COURT FILE NO.: CV-19-43
DATE: 2019/11/29
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: CLARA AGNES THOMPSON
Applicant
and
TREVOR MERVIN LIDTKIE
Respondent
BEFORE: Justice A. Doyle
COUNSEL: Timothy J. Girard, Counsel for the Applicant
Self-represented with submissions made by Heather Phanenhour
HEARD: July 30 and November 13, 2019 at Pembroke, ON
Amended Decision
The text of the original decision dated November 28, 2019 was amended on November 29, 2019 and the description of the amendment is appended.
[1] The Applicant moves for an order permitting her to close an access road located on her property by the erection of a locked gate, the placing of rocks, or the placing of some other barrier on the access road. She also requests an order specifying the date on which the Applicant may close the access road to afford the Respondent time to construct an alternate road access to his adjacent property. Until the road is closed, she wishes the Court to order the Respondent to pay an annual fee for the use of the access road (although this was not claimed in the notice of application).
[2] The Respondent is opposing the Application and is requesting that the Court keep the access road open and grant a right-of-way across the Applicant’s property.
[3] The issues are:
Does the Respondent have the legal right to use the access road?
Should a closing order be made with respect to the access road on the Applicant’s property pursuant to s. 2(1)(a) of the Road Access Act, R.S.O. 1990, c. R.34 (the “Act”)?
Background
[4] The Applicant is the sole owner of real property (“Applicant’s property”) located in the Township of Madawaska Valley (“Township”), which has been in her family since the Second World War. The Applicant’s uncle, Guido Gruschwitz, became the sole owner in 1996 upon the death of the previous sole owner, his mother, Agnes Gruschwitz. Upon the death of her uncle on October 3, 2014, the property was transferred to the Applicant as a beneficiary, and transfer of title took place on April 18, 2017.
[5] The Respondent is the sole owner of a parcel of land immediately north of the Applicant’s property (“Respondent’s property”). He bought the property from Walter Lentz in November 2004 who had been the sole owner since 1966. Norman Lentz owned the property before Walter Lentz.
[6] Immediately adjacent and west of the parties’ properties is unpatented Crown land administered by the Ontario Ministry of Natural Resources and Forestry (“MNR”).
[7] The Applicant’s property is accessible by County Road 515 (also known as Palmer Road). The Respondent’s property is not directly accessible by County Road 515. It is accessible by driving on an access road that begins on the Respondent’s property, proceeds westerly crossing into the Crown land, turns easterly onto the Applicant’s property, and merges with a former loop road owned by the County of Renfrew (“County”). The access road ends at County Road 515.
[8] The access road is not registered as a right of way or easement on title on the parties’ properties.
[9] When Mr. Lentz was the owner of the Respondent’s property, he had the permission of Guido Gruschwitz and Agnes Gruschwitz to use the access road occasionally to access the property. According to the Applicant, Mr. Lentz had a small hunting cabin with no plumbing, electricity, or heating. He would use the property for the occasional hunt and would not stay overnight.
[10] The Respondent bought the property in 2004. He indicates that he and Walter Lentz had made maple syrup together. Since the original sugar shack was very small, the Respondent decided to build a bigger shack with a kitchen and sleeping quarters, as long hours, including evenings, are at times required to produce maple syrup. He built a “bunkhouse”, which housed a washroom, another sleeping quarter, and a generator room.
[11] The previous owners of the Respondent’s property, Walter Lentz and Norman Lentz, as well as the Respondent, obtained permission from the Gruschwitz owners to use the access road. This has been in place for the last six decades.
[12] In 2004, the Respondent obtained permission from Mr. Gruschwitz to use the access road on his infrequent visits to the Respondent’s property.
[13] In January 2014, the Respondent obtained the Township’s approval for an amendment to the zoning by-law to construct a maple sugar camp on the Respondent’s property. The amendment at By Law Number 2010-90, para. 1 (a)(2) provides for limited service residential. The amendment provides that a maple sugar camp means “a building or structure intended to provide basic shelter and accommodation on an occasional basis for persons and associated equipment engaged in the production of maple syrup derived on site.” (emphasis added)
[14] The Respondent and Township entered into an agreement dated December 15, 2013 and executed on January 9, 2014 that allows the Respondent to construct a driveway on part of a road allowance between the lots that would provide the Respondent direct access to County Road 515. This would allow him access to the maple syrup production facility that was approved with the zoning by-law amendment.
