relax did not have a right of way over 205’s property and parking lot. He never wrote to anyone to confirm that Relax had the ability to travel over 205’s property to get to Relax’s property. He was not aware if curb stones were placed in front of the laneway at Front Street and whether they were there in 2008 at the time of Relax’s purchase. He believed that when the property was purchased, Relax could access its rear parking lot from any one of these areas and he did not think that Relax was trespassing to get to the back of the Relax Property.

[38] He confirmed that no one indicated that Relax had the legal right to access the Relax Property through the 205 Property or through the Askett Property.

[39] He agreed that the 205 building did not go to the property line. There was a space between the property line and the building of 1.7 feet. He agreed that a vehicle travelling in the laneway would have to stay at least 1.7 feet south of the building so as not to trespass. He did not believe there was any lighting in the laneway. He could not answer whether the site line onto Front Street from the laneway was a blind exit. He agreed that the pharmacy building and the 19 Front Street building went almost to the sidewalk. His position was that since May 2013, Relax could not access its rear parking lot because 205 installed the boulders.

[40] He was unaware of whether the boulders had been moved since May of 2013. He was unable to explain the difference in the photographs at Tab 26 and Tab 30 regarding the boulders at the rear of 205’s property.

[41] He did observe a passageway next to the retaining wall also described as having a little hill. He could not confirm whether that passageway would take someone to the laneway which, in turn, would lead to Matchedash Street. He did confirm that there was public parking on Mississaga Street within walking distance to the commercial unit called “The Brownstone Cafe”.

[42] The Brownstone Café is a pub operated by Andrew Martin through another corporation.

The Evidence of Shirley Partridge

[43] Shirley Partridge has been a Title Searcher and Conveyancer for over 30 years. She testified on behalf of Relax as a “fact” witness. She searched the titles to the laneways and the three adjoining properties from the present back to the original patent and then forward for each property and the laneway. She testified that based on her title document review, all three properties adjoining the laneway indicated a “together with” a right of way over the laneway. More specifically, all the title documents in 0056 (Relax) from 1882 through to today, referenced the property together with use of and/or a right of way over the laneway.

[44] On September 10, 2001, 0056 was created. At that time the Relax Property was converted from the Registry to the Land Titles system. In the process of conversion, for some unexplained reason, the parcel registered for the laneway does not acknowledge in the legal description, the property as being “subject to” the right of way described in Instrument number RO1310756 in favour of Relax’s property.

[45] Relax purchased PIN 0056 on July 2, 2008. At the time of purchase, Relax’s principles, Andrew Martin and his brother Jay Martin advised that the property was acquired with a right of way over the laneway as described in the legal description of the property. This was the evidence of Jay Martin.

[46] Shirley Partridge also testified about the Quit Claim Deed to 205 by Jack Keyzer’s company, 861906 Ontario Inc. of the lands comprising the laneway. The Quit Claim was registered on June 13, 2006. It was marked as Exhibit 6 at trial and it can also be found at Exhibit 7 at Tab 2. At issue is whether 861906 Ontario Inc. had any possessory title in the laneway that it could Quit Claim at all. She testified about various Data Retention Reports prepared by Teranet and located in the Land Registry Office records for the laneway and other properties.

[47] The Succession of Ownership Chart and the evidence of Shirley Partridge set out matters concerning the chain of title regarding the three properties and the laneway. A useful summary addressing each of the properties and the laneway can be found in Relax’s factum. (See pages 4-14) largely based on the Chart, Shirley Partridge’s evidence and the trial exhibits.

(a) PIN 58667-0056 (LT) – the Plaintiff Relax’s Property

[48] This PIN (“PIN 0056”) adjoins PIN 58667-0062 (LT) (“PIN 0062” or the “laneway”) to the northeast. The lands comprised as PIN 0056 are “together with” a right of way over and along the laneway which is owned by 205.

[49] The first reference to the use of the laneway in the Title Documents for PIN 0056 was in Instrument No. 1086 dates September 30, 1882. At the time, the property was owned by George Wainman.

[50] All of the title documents for PIN 0056 from 1882 to today refer to the property as being together with the use of and/or a right of way over the laneway.

[51] The right of way in favor of Relax’s property is described in Instrument No. R01310756 as follows:

TOGETHER WITH a right of way at all times for all the usual purposes in common with others entitled thereto over, along and upon a lane giving ingress and egress to Gerald Alley on Registered Plan 8 from the above described parcel and which right of way is Part of Lot Two, West of Gerald Alley, Registered Plan 8, City of Orillia, County of Simcoe, and may be particularly described firstly and secondly as follows…[^1]

[52] The right of way, as granted, does not describe the type of access permitted along the laneway for the purposes of “ingress and egress”. That is, there is no specific reference to pedestrian and/or vehicular access.

[53] On September 10, 2001, PIN 0056 was created. At the time of automation, the property description refers to two rights-of-way “over, along and upon a lane giving ingress and egress to Gerald Alley” that make up access to Front Street from the rear of the subject lands. However, these rights-of-way were not acknowledged on the servient lands, being PIN 0062, as “Subject to RO1310756”.[^2]

[54] Accordingly, the parcel register for the laneway does not acknowledge in the legal description the property as being “subject to” the right of way described in Instrument No. RO1310756 in favour of the Relax property.[^3]

(b) PIN 58667-0062 (LT) – The Laneway

[55] The origin of the right of way over the laneway (originally a 10’ x 65’ strip of land) dates back to a deed granted September 30, 1982, from George Wainman to Robert Parkhill. On February 11, 1892, George Wainman conveyed the remnant of his land to Richard Rix (who also owned PIN 58667-0063 (LT)). This later transfer also included a right of way over the laneway.

[56] Original Non-Convert reports are no longer available therefore there are no reasons documented as to why the laneway was left in the Registry System and not converted into Land Titles. The only source and documents available are the Data Retention Reports prepared by Teranet for the properties in question.

[57] A Data Retention Report dated May 6, 2002, and contained in the Land Registry Office records for PIN 0062, classified the property as “Non Convert” and including the following comments under resolution:

Agree non convert due to no certifyable (sic) ownership within the 40, treat as community easement.[^4]

[58] The historical title documents confirm that prior to the Quit Claim to 205 on June 13, 2006; the last identifiable owner of PIN 0062 was Richard Rix by Instrument No. 4357 dated February 11, 1892.

[59] On June 13, 2006, 205 became the owner of the laneway by way of a Quit Claim from 861906 Ontario Inc.[^5]

[60] At the time of the Quit Claim, PIN 0062 was still in the Registry System and had not yet been converted to Land Titles.

[61] Neither 861906 Ontario Inc., nor its principal, Jack Keyzer, has ever owned PIN 0062.

[62] At the time of the Quit Claim in June 2006, 861906 Ontario Inc. owned the lands identified as PIN 58667-0057 (LT) (“PIN 0057”).

[63] The underlying parcel that makes up the laneway was never part of the chain of title for PIN 0057. PIN 0057 does not abut the laneway. Nor has PIN 0057 ever registered right of way over the laneway.

[64] In a Transfer/Deed of Land dated June 13, 2006, 861906 Ontario Inc., the then current owners of PIN 0057, quit claimed the lands comprising the laneway to 205 for $2.00.[^6]

[65] The Land Transfer Tax Affidavit annexed to the Quit Claim Deed states the following: “Quit Claim Deed given to transfer adverse title”. As noted, there is no evidence establishing that 861906 Ontario Inc. had adverse title to the laneway.

[66] There is no mention of a “community easement” on the parcel register for the laneway following the Quit Claim to 205 on June 13, 2006. Nor are there any further Data Retention Reports referencing as such.

[67] On January 24, 2011, the Registry PIN for the laneway was converted by Teranet to Land Titles Conversion Qualified. On conversion, the property description for the laneway did not include a right of way in favour of the Relax property, PIN 0056.[^7]

[68] The property description for PIN 0062 includes a right of way in favour of PIN 58667-0061 (“PIN 0061”), described below. This is consistent with the February 21, 2011, Data Retention Report also prepared by Teranet and located in the Land Registry Office records for the laneway.[^8]

[69] The parcel of land to the north of the laneway bears PIN 58667-0063(LT) (“PIN 0063”).[^9]

[70] The first reference to the use of the laneway in the Title Documents for PIN 0063 was in Instrument No. 4357 dated February 11, 1892. At the time, the property was owned by Richard Rix.

[71] All of the title documents from 1892 through to today include reference to PIN 0063 as being together with the use of the laneway.[^10]

[72] 205 purchased PIN 0063 from 638230 Ontario Inc. on August 30, 2004. Jack Keyzer is the principal of 638230 Ontario Inc.[^11]

[73] 638230 Ontario Inc. has never owned PIN 0062.

[74] Today, PIN 0063 is together with instrument No. RO1094794 which includes a right of way over the laneway. Therefore, the Defendant 205 has a right of way over the laneway which it also owns.[^12]

[75] However, PIN 0062 does not include in its property description a right of way in favour of PIN 0063.

(d) PIN 58667-0061(LT) – The Pharmacy Property

[76] Adjoining lands to the east of the Relax property and south of the laneway are identified as PIN 58667-0061(LT) (“PIN0061”).[^13] [^14]

[77] The origin of the right of way over PIN 0061 dates back to a deed granted in September, 1882, from George Wainman to Robert Parkhill. Mr. Parkhill originally owned the westerly portion of the lands that became the right of way and always maintained a right of way over the remaining 10’ x 65’ strip of land abutting Front Street.

[78] From 1882 through to automation on September 10, 2001, PIN 0061 was together with a right of way over the laneway.

[79] PIN 0061 was converted from the Registry System to the Land Titles Systems September 10, 2001. At the time of automation, the property description included a right of way over the laneway.[^15]

[80] A Data Retention Report prepared by Teranet dated May 6, 2002, and contained in the Land Registry Office records for PIN 0061, describes the property as being “together with a community easement”.[^16]

[81] The Data Retention Report dated February 21, 2011, now refers to the description of the laneway “as in RO1469840 and “Subject to RO849750” which is not on the title documents for the Relax property but, rather, part of the chain for PIN 0061.

[82] In addition, Relax relies upon a number of “read-ins” from the evidence given by Vivian Pizzitelli on behalf of 205 on her Examination for Discovery held May 25, 2015, as follows:

Page 10, 11 question 53 and 54 - She did not have any personal discussions with Mr. Keyzer at either the time of the purchase or before the purchase of the 205 property.

Page 11, 12 question 58 – She had no personal notes taken around the time of the purchase

Page 24, 25 question 107 – She was questioned about the Quit Claim Deed. She was asked whether Mr. Keyzer or Mr. Pizzitelli explained to her how they were able to go about transferring the laneway to 205. Her answer was that Mr. Keyzer had owned the property from 1990 to 2004. He assumed that he had ownership and he was able to then transfer that to 205. Mr. Keyzer also in his affidavit said that it was an oversight.

Page 27, questions 118, 119, 120 – She was asked about the transfer of the laneway in 2006 being signed on behalf of the company. Her understanding was that Mr. Pizzitelli would have had the transfer prepared by the Real Estate Division of HGR Law firm. She identified her husband’s signature on the transfer.

Page 35, question 156 – She was asked about the rationale for placing the boulders. She testified that there was one boulder in front to prevent anyone from coming into the laneway and towards the end of the laneway from anyone coming out. She also testified that there was a hydro pole located near the end of the laneway which would only leave five feet to get a car through. She went on to say that the main concern was for public safety and that she felt it was not safe for someone coming out, blindly going onto the sidewalk and also trying to get through – around – manoeuver around the existing hydro pole.

Witnesses for the Defendant 205

[83] Jack Keyzer, Paul Taylor, John Chester Stanton, OLS and Frank Pizzitelli testified on behalf of 205.

Evidence of Jack Keyzer

[84] Mr. Keyzer was the principal of 638203 Ontario Limited (“638”). His company purchased the 0063 property from BayCorp. Investments of Orillia Ltd. on January 9, 1990. This property was identified as the property municipally known as 19 Front Street, also shaded in pink on Exhibit 1, Tab 3, the Property Index Map. 638 operated the courthouse at the time. There was a single tenant, the Solicitor General. That deed regarding the purchase from BayCorp. was identified. (Exhibit 1, Tab 16)

[85] Mr. Keyzer testified that there was a walkway or alleyway between his building and the pharmacy next door. He identified photographs found at Exhibit 1, Tab 26. There were curb blocks positioned at the front of the entranceway to the laneway. Those stones were there when he purchased in 1990. Each of the stones were six inches high and some were stacked on top of each other to the height of one foot.

[86] Mr. Keyzer identified the pharmacy building and the doors which opened out into the laneway. As part of the pharmacy building, there was a concrete stoop and an overhanging roof structure which also extended into the laneway. Looking back through the alleyway could be seen a retaining wall at the end of his property which stood about four feet high constructed of blocks. In addition to the 19 Front Street property, he also owned a property to the rear which has been identified as PIN 0055. This property was just behind the 19 Front Street property to the west. There was a retaining wall between the 19 Front Street property and the 0055 property municipally known as 14 Matchedash Street.

