COURT FILE NOS.: CV-16-566969

CV-17-573945

DATE: 20190820

SUPERIOR COURT OF JUSTICE – ONTARIO

APPLICATION UNDER RULE 14.05 (d), (e) and (h) of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194, and ss. 159 and 160 of the Land Titles Act, R.S.O. 1990, c. L.5

RE: ALVARO NUNES and MALVINA FARIA, Applicants

AND:

AMILCAR FERNANDES and LUISA FERNANDES, Respondents

AND BETWEEN:

AMILCAR FERNANDES and LUISA FERNANDES, Applicants

AND

ALVARO NUNES and MALVINA RARIA, Respondents

BEFORE: Justice S. Nakatsuru

COUNSEL: M. Scott Martin, for the Applicants

Michael Suria, for the Respondents

HEARD: July 4, 2019

ENDORSEMENT

[1] Alvaro Nunes and Malvina Faria (“Nunes/Faria”) own a house. Amilcar and Luisa Fernandes (“Fernandes”) own the home next door. There is a dispute between these neighbours about a driveway. I do not say this in any way to diminish the issue.

[2] Let me say to both parties. I do understand how serious this case is for you. You would not have taken this all the way to court if you each did not feel you are right. One of you may feel you will have won after my decision. The other may feel upset by it. That is how the judicial system must feel to many people who come before it. That there are winners and losers. That is unfortunate. I must decide a case based on the law and the evidence. That means that in this case, someone will win. Someone will lose. But I hope that, perhaps after a bit of time has passed, you can look beyond that. You are and will likely remain, neighbors for some time. As neighbors, it is my sincerest wish that there is a prospect of some reconciliation between you. We all want to live in a community where we feel we can count on our neighbors for help and friendliness; not indifference or hostility.

[3] For the reasons I will explain, I grant a prescriptive easement.

The Law

[4] Both parties agree on the law. To make out a prescriptive easement, Nunes/Faria must establish the following essential features:

• There must be a dominant and servient tenement;

• The dominant and servient owners must be different persons;

• The easement must be capable of forming the subject matter of a grant; and

• The easement must accommodate - it must be reasonably necessary to the better enjoyment of the dominant tenement.

English v. Perras, 2018 ONCA 649 at para. 27.

[5] There is little disagreement about most matters in this case. I find that the essential elements have been established.

[6] Specifically, with respect to the last element, I find that if the easement is not granted, Nunes/Faria will not be able to enjoy their portion of the driveway and their home as it has been for some time. Without it, Nunes/Faria will not be able to use for parking the driveway next to their home which has been the established use for the driveway, going back decades. While they could park within their property boundaries, the overall dimensions of the driveway would make it practically impossible for someone to enter or exit the parked vehicle if they are not permitted to open their doors or step onto the Fernandes’ property. For large-width vehicles like Mr. Nunes’ work van, it would be in fact impossible. In addition, to go into the rear of the property towards the garage, given the angles and dimensions, would be very difficult and potentially unsafe to property, if Nunes/Faria could not access the space just outside the present wooden fence. Thus, the easement is necessary for the full use and enjoyment of Nunes/Faria’s home at 31 Mahoney. The Fernandes have not really argued otherwise.

[7] The core issue in this case is whether Nunes/Faria have established a prescriptive easement on the subject property in accordance with the law on lost modern grant. To do so, the claimant must demonstrate continuous, uninterrupted, open and peaceful use of the land, without objection by the owner (without permission) for any 20-year period prior to conversion to Land Titles: English v. Perras, paras. 28-29, 33-34.

[8] The subject properties were converted on July 23, 2001. The relevant period of time for me to consider in this case would therefore be before this conversion. Both parties purchased their properties after 2001. Thus, the evidence about the relevant period of time comes from others and not the parties.

Analysis

[9] Let me make my factual findings.

[10] I find Ms. Dawn Teal’s evidence credible and reliable. It is supported by the survey evidence. It is supported by the photos that she has brought. She was clear, had good recollection, and is independent. The one caveat is that her evidence about when she was still a child, perhaps earlier than 1960, is not probative. However, since then, I find her testimony to be credible and reliable. She lived at 31 Mahoney. Even when she left home, she visited her parents, the Pennells, on a very frequent basis. I prefer her evidence to that of the other witnesses in this application.

[11] Mr. Morrison’s evidence is of little or no weight. His recollections are not to be trusted. It is inconsistent with the surveys and the photos. Cross-examination not only produced inconsistencies with his affidavit, but he eventually admitted Ms. Teal’s recollections should be preferred over his own.

[12] It is agreed that Ms. Guirestante’s affidavit should be struck as she did not present herself to be cross-examined.