[15] The Respondent constructed a bunkhouse on his property in 2014 and has been using it as his main family residence. After his marital separation in 2015, he and his partner Kathleen Deschambeault, as well as her children moved in. He uses the access road on a daily basis along with his family, friends, and employees.
[16] While Mr. Guido Gruschwitz was away due to illness, the Applicant alleges that the Respondent widened the access road and covered it with gravel, but this is denied by the Respondent.
[17] The Respondent alleges that the Applicant barricaded the end of the access road at the entrance of the county road and the old loop thereby contravening the Act, but this barricade has been removed.
[18] In addition, the County, in their letter of November 28, 2018 to the Applicant’s counsel, indicated that it wished to preserve its right to ensure that the access over this parcel is maintained. The County expresses concerns of the impact on the Respondent to access his property where there are buildings located if the road is closed and also with respect to limiting the ability of emergency services to respond in a timely manner in the event of a life safety emergency.
[19] The Respondent states that in the 1950’s, Mr. Norman Lentz logged on his property using the same access road, and that in the 1980’s, he had a logging company.
[20] On May 6, 2017, in accordance with s. 2(1) of the Act, the Applicant sent a registered demand letter that the Respondent was not to use the access road, and the Respondent’s response was that he had an unfettered right to use the access road.
[21] The MNR and the County were served with this application, and they have provided written confirmation that they have no interest or concern with respect to the closure of the access road. The County had also indicated that they have no plans to use or develop the former loop road.
[22] A survey of the properties and the access road is attached as Appendix A to this decision.
Applicant’s Position
[23] The Applicant submits that the Respondent does not have a legal right to use the access road. Specifically, he does not have a prescriptive easement over the Applicant’s property via the access road as he has not met the necessary criteria. He has previously used it with permission of the Applicant and the previous property owners. Furthermore, he has substantially changed the use of the access road.
[24] The Applicant’s concerns are as follows:
She wishes to safeguard her property, as she indicates that a small storage shed on her property was vandalized;
She wishes to limit her liability to any mishaps or accidents that could occur on her property;
She has the burden of the upkeep of the property, and if the Respondent uses it on a daily basis, this could increase the maintenance and costs of it; and
The access road lowers the value of their property.
[25] The Respondent decided to build his maple sugar facility and his permanent residence knowing that he did not have access to the county road.
[26] The Applicant is prepared to give the Respondent time to make the appropriate arrangements to build the driveway that he was given permission to do when he signed the agreement with the Township in January 2014.
Respondent’s Position
[27] The Respondent states that in the past six decades, no predecessor on title on the Applicant’s property has denied the owners of the Respondent’s property access to the access road.
[28] The Respondent built a bunkhouse for the maple syrup facility, but after his marriage break-up in 2015, he started using it as a residence.
[29] In addition, there are numerous challenges in building the driveway as contemplated by the agreement, including the requirement of the road dimensions, a major creek, and the required consent of the Department of Fisheries and Oceans.
[30] He denies widening the road, covering it with gravel, or altering the access road in anyway.
[31] The gate installed by the Respondent was with the previous owner’s knowledge, Mr. Guido Gruschwitz’s, and Mr. Grushchwitz received a key to the gate.
[32] In summary, the Respondent has not built the driveway. The Respondent provides the following reasons for not building the new driveway:
A road allowance is 66 feet wide;
The very center of this road allowance is running down a major creek;
That means that the Respondent would have less than 33 feet to build a driveway, which is not enough room;
He expects that the MNR would require him to be 15 feet away from the creek, and that would leave 18 feet to build a driveway;
The Department of Fisheries and Oceans would have to complete a major study on this creek to determine if the driveway construction is feasible; and
An extremely large culvert would be needed to cross the creek, which would be very expensive.