[87] At the end of the retaining wall which he identified in Exhibit 1, Tab 6, photograph 3, there existed a gap with a bit of a slope where vehicles could drive to the rear of 19 Front Street. He believed that the little laneway (not the laneway in issue) had always been there and he believed that it continued to be there today.

[88] Mr. Keyzer described the circumstances surrounding the sale of the PIN 0063 lands to Mr. Pizzitelli’s company in 2004. Between 1990 and 2004, while Mr. Keyzer’s company was the owner, he described how snow was piled at the back of the property which filled the entire area. When it became too much, the show would have to be hauled away. He testified that in the winter months the laneway between the 19 Front Street building and the Pharmacy building was inaccessible.

[89] Mr. Keyzer described that during the time that the Solicitor General was the tenant, Mr. Keyzer would be at the property at 19 Front Street at least three days a week and sometimes during the weekend.

[90] During that time, the only activity he noted in the laneway was some pedestrians walking through. During that time, he never saw any vehicles travelling in the laneway. There was no one who looked after or maintained the laneway. He described it as “it was kind of a no-man’s land”.

[91] Mr. Keyzer was taken to the survey found at Exhibit 1, Tab 1, where the 19 Front Street was described as Part 1 and the laneway was described as Part 2. He testified that the property line of the 19 Front Street property extended into the laneway by about two feet. Towards the rear of the building, the laneway juts out a little.

[92] On August 30, 2004, his company 683 sold the 19 Front Street property (PIN 0063) to 205. (Exhibit 7, Respondent’s Document Brief at Tab 7, also Exhibit 5)

[93] Mr. Keyzer testified about the Quit Claim Deed by which the laneway was conveyed to 205 by Mr. Keyzer’s company 861906 Ontario Inc. (“861”). (Exhibit 6, Respondent’s Document Brief at Tab 2 and Exhibit 1, Plaintiff’s Brief of Documents at Tab 13)

[94] Mr. Keyzer testified that he had no interest in the laneway meaning that he had no need for it after he sold the 19 Front Street property to 205 in 2004. He testified that he was the director and shareholder of both companies – the company that had owned 19 Front Street and the 638 company that had owned the property behind 19 Front Street. He believed that HGR Law Firm prepared the Quit Claim and that Bruce Waite was his lawyer.

[95] Mr. Keyzer was cross-examined. He testified that he knew that 638 did not own the laneway. He assumed 638 owned the laneway for a certain period of time. He was taken to his affidavit sworn December 4, 2014 (Exhibit 9).

[96] Mr. Keyzer was cross-examined in respect of paragraph 3 of his affidavit wherein he deposed that the 638 company acquired PIN 0063 on January 9, 1990. He assumed 638 also owned the lane shown as Part 2 on the survey. (Exhibit 1, Tab 1). He agreed that later this was clarified and he did not have ownership to the laneway.

[97] He testified that 861 quit claimed to 205 whatever interest that company had in the laneway. He agreed that 861 did not have legal (paper) access to the laneway. He agreed that there was nothing registered on title to the property owned by 861 (0057) which indicated that it was “together with” a right of way over the laneway.

[98] He agreed that 861 did not abut the laneway but does abut 0063. Further, he had nothing to dispute that title to the laneway was subject to a right of way in favour of PIN 0057.

[99] He testified that the laneway was inaccessible in the winter because snow was pushed from the 19 Front Street property into the laneway. The laneway was never maintained in the winter. He agreed that any maintenance of the laneway would be seasonal. He further agreed that there were no documents to produce showing that 861 had possessory title to the laneway. No documents were produced by Mr. Keyzer concerning 861 having any possessory interest in the laneway.

[100] In respect of the little slope by the retaining wall near the hydro pole at the rear of the 205 property, he was asked about the vehicles driving from his property (PIN 0057) to the 19 Front Street property (0063). It was put to the witness that vehicles would be able to drive through that slope or opening through the laneway across to Front Street. He testified that would never happen and he never saw it happen. He had no information either way whether vehicles would travel up the laneway towards the back of the Front Street Property (0063) or even his own property (0057)(14 Matchedash Street).

[101] In re-examination he testified that at the time the Quit Claim was executed, he did not believe that Mr. Pizzitelli was acting for Mr. Keyzer’s company.

Evidence of Paul Taylor

[102] Mr. Taylor is a chartered accountant who works for BDO Dunwoody which had its offices at 19 Front Street since September 1999. Mr. Taylor lives seven blocks away from his office and has lived there since 1987. He walks back and forth to work most days.

[103] He was shown certain photographs. He would walk down a laneway off Matchedash Street and walk across the back parking lot of 19 Front Street and then enter the building through the back door.

[104] Mr. Taylor would observe the laneway in his travels in the summertime but not in the winter because the snow was too high.

[105] Since 1999 he has continued to use the same route to access the building. He would see pedestrians using the laneway when it was not full of snow. He testified that he had seen public parking in downtown Orillia and also metered parking along Matchedash Street and Mississaga Street. There are no parking meters along Front Street. There is public parking one half block away from Matchedash Street on Mississaga Street behind the buildings on Mississaga Street.

[106] Although Mr. Taylor only observed the laneway for a matter of seconds at a time, he never saw any vehicles travelling through the laneway.

Evidence of John Chester Stanton

[107] Mr. Stanton has been an Ontario Land Surveyor since 1984 and a Canada Land Surveyor since 1994. He carries on business as Dearden and Stanton Ltd. and CT Strongman Surveying Limited. He identified the Plan of Survey prepared by Charles Strongman found at Exhibit 1, Tab 1. This survey is dated August 11, 1981 and is further identified as Plan 51R-10536. It depicts the property municipally known as 19 Front Street as Part 1 and the laneway in question as Part 2.

[108] Found at Exhibit 1, Tab 2, is a further survey dated January 28, 1985, prepared by Dearden and Stanton Ltd. This document identified as Plan 51R-13255 depicts the laneway as Part 2 and Part 4 thereon being the building wall of the pharmacy building which extends into Part 2.

[109] Mr. Stanton testified that he also prepared a Plan of Survey dated May 14, 2015, at the request of Mr. Pizzitelli. This Plan of Survey is found at Exhibit 7, Respondent’s Document Brief, at Tab 6. It was referred to throughout Mr. Stanton’s evidence. He testified that there were no other surveys in respect of these properties in question from 1981 to 2015.

[110] In preparation of the 2015 survey, his focus was on Part 2, the laneway. He searched the PINs for adjacent properties to ensure that the property rights of owners on either side of the boundary were taken into account. His search was restricted to the legal descriptions that were on record at the Land Registry Office as well as historic survey records.

[111] Mr. Stanton was taken to the May 2015 survey. At the Front Street entrance to the laneway he identified two black boxes. One box on the pharmacy building side was a survey monument. The other black box on the 19 Front Street side was a nail where an iron bar could not be planted. The distance between these two black boxes was ten feet.

[112] Moving up the laneway from the Front Street entrance on the pharmacy building side, he testified that there was an area with transverse lines going up approximately three quarters of the way. This represented the outer wall of the pharmacy building municipally known as 188 Mississaga Street. He testified that approximately ten inches of the pharmacy building extended into the laneway as represented by the part marked with transverse lines. This would narrow the laneway by ten inches leaving a width of nine feet two inches.

[113] Looking to the 19 Front Street property and commencing at the front entrance of the laneway off of Front Street the survey shows “wall 0.49 north on line”. This appears at the right hand side of the corner of the building. There is a black solid line of Part 2 and a space between that line and the exterior of the south wall of 19 Front Street. That gap measures 1.6 feet. Mr. Stanton agreed that the black solid line being the north limit of the laneway does not run right up against 205’s building. That gap between the laneway and the exterior wall of 19 Front Street measures 1.6 feet.

[114] Mr. Stanton returned to measure certain features involving the pharmacy building and the laneway. He noted the existence of a stoop and an overhanging roof. Both the stoop and the roof extended into the laneway beyond the building wall which wall also extended into the laneway. He measured the distance from the front of the roof to the north boundary of the laneway as 6.92 feet. He testified that for a vehicle to travel through the laneway without interfering with the overhang, the distance would be 6.92 feet.

[115] He testified by the west corner of the pharmacy building he located a utility pedestal sticking out into the laneway. It was denoted by a square with a small black circle inside. It extended into the laneway by 0.1meters.

[116] At this point the laneway becomes wider as it approaches the rear of the Relax property located at 180 Mississaga Street.

[117] When comparing the Property Index Map (Exhibit 1, Tab 3) with 2015 survey, Mr. Stanton testified that the Property Index Map although color-coded does not show the location of any buildings. He testified that his survey accurately depicts location of buildings and other features.

[118] Mr. Stanton continued to testify that moving west along the northerly boundary of the two buildings fronting on Mississaga Street, he came to a triangle which is the symbol for the anchor for a utility pole. He testified that cables are attached to the anchor and the cables run to a utility pole for support. The anchor is within the boundary of Part 2.

[119] The distance between the anchor and the edge of the Part 2 laneway at this point is 7.64 feet. Moving further west and extending into Part 2, there is a symbol marked on the survey being a round circle containing a black smaller circle. This is the symbol for a utility pole. The distance from the utility pole to the northerly limit of the laneway is 7.55 feet.

[120] Mr. Stanton was cross-examined.

[121] Mr. Stanton identified the stone boulders in his survey. They appear as “figure 8” markers and they are described on the survey as 0.4 meters high, Armour stones with a 0.10 meter more or less cap between each stone. The photographs found at Exhibit 1, Tab 26 and Exhibit 7, Tab 5, also help to show the boulders and where they are located in relation to the survey. The photo shown at Exhibit 7, Tab 5, bottom left, indicates that the stones are piled to the right side of the “little hill” or passageway, right up against 205’s retaining wall. This was where he saw the boulders when he did his survey in May of 2015. These boulders are on the property belonging to 205. They run just north of the southerly boundary of the property from the back corner of the building over to the westerly property line.

Evidence of Frank Pizzitelli

[122] Mr. Pizzitelli practiced law in Orillia from 1999 until 2006. He practiced law in Barrie for a short time, thereafter returning to Orillia to practice law as a solo-practitioner from 2007 until 2009 at which point in time he accepted a judicial appointment.

[123] He testified about the purchase of 205 of the 19 Front Street property from Jack Keyzer’s company. The deed for the purchase can be found at Exhibit 1, Tab 18. He understood that he was purchasing 19 Front Street which was a commercial building. The property was purchased on August 30, 2004, as evidenced by the transfer/deed found at Exhibit 7 Tab 7. (Also Exhibit 5).

[124] He described the entranceway to the parking lot for 19 Front Street. The entranceway is off Front Street. There was some parking along the right hand wall to the entranceway. At the end of the entranceway, one turns left and there is parking along the back wall of the property. There are also three parallel parking spots against the back side of the building as well. The entranceway to the parking area of 19 Front Street is evidenced by the photos which Mr. Pizzitelli took and can be found at Exhibit 7, Tab 5.

[125] Mr. Pizzitelli testified about a series of events which occurred in 2005-2006 which resulted in the transfer/deed to 205 of the laneway. Mr. Pizzitelli at the time was working for HGR Law Firm. He spoke with Bruce Waite who was also a lawyer at that firm about the laneway and the limits of people using the laneway. He was advised that people could not use the laneway for loitering or sitting on a bench. The pharmacy property next door could not use the laneway as an outdoor patio. However, Mr. Waite could not find that Mr. Pizzitelli was the owner of the laneway. Mr. Pizzitelli believed that he had a right of way over the laneway. Mr. Waite contacted Mr. Keyzer. Mr.Waite prepared a Quit Claim Deed eventually signed by Mr. Keyzer’s lawyer which gave Mr. Pizzitelli title to the laneway. That Quit Claim Deed is marked Exhibit 6, dated June 6, 2013, by which Mr. Keyzer’s company 861906 Ontario conveyed by way of Quit Claim Deed the laneway to Mr. Pizzitelli’s company 205. (See Exhibit 1, Tab 13). Mr. Pizzitelli did not prepare the deed but he did sign the land transfer tax affidavit. Mr. Pizzitelli testified that Mr. Waite acted for him on this transaction and that Mr. Aubrey Ford acted for Mr. Keyzer.

[126] On July 2, 2008, Relax purchased its property. (See Transfer Deed Exhibit 1, Tab 6)

[127] In the Fall of 2012, there were new owners of the Askett property which was adjacent to Relax’s property off Mississaga Street. The new owners put up a fence between their property and the property owned by Relax and referred to by Mr. Pizzitelli as the “Brownstone” property. As a result, Brownstone lost access to their property.

[128] Mr. Pizzitelli received a complaint that the Brownstone people were cutting across the back of 205’s parking lot to gain access into the Relax parking lot.

[129] While Mr. Pizzitelli did not witness this in 2012, he did witness this in 2013, just after the May long weekend. He witnessed a vehicle trespassing over 205’s entranceway, turning left at the back of 205’s parking lot and then travelling over that parking lot to the Brownstone’s parking lot at the rear of Relax’s building. Mr. Pizzitelli registered a complaint with the police and discussed erecting barriers. He was also concerned because the pharmacy had three doors that opened onto the laneway and both the pharmacy and Front Street buildings fronted right onto the Front Street sidewalk.