[13] The main argument made by the Fernandes is that Nunes/Faria have not met their burden of proof on a key matter. It is submitted that the evidence does not establish a right but only a permissive use of the property. In particular, the Fernandes rely on the evidence of Mr. Michael Christianson when he described how he and the Pennells interacted over the driveway.

[14] Mr. Christianson lived at 33 Mahoney from 1993 to 2001. The Fernandes submit that Mr. Christianson testified that he gave the Pennells permission to use the disputed property for the purpose of parking their vehicles and for entry and exit from them. It is submitted that when Mr. Christianson required the use of the disputed property, the Pennells would remove their vehicles when asked. Relying on this, the Fernandes argue that Nunes/Faria have failed to prove the Pennells’ use of the property was continuous, uninterrupted, and without permission from 1993-2001.

[15] I have carefully reviewed Mr. Christianson’s evidence. I find that his evidence is not what the Respondents contend it is. Put another way, their position overreaches what I find that he testified to. His evidence was that the Pennells would always park in the driveway and get in and out, peacefully using his property to do so. From time to time, Mr. Christianson would ask the Pennells to move their vehicles, so he could use the driveway to access the gutters or roof of his home. He would tell the Pennells when he finished so that the Pennells could return their vehicles. Mr. Christianson agreed that the Pennells “accommodated” him in this. When I analyze his evidence closely and in the context of the evidence as a whole, I find that Mr. Christianson never gave permission to the Pennells to cross or use the disputed property. It was open and notorious that they used it for their own purposes. Mr. Christianson had full knowledge that it was his property. I find that such infrequent and minor use by Mr. Christianson for accessing parts of his home for repair or maintenance is not an interruption of the Pennells’ use. I further find that, it was Mr. Christianson who sought permission of the Pennells. Mr. Christianson acknowledged and accepted the Pennells’ use of the property: Kaminskas v. Storm, 2009 ONCA 3018 at paras. 42-43.

[16] Furthermore, I prefer the evidence of Ms. Teal over Mr. Christianson. Particularly when it comes to the fence. Ms. Teal’s evidence is consistent with the survey and the photos. While it is theoretically possible, a fence in accordance with the location and dimensions that Mr. Christianson alluded to, was built and then taken down, it is more likely than not that he is simply mistaken. Ms. Teal’s evidence is more consistent and makes more sense.

[17] Alternatively, even if Mr. Christianson’s evidence stands in the way of Nunes/Faria meeting their burden, he can only speak to what happened commencing in 1993. The Pennells owned their home from the 1940s. Ms. Teal can speak to the period after 1960. That is a period of over 30 years.

[18] While I have found Mr. Christianson’s evidence to be no impediment to my finding a prescriptive easement, it remains upon Nunes/Faria to prove continuous, uninterrupted, open, peaceful use without permission for a period of 20 years. Ms. Teal’s evidence in that regard is important.

[19] I have looked at her testimony and all the other evidence and conclude that Nunes/Faria have proven this. Looking at the physical layout of the driveway and the two subject properties, the historic use by the Pennells, the obvious and plain use of the right-of-way by the Pennells, the lack of any permission or objection by the owners of 33 Mahoney, the conduct of the Pennells whereby they used the disputed property as if by right and their undertaking things such as maintenance and repair of the entire driveway as if it was their responsibility, and Ms. Teal’s testimony that she and her family believed they had the right to use the driveway for the purpose of parking their cars and accessing the side entrance of their house, I find that legal requirements in accordance with the law on lost modern grant for establishing a prescriptive easement on the subject property have been proven.

[20] Based upon this analysis, I declare that Nunes/Faria are entitled to a prescriptive easement for the ingress and egress of vehicles and pedestrians over the subject disputed property on 33 Mahoney. I also direct the Land Registrar to amend the title to both properties to reflect that it is subject to the Right-of-Way over the driveway.

[21] I wish to be clear, the easement that attaches to both properties and can be registered on title is to allow the owners of 31 Mahoney to drive through the property of 33 Mahoney that is immediately adjacent to the driveway and to have ingress/egress any motor vehicles parked on their portion of the driveway. This includes the portion of the property adjacent to the wooden fence. It is for no other purpose. In particular, they are not permitted to park on the property of 33 Mahoney or place any other property or item on that property unless they have the clear consent of the owners of 33 Mahoney.

[22] The Fernandes will not be permitted to build the fence that they wish.

[23] If the terms of the order cannot be agreed to, I can be spoken to about it.

[24] I would encourage the issues of costs be resolved between the parties. If it cannot, I will entertain written submissions, each one limited to two pages excluding any attachments (any Bill of Costs, Costs Outline, and authorities). Nunes/Faria shall file within 10 days of the release of these reasons. The Fernandes shall file within 7 days thereafter. There will be no reply submissions without leave of the court.

Justice S. Nakatsuru

Released: August 20, 2019