COURT FILE NO.: CV-17-4SR

DATE: 2019/11/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LOUIS BALOGH and SANDRA AILEEN BALOGH

– and –

R.C. YANTHA ELECTRIC LTD. and RODNEY YANTHA

AND BETWEEN:

R.C. YANTHA ELECTRIC LTD.

Robert A. Leck, for Plaintiffs and Defendants by Counterclaim

James L. MacGillivray, for the Defendants and R.C. Yantha Electric Ltd., Plaintiff by Counterclaim

James L. MacGillivray, for the Defendants and R.C. Yantha Electric Ltd., Plaintiff by Counterclaim

-and-

LOUIS BALOGH and SANDRA AILEEN BALOGH

Robert A. Leck, For Plaintiffs and Defendants by Counterclaim

HEARD: May 13, 14, 15 and 16, 2019 (Pembroke) with further written submissions June 28, 2019

REASONS FOR DECISION

H.J. Williams, J.

Table of Contents

INTRODUCTION.. 2

THE ISSUES. 3

BACKGROUND.. 3

ANALYSIS. 7

Issue #1: Is the Baloghs’ property subject to a right of way in favour of Yantha Electric’s property?. 7

Issue # 2: If the Baloghs’ property is subject to a right of way, what is the description of the right of way? 27

Issue #3: Is there an access road on the Baloghs’ property under Ontario’s Road Access Act ?. 27

Issue #4: Is anyone entitled to an injunction?. 34

Issue #5: Are the Baloghs entitled to damages?. 34

CONCLUSION.. 35

COSTS. 35

INTRODUCTION

[1] When Louis and Sandra Balogh decided to buy recreational property on a lake near Killaloe, Ontario, it was important to them that no one else would have the right to use their property. The Baloghs were looking for a quiet location to enjoy their retirement. Dr. Balogh described himself as a private person and Sandra Balogh did not want any hunters nearby. The Baloghs also wanted the property to be suitable for visits from their nieces, nephews, and grandchildren.

[2] In 2005, the Baloghs bought lot 27, concession 8, in the Township of Killaloe, Hagarty and Richards, a 100-acre property on Stevenson Lake. It was a vacant lot. When the Baloghs spent time there, they stayed in a trailer near the lake.

[3] Just over nine years later, in late 2014, Rodney Yantha dropped in on the Baloghs and informed them that, through his company, R. C. Yantha Electric Ltd., he had just bought part of lot 26, concession 8, land immediately to the east of the Baloghs’ property. Rodney Yantha asked Dr. Balogh to sign an acknowledgment that a non-municipal road crossed the Baloghs’ property and that, as the owner of part lot 26, concession 8, Yantha Electric also had a right of way over the Baloghs’ property.

[4] Dr. Balogh did not sign the acknowledgement and bad blood began to flow across the lot line that was now shared by the Baloghs and Yantha Electric. Rodney Yantha took down part of a chain link fence Dr. Balogh had built years earlier that blocked what Rodney Yantha said was an access road and his right of way. Dr. Balogh replaced the fence three times but gave up when Rodney Yantha continued to take it down. Dr. Balogh erected a large “no trespassing” sign, which disappeared. Dr. Balogh called the police to complain that Rodney Yantha was trespassing but was told that it was a civil matter. The Baloghs accused Rodney Yantha of clearing trees and bushes on their property without permission. At trial, Rodney Yantha said that he had only cut back some low-hanging limbs so that branches and pine cones would not damage his truck as he drove across the Baloghs’ lot to access what was now his company’s property.

[5] Since the 1970s, there had been no buildings on the Yantha Electric property other than the remnants of an old cabin that had burned down. At trial, Rodney Yantha said that he plans to sever the Yantha Electric property to build a cottage for each of his three children.

[6] In May 2017, the Baloghs started an action against Yantha Electric and Rodney Yantha seeking damages for trespass to property, an injunction prohibiting the defendants from crossing the Baloghs’ land and a declaration that there is no right of way. Yantha Electric counterclaimed, seeking a declaration that there is a right of way, and an injunction prohibiting the Baloghs from blocking the right of way or otherwise denying the defendants motor vehicle access to and from Yantha Electric’s part of lot 26. Initially, the defendants also sought damages for trespass to property, but they abandoned that claim at the trial.

[7] The action and counterclaim were tried in Pembroke.

THE ISSUES

[8] The issues are the following:

1. Is the Baloghs’ property subject to a right of way in favour of Yantha Electric’s property?

2. If so, what is the description of the right of way?

3. Does an access road under Ontario’s Road Access Act cross the Baloghs’ property?

4. Is anyone entitled to an injunction?

5. Are the Baloghs entitled to damages?

BACKGROUND

[9] One of the plaintiffs, Louis Balogh, is a recently-retired pediatrician from Newmarket, Ontario. The other plaintiff, Sandra Aileen Balogh, is Dr. Balogh’s wife. Ms. Balogh attended but did not testify at the trial.

[10] In 2005, the Baloghs bought lot 27, concession 8, in the Township of Killaloe, Hagarty and Richards. Dr. Balogh and his brother, Zoltan Balogh, later bought part of the lot to the east of lot 27, which was part of lot 26, concession 8.[^1]Yantha Electric later purchased the other part of lot 26.

[11] Lot 27 was registered under the Registry Act, R.S.O. 1990, c. R.20 until June 14, 1999, when it was transferred to registration under the Land Titles system. This becomes relevant later.

[12] Eldon Yantha, Rodney Yantha’s father, owns lot 28, concession 8—the lot immediately to the west of the Baloghs’ lot 27. There is a gravel pit on lot 28 which is no longer operational.

[13] Eldon Yantha inherited his property from his father, Michael Yantha.

[14] Lot 29, the lot immediately to the west of Eldon Yantha’s lot, belongs to Rodney Yantha. Eldon Yantha bought lot 29 in the early 1990s and transferred it to Rodney Yantha about two years later. There is a hunting camp on lot 29.

[15] Lot 30, just to the west of Rodney Yantha’s lot 29, is owned by the Crown.

[16] In the fall of 2014, Rodney Yantha, through his company, R.C. Yantha Electric Ltd., bought part of lot 26, concession 8. Yantha Electric’s part of lot 26 is immediately north of the part of lot 26 owned by Dr. Balogh and his brother and immediately east of the Baloghs’ lot.

[17] At trial, because of its shape, Yantha Electric’s part of lot 26 was frequently referred to as “the triangle property” or “the triangular property.” In these reasons, I will refer to it as “the triangular property.”

[18] Yantha Electric bought the triangular property from Gerry Roche. Mr. Roche is a retired teacher and school principal who now lives in Pickering. Mr. Roche inherited the triangular property from his father, Martin Roche, who had inherited it from his own father. When I refer to “Mr. Roche” in these reasons, I will be referring to Gerry Roche. Mr. Roche testified that he believes his grandfather bought the triangular property in the 1920s or 1930s.

[19] Mr. Roche testified that he used the triangular property for fishing and partridge hunting. He owns a cottage on a large property on Round Lake, several kilometres away. He said that he visited the triangular property “three or four or more” times each year—three or four times in the summer, and then in the fall hunting season. Mr. Roche’s Round Lake cottage had also at one time been owned by his grandfather. Mr. Roche testified that his grandfather bought the Round Lake cottage in the 1930s.

[20] There was evidence at trial that there may have been a lumber mill located on the triangular property in the 1800s.

[21] The chart below, created based on the evidence at trial, illustrates the relative locations of the concession 8 lots and provides the chains of title for these lots.

WEST

LOT 30

LOT 29

LOT 28

LOT 27

PART OF LOT 26 (the “triangular property”)

EAST

The Crown

Rodney Yantha, from 1994 to 1996, approx., to present.

Eldon Yantha, from 1998 to present.

Louis and Sandra Aileen Balogh, from June 10, 2005 to present.

R.C. Yantha Electric Ltd., from fall, 2014 to present.

Eldon Yantha, from 1992 or 1994, approx., to between 1994 and 1996, approx.

Michael Yantha, from the 1930s, “maybe,” to 1998.

1245906 Ontario Ltd., from January 24, 2003 to June 10, 2005,

Gerry Roche, from 1983 to fall 2014.

Robert Blake Howe, Philip Abbott Siegel, from October 31, 1991 to January 24, 2003.

Gerry Roche’s father, Martin Roche, from 1950 to 1983.

Robert Howe, Philip Siegel, and Frank Yantha, from June 15, 1990 to October 31, 1991.

Gerry Roche’s grandfather, from “around 1920 or 1930” to 1950.

Shoosplin-Woods Limited and its successors, Murray Brothers Lumber Company (1969) Limited, Murray Brothers Lumber Company Limited, and Murray Bros. Lumber Company Limited, from September 30, 1955 to June 15, 1990.

Eldon Yantha testified that “MNR” owned the property before Gerry Roche’s father. Gerry Roche testified that his grandfather owned the property prior to his father.

Gerry Roche testified that “the Bolands” who owned the hardware store in Killaloe owned the property before Shoosplin-Woods Limited and its successors.

Michael Yantha, as a “free grant settler” acquired the property from the Crown on July 4, 1930. There was no evidence with respect to how long Michael Yantha owned the property.

[22] In their statement of claim, the Baloghs plead that “an undefined old path or track of some sort” crosses their property through the bush. In their statement of defence and counterclaim, Rodney Yantha and Yantha Electric describe this path or track as a “right of way” and plead that it is also an access road.

[23] In these reasons, I will refer to this path, track, right of way or road as “the red track”. “Red” because it appears as a red line on a hand-drawn map that was made an exhibit[^2] and referred to frequently at trial, and “track” because I consider it to be the most neutral of the parties’ descriptors.

