Court File and Parties
COURT FILE NO.: CV-19-00000036-0000 DATE: 2020 06 01
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRENDA IRENE SCHOTT, RICHARD WAYNE SCHOTT, STUART Allan Steckle, Ruth Ann Steckle, SUSAN FRANCES SOUTER, and MICHAEL OREST WYSLOBICKY
Ross H. Thomson, for the Applicants
Applicants
- and -
Veronica Elizabeth Malfara
David Nusko, for the Respondent
Respondent
HEARD: October 10, 2019 in Owen Sound
REASONS FOR JUDGMENT
Kumaranayake J.
OVERVIEW
[1] These are my reasons for decision in an Application brought by the Applicants seeking a determination of their rights with respect to a claimed easement over the Respondent’s property. The Applicants and the Respondent each own property in the Town of South Bruce Peninsula. The Respondent owns waterfront property on Chesley Lake. The property owned by the Applicants is land locked. There is a dispute over a 20-foot wide strip of land (“the strip”) which forms part of the westerly limit of the Respondent’s property. The length of the strip goes from the water’s edge to Golf Course Road.
[2] The Applicants all claim to have a right-of-way over the strip as it is necessary for their access to Chesley Lake. The Applicants allege that the Respondent has interfered with their use of the right-of-way by placing physical obstructions on it and making it muddy and slippery as a result of allowing water to drain onto the right-of-way. Therefore, the Applicants say they cannot drive their vehicles to the water’s edge to access and launch their boats, canoes, and kayaks.
[3] The Respondent does not dispute that the westerly limit of her property is subject to a 20-foot right-of-way. However, the Respondent does not agree that all the Applicants have a right to use this 20-foot strip of land. Further, if some or all the Applicants have a right-of-way, the Respondent does not agree that it includes vehicular access to launch boats, canoes, or kayaks.
[4] For the reasons outlined below, I find that the Applicants have a right-of-way over the Respondent’s property and that their permitted use includes both vehicle and pedestrian traffic. The Respondent shall remove the physical obstructions that she placed on the land subject to the right-of-way and bury the big-O drainage pipe. The Respondent is not, however, required to maintain the right-of-way as that is the responsibility of the Applicants.
MATERIAL FILED ON MOTION
[5] The following material was filed:
a) The Application Record containing the Notice of Application (issued March 5, 2019); the Joint Affidavit of Brenda Irene Schott and Richard Wayne Schott, (sworn February 26, 2019); the Joint Affidavit of Susan Frances Souter and Michael Orest Wyslobicky (sworn February 26, 2019); and the Affidavit of Stuart Allan Steckle (sworn February 26, 2019);
b) The Respondent’s Application Record containing the Affidavits of Veronica Malfara (sworn June 21, 2019 and May 19, 2019);
c) The Applicant’s Responding Application Record containing the Affidavit of Brenda Schott (sworn September 4, 2019) and the Affidavit of Dustin Steckle (sworn September 9, 2019);
d) The Applicant’s Factum and Book of Authorities; and
e) The Respondent’s Factum and Case Book of Respondent.
[6] In argument, it became apparent that an excerpt from Anger & Honsberger Law of Real Property, referred to in the Respondent’s factum, had inadvertently been left out of the Respondent’s Book of Authorities. Counsel for the Respondent was permitted to file the excerpt and counsel for the Applicant was permitted to file brief written submissions in reply.
[7] I have carefully reviewed the above material.
BACKGROUND AND THE PARTIES’ POSITIONS
[8] There are three pairs of Applicants. Each pair of Applicants owns property on Tri Par Lane, in the Town of South Bruce Peninsula.
[9] The Applicants Brenda Irene Schott and Richard Wayne Schott (“the Schotts” or “the Schott Applicants”) own 18 Tri Par Lane, Town of South Bruce Peninsula, PIN 33160-0335 (LT) (“18 Tri Par Lane”). The Schotts purchased this property on September 8, 1995 (Instrument No. 313769).
