CITATION: Carpenter v. Doull-MacDonald, 2017 ONSC 7560

COURT FILE NO.: CV-16-560545

DATE: 20171219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CAROL CARPENTER

Applicant

– and –

CYNTHIA DOULL-MACDONALD

Respondent

Robert Kalanda for the Applicant

Sarah W. Corman and Hilary Brown for the Respondent

HEARD: October 24, 2017 and December 11, 2017

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] The Applicant, Carol Carpenter, owns a property municipally known as 11 Ferncroft Drive, Toronto. The adjoining property, 15 Ferncroft Drive, is owned by the Respondent, Cynthia Doull-MacDonald, who purchased it in 2015 from William Tryon, who is a witness in this application. In May 2016, Ms. Doull-MacDonald built a fence slightly inside her property line between 11 and 15 Ferncroft Drive. In this Application, Ms. Carpenter seeks an Order requiring Ms. Doull-MacDonald to remove the fence, which she submits encroaches on a prescriptive easement that she submits benefits 11 Ferncroft Drive. Ms. Carpenter also claims damages because she alleges that Ms. Doull-MacDonald injured the mature oak tree on her property by removing a large limb that extended into Ms. Doull-MacDonald’s property.

[2] For the reasons that follow, I dismiss Ms. Carpenter’s application.

B. Factual Background

1. The Passageway Dispute

[3] In July 1946, Mr. Tyron purchased 15 Ferncroft Drive for a family home for his wife and their children. Mr. Tyron, who is a veteran of World War II (Canadian Air Force), is now 96 years old, and he is living in a retirement home. He lived at 15 Ferncroft from 1946 to 2015 (69 years.).

[4] In 1947, Ms. Carpenter’s father, Douglas Langtree, another veteran of World War II (Canadian Army) purchased 11 Ferncroft Drive, the property immediately to the south of Mr. Tyson’s property. Mr. Langtree lived there until his death in 2010. His first wife, Ms. Carpenter’s mother, passed away in 1993, and Mr. Langtree twice remarried. On January15, 2015, after her father’s death, Ms. Carpenter became the registered owner of the property. She does not live at the property, but rather she resides at her own home, which she purchased in 1984. Ms. Carpenter’s son, Brent Carpenter, now lives at 11 Ferncroft Drive.

[5] During her childhood, Ms. Carpenter lived at 11 Ferncroft Drive, and she left that home when she was married in 1974. She returned when the marriage ended in 1976, and she moved out permanently when she remarried in 1984.

[6] The lots on the east side of Ferncroft Drive, including 11 and 15 Ferncroft Drive, were all developed by a builder in the 1940s. The lots and house are all about the same size, and they are all laid out in a similar fashion. On each property, on the south side of the house, there is a passageway that provides access to the backyard. The passageway adjoins a narrow strip of land that belongs to the adjoining property, but the small strip does not provide access to the backyard of the adjoining property.

[7] The registered deeds to the properties and the surveys of them do not refer to any easements. Each property in the row of properties gains access to its own backyard by a passageway on the south side of the house, which adjoins a small strip of the neighbour’s land .

[8] Thus, between 11 and 15 Ferncroft Drive, there is a passageway to the backyard of 15 Ferncroft Drive. The passageway and the adjoining strip of land is 11.8 feet (3.16 metres) in width. The property line between the properties runs through the passageway and the adjoining lands dividing the distance between the houses such that there is 1.0 feet from the north wall of 11 Ferncroft Drive to the property line with 15 Ferncroft Drive.

[9] The similarly configured passageway to the backyard of 11 Ferncroft Drive is on the south side of the house between 9 and 11 Ferncroft Drive.

[10] As the evidence below of Mr. Tyron will reveal, from time to time, the passageway to the backyard of 15 Ferncroft Drive was gated by a gate affixed to the parallel walls of the two homes. In the backyard, there is a fence on the property line that divides the backyards of 11 and 15 Ferncroft Drive, but, until recently, the fence did not extend beyond the backyard to enter the gap between the houses.

[11] The Langtree family would use the passageway and the adjoining lands between 9 and 11 Ferncroft Drive to go to their own backyard, and the family would use the passageway between 11 and 15 Ferncroft Drive to clean windows and eaves troughs, to maintain the roof, and the gas line on the north side or face of their house. From time to time, the members of the Langtree family would simply open the gate to gain access to the north side of their property where they owned the small strip of land that adjoined the passageway.

[12] At the time when Messrs. Tyron and Langtree purchased their respective properties there was in force a Right of Entry By-law, namely Township of Scarborough By-Law No. 3302, which was replaced in 1973 by Borough of Scarborough By-Law No. 15337.[^1]

[13] By-Law No. 3302 provided as follows:

An owner or occupant of any building, or the agent of any employee of such owner or occupant, may enter upon any adjoining land for the purpose of making repairs, alterations, or improvements to such building but only to the extent necessary to effect such repairs, alterations, or improvements and subject to the approval of the building inspector.

[14] Borough of Scarborough By-Law No. 15337 provided:

The owner or occupant of a building, fence or other structure or the agent or employee of such owner or occupant may enter upon any adjoining land for the purpose of making repairs, alterations or improvements to such building, fence or other structure but only to the extent necessary to effect such repairs, alterations or improvements.

[15] Mr. Tyron and Mr. Langtree were friendly and respected each other for their war time service. Mr. Tyron testified that after his purchase, he did not object to the use being made by the Langtree family of the passageway between the houses, which he thought happened once or twice a year. There were no conversations between Mr. Tyron and Mr. Langtree about the use of the passageway, and Mr. Tyron did not expressly grant the Carpenter family permission to use the passageway. There was no written or oral agreement about the use to be made of the passageway. Mr. Tyron did not believe that he had a right to restrict access to the passageway, but he did not believe or understand that there was an easement on his own property. In his cross-examination, Mr. Tyson testified:

23. Q: That, that's fine. So, if the owner of 11 Ferncroft, so Mr. Langtree or other members of his family, perhaps, if they wanted to access the north side of their property...