[24] On this hand-drawn map, at its western limit, the red track connects with Turners Road on lot 31, just to the west of lot 30. From west to east, the red track crosses lots 30, 29, 28, 27 and 26. It turns north on lot 26 and continues north-east toward Stevenson Lake.

[25] On this map, the red track appears as a horizontal line on the Baloghs’ lot and crosses the lot north of the mid-point of the lot’s north/south axis. On another map, prepared by Ottawa Valley Forest Inc.,[^3] the line identified as the red track crosses the lot’s north/south axis close to the mid-point and appears effectively to cut the lot in half.

ANALYSIS

Issue #1: Is the Baloghs’ property subject to a right of way in favour of Yantha Electric’s property?

Law

[26] In its traditional sense, a right of way is a type of easement: Osoyoos Indian Band v. Oliver, 2001 SCC 85, [2001] 3 S.C.R. 746, at para. 82.

[27] In Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff’d 2018 ONCA 521, 92 R.P.R. (5th) 47, Perell J. reviewed the law of prescriptive easements. This thorough survey is instructive. Below, I have summarized the principles identified in Carpenter that are most relevant to this case:

a. An easement is a right of usage over a property, which is described as a “servient tenement,” that is annexed to a parcel of land, which is described as the “dominant tenement”: para. 33.

b. There are four major requirements for or characteristics of an easement: 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; second, the dominant and servient tenements cannot be owned by the same person; third, the easement must accommodate—that is, better or advantage—the dominant land; 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: paras. 35-39.

c. Subject to the effect of the Land Titles Act, R.S.0. 1990, s. L. 5, which I discuss further below, an easement may be established under the Real Property Limitations Act, R.S.O. 1990, c. L. 15 or pursuant to what is known as the doctrine of lost modern grant.

Easements under the RPLA: Section 31 of the RPLA provides for either a 20-year period or a 40-year period for the creation of a prescriptive easement. The 20- or 40-year period of “prescriptive use” must be the period immediately before the commencement of the action in which the easement is claimed: Carpenter, at para. 42.

Easements under the doctrine of lost modern grant: At common law, prescription was based on the legal fiction that, after 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. For an easement to be created by the doctrine of lost modern grant, it is not necessary for the duration of use to immediately precede the commencement of the action. 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: Carpenter, at paras. 40 and 42.

d. The nature of the enjoyment of the land necessary to establishing an easement under the doctrine of lost modern grant is the same as that required to establish an easement by prescription under a statute of limitations: Carpenter, at para. 42.

e. To establish a prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open, and peaceful use of the land without objection by the owner. 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,” or “without violence, without stealth (secrecy), without permission”: para. 43.

f. 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 license), and the owner of the dominant tenement must actually manifest an ownership right; i.e., an entitlement to use the easement: para. 44.

g. A claimant may rely on the use of predecessor owners to make up the requisite period of “as of right” use: para. 44.

h. The owner of the servient tenement must know that the owner of the dominant tenement is using the servient tenement, and must have consented or acquiesced to the establishment of an 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. Knowledge on the part of the owner of the servient tenement is necessary because a person cannot, as a general rule, be found to have consented to or acquiesced in the acquisition by his neighbour of an easement through use unless the person has either actual or constructive knowledge of the use: para. 47.

i. 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. 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. 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. If, during the 20-year period, the dominant tenement owner acknowledges that his or her use is with permission, this prevents the acquisition of a prescriptive right: para. 48.

j. The onus of proof of the requisite use is on the owner of the dominant tenement. 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, so as to indicate to the ordinarily diligent owner of the servient tenement that a right is being claimed: para. 50.

k. The threshold for meeting the criteria for establishing a prescriptive easement under the RPLA 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 compensation: para. 51.

l. 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: para. 51.

m. Where lands under the Registry Act become registered under the LTA, they will be subject to matured claims the owner or person interested in any adjoining land has acquired in respect of the land by prescription or possessory rights or under the doctrine of lost modern grant. However, once lands are registered under the LTA, an unripe claim for adverse possession or for prescriptive rights will never ripen. Pursuant to s. 51 (1) of the LTA, 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: para. 54.

n. The registration of lands under the LTA will interrupt the running of the 20-year period immediately preceding any action and will prevent the prescriptive right from crystallizing under the RPLA. However, a pre-existing prescriptive right established pursuant to the doctrine of lost modern grant will survive the registration of title under the LTA and, in the case of the doctrine of lost modern grant, the 20-year period does not have to immediately precede the commencement of the action claiming the right: para. 55.

Discussion

[28] To establish a prescriptive right of way, Yantha Electric may not rely on the provisions of the RPLA and must look instead to the doctrine of lost modern grant.[^4]

[29] As Perell J. noted at para. 42 of Carpenter, the nature of the use of property that must be proven to establish a right of way under the doctrine of lost modern grant is the same as that required under the RPLA.

[30] This means that Yantha Electric must prove, through clear and unambiguous evidence, that all of the requirements for a right of way existed for at least a 20-year period before but not necessarily immediately before June 14, 1999, the date the Baloghs’ property, lot 27, was transferred from Registry Act registration to the Land Titles system.

[31] Yantha Electric must prove that during this 20-year period: (1) there was a continuous, uninterrupted, open, and peaceful use of the red track over lot 27 by the owners of the triangular property, without objection by the owners of lot 27; and (2) the owners of lot 27 knew or ought to have known that the owners of the triangular property were using the red track over lot 27.

QUESTION ONE: Was there, for a 20-year period before but not necessarily immediately before June 14, 1999, a continuous, uninterrupted, open, and peaceful use of the red track over lot 27 by the owners of the triangular property, without objection by the owners of lot 27?

[32] Although the answer to this question will turn on events that took place before June 14, 1999, testimony about events both before and after June 14, 1999 informed my assessment of the evidence.

i) The evidence of Gerry Roche

[33] I will begin by considering the evidence of Gerry Roche, whose family owned the triangular property as of 1920 or 1930, when Mr. Roche’s grandfather purchased it, until Mr. Roche sold the property to Yantha Electric in the fall of 2014.

[34] Mr. Roche inherited the triangular property from his father when his father died in 1983. Mr. Roche’s father had inherited the property from his own father, Mr. Roche’s grandfather. Mr. Roche said that his grandfather died in 1950.

[35] Mr. Roche did not spend a great deal of time on the triangular property over the years. His family owned a cottage on Round Lake, about three or four kilometres away. Mr. Roche said that the Round Lake cottage had been in his family since the 1930s. Mr. Roche inherited the Round Lake cottage from his parents. His father had inherited it from his own father.

[36] Mr. Roche said he first visited the triangular property when he was probably about eight to 12 years old. Given that he was born in 1951, his first visit would have been in the 1959 to 1963 timeframe. Mr. Roche said that he visited the property on this first occasion with his father. He said that he has a vivid memory of this event because they encountered a family of squatters in the cabin that was on the property at the time, including a man who had a hook in the place of one of his hands.

[37] Mr. Roche said that there were two access routes to the triangular property: an east/west route, which would be the red track, and a north/south route. He said that the first time he visited the property with his father, they were driving a car. He said they entered using the north/south route and exited using the east/west route.

[38] Mr. Roche said that, ever since his first visit to the triangular property, he visited the property “three or four or more” times a year. These visits took place mostly in the summer but also in the fall, when he would hunt partridge.

[39] Mr. Roche said that he may have missed one year of visiting the property.

[40] He said that he last visited the property in October 2018.

[41] Mr. Roche said that when he visited the triangular property, he used both routes, but mostly the red track. He said that Ken Recoskie, who owned the property with the north/south route, put up a gate blocking the north/south route, probably in the mid-1980s. Mr. Roche said that Mr. Recoskie had told him that he could continue to use the north/south route and that the gate was to keep blueberry pickers out; it was not meant to stop the Roches from using the north/south route.

[42] Mr. Roche said that his parents visited the triangular property two, three, or four times each summer, and that they would also check on the property when they visited the area in the off season.

[43] Mr. Roche said that his parents also used both the red track and the north/south route to access the triangular property.

[44] Mr. Roche said that his grandfather lived in Killaloe and was a timber cruiser in Algonquin Park. Mr. Roche said his grandfather would stay at the Round Lake cottage or at the cabin he had built on the triangular property and then head into the park the next day.

[45] There was no evidence about how frequently Mr. Roche’s grandfather visited the triangular property or whether he took the red track to get there.

[46] Mr. Roche testified that his father had asked Eldon Yantha’s father, Michael Yantha, and another neighbour, Ranson Eno, to check on the triangular property for him. Mr. Roche said that, after his father died, he asked Rodney Yantha to check on the property. Mr. Roche said that he had told Rodney Yantha that he could go fishing when he visited the property if he wished. On cross-examination, Mr. Roche agreed that his family had allowed the Yanthas to use the triangular property and, in exchange, had asked the Yanthas to keep an eye on the property “from time to time.”

[47] Mr. Roche said that his father had asked Michael Yantha and Ranson Eno to check on the triangular property because he was worried about vandalism and unattended bonfires started by paddlers who would stop on the beach. There was evidence at trial that the cabin that had been on the triangular property had burned down, an event that may have coincided with the eviction of the squatters Mr. Roche had mentioned. Mr. Roche agreed that the bonfire concern arose during the summer months.

[48] Mr. Roche said that a log pole had been installed across the red track between lot 27 and 28 in the 1990s. She said that it had been a precaution because of the gravel pit on lot 28. He believed that Eldon Yantha had put it up. Mr. Roche said that you could just push it up and to the left to go through.