[130] Mr. Pizzitelli also testified about the main door of the pharmacy under the overhang which was used by employees to take out garbage to the curb. Sometimes he would observe an employee there having a smoke.

[131] Mr. Pizzitelli viewed some of the photographs and testified that there were also safety concerns as the exit onto Front Street was “blind” going onto the sidewalk. He was afraid that someone would be killed. Therefore, he arranged to have some rocks placed across the back of his property boundary to prevent any trespasser travelling across the back of 205’s parking lot. He also arranged to have boulders placed at each end of the laneway.

[132] Also evidenced in the photographs was another sort of laneway near the retaining wall going into the property that Mr. Keyzer used to own.

[133] Those boulders were placed at the end of May 2013. The boulders were moved in 2015 to the other side of the laneway onto 205’s property commencing at the end of the retaining wall. He testified that just past the end of the retaining wall there was an opening over property that Mr. Keyzer owned which would go out to Matchedash Street. These boulders were moved at the time that Mr. Stanton did his survey in May 2015. He noticed that the retaining wall was buckling so the boulder at the back end of the laneway was moved to support the retaining wall. The front boulder at the entrance of the laneway remained where it was. The majority of the boulders were moved from where they were located in the laneway to just inside 205’s property line.

[134] As for the condition of the laneway in the winter months, it was basically full of snow and unplowed. At the Front Street end of the laneway, snow would be piled by the City during snow removal operations. At the rear of the 19 Front Street property, snow would also be piled during plowing operations. This was evidenced in photographs referred to by Mr. Pizzitelli.

[135] He testified that the owner of the property behind 205’s property would pile his snow in front of the laneway as would Relax and their predecessors. They always piled their snow back-to-back which created a big snow mountain at the rear of the buildings.

[136] Mr. Pizzitelli was taken through a series of photographs at Exhibit 7 which showed the laneway full of snow as well as the location of various utility poles. Mr. Pizzitelli testified that Brownstone (Relax’s commercial tenant) never sought 205’s permission to travel along the back of 205’s property. Brownstone never approached 205 regarding either parking in the rear of 205’s lot or questioning any ability to deal with the laneway or travel through the laneway. He testified that no one from Brownstone ever spoke to him about parking in the 205 lot. Further, no one from Brownstone ever spoke to 205 about accessing anything through the laneway.

[137] Between 205’s purchase in 2004 and the date of trial, Mr. Pizzitelli and his wife probably attended 19 Front Street property once a month.

[138] More frequently, when he worked in Orillia and lived there between 2005 and 2007, he was at the building almost every day. There were various construction projects involving the building. Sometimes he was at the building two times a day, sometimes he drove past the building four times a day to and from work. His favourite restaurant was across the street from the building and he drove or parked at that building at least once a day. In all of that time, with all of the drive bys or attendances at 19 Front Street, Mr. Pizzitelli never saw a vehicle travel up and down the laneway.

[139] In 2013, he received a letter from the solicitor for Relax demanding removal of the boulders.

[140] He had no conversation with any representatives of Relax except once he spoke with Andrew Martin about removing tree trimmings and carpeting piled onto “our” laneway. Mr. Martin apologized and had the debris removed sometime in 2009 before Mr. Pizzitelli moved from Orillia.

[141] Mr. Pizzitelli was cross-examined. He repeated that Mr. Ford represented Jack Keyzer in respect of the preparation of the Quit Claim Deed. He doubted that Mr. Keyzer was represented by Bruce Waite. He acknowledged that Mr. Waite did act for Mr. Keyzer from time to time but not in respect of the Quit Claim. Mr. Pizzitelli testified that he did not act for 205 in respect of this transaction. While the Land Transfer Tax Affidavit identified him as the solicitor for the transferee, Mr. Pizzitelli testified that he was not the real estate lawyer. Mr. Waite was. All that Mr. Pizzitelli did was sign the Land Transfer Tax Affidavit as an officer of 205.

[142] Mr. Pizzitelli was not aware Jack Keyzer testified that he knew before the Quit Claim that he did not have ownership to the laneway. Mr. Pizzitelli understood that Mr. Keyzer through 861 had an interest in the laneway and that the company quit claimed this interest to 205.

[143] He testified that the two properties were side by side. Mr. Keyzer treated the front and back properties as one project. Mr. Pizzitelli only wanted to purchase the front part of the Keyzer properties.

[144] Mr. Pizzitelli knew that Mr. Keyzer and his tenants used the laneway so they had some interest in the laneway. Mr. Pizzitelli testified that his lawyer advised him to obtain a Quit Claim for anyone who might have an interest and was told that there were only two people who might have a possible interest other than the owner from some 100 years ago. One of those parties was the Keyzer company that sold to 205 and the other party that might have an interest was Mr. Keyzer’s company, 861, which ultimately gave 205 the Quit Claim.

[145] Based on lawyer’s advice, Mr. Pizzitelli did not produce his lawyer’s file regarding the Quit Claim due to solicitor/client privilege.

[146] Mr. Pizzitelli had no documentation to substantiate his apparent understanding of Mr. Keyzer’s interest or his company’s interest in the laneway. Mr. Pizzitelli relied on his lawyer’s expertise that the Keyzer company had an interest to convey regarding the laneway.

[147] In May of 2013, Mr. Pizzitelli arranged to have boulders placed on the laneway between the 205 property and the Relax property. This was based on a bright orange stake located next to the telephone pole delineating the Relax property. He understood that the Relax property went to the back of the pharmacy building.

[148] In 2015, Mr. Stanton did a survey. Mr. Stanton did not tell Mr. Pizzitelli that the boulders were on Relax property. To the contrary, they were on the laneway. Mr. Stanton did tell Mr. Pizzitelli that the boulders were past 205’s property line. Mr. Pizzitelli immediately moved them back. Mr. Pizzitelli received no complaints from anyone. He testified that the boulders were not along someone else’s property. He understood that they were across the laneway in front of the stakes. He agreed that there was no evidence that anyone from Relax or their tenants parked in 205’s parking lot.

[149] Put to him was a photograph of a Honda Civic motor vehicle parked in the laneway (Exhibit 1, Tab 30). He acknowledged that there was some space on either side of the vehicle.

[150] He agreed that the entrance to the laneway from Front Street could be seen a drop-curb in that location.

Read-ins from the Examination for Discovery of Andrew Robert Martin Held March 25, 2015

[151] There were a number of read-ins relied upon by 205 from the Examination for Discovery of Andrew Robert Martin, as follows:

Page 12, question 80-82 – the Think Tank sandwich shop location was not operating. Relax was attempting to lease that spot. If it was not rented, then Mr. Martin said he would operate Think Tank again during the summer of 2015.

Page 13, question 86-90 – Mr. Martin said that he paid rent to RelaxMuskoka for the Think Tank space of approximately $1000 a month. He paid $3000 inclusive of HST for both the Think Tank and other space.

Page 15, question 101-104 – across the street from Relax’s building was a store that just went out of business. Mr. Martin did not know if on the same side of Mississaga Street there was empty commercial space.

Page 17, question 114-123 – Mr. Martin stated that he believed that he had a right of way over the laneway which is what his lawyer told him. That lawyer was also his father.

Page 19-21, questions 128, 129, 130, 131-142 – Mr. Martin said that he believed that he had access through the Askett property because it was open. He said that as indicated on the paperwork, “our right of way was this Part 2”. He was asked further questions about travelling over the Askett property. His evidence was that at the time it was just an empty abandoned space that was always empty and so people would come and go through that way if they so chose. The Askett property was sold in 2012. From the time that Relax purchased its property in 2008 until Relax ran into an issue with the new owners of the Askett property, Mr. Martin stated that Relax was accessing its property through the Askett Printing parking lot but not exclusively. Relax would also access the Relax property through the back of 205’s building. Relax did this by coming up the entranceway and driving around behind the building onto Relax’s property. Mr. Martin knew that he did not have a legal right of way to do so. Relax began entering onto its property through the back of 205’s property probably when Relax purchased its building in 2008.

Page 23, question 151 – Mr. Martin was asked when was the first time he started to travel down the laneway. He did not remember. He did go on to say that he travelled by foot down the laneway and that at one point in time “We drove a vehicle through because we wanted to make sure that we could get through. But I don’t know when that was”.

Page 23-24, question 157 – Mr. Martin stated that when Relax first bought the property, “I believe that we drove a car through there”.

Page 25, question 164-168 – although tenants told Mr. Martin that they had driven through the laneway, Mr. Martin did not have any evidence about those tenants. He had the name of Ian whom he believed did not live in Orillia anymore.

Page 28, question 187 – an undertaking was given to determine where the snow was piled on Relax’s property during its ownership.

Page 29, question 191-192 – Mr. Martin did not agree with Mr. Pizzitelli’s statement that from 1990 to 2004 the lane was never used for vehicle access to the lands owned by Relax. Further, Mr. Pizzitelli stated that it was impossible for a vehicle to go down the laneway closest to Front Street. There was a block knee wall about two feet high that prevented vehicles from even entering at that entrance. Mr. Martin testified that he did not think it was impossible.

Page 33, 34, question 204-207 – Mr. Martin recalled only one time that he drove a vehicle down the laneway. Further, Ian told him that he drove down the laneway. However, Mr. Martin had not seen Ian access the property “but he had suggested to that regard, yeah”. Mr. Martin testified that he has not seen other vehicles go through that laneway.

ISSUES

[152] The following issues are raised for determination:

(a) Does Relax have a valid and subsisting right of way over the laneway?

(b) Has the right-of-way expired? If not, has the right of way been extinguished?

(i) By abandonment or,

(ii) Extinguished as the right of way has not been registered against the laneway (servient tenement).

(d) If Relax has a valid right of way, what use can Relax or its successors in title make of the right of way?

(e) Does the court have jurisdiction to rectify title?

(f) Is Relax entitled to damages and, if so, in what amount?

POSITIONS OF THE PARTIES

Position of the Plaintiff Relax

[153] Relax submits it has a valid right of way over the laneway. It asserts the Quit Claim granted to 205 by Keyzer Company 861 is invalid and should be set aside. Relax submits there was no evidence that 861 was entitled to the Quit Claim given to 205 as 861 did not possess any interest in the laneway which it could Quit Claim. Accordingly, Relax contends that the legal description of the laneway reverts back to the legal description existing before the Quit Claim was given by 861 to 205.

[154] Relax submits that it has a valid right of way over the laneway “together with” adjoining landowners. The laneway identified as a community easement would not need to be notated as being subject to a right of way in favour of Relax.

[155] In the alternative, if it is found that the Quit Claim is valid, Relax seeks an order directing the Land Registrar to rectify title to the laneway to show it is subject to the right of way in favour of Relax which is not shown currently on title to the laneway.

[156] Relax claims it is entitled to damages in the amount of $61,234.78. It asserts that as a result of being precluded by 205 from accessing Relax’s property by placing the boulders, Relax has lost rental income and consequent loss of profit.

[157] Relax seeks various orders including an order rectifying title to the laneway to show the laneway is “subject to” the right of way referenced in Relax’s PIN 58667-0056 (LT) as “Together With RO1310756”. In the alternative, Relax seeks an order setting aside the Quit Claim as invalid and restoring title to the laneway as it read immediately prior to the registration of the Quit Claim. Relax seeks an order directing the Land Registrar to rectify the parcel register for the laneway as above.

[158] Relax seeks a declaration that the purpose and scope of the right of way is for pedestrian and vehicular access by Relax, its tenants and invitees for all reasonable purposes ancillary to the commercial/residential use of the property.

[159] Relax seeks an order that 205 remove the boulders located on the laneway and boulders blocking access to Relax’s property and to repair any damages to Relax’s property, all at 205’s own expense.

Position of the Defendant 205

[160] 205 submits Relax does not have a valid right of way. Such right of way if it even existed has long since expired. If not, 205 asserts Relax’s claim to a right of way over the laneway has been extinguished by abandonment. Further, 205 claims that Relax’s claim is statute barred. 205 asserts it obtained indefeasible title to the laneway. 205 submits the Quit Claim from 861 to 205 is valid and that 205 is the owner of the laneway over which it and the owner of the pharmacy lands have a right of way but Relax does not.

[161] Further, 205 denies that Relax has suffered any damages and Relax has failed to prove any damages it allegedly sustained.

[162] 205 seeks an order prohibiting Relax, its agents, servants and invitees and others from trespassing across 205’s property. 205 also seeks a declaration that any right of way Relax may have over the laneway is void and is of no force and effect. An order is sought extinguishing any claimed right of way by Relax over the laneway. Further declarations are sought that 205 has good and valid title to the laneway and a right of way over the northerly 10 feet of Relax’s property for the purpose of access and wintertime piling of snow.

ANALYSIS

(a) Does the Plaintiff Relax have a valid and subsisting right of way over the laneway?

[163] Relax’s property (the dominant tenement – 0056) has had a registered right of way over the laneway since 1882. The right of way was carried over on conversion from the Registry System to the Land Titles System in September 2001. However, no corresponding entry was made on title for PIN 0062 (the servient tenement – the laneway) to show it as being subject to a right of way in favour of the Relax lands.