A. They had free accessibility. I didn't block it off.

24: Q. Okay

A. Let me clarify. In the first year, 1946, I not only inherited a new wife, I also inherited her little dog, a blond cocker spaniel. And my father-in-law was looking after it until we moved in, but then turned it over to us. It was a long road, so I had to fasten it to the, the, that that back door, so the dog could use the backyard when he needed. Well, one day, that dog managed to get loose, and ran out onto the road. My wife had to out and get it. He could have been killed by a car. She says “You got to do something.” I says, “Obviously, I’m going to have to install a gate back there,” right? And this is two years before [Mr. Langtree] ever got the house. So, I guess I approached him and said, “I got to put two by four against your wall and one against my garage, in order to support a gate. Now, he was okay with that, no objection. So, I had, I installed, a wooden gate .with just slats …. So, and it was strictly a latch type so that, the neighbor at 11 had access at all times, and the service people could get through because they just had to lift the latch and walk through. But then, eventually, when Doug Langtree took over the property, he came over one day and says ….”That gate is making a noise on my wall every time some serviceman carelessly flips it open.” I said, “Well Doug, I found an old heel off a shoe, and I glued it onto that wall so that … it never made any noise again, so I guess Doug was satisfied ….

26. Q. Okay. Gone by 2008, thank you. So, you had, you had commented that the Langtrees, or the, the owners of 11 Ferncroft had free access to the gate and the pathway...

A. Absolutely. And most important, the servicemen. They could service my hydro, and the, the gas metre on the side of the house.

27. Q. Okay.

A. They often had to service that.

28. Q. Okay, so my, my question, my question for you is, in, in, in the time living there, did you ever see the Langtrees use that pathway?

A, Oh, certainly. They had to clean their windows on the side of their house. And they needed to clean their eavestrough. The only way they could get access to cleaning the eavestrough was through there.

30. Q. Can you say roughly how often they would make use, they would make use of this pathway? Once a day? Once a week?

A. I, I imagine probably once a year, just to clean the windows, I’d say. But they also I think their air conditioning line on, on their house, although the unit was in the backyard, the pipeline run across their wall in between my house and theirs, along their wall. I think maybe it went in through their dining room or something. I’m not sure.

31. Q. Now, when you mentioned, again when you mentioned that they had, the Langtrees had free access to use that path area, was there any formal agreement between yourselves and the Langtrees?

A. No.

32. Q. Anything in writing? Any formal agreement without terms?

A. Nothing whatsoever.

33. Q. Nothing whatsoever. So, I guess just to summarize then, you'd agree the Langtrees could enter and use this pathway whenever they wanted?

A. That is absolutely correct, yes.

81. Q. Was there ever a gate [between the Tyron House and the house at 17 Ferncroft?

A. Where?

82, Q. Between 15 Ferncroft and 17...

A. And 17?

Q. Yeah.

A. Yes, he installed a, a gate there. And you want a...

Q. Just...

A. ...description of the gate?

Q. Sure.

A. The gate, I would say, is about at least five feet high. It was a steel gate, and it had fastened to my wall and his garage. But he put a padlock on it. So, I went to him, objecting. I says, "I'll go after the township if I have to get that··to get it removed." But I says, "You can keep the gate, but take the padlock off. It's got to be accessible for servicemen, and for me to get through and service my window," and so on. He replied to me, he says, "The whole thing, the reason I had that on is that people had been broken into my house, into the basement," he says. So, so that's the reason..." -- I, I says, "Well, that's unfortunate, but you can't lock that gate." So, he removed the padlock.

123. Q. So you didn’t … see Ms. Carpenter or Mr. Langtree very often in the area between 15 and 11 Ferncroft Dr.?

A. No, that’s right.

124. Q. Okay.

A. And, I mean, let’s face it, probably the only, would be used once a year or something.

Q. Okay. Did you ever have a conversation with Mr. Langtree or Ms. Carpenter about that area in between 15 Ferncroft and 11 Ferncroft Drive?

A. No, not really.

126 Q. Okay. Do you know, early on, after Mr. Langtree moved in to 11 Ferncroft Drive, did he ever request, you know, permission to come on to your property, if he ever needed to use, or to attend to the air conditioner line?

A. No, he didn't need any permission from me. I wouldn't deny him permission.

127. Okay. So he knew that you – he would get permission from you, if he asked you?

A. That’s correct.

128. Okay. But I want to make a, you know, clarify something, and you know, this is a bit of a confusing question, so bear with me. But would you agree with me that there’s a difference between being neighbourly and granting permission to a neighbour to come on to your property? That’s one way of going about it. And the other is allowing your neighbour to use your property as if it’s their own. Are those two things different to you?

A. Well, it depends, I told you. I don’t consider that anybody had complete use of my property. They didn’t that wasn’t part of the ownership.

151. Q. I just wanted to, to confirm with you, in your view, would you, did you feel you had the right to block off access for Mr. Langtree, if you decided you wanted to at some point?

A. No, I did not figure I had any right to block off access. ...No more than I had any right to block access to service people getting through to service my property.

[16] On November 27, 2000, 11 Ferncroft and 15 Ferncroft, which had been registered under the [Registry Act],[^2] were respectively registered under the Land Titles system as “Land Titles Conversion Qualified.”

[17] On July 15, 2015, Mr. Tyron sold 15 Ferncroft Drive to Ms. Doull-MacDonald. She lives there with her daughter Hannah Tsim.

[18] In September 2015, Ms. Doull-MacDonald re-installed the gate that at one time had been affixed to the walls of both 11 Ferncroft Drive and 15 Ferncroft Drive and which had been removed by Ms. Carpenter in 2015. Ms. Doull-MacDonald had obtained permission to re-install the fence from Ms. Carpenter’s husband and son, but this permission apparently did not come to the attention of Ms. Carpenter, who stridently complained about what she regarded as a trespass to her property. Ms. Carpenter detached the fence post affixed to her home.

[19] For present purposes of a claim for a prescriptive easement nothing turns on the events associated with the removal of the gate. The events, however, explain why there is animosity and intransigence between the parties over and above the norms of litigants but consistent with the norms of neighbours who are not neighbourly.

[20] In May 2016, Ms. Doull-MacDonald wrote Ms. Carpenter to advise that she planned to build a wooden fence between the properties. Ms. Carpenter’s lawyer responded that the Ms. Carpenter had the right to use the passageway, but he said that she would co-operate to ensure that any fence met both parties’ needs.