[10] The Applicants Susan Frances Souter and Michael Orest Wyslobicky (“the Souter/Wyslobicky Applicants”) own 16 Tri Par Lane, Town of South Bruce Peninsula, PIN 33160-0336 (LT) (“16 Tri Par Lane”). The Souter/Wyslobicky Applicants, Nancy Souter and Steve Styles purchased this property from George Smith (“Mr. Smith”) on December 6, 2002 (Instrument No. 0370885). The Souter/Wyslobicky Applicants subsequently became the sole owners of 16 Tri Par Lane by a Transfer/Deed of Land registered on January 13, 2017.
[11] The Applicants Stuart Allan Steckle and Ruth Ann Steckle (“the Steckles” or “the Steckle Applicants”) own 12 Tri Par Lane, Town of South Bruce Peninsula, PIN 33160-0338 (LT) (“12 Tri Par Lane”). The Steckles purchased 12 Tri Par Lane from Clayton R. Bender and Rosetta Magdelina Bender on February 27, 1998 (Instrument No. 0332900). Clayton R. Bender and Rosetta Magdelina Bender (“the Benders”) are the Applicant Ruth Ann Steckle’s parents.
[12] Each of the Applicants’ properties was converted to the Land Titles system on November 19, 2007.
[13] The Respondent is the owner of 80 Golf Course Road, Town of South Bruce Peninsula, (“the Respondent’s property” or “80 Golf Course Road”). She states that she purchased the property in August 2006. On September 14, 2007, a Transfer/Deed of Land was registered by which title was transferred from the Respondent and Michael George Loney to the Respondent (Instrument No. 0416550).
[14] Each set of Applicants is in a different position with respect to their claim to a right-of-way.
The Schott Applicants
[15] The Respondent does not dispute that the Schotts have a registered easement over the 20-foot strip of land. Schedule A of their Transfer/Deed of land for 18 Tri Par Lane specifically includes reference to the owners of this property having a right-of-way for ingress and egress. Therefore, there is no dispute that the Schotts have a right-of-way over the strip.
[16] The Schotts state that since they purchased 18 Tri Par Lane, they have used the 20-foot right-of-way to access to the water. Further, they state that since they acquired the property, the Schotts assumed with Mr. Smith (their then neighbour at 16 Tri Par Lane) shared responsibilities and rights for a shared dock and pump house, both located on the water’s edge.
[17] The Schotts’ evidence is that Mr. Smith used his vehicle to launch his boat into Chesley Lake and that they did the same. The Schotts also would the right-of-way to take their kayaks and snowmobile to the lake. They ice fish, ski and snowmobile in the winter.
[18] The Schotts state that since 2008, the Respondent has interfered with their ability to use the right-of-way to launch their boats. They allege that some parts of the right-of-way have been narrowed to a width of 3 to 4 feet, instead of being maintained at 20 feet. They allege that the Respondent has created obstructions and tripping hazards along the strip by placing a fire pit, large rocks, a shore well, and river rock beds with cedar boarders; planting shrubs and hosta beds around the obstructions; and planting cedar tress in the middle of the right-of-way. They claim that the large rocks and plants on the right-of-way make it impossible to launch boats with trucks. The Schotts state that the Respondent stores her dock on the right-of-way in the winter and allege that this makes winter access to the lake unsafe.
[19] The Schotts also allege that the Respondent has made the right-of-way difficult to use, as she drains her eavestroughs through it and placed a big-O drainage pipe on it. As a result, they allege that water is diverted to the right-of-way, making it difficult to use as it becomes muddy and slippery. The evidence on behalf of the Schotts is that prior to the Respondent directing water from her eavestroughs to the right-of-way, they did not have the issues of the easement being muddy and slippery.
[20] The Schotts also state that as a result of the Respondent building a garage, the digging and raising of the cottage altered the shape, slope and soil content of the right-of-way. Further, the natural course of drainage was changed due to the construction.
[21] The Schotts also allege that the Respondent has stored large rocks, piled gravel, stone and river rock and downed trees on the right-of-way which makes their access to Chesley Lake “extremely difficult.”
[22] The Schotts also allege that the Respondent and her guests and tenants park in such a way that the right-of-way is blocked or in such a way that makes it impossible to back a trailer down the right-of-way to launch their boat.
[23] Their final complaint is that the Respondent uses their dock without permission.
