Court File and Parties
Court File No.: 57969/18 Date: 2018/10/12 Superior Court of Justice - Ontario
Re: Monika Law, Applicant And: 450470 Ontario Limited, Respondent
Before: The Honourable Justice R. J. Nightingale
Counsel: C. Bergstein, Counsel, for the Applicant C. Dilts, Counsel, for the Respondent
Heard: October 9, 2018
Endorsement
[1] The applicant, as the owner of 13 Queen Street in Niagara-on-the-Lake (“13 Queen”), brings this application for a declaration that she acquired a prescriptive easement or ancillary easement before March 29, 2004 over a portion of the adjoining land located at the rear of 15 Queen Street (“15 Queen”) to the west owned by the respondent since February 2017.
[2] She also asks for a declaration that she owns a narrow strip of land on the border of her property of 13 Queen Street and the respondent’s adjoining property to the east at 9 Queen Street owned by it since April 2017 by reason of adverse possession also acquired before March 29, 2004.
Factual Background - Easement Claim
[3] The applicant purchased 13 Queen on July 22, 1993 from Helmut Kleinert, now deceased, who had purchased the property from the parents of Sybille Arsenault in 1989.
[4] The evidence of Sybille Arsenault confirms that her family first leased and eventually purchased 13 Queen in or around 1975 where her parents opened a restaurant there until it sold in 1989.
[5] In order to access the parking area for two vehicles behind her building at 13 Queen, the applicant and the former owners enjoy an existing registered right-of-way over 15 Queen along a laneway between 15 Queen and 19 Queen then extending northeast towards the rear of 13 Queen. That right-of-way registered on the titles of both the 13 Queen and 15 Queen properties states that that right-of-way is “for the purpose of ingress and egress of the vehicular traffic” which would provide access to and from that parking area at the rear of 13 Queen.
[6] The registered easement, according to the evidence of the respondent’s representative, was registered on title on November 30, 1945. It has been subsequently referred to as Part 3 on Plan 30R–2687 attached to this endorsement as schedule A.
[7] That registered easement does not include any turnaround area north of it at the rear of 15 Queen for vehicles to park on 13 Queen.
[8] The evidence of the applicant Monika Law is that neither the parking area behind 13 Queen nor the registered right-of-way is large enough to permit a vehicle to turn around.
[9] The combined evidence of Sybille Arsenault and Monika Law, which is not contradicted by any evidence provided by the respondent, is that the owners and tenants of 13 Queen historically since at least the late 1970s used that portion of property at the rear of 15 Queen just north of the registered right-of-way to turn around their vehicles when entering or exiting that parking area on 13 Queen.
[10] That turnaround area is described as Part 1 on Plan 30R–15144 attached to this endorsement as schedule B.
[11] The uncontradicted evidence of Ms. Arsenault is that since the late 1970s, constantly and without interruption through to 2008, the owners and tenants of 13 Queen including her and her family used the entire area behind 15 Queen to turn around their vehicles so that they could enter and exit the parking area behind 13 Queen. Her evidence was that it was necessary to use that turnaround area behind 15 Queen to maneuver the vehicles as otherwise it would not have been possible to park behind 13 Queen.
[12] She had intimate knowledge of such use of the right-of-way and the turnaround area all those years because of her regularly working at the restaurant at 13 Queen from 1975 to 1989 and at another restaurant owned by her parents located one store away at 19 Queen from 1972 to 2008.
[13] Her evidence was that the owners of 15 Queen from 1978 to 2008 did not object to the owners and tenants of 13 Queen using the turnaround area nor did they give permission for them to do so.
[14] The applicant, on her purchase of 13 Queen in July 1993, was told by the former owner, the late Mr. Kleinert, that they could turn their vehicles around in the turnaround area of 15 Queen and drive forward.
[15] Her evidence also confirms the continuous uninterrupted use from 1993 to the present by herself and her family and tenants at 13 Queen of the turnaround area on 15 Queen to maneuver and turnaround their vehicles entering and exiting the parking spots behind 13 Queen.
[16] She also confirms that Mr. Pullman, the former owner of 15 Queen before its sale to the respondent, at no time objected to their use of the 15 Queen turnaround area for that purpose nor did he give permission to her and her family and tenants to use it as such. Although Mr. Pullman apparently may have resided in Greece, his brother managed the restaurant at 15 Queen and obviously would have been aware of the constant vehicular traffic using the turnaround area throughout the years.