[21] Ms. Doull-MacDonald, however, did not engage in further correspondence, and she had a wood fence constructed approximately 13 feet into the gap between the properties. The fence is inside Ms. Doull-MacDonald’s property line. She retained a surveyor to stake the property before the construction of the fence, and the fence was constructed in accordance with relevant codes and by-laws. She located the fence 14 inches from 11 Ferncroft Drive. The by-laws require a distance of 12 inches.

[22] On September 13, 2016, Ms. Carpenter brought an application for: (a) a declaration that Ms. Carpenter holds a permanent easement over the passageway between 11 and 15 Ferncroft Drive; (b) an order rectifying the land registry to accurately reflect the easement; (c) an order requiring Ms. Doull-MacDonald to remove the fence currently encroaching on the easement; and (d) an order declaring that Ms. Doull-MacDonald and any successors in title, are not entitled to erect fencing on the passageway or otherwise restrict Ms. Carpenter's access.

[23] Although Ms. Carpenter claims an easement over the passageway between 11 and 15 Ferncroft Drive she denies that there is any easement over her passageway between 9 and 11 Ferncroft Drive.

2. The Tree Dispute

[24] A mature red oak tree (quercus rubba) grows on Ms. Carpenter’s property. The tree is within her property; i.e., it is not a tree that straddles the boundary line between the properties. A large limb of the tree extends into Ms. Doull-MacDonald’s property.

[25] In October 2016, after this application had been commenced, Ms. Doull-MacDonald retained an arborist to examine two trees on her property. The arborist noticed that the limb of the red oak tree overhung onto Ms. Doull-MacDonald’s property and touched the roof of her house. He recommended that the tree extending into the property be pruned.

[26] On October 7, 2016, without notice to Ms. Carpenter and without having obtained a license from the City of Toronto, a contractor retained by Ms. Doull-MacDonald removed and disposed of the extending limb of the tree. Reaching over from Ms. Doull-MacDonald side of the backyard fence, her contractor accessed the tree and pruned the tree as far as the property line. The pruning left a stub that could not be removed without access to 11 Ferncroft Drive the limbs and branches of the tree that were pruned were disposed of.

[27] Jack Radecki, an arborist, Ms. Carpenter’s expert witness, opined that the tree had been injured but acknowledged that the tree was in good health. He said that the aesthetic quality and value of 11 Ferncroft Drive had diminished by the damage caused to the tree and that the diminished value of the tree was $10,500.

[28] Laura Storozinski, another arborist, Ms. Doull-MacDonald’s expert witness, examined the tree and opined that the pruning did not injure the tree. In her report, she stated that the branch was pruned in accordance with accepted arboricultural standards. She noted that under the City of Toronto Private Tree Bylaw,[^3] pruning a tree in accordance with good arboricultural practice to maintain tree health does not require a permit, and she opined that the by-law did not interfere with a property owner’s rights to maintain his or her property in a safe condition.

[29] Ms. Carpenter submits that even if Ms. Doull-MacDonald was entitled at common law to remove overhanging branches of a neighbour’s tree from her airspace, which is not admitted, such actions were still subject to municipal regulation and Ms. Doull-MacDonald did not comply with City of Toronto's Private Tree By-Law,[^4] which prohibits any person from causing an injury to a tree without a permit. She claims $10,300 for the diminished value of the tree comparing its value before and after the limb was removed.

C. Legal Background

1. Introduction

[30] In the case at bar, the legal and factual issue is: Did the Langtree family lawfully take an ownership interest in Mr. Tyron’s passageway?

[31] As a matter of property law, adverse possession and prescriptive rights are in company with the law of gifts, the law of finders, the law of salvage, the law of abandonment, the law of bailment, the law of licenses, the law of fishing, the law of ownership of wild animals (ferae naturae), the law of choses in action, the law of fixtures, and the law of incorporeal hereditaments. These areas of the law involve profound questions about the legal nature of ownership and of possession of property, where property ranges from chattels to fixtures to real property, from moveables to immovables, and from the tangible to the intangible.

[32] In the case at bar, the law of property is complicated in part because it involves the profound question of when it is lawful to take what belongs to someone else. The law of prescriptive and possessory rights to real property is complicated in part because when it is lawful to take ownership in somebody else’s property is a fact intensive determination. And the law in this area is further complicated because when it is lawful to take an ownership in real property that belonged or belongs to someone else may intersect with the law of contract and the law of tort and with statutory provisions that regulate title to land.

2. Prescriptive Rights to Claim an Easement

[33] An easement is an incorporeal hereditament, being an inheritable, non-possessory ownership interest in land. It is a right of usage over a property, which is described as the servient tenement that is annexed to a parcel of land, which is described as the dominant tenement.[^5]

[34] Having an easement permits the owner of the dominant tenement to require the owner of the servient tenement to suffer some use on that land.[^6] Easements may be positive or negative. A positive easement grants to the owner of the dominant tenement the right to use the land of the servient tenement in a particular way that would, in the absence of the easement, be a nuisance or trespass.

[35] There are four major requirements for or characteristics of an easement.[^7]

[36] First, there must be a dominant tenement that enjoys the benefit of the easement, and a servient tenement that carries the burden of the easement; the grantee of the easement must have an estate or interest in the dominant tenement at the time of the grant.[^8] With an exception for some statutory easements, easements do not exist “in gross”, which means that an easement must have an identifiable dominant tenement.[^9]

[37] Second, the dominant and servient tenements cannot be owned by the same person.[^10]

[38] Third, the easement must accommodate, that is, better or advantage, the dominant land. It is not enough that an advantage has been conferred to the owner of the dominant property making his or her ownership more valuable or providing a personal benefit to him or her; rather, for there to be an easement, the right conferred must serve and be reasonably necessary for the enjoyment of the dominant tenement.[^11] A benefit personal to the landowner of the dominant tenement that does not benefit his or her land cannot constitute an easement.[^12] The requirement that easement must be reasonably necessary for the enjoyment of the dominant tenement serves to emphasize that there must be a connection between the easement and the dominant tenement, as opposed to a personal right.[^13]

[39] Fourth, the easement must be capable of forming the subject matter of a grant, that is, it must be of a type recognized by the law, be defined with adequately certainty, and be limited in scope.[^14]

[40] As adjusted by the Land Titles Act,[^15] discussed below, a prescriptive easement may be established in two ways under the [Real Property Limitations Act],[^16] and a third way pursuant to what is known as the doctrine of lost modern grant. At common law, prescription was based on the legal fiction that if there were 20 years of uninterrupted use by the owner of the dominant tenement, it could be presumed that there had been a grant of an easement and that the grant had been lost.[^17]

[41] The relevant provisions of the Real Property Limitation Act are set out below:

31. No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

32. Each of the respective periods of years mentioned in sections 30 and 31 shall be deemed and taken to be the period next before some action wherein the claim or matter to which such period relates was or is brought into question, and no act or other matter shall be deemed an interruption within the meaning of those sections, unless the same has been submitted to or acquiesced in for one year after the person interrupted has had notice thereof, and of the person making or authorizing the same to be made.