The Souter/Wyslobicky Applicants
[24] The Respondent does not dispute that the Souter/Wyslobicky Applicants have use of a right-of-way at either end of the survey. Counsel for the parties agreed that the Souter/Wyslobicky Applicants have an unregistered easement which fell off title, most likely due to an error made by the office of whomever prepared the Transfer/Deed of Land in January 2017. Therefore, as in the case of the Schott Applicants, there is no dispute that the Souter/Wyslobicky Applicants have a right-of-way over the strip.
[25] It is undisputed that this right-of-way does not appear on their current Transfer/Deed of Land for 16 Tri Par Lane (which was prepared in 2017) but that it did appear on the deeds for the previous owners, the immediate previous owners being the Souter/Wyslobicky Applicants, Nancy Souter and Steve Styles. Nancy Souter is the sister of the Applicant Frances Souter.
[26] The Souter/Wyslobicky Applicants, Nancy Souter and Steve Styles purchased the property on December 6, 2002 from Mr. Smith. The Transfer/Deed of Land in favour of these four co-owners refers to three rights of way which are described in Instrument No. 234617, which is the Transfer/Deed of Land by which Mr. Smith acquired the property.
[27] Mr. Smith acquired the property on May 26, 1987 from his mother, Beatrice Smith. Mr. Smith’s Transfer/Deed of Land included three rights of way, including the 20-foot strip on the Respondent’s land and the “right to keep a Boat on Chesley Lake and using a 20 foot Right of Way at either ends of the Survey.”
[28] Beatrice Smith and her husband, also named George Smith, took title to the property as joint tenants on August 24, 1955. When her husband died on December 3, 1979, Beatrice Smith acquired sole title to the property as she was the surviving joint tenant.
[29] In short, when the Souter/Wyslobicky Applicants purchased their property as co-owners with Nancy Souter and Steve Styles, their Transfer/Deed of Land included a right-of-way and a right to keep a boat on the lake. However, the right-of-way and the right to keep a boat on the lake did not appear on the Transfer/Deed of Land when the Souter/Wyslobicky Applicant’s acquired Nancy Souter and Steve Styles’ share of the property on January 13, 2017. As noted above, counsel for the parties acknowledged that this was an error and the Souter/Wyslobicky Applicants therefore have an unregistered easement against the Respondent’s property.
[30] According to the Souter/Wyslobicky Applicants, Mr. Smith told them prior to their 2002 purchase of the property that he and his parents had used the right-of-way since 1955, when his parents acquired title. The Souter/Wyslobicky Applicants’ evidence is that prior to their purchase, Mr. Smith showed them the right-of-way that had been used by his family since 1955 and the dock he had built at the water’s edge. The Souter/Wyslobicky Applicants’ evidence is that the right-of-way that Mr. Smith showed them was the 20-foot strip of land on the westerly side of the Respondent’s property.
[31] The Souter/Wyslobicky Applicants state that after they purchased the property, they initially used the dock that had been used by Mr. Smith. However, it was old and continued to deteriorate over time. Eventually, and they do not provide a specific date, the Souter/Wyslobicky Applicants removed the dock and started to use the Schott’s dock.
[32] They also state that since 1999, they have been using this right-of-way to access Chesley Lake. Prior to owning 16 Tri Par Lane, they owned a cottage at 4 Tri Par Lane.
[33] They maintain that they, their children and their guests have always used this right-of-way to gain access to the lake. Their evidence is that they walk up and down the right-of-way to gain access to the lake and that they have stored their canoes and kayaks on the dock, located at the end of the right-of-way.
[34] The Souter/Wyslobicky Applicants state that their use of the right-of-way has been obstructed by the Respondent. They state that the Respondent has planted trees, erected a fire pit and placed rocks and other obstructions on the right-of-way. As a result of this, the Souter/Wyslobicky Applicants state that they cannot take a vehicle to the lake to either drop off or pick up their canoe and kayaks. They must park their vehicle at the top of the right-of-way and carry their canoe/kayaks.
The Steckle Applicants
[35] It is not disputed that the Steckles do not have either a registered or unregistered easement. The Steckles’ claim to a right-of-way depends on whether they can establish a prescriptive easement.