Analysis
1. Does the Respondent have the legal right to use the access road?
Introduction
[33] First, the parties agree, and the Court finds that the access road meets the definition of “access road” under para. 1 of the Act:
“[A]ccess road” means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land; (“chemin d’accès”).
[34] Second, the Act provides that an individual may not interfere with the use of an access road unless certain criteria have been met. An individual may apply for closure of the road pursuant to s. 2:
2 (1) No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefor, not owned by that person unless,
(a) the person has made application to a judge for an order closing the road and has given ninety days’ notice of such application to the parties and in the manner directed by this Act and the judge has granted the application to close the road;
(b) the closure is made in accordance with an agreement in writing with the owners of the land affected thereby;
I the closure is of a temporary nature for the purposes of repair or maintenance of the road; or
(d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of prescriptive rights. R.S.O. 1990, c. R.34, s. 2 (1).
[35] Notice requirements pursuant to s. 2(3), (5) of the Act set out below have been satisfied here:
(3) Notice of an application to close an access road that is not a common road shall be served personally upon or sent by registered mail to the owner of each parcel of land served by the road who would, if the road were closed, be deprived of motor vehicle access to and from the owner’s land and, where the owner is not occupying the land, notice shall also be given to a tenant or occupant of the land by either,
(a) handing the notice to an adult person who is a tenant or occupant of the land; or
(b) posting the notice on the land in a place and manner that makes the notice conspicuous to an occupant of the land. R.S.O. 1990, c. R.34, s. 2 (3).
(5) Notice of an application made under subsection (1) or (2) shall be given by registered mail to the clerk of the local municipality and the clerk of the upper-tier municipality in which the road is situated or, in the case of a road located in territory without municipal organization, notice shall be similarly given to the Minister of Northern Development, Mines and Forestry. R.S.O. 1990, c. R.34, s. 2 (5); 2002, c. 17, Sched. F, Table; 2009, c. 33, Sched. 23, s. 8.
[36] In determining whether the Court will grant a closing order, the Court must consider the conditions set out in s. 3(1) of the Act.
3(1) The judge may grant the closing order upon being satisfied that,
(a) the closure of the road is reasonably necessary to prevent substantial damage or injury to the interests of the applicant or for some other purpose in the public interest;
(b) in the case of an access road that is not a common road, persons described in subsection 2 (3) do not have a legal right to use the road; or
the in the case of a common road, the persons who use the road do not have a legal right to do so. 2001, c. 25, s. 483.
[37] The conditions for a closing order are to be read disjunctively as set out in Margettie v. Snell, 2009 ONCA 838, 86 R.P.R. (4th) 166, at para. 26.
[38] The Court must determine whether the Respondent has a legal right to use the access road within the meaning of s. 3(1)(b) of the Act.
Easement by prescription
[39] The Respondent may obtain an easement if he meets the criteria set out in Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, 134 O.R. (3d) 401, where Gillese J.A. stated at para. 52:
there must be a dominant and a servient tenement;
the easement must accommodate the dominant tenement;
the owners of the dominant and servient tenements must be different persons; and
a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.
See Barbour v. Bailey, 2016 ONCA 98, 66R.P.R. (5th) 173 (Ont. C.A.), at para. 56.
[40] Here, the Respondent is the owner of the dominant tenement, and the Applicant is the owner of the servient tenement. The access road accommodates the dominant tenement and allows the Respondent access to his property.
[41] However, there is no express grant of the easement registered on title to the Respondent’s property; hence, the Respondent has not met this requirement.
[42] Therefore, the Court must determine if the Respondent has a legal right to an easement in another manner.
[43] The Respondent purports to argue that since he and his predecessors have been able to use the access road for six decades, they have the continued right to do so. In addition, it will be virtually impossible to construct a driveway to the County road; hence, the closure of the access road on the Applicant’s property will have the effect of denying them access to their property.