[42] Section 31 of the [Real Property Limitations Act] sets a 20-year period or a 40-year period for the creation of prescriptive easements. The period of alleged prescriptive use is specified to be the period immediately before the commencement of an action.[^18] For an easement created by the doctrine of lost modern grant, the duration of use does not have to be a 20-year or 40-year period immediately preceding the bringing of an action.[^19] The doctrine of lost modern grant establishes that where there has been 20 years of uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfill the requirements of prescription, the law will adopt the legal fiction that such a grant was made.[^20] The nature of the enjoyment of the land necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under a statute of limitations.

[43] To establish a prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open and peaceful use of the land, without objection by the owner.[^21] To acquire an easement by prescription under a statute of limitations or under the doctrine of lost modern grant, the claimant’s use of the land must be “as of right” or, as described in the old authorities, “nec vi, nec clam, nec precario”—“without violence, without stealth (secrecy), without permission”.

[44] To say that the use of the easement must be “as of right,” is to say that the enjoyment of the easement is not just permissive (i.e., not just a licence) and the owner of the dominant tenement must actually manifest an ownership right; i.e., an entitlement to use the easement.[^22] A claimant may rely on the use of predecessor owners to make up the requisite period of “as of right” use.[^23]

[45] During the 20-year period under the [Real Property Limitations Act] or pursuant to the doctrine of lost modern grant, the owner of the servient tenement’s oral or written consent or permission defeats any claim for a prescriptive easement.[^24] During the 40-year period under the Real Property Limitations Act, a written but not an oral consent will defeat any claim for a prescriptive easement.[^25]

[46] The Ontario Law Reform Commission Report on Limitation of Actions stated that “as of right” means that the claimant must show that he or she enjoyed the easement “as if entitled to it.”[^26] In the English case of De La Warr v. Miles,[^27] Brett, L.J. said that “as of right” meant “that he who asserts a prescriptive right claims as having a right to do it without the Lord’s permission, and that he has so done it without that permission.”[^28] The Ontario Law Reform Commission in its report, states at p. 143:

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

[47] The theory behind a claim for an easement based on prescription under a limitations statute or under the doctrine of lost grant is that the evidence establishes that the owner of the servient tenement has with knowledge consented or acquiesced to the establishment of an incorporeal ownership interest in land by the owner of the dominant tenement as opposed to licensing the use of the land without conferring an ownership interest in it.[^29] Use by permission or licence is insufficient for establishing a prescriptive easement.[^30] The theory was explained in Sturges v. Bridgman[^31] by Thesiger, LJ. as follows:

Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec clam nec precario; for a man cannot, as a general rule, be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he temporarily licenses.

[48] For the claim to an easement to succeed, the claimant’s use must be “open,” which means that the use is not secret or clandestine and an ordinary owner of the land, diligent in the protection of his or her interests, would have a reasonable opportunity of becoming aware of the use of the land.[^32] For the claim to an easement to succeed, there must be evidence that the owner of the servient tenement knew or ought to have known what was happening on his or her land.[^33] Where the use by the owner of the dominant tenement is notorious and the owner of the servient tenement makes no objection, then his or her acquiescence to the use as a right of the dominant tenement owner can more readily be inferred.[^34] If during the 20-year period, the dominant tenement owner acknowledges that his or her use is with permission then this prevents the acquisition of a prescriptive right.[^35]

[49] If during the 20-year period of alleged adverse use, the owner of the servient tenement erects a fence or barrier and the owner of the servient tenement acquiesces for a year or more, any claim for a prescriptive right for that period is defeated.[^36]

[50] The onus of proof of the requisite use is on the claimant, the owner of the dominant tenement.[^37] The evidence required to establish title by prescription will vary with the nature of the user.[^38] For a right-of-way, the requirement for its continuous, uninterrupted use will be satisfied if clear and unambiguous evidence shows that the use was of such a nature, and took place at such intervals, as to indicate to the ordinarily diligent owner of the servient tenement that a right is being claimed.[^39]

[51] The threshold for meeting the criteria for establishing a prescriptive easement under the Limitations Act or by lost modern grant is high, and courts are hesitant to recognize an easement by prescription because doing so would permit a landowner’s neighbourly accommodation of sufferance to ripen into a legal burden on his or her lands without compensations.[^40] Use permitted by neighbourliness and enjoyed on that basis is insufficient to establish an easement by prescription.[^41]

[52] Courts proceed with caution before finding that a landowner’s ownership interest has been diminished or lost by prescriptive right or by the doctrine of lost modern grant.[^42] In 1043 Bloor Inc. v. 1714104 Ontario Inc.,[^43] Justice Laskin described the legal policy decisions associated with the recognition of a prescriptive easement; he stated:

103. One obvious consideration is that awarding an easement by prescription burdens the servient owner's land without compensation. This policy consideration suggests that courts should tread cautiously before concluding that a dominant owner has acquired an easement by prescription.

104. A second policy consideration is the one referred to by Cory J.A. in Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 at p. 384 O.R.: "Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor." This consideration, too, argues for caution before making a finding that a prescriptive easement by lost modern grant has been acquired.

105. A third consideration, however, is that the courts ought reasonably to protect the dominant owner's reliance interest where the usage has been open and uninterrupted for many years and where the evidence clearly shows that the servient owner has acquiesced in that usage.

106. … The courts should not propound rules that reward a dominant owner's surreptitious behaviour and that discourage neighbours from approaching one another about potentially litigious issues. Instead, the rules should encourage property owners to alert one another to concerns about mutual usage and to reach fair and reasoned resolutions to these concerns.