[49] Mr. Roche also said that, as you were approaching the triangular property from the west, you would encounter a gate about 100 metres before the log pole. This gate would be on lot 28, Eldon Yantha’s lot. Mr. Roche said that the gate had been there since the early 1990s. Mr. Roche said that the gate was locked but that he knew where the key was because he had made an arrangement with Eldon Yantha.

[50] Mr. Roche said the log pole was still in place the last time he visited the triangular property in October 2018. He said he believed that it was shut at the time. He said he thinks that in the years before the pole was installed, there had been a chain link fence in the same location that “we would just bend back” to go through.

[51] Mr. Roche sold the triangular property to Yantha Electric for $10,000.00.

[52] The triangular property is “22 some acres” in size, according to Rodney Yantha. It is on the water, where Stevenson Lake joins the Bonnechere River. Mr. Roche described it as a lovely piece of property.

[53] Mr. Roche said that he did not know what the market value of the property was, although he knew that he probably could have gotten more than $10,000.00 for it on an open market.[^5] He said that he gave Rodney Yantha a good deal to thank him for looking after the property and for some electrical and plumbing work Rodney Yantha had done for him over the years, although, on cross-examination, Mr. Roche acknowledged that Rodney Yantha was often paid for his electrical and plumbing work. Mr. Roche said that he would describe Rodney Yantha as an “acquaintance,” rather than as a friend.

[54] Mr. Roche said that he thought that selling the triangular property to Rodney Yantha for only $10,000.00 was a “very neighbourly, very friendly, very helpful” thing to do.

[55] Mr. Roche said that, when he sold the triangular property to Rodney Yantha, they “probably” talked about access to the property but that nothing about access was put in writing.

ii) The evidence of Eldon Yantha

[56] Eldon Yantha was born in January of 1944. He is Rodney Yantha’s father.

[57] Eldon Yantha said that he first became familiar with the red track when he was six years old and began to help his father cut wood (“I was the piler”). Eldon Yantha said that he and his father drove on the red track, first in a 1947 Chevrolet and later in a 1952 model of the same make.

[58] Eldon Yantha said that he drove across lot 27 using the red track many times. He said that he started going there to duck hunt and fish with his father. He said that he also used the red track when he was in his 20s, primarily on weekends. He said that he would camp, paddle, and fish in the area. He said that, when he was in his 30s, he would go to the triangular property perhaps every second weekend, except during hunting season, when he would be there for two weeks at night. He said that, when the white fish were running, he would take his family there for a bonfire. They would cook hot dogs and marshmallows, and, once he had caught four or five white fish, they would go home.

[59] Eldon Yantha said that the red track was the same back then as it is now. He said it was in fair condition, sandy, drivable, and about 12 to 15 feet wide. He said it consisted of two tire tracks with grass growing in the centre.

[60] Eldon Yantha said that, at one point, there were people staying in the cabin on the triangular property who were cutting pulp. The pulp, he said, would go out either across the red track to Madawaska or by another route, at the corner of lot 26. He did not specify when or how frequently this happened.

[61] Eldon Yantha said that, at one time, there had been two ways of accessing the triangular property: the red track, and another route. He said that the second route was closed off in the 1970s. He said that the people who closed the route were the Recoskies, who had owned the lower part of lot 26 prior to the owners who sold that property to Dr. Balogh and his brother.

[62] Eldon Yantha said that he put up a pole across the red track, about 10 feet to the west of the boundary between lot 27 and his lot 28. He said that he installed this pole in the 1980s or 90s. He said that it was made of cedar, and that he put it up because his lawyer told him that he could be liable if someone drove into the gravel pit on his property. He said that the pole could be removed easily if need be. He said that it was not intended to keep the Roches or anyone else from driving on the red track across his property.

[63] Eldon Yantha said that he retired about 20 years ago and that, since his retirement, he visited the triangular property using the red track “three or four or five times” per week. He said that, before his retirement, he visited the triangular property two or three times a week. He said that he did not go to the triangular property in the winter.

[64] Eldon Yantha said that Mr. Roche used the red track to access the triangular property and that Mr. Roche visited the property perhaps three or four times per year in the summer.

[65] Eldon Yantha said that he knew that Rodney Yantha would also check on the triangular property for Mr. Roche.

iii) The evidence of Rodney Yantha

[66] Rodney Yantha was born in 1968.

[67] Like his father, Rodney Yantha said that he has fond memories of family outings to the triangular property and, in particular, of fishing for white fish.

[68] Rodney Yantha said that he recalled first visiting the property when he was six or eight years old.

[69] Rodney Yantha said that Mr. Roche’s father had asked Rodney Yantha’s grandfather to check on the triangular property for him, and that Mr. Roche had asked Rodney Yantha to do the same in the early 1980s. He said that this involved ensuring that no fires were unattended, clearing trees across roads, and “general purpose” checking of the property.

[70] Rodney Yantha testified that either he or his grandfather would check on the triangular property once a week, usually on a Saturday or Sunday. He said that he later visited the property once per week. He said that the frequency of his own visits changed over the years as he became busy with his business, but that, if he did not check on the property, his father would do so. Rodney Yantha said that his father would check on the property with the same frequency as he did.

[71] Rodney Yantha said that he continued to look after the triangular property for the Roches until the “present day,” when he bought the property.

[72] Rodney Yantha said that he would drive to access the property. He said that he usually accessed the property by using the red track, but that there were times that he would take the north/south route.

[73] In his examination in chief, Rodney Yantha was asked about the state and condition of the red track between 1990 and 2005, in 2005 and after he purchased the property in the fall of 2014. He was not questioned about the state or condition of the red track between 2005 (when the Baloghs purchased lot 27) and the time Yantha Electric purchased the triangular property in 2014.

[74] Rodney Yantha said that the north/south access route to the triangular property was closed in the 1970s by Ken Recoskie, the owner of the part of lot 26 where the north/south route was located. Rodney Yantha said that the Recoskies sold their property to people who later sold it to Dr. Balogh and his brother.

[75] Rodney Yantha said that the wood pole was put up over the red track in the 1980s.

iv) The evidence of Dr. Balogh

[76] Dr. Balogh said that before he and his wife bought lot 27 in 2005, they visited it twice.

[77] On one occasion, in the winter, they skied to and from the lake, which is at the north end of the property along a road that runs in a north/south direction. Dr. Balogh said that the north/south road was clearly visible, even in the winter. He said that he did not notice a path or trail or road that intersected the north/south road. In other words, he saw no signs of the red track that day.

[78] Subsequently, in May 2005, the Baloghs walked the property with their real estate agent, Steve Lesak, and the seller’s agent, Frank Yantha,[^6] whose wife was the principal of the numbered company that owned the property at the time. Frank Yantha had also been a co-owner of the property for about 18 months in 1990 and 1991.

[79] The group walked northward along the north/south road that the Baloghs had skied a few months earlier. They encountered a trail and walked west toward Eldon Yantha’s property. The trail was the red track. Dr. Balogh said that, at the time, there was a wooden barrier across the trail close to where Eldon Yantha’s lot began. Dr. Balogh said that he could see the trail continue west onto Eldon Yantha’s property. The group turned around and walked east. They encountered a fork in the trail and walked southeast. They did not take the northeast prong of the fork, which is part of the red track and which would have led them to the triangular property.

[80] Dr. Balogh said that he and his wife were not told that anyone had the right to cross the property, and that they would not have bought the property if they had known that anyone had such a right.

[81] A condition of the Baloghs’ purchase was that the seller would build an access road to the property. The seller built a new road that approached the property from the south east. The seller did not suggest that the red track was available as an access road.

[82] Dr. Balogh testified that, after he and his wife bought lot 27 in 2005 and up until Yantha Electric bought the triangular property in late 2014, he saw no sign that any cars, trucks, or other motorized vehicles, other than his own, had ever been on the property.

v) The agency argument

[83] The defendants argued that, because the Roches had asked the Michael Yantha and Rodney Yantha to check on the triangular property for them, when Michael, Eldon, or Rodney Yantha visited the triangular property over the years, they did so as the agents of the owners of the triangular property. The defendants argued that, as such, for purposes of assessing whether there had been continuous, uninterrupted, open, and peaceful use of the red track over a 20-year period, the Yanthas’ use of the red track over lot 27 is equivalent to use of the red track by the owners of the triangular property.

[84] The defendants rely on Carlini Estate v. Hammond, 2011 ONCA 285, at para. 7, which appears to accept that the activity of an agent may be considered when determining whether the use of a right of way has been continuous, uninterrupted, open, and peaceful.

[85] The defendants also rely on Morray Investments Ltd. v. Zerwas (2003), 2003 CanLII 12138 (ON SC), 66 O.R. (3d) 521 (Ont. S.C.), at para. 22, where Cameron J. states that, in order to establish a right of way by prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open, and peaceful use of the land, without objection, for 20 years “by an owner or tenant or a person acting under his direction and control.”

[86] In this case, while I accept that that the Yanthas visited the triangular property from time to time over the years, I find that they did so at least as much for their own benefit as for the benefit of the owner of the triangular property.

[87] The Yanthas used the triangular property for paddling, fishing, hunting, picnicking, and bonfires. I accept that they checked on the property for the Roches in the process. However, although there was evidence that Mr. Roche’s father had asked Michael Yantha and another neighbour, Mr. Eno, to check the property, and that Mr. Roche had subsequently asked Rodney Yantha to check on it, this was the extent of the evidence that the Yanthas were checking on the property under the Roches’ “direction.” There was no evidence that the Yanthas’ visits to the triangular property were ever under the “control” of the Roches. For example, there was no evidence that Mr. Roche or his father had ever asked the Yanthas to check the property at a specific time or on a specific schedule, or that the Yanthas were asked to do anything in particular when they checked on the property. There was no evidence that the Yanthas ever reported back to the Roches, or that they were expected to. On cross-examination, Mr. Roche agreed that his family had allowed the Yanthas to use the triangular property and, in exchange, had asked the Yanthas to keep an eye on the property “from time to time.”