[164] The right of way in favour of the Relax lands is described in Instrument No. RO1310756 as follows:

[165] This right of way was also identified by Shirley Partridge in her evidence.

[166] Relax purchased the 0056 lands from Murich on July 2^nd, 2008 (the Instrument Number SC660118 transfer of deed of land, Plaintiff’s Brief of Documents, Tab 6). By that point in time, the lands purchased by Relax had been converted from the Registry System to the Land Titles System. The description of the lands in PIN 0056 included “T/WRO1310756” being the right of way over the laneway. This is the property that Relax purchased on July 2^nd, 2008 as evidenced by the Parcel Register 0056 created on September 10^th, 2001 see exhibit 1, Plaintiff’s Brief of Documents at Tab 7).

[167] However, the right of way over the laneway was not acknowledged “subject to RO 1310756”. Accordingly, the Parcel Register for the laneway does not acknowledge in the legal description the property as being “subject to” the right of way described in instrument number RO1310756 in favour of Relax’s lands.

[168] Further, the right of way, as granted, does not describe the type of access permitted along the laneway for the purposes of “ingress and egress”. There was no specific reference to pedestrian and/or vehicular access.

[169] When Relax acquired the 0056 lands (180 Mississaga Street, Orillia), amongst other things, Relax was alerted by the Parcel Register that the lands were subject to s. 44(1) of the Land Titles Act.

[170] Paragraph 2 of s. 44(1) of the Land Titles Act provides that unless the contrary is expressed on the Register, the registered land is subject to certain liabilities, which include easements.

[171] In 2008 when Relax acquired its lands, the parcel registered described title as “fee simple, LT conversion qualified”.

[172] Paragraph 2 of s. 44(1) refers to and includes rights of ways and instrument number RO1310756 was registered against the dominant lands purchased by Relax (0056-180 Mississauga Street). I find this right of way was intended to qualify the title of the lands purchased by Relax.

[173] No explanation was provided in the evidence of Shirley Partridge or anywhere else in the evidentiary record at trial as to why the right of way was not registered on title to the servient tenement, the laneway. It appears that an administrative error was made in failing to note the right of way in both the dominant property, where it was noted, and also the servient tenement, where it was not noted. This was very much similar to the case presented to Perell J. in 923424 Ontario Ltd. v. 1695850 Ontario Inc. 2015 ONSC 2494, 2015, CarswellOnt 7756 (Ont. S.C.J.).

[174] In 923424, the issue became whether the administrative error should be fixed and the abstract rectified. Under s. 159 of the Land Titles Act, the court may order rectification. Rectification is available where the court decides that a person is entitled to an interest in registered land and the court is of the opinion that a rectification of the register is required.

[175] As in 923424, I am satisfied that subject to the possible abandonment or extinguishment of the right of way, Relax is the owner of the dominant property and has a right of way interest over 205’s servient property, the laneway, and the parcel register should be rectified accordingly.

[176] Perell, J. relied upon McCormack v. Ciampanelli, 2012 ONSC 1702, 2012 CarswellOnt. 6259 (Ont. S.C.J.) and Hoggarth v. MGM Farms and Fingers Ltd., 2015 ONSC 2494, 2015 CarswellOnt. 7756 at para. 45.

[177] In McCormack, at paragraph 38, MacPherson J. stated:

In order to abandon an express grant of a right of way, the person entitled to the benefit of the easement must have been aware of that entitlement and must have made an informed decision to abandon it. Given the Land Registrar’s error in incorrectly describing the property as being subject to a right of way instead of having the benefit of the right of way, the dominant land owners did not knowingly, with full appreciation of its rights, intend to abandon the right of way.

[178] In paragraphs 45 and 46 of the 923424 case, Perell J held:

In the case at bar, a search of the abutting dominant property would be necessary in order to ensure compliance with the Planning Act, R.S.O. 1990, c.P. 13, to follow up on the alerts or warnings contained in the register about the qualified title, and to respond to the provisions of ss. 44(1) and 46(1) of the Land Titles Act. The right of way was noted in the register of the abutting property.
In the case at bar, assuming that there is no abandonment or extinguishment of the right of way, I conclude that the Respondent, like Royton Industries in McCormack v. Ciampanelli, cannot rely on the absence of an express notice of the right of way on the servient land. As noted above, an error appears to have been made in the administrative conversion of the lands form the Registry Act to the Land Titles Act, but, in my opinion, the Respondent cannot rely on the error in the register for the servient property to take title free and clear of the right of way that was stated to exist in the abstract of the dominant property.

[179] Perell J. identified the dispute in Hoggarth as follows:

…there was a dispute between two groups of cottage owners of lots on a Plan of Subdivision in the Township of Oro-Medonte. The Plan of Subdivision had originally been registered in 1950, when the lands were registered under the Registry Act, and the Plan reserved certain rights in common. The subject lands were used for launching of boats, for access to various properties, for parking vehicles, for storage for surrounding properties, and for access to Lake Simcoe for swimming and for various recreational purposes.

[180] In Hoggarth, the applicants sought an order declaring that these common lands in the Plan of Subdivision remain subject to the rights of common usage. The court concluded that the rights in common constituted a property right that had private and also quasi-public aspects. Further, the court concluded that this property right had not expired before the administrative conversion of the lands from the Registry System to a qualified title under the Land Titles System. The court held that the rights in common were not extinguished by the conversion of the lands to a qualified title under the Land Titles Act.

[181] Further, the court held that the applicants had satisfied the test under s. 44(1) of the Land Titles Act in showing that the lands of the Plan of Subdivision were subject to “any right of way, water course, right of water, and other easement, unless the contrary is expressed on the Register”.

[182] In Hoggarth at paragraph 9, the court concluded that the respondents should have been aware of the existence of the rights in common either by a closer examination of the Parcel Register or by investigating what was to be seen physically on the ground. In paragraph 91, the court concluded the property rights should not be taken away lightly, and that the legislation should be read to protect the rights of the applicants.

[183] In our case, the Parcel Register for Relax’s lands also contained the following note:

ADJOINING PROPERTIES SHOULD BE INVESTIGATED TO ASCERTAIN DESCRIPTIVE INCONSISTENCIES, IF ANY, WITH DESCRIPTION REPRESENTED FOR THIS PROPERTY (see Parcel Register for Relax lands 0056, Exhibit 1, Plaintiff’s Brief of Documents, Tab 7)

[184] In the case at bar, I find the right of way is noted on the Register of the dominant property 0056 and ought to have been noted on the Register of the servient property laneway.

[185] I find a search of the abutting properties was necessary to ensure compliance with the Planning Act, RSO 1990 c.P.13, to follow up on the alerts or warnings contained in the Register about the qualified title, and to respond to the provisions of ss. 44(1) and 46(1) of the Land Titles Act. I find that 205 should have been aware of the existence of the rights in common either by examining the Parcel Registers for the abutting lands or by physically investigating the property to see what was on the ground that supported the existence of the abutting land owners’ registered rights.[^18] [^19]

[186] In the circumstances of our case, I find that 205 cannot rely on the absence of the right of way on the servient lands (the laneway) of PIN 0062. Neither can 205 reply upon the error in registration for 205 to take title free and clear of the right of way that was clearly stated to exist in the abstract of the dominant tenement, Relax’s lands.

[187] For these reasons, and subject to the possibility of abandonment or other extinguishment of the right of way, I find the right of way being asserted by Relax is valid and title to the servient lands should be rectified to show it as being subject to the right of way in favour of Relax’s property.

[188] The court’s jurisdiction to rectify title is provided in s. 159 and 160 of the Land Titles Act, which provides, in part, that were a court has decided that a person is entitled to an interest in land, the court may make an order directing the register to be rectified in such manner as is considered just. [Land Titles Act, RSO 1990 c.L 5, s. 159 and 160, Schedule B] [^20]

(b) Has the Right of Way Expired? If not, has the right of way been extinguished?

(i) By abandonment or,

(ii) Extinguished as the right of way has not been registered against the servient tenement.

[189] 205 submits that the right of way has expired pursuant to the 40-year rule – placing the date of expiry 40 years from 1882 – sometime in 1922. Relax submits the 40-year rule does not apply to a claim of a person to an unregistered right of way, easement or other right that the person is openly enjoying and using.

The Statutory Scheme

[190] In Gold v. Chronas, [2015] O.J. No. 6743, 2015 ONCA 900, the Ontario Court of Appeal considered whether the Respondents were entitled to use the laneway. The issue turned on interpretation and application of s. 113(5)(a)(iv) of the Registry Act, which is contained in Part III of that Act.

[191] Part III of the Registry Act concerns the investigation of titles. It provides for a 40-year title search period in s. 112 and a 40-year expiry period in s. 113(1)-(4). Part III also provides for certain exceptions to its application in s. 113(5).

[192] The statutory framework is concisely set out in Gold at para. 25-31 regarding the Registry Act and at para. 32-32 regarding the Land Titles Act.

[193] 205 submits and the evidence of Shirley Partridge established that a Notice of Claim was never registered in respect of the right of way claimed by Relax. Accordingly, the right of way would have automatically expired 40 years from the date of creation (September 30, 1882), namely, on September 30, 1922, barring some exception. Further, 205 submits Relax is not able to bring itself within one of the exceptions set out in s. 113(5) and in particular s. 113(5)(a)(iv), namely, Part III of the Registry Act does not apply to “a claim of a person to an unregistered right of way, easement or other right that the person is openly enjoying and using”.

[194] The onus of demonstrating open enjoyment and continuous use is on the party seeking to rely on the s. 113(5)(a)(iv) exception. (See Gold v. Chronas, supra at para. 89 and 90)

[195] I find that s. 113(5)(a)(iv) of the Registry Act can apply to protect a dominant tenement holder’s right to use a right of way that was once registered on the servient tenement but the registration of which was not validly renewed within 40 years after its creation. (Gold v. Chronas, supra at para. 68).

[196] While the land in question continues to be governed by the system of land registration governed by the Registry Act, this protection would apply following the 40-year expiration period only for so long as the right of way continues to be openly enjoyed and used by the owners of the dominant tenement. (Gold v. Chronas, supra at para. 69). The Ontario Court of Appeal concluded that s. 113(5)(a)(iv) can apply to preserve a right of way that was once registered that is no longer validly registered.

[197] The succession of ownership chart shows the origin of the right of way over the laneway (originally a 10 foot by 65 foot strip of land) dates back to a deed granted, dated September 30, 1882 from George Wainman to Robert Parkhill. On February 11, 1892, George Wainman conveyed the remnant of his land to Richard Rix (who also owned PIN 58667-0063(LT) – 205 lands). This later transfer also included a right of way over the laneway. There are no reasons documented as to why the laneway was left in the Registry System and not converted into Land Titles.

[198] The only comments found in a Data Retention Report, dated May 6, 2002, for the laneway indicated there was no certifiable ownership within the 40-year period and that the property should be treated as community easement.

[199] On June 13, 2006, 205 became the owner of the laneway by way of a Quit Claim Deed from 861906 Ontario Inc. At the time of the Quit Claim, the laneway was still in the Registry System and had not yet been converted to Land Titles.

[200] On January 24, 2011, the laneway was converted to Land Titles Conversion Qualified. On conversion, the property description for the laneway did not include a right of way in favour of Relax’s lands. However, the laneway did include a right of way in favour of the owner of the pharmacy lands (0061) and 205’s lands (0063).

[201] In Gold, at paras. 89 to 93, the Court of Appeal held that to succeed in demonstrating that s. 113(5)(a)(iv) applies in a particular case, an applicant must show that, at least while governed by the Registry Act, the owner(s) of the dominant tenement have openly enjoyed and used the right of way continuously from the expiration of the 40-year expiry period in relation to the creation of the right of way on the servient tenement. This exception, on a plain reading, has two requirements. First, to be excepted, the claim must be a right of way or easement or other right. Second, if that requirement is satisfied, the claimant will be required to establish current usage.

[202] In the case at bar, the “notice period” means the period ending on the day 40 years after the day of the registration of an instrument that first creates a claim. The Notice of Claim has not been registered, unless s. 113(5)(a)(iv) applies, a right of way will expire 40 years after it was created.

[203] In Gold at para. 93, the court held:

If the right of way expired at any point following the expiration of the 40-year expiry period, it would no longer be a valid right of way. To show that the right of way has never ceased to be a valid right of way, a claimant must satisfy the other requirement of s. 113(5)(a)(iv), namely open enjoyment and use. Accordingly, to qualify for the exception in s. 113(5)(a)(iv), a claimant must show open enjoyment and use continuously from the expiration of the 40-year expiry period – at least to the date of any Land Titles Conversion at which point the Land Titles Act would apply. In the case at the bar, the Land Titles Conversion was on January 24, 2011.