[44] I am guided by the thorough analysis of the law of prescriptive easements by Justice Perrell in Carpenter v. Doull-MacDonald 2017 ONSC 7560, aff’d 2018 ONCA 521. The Court dismissed the appeal and stated at para. 4:
The application judge carefully reviewed and applied the correct legal principles, including that a prescriptive easement requires the use of the property over which the easement is claimed to be “a claim of right which is continuous, uninterrupted, open and peaceful for a period of twenty years”: see s. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15; and Henderson v. Volk, 1982 CanLII 1744 (ON CA), [1982] O.J. No. 3138 (C.A.), at para. 12. Moreover, the use or enjoyment of the easement “must not be permissive but, instead, as if the claimant had the right to the easement”: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, at para. 59.
[45] An easement of prescription requires continuous, uninterrupted use of the access road for a period of at least 20 years immediately prior to the filing of the application to close the road.
[46] As stated at para. 103 in Lanty v. Ontario (Minister of Natural Resources), 38 R.P.R. (4th) 275 (affirmed by the Ontario Court of Appeal in 2007 ONCA 759), the use of the road must be open, known to the owner of the servient parcel of land, peaceful, and without permission. Permission need not be in writing. The Court, in referring to Ontario (Minister of Natural Resources) v. Holdcroft, 19 R.P.R. (4th) 70 (Ont. S.C.), stated the following:
When a right of way is established in this manner, the claim is analogous to one made for the adverse possession of title to land. As such, the possession must be adverse and without permission. The threshold is high for meeting such criteria. A prescriptive easement cannot be found if the plaintiff was granted a license, exercised a public right, or if permission of any sort was granted.
[47] In this case, the Respondent has admitted that he and his predecessors were given permission by the previous owners of the Applicant’s property.
[48] However, in 2014, when Guido Gruschwitz was absent from the property, the Respondent built his home, used the access road for the heavy trucks to build the home, and increased the intensity of the use of the access road.
[49] Mr. Gruschwitz was not present nor aware of this use.
[50] In 2017, the Applicant gave notice of her objection to the Respondent’s use of the access road. In the demand letter, she advised him that he no longer had permission to use the access road.
[51] Therefore, the Respondent has only had a prescriptive easement for three years of use of the access road without permission. Hence, the Respondent does not have the continuous, uninterrupted use of the access road without permission for the required 20 years.
[52] As stated in numerous cases, and specifically in Lanty, at para. 105:
[c]ourts will not convert permissive acts into legal rights, turning “neighbourly accommodation” against the owner. In Blankstein [v. Walsh (1988), 1988 CanLII 7198 (MB KB), 55 Man. R. (2d) 125 (Man. Q.B.)], the court concluded that the use was permissive in origin. The oral permission that founded the use of the property was fatal to a claim for prescriptive easement.
[53] This was stated in another way in Henderson et al. v. Volk et al.(1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (Ont. C.A.) at para. 21:
It is right and proper for the courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant was established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor.
[54] Therefore, the Respondent’s claim for a prescriptive easement fails on this ground alone.
[55] Alternatively, the Court finds that this claim is also defeated, as the Respondent has changed the intensity of his use of the access road. (See Henderson).
[56] This principle was enunciated in British Railways Board v. Glass, [1965] Ch. 538 (C.A.), where Lord Denning stated at p.422 that:
It is quite clear that, when you acquire a right of way by prescription, you are not entitled to change the character of your land so as substantially to increase or alter the burden upon the servient tenement. If you have a right of way for your pasture land, you cannot turn it into a manufactory and claim a right of way for the purposes of the factory. If you have a right of way by prescription for one house, you cannot build two more houses on the land and claim a right of way for the purposes of those houses also. I think this rule is not confined to the character of the property. It extends also to the intensity of the user. If you use your land for years as a caravan site for six caravans and thereby gain a prescriptive right over a level crossing, you are not thereby entitled to put 30 caravans on the site and claim a right for those 30.
[57] The Court finds that the Respondent has changed the intensity of the use of the access road after 2014 when he built his home on his property after being granted permission by the Township to set up a maple sugar facility there. Not only does the Respondent, his family, friends, and workers use the access road on a daily basis, the access road has also seen traffic of vehicles who attended the Respondent’s property to clear the land and build his home.
[58] This is in contrast to the previous use by the Respondent prior to 2014 and of the previous owners of the Respondent property who used it occasionally for hunting and fishing. There was also no permanent residence there previously.