[88] There was no evidence that Mr. Roche or his father had ever directed the Yanthas to drive to the triangular property or to use the red track over lot 27 to get there.

[89] Based on the evidence, I cannot and do not find that, when Michael, Eldon, and Rodney Yantha used the red track over lot 27 to visit the triangular property, they were doing so under the direction and control of the owner of the triangular property.

[90] For these reasons, I do not accept that the Yanthas were acting as the Roches’ agents when they used the red track across lot 27 to access the triangular property.

[91] Therefore, I will not include the Yanthas’ use of the red track in my assessment of whether the use of the red track over lot 27 by the owners of the triangular property was continuous, uninterrupted, open, and peaceful for a 20-year pre-June 14, 1999 period.

vi) The Yanthas’ evidence about the nature and frequency of their use of the red track over lot 27

[92] In the event that my conclusion about the defendants’ agency argument is found to be wrong, I will consider the Yanthas’ evidence about the nature and frequency of their use of the red track over lot 27 to access the triangular property.

[93] I do not accept that either of the Yanthas used the red track to access the triangular property as frequently as they either said or suggested they did.

[94] Rodney Yantha said that he had typically visited the triangular property once per week. He said that he did this right up until he purchased the property through Yantha Electric in 2014. Rodney Yantha said that his father visited the property with the same frequency as he did. Eldon Yantha, however, said that he, Eldon Yantha, visited the property much more frequently than Rodney Yantha believed he did, two to three times per week before he retired about 20 years ago and “three or four or five” times per week after he retired.

[95] In 2008, however, Dr. Balogh built a metal fence between his lot 27 and Eldon Yantha’s lot 28. At the time, Eldon Yantha had disagreed with the lot line identified by the Baloghs’ surveyor and had sent pointed and detailed letters to this effect to the Baloghs and the surveyor. Although the surveyor insisted that his survey was correct, the Baloghs agreed to move their fence 8.21 feet to the east, surrendering a strip of land to Eldon Yantha. Dr. Balogh said that peace with his next-door neighbour had mattered more to him than eight feet of property.

[96] Dr. Balogh’s fence paralleled the western boundary line of his lot and crossed and blocked the red track. Although Eldon Yantha had taken swift and decisive action to dispute the location of the fence in relation to the lot line, I find that he did not mention at the time that the fence blocked an access route to a neighbouring property. Eldon Yantha testified that he told Dr. Balogh that he could not block the red track, and that Dr. Balogh had replied that he would only put a small piece of wire across the red track that could easily be removed if anyone wanted to pass through. Dr. Balogh denied that this conversation took place. I accept Dr. Balogh’s evidence that this conversation did not happen and reject the evidence of Eldon Yantha that it did. Given the Baloghs’ concerns about anyone else having a right to access their property, I am satisfied that if Dr. Balogh had been told in 2008 that the he did not have the right to block the red track, it would have been a significant event from his perspective. I find that Dr. Balogh would have reacted if that had happened and that, at the very least, he would have contacted his lawyer. Dr. Balogh would not have cheerfully agreed to downgrade the quality of a portion of his fence to make it easier for others to drive their cars or trucks onto and across his land, as Eldon Yantha said he did.

[97] I find that Eldon Yantha was indifferent to the red track in 2008 and that, although he expressed strong views to Dr. Balogh at the time about the location Dr. Balogh’s fence, he never mentioned that the fence blocked the red track.

[98] Neither of the Yanthas suggested in their testimony that their regular use of the red track to visit the triangular property had been affected by Dr. Balogh’s fence. Eldon Yantha specifically insisted that he continued to use the red track on lot 27 after 2008 and before Yantha Electric purchased the triangular property in the fall of 2014. He said that he would roll up Dr. Balogh’s fence and then close it. Rodney Yantha, without mentioning any disruption or hiatus after Dr. Balogh put up his fence, said that after Mr. Roche asked him to check on the triangular property for him, he continued to do so right up until Yantha Electric bought the property in 2014.

[99] I find that the Yanthas did not use the red track on lot 27 after Dr. Balogh put up the fence in 2008 until after Rodney Yantha took it down in 2014. The portion of the fence that crossed the red track was made of chain link. There were steel posts on each side of the red track and one in the middle of the red track. Dr. Balogh testified that this fence remained in place and intact from 2008 until Rodney Yantha took down the portion that crossed the red track in the fall of 2014. I accept Dr. Balogh’s evidence. For two reasons, I reject the Eldon Yantha’s evidence that the chain link could be rolled back so that motorists could drive through:

i) Dr. Balogh testified that, because of the steel post he had installed in the middle of the red track, a tank would be required to drive across it. Rodney Yantha testified that he had removed the steel post in the middle of the red track. On cross-examination, Eldon Yantha initially did not appear to be familiar with the steel post in the middle of the red track, but eventually agreed that it was removed sometime around 2015; and

ii) Given Eldon Yantha’s decisive action when he believed the Baloghs’ fence encroached on his side of their shared property line, I do not accept that Eldon Yantha would have remained silent and quietly rolled back and replaced a chain link fence each time he wanted to drive down a route he believed he had the right to travel, particularly given that he claimed to be making the trek three to five times per week. I find that if Eldon Yantha had been using the red track, he would have wasted no time before demanding that the offending portion of Dr. Balogh’s fence be taken down.

[100] I have already emphasized that only the pre-June 14, 1999 use of the red track over lot 27 is relevant to the establishment of a prescriptive right of way in favour of the triangular property. That said, the Yanthas’ evidence about their use of the red track after Dr. Balogh built his fence in 2008—which I have rejected—coloured my assessment of the credibility of their evidence about how frequently they used the red track before June 14, 1999. I have rejected the Yanthas’ evidence that they used the red track between 2008 and 2014. I conclude that they gave this evidence in the belief that it would bolster their argument that the owner of the triangular property, now Yantha Electric, had acquired a prescriptive right of way over lot 27. Because of the Yanthas’ evidence about their post-2008 use of the red track, which I have found to be untrue, I cannot accept their uncorroborated evidence about their pre-June 14, 1999 use of the red track, which I consider to be similarly tainted.

[101] Further, I accept the Baloghs’ argument that Eldon Yantha’s familiarity with the triangular property, his overall credibility, or both were called into question when he was asked whether the triangular property was accessible by water. Eldon Yantha replied that it would be very dangerous to access the property by water because it is “all rapids” in front of the property. I find that this is not an accurate description of the triangular property’s waterfront, which includes rapids but also calm, flat, and navigable water. Mr. Roche and Rodney Yantha both testified that the reason that Mr. Roche’s father had asked Eldon Yantha’s father, and Mr. Roche had subsequently asked Rodney Yantha, to check on the triangular property was over concern that boaters who came ashore on the property might leave bonfires unattended. Either Eldon Yantha did not know that the triangular property was accessible by boat, in which case he cannot have visited the property as frequently as he said he did or he was reluctant to admit that the triangular property was accessible by water, in which case he was not answering the question truthfully.

[102] I also accept the Baloghs’ argument that, if the Yanthas had been using the red track over lot 27 regularly over the years to drive to the triangular property, Rodney Yantha would not have waited until after Yantha Electric purchased the property in the fall of 2014 to cut back low-hanging tree branches on lot 27 so that pine cones would not scratch his truck. Pine cones would have scratched the Yanthas’ vehicles in the years before Yantha Electric purchased the triangular property just as they did afterwards; if the Yanthas had been using the red track over lot 27 on a regular basis before Yantha Electric purchased the triangular property in 2014, they would have been cutting back the low-hanging tree branches on an equally regular basis.

[103] In conclusion, I cannot and do not accept the Yanthas’ evidence about how frequently they used the red track over lot 27 to access the triangular property before or after June 14, 1999. As a result, I am unable to make a finding with respect to how frequently they used the red track either to check on the triangular property for the Roches or for any other purpose. That said, I am satisfied their use of the red track was less frequent than they said it was.

vii) The use of the red track over lot 27 by the owners of the triangular property

[104] Having rejected the defendants’ agency argument, I am left to consider the evidence about the use of the red track over lot 27 by the owners of the triangular property.

[105] I turn first to the evidence about the historical ownership of the triangular property.

[106] The Roches owned the triangular property from “around 1920 or 1930,” when Mr. Roche’s grandfather acquired it, until Mr. Roche sold it to Yantha Electric in the fall of 2014.

[107] Eldon Yantha said that “MNR” owned the property before Mr. Roche’s father. I understood Eldon Yantha to be referring to the Ministry of Natural Resources, and that he misspoke and intended to refer to Mr. Roche’s grandfather, not his father. It appears likely that Mr. Roche’s grandfather purchased the triangular property from the Crown. However, there was insufficient evidence to allow me to make a finding about who owned the triangular property prior to Mr. Roche’s grandfather.

[108] There was evidence that the Crown owned lot 27 before it was conveyed to Michael Yantha in 1930. If the triangular property was also owned by the Crown at the time, as it appears it was, the two properties would have had the same owner. The dominant and servient tenements of a right of way cannot be owned by the same person: Carpenter, paras. 35-39. If lot 27 and the triangular property were both owned by the Crown at some point, the 20-year incubation period for the right of way at issue could not have begun until the Crown conveyed one of the two properties lots to a different owner.