[204] As of the date of the Application, I find that Relax was openly enjoying and using the laneway at least for pedestrian access. I have come to a different conclusion in respect of vehicular access. Nevertheless, in respect of pedestrian access, I accept the evidence of Andrew Martin and Jay Martin that the laneway was used for pedestrian access to use the residential and commercial units at the rear of Relax’s lands, commencing when Relax first acquired the property on July 2, 2008. This evidence is qualified by the fact that during winter months, the laneway was impassable due to the accumulation of snow. Relax believed that it had access to its residential and commercial units.

[205] Prior to July 2, 2008, both Mr. Keyzer and Mr. Taylor testified that pedestrians had used the right of way through to areas at the rear of the adjoining properties. Again, this was subject to the laneway being impassable during the winter months due to the accumulation of snow.

[206] At least before the laneway was converted to Land Titles on January 24, 2011, I find that Relax, as the owner of the dominant tenement, had openly enjoyed and used the right of way continuously from at least date of acquisition, being July 2, 2008, until 205 placed the boulders at both ends of the laneway and along the laneway adjoining Relax’s property in May of 2013.

[207] I do not agree on behalf of submissions made on behalf of 205 that Relax made no use of the right of way that was open and continuous. While statutory declarations were not presented as evidence on behalf of Relax going back to 1882 as to the use of the property from the date of creation of the right of way forward, I am satisfied that Relax has met its onus under s. 113(5)(a)(iv). That section has protected Relax’s right of way even though its registration was not validly renewed within 40 years after its creation.

[208] I am satisfied that Relax openly enjoyed and used the right of way, at least for pedestrian purposes, from at least the expiration of the expiry period to January 23, 2011, when the servient tenement (the laneway) was converted to Land Titles, and from that date, May 2013, when 205 placed the boulders.

[209] Further, where respondent owners seek to extinguish the long standing rights of the applicants, a strict interpretation of the statutes apply. Where such a result is sought, the legislation should be read expansively to protect the rights of the applicants. Those property rights should not be taken away lightly unless there is clear evidence to do so. (Hoggarth v. MGM Farms and Fingers Ltd., 2015 ONSC 2494, 2015 CarswellOnt 5596 at para. 91, affirmed by the Court of Appeal in Hoggarth v. MGM Farms and Fingers Ltd., 2015 ONCA 908 (Ont.C.A.))

[210] In the alternative, if it is found that Relax has not established open and continuous use of the laneway, Relax submits that it still is in a position to register Notice of Claim because 205 is not a bona fide purchaser in good faith for valuable consideration. I need not determine this issue, as I have found that Relax has satisfied its onus and can rely on the exception under s. 113(5)(a)(iv) to preserve the right of way it claims.

(i) Abandonment

[211] If the right of way has not expired, a further issue is whether the right of way has been extinguished by way of abandonment.

[212] 205 submits that Relax has abandoned any rights it may have previously had. Relax submits that the evidence adduced does not support an intention by Relax or its predecessors in title to abandon the right of way.

[213] Relax accepts 205’s summary of the law regarding the abandonment of an express right of way, as outlined in 2108133 Ontario Inc. v. Kabcan Foods Ltd., [2009] O.J. No. 951 (Ont. S.C.J.).

[214] In 2108133, at para. 8, Aitken J. stated:

The law regarding abandonment of an express right-of-way is well settled. The following principles apply:

• Abandonment is a question of fact. (455645 Ontario Ltd. v. Rousseau (1981), 19 R.P.R. 1 (Ont. H.C.) at para. 25)

• The onus of establishing the loss or extinction of an express right-of-way by abandonment or non-user rests upon the party asserting it. (Liscombe v. Maughan, (1929), 1928 CanLII 450 (ON CA), 62 O.L.R. 328 (S.C. App. Div.) at para. 28; 455645 Ontario Ltd. v. Rousseau, supra, at para. 31; Peters v. Palmer (2000), 34 R.P.R. (3d) 143 (Ont. S.C.J.) at para. 21).

• The only way in which a right-of-way can be extinguished by the act of the parties interested is by release, actual or presumed. (Liscombe v. Maughan, supra, at para. 28).

• In the absence of an actual release, non-user is essential to abandonment. (455645 Ontario Ltd. v. Rousseau, supra, at para. 27; Peters v. Palmer, supra para. 22).

• Non-user and nothing more, however is not sufficient to permit a conclusion of abandonment. (455645 Ontario Ltd. v. Rousseau, supra, at para. 27).

• When a right-of-way has its origin in an express grant, it is not lost by mere non-user; there must be some intention to abandon this property right. (Closs v. Ferguson, (1923), 24 O.W.N. 199 (Div. Ct.); Peters v. Palmer, supra, at para 21). The intention to abandon means that the person entitled to the right-of-way has knowingly, and with full appreciation of his rights, determined to abandon it. (Liscombe v. Maughan, supra, at para. 28).

• All of the evidence bearing upon the issues of non-user, acquiescence and abandonment must be considered.

• Including the express right-of-way in a registered conveyance is evidence that abandonment was not intended by the owner of the dominant tenement or not presumed by the owner of the servient tenement. (Liscombe v. Maughan, supra, at para. 32).

[215] Abandonment is a question of fact. The onus of establishing the loss or extinction of an express right-of-way by abandonment or non-user rests upon the party asserting it. (Peters v. Palmer, 2000 CarswellOnt 2364 at para. 21)

[216] When a right of way has its origin in an express grant, it is not lost by mere non-user; there must be some intention to abandon this property right. The intention to abandon means that the person entitled to the right-of-way has knowingly, and with full appreciation of his rights, determined to abandon it. All of the evidence bearing upon the issues of non-user, acquiescence and abandonment must be considered. (Peters v. Palmer, 2000 CarswellOnt. 2364 at para. 21)

[217] For instance, to “use” a right-of-way does not require that every inch of it be traversed. (Peters v. Palmer, supra, at para. 24)

[218] Non-use, obstruction, rough terrain, impassibility and a sign precluding access do not amount to clear evidence of abandonment. (Jacuniak v. Tamburro, 2002 CarswellOnt. 1088 (ONSC), at para. 33)

[219] In order to abandon an express grant of a right of way, the person entitled to the benefit of the easement must have been aware of that entitlement and must have made an informed decision to abandon it. (McCormack v. Ciampanelli, 2012 ONSC 1702, 2012 CarswellOnt. 6259 (ONSC), at para. 38)

[220] As well, the express right-of-way in a registered conveyance is evidence that abandonment was not intended by the owner of the dominant tenement nor presumed by the owner of the servient tenement. (2108133 Ontario Inc. v. Kabcan Foods Ltd., 2009 CarwellOnt 1218 (ONSC) at para. 8. Jacuniak v. Tamburro, supra, at para. 34. McCormack v. Ciampanelli, supra, at para. 31)

[221] The right-of-way is included in all conveyances of the Relax’s property since 1882. Relax submits that given the right of way was included in the legal descriptions of every deed leads to the inference that the owners of the right of way never objectively demonstrated an intention to abandon it and, consequently, Relax and its predecessors in title believe that the right of way still existed. (Peters v. Palmer, 2000 CarswellOnt. 2364, at para. 30, Succession of Ownership Chart)

[222] In the case at bar, 205 submits that the evidence establishes abandonment of Relax’s vehicular right of way, thus extinguishing any such right by operation of law.

[223] It is submitted that Relax purposely elected not to use the right of way. Rather, it accessed the rear of its property by vehicle through the adjoining land to the west, identified as PIN 58667-0055. Relax understood that previous owners of the Relax lands had vehicular access to its property through this same adjoining property, so Relax continued to access lands in this same manner and advised its tenants and patrons to do so as well. They found it to be a more convenient option.

[224] Relax was aware that it did not have a legal right of way over this land but nevertheless chose to utilize it out of convenience. 205 relies on the evidence of Jay and Andrew Martin in this regard.

[225] Further, 205 relies on evidence that at the laneway opening onto Front Street since 1990, a block wall existed that prevented any vehicle from entering the laneway from Front Street. It is asserted that the purpose of the block wall was to block vehicular access to the laneway. Despite being barred from accessing the laneway by vehicle, at no time did Relax, or any of its predecessors, question the placement of the block wall or what impact it might have on the right of way. Clearly, the person who erected the block wall did so with the intention of blocking vehicular access and thus extinguishing Relax’s alleged right. However, Relax, over a period of almost six years prior to its Application, did nothing to preserve or otherwise seek to enforce its alleged right, despite being aware of the existence of the block wall. The block wall was six inches high and in places where two blocks were placed on one another, some 12 inches high according to the evidence of Jack Keyzer.

[226] The evidence was that Relax chose to access its property through the neighbouring property to the west (0055) and actively allowed the blockade at the Front Street end of the laneway to remain in place preventing anyone accessing the laneway with a vehicle.

[227] While accessing its property through 0055, Relax used the laneway to discard old carpet and it had removed from its property branches it had cut from trees. 205 asked Relax to remove this debris which Relax did. In the winter months, the laneway was not maintained by Relax, 205 or anyone else, and the snow was left to accumulate all winter, preventing even pedestrian access to the laneway. Pedestrian access to the laneway was and is only available seasonally, because of the accumulation of snow.

[228] Even when Relax’s access through 0055 was blocked, it did not seek to utilize the laneway. Rather, Relax then accessed its property by trespassing over the rear of 205’s property. It continued to do so, despite warnings, until the boulders were placed by 205 in May of 2013.

[229] 205 submits that Relax was aware that its alleged right of access was being impeded by a block wall near the Front Street entrance way and acquiesced to that state of affairs. It is further submitted that Relax embraced the non-vehicular use by utilizing the laneway for storage and allowing it to become blanketed by snow and inaccessible in the winter months.

[230] Based on the evidence taken as a whole, Relax submits that 205 has not established that Relax or its predecessor in title intended to abandon the right of way over the laneway.

[231] Jay Martin testified that when Relax purchased the property, he understood that Relax had legal access through the laneway, although the access was typically used at the time of purchase through the neighbouring property 0055.

[232] Mr. Martin testified to his use of the laneway to access the rear parking lot of his building. He also testified that his tenants accessed the laneway by vehicle and provided photographs evidencing same.

[233] I reject the evidence of Mr. Martin in respect of the use of the laneway by Relax to access the rear parking lot of the Relax building. The evidence of Jay Martin and Andrew Martin is vague and ambiguous on this point. Andrew Martin, in his evidence on Examination for Discovery, testified that he used the laneway once with a vehicle to see if a vehicle could pass through. He could not remember when that was, nor did he testify as to any of the circumstances surrounding that event. Jay Martin also testified that perhaps on one occasion a vehicle went through the laneway. Again, there was no specific evidence in this regard. I do not find their evidence credible, nor do I find it reliable in respect of Relax’s vehicular use of the laneway.

[234] Rather, I accept the evidence of Mr. Taylor, Mr. Keyzer and Mr. Pizzitelli as more credible and reliable as to no vehicles using the right of way to access to properties at the rear, including Relax’s property located at 180 Mississauga Street.

[235] As for the photographic evidence of the Honda Civic parked in the laneway, this photograph, according to the evidence of Jay Martin, was taken by Mr. Ian Anderson, who continued to be a tenant of Relax at the time of trial. The photographs were allegedly taken a year or a year and a half before trial. (That would place the time of the photographs at some time after May 2015). Mr. Anderson did not attend trial to give evidence in respect of the photographs that he allegedly took. There was no evidence as to how that vehicle came to be positioned in the laneway the way that it was depicted in the photographs at Exhibit 1, Tab 30. The only way that vehicle could have entered the laneway at the back end of the lane was after 205 removed the end boulder, according to the evidence of Mr. Pizzitelli, in May of 2015 at the time that Mr. Stanton did his survey.

[236] I find the block wall which really constituted no more than a line of six inch stones, some piled on top of each other, was in place at the Front Street entranceway of the laneway as early as 1990. Relax knew about the placement of these stones. There was no evidence that Relax attempted to operate a motor vehicle off Front Street to access the rear of 180 Mississaga Street. The only evidence is that on one occasion Andrew Martin, and maybe his brother Jay Martin, operated some vehicle through the laneway to see if it could be used as access. Apart from that tenuous evidence, Relax used the neighbouring Askett property with the acquiescence of the then owners until the property was sold in the Fall of 2012. The new owners erected a fence and at that time Relax accessed the back of its property either through the back of 205’s property via the Matchedash Street route or by entering 205’s property from the entrance way off Front Street, driving through to the back parking area owned by 205, turning left and then proceeding across the back of 205’s property to the back residential and commercial units at 180 Mississaga Street. Clearly, at this point in time Relax knew it was trespassing over 205’s lands. It had received complaints about not doing so. It continued to do so until 205 placed the boulders.

[237] The property purchased by Relax did come with rear parking which had been utilized by the then-current tenants at the time Relax purchased the property. Relax, through the evidence of Jay Martin, produced various leases which referred to access to parking spots at the rear of the property.

[238] There is no evidence that Relax’s tenants used the laneway by way of vehicles to access Relax’s rear parking lot.

[239] Relax submits that it cannot be said there has been any intention on the part of Relax or its predecessor in title to abandon the right of way. There was no need to clear the laneway during the winter months because ultimately vehicular access to its rear parking lot was available prior to May 2013. Relax submits that 205 has not established that Relax or its predecessors intended to abandon the right of way over the laneway.