3. The Effect of the Land Titles Act on Prescriptive Rights

[53] The Land Titles Act has an effect on the acquisition of prescriptive rights. The relevant provisions of the Act are sections 44, 45, 46 and 51, which state:

Effect of First Registration

Liability of registered land to easements and certain other rights

44 (1) All registered land, unless the contrary is expressed on the register, is subject to such of the following liabilities, rights and interests as for the time being may be subsisting in reference thereto, and such liabilities, rights and interests shall not be deemed to be encumbrances within the meaning of this Act:

2. Any right of way, watercourse, and right of water, and other easements.

3. Any title or lien that, by possession or improvements, the owner or person interested in any adjoining land has acquired to or in respect of the land.

Where owner of adjoining land has no right

(3) A parcel of land registered under this Act is not subject to paragraph 3 of subsection (1) if a notice of the application for first registration that contained an accurate description of the parcel, or of a former larger parcel of which the parcel is a part, was served upon the person who at the time of giving the notice was the owner, mortgagee, chargee or purchaser, or assignee thereof, under a registered instrument of adjoining land and no objection to the first registration was filed with the land registrar within the time allowed by the notice.

Estate of first registered owner with absolute title

45 The first registration of a person as owner of land, in this Act referred to as first registered owner with an absolute title, vests in the person so registered an estate in fee simple in the land, together with all rights, privileges and appurtenances, free from all estates and interests whatsoever, including estates and interests of Her Majesty, that are within the legislative jurisdiction of Ontario, but subject to the following:

1. The encumbrances, if any, entered on the register.

2. The liabilities, rights and interests that are declared for the purposes of this Act not to be encumbrances, unless the contrary is expressed on the register.

3. Where the first registered owner is not entitled for the owner’s own benefit to the land registered, then as between the owner and any persons claiming under the owner, any unregistered estates, rights, interests or equities to which such person may be entitled.

Estate of owner registered with a qualified title

46 (1) The registration of a person as first registered owner with a qualified title has the same effect as the registration of such person with an absolute title, except that registration with a qualified title does not affect or prejudice the enforcement of any estate, right or interest appearing by the register to be excepted.

No title by adverse possession, etc.

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

Operation of section

(2) This section does not prejudice, as against any person registered as first owner of land with a possessory title only, any adverse claim in respect of length of possession of any other person who was in possession of the land at the time when the registration of the first owner took place.

[54] A prescriptive easement over a parcel of land can arise during the period, if any, in which the land was registered under the [Registry Act].[^44] Where lands under the Registry Act become registered under the Land Titles Act, they will be subject to matured claims of any title by possession, the owner or person interested in any adjoining land has acquired to or in respect of the land by prescription or possessory rights or under the doctrine of lost modern grant.[^45] In other words, once lands are registered under the Land Titles Act, an unripe claim for adverse possession or for prescriptive rights will never ripen. Pursuant to s. 51 (1) of the Land Titles Act, for lands under the Act, a prescriptive easement can arise from usage before, but not after the lands are transferred into the land titles system, but a matured prescriptive easement may be lost if the owner does not contest the registration of the servient lands under the land titles system when he or she has been given notice of the registration and no objection was filed with the land registrar within the time allowed by the notice.[^46]

[55] The registration of lands under the Land Titles Act will interrupt the running of the 20-year period immediately preceding any action and will prevent the prescriptive right from crystallizing under the [Real Property Limitations Act].[^47] However, a pre-existing prescriptive right established pursuant to the doctrine of lost modern grant will survive the registration of title under the Land Titles Act;[^48] in the case of the doctrine of lost modern grant, the 20-year period does not have to be immediately preceding the bringing of an action.[^49]

D. The Submissions of the Parties

1. Ms. Carpenter’s Submissions

[56] Ms. Carpenter submits that her predecessors in title; that is, her father, Mr. Langtree obtained a prescriptive easement over Mr. Tyron’s land. She submits that in the 20 and 40-year period preceding November 27, 2000, the date that her property, the dominant land, was registered under the Land Titles Act, her family acquired a prescriptive easement over the passageway. She submits that the easement was preserved and not extinguished when the servient land was registered under the Land Titles Act with a qualified title and later purchased by Ms. Doull-MacDonald whose title was registered under the Land Titles Act.

2. Ms. Doull-MacDonald’s Submissions

[57] Ms. Doull-MacDonald denies that Ms. Carpenter’s predecessors in title acquired a prescriptive easement and she argues: (a) that there was no use of the passageway “as of right” by the Langtree family and rather that the use of the passageway was by permission of Mr. Tyron or pursuant to the municipal access by-laws and not be entitlement as of right; (b) that the use by the Langtree family of the passageway was not continuous; and (c) that the alleged easement was not necessary for the enjoyment of Mr. Langtree’s land and thus did not accommodate the dominant tenement and therefore, does not qualify to be an easement.

E. Discussion

1. The Claim for an Easement

[58] It is not necessary for me to address all of the arguments of the parties. In particular, it is not necessary to address the arguments about the role, if any, of the municipality’s access by-law. In the case at bar, ultimately, the question to be decided is whether as a matter of fact, Mr. Langtree’s family has lawfully obtained an ownership interest in land that belonged to Mr. Tyson. My conclusion is that the answer to this factual question is no.

[59] As a matter of fact, regardless of the period of time to examine, be it 20 years or 40 years before the lands were transferred to the Land Titles system, the use that the Langtree family made of Mr. Tyson’s land, does not demonstrate a lawful right to take an ownership interest in his land. As a matter of fact and law, the Langtree family did not lawfully obtain an ownership interest in lands that did not belong to them.

[60] Rather, the evidence shows that the Langtrees and Mr. Tyson were good neighbours and the Langtrees did not manifest a taking of an ownership interest in their neighbour’s land. The Langtrees occasionally used the passageway, but they did not manifest that they owed it and they did not manifest that they were using it as of right; rather they were just benefiting from the neighborliness between the families of two war vets.

[61] Mr. Tyson licensed; i.e., permitted the use of his passageway without acquiescing to any taking of his land. My Tyson had no reason to think that his ownership was under threat. The evidence does not show that Mr. Tyson acquiesced to the taking of an ownership interest in his land. The evidence does not support a finding of fact that Mr. Tyson ought to have known that his neighbours were taking an ownership interest in his property, and based on the evidence, he cannot be said to have acquiesced to any taking of an ownership interest.