[109] In any event, because I cannot be sure about who owned the triangular property before “around 1920 or 1930,” when Mr. Roche’s grandfather acquired it, “around 1920 or 1930” is the necessary starting point for my analysis.

[110] There was no evidence at trial about how frequently Mr. Roche’s grandfather visited the triangular property after he acquired it around 1920 or 1930 or about whether he ever used the red track.

[111] Mr. Roche said that his grandfather died in 1950.

[112] Mr. Roche said that his father visited the triangular property “two or three or four” times each summer, and that he would also check on the property in the off season. Mr. Roche said that his father used both routes, the red track and the north/south route, to access the property.

[113] However, there was no evidence about the year Mr. Roche’s father began to visit the triangular property or about the number of years he visited the property. There was also no evidence of when Mr. Roche’s father stopped visiting the property, either with the same frequency or entirely, although Mr. Roche did say that his father died in 1983.

[114] While I accept that Mr. Roche’s father visited the triangular property, Mr. Roche’s evidence about his father’s visits lacked detail, leaving me unable me to make any findings about when or how frequently his father used the red track to access the property.

[115] With no evidence to allow me to make findings about Mr. Roche’s grandfather’s or father’s use of the red track over lot 27, the issue of whether the owner of the triangular property used the red track over lot 27 in a continuous, uninterrupted, open, and peaceful manner for a 20-year period before June 14, 1999 must turn on the evidence of Mr. Roche’s use.

[116] I have already noted Mr. Roche’s statement that he was born in 1951, that he first visited the triangular property when he was around eight and 12 years old—around 1959 to 1963—and that he did so with his father. Mr. Roche said that he visited the triangular property “three or four or more times a year.” He said that he may have missed one year, up until the time he sold the property to Yantha Electric in the fall of 2014. Mr. Roche said that he last visited the triangular property in October 2018.

[117] Mr. Roche said that, to access the triangular property, initially, there were “two ways in, two ways out.” He was referring to the red track and the north/south route respectively.

[118] Mr. Roche said that, to access the triangular property, he had driven cars in, walked in, gone in with friends in trucks, driven in on an ATV or “four-wheeler,” and that he had also biked in once. He said that he usually used the red track. He said that there were no practical reasons for using one access route rather than the other. He said that, if he was out partridge hunting, he might have been more successful if he used the longer route. I have already noted his statement that, in the early 1990s, a locked gate was erected over the red track, but that he and Eldon Yantha made an arrangement and he was told where the key to the lock was.

[119] Using a right of way only a few times a year and only on a seasonal basis does not necessarily result in a finding that the use is not continuous for purposes of establishing a right of way. The acts necessary to establish continuous use depend on the type of property. For some types of property, such as a cottage property, as in this case, seasonal and weekend use is consistent with the type of continuous use an owner would make of the property, and the use therefore satisfies the criterion of continuous use: Barbour v. Bailey, 2016 ONCA 98, 345 O.A.C. 311, at para. 83.

[120] Although using an access route to a property only three or four or more times per year will not rule out the acquisition of a right of way for a seasonal property, I do not accept Mr. Roche’s evidence that he used the red track to access the triangular property as frequently or as consistently over the years as he said he did. This is for several reasons.

[121] Mr. Roche testified that, although he may have missed a year, until he sold the triangular property in the fall of 2014, he otherwise accessed the property at least three or four times per year without fail. He also testified that he usually used the red track to get there, and that he last visited the property in October 2018.

[122] Mr. Roche was not, however, as familiar with the red track as he would have been if he had used it as frequently as he said he had. For example, Mr. Roche testified that the wooden pole Eldon Yantha had installed near the line between lots 27 and 28 was still in place the last time Mr. Roche visited the triangular property in October 2018. I find that the pole had not been there since 2008. I accept Dr. Balogh’s evidence that Dr. Balogh had removed the pole at the time he built his metal fence. Dr. Balogh had described how the pole, to which he referred as a “fence” or a “barrier,” had not been easily liftable and how it had taken him some time to dismantle it.

[123] Further, although Mr. Roche agreed that there had been a chain link fence across the red track at some point, he did not know when it had been there. He described it in a similar manner to the way Eldon Yantha had described it, as a fence that could be bent back so that people could pass through. Mr. Roche thought that the chain link fence was there before Eldon Yantha’s wooden pole. Mr. Roche’s chronology was incorrect. Dr. Balogh put up the chain link fence in 2008, many years after the wooden pole was installed, which was in the 1990s. There was no evidence of a chain link fence across the red track other than the one built by Dr. Balogh. I find that if Mr. Roche had used the red track to access the triangular property in the years leading up to Eldon Yantha’s installation of the wooden pole in the 1990s, he would have known that there was no chain link fence blocking the red track at that time. If Mr. Roche had tried to use the red track after Dr. Balogh put up his chain link fence in 2008 and before Rodney Yantha took down the portion of the fence that blocked the red track in late 2014, Mr. Roche certainly would have noticed it.

[124] There was no evidence that Mr. Roche complained to Dr. Balogh or took any action when Dr. Balogh built his chain link fence. Mr. Roche said he had used the red track for much of his life and was quite adamant that he had the right to do so. I find that if Dr. Balogh’s chain link fence had ever stopped Mr. Roche from driving to the triangular property, Mr. Roche would have done something; he might have sought out Dr. Balogh or he might have contacted township officials. There was no evidence that he did anything. Bearing in mind also that the steel post Dr. Balogh had installed in the middle of the red track was not removed until after Yantha Electric purchased the triangular property, I find that Mr. Roche did not use the red track over lot 27 in the years that Dr. Balogh’s fence was there.

[125] Dr. Balogh testified that Mr. Roche once asked him for permission to cross the part of lot 26 owned by Dr. Balogh and his brother, in order to access the triangular property from the south. Dr. Balogh said that he believed that it was in 2012 that he encountered Mr. Roche and Mr. Roche’s son, close to what Mr. Roche had described as the “north/south” route to the triangular property. Dr. Balogh said that Mr. Roche had explained that he owned the triangular property but that, because he also owned a large acreage past Round Lake Centre, he only used the triangular property to cut down a Christmas tree. Dr. Balogh said that he understood from the conversation that Mr. Roche did not need and did not use the triangular property, except for the Christmas tree tradition, and that Mr. Roche did not have any other way of accessing the triangular property. A witness called by the Baloghs, Dylaina Wood, testified that she had also encountered Mr. Roche in the same vicinity where Dr. Balogh’s conversation with Mr. Roche took place and that Mr. Roche had also told her that it was a family tradition to cut a Christmas tree on the triangular property. I accept the evidence of Dr. Balogh and Ms. Wood in respect of their conversations with Mr. Roche. I also find that if Mr. Roche had historically used the red track on a regular basis to access the triangular property, and believed that he had the right to do so, when he and Dr. Balogh met on this occasion, Mr. Roche would talked to Dr. Balogh about the chain link fence that prevented him from accessing the triangular property from the west rather than asking Dr. Balogh for permission to access the triangular property from the south.

[126] Mr. Roche appeared reluctant at trial to discuss whether he had ever attempted to obtain a formal right or way or deeded access to the triangular property. Asked on cross-examination whether he had attempted to do so, he answered the question with a question: “In what direction?” When told that the question applied to any direction, he answered that he had once made inquiries about obtaining an easement over the north/south route and that, to that end, he had checked at the Registry Office and had spoken to a friend and the owner of the property on which the north/south route was located, Mr. Recoskie. He said that that was all he had done. Presented with a newspaper article that suggested that he had also contacted a local councilor who then reported on the matter to the municipal council, Mr. Roche then said that he had had also spoken “casually” on the topic with a local councilor who lived in the area. Asked from whom he was hoping to acquire property in order to access the triangular property, Mr. Roche again answered the question with a question, asking what time period was being referred to. When he was told 1995, he answered that he did not know.

[127] In explaining his efforts to secure access to the triangular property, Mr. Roche said that there had never been a problem accessing the property by using the red track, but that he had made inquiries about obtaining a formal access route after the Recoskies put up a gate over the north/south route. However, Eldon and Rodney Yantha both testified that the Recoskies had blocked the north/south access in the 1970s, and the newspaper article that mentioned Mr. Roche’s approach to the local councilor was from 1995.

[128] I found Mr. Roche’s answers to questions on this topic to be evasive. I infer and find that Mr. Roche did not want to admit that he had made efforts to obtain a formal access route to the triangular property in the 1990s because doing so would undermine his evidence that the red track already provided him with such a route.

[129] Mr. Roche’s evidence about his grandfather was difficult to reconcile. Mr. Roche said that he believed that, when his grandfather bought the triangular property, he had bought it “with access.” He said that he based this belief on “all the years” he went to the property with his grandfather. However, Mr. Roche testified that his grandfather died in 1950, which was the year before Mr. Roche was born. He also testified that he, Mr. Roche, did not visit the triangular property for the first time until he was around eight to 12 years old, and that he did so with his father.

[130] I also found it curious that, if Mr. Roche’s father visited the triangular property several times a year, as Mr. Roche said he did, Mr. Roche himself did not see the property for the first time until he was eight and 12 years old. There was no evidence offered to explain why Mr. Roche’s father would not have taken Mr. Roche to this recreational property for the first eight to 12 years of his son’s life if the father visited the property several times annually himself.

[131] There is also Mr. Roche’s sale of a “22 some” acre, waterfront property to Rodney Yantha for only $10,000.00. Mr. Roche had described the property as “lovely”, it had been in his family for three generations and Mr. Roche has a son himself. Mr. Roche’s explanation for the sale price, particularly when combined with other aspects of his testimony that I have been unable to accept, rang hollow. A more plausible explanation is that Mr. Roche did not believe that the property was accessible by land.