[36] The Steckles purchased 12 Tri Par Lane on February 27, 1998 from the Benders. The Benders acquired the property as joint tenants on November 18, 1986 from Clara Schlegel and Rosetta Bender. Rosetta Magdelina Bender and Rosetta Bender are one and the same person.
[37] The Steckles’ evidence is that since they acquired the property on February 27, 1998, they, along with their children, grandchildren and guests have used the right-of-way to gain access to Chesley Lake. They state that they drive on the right-of-way in order to launch their boat, canoes, and kayaks.
[38] The Steckles also state that from their discussions with the Benders, the Benders and the Benders’ children and grandchildren also used the right-of-way to access the lake and this was the case since August 21, 1979, when the property was first acquired by Clara Schlegel and Rosetta Bender. Further, the Steckles state that Clayton Bender erected a dock at the foot of the right-of-way and used the right-of-way to access the dock and the water.
[39] The Steckles’ son, Dustin Steckle (“Dustin”), also filed an affidavit. Dustin was 39 years old when he swore his affidavit. In his evidence, Dustin states that his parents and grandparents (the Benders) used the right-of-way throughout their ownership of 12 Tri Par Lane. Dustin has used the right-of-way to access Chesley Lake since he was a child. He recalled that he would go fishing with his grandfather (Clayton Bender) and that they would use the right-of-way to access Chesley Lake.
[40] Dustin states that access to Chesley Lake using the right-of-way is more difficult now than it was 20 years ago because of the growth of trees and bushes along the side of the right-of-way and the placing of impediments on the right-of-way. Dustin does not indicate what impediments he refers to.
[41] The Steckles state that their use of the right-of-way has never been challenged by the Respondent or by the previous owners of the Respondent’s property. Dustin’s evidence is that at no time was his family’s use of the right-of-way interfered with.
[42] The Steckles state that as a result of the obstructions created by the Respondent, they are unable to drive over the right-of-way and therefore cannot launch their boat, canoe or kayaks.
[43] The Steckles state that by planting trees, constructing a fire pit, and permitting water from the eavestroughs to drain on the right-of-way, the Respondent has made the right-of-way difficult to use. The water from the eavestroughs has created ruts in the right-of-way and made it muddy and slippery.
The Respondent
[44] The Respondent does not dispute that the 20-foot strip of land on the most westerly side of her property is subject to an easement and that this is the strip of land over which all the Applicants claim to have a right-of-way. Furthermore, the Respondent does not dispute that the Schotts have a right-of-way over the strip and that the Souter/Wyslobicky Applicants have an unregistered easement that fell off title.
[45] The Respondent states that when she purchased the property, she understood that the easement was in favour of the owners of 18 Tri Par Lane, being the Schotts, and that she has not denied the Schotts’ use of the easement.
[46] The Respondent acknowledges that she has seen the Schotts regularly using the easement to get their boat to Chesley Lake. However, later in her affidavit, the Respondent states that the owners of 18 Tri Par Lane have always taken their boat to the Chesley Lake boat launch; that they have never driven down the easement, either with or without a trailer; and that she has only ever seen them walking on the easement.
[47] The Respondent states that she has met the Applicant Souter once and has not met either the Applicant Wyslobicky or the Steckle Applicants.
[48] The Respondent states that when she purchased the property, she was not made aware of the existence of a maintenance agreement. Further, she has not entered into a maintenance agreement since becoming the owner of 80 Golf Course Road. When she purchased the property, the Respondent states that the easement was already encroached upon by a bush and several trees.
[49] The Respondent states that in the winter, she is at her property approximately once per month and in the spring, summer, and fall, she is there every two weeks. Further she states that three years ago, she was there almost every weekend in the summer and every two weeks in the fall and winter.
[50] With respect to the water issues alleged by the Applicants, the Respondent’s evidence is that she cleans her eavestroughs by blowing them out once in the spring and washes them throughout the year. She has not observed them to overflow. The eavestroughs are directed into a downspout connected to a big-O drainage pipe. The Respondent acknowledged that she has attempted to bury the big-O drainage pipe across her property before it reached the easement but that, due to rocks in the soil, she has been unable to bury it completely.