[240] I have considered all of the evidence and the law regarding abandonment of an express right of way as set out in Kapcan.

[241] Abandonment is very much a question of fact. The onus of establishing the loss or extinction of an express right of way by abandonment or non-user rests upon 205, being the party asserting it. The only way in which a right of way can be extinguished by the act of the parties interested is by release, actual or presumed. In the absence of an actual release, non-user is essential to abandonment. However, non-user and nothing more is not sufficient to permit a conclusion of abandonment.

[242] When a right of way has its origin in an express grant, it is not lost by mere non user. There must be some intention to abandon this property right. The intention to abandon means that the person entitled to right of way has knowingly, and with full appreciation of his rights, determined to abandon it. I am not satisfied that 205 has established that in all of the circumstances Relax knowingly, and with full appreciation of its rights, determined to abandon the right of way.

[243] In some circumstances, evidence of non-user may lead to a finding of acquiescence on the part of the holder of title to the right of way. Such is not the case here. Non user will not have the effect of establishing abandonment unless a release can be implied from such non-user and the surrounding circumstances. I find that there is no implied release from such non-user and the surrounding circumstances in this case.

[244] All of the evidence bearing on the issues of non-user, acquiescence and abandonment must be considered. I have done so.

[245] Including the express right of way in a registered conveyance is evidence that abandonment was not intended by the owner of the dominant tenement or not presumed by the owner of the servient tenement. In the case at bar, Relax believed that it had a right of way (both for pedestrian and vehicular traffic) over the laneway. 205 presumed that it owned the laneway only to find that it did not, with the result that it obtained a Quit Claim from Keyzer company, 861.

[246] Having considered all of the principles and the evidence in this case regarding abandonment, I find that Relax had not abandoned its right of way over the laneway. I agree that all of the evidence and consideration of the legal principles do not support an intention by Relax or its predecessors entitled to abandon the right of way.

[247] I return to my finding that subject to the possibility of abandonment or other extinguishment of the right of way, the Parcel Register to the laneway should be rectified.

[248] I have found that there has not been any expiry of the right of way. Further, I have found that there is no abandonment of the right of way by Relax.

[249] Accordingly, for these reasons, it is ordered that:

(a) The Parcel Register for PIN 58667-0062 (LT) be rectified to show as being “subject to” the right of way referenced as RO1310756 in favour of PIN 58667-0056 (LT), which is acknowledged on the Parcel Register for PIN 58667-0056 (LT) as “Together With R01310756”;

(b) Directing the Land Registrar for the County of Simcoe to rectify the Parcel Register for PIN 58667-0062(LT) in accordance with subparagraph (a).

(ii) Has the right of way been extinguished as a result of it not being registered against the servient tenement?

[250] I have dealt with this issue and have found for reasons given on Issue (a) that the right of way to the laneway has not been extinguished even where it has not been registered against the servient tenement. Those same reasons apply here.

Validity of the Quit Claim Deed

[251] As an alternative remedy, Relax seeks an order to revert and vest the laneway to the last legal description showing ownership of the laneway being in 1882 and 1903, which were the last ownership documents of the laneway prior to the registration of the Quit Claim in 2006 by 205, and directing the Land Registrar to enter the servient interest on the properties thereto.

[252] 205 obtained title to the laneway (PIN 0062) by way of Quit Claim Deed from one of Jack Keyzer’s companies, 861906 Ontario Inc. on June 13, 2006. Prior to the Quit Claim Deed, the property was still in the Registry System and had not been converted to the Land Title System because there was no identifiable owner for the property in the 40-year chain of title. This fact is not in dispute.

[253] Relax submits that the Date of Retention Reports prepared by Teranet and filed at the Land Registry Office confirm the information contained in the historical title documents, namely, that there was no identifiable ownership for the laneway in the 40-year chain of title for PIN 0062. Further, the laneway was to be treated as a “community easement”. It is submitted that these documents are and were available from the Land Registry Office for review by 205’s title searcher or solicitor prior to the Quit Claim to 205.

[254] Powers of the court are qualified by reference to the indefeasibility of title that follows from registration. A purchaser only obtains the benefit of indefeasible title if he or she is a bona fide purchaser for value without notice. Spencer v. Salo, 2013 ONCA 98, at para. 54.

[255] Whether a purchaser had actual notice of competing interest in the property is a question of fact. The burden of proving the absence of notice is on the person alleging that he or she is a purchaser for valuable consideration without notice. The test is whether the registered instrument holder is in receipt of such information as would cause a reasonable person to make inquiries as to the terms and legal implications of the prior instrument. A person has actual notice if he or she is aware of the existence of a legal right. It is not necessary that the person have knowledge of the precise details of that right. Durrani v. Augier, 2000 CanLII 22410 (ON SC), [2000] O.J. No. 2960, at paras. 60-62; McCormick and Champanelli, supra, at paras. 44, 45 and 51.

[256] Relax submits that 205 and/or its solicitor knew prior to completing the Quit Claim in June 2006, that there was no identifiable owner for PIN 0062 (the laneway). It is also asserted that 205 and its solicitors knew that 861906 Ontario Inc. did not and had never owned PIN 0062. This was acknowledged by 861’s principal, Jack Keyzer.

[257] It is further submitted that 205 had actual notice of the existence of Relax’s legal rights in the laneway and therefore is not a bona fide purchaser for value. As such, the June 13, 2006 Quit Claim should be set aside and title to laneway be restored to the way it read immediately prior to the Quit Claim.

[258] 205 asserts that Relax does not have standing to seek an order to revert and vest the laneway to the last legal description showing ownership of the laneway as it was in 1882 in 1903. 205 relies upon s. 160 of the Land Title Act and contends that Relax is not an aggrieved person within the meaning of that section. Relax, while claiming to be aggrieved as a result of the failure to register its right of way over the laneway, it has not claimed to be aggrieved in any way by the registration by 205 as the owner of the laneway.

[259] I agree with the submissions on behalf of 205. I find the ownership of the laneway has no bearing whatsoever on the interest claimed by Relax. Relax has been found to have a valid claim to a right of way over the laneway. The actual ownership of the laneway has no impact on that determination, nor does it have any effect on the consequences of that finding. Relax has made no claim as to the ownership interest in the laneway. For the following reasons, I find that Relax does not have standing to challenge the validity of the Quit Claim. I find 205 has acquired indefeasible title to the laneway and the register should not be amended in any way to vary ownership for the following reasons.

[260] According to the evidence of Jack Keyzer and Frank Pizzitelli, since at least 1990, the laneway has been exclusively occupied and controlled either by 205, its predecessor in ownership, 638 or a related company, 861 which owned adjacent lands that were connected to the laneway through another lane running from the northwestern edge of the laneway (a different laneway leading to Matchedash Street).

[261] The principal of both 638 and 861 is Jack Keyzer.

[262] The evidence of Frank Pizzitelli, which I accept, is that at all material times, 205 understood it was purchasing the 205 property from 638 including the laneway.

[263] By virtue of ss. 4, 5(1) and 15 of the Real Property Limitations Act, R.S.O. 1990, c.L.15, a person can acquire adverse title to a property and extinguish any other claim to ownership to the property after exercising control or dominion over the property for a period of ten years. The Act imposes an obligation on the holders of legal title to enforce their rights within ten years after the possession of their property begins or, in the alternative, prevents the title holders from asserting such a claim, or defending against an adverse possessor, after the ten years has elapsed.

[264] I find that the exclusive possession of the laneway by 205 and its predecessor in ownership, either 638 or 861, meets the requirements of the Real Property Limitation Act in establishing a valid claim for adverse title. The Quit Claim executed by 861 on January 13, 2006, transferred valid title to 205 over the laneway. I find the registration in favour of 205 in respect of the laneway accurately reflects proper ownership in 58667-0062 (LT).

[265] 205 discovered in 2006 that it had not acquired legal title of the laneway by virtue of its purchase in 2004. There was no evidence to the contrary and Mr. Pizzitelli maintained his position through cross-examination.

[266] 861 was the only other party that might have a claim to an ownership interest in the laneway, and a Quit Claim was registered to ensure that 205 would be able to register its ownership interest. The laneway was occupied to the exclusion of all others for a period of 16 years, if not longer, at the time the Quit Claim was executed. Jack Keyzer, through his company 638, purchased the property in 1990. He also purchased the adjoining rear property through 861 at approximately the same time.

[267] Andrew Martin and Jay Martin did not provide historic evidence of access to the laneway prior to their acquisition of the Relax lands. I find that 205 and its predecessors in title have held possessory title to the laneway for many years, and from at least 1990. I find the exclusive possession of the laneway by 205 and its predecessors meets the requirements of the Real Property Limitation Act in establishing a valid claim for adverse title.

[268] The last discernable title holder over the laneway, Richard Rix, was the predecessor in title to the 205 lands. Mr. Rix obtained title to the laneway in 1892, in the same transfer by which he acquired title to 205’s lands. The 205 lands were next transferred with a right of way over the laneway. To date, neither Mr. Rix, nor anyone on his estate’s behalf has advanced a claim to ownership over the laneway. There was no evidence adduced by Relax of having identified anyone who could claim through Mr. Rix, or that any claim would be adduced as to ownership even if it were possible to locate anyone.

[269] Relax knew, or ought to have known from the time it purchased its property in 2008, that 205 was the registered owner of the laneway. It took no issue with the nature of the laneway’s ownership at that point or going forward until such time as the access issues arose some seven years later, after the Quit Claim was registered. During that entire period, 205 in all respects took on the responsibilities of a property owner regarding the laneway. I find there was no entity with a better claim for ownership of the laneway than 205.

[270] Relax submits that 861 had no interest in the laneway and relied on the evidence of Jack Keyzer to that effect. Relax submitted that the Quit Claim should be set aside and title to the laneway should be restored to the way it was noted in the May 6, 2002, Data Retention Report – that there is no certifiable ownership within the 40-year chain of title and the right of way is to be treated as a community easement.

[271] I find that despite this position, Relax has failed to produce any evidence whatsoever of the genesis of the Data Retention Reports, who prepared them, who authored them, what they mean, or what authority they have.

[272] I find Relax has also failed to explain what a “community easement” is in either a legal or practical sense, what access is contemplated under a community easement, or how the court would effect such an order. Further, there has been no evidence adduced by Relax that if such a designation were made, who would be responsible for the maintenance and upkeep of the “community easement”, who would be responsible if anyone was hurt in the laneway, and who would be the authority to insure any such occurrence.

[273] Lastly, Relax attacks the Quit Claim on the basis that 861 did not have an interest in the laneway that it could Quit Claim to 205. I do not agree.

[274] For the foregoing reasons, I find that the Quit Claim is valid and that 205 has a good and valid title to the laneway as described in PIN 58667-0062 in the Land Registry Office for the County of Simcoe.

(c) Is Relax’s claim statute barred?

[275] The transfer of the laneway to 205 was registered on June 13, 2006. 205’s title to the laneway was converted to Land Titles on January 24, 2011, at which time PIN 58667-0062LT was created to identify the laneway.

[276] Relax purchased its property on July 2, 2008, subsequent to the June 13, 2006 laneway transfer. At the time of the purchase, Relax knew, or ought to have known, that the right of way it claims was not reflected on title to the laneway.

[277] 205 takes the position that Relax brings its Application to rectify the parcel register more than two years after the date on which the purported omission was discovered. 205 asserts that Relax’s claims are statute-barred.

[278] I do not agree for the following reasons.

[279] Section 4 of the Limitations Act, S.O. 2002, c.24, Sched. B provides as follows:

Basic limitation period

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[280] Section 1 of the Limitations Act, S.O. 2002, defines a “claim” as follows:

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission;

[281] I find that Relax’s “claim” arose as a result of 205 placing the boulders in May of 2013. Relax issued its application on November 26, 2014, within the applicable two-year period.

[282] Relax relies upon Bell Canada Inc. v. White Admiral Ltd., 2011 CarswellOnt 11003, the court was asked to grant a declaration that an easement was valid and an order directing the Registrar for the Land Titles Office to rectify registration. In Bell Canada, the respondent owner of the property granted an easement to Bell Canada Inc. for a price of $5,000. The easement was registered in the Land Registry System, but not the Land Title System, as it should have been. In defence of the application, the respondent owner argued that Bell Canada’s application was barred by the Limitations Act as it had been brought more than six years after Bell Canada had actual notice that the easement was not registered properly. In granting the application and ordering that title be rectified, the court found that section 4 of the Limitations Act was not applicable. Hambly J. held:

[13] Bell has suffered no “injury loss or damage” for which it claims relief against White Admiral. Bell has a right to an easement over White Admiral’s land because White Admiral had actual notice of it. Bell seeks an order of the court declaring that it has this right. It also seeks an order that this right be registered in the Land Titles system which applies to White Admiral’s land. In my view the Limitations Act does not apply.

[283] I reject any argument that Relax brought its application out of time as it had actual notice that the right of way was not registered properly, at least since it purchased the Relax lands in 2008. I agree with the reasoning of Hambly J. where s. 4 of the Limitations Act was found not applicable.