[132] For these reasons, I do not accept Mr. Roche’s evidence either about the frequency of his visits to the triangular property or his use of the red track over lot 27. I am left in doubt both about how frequently Mr. Roche visited the triangular property before June 14, 1999 and about how frequently he used the red track over lot 27 to do so. I am unable to find that he, his father, or his grandfather used the red track over lot 27 to access the triangular property on a continuous, uninterrupted, open, and peaceful basis for a 20-year period before June 14, 1999.

viii) Answer to Question #1

[133] In conclusion

a. I do not accept the argument that the Yanthas were acting as agents for the owners of the triangular property when they accessed the triangular property. I find that, to the extent that they visited the triangular property and used the red track to do so, this was primarily for their own purposes. I find that, to the extent that they visited the triangular property to check on the property for the Roches, they did so at the request of—but not under the direction or control of—the Roches;

b. In the event that my conclusion about the Yanthas acting as the Roches’ agents is wrong, I do not accept the Yanthas’ evidence about the frequency of their visits to the triangular property or their use of the red track;

c. I do not accept Mr. Roche’s evidence that he accessed the triangular property or used the red track as frequently as he suggested. There was no evidence of use of the red track by Mr. Roche’s grandfather and no evidence of the frequency of its use by his father.

[134] For these reasons, I find that the defendants have failed to prove through clear and unambiguous evidence that there was a continuous, uninterrupted, open, and peaceful use of the red track over lot 27 for a 20-year period before June 14, 1999.

QUESTION TWO: Did the owners of the lot 27 (a) know, or (b) should they have known, that the owners of the triangular property were using the red track over lot 27?

[135] Should my conclusion about continuous and uninterrupted use of the red track be found to be wrong, I will consider the question of whether the owners of lot 27 knew or should have known that the owners of the triangular property were using the red track over lot 27.

i) Did they know?

a) The evidence of Dr. Balogh

[136] Dr. Balogh said that he was not aware that the red track was used by the owners of the triangular property from the time he purchased lot 27 in 2005 until Rodney Yantha showed up at his door in late 2014.

b) The evidence of Robert Blake Howe

[137] At the time he bought lot 27, Dr. Balogh obtained a statutory declaration from Robert Blake Howe of Barry’s Bay, the lawyer who represented the seller.

[138] Mr. Howe had had an ownership interest in the property from June 15, 1990 to January 24, 2003.

[139] In his statutory declaration, dated June 10, 2005, Mr. Howe said that when he owned the property, he “attended from time to time at the land.” He said that neither he nor one of his co-owners, Philip Siegel, had been aware of any easements or rights of way affecting the property nor was either of them “aware of any person having traversed the Land frequently or even occasionally for the purpose of ingress or egress to or from any abutting property or for any other purpose.”

c) Frank Yantha

[140] Frank Yantha had co-owned lot 27 with Mr. Howe and Mr. Siegel from June 15, 1990 to October 31, 1991. Frank Yantha was also the real estate agent who acted for the seller of lot 27 when the Baloghs purchased the lot. Frank Yantha’s wife was the president of the seller, which was a numbered company.

[141] Frank Yantha did not testify at the trial.

[142] A pre-trial order had required the defendants to call Frank Yantha as a witness. The defendants’ lawyer explained at the trial that Frank Yantha has some serious health issues. In fact, the trial had been adjourned in the fall of 2018 because of Frank Yantha’s inability to testify due to ill health. A week before the ultimate May 2019 trial date, the defendants’ lawyer informed the Baloghs’ lawyer that Frank Yantha, although summonsed, was unwilling to attend the trial. The defendants’ lawyer invited the Baloghs’ lawyer to compel Frank Yantha to attend.

[143] At the conclusion of the trial, the Baloghs’ lawyer asked me to draw an adverse inference from the defendants’ failure to comply with the pre-trial order by calling Frank Yantha. I will not do so in these circumstances. Frank Yantha was not well, and the Baloghs’ lawyer made no efforts to summons him after being told the defendants had chosen not to do so.

[144] If Frank Yantha had any knowledge that the owners of triangular property had used the red track, his evidence may have been helpful for the defendants’ cause but it was not presented at trial.

d) The evidence of Mr. Roche

[145] There was no evidence at trial with respect to how frequently Mr. Roche’s grandfather accessed lot the triangular property, how he got there, or, if he accessed the triangular property by crossing lot 27, that the owners of lot 27 were aware that he was doing so.

[146] There was no evidence about whether any of the owners of lot 27 were aware that Mr. Roche’s father was using the red track.

[147] Mr. Roche said that he himself never encountered any of the owners of lot 27 when he was on the lot for purposes of accessing the triangular property.

e) The evidence of Eldon Yantha

[148] Before Mr. Howe, Mr. Siegel, and Mr. Yantha bought lot 27 in 1990, the lot had been owned by Murray Bros. Lumber Company Limited and its predecessor companies since September 29, 1955.

[149] There was no evidence at trial from anyone associated with Murray Bros. Lumber Company Limited or the related companies.

[150] Eldon Yantha testified that one or more of the owners of the logging companies that owned lot 27 had seen him use the red track. However, there was no evidence of where on the red track Eldon Yantha was at the time or what he was doing; there was no evidence of whether he was on lot 27 or of whether he was using the red track for his own purposes or to check on the triangular property for the Roches. In other words, there was no evidence that the owners of the logging companies were aware of anything more than the fact that Eldon Yantha, the owner of lot 28, was somewhere on the red track.

ii) Should they have known?

[151] There was no evidence to suggest that the owners of lot 27 should have known that the owners of the triangular property were using the red track to access the triangular property.

iii) Answer to question #2:

[152] I find that there was no evidence that the owners of lot 27, the would-be servient tenement, knew or should have known that the owners of the triangular property, the would-be dominant tenement, were using the red track to access the triangular property before June 14, 1999 or at any time before Rodney Yantha purchased the triangular property in late 2014. Mr. Howe’s statutory declaration provided evidence to the contrary for the period from 1990 to 1999.

Conclusion with respect to Issue # 1

[153] To paraphrase Carpenter, at paras. 50 and 51, satisfying the requirements for continuous and uninterrupted use of a right of way requires clear and unambiguous evidence to show that the use was of such a nature, and took place at such intervals, that it would bring home to the ordinarily diligent owner of the servient tenement that a right is being claimed. The threshold for meeting the criteria for establishing a prescriptive easement is high.

[154] I find that the defendants failed to prove that for a 20-year period before June 14, 1999, the use of the red track was of such a nature, and took place at such intervals, that it would have brought home to the owners of lot 27 that a right was being claimed.

[155] I find that the defendants have not met the threshold for establishing a prescriptive right of way.

[156] I find that the Balogh’s property, lot 27, is not subject to a right of way in favour of the triangular property.

Issue # 2: If the Baloghs’ property is subject to a right of way, what is the description of the right of way?

[157] As I have found that the Baloghs’ property is not subject to a prescriptive right of way, this is no longer an issue.

Issue #3: Is there an access road on the Baloghs’ property under Ontario’s Road Access Act?

[158] The Baloghs have requested an injunction prohibiting the defendants from crossing lot 27.

[159] The defendants argue that, even if the red track on lot 27 is not a right of way, it is an access road pursuant to the Road Access Act, R.S.O. 1990, c. R. 34. They argue that, by building a fence across the red track, the Baloghs violated the Act. They also argue that the Baloghs could have brought an application under the Act to close this access road over their property, but did not do so. Because the Baloghs have not brought such an application, the defendants argue that an injunction, which would have the effect of closing an access road, cannot be ordered in this action. The defendants rely on Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality), 2010 ONSC 1123, para. 110, aff’d 2011 ONCA 179 and 2008795 Ontario Inc. v. Kilpatrick (2007), 2007 ONCA 586, 86 O.R. (3d) 561 (Ont. C.A.)

[160] Under s. 1 of the Road Access Act,

• “access 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; and

• “road” means land used or intended for use for the passage of motor vehicles.

[161] The prohibition against closing an access road is found in s. 2 of the Road Access Act:

When access road may be closed

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;

(c) 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).

[162] The Road Access Act was enacted in 1978. When the Act was introduced, the Minister responsible said that the government’s intent was “to prevent the arbitrary closing of private roads, especially in cottage country where owners or tenants are totally dependent on these roads for access to their property.” (See the discussion in Sunnybrae Springbrook Farms Inc., at para. 106.)

[163] A primary purpose of the Act is to prevent landowners from resorting to self-help measures by providing a judicially supervised process for resolving disputes: Blais v. Belanger, 2007 ONCA 310, 224 O.A.C. 1, at para. 43.[^7]

[164] The Act stipulates that the owner of an access road generally cannot close it without a court order: 2008795 Ontario Inc., at para. 1.

[165] However, in Blais, at para. 32, the Court of Appeal noted that an access road could, through deterioration over time, cease to be a road. It also noted that the Road Access Act offers no assurance to those who use and depend on an access road that the road will continue to be available to them in the future.

[166] In Blais, the Court of Appeal set aside a trial judge’s finding that an access road existed and remitted the access road issue for a re-hearing. The Court of Appeal concluded that the trial judge had not paid sufficient attention to evidence that the road at issue had become overgrown and that the parties who wanted to use the access road had cleared overgrowth and cut down plants in order to do so. The Court of Appeal found that these issues were relevant to the determination of whether a “contemporary” (the Court of Appeal’s word but my italics) access road existed.