[51] The Respondent states that the soil is mostly clay, especially on the west side of her property. The Respondent does not dispute that she built a garage.
[52] She acknowledges that the easement is often wet and waterlogged, but she attributes this to the presence of several natural springs where the river rocks are located by the easement, the natural surface run-off, and run-off from the road which flows down the easement.
[53] The Respondent acknowledged that she placed river rock on the easement to address this water issue. She states that she did this between 2011 and 2013 but that the Schotts did not express any concerns about the river rocks until April 2018. The Respondent acknowledges that when she placed the river rocks on the easement, she had not measured, and she removed them in September 2018.
[54] It should be noted that in their reply evidence, the Schotts asserted that the Respondent has been blocking the right-of-way since 2007. The Schotts mistakenly believed that that the Chesley Lake Camp owned the right-of-way and the Schotts state that they expressed their concerns to the CEO of Chesley Lake Camp until they learned that it was the Respondent who owned the right-of-way.
[55] With respect to the obstructions on the easement, the Respondent acknowledges planting two saplings on the easement but subsequently removing them. However, she points out that the other trees on or near the easement either predate her ownership of the property or have naturally seeded themselves. She also acknowledged that she had planted other plants on the easement, some of which did not survive and some of which did.
[56] She acknowledges that, on a temporary basis, she kept logs and river stones on the side of the easement while she was making landscaping improvements to her property. In her view, the presence of these items did not impede use of the easement as they were kept off to the side and according to her, the easement was mainly used for foot traffic. She states that all these items were removed from the easement by October 2018.
[57] The Respondent acknowledges that once or twice per year, her guests have temporarily parked their vehicles at the top of the easement and that in 2018, it only occurred once. She states that when this occurred, there was still “plenty of room to walk down the easement or bring a vehicle onto it.” Further, she states that if the Applicants felt they could not get a trailer down the easement due to the parked vehicles, she would have had the vehicles moved, had the Applicant made this request.
[58] The Respondent also acknowledges that she and the Schotts had a dispute in the spring of 2018 regarding the Schotts’ dock. The Respondent states that the Schotts had been storing their dock on the easement during the winter and she asked them to put a flag on the dock as a warning to snowmobilers. She alleges that the Applicant Richard Souter told her not to worry about it as no one comes down in the winter; the Respondent states she understood him to be saying that no one uses the easement in the winter. The Schott Applicants deny that this conversation took place.
[59] The Respondent maintains that in the winter, she stores her dock clear of the easement. She does acknowledge that she tied her boat to the Schotts’ dock in 2017 in an emergency. She also acknowledges another occasion when she had rented her cottage and her tenants had tied their boat to the Schotts’ dock instead of the Respondent’s dock.
ISSUES
[60] I must determine the following issues:
Do the Applicants have a valid right-of-way?
What is the nature and the scope of the right-of-way for each set of Applicants?
Is the Respondent obligated to remove the obstructions on the right-of-way and to maintain the right-of-way?
LAW AND ANALYSIS
Issue 1 - Do the Applicants have a valid right-of-way?
[61] As stated above, there is no dispute that the Schotts have a registered easement.
[62] Further, there is no dispute that the Souter/Wyslobicky Applicants have an unregistered easement: see Gold v. Chronas, 2015 ONCA 900, 128 O.R. (3d) 428, at para. 73.
[63] In order to find that the Steckle Applicants have a right-of-way, I must be satisfied that they have a prescriptive easement. Section 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, provides as follows:
- No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
[64] There is no dispute between counsel as to the applicable law and test for a prescriptive easement. Counsel for the parties agree that the test is set out in Barbour v. Bailey, 2016 ONCA 98, 66 R.P.R. (5th) 173, at para. 56 (citing Depew v. Wilkes (2002), 2002 ONCA 41, 60 O.R. (3d) 499 (C.A.), at paras. 18-19):
To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or right-of-way:
i. There must be a dominant and servient tenement;
ii. The dominant and servient owners must be different persons;
iii. The easement must be capable of forming the subject matter of a grant; and
iv. The easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenement.