[62] The case at bar is distinguishable from Condos v. Castles Realty Inc. v. Janeve Corp.,[^50] where a right of way by prescriptive easement was established. In that case, the use of a laneway for motor vehicular access was open notorious and prolonged, and in that case, the owner of the servient lands did not testify. In the immediate case, the use of the passageway was modest, infrequent, and intermittent, and in the case at bar, the owner of the servient tenement - during all of the relevant time - testified. There was evidence to infer that Mr. Tyson, in a neighbourly way, permitted the use of the passageway. I find as a fact that the Langtrees had no significant reliance interest and there is no clear evidence that Mr. Tyron was other than neighbourly in not interrupting or protesting the Langtree’s modest and infrequent use of the passageway and of their own narrow strip of land. The evidence supports permission to use not acquiescence to a taking.

[63] I find as a fact that while the Langtree family’s use of the passageway was without violence and without stealth, it was with Mr. Tyron’s permission and the Langtrees use was not “as of right”. I find as a fact that Mr. Tyson’s neighbourly accommodation did not burden his lands.

[64] It follows that as an issue of fact and law, Ms. Carpenter’s claim for a prescriptive easement fails.

2. The Red Oak Tree

[65] I also find as a fact that Ms. Doull-MacDonald was within her rights in pruning the red oak tree. At common law, a landowner is entitled to remove overhanging branches of a neighbour’s tree that intrude on the landowner’s property.[^51] At common law, a property owner is legally entitled without notice to cut those branches and roots of a neighbour's border tree that extend onto his property or air space.[^52] Under the law of nuisance, property owners are entitled to resort to self-help remedies to eliminate a continuing nuisance caused by roots and branches from trees, or the court may order that the nuisance be abated or removed.[^53]

[66] Further, I find as a fact that the pruning was in accordance with accepted arboricultural standards and the pruning did not injure the health of the tree. It was not necessary for Ms. Doull-MacDonald to obtain a permit from the City of Toronto and any trespass on Ms. Carpenter’s property to prune the tree from Ms. Doull-MacDonald’s property was transient and de minimus.

[67] Accordingly, I dismiss Ms. Carpenter’s claim for damages.

F. Conclusion

[68] For the above reasons, I dismiss the application. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Doull-MacDonald’s submissions within 20 days of the release of these Reasons for Decision followed by Ms. Carpenter’s submissions within a further 20 days.

Perell, J.