[17] Andrew Counsell, a former employee and manager of the retail store operated by the applicant at 13 Queen, confirmed that from December 2001 to 2016 he personally used the turnaround area on 15 Queen on many occasions when entering or exiting the parking area for his vehicle behind 13 Queen.
[18] There was no evidence provided by the respondent that the former owners of 15 Queen, their family members, employees or customers ever used that turnaround area at the rear of 15 Queen to regularly park their vehicles for their business use there. Rather, Ms. Arsenault, Ms. Law and Mr. Counsell all confirmed that if someone periodically attempted to temporarily park their vehicle in the turnaround area of 15 Queen, they would ask that the cars be moved and those requests were always complied with.
[19] The evidence of Sybille Arsenault and Monika Law both confirmed that given the small size of the parking area behind 13 Queen, it has always been necessary to use the entire area behind 15 Queen north of the registered easement to maneuver vehicles, as otherwise it would not be possible to park behind 13 Queen.
[20] The evidence of Ms. Law, which is confirmed clearly from the photographs provided by her and which I accept, is that vehicles cannot turn around in the small parking area behind 13 Queen. She has had 25 years of experience with that parking area and certainly would know whether or not it can be done. The evidence of the respondent’s representative Mr. Wiebe that he “believes” that the area behind 13 Queen is large enough to enable a small car to turn around is not factually correct and is of no significance.
[21] Ms. Law’s evidence was that using the turnaround area on 15 Queen was a reasonably necessary part of using the registered right-of-way to access the parking area behind 13 Queen Street. It would be extremely dangerous to exit that narrow laneway on 15 Queen driving backwards across the wide and busy sidewalk which would be full of pedestrian traffic especially in the summer tourism season. The view of the sidewalk and pedestrians from the laneway is obstructed by the abutting buildings and it would be impossible to see them approaching the laneway on the sidewalk when backing up a vehicle.
[22] Moreover, because of the high volume of vehicular traffic on Queen Street and the parked vehicles there, entering the roadway in reverse would be extremely dangerous not just to pedestrians on the sidewalk but also to cars on the road, significantly increasing the chances of a collision.
[23] As indicated above, the respondent has only owned 15 Queen since February 2017 and its principal witness, Mr. Wiebe, could not provide any evidence personally of the historical use of that property before his purchase.
[24] However, he provided no evidence from the previous owners of 15 Queen, or their family members, agents, employees, tenants or other occupants of that property to rebut or contradict the evidence of the applicant and her witnesses regarding the actual continuous and uninterrupted use of the turnaround area for their vehicles on 15 Queen since the late 1970s.
[25] The respondent also provided no evidence suggesting or confirming that the applicant’s use of the turnaround area at the rear of 15 Queen was only with the permission or prior agreement of the owners of 15 Queen.
Analysis
[26] As indicated recently by the Ontario Court of Appeal in Hunsinger v. Carter, 2018 ONCA 656 and in Bailey v. Barber, 2016 ONCA 98, an easement by prescription can arise either under section 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 or pursuant to the doctrine of lost modern grant. Both have the same requirements, namely;
a) the dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land; b) the properties cannot be owned by the same person; c) the easement must be capable of forming the subject matter of a grant; d) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; e) there must be 20 years of continuous, uninterrupted, open and peaceable use enjoyed by the dominant tenement without obtaining the permission of the servient tenement owner.
[27] The Court further confirmed that after property has been converted and registered under the land titles system, a pre-existing prescriptive easement over the land can still be established if these criteria can be proven to have been met before the land was so transferred pursuant to sections 31 and 51 of the Real Property Limitations Act.
[28] Both properties of 13 Queen and 15 Queen were converted to Land Titles on March 29, 2004. Accordingly, the applicant must establish her prescriptive easement over the turnaround area of 15 Queen back to at least the time period from March 29, 1984 to March 29, 2004.
[29] In interpreting the test, courts have insisted on a high standard for establishing a prescriptive easement. English v. Perras, 2018 ONCA 649 at para. 30.
[30] In this case, the respondent concedes that the criteria (a) and (b) above have been met.
[31] Regarding criteria (c), the right in issue must be of utility to and benefit of the dominant tenement as opposed to one of mere recreation or amusement. Bailey at para. 59.
[32] The evidence clearly establishes the right claimed is tied specifically to the applicant’s use of their parking of vehicles at the rear of their property at 13 Queen. The owners of 13 Queen, their family members and employees have used the turnaround area on 15 Queen for many years prior to March 2004 and to date in order to maneuver their vehicles and turn them around so as to enter and exit the parking area behind 13 Queen. The ability to use the turnaround area is significant to them for the safe use of the parking area and ability to exit it.