[284] I have also found that Relax was within time to commence its application to remedy a claim, to remedy an injury, loss or damage that occurred as a result of an act or omission on the part of 205. That act was the placement of the boulders. Accordingly, I find that s. 4 of the Limitations Act is not applicable and 205’s application is not statute-barred.

(d) If Relax has a valid right of way, what use can Relax or its successors in title make of the right of way?

[285] Relax submits that the purpose of the right of way is for pedestrian and vehicular access by Relax and its tenants for all reasonable purposes ancillary to the commercial/residential use of its property. Relax asserts there is no other means to gain vehicular access to the rear parking lot of its property and the evidence on the ground suggests that vehicular traffic to and from Front Street along the laneway was intended.

[286] The right of way over the laneway is “a right of way at all times for all the usual purposes in common with others entitled thereto over, along and upon a lane giving ingress and egress to Gerald Alley…”.

[287] In this case, the grant is clear and unambiguous. The right of way is described as being for ingress and egress to Front Street (formerly Gerald Alley). There is no evidence as to the intent of the grantor when the right of way was created in 1882. The conveyance did not contain words describing the purpose, nor did it limit the use. Relax therefore submits that its right of way over the laneway was designed for both` pedestrian and vehicular access.

[288] The onus is on 205 to establish an evidentiary basis to limit Relax’s use of the right of way to pedestrian use.[^21]

[289] The circumstances existing at the time of the grant may also be looked at to construe the nature and extent of the rights conveyed. In the case of a general grant, as here, the permissible use is not limited to the original use. Although the owner of the dominant tenement cannot alter the type of use of the right of way beyond its original scope, the burden on the servient tenement can be reasonably increased so long as the use is of the same general nature, and it can reasonably be said to have been in contemplation of the parties at the time of the grant.[^22]

[290] Relax’s property is of mixed commercial and residential use. It was equipped with eight to ten parking spaces at the rear of the building which were not reserved. A deck was constructed at the back of the Brownstone Café. The construction of the deck reduced the available parking spaces by at least one or two spaces and possibly three. (Evidence of Jay Martin)

[291] Relax submits the laneway is approximately 10 feet wide. The right of way from Front Street through the laneway is the only access to Relax’s rear parking lot by vehicle. While there may not have been vehicles in 1882 when the right of way was first granted, it is submitted, but not based on any evidence, that passage by carts and carriages to the rear of Relax’s property from Gerald Alley would have been through the laneway.

[292] Further, it is submitted that the municipal drop curb at the laneway entrance from Front Street suggests that access along the laneway was intended for vehicles. It is submitted on behalf of Relax that evidence tendered at trial also confirms that a vehicle can safely travel through the laneway. I have rejected the evidence of Jay Martin and Andrew Martin who testified that perhaps on one occasion someone had driven a car through the laneway without particulars as to who, when or any details as to the route taken and the size of the vehicle. Their evidence on this point is critical and I have found it lacking in credibility and reliability. I have accepted the evidence of Mr. Taylor, Mr. Keyzer and Mr. Pizzitelli as consistent, credible and reliable evidence that no vehicles used the laneway to gain access to the rear of the Relax lands at least from 1990 until May, 2013. There is no evidence that a vehicle can safely travel through the laneway. There is evidence that at the entrance way to the laneway blocks have been in place, according to the evidence of Jack Keyzer, at least since 1990. Those blocks were located to prevent access through the laneway from the Front Street entrance. Those blocks were not placed in that location by 205. They were there since 1990 and were not removed by anyone. Further, the evidence is not in dispute that during the winter months the laneway is inaccessible and impassable.

[293] In the Kapcan case, an eight foot wide right of way described as “for all necessary purposes of ingress and egress” was found to be available for use by pedestrian or vehicle traffic.[^23]

[294] Relax cites the Ontario Court of Appeal decision in Smith v. Morris, 1935 CanLII 56 (ON CA), [1935] 2 DLR 780 at paragraph 8. In Smith v. Morris, the Court of Appeal found that the defendant’s easement, having been granted as accessory to a dwelling-house, and the fact that it was 10 feet wide, was intended for use by the defendant (if he so desired) to drive his vehicle from the road to where his dwelling stood. The court held that the defendant was entitled, if he can do so without injury to the plaintiff’s lands, to make the way feasible for a vehicle.[^24]

[295] In Peters v. Palmer, the court took judicial notice that the average width of a motor vehicle is about 6 feet and, accordingly, a driveway 12 feet wide was suitable for residential access.[^25]

[296] Relax submits that regard must also be had to the fact that the predominant idea is that the dominant tenement shall enjoy the easement granted not as a mere theoretical right on paper, but by as real physical enjoyment of the right conferred.[^26]

[297] 205 submits that if one considers the circumstances that surround the right of way as they exist currently, the use of the right of way must be restricted to pedestrian access only. For the following reasons, I agree with 205’s submission that the right of way to the laneway is restricted to pedestrian access only.

[298] Relax seeks to ground its claim to a vehicular right of way through the laneway in Instrument Number 1087 being a Deed to Robert Parkhill in September 1882, in which he was granted the right of way from George Wainman, the original owner of the laneway. The original right of way was described as being over a 10 foot by 65 foot strip of land that is illustrated as Part 2 of 51R-10536 now being a 9.2 foot by 65 foot laneway. Through a series of historical transfers, Relax now claims a vehicular right of way over Part 2 of 51R-10536 and the irregular wedged shaped parcel that adjoins it to the west, all described as the laneway. The purpose and/or use of the laneway is not specified in the grant.

[299] The authorities stand for the proposition that an easement constituted by expressed grant is to be interpreted according to the intention of the parties at the time of the grant, having regard primarily to the words of the grant itself, though in a case where the intention of the grant is not specifically noted in the words of the grant, the surrounding circumstances are also relevant as evidence to interpret the rights which are implied in each particular case.[^27]

[300] In determining the allowable range of use over the right of way, it is necessary to consider the circumstances that existed at the time the expressed grant of right of way and those same circumstances as they exist today.[^28]

[301] The original grant of right of way was made in September 1882, over a 10 foot by 65 foot strip of land. In 1887, the grant was extended to the irregular wedge-shape piece of land creating a right of way over the laneway. (See Succession of Ownership Chart, Plaintiff’s Supplementary Brief of Law, Tab 1, Robert Parkhill grant to Sarah Kinnon, Instrument Number 2715, dated November 16, 1887)

[302] The Reference Plan registered on title shows the laneway as 9.2 feet wide. Today, the laneway is not 10 feet wide. I accept the evidence of surveyor Mr. Stanton in this regard.

[303] There was no direct evidence to demonstrate the intention of the grantor at the time the grant was made. Accordingly, this court must look to the circumstances of the grant.

[304] The right of way is over a strip of land that is 9.2 feet wide and provides a single point of ingress and egress to the rear of Relax’s property. The grant for the right of way, in 1882 or 1887, could reasonably have contemplated the use of the right of way as a means of vehicular ingress and egress. At that time, the only mode of vehicular transportation was by cart or carriage. 205 submits that the width of the laneway at that time would scarcely, if at all, allow for the passage of a single carriage. There was no evidence in this regard. It is further submitted that two-way traffic would not be physically possible. It is further submitted that the reasonable use of the right of way for vehicular access requires the laneway to be used for two-way traffic. 205 asserts that the grantor could not possibly have intended to authorize two-way vehicular access to three separate property owners (and their tenants, invitees and patrons) over a strip of land that was less than 10 feet wide.

[305] 205 asserts that there was no authority in Ontario for the recognition of a historical right of way granting vehicular access over a laneway or other roadway that is less than eight feet wide. 205 submits that, in addition to any vehicular access over the laneway, that the laneway would have been used for pedestrian access as well which would have created the risk of injury if such access were coupled with vehicular use. It is argued that the laneway is simply not big enough to accommodate the unrestricted vehicle use sought by Relax today. It is submitted there is no evidence to suggest the rear of Relax’s building was not accessible by any means other than the laneway at the time of the grant. 205 submits that at the time the right of way was granted, Mississaga Street provided direct access to the property and two-way ingress and egress onto the lands. In light of the alternative vehicular access available to landowners at the time that the grant was made, it is submitted that the grantor would not have intended the right of way over the laneway to provide vehicular access to Relax’s property, given its limited size and physical restrictions. It is submitted that in all of the circumstances at the time of the grant, the grantor intended the right of way to be for pedestrian use only. Further, considering all of the circumstances surrounding the right of way as they exist currently, it is submitted that the use of the right of way must be restricted to pedestrian access only.

[306] I have considered all of the evidence and I find that the use of the right of way as it exists currently must be restricted to pedestrian access only.

[307] As it exists today, the laneway is 9.2 feet wide at its mouth abutting Front Street but the width is not uniform throughout. Near the Front Street end of the laneway, there is an access door to the pharmacy property. There is an overhang above the door that extends 0.93 metres into the laneway limiting the width of the laneway at that point to 6.92 feet. I accept the evidence of surveyor Mr. Stanton, when he testified in respect of the physical characteristics of the laneway. He referred to the survey which he prepared dated May 14^th, 2015, found at Exhibit 7, Tab 6. Not only was the width of the laneway at the Front Street entrance limited by the location of the roof and stoop belonging to the pharmacy building, the pharmacy building also extended 0.93 feet into the laneway, further limiting its width. Also, the laneway did not extend right up to the wall of 19 Front Street. There was a gap between the wall of the building and the limit of the laneway.

[308] Moving further west along the laneway, there is a utility pedestal located at the corner of the pharmacy building protruding into the laneway (evidenced by the symbol of a square box with a black square inside).

[309] At the western base of the laneway (farthest from Front Street), a hydro pole is located 1.87 feet from the southern edge of the laneway. The hydro pole is connected to an anchor cable which is fixed into the ground of the laneway. The symbol marking that anchor is a black triangle. The passable width of the laneway chokes to 7.55 feet and 7.64 feet at these points, respectively. These “choke points” must be passed in order to access Relax’s property. Mr. Stanton testified that these “choke” widths must be used as the reference measurements for the passable width of the laneway. Clearly, the width of the laneway is not “approximately 10 feet wide”. Rather, it is much less when these various obstacles are taken into account, including the location of the pharmacy building wall, its overhanging roof and doors opening onto the laneway.

[310] I find that the laneway, having a width of 6.92 feet to 7.55 feet, cannot be reasonably or safely used for one-way vehicular traffic. The exterior dimensions of most vehicles are too wide to safely fit through this opening and would cause damage to either the hydro pole, 205’s property, the pharmacy property, and/or the car itself.

[311] I accept Mr. Keyzer’s evidence that pedestrians walked through the laneway when it was accessible. However, he never saw any vehicles in that laneway. Mr. Keyzer testified that he owned a truck that was 8 foot, 6 inches wide, which he did not drive through the laneway.

[312] I find that if the laneway were suitable for vehicular travel to access Relax’s lands as Relax suggests, Relax and its tenants would have used the laneway to access their property. In fact, they did not. Instead, they travelled over the neighbouring property to the west (the Askett property) until they were blocked off by means of a fence erected by the new owners in the Fall of 2012. Instead of using the laneway at that point in time, Relax and its tenants and invitees decided to trespass over 205’s lands, either by taking the rear Matchedash route, or more clearly established in the evidence, by turning off Front Street into the entrance way of 19 Front Street, driving over that entrance way to the back of 205’s property where parking was located, turning left and travelling through 205’s parking lot to reach the rear of Relax’s building.

[313] Both Jay Martin and Andrew Martin testified that they knew they had no legal right to travel over 205’s lands and the Askett lands. Nevertheless, Relax did so without attempting to access its property through the laneway. I have rejected the evidence of both Jay Martin and Andrew Martin as neither credible nor reliable regarding the use of the laneway by way of vehicular access either by them or any tenant. I find that Relax, after the Fall of 2012, trespassed on 205’s lands because vehicular access through the laneway was neither safe nor viable. It was inaccessible and impassable during the winter.

[314] The unsuitability of the laneway is only made more apparent when one considers that it remains the only point of ingress and egress to the rear of Relax’s property. 205 argues that two-way traffic is required for the laneway’s use for vehicular access. Relax is not seeking to have the laneway utilized for two-way traffic as suggested by 205. Rather, any vehicles entering the laneway from Front Street will do so for the sole purpose of accessing Relax’s rear parking lot. Anyone entering in error can utilize Relax’s parking lot to turn the vehicle around and proceed back to Front Street. Relax submits that two-way traffic is not necessary for the reasonable use of the laneway as suggested by 205.

[315] 205 submitted that it was physically impossible for the laneway to accommodate two-way vehicular traffic and that the width of the laneway fell short of what was required by the City of Orillia’s zoning bylaw for a parking lot access driveway. 205 submitted that the City of Orillia ought to have been a necessary party to this action given the relief that Relax was seeking.

[316] Regardless of whether the laneway could not accommodate two-way vehicular traffic or single vehicular traffic, I find vehicular use is neither safe nor viable, I find that there is no way that the laneway can be used to accommodate the vehicular access Relax seeks. Relax seeks to use the laneway for parking to be used by its residential tenants and also its commercial tenants. One of its commercial tenants is the Brownstone Café which is a pub. The laneway is not lit. The use of the laneway by Relax, by its tenants and invitees at all hours of the day and night would create an unsafe situation further limiting the right of way to pedestrian access only.