Released: December 19, 2017

[^1]: Borough of Scarborough By-Law No. 15337 was replaced in 2008 by City of Toronto By-law 1154-2008. [^2]: R.S.O. 1990, c. R. 20. [^3]: Municipal Code, Chapter 813, Article III. [^4]: Toronto Municipal Code Chapter 813, Trees, Article Ill. [^5]: Weeks v. Rogalski, 1955 CanLII 148 (ON CA), [1956] O.R. 109 (C.A); Bibieffe International Holdings B.V. v. York Region Condominium Corp. No. 838, [2000] O.J. No. 3579 (C.A.); In Re International Pipeline Co., 1951 CanLII 212 (SK CA), [1951] 2 D.L.R. 187 (Sask. C.A); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007, aff’d Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764; P.M. Perell, “The Creation of Easements” (2005), 30 Adv. Q. 487. [^6]: Phipps v. Pears, [1965] 1 Q.B. 76; Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293 (C.A.), aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.); Vannini v. Public Utilities Commission of Sault Ste. Marie, 1972 CanLII 413 (ON SC), [1973] 2 O.R. 11 (H.C.J.). [^7]: Re Ellenborough Park, [1955] 3 All E.R. 667; Vannini v. Public Utilities Commission of Sault Ste. Marie, 1972 CanLII 413 (ON SC), [1973] 2 O.R. 11 (H.C.J.); Ambrozic v. Pinheiro (1989), 1989 CanLII 4067 (ON SC), 71 O.R. (2d) 255 (Dist. Ct.); Hodkin v. Bigley (1998), 20 R.P.R. (3d) 9 (Ont. C.A.); Wouters v. Forjay Developments Ltd. (1998), 1998 CanLII 14664 (ON SC), 38 O.R. (3d) 369 (Gen. Div.); Caldwell v. Elia (2000), 2000 CanLII 5672 (ON CA), 30 R.P.R. (3d) 295 (Ont. C.A.); Depew v. Wilkes (2002), 2002 CanLII 41823 (ON CA), 60 O.R. (3d) 499 (C.A.); Somogyi v. Kapasky, [2003] O.J. No. 991 (S.C.J.); Kaminskas v. Storm, 2009 ONCA 318, [2009] O.J. No. 1547 (C.A.); Millstone Consulting Services Inc. v. Cleary, [2008] O.J. No. 3106 (S.C.J), aff’d [2009] O.J. No. 4510 (C.A.). [^8]: Rymer v. McIlroy, [1897] 1 Ch. 528; Naegele v. Oke (1916), 1916 CanLII 577 (ON CA), 37 O.L.R. 61 (App. Div.); Conn v. Zostantos, [1950] O.W.N. 277 (C.A.); Williams v. Ducks Unlimited (Canada) (2003), 2004 MBCA 153, 245 D.L.R. (4th) 319 (Man. C.A.), application for rehearing refused 2005 MBCA 13. [^9]: Ackroyd v. Smith (1850), 138 ER 68; Re Toscano and Dorion, 1965 CanLII 312 (ON CA), [1965] 2 O.R. 514 (C.A.); Miller v. Tipling (1918), 1918 CanLII 464 (ON CA), 43 O.L.R. 88 (App. Div.); Williams v. Ducks Unlimited (Canada) (2003), 2004 MBCA 153, 245 D.L.R. (4th) 319 (Man. C.A.), application for rehearing refused 2005 MBCA 13. [^10]: Attrill v. Platt (1884), 1884 CanLII 9 (SCC), 10 S.C.R. 425; Innes v. Ferguson (1894), 21 O.A.R. 323, aff’d 1895 CanLII 58 (SCC), 24 S.C.R. 703; McClellan v. Powassan Lumber Co. (1907), 15 O.L.R. 67 (Div. Ct.). [^11]: Hodkin v. Bigley (1998), 20 R.P.R. (3d) 9 (Ont. C.A.); Wouters v. Forjay Developments Ltd. (1998), 1998 CanLII 14664 (ON SC), 38 O.R. (3d) 369 (Gen. Div.); Robertson v. Jones (2003), 13 R.P.R. (4th) 39 (Ont. S.C.J.); 1636539 Ontario Ltd. v. W. Bradfield Ltd., [2007] O.J. No. 973 (S.C.J.). [^12]: Ackroyd v. Smith (1850), 138 ER 68; Caldwell v. Elia (2000), 2000 CanLII 5672 (ON CA), 30 R.P.R. (3d) 295 (C.A.); Rose v. Krieser (in Trust) (2002), 2002 CanLII 44894 (ON CA), 58 O.R. (3d) 641 (C.A.), aff’g (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J.). [^13]: Depew v. Wilkes (2002), 2002 CanLII 41823 (ON CA), 60 O.R. (3d) 499 (C.A.). [^14]: Doran v. Briggs, [1997] O.J. No. 1224 (C.A.); Smith v. Feld Concrete Foundations Ltd. (2000), 2000 CanLII 3784 (ON CA), 30 R.P.R. (3d) 314, (C.A.), aff’g [1999] O.J. No. 910 (Gen. Div.); Morray Investments Ltd. v. Zerwas (2003), 2003 CanLII 12138 (ON SC), 66 O.R. (3d) 521 (S.C.J.). [^15]: R.S.O. 1990, c. L.5. [^16]: R.S.O. 1990, c. L.15. [^17]: Kaminskas v. Storm, 2009 ONCA 318, [2009] O.J. No. 1547 (C.A.). [^18]: Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293, aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.). [^19]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Ebare v. Winter, 2005 CanLII 247 (ON CA), [2005] O.J. No. 14 (C.A.); Kaminskas v. Storm, 2009 ONCA 318, [2009] O.J. No. 1547 (C.A.); Archdekin v. 2116548 Ontario Inc., [2010] O.J. No. 2721 (S.C.J.). [^20]: Phillips v. Halliday, [1891] A.C. 228 (H.L.); Watson v. Jackson (1914), 1914 CanLII 541 (ON CA), 31 O.L.R. 481 (C.A.); Abell v. Woodbridge (Village) (1917), 1917 CanLII 505 (ON SC), 39 O.L.R. 382; Tehidy Minerals Ltd. v. Norman, [1971] 2 Q.B. 528 (C.A.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Renaud Estate v. Sharman (1996), 12 R.P.R. (3d) 115 (Ont. Gen. Div.); 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91. [^21]: Temma Realty Co. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293 (C.A.), aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Renaud Estate v. Sharman (1996), 12 R.P.R. (3d) 115 (Ont. Gen. Div.); Hodkin v. Bigley (1998), 20 R.P.R. (3d) 9 (C.A.); Block v. Trezzi (2001), 45 R.P.R. (3d) 139 (Ont. S.C.J.); Rose v. Krieser (in Trust) (2002), 2002 CanLII 44894 (ON CA), 58 O.R. (3d) 641 (C.A.), aff’g (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J.); Morray Investments Limited v. Zerwas (2003), 2003 CanLII 12138 (ON SC), 66 O.R. (3d) 521 (S.C.J.); Somogyi v. Kapasky, [2003] O.J. No. 991 (S.C.J.); 1636539 Ontario Ltd. v. W. Bradfield Ltd., [2007] O.J. No. 973 (S.C.J.); Kaminskas v. Storm, 2009 ONCA 318, [2009] O.J. No. 1547 (C.A.); Millstone Consulting Services Inc. v. Cleary, [2008] O.J. No. 3106 (S.C.J), aff’d [2009] O.J. No. 4510 (C.A.). [^22]: Smith v. Baxter, [1900] 2 Ch. 138; Gardner v. Hodgson's Kingston Brewery Co. Ltd., [1903] A.C. 229; McIlmurray v. Brown, 1953 CanLII 393 (ON SC), [1954] 1 D.L.R. 458 (H.C.J.); Garfinkel v. Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388 (C.A.