[33] Accordingly, the right claimed is of utility and benefit to 13 Queen and beyond a right of recreation or amusement.
[34] Regarding criteria (d), what is reasonably necessary to the enjoyment of the dominant tenement depends on the nature of the property and the purpose of the easement. The court is required to apply this criteria in a flexible and fact specific manner considering current social conditions and the prevailing patterns and trends of conduct. Bailey at para. 57.
[35] The court in Bailey confirmed that there must be a connection between the proposed easement and the normal enjoyment of the dominant tenement. It is meant to be for a very practical purpose such as parking spaces or driveways. Depew v. Wilkes (2002), 60 O.R. (3d) 499 (ONCA).
[36] The evidence establishes in this case that the parking area of 13 Queen and the existing right-of-way to it are not large enough to permit a vehicle to turn around. Without the ability to turn around at the rear of 15 Queen, drivers would be forced to reverse out of the narrow laneway and cross a wide sidewalk packed with pedestrians while their view of the sidewalk is obstructed by the buildings abutting it. Furthermore, entering on the busy roadway with parked cars after traversing the busy pedestrian sidewalk would be extremely dangerous.
[37] The fact that the applicant’s vehicles after using her parking area could alternatively exit by backing up on the narrow right-of-way does not preclude a finding that the easement is reasonably necessary for the enjoyment of 13 Queen. It is not a strict necessity test. Depew at paras. 22 and 26.
[38] That ability to use the turnaround area on 15 Queen by the applicant and former owners of 13 Queen is more than just a convenience to them. The Court of Appeal in Depew v. Wilkes found that the ability of cottage owners to park their vehicle in front of their cottage rather than 250 feet away on a public street was reasonably necessary for the better enjoyment of their property and was not simply a matter of convenience for them.
[39] Mr. Hunsinger’s trucks in Hunsinger v. Carter possibly accessing the back of his property by using only part of the respondent’s driveway they had used entirely for 40 years did not mean that their use of the entire driveway was not reasonably necessary for the enjoyment of his property. The court stated that “although this may be possible, it is clearly not as convenient as having access to the full driveway”.
[40] Accordingly, the evidence establishes that the turnaround area on 15 Queen has been used by and is reasonably necessary for the applicant’s vehicles accessing the parking area on 13 Queen and then reasonably and safely exiting it. Criteria (d) has been established by the applicant.
[41] Regarding criteria (e), the applicant must establish it is met for a 20-year period before the land was transferred into Land Titles on March 29, 2004. Once it is established that the claimant held the prescriptive right at the end of the relevant period, the right of the original servient tenement owner is extinguished.
[42] As indicated above, the evidence of the applicant and her witnesses, Ms. Arsenault, Mr. Counsell confirmed that their use of the turnaround area on 15 Queen by them and their tenants and occupants of 13 Queen was open, continuous, uninterrupted use since the late 1970s through to 2017 when this dispute arose because of the actions of the respondent as the new owner of 15 Queen.
[43] The constant and daily use of that turnaround area by the owners and occupants of 13 Queen to access their parking area was certainly open and conspicuous. It was obviously done during daylight and business hours when their vehicles were constantly using that area in full view of the owners and occupants of 15 Queen.
[44] Vehicular use of property, as distinct from pedestrian use, is by its nature open and conspicuous. Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466.
[45] The evidence of the applicant also confirms that the periodic parking on the turnaround area by others was rare and temporary only and those vehicles always were removed on the request of the owners and occupants of 13 Queen. They did not interrupt the period of continuous use by the owners and former owners of 13 Queen.
[46] The applicant’s evidence also establishes that there was never any request by them of the owner of 15 Queen for his permission to use the turnaround area. The evidence establishes that that owner, certainly through the brother manager responsible for the business there, would clearly have been aware of the continuous use of the turnaround area since the late 1970s. The applicant’s evidence establishes that they acquiesced to that use and at no time did they object to that use of the turnaround area by the owners and occupants of 13 Queen.
[47] In particular, the respondent led no evidence from the previous owners or occupants of 15 Queen suggesting that they ever objected to that use or alternatively, had permitted its use.
[48] The applicant has established the former owners’ of 15 Queen acquiescence to their use of the turnaround as of right since the late 1970s.