[65] Further, there is no dispute that the Steckle Applicants must also prove “uninterrupted and unchallenged use” for any 20-year period prior to November 19, 2007 (the date of conversion to the Land Titles system): see English v. Perras, 2018 ONCA 649, 425 D.L.R. (4th) 110, at para. 29.
[66] The Respondent concedes that the Steckles meet the first two criteria. There is a dominant tenement and a servient tenement which are owned by different persons; respectively, the Steckles and the Respondent.
[67] To meet the third criterion, the Steckle Applicants must establish that the easement is capable of forming the subject matter of a grant. I accept their submission that they have met this criterion as the 20-foot right-of-way on the Respondent’s property, as described on the Respondent’s deed, is the right-of-way which the Steckle Applicants use and which the Steckle Applicants seek to be added to the legal description of 12 Tri Par Lane.
[68] With respect to the fourth criterion that the easement must be reasonably necessary to the better enjoyment of the dominant tenement, this is fact specific and must be applied in a flexible manner: see Depew, at para. 24.
[69] The Steckle Applicants submit that their use of the right-of-way to access the lake is integral to their enjoyment of their cottage property. Their evidence is that they and the previous owners of 12 Tri Par Lane have used this right-of-way since 1979 to gain access to the lake.
[70] The Respondent argues that the Steckle Applicants use the right-of-way for personal use and not for the betterment of the dominant tenement. She submits that the Steckle Applicants can access the lake through other public accesses. However, based on the evidentiary record before me, the right-of-way in dispute is the only way that the Steckle Applicants and the previous owners of 12 Tri Par Lane gained access to Chesley Lake to access the water and launch their boats. There is no evidence before me that the Steckle Applicants or the previous owners have or had another means of accessing the lake, unlike in Barbour, where the claimants already had access to a beach on their property but were trying to gain access to a second beach. In my view, there is a connection between the easement and the normal enjoyment of the cottage property: see Barbour, at para. 58.
[71] Therefore, I accept that being able to access the lake using this right-of-way is an integral part of enjoyment of their cottage property. That is, it is reasonably necessary for the better enjoyment of 12 Tri Par Lane.
[72] Finally, I must be satisfied that the Steckle Applicants have demonstrated “a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years”: see Barbour, at para. 60.
[73] The Steckle Applicants submit that they have met this criterion while the Respondent submits that they have not established their use as a matter of right (see English, at para. 36).
[74] With respect to the 20-year period, the Steckle Applicants must establish a 20-year period of use for any 20-year period prior to November 19, 2007 (the date of conversion to the Land Titles system).
[75] The Steckle Applicants do not need to establish it was they who used the easement for a period of 20 years. They only need to establish that it was used for a 20-year period by themselves and/or the previous owners of 12 Tri Par Lane. The Steckle Applicants acquired the property in February 1998, less than 20 years prior to the date of conversion to the Land Titles system. They must, therefore, look to the previous owners.
[76] The Steckle Applicants have provided evidence that the previous owners (the Benders, and Clara Schlegel and Rosetta Bender) have used this right-of-way since 1979 to gain access to the lake. This evidence has not been contradicted by the Respondent. Therefore, the Steckle Applicants have met the 20-year use requirement.
[77] There is no evidence before me, either from any of the Applicants or the Respondent, that any of the Applicants or their predecessors sought permission from the Respondent or any of the previous owners of 80 Golf Course Road to use the right-of-way to gain access to the lake. There is also no evidence before me that either the Respondent or the previous owners of 80 Golf Course Road gave permission to the any of the Applicants or their predecessors to use the right-of-way to gain access to the lake. There is no evidence before me that the Respondent or the previous owners of 80 Golf Course Road ever raised or conveyed any objection to the Steckle Applicants or the previous owners of 12 Tri Par Lane using the right-of-way to gain access to the lake.
[78] The Respondent’s evidence is that she attempted to monitor who would use the right-of-way. In her affidavit, at para. 7, the Respondent indicated that:
I do not want people using the easement who do not have a right to it, so I have introduced myself to people I see using the easement and have asked some of them to produce evidence that th[e]y have a legal right to use my property.
[79] The Respondent does not indicate with whom she spoke or who produced the evidence she requested.
[80] The Respondent indicated that she had never met the Steckle Applicants. Therefore, she could not have given the Steckle Applicants permission to use the right-of-way.