[167] To be an “access road” under s. 1 of the Road Access Act, a road must “serve” (present tense) as a motor vehicle access route to at least one parcel of land. The use of the present tense of the verb “to serve” in the definition of access road is a reflection of legislative intent: 2008795 Ontario Inc., at para. 32. In 2008795 Ontario Inc., the issue was whether a road that might be built in the future could qualify as a motor vehicle access route under the Road Access Act. The Court of Appeal concluded that it could not, because a road that might be built in the future but does not exist at the present time does not “serve” (that is to say, does not “serve at present”) as a motor vehicle access route.

[168] The requirement that a road “serve” (present tense) as a motor vehicle access route was underscored in Blais, at para. 36, where the Court of Appeal said that while evidence of the historical existence of a road is relevant to the determination of whether an access road exists, the question under the Act is whether a road that is used or intended to be used by motor vehicles exists contemporarily (again, my italics.)

[169] In this case, I consider two time periods potentially to be relevant to the determination of whether the red track was an access road: (1) 2008, when Dr. Balogh put up his fence across the red track; and (2) 2014, when Yantha Electric purchased the triangular property and Rodney Yantha took down Dr. Balogh’s fence.

[170] I have identified these two time periods for the following reasons:

• If the red track was an access road when Dr. Balogh put up his fence in 2008, Dr. Balogh had no right to put up his fence. Under s. 2(1) of the Road Access Act, Dr. Balogh would have been prohibited from blocking the red track without a court order;

• However, if the red track was not an access road when Yantha Electric purchased the triangular property in 2014 and Rodney Yantha took down Dr. Balogh’s fence, Rodney Yantha had no right to take down the fence or to start driving across the Baloghs’ property. I have found that Yantha Electric had no right of way across the Baloghs’ property and in Blais, the Court of Appeal was clear that landlocked landowners cannot, by acts of trespass, bring into being an access road across the land of another person: Blais, at para. 38.

i) Was the red track an access road under the Road Access Act when Dr. Balogh put up his fence in 2008?

[171] For the reasons below, I find that, at the time Dr. Balogh put up his fence across the red track in 2008, the red track was not an access road.

[172] There was evidence that, at one time, the red track would have fit the definition of a “road” under the Road Access Act. Don Bohart, a former local township councilor, testified that he had learned to drive on the road described as the red track in 1945 when he was 12 years old.

[173] There was also evidence that, at one time, the red track provided an access route to lots 26, 27, 28, 29 and 30 on concession 8. The red track was visible on four aerial photographs that were made exhibits at the trial. The oldest of these photographs was taken in 1953; the most recent was in 1993.

[174] The red track was also visible on two Ottawa Valley Forest Inc. maps: one dated 2015/2016, and the other dated 2018/2019. It was also visible on a map prepared by the Ontario Ministry of Natural Resources and Forestry, dated April 15, 2019.

[175] Elizabeth Cobb of Ottawa Valley Forest Inc. testified that OVFI manages forests on Crown land in Renfrew County. Ms. Cobb said that the company only ground-verifies Crown land, and not land that is privately-owned. Ms. Cobb said that the company does not verify the existence of the roads that appear on the maps, and that she was not familiar with the roads at issue in this case.

[176] A Geographic Information System support officer for the OMNRF, Craig Graham, testified that, as far as the Ministry was aware, the red track was privately-owned, “open” (meaning that there were no restrictions on its use), and “passable,” which meant that a 4x4 street-level pickup truck could use it. On cross-examination, however, Mr. Graham agreed that the map included a disclaimer that said that it should not be relied on as a precise indicator of routes or locations. He also said that he had not seen the red track personally, and that it was possible that a Ministry map would show a road that was not actually a road. Mr. Graham said that, as far as he knew, the roads on the map did not have any gates or blockages, but that he could not say for sure.

[177] There was, however, evidence that the red track did not serve, to use the words of the Road Access Act, “as a motor vehicle access route” to the triangular property at the time the Baloghs purchased lot 27 in 2005. This evidence included the following:

• In his June 2005 statutory declaration, the lawyer Mr. Howe said that he was not aware of any easements or rights of way, or “aware of any person having traversed the Land frequently or even occasionally for the purpose of ingress or egress to or from any abutting property or for any other purpose” from the time he bought lot 27 in June 1990 until he sold his interest in the lot in January 2003.

• Eldon Yantha had discouraged use of the red track by blocking it two places. In the 1980s or 1990s, he had installed a wooden pole across the red track close to the line between lots 27 and 28. He insisted that the pole was easily liftable. However, in the 1990s, he installed a locked gate across the red track between lots 30 and 29.

• When the Baloghs purchased their lot, the real estate agent for the seller informed them that they would require a road to access the lot and, as a condition of the Baloghs’ purchase, the seller built an access road that approached the property from the south east. I infer that, if the seller had been aware that the red track already served as a motor vehicle access route from lot 27 and across lots 28, 29 and 30 to connect to the public road system, the seller would not have incurred the expense of building a new access road in order to sell the lot.

• Dr. Balogh’s evidence, which I accept, was that when the Baloghs purchased lot 27 in 2005, the red track was overgrown. Dr. Balogh said that vegetation was growing up between the wheel tracks. He said that it appeared to him to be an all-terrain vehicle trail, although he agreed that a truck could have been driven on it. He said that the red track on his lot became narrower as it turned northward toward the triangular property. He said that an ATV could get still through, but you would not have wanted to drive a larger vehicle through that part of the trail unless you didn’t care if your vehicle was struck by bushes. He said that it would have been necessary to cut back bush wood before a vehicle other than an ATV could be driven through that part of the trail. Dr. Balogh said that, whereas the base of much of the red track was sand and dirt, the portion approaching the triangular property had a dirt and wood base. He described old and semi-rotting trees that had been lying across the trail, which he removed. He said that, at the time, he thought that they were on his property, but later learned that they were on the triangular property.

[178] There was also evidence that in 2008, at the time Dr. Balogh built his fence across the red track, the red track was not serving as a motor vehicle access route to the triangular property. This evidence included the following:

• Dr. Balogh said that, after he bought the lot in 2005, he never saw anyone on the lot except for a couple on foot who told him they were walking toward the lake.

• I have already found that, when Dr. Balogh put up his chain link fence across the red track in 2008, neither Mr. Roche nor either of the Yanthas complained that an access route to the triangular property had been blocked until Rodney Yantha took down the fence after he purchased the property in the fall of 2014. Eldon Yantha knew that Dr. Balogh was building the fence. Eldon Yantha took serious issue with the location of the fence in relation to the lot line that separated lots 27 and 28. I have already found that Eldon Yantha said nothing at the time about the red track being blocked or that the red track was used to access the triangular property. Rodney Yantha admitted that he said nothing to Dr. Balogh about the fence when the fence first went up. Mr. Roche did not know that the chain link fence had been built in 2008; he believed that it was there before the wood pole that Eldon Yantha had installed in the 1980s or 1990s.

[179] Although Eldon Yantha said that from 2008 to 2014, he had simply rolled back the chain link when he wanted to use the red track, I reject this evidence. Dr. Balogh said that no one touched his fence over the red track until Rodney Yantha took it down after Yantha Electric purchased the triangular property in the fall of 2014. Dr. Balogh said that, when he installed the fence, he had put a steel post in the middle of the red track that only a tank could have crossed. Rodney Yantha pulled out a steel post when he took down Dr. Balogh’s fence. Eldon Yantha said it was around 2015 that Rodney Yantha removed the steel post. I find that, after Dr. Balogh put up his fence in 2008, no one drove across lot 27 until after Rodney Yantha removed the steel post after he purchased the triangular property in the fall of 2014.

[180] If the red track had been used as an access road for the triangular property at the time Dr. Balogh built his fence across the red track on lot 27 in 2008, the people who are now saying that they used the red track to access the triangular property, Mr. Roche and the Yanthas, would have raised the issue with Dr. Balogh at the time. They did not.

[181] As the Court of Appeal stated in Blais, at para. 32, and as I noted above, an access road may, over time, cease to be a road due to the landowner having no obligation to repair or maintain it. Further, the Road Access Act provides no assurance that an access road will continue to be available for use indefinitely.

[182] I find that, at the time Dr. Balogh built his fence in 2008, the red track on lot 27 was overgrown and was not being used or serving as an access road to the triangular property. It was not, therefore an access road under the Road Access Act.

[183] I also find that this is not a situation in which Dr. Balogh was obliged to apply to the court under the Road Access Act to request an order closing the red track as an access road. Dr. Balogh had no reason to believe the red track was serving as an access road when he bought lot 27 in 2005, or when he put up his fence in 2008. The Baloghs had, in fact, received an assurance in Mr. Howe’s statutory declaration that, since 1990, no one had crossed the property, even occasionally, to access any abutting property or for any purpose.

ii) Was the red track an access road when Rodney Yantha took down Dr. Balogh’s fence in 2015?

[184] There was evidence that, at the time Rodney Yantha bought the triangular property in the fall of 2014, the red track on lot 27 was not serving as a motor vehicle access route to the triangular property. This evidence included the following:

• I have already found, in the context of my consideration of Issue #1, whether the Baloghs’ property is subject to a right of way, that no one drove across the red track on lot 27 for more than six years after Dr. Balogh put up his fence in 2008 and before Rodney Yantha purchased the triangular property in the fall of 2014.