Easement as per the doctrine of lost modern grant
[59] An easement can also arise by way of the doctrine of lost modern grant. In Ebare v. Winter, 2005 CanLII 247 (ON CA), 193 O.A.C. 174, Simmons J.A., speaking on behalf of the Ontario Court of Appeal, stated at para. 29 that:
[…] the doctrine of lost modern grant is a legal fiction created prior to the enactment of statutory limitation periods that was designed to counteract the harshness of the common law rules relating to prescription. Under the doctrine of lost modern grant, juries were instructed to presume a lost grant in circumstances of lengthy use even though use from time immemorial could not be established. However, the presumption did not arise until sufficient use during the necessary period was established.
[60] As stated by Cory J.A. in Henderson at paras. 13-15:
[…t]he doctrine indicates that where there has been upwards of twenty years uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfill the requirements of prescription, then apart from some aspects such as incapacity that might vitiate its operation but which do not concern us here, the law will adopt the legal fiction that such a grant was made despite the absence of any direct evidence that it was in fact made.
It should be emphasized that the nature of the enjoyment 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 the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of twenty years. However, in the case of the doctrine of lost modern grant, it does not have to be the twenty-year period immediately preceding the bringing of an action.
As well, the enjoyment must not be permissive. That is to say, it cannot be a user of the right-of-way enjoyed from time to time at the will and pleasure of the owner of the property over which the easement is sought to be established [citations omitted].
[61] Cory J.A. in that decision repeats the principle set out in British Railways that the nature of the user cannot be changed by the owner of the dominant tenement.
[62] Here, the Respondent’s claim fails as well, as it is apparent that the use by the dominant tenant until 2014 was a permissive use, and as such, does not create an easement. It was as the cases describe “no more than good neighbourliness” (Henderson).
[63] The Respondent has not established this essential aspect of an uninterrupted use.
[64] Therefore, the Respondent has not established the use necessary to establish a prescriptive title under either the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, or the doctrine of lost modern grant.
Easement by necessity
[65] An easement can also arise by necessity. In McClatchie et. Al v. Rideau Lakes (Township) et al., 2015 ONCA 233, 333 O.A.C. 381, the Ontario Court of Appeal stated that at paras. 48 and 49:
Easements of necessity are easements presumed to have been granted when the land that is sold is inaccessible except by passing over adjoining land retained by the grantor. The concept arises from the premise that the easement is an implied grant allowing the purchaser to access the purchased lot. See Nelson v. 1153696 Alberta Ltd., 2011 ABCA 203, 46 Alta. L.R. (5th) 113, at paras. 40-43, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 423; and Dobson v. Tulloch (1994), 1994 CanLII 7239 (ON SC), 17 O.R. (3d) 533 (C.J. (Gen. Div.)), aff’d (1997), 1997 CanLII 14542 (ON CA), 33 O.R. (3d) 800 (C.A.)..
Necessity is assessed at the time of the original grant: Nelson, at para. 42; Dobson, at p. 541.
[66] One of the prerequisites for an easement of necessity is that it must be necessary to use or access the property; if access without it is merely inconvenient, the easement will not be implied (see Nelson, at para. 38).
[67] In Dobson, Pardu J. stated this at paras. 36-37:
In Abell v. Woodbridge (Village) (1917), 1917 CanLII 505 (ON SC), 39 O.L.R. 382, Masten J. [at p. 389] quoted with approval Lord Herschell in Phillips v. Halliday, [1891] A.C. 228 [at p. 231]:
where there has been long-continued possession in assertion of a right, it is a well-settled principle of English law that the right should be presumed to have had a legal origin if such a legal origin was possible, and the courts will presume that those acts were done and those circumstances existed which were necessary to the creation of a valid title, and went on to conclude that in view of the long use of an easement, the presumption applied in favour of the establishment of a legal origin of the easement.
In the case before me, because of the continuous and uncontested use of the way over Parcel 1153 Algoma from at least 1911 to the 1970s, it seems apt to conclude that the way was in existence in 1891 and was necessary for the reasonable enjoyment of the property granted to Moses in 1891. In the application of this principle, I do not consider that it is necessary to infer the existence of an express grant of an easement in a deed which has been lost. There is no evidence that access to the properties was ever gained by water before 1970.