[81] There is no evidence before me to suggest that any of the owners (either current or previous owners) of 80 Golf Course Road permitted use of the right-of-way just to be neighbourly (see Carpenter v. Doull-MacDonald, 2017 ONSC 7560, at para. 51). There is no evidence before me that the previous owners’ use of the right-of-way was ever interrupted.
[82] The Steckle Applicants have demonstrated a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years.
[83] Therefore, as I have also found that the Steckle Applicants have established each of the four criteria outlined in Barbour and Depew, I find that the Steckle Applicants have met their onus and established that they have a prescriptive easement for the 20-foot right-of-way over the Respondent’s property.
Issue 2 - What is the nature and the scope of the right-of-way for each set of Applicants?
[84] The Applicants have a shared position: their use of the right-of-way includes vehicular traffic. As stated above, the Respondent does not agree that the right-of-way permits vehicular access. Her position is that the right-of-way is restricted to pedestrian traffic. I disagree with the Respondent.
[85] The Applicants’ respective evidence is that they drive on the right-of-way in order to bring their boats, canoes, and kayaks to the water’s edge and that they have used docks that were built by the previous owners to their property. The Schott Applicants’ evidence is that they also use it by snowmobile to gain access to the lake in the winter.
[86] With respect to the Schott Applicants, the Respondent contradicts herself by first stating in her evidence that she has seen them using the right-of-way to get their boat to the lake and then states that they have always launched and taken out their boat at the Chesley Lake boat launch. The Schotts’ evidence is that they had to start using the Chesley Lake boat launch as a result of the obstacles the Respondent placed on the right-of-way, but they still drive down the right-of-way for other activities if it is not blocked by other vehicles as they are able to get approximately half way down.
[87] With respect to the Souter/Wyslobicky Applicants or the Steckle Applicants, the Respondent’s evidence is simply that she has never seen them drive down the right-of-way to launch their boats, canoes and kayaks. I accept the evidence of Souter/Wyslobicky Applicants and the Steckle Applicants and find that they did.
[88] The Respondent does not dispute that docks were built at the end of the right-of-way by the previous owners of 18 Tri Par Lane and 12 Tri Par Lane. The Souter/Wysloblicky Applicants have used the shared dock since 1999 and the Steckles previously used the dock built by the Benders and then replaced it with a portable dock.
[89] I prefer and accept the evidence of the Applicants and find that their use of the right-of-way is not limited to pedestrian traffic. It includes vehicular traffic to bring their boats, canoes, and kayaks to the water’s edge.
[90] With respect to the use of a dock, I note that the Souter/Wyslobicky Applicants have the right to keep a boat. The Respondent does not dispute that the previous owners of 18 Tri Par Lane and 12 Tri Par Lane had built docks. The right to keep a boat and the right of all the Applicants to use the right-of-way to bring boats, canoes, and kayaks to the water’s edge implicitly includes the right to build and maintain a dock: see MacKenzie v. Matthews (1999), 1999 ONCA 19931, 46 O.R. (3d) 21 (C.A.), at para. 8.
[91] Therefore, I find that the Applicants’ respective use of the right-of-way includes vehicle and pedestrian traffic and the right to build and maintain a dock.
Issue 3 - Is the Respondent obligated to remove the obstructions on the right-of-way and to maintain the right-of-way?
[92] The Applicants have provided evidence outlining the obstructions placed on the right-of-way by the Respondent. For the most part, the Respondent does not dispute that she has placed river rock beds and a shore well, built a fire pit, and planted trees and plants on the right-of-way. Her evidence is that she has removed the trees which she has planted and that some of the plants that she planted did not grow on the right-of-way, though some did.
[93] The Applicants submit that the Respondent has substantially interfered with their use of the right-of-way and the Respondent says that she has not. All parties rely on Weidelich v. De Koning, 2014 ONCA 736, 122 O.R. (3d) 545. At paras. 9-10 of that decision, the Court of Appeal for Ontario states that the “encroachment on a right-of-way is actionable only if there is a substantial interference with the use of the right-of-way as granted.”