[49] The respondent has not met the burden that then falls on it to establish some act of permission of the owners of 15 Queen that rebuts the inference of acquiescence. Condos at paras. 22 – 24. The uncontested evidence on this application is that no such permission was ever sought or given.
[50] The respondent further submits that the applicant has not led any evidence of use of turnaround area during the period of 1989 to 1993, being the dates of ownership of 13 Queen by the late Mr. Kleinert until it was purchased by the applicant.
[51] I disagree. The evidence of Ms. Arsenault was that she was intimately aware from her personal observations of the continued and uninterrupted use of the turnaround area by the owners and tenants of 13 Queen and those of 15 Queen and 19 Queen who used to share the entire area to maneuver their vehicles into their respective parking spots. She regularly worked at her parents’ restaurant at 13 Queen until 1989 and then at their family’s Buttery restaurant at 19 Queen until 2008.
[52] Her uncontradicted evidence, and by reasonable inference therefrom, confirms that there was no interruption of that use of the turnaround area by the owners and tenants of 13 Queen during that period of 1989 to 1993 despite the change in ownership to Mr. Kleinert during that time.
[53] Again, the respondent led no evidence to rebut or contradict that evidence of Ms. Arsenault.
[54] Accordingly, the applicant has established on the evidence all of the five essential criteria confirming her entitlement to a prescriptive easement over the turnaround area on 15 Queen in favour of her property at 13 Queen.
[55] The applicant also claims entitlement to use the turnaround area as an ancillary use to the existing registered easement as an alternative argument in the event the court does not accept that a prescriptive easement has been created.
[56] Given my findings that a prescriptive easement has indeed been created in favour of the applicant, it is not necessary to consider that argument of the applicant, and I decline to do so.
Adverse Possession Claim
[57] The evidence of the applicant Ms. Law establishes that since at least the time she acquired 13 Queen on July 22, 1993 and continuously to the present day, a fence has existed at its current location at the rear of 13 Queen marking the eastern boundary of the rear of 13 Queen with the respondent’s property at 9 Queen.
[58] Her evidence, which was not contradicted, was that a chain-link fence since at least July 1993 was situated approximately six inches to approximately eighteen inches to the east of the boundary line between 13 Queen and 9 Queen. During the entire time, the owners of 13 Queen and 9 Queen treated the fence line as the boundary line between them. That strip of land is referred to as Part 2 on Plan 30R–15144 attached to this endorsement as schedule B.
[59] The applicant during that time had open, notorious and exclusive use and possession of that strip of land believing it to be hers excluding the owner of 9 Queen from it and which possession was continuous and uninterrupted since July 1993. She confirms as well that her use and possession of that strip was without permission of the owner of 9 Queen.
[60] She replaced that chain-link fence with a wooden fence in December 2015 in exactly the same spot as the original chain-link fence which is verified by the uncontradicted evidence of Mr. Counsel who was not cross-examined on his affidavit.
[61] Ms. Law did not dispute that she only temporarily removed the chain-link fence which was likely sometime in 2014 to allow her neighbor to do some construction in his yard before reinstalling the wooden fence in 2015 in the same location of the original chain-link fence.
[62] No evidence was led by the respondent from the previous owners or occupants of 9 Queen or other witnesses to contradict or rebut that evidence.
[63] I am satisfied on the evidence that the present wooden fence was installed in the same location of the original chain-link fence on the respondent’s property since at least July 22, 1993.
[64] Given that finding, the respondent does not dispute that the applicant has established her claim for adverse possession of that strip for at least 10 years prior to the registration of the lands in Land Titles and a declaration to that effect is granted.
Orders Granted
[65] The applicant is entitled to an order declaring her entitlement to a prescriptive easement over the land on 15 Queen Street for the purpose of a vehicle turnaround area and declaring her ownership of that strip of land on 9 Queen Street as noted above in accordance with the draft order attached to this endorsement.
[66] An order will also issue that the respondent shall not interfere with the applicant’s use of Part 1 on Plan 30R-15144.
[67] If the draft order requires any amendment to address any concerns of the Land Registrar, the parties can contact me through the trial coordinator’s office in St. Catharines for that purpose.
[68] If the parties are unable to agree with respect to the costs of this application, the applicant can make brief submissions of no more than two pages in length together with an outline of her costs and any relevant offers to settle within 10 days from the date of this decision.
[69] The respondent will similarly be entitled to respond within 10 days thereafter.
[70] If no submissions are received within those time limits, the parties will be deemed to have settled the issue of costs of this application.
Nightingale J. Date: October 12, 2018