[68] The implication that “on a grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those apparent and continuous easements or, in other words, all those easements which are necessary to the reasonable enjoyment of the property” (Anger & Honsberger, The Law of Real Property, 2nd ed. By A.H. Oosterhoff and W.B. Rayner, vol. 2 (Aurora: Canada Law Book Inc., 1985), at p. 934) is based upon the principle that one may not derogate from a grant. Further, the requirement of necessity is interpreted with more latitude than what is required to find an “easement of necessity”.
[69] As summarized in Halsbury’s Laws of Canada, “Real Property”, (Toronto: LexisNexis Canada Inc., 2016 Reissue), at HRP-307:
There is a distinction of great importance between easements of necessity and easements which are merely necessary for the reasonable enjoyment of the property granted. Where an owner of land grants a part of land and retains other parts for himself all easements necessary for reasonable enjoyment are usually implied in favour of the part so granted; but such easements are not raised by implication in favour of the part retained unless they are easements of a much more restricted class, namely “easements of necessity” without which no enjoyment at all would be possible. The necessity to be considered must be evaluated at the time of the grant.
[70] In Nelson, leave to appeal to the Supreme Court of Canada was refused. At para. 38, the following was stated: “Not the least of these is the requirement that the implied right of way must be absolutely necessary for the use of the property. Mere convenience of access is not sufficient.”
[71] Rights of way of necessity are acquired by implied grant. A grant of a way of necessity is presumed to have been made whenever land has been sold that is inaccessible except by passing over the adjoining land of the grantor or by committing a trespass upon the land of a stranger, or when an owner of the land sells a portion and reserves a part which is inaccessible except by passing over the land sold. This species of right has been recognised from very early times and is said to depend upon the principle that when a grant is made, every right is also presumed to have been granted, without which the subject of the grant would be useless.
[72] In McClatchie, at the time of the original grant, a road allowance gave the McClatchies a legal route to access the property. However, the owners preferred to drive over the Respondent’s property. As stated by Rouleau J.A. at para. 53: “One of the prerequisites for an easement of necessity is that it must be necessary to use or access the property; if access without it is merely inconvenient, the easement will not be implied.”
[73] In this case, prescription by necessity is not borne out in the evidence. There is no evidence that it will be impossible for the Respondent to build a road on the road allowance provided to him in the agreement with the Township.
[74] The Respondent indicates that there will be a number of issues with the creek. He indicates that the creek in the spring time, as shown in the photos, exhibits a flowing and active creek. He indicates the creek, at his highest, can be 30 feet wide.
[75] There’s no evidence that states that the Department of Fisheries and Oceans would not approve the road allowance in the creek area. The road allowance permitted by the municipality is 66 feet wide. Certainly, there is an opportunity for the Respondent to build a road of at least 36 feet wide based on those dimensions.
[76] This issue was also considered in Toronto-Dominion Bank v. Wise, 2016 ONCA 629, 133 O.R. (3d) 195, by the Ontario Court of Appeal, which allowed an appeal from a decision that found an easement by necessity at paras. 32 and 34:
The application judge’s error flows from his conclusion that the necessity test had moved from strict necessity to “practical necessity”. This is not correct. The necessity test has not been reduced to a requirement of “practical necessity”, as the Nova Scotia Supreme Court held in Hirtle. The recent decisions of this court in McClatchie and Barbour reaffirm that the test for easements of necessity in Ontario is “strict necessity”.
This is reflected in McClatchie, which describes easements of necessity as arising as a matter of presumption and as an implied aspect of the grant. As the English Court of Appeal explained in Nickerson v. Barraclough, [1981] Ch. 426 (Eng. C.A.), at p. 447[.]
[77] I find that the access road is reasonably necessary for the Respondent’s enjoyment of his property. However, this does not prove necessity, as there is a road allowance that is available through the Respondent’s agreement with the municipality to build a driveway to the county road.
[78] The Respondent prefers the current access road to the idea of incurring expense, time, and effort, as well as having to apply to the Department of Fisheries and Oceans to build a driveway. He prefers the access road that does not cost him anything, is convenient, and is available at this time. This does not give rise to an easement of necessity.