• The red track remained overgrown. The Baloghs’ former neighbours, Dylaina Wood and Betty Fairbairn, moved in to the area in 2007 and were familiar with the Baloghs’ property. Ms. Wood and Ms. Fairbairn testified that they met the Baloghs in 2009 and that the Baloghs had given them permission to walk their dog and drive their ATVs on lot 27. Ms. Wood and Ms. Fairbairn confirmed Dr. Balogh’s description of the red track. Ms. Wood said that, before the summer of 2015, the red track had been “just a trail,” and that, in some places, where it was wooded, it was only wide enough for an ATV, although a larger vehicle could have driven through some of the other areas, where the red track cut through fields instead of trees. Ms. Fairbairn described the red track as being narrow and said that grass grew up between the tire tracks. She said that the red track was similar to other walking and ATV trails on lot 27 and on her own property.

• When Rodney Yantha bought the triangular property in the fall of 2014, he was required to do some work to make the red track drivable. Ms. Fairbairn and Rodney Yantha both confirmed in their testimony that the condition of the red track was altered after Yantha Electric purchased the triangular property. Ms. Fairbairn said that the red track was widened around 2016 or 2017. She said that vegetation was removed, that some small trees were ploughed over to the side and that branches were removed from larger trees. Rodney Yantha denied that he had cut down any trees on lot 27 after he bought the triangular property. He admitted that he had cut down some low-lying jack pine branches over the red track on lot 27 because the heavy limbs and large pine cones could “smash up your truck.”

[185] For the above reasons, I find that the red track was not an access road when Rodney Yantha took down Dr. Balogh’s fence after Yantha Electric purchased the triangular property.

[186] I also find that Dr. Balogh’s fence was not the reason the red track on lot 27 was not used as an access road to the triangular property after the fence went up. There was no evidence that anyone had tried to use the red track for this purpose from the time the Baloghs purchased the property in 2005 until Rodney Yantha took down Dr. Balogh’s fence.

Conclusion with respect to Issue #3

[187] Although the red track on lot 27 may have qualified as an access road under s. 1 of the Road Access Act at one time, I find that it was not serving this purpose and did not fit the definition of an access road when the Baloghs purchased lot 27 in 2005 or when Dr. Balogh erected his chain link fence on the border of lot 27 and lot 28 in 2008.

[188] As such, Dr. Balogh had the right to build his fence. In doing so, he was not constructing, placing, or maintaining a barrier or other obstacle over an access road. He did not, therefore, violate s. 2 of the Road Access Act.

[189] After Dr. Balogh built his fence in 2008, the red track then did not then serve as a motor vehicle access route for more than six years, when Yantha Electric purchased the triangular property. No one made efforts to use the red track to access the triangular property during that six-year period. Consequently, if my conclusion that the red track was not an access road in 2005 or 2008 is wrong, and Dr. Balogh violated s. 2 of the Road Access Act when he built his fence, I find that the red track had ceased to be an access road by the time Yantha Electric purchased the triangular property and also that Dr. Balogh’s fence was not the reason.

[190] As I have found that the red track on lot 27 was not an access road when Yantha Electric purchased the triangular property in the fall of 2014, it follows that Rodney Yantha had no right to take down Dr. Balogh’s fence, cut back the Baloghs’ trees or drive across the Baloghs’ lot. I find that, in doing so, Rodney Yantha took precisely the type of unilateral and aggressive action the Road Access Act is meant to prevent.

[191] I have already noted that the Road Access Act was intended to prevent property owners from resorting to “self-help.” The Act was not intended to work as a mechanism to permit a person, such as Rodney Yantha, to purchase a property that does not have confirmed road access, to take down a neighbour’s fence that has been in place for six years and to start driving across the neghbour’s lot.

[192] As I noted above, the Court of Appeal in Blais stated that landlocked landowners cannot bring into being an access road across another person’s land by acts of trespass: Blais, at para. 38. I find that this is precisely what Rodney Yantha attempted to do.

[193] I agree with my colleague Hurley J. who said in Krogh v. Fairchild, 2018 ONSC 2711, 97 R.P.R. (5th) 159, at para. 51, aff’d 2019 ONSC 1198, 98 R.P.R. (5th) 33 (Div. Ct.), that while it does not make it mandatory, the Road Access Act sends a strong signal to landowners that they should be prepared to make reasonable efforts to find a resolution to issues relating to access roads.

[194] There is no reason why Rodney Yantha could not have approached the Baloghs before he purchased the triangular property to discuss his proposed purchase and to see whether any access arrangements could be worked out. The Baloghs had already demonstrated, when they signed the agreement with Eldon Yantha in respect of the property line between lot 28 and lot 27, that peace with their neighbours, as Dr. Balogh put it, had been more important at the time than a strip of property. Instead, Rodney Yantha chose to buy the triangular property and take the chance that the Baloghs would not object when their fence was torn down and trucks began to roll across their lot.

[195] There was evidence that, before the trial, the Baloghs had offered Yantha Electric an access route to the triangular property across the east side of the Baloghs’ property in a north/south direction. Rodney Yantha said at trial that the offer would have forced him to spend $100,000.00 to build a road across a bottomless swamp. Presumably forgetting for a minute that he had taken down Dr. Balogh’s fence several times so that he could drive his truck across the Baloghs’ property, Rodney Yantha complained that Baloghs’ offer was not “neighbourly”.

[196] I find that the red track on lot 27 was not an access road under the Road Access Act at the time Dr. Balogh erected his fence across it in 2008, or at the time Rodney Yantha purchased the triangular property in the fall of 2014.

[197] I find that Dr. Balogh had the right to erect the fence, and that Rodney Yantha had no right to take down the fence, to cut trees or bush on the Baloghs’ lot or to drive across the Baloghs’ lot.

Issue #4: Is anyone entitled to an injunction?

[198] As I have found both that the defendants have not established that they have a right of way over the Baloghs’ property and that the red track is not an access road under the Road Access Act, I find that the defendants have no right to cross over or otherwise access the Baloghs’ property.

[199] As such, an injunction order shall issue prohibiting the defendants from crossing or otherwise accessing the Baloghs’ property without the Baloghs’ express consent.

[200] This order shall take effect immediately.

[201] In recognition of the possibility that the defendants have machinery, equipment, or other property on the triangular property that they will want to relocate, I direct the parties’ lawyers to negotiate suitable arrangements.

Issue #5: Are the Baloghs entitled to damages?

[202] Although the Baloghs claimed damages in their statement of claim, they did not refer to damages in their closing submissions or factum.

[203] I infer that their claim for damages was not being pursued.

CONCLUSION

[204] In conclusion, I find as follows:

• I find that the Baloghs’ property, lot 27, is not subject to a prescriptive easement or right of way in favour of the triangular property owned by Yantha Electric;

• I find that that the red track on the Baloghs’ lot 27 is not an access road under the Road Access Act;

• I find that the defendants have no right to access or cross the Baloghs’ property to access the triangular property or for any other reason, and I order that they are prohibited from doing so, subject to any arrangements that may be made by the parties’ lawyers for purposes of the removal of any machinery, equipment, or other property.

COSTS

[205] If the parties cannot agree on costs:

• The Baloghs may deliver written costs submissions of no more than five pages in length within 14 days of the date of this decision;

• The defendants may deliver responding costs submissions of no more than five pages in length within 14 days of receipt of the Baloghs’ submissions;

• The Baloghs may deliver any reply submissions of more than three pages in length within seven days of receipt of the defendants’ submissions;

• A bill of costs shall be included with the parties’ written costs submissions;

• Neither the bill of costs nor any other enclosures such as offers to settle or correspondence shall be included in the page limits for the submissions;

[206] The parties’ costs submissions may be filed by sending them to me, care of the trial coordinator in Pembroke.

Madam Justice Heather Williams

Released: November 22, 2019

COURT FILE NO.: CV-17-4SR

DATE: 2019/11/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LOUIS BALOGH and SANDRA AILEEN BALOGH

Plaintiffs/Defendant by Counterclaim

– and –

R.C. YANTHA ELECTRIC LTD. and RODNEY YANTHA

Defendants/Plaintiff by Counterclaim

AND BETWEEN:

R.C. YANTHA ELECTRIC LTD

Defendants/Plaintiff by Counterclaim

-and-

LOUIS BALOGH and SANDRA AILEEN BALOGH

Defendants by Counterclaim

REASONS FOR DECISION

H. J. Williams J.

Released: November 22, 2019

[^1]: Dr. Balogh and his brother Zoltan Balogh own part of lot 26, concession 8. In these reasons, however, when I refer to “the Baloghs’ property” or “the Baloghs’ lot,” I am referring to the property owned by Dr. Balogh and Sandra Aileen Balogh—lot 27, concession 8—and not to the property owned by the Balogh brothers. The Balogh brothers’ property plays only a cameo role in this case.

[^2]: Exhibit #6.

[^3]: Exhibit #8

[^4]: Under the RPLA, the requirements for a prescriptive right of way must exist for the period immediately before the commencement of the action claiming the right of way. The counterclaim in which Yantha Electric claimed a right of way was delivered in the spring of 2017. Consequently, to establish a right of way under the RPLA, Yantha Electric would need to prove that the requirements for a right of way existed from the spring of either 1977 (for a 40-year period) or 1997 (for a 20-year period) until the spring of 2017. Yantha Electric cannot do this, because the Baloghs’ property was registered under the Land Titles system on June 14, 1999, which effectively stopped the clock; a prescriptive right of way over a property cannot “ripen” after the property is registered under the Land Titles system. However, unlike the RPLA, the doctrine of lost modern grant does not link the timing of the existence of the right of way requirements to the date of the commencement of the action.

[^5]: For comparison, it is interesting to note that the Baloghs paid $163,551.40 for their 100 acres on lot 27 in 2005.

[^6]: It was not in dispute that Frank Yantha is not related to Eldon and Rodney Yantha.

[^7]: This case came to my attention following the conclusion of the trial. I contacted counsel to invite them to make written submissions about the case. Both did so.