[317] Further, I find that Relax’s proposed use of the laneway is also inconsistent with the right of way of the adjacent property owners over the laneway, which easements are similarly worded and were granted at the same time. The pharmacy property owner would theoretically be allowed to drive into the laneway from Front Street but would not be able to access either Relax’s or 205’s property at the end of the laneway and would have nowhere to go. There would not be ample space to turn a car around and the only means of egress would be for the driver to back out of the laneway, onto Front Street, blind to pedestrian traffic crossing the sidewalk. The pharmacy building and the 19 Front Street building are built almost up against the Front Street sidewalk. Either driving out or backing out of the laneway onto Front Street where vehicular and pedestrian access is shared over a less than seven foot laneway does not provide full visibility to pedestrians. I find that under these circumstances to permit shared pedestrian and vehicular use of the laneway would create the risk of injury to either pedestrians using the laneway or pedestrians using the sidewalk in front of 19 Front Street.

[318] For these reasons, I find that Relax’s use of its right of way over the laneway is restricted to pedestrian access only and not vehicular access. Any rectification of the Parcel of Register by the Land Registrar as I have previously ordered must contain the restriction that Relax’s right of way is restricted to pedestrian access only and not to be used for vehicular access.

(e) Does the Court have Jurisdiction to Rectify Title?

[319] I have answered this question in the affirmative. The court does have jurisdiction to rectify title pursuant to the Land Titles Act, RSO 1990, c.L. 5, s. 159 and s. 160, Sch. B.

(f) Is Relax entitled to damages and, if so, in what amount?

[320] Relax submits that it is entitled to damages in the amount of $61,234.78 representing lost rents and lost profits.

[321] Relax submits that in May of 2013, 205 unilaterally and without warning placed boulders along the laneway and Relax’s property precluding all vehicular access to the rear of Relax’s building. Since then, it is alleged that 205 has refused to remove the boulders pending a determination of the issues by this court.

[322] As a result, Relax claims it has sustained damages in the form of lost rents due to its inability to offer parking to tenants as it did before 205 blocked access to the laneway and Relax’s back parking lot. Relax submits that 205 had no right to prevent it from accessing the laneway by vehicle. Relax submits that 205’s actions were a callous disregard of its property rights and 205’s refusal to provide interim access was unreasonable.

[323] 205 takes the position that Relax has failed to prove its damages and no damages should be awarded.

[324] It should be noted that 205 moved the boulders in May of 2015 from along the laneway and Relax’s property line to a location entirely on 205’s property. Further, the boulder at the westerly end of the laneway was also moved to a location on 205’s property to buttress 205’s retaining wall at the rear of its property. The boulder at the Front Street entranceway to the laneway remained and still remains in place.

[325] Relax’s claim for damages was presented by way of a summary marked as Exhibit 3A. That summary totals a claim for damages in the amount of $61,234.78. Jay Martin presented evidence at trial in respect of these various damage claims. He did not present any documentary evidence regarding these claims. Neither did any other witness testify on behalf of Relax in support of these damages as claimed. I will deal with the damage claims as they appear in Exhibit 3A.

Item 1 – Abatement

[326] The amount being claimed is $6,000. However, Relax admitted not having paid this amount. Further, the corporation seeking the abatement is one that is owned by the Martins as is the corporation alleging the damages. I find on the evidence of Jay Martin that there was no evidence of any communication of abatement being sought or given, no emails, faxes, letters, et cetera. 205 submits this claim must fail. I agree. This claim is nothing more than a bald assertion that an abatement was sought by Brownstone Café without any proof. I award zero in respect of this claim.

Item 2 – Lost Revenue Relating to Annual Increase

[327] This claim related to a commercial unit number one. There no evidence presented of any negotiation in respect of an increase. There was no lease presented to the court in evidence for the period for which the lost revenue was sought. Again, notwithstanding the evidence of Jay Martin that business between the two corporations was conducted on a professional basis, I find this is not the case. These corporations were owned by the Martin brothers. There was no evidence of even a single payment or cheque for any monthly amount that would support the existence of a lease, let alone the loss of an increase. There was also no evidence presented as to where the figure of 2.25 percent inflation increase comes from. Jay Martin testified that it came from the Landlord and Tenant Board guidelines. However, no evidence was presented regarding those guidelines and the basis for the 2.25 percent inflation increase. Further, the claim runs from January 1, 2014 to October 31, 2016. There was no evidence that Relax ever took steps to ever seek a 2.25 percent inflation increase for rental. Although the sum of $2,970 is claimed, there was no supporting documentation. I find that this claim has not been proven and also must fail. I award zero as well.

Items 3 and 4 – Lost Rents

[328] There is a claim for $22,035 for lost rents for commercial unit 2 based on the position that no tenant was occupying the commercial unit 2 from May 1, 2013 to May 31, 2014, because of lack of parking. In respect of Item 4, again for commercial unit 2, there was a claim for lost rents relating to an alleged rent reduction from $1,695 to $1,000 a month including HST for 30 months – June 2014 to November, 2016 (30 months x $695) for an for a claim in the amount of $20,850.

[329] Once again, there was no evidence produced of any efforts made to try and mitigate damages. Jay Martin testified that Relax did not list the premises with anyone nor did Relax seek to lease any parking spaces that it acknowledged were close to the units.

[330] Also, Relax did not produce any evidence of attempts made to mitigate its loss by listing the properties for lease with any realtors. Relax only spoke to two realtors, neither of whom were called to give evidence.

[331] Further, there was also evidence introduced by 205 through Exhibit 4. During the period that losses of rent were being claimed by Relax, Relax had changed the use and in fact expanded its commercial operation at Brownstone Café. It became a pub. This fact was acknowledged by Jay Martin on cross-examination but was not addressed by him in his examination in-chief. I find that the failure to produce any evidence to support this claim and the evidence of Exhibit 4 (the posting dated July 11, 2013 from the Orillia Economic Development News) regarding transforming and renovating the former Metro Bar into a pub.

[332] I find the evidence of Exhibit 4 effectively contradicts the loss claimed. To the contrary, the evidence of Exhibit 4 is totally inconsistent in respect of loss of rents or loss of business or loss of profits. For these reasons, I find that Relax has failed to prove the damages claimed at items 3 and 4. I dismiss these claims and award zero.

Items 5 and 6 – Lost Revenue Relating to Annual Increase

[333] Once again, I find that Relax presented no evidence to support its claim for damages in respect of items 5 and 6 being lost revenues claimed relating to the annual increase for commercial unit 2 and residential unit ‘A’. Jay Martin in cross-examination could not provide evidence with respect to where the percentage increase sought came from. Further, there was no evidence of anyone ever being given notice of a rent increase and no evidence of what the vacancy rate in Orillia might otherwise be that could possibly explain the ability to seek and obtain the increase. I find there was a total failure to produce any such evidence supporting Relax’s claims for items 5 and 6. I find these claims have not been proven and they are also dismissed.

Items 7, 8 and 9

[334] These claims relate to lost rents and revenues regarding residential unit ‘B’.

[335] Again, in respect of these items in Exhibit 3A, there was no evidence of vacancy rates that would suggest whether parking was available or not or that an empty residential unit from the rental rates sought by Relax would be leased immediately. Relax is claiming four month’s rent without any evidence. Regarding item 9, there was no evidence of why rent was reduced from $900 to $850 a month. There was no evidence of negotiation of amounts, no evidence of payment of reduced amounts, nor was there any evidence from the tenant who apparently was there until November of 2016 at a point in time when the matter proceeded to trial.

[336] I find that Relax has failed to prove its damages in respect of its claims for items 7, 8 and 9. As a result, these claims are dismissed and no damages are awarded.

[337] In summary, I find that Relax has failed to prove its damages as claimed in the amount of $61,234.78. Accordingly, Relax’s claim for damages in total is dismissed.

CONCLUSION

[338] For these reasons, there shall be an order:

(a) rectifying the Parcel Register for PIN 58667-0062 (LT) to show as being “Subject To” the right of way referenced as RO1310756 in favour of PIN 58667-0056 (LT), which was acknowledged on the Parcel Register for PIN 58667-0056 (LT) as “Together With” “RO1310756”; restricting the right of way to pedestrian access only;

(b) directing the Land Registrar for the County of Simcoe to rectify the Parcel Register for PIN 58667-0062 (LT) in accordance with (a) above;

(c) a declaration that the purpose and scope of the right of way is for pedestrian access only by Relax, its tenants and invitees for all reasonable purposes ancillary to the commercial/residential use of the Relax lands;

(d) compelling 205 to remove forthwith the boulder situated on PIN 58667-0062 (LT) at the front entranceway of the laneway at 205’s own expense;

(e) dismissing Relax’s claim for damages in its entirety;

(f) prohibiting Relax, its agents, servants, tenants, employees, officers and directors from trespassing across 205’s property; and,

(g) a declaration that 205 has good and valid title to the land described in PIN 58667-0062 in the Land Registry Office for the County of Simcoe, subject to (a) above.

[339] There shall be no declaration that 205 has an easement or right of way over a strip of land on the rear northerly 10 feet of property owned by Relax, being PIN 58677-0056 for the purposes of access and wintertime piling of snow. Although evidence was given in respect of snow removal in that area, I am not satisfied that 205 is entitled to any easement or right of way over Relax’s lands for that purpose. The parties can make the necessary and appropriate snow removal arrangements as between them.

[340] As for costs, the parties have agreed that costs are to be determined by way of written submissions. Relax shall serve and file with my judicial assistant its cost submissions within the next 10 days from the date of these Reasons. Those cost submissions shall consist of a short and concise summary no longer than two pages, a cost outline, draft Bill of Costs and supporting documentation and any relevant authorities. Within 10 days thereafter, 205 shall serve and file with my judicial assistant the same documents. If any reply is required, counsel for Relax shall serve and file reply materials within five days thereafter.

DiTOMASO J.

Released: August 29, 2017

[^1]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 4, page 2 [^2]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 7 [^3]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 15 [^4]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 12 [^5]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 13 [^6]: Trial Exhibit #5 and Defendant’s Trial Brief, Tab 7; Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 3 [^7]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 15 [^8]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tabs 14-15 [^9]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 3 [^10]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab17 [^11]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 18 [^12]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 17 and 19 [^13]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 3 [^14]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 8 and page 2, Tab 11 [^15]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 11 [^16]: Trial Exhibit #1, Plaintiff’s Brief of Documents, Tab 10 [^17]: Exhibit Number 1, Plaintiff’s Brief of Documents, Tab 4, page 2 [^18]: Hoggarth v. MGM Farms and Fingers Ltd., supra [^19]: 923424 Ontario Ltd. v. 1695850 Ontario, supra [^20]: 923424 Ontario Ltd. v. 1695850 Ontario, supra, at para. 19 [^21]: West High Development Ltd. v. Veeraraghaven, 2011, CarswellOnt. 485 (ONSC) at para.100 [^22]: West High Development Ltd. v. Veerarahaven, supra, at para. 87 [^23]: 2108133 Ontario Inc. v. Kapcan Foods Ltd., 2009 CarswellOnt. 1218 (ONSC) at paras 2, 4 and 21. [^24]: Smith v. Morris, supra, at para. 13. [^25]: Peters v. Palmer, 2000 CarswellOnt, 2364 at para 35. [^26]: West High Development Ltd. v. Veeraraghaven, supra, para 93. [^27]: West Hill Development Ltd. v. Veeraraghaven, supra [^28]: Smith v. Morris, supra

INTRODUCTION

THE PROCEEDINGS

THE PARTIES AND THEIR CLAIMS

OVERVIEW

THE EVIDENCE

Visual Presentation

Evidence of the Witnesses

Evidence of Witnesses for Relax

The Evidence of Shirley Partridge

Witnesses for the Defendant 205

Evidence of Jack Keyzer

Evidence of Paul Taylor

Evidence of John Chester Stanton

Evidence of Frank Pizzitelli

Read-ins from the Examination for Discovery of Andrew Robert Martin Held March 25, 2015

ISSUES

POSITIONS OF THE PARTIES

Position of the Plaintiff Relax

Position of the Defendant 205

ANALYSIS

(a) Does the Plaintiff Relax have a valid and subsisting right of way over the laneway?

(b) Has the Right of Way Expired? If not, has the right of way been extinguished?

The Statutory Scheme

(i) Abandonment

(ii) Has the right of way been extinguished as a result of it not being registered against the servient tenement?

Validity of the Quit Claim Deed

(c) Is Relax’s claim statute barred?

(d) If Relax has a valid right of way, what use can Relax or its successors in title make of the right of way?

(e) Does the Court have Jurisdiction to Rectify Title?

(f) Is Relax entitled to damages and, if so, in what amount?

Item 1 – Abatement

Item 2 – Lost Revenue Relating to Annual Increase

Items 3 and 4 – Lost Rents

Items 5 and 6 – Lost Revenue Relating to Annual Increase

Items 7, 8 and 9

CONCLUSION

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 4