Easement by adverse possession
[79] Finally, an easement can arise out of the law of adverse possession. This was not argued here as it has no application. The Ontario Court of Appeal in McClatchie at paras. 9 to 13 stated the following:
[…]To establish adverse possession of certain lands, a claimant must demonstrate that throughout the ten-year adverse possession period, he or she: a) had actual possession of the lands in question; b) had the intention of excluding the true owner from possession; and c) effectively excluded the true owner from possession: Masidon Investments Ltd. V. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 567.
An adverse possession claim will fail unless the claimant meets each of the three criteria, and time will begin to run against the true owner of the lands only from the last date when all three are satisfied: Masidon, at p. 567.
To establish actual possession, the acts of possession must be “open, notorious, peaceful, adverse, exclusive, actual and continuous”: Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), at p. 221. If any one of these elements is missing at any time during the statutory ten-year period, the claim for possessory title will fail: Teis, at p. 221.
If the claimant acknowledges the right of the true owner, then possession will not be adverse. Acknowledgment of title will thus stop the clock from running: Teis, at p. 221; Goode v. Hudon (2005), 30 R.P.R. (4th) 202 (Ont. S.C.), at para. 184; 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, 114 O.R. (3d) 241, at para. 73. Legislation likewise makes this clear. Section 13 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, provides that a written and signed acknowledgment of title to land resets the clock for an adverse possession claim over that land [footnotes omitted].
[80] Here, the Respondent does not have an adverse possession claim as he does not meet the three criteria.
[81] In this case, the Respondent has not established that he has excluded the true owner of the access road from its possession. The Respondent has not provided evidence that his use of the access road was “open, notorious, peaceful, adverse, exclusive, actual and continuous” as required in McClatchie and Masidon Investments Ltd.
Other
[82] The Act herein does not empower the Court to grant a right of way or easement.
[83] Section 6(1) of the Act reads:
Saving
6 (1) Nothing in this Act shall be construed to confer any right in respect of the ownership of land where the right does not otherwise exist at law and nothing in this Act shall affect any alternative remedy at law available to any applicant or other person. R.S.O. 1990, c. R.34, s. 6 (1).
2. Should a closing order be made with respect to the access road on the Applicant’s property pursuant to s. 2(1)(a) of Act?
[84] The Court does have residual discretion to refuse to close the access road even if only one of the conditions have been satisfied. I have found that the Respondent does not have a legal right to use the road.
[85] At this time, there is no alternative road access to the Respondent’s property. He has alternatives pursuant to the agreement with the Township, but he indicates that there are too many hurdles and challenges to construct that driveway. He has not provided evidence to support this position.
[86] I decline to exercise my discretion. In Magettie v. Snell, Gillese J.A. of the Ontario Court of Appeal dismissed an appeal where the trial judge closed the road, as he found that it was in the public interest to close the road and that the right to build a road could be granted.
[87] It does not automatically follow, absent a legal interest to an easement to the access road, that the Applicant is entitled to a closing order.
[88] Leitch J. in 553173 Ontario Ltd. V. Bank of Montreal (1995), 1995 CanLII 7246 (ON SC), 26 O.R. (3d) 617 (Ont. Ct. J.), stated at para. 39 that:
[…] considering the purpose of the Act and the specific provisions of s. 2(1), I find that in order for a road to be declared an access road, the road, if closed, must prevent all road access to one or more parcels. Only then would it be justifiable to interfere with the landowner’s property rights even in the very narrow manner which the Road Access Act provides.
[89] The onus is on the Respondent to demonstrate that there is no alternate access to his property. As stated in Bogart v. Thompson (2002), 1 RPR 4th 199 (Ont. SC), at para. 28, there must be no alternate access, and the onus is not met with physical inconvenience. Rather, the physical impediments must be insurmountable.
[90] In Atkins v. Carter, 23 R.P.R. (4th) 311, the Court stated at para. 26 that the test is “closer to impossibility than it is to inconvenience or expensive.”