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); A.G. St-Amand et Fils Inc. v. Butler, 1996 CanLII 18421 (NB CA), [1996] N.B.J. No. 603 (N.B.C.A.); Rose v. Krieser (in Trust) (2002), 2002 CanLII 44894 (ON CA), 58 O.R. (3d) 641 (C.A.), aff’g (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J.). [^23]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 at p. 384 (C.A.). [^24]: Kaminskas v. Storm, 2009 ONCA 318, [2009] O.J. No. 1547 (C.A.). [^25]: Kaminskas v. Storm, 2009 ONCA 318, [2009] O.J. No. 1547 (C.A.). [^26]: Ontario Law Reform Commission, Report on Limitation of Actions (Toronto: Department of the Attorney General, 1969), chap. VIII at p. 144. [^27]: (1881), 17 Ch. D. 535, [^28]: Approved in Myers v. Johnston (1922), 1922 CanLII 567 (ON CA), 52 O.L.R. 658 (C.A.); Vannini v. Public Utilities Commission of Sault Ste. Marie, 1972 CanLII 413 (ON SC), [1973] 2 O.R. 11 (H.C.J.). [^29]: Dalton v. Angus (1881), 6 App. Cas. 740; Monaghan v. Moore (1996), 1996 CanLII 4015 (ON CA), 31 O.R. (3d) 232 (C.A.); Smith v. Feld Concrete Foundations Ltd., [1999] O.J. No. 910, aff’d (2000) 2000 CanLII 3784 (ON CA), 30 R.P.R. (3d) 314 (C.A.); Somogyi v. Kapasky [2003] O.J. No. 991 (S.C.J.). [^30]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Mason v. Morrow, [1998] O.J. No. 2679 (C.A.), aff’g 1996 CarswellOnt 2532 (Gen. Div.); Rose v. Krieser (in Trust) (2002), 2002 CanLII 44894 (ON CA), 58 O.R. (3d) 641 (C.A.), aff’g (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J.); Edbom v. Edbom, [1997] M.J. No. 286 (Man. C.A.). [^31]: (1879), 11 Ch. D. 852 at p. 863. [^32]: Union Lighterage Co. v. London Graving Dock Co., [1902] 2 Ch. 557; Russell Transport Limited v. The Ontario Malleable Iron Company Ltd., 1952 CanLII 117 (ON SC), [1952] O.R. 621 (H.C.J.); Garfinkel v. Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388; Vannini v. Public Utilities Commission of Sault Ste. Marie, 1972 CanLII 413 (ON SC), [1973] 2 O.R. 11 (H.C.J.); Descar Ltd. v. Megaventures Corp. (1990), 1990 CanLII 6722 (ON SC), 72 O.R. (2d) 388 (H.C.J.); Kucherenko v. Koever (1999), 23 R.P.R. (3d) 310 (Ont. Gen. Div.). [^33]: Union Lighterage Company v. London Graving Dock, [1902] 2 Ch. 557 (C.A); Garfinkel v. Kleinberg and Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388 (C.A); Brass Rail Tavern (Toronto) Ltd. v. DiNunzio (1979), 12 R.P.R. 188 (Ont. H.C.J.); aff’d 16 M.P.L.R. 56 (Ont. C.A.); Trafford v. Dowling, [1988] O.J. No. 1121 (H.C.J.); Kucherenko v. Koever (1999), 23 R.P.R. (3d) 310 (Ont. Gen. Div.); Morray Investments Ltd. v. Zerwas (2003), 2003 CanLII 12138 (ON SC), 66 O.R. (3d) 521 (S.C.J.); Somogyi v. Kapasky, [2003] O.J. No. 991 (S.C.J.); Choquette v. 995146 Ontario Ltd.¸ [2003] O.J. No. 3693 (S.C.J.), aff’d [2004] O.J. No. 3593 (C.A.); Stoddart v. Kubiak (2009), 82 R.P.R. (4th) 264 at para. 28 (Ont. S.C.J.). [^34]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.). [^35]: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 [^36]: McCulloch v. McCulloch (1910), 17 O.W.R. 639 (H.C.J.); Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293 (C.A.), aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.). [^37]: Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293 (C.A.), aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.); Somogyi v. Kapasky, [2003] O.J. No. 991 (S.C.J.); 1636539 Ontario Ltd. v. W. Bradfield Ltd., [2007] O.J. No. 973 (S.C.J.). [^38]: Axler v. Chisholm (1977), 1977 CanLII 1156 (ON SC), 16 O.R. (2d) 665 (H.C.J.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.) [^39]: Stoddart v. Kubiak, (2009), 82 R.P.R. (4th) 264 at para. 27; Croft v. Cook, 2014 NSSC 230 at para. 84. [^40]: Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293, aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Skoropad v. 726950 Ontario Ltd. (1990), 12 R.P.R. (2d) 225 (Ont. S.C.J.); Ebare v. Winter, 2005 CanLII 247 (ON CA), [2005] O.J. No. 14 (C.A.); Hanisch v. McKean, 2013 ONSC 2727. [^41]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 at p. 384 (C.A.); Mason v. Morrow, [1998] O.J. No. 2679 at para. 5 (C.A.). [^42]: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91; Ebare v. Winter, 2005 CanLII 247 (ON CA), [2005] O.J. No. 14 (C.A.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 at p. 384 (C.A.). [^43]: 2013 ONCA 91 at paras. 103-106. [^44]: R.S.O. 1990, c. R.20. Israel v. Leith (1890), 20 O.R. 361 (Q.B.); Myers v. Johnson (1922), 1922 CanLII 567 (ON CA), 52 O.L.R. 658 (C.A.); Garfinkel v. Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388 (C.A.); Rose v. Krieser (in Trust) (2002), 2002 CanLII 44894 (ON CA), 58 O.R. (3d) 641 (C.A.), aff’g (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J). [^45]: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91. [^46]: Mills v. Star Quality Homes Ltd. (1978), 1978 CanLII 1389 (ON CA), 21 O.R. (2d) 39 (C.A.); Parrell v. Kurronen [1993] O.J. No. 2755 (Gen. Div.); Morray Investments Ltd. v. Zerwas (2003), 2003 CanLII 12138 (ON SC), 66 O.R. (3d) 521 (S.C.J.); Di Gregoria v. Osborne (2004), 20 R.P.R. (4th) 181 (Ont. S.C.J.); Millstone Consulting Services Inc. v. Cleary, [2008] O.J. No. 3106 (S.C.J), aff’d [2009] O.J. No. 4510 (C.A.); Hanisch v. McKean, 2013 ONSC 2727. [^47]: Hanisch v. McKean, 2013 ONSC 2727. [^48]: Morray Investments Ltd. v. Zerwas (2003), 2003 CanLII 12138 (ON SC), 66 O.R. (3d) 521 (S.C.J.); Archdekin v. 2116548 Ontario Inc., 2010 ONSC 3553, aff’d 2011 ONCA 68; Piekarczyk v. Zebrowski, 2010 ONSC 5423. [^49]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.). [^50]: 2015 ONCA 466, rev’g 2014 ONSC 6640. [^51]: Koenig v. Goebel, (1998), 1998 CanLII 13635 (SK QB), 162 Sask. R. 81; Demenuk v. Dhadwal, 2013 BCSC 2111 at para. 71. [^52]: Graham v. Da Silva (1984), 34 R.P.R. 264 (Ont. Co. Ct.); Centrum Land Corp. v. Institute of Chartered Accountants (Ontario) (1988), 1988 CanLII 4823 (ON SC), 64 O.R. (2d) 289 (H.C.J.); Koenig v. Goebel, (1998), 1998 CanLII 13635 (SK QB), 162 Sask. R. 81. [^53]: Hodgins v. Toronto (City), [1892] O.J. No. 59 at para. 64 (C.A.); Black v. Zager (1982), 1982 CanLII 4025 (MB KB), 18 Man. R. (2d) 22 at paras. 9-11 (Man. Q.B.); Glashutter v. Bell, 2001 BCSC 1581, [2001] B.C.J. No. 2587 (B.C.S.C.); Kiessling v. Varga, 2002 BCSC 90, [2002] B.C.J. No. 142 (B.C.S.C.); Guinan v. Ottawa (City), 2010 ONSC 807; Yates v. Fedirchuk, 2011 ONSC 5549 at para. 73; Freedman v. Cooper, 2015 ONSC 1373.