[91] In McClatchie, the township of South Elmsley created a subdivision plan that provided for a 40-foot road allowance running between the lots of the property owners and the municipal road. No road had been built on the road allowance. Instead, the McClatchies and prior owners used a gravel road that cut across the Churchill property.
[92] The Ontario Court of Appeal overturned the trial decision that found that there was an easement of necessity, as the McClatchies’ could use the road allowance to access their lot.
[93] I follow the approach of Simmons J.A. in Limlaw v. Ryan, 2009 ONCA 832, 99 O.R. (3d) 514, where she stated at footnote no. 2:
[…] it is inadvisable for a landowner to erect a barrier that excludes a eighbor from a private road without first obtaining a declaration that the eighbor has alternate access if that issue is controversial. Otherwise, the landowner runs the risk of violating the prohibition in s. 2 and committing an offence under s. 7.
[94] I find that the Respondent does have alternate access to the highway as was granted by the Township, and he has not met his onus of showing that it is impossible to build the driveway in the road allowance. He has merely provided a survey showing the 66-foot road allowance and photos of a creek that he says (without any evidence) can reach the width of 33 feet. He says that the Department of Fisheries and Oceans may set up many demands if he were to build a bridge or culvert over the creek. No evidence has been provided by him to indicate that the Department of Fisheries and Oceans would not approve that culvert or bridge. He indicates that with his experience, there will be a study that will need to be conducted to ensure no disruption with nature, but he has not provided evidence of these challenges.
[95] An adjournment from the original date of July 2019 was granted to November 2019 to obtain further evidence, and he has merely filed the survey showing the road allowance, the parties’ respective properties, the access road, and the creek.
[96] The Respondent has fallen short of providing the evidence to the Court that he meets the requirements of easement by necessity.
[97] I agree with Mew J.’s disposition in Brown v. Savage, 2017 ONSC 4357, 89 R.P.R. (5th) 95. I am prepared to provide conditions or caveats to the Applicant closing the access road.
[98] As it will take time for the Respondent to build his driveway on the road allowance, the Court will provide some conditions to the road closure. However, I decline to order that the Respondent pay a fee for the use of the access road in the interim, as this was not claimed in the Application.
[99] The Applicant is permitted to close the access road, as indicated in its Application, subject to the following:
i) The Respondent may use the access road for the limited purpose of accessing his property, but shall not interfere with the use and enjoyment of the property of the Applicant and her occupants;
ii) The enforcement of this road closure judgment is suspended for a period until December 31, 2020 to the extent that the Applicant shall not close or block the access road and thereby prevent the use of the access road by the Respondent for the limited purpose of providing vehicular access to and from the Respondent’s property.
iii) Either party is at liberty to request from the Court a variation or termination of the period of suspension set out above pursuant to Rule 59.06 of the Rules of Civil Procedure and/or s. 3(2) of the Road Access Act and shall do so by a motion which sets out the relief sought, the reasons, and the evidence relied upon.
[100] I am not seized of the matter, but in the interests of judicial efficiency, the parties should first seek a date with me through the Trial Coordinator if an attendance is required pursuant to para. 99(iii) above.
[101] The Applicant has been successful and is presumptively entitled to costs of this Application. If the parties cannot agree on the issue of costs, then the Applicant will provide her two-page submission with offers to settle and bill of costs on or before December 9, 2019, and the Respondent will provide his two-page cost submission with any offers to settle and bill of costs on or before December 20, 2019. The Applicant is entitled to file a one-page reply on or before December 31, 2019.
Justice A. Doyle
Date: November 29, 2019
APPENDIX
Self-represented with submissions made by Kathleen Deschambeault should now read: Self-represented with submissions made by Heather Phanenhour.
COURT FILE NO.: CV-19-43
DATE: 2019/11/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: CLARA AGNES THOMPSON
Applicant
and
TREVOR MERVIN LIDTKIE
Respondent
BEFORE: Justice A. Doyle
COUNSEL: Timothy J. Girard, Counsel for the Applicant
Self-represented with submissions made by Heather Phanenhour
HEARD: July 30 and November 13, 2019 at Pembroke, ON
DECISION
Justice A. Doyle
Released: November 29, 2019