[94] At paras. 14-15 of Weidelich, the Court of Appeal stated:
[14] A court, when deciding whether an encroachment results in a substantial interference with the claimant’s use of the right-of-way, will have regard to the terms of the grant and the nature of the encroachment. The determination is a factual one and will turn on the specific circumstances of each case.
[15] The significance of an encroachment depends on its impact on reasonable use. The dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose. I would adopt as correct the inquiry captured in the following passage in B & Q Plc., at 257:
In short, the test, … is one of convenience and not necessity or reasonable necessity, Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?
[95] I have already found that the Applicants’ right to use the right-of-way includes driving on the right-of-way to bring their boats, canoes, and kayaks to the water’s edge.
[96] I accept the Respondent’s evidence that she undertook these changes to enhance the aesthetics of her property and that she had no intention to impede use of the right-of-way. However, I also accept the evidence of the Applicants that they cannot use the right-of-way as they had previously used it – their ability to drive and walk on the right-of-way has been impeded by the physical changes the Respondent made to the right-of-way. To put it another way, I find that the right-of-way cannot be substantially and practically exercised as conveniently as before these physical changes were made.
[97] Therefore, the Respondent shall remove anything that she placed on the right-of-way which impedes its use. She must remove any obstructions that she has placed on the right-of-way that interfere with the ability to use a vehicle on the right-of-way. This includes the fire pit, river rocks, and plants and trees. She must take the necessary steps to completely bury the big-O drainage pipe.
[98] With respect to maintaining the right-of-way, the Respondent points out that there were trees already on the right-of-way when she acquired her property which had naturally encroached on the right-of-way. The Applicants do not dispute that when the Respondent acquired her property, the right-of-way was already narrowed by trees and bushes that were already there.
[99] The Applicants have not provided any evidence of how the right-of-way was maintained prior to the Respondent acquiring 80 Golf Course Road. Counsel for the Applicants and the Respondent agree that the owner of the servient tenement (the Respondent) is not required to maintain, fix or in any way improve the right-of-way: see Anger & Honsberger Law of Real Property, Vol. 1, 3rd ed. (Carswell, 2018), at §17:20.30(c). I accept this submission. Therefore, I am not prepared to make an order requiring the Respondent to maintain the right-of-way.
[100] It is undisputed that there is presently no maintenance agreement registered for the right-of-way. However, this does not prevent the parties from having discussions and reaching an agreement as to how the right-of-way will be maintained. I encourage the parties to have these discussions.
SUMMARY
[101] To summarize, the Applicants each have a right-of-way over the 20-foot strip of land at the westerly side of the Respondent’s property.
[102] The Respondent shall remove the obstructions that she placed on the right-of-way which impede either vehicle or pedestrian traffic. This includes the fire pit, river rocks, trees, and plants. She must take the necessary steps to completely bury the big-O drainage pipe.
[103] The Applicants are permitted to place a dock at the water’s edge of the easement.
[104] The Respondent does not have the obligation to maintain the right-of-way.
[105] I encourage the parties to resolve the issue of costs. If the parties cannot do so, I will receive written submissions as outlined below.
[106] I thank the parties and counsel for their patience until this decision could be released.
ORDER
[107] For the reasons set out above, I make the following Final Order:
The Applicants Brenda Irene Schott and Richard Wayne Schott shall have a perpetual right-of-way for pedestrian and vehicle ingress and egress over that portion of PIN 33160-0346 (LT) described as Part 1, Plan 3R10276 which right-of-way shall be added to and form part of the legal description for PIN 33160-0335 (LT) and the Registrar for the Land Titles Office for the County of Bruce No. 3 is hereby directed to amend the Parcel Register accordingly.
The Applicants Stuart Allan Steckle and Ruth Ann Steckle shall have a perpetual right-of-way for pedestrian and vehicle ingress and egress over that portion of PIN 33160-0346 (LT) described as Part 1, Plan 3R10276 which right-of-way shall be added to and form part of the legal description for PIN 33160-0338 (LT) and the Registrar for the Land Titles Office for the County of Bruce No. 3 is hereby directed to amend the Parcel Register accordingly.
The Applicants Susan Frances Souter and Michael Orest Wyslobicky shall have a perpetual right-of-way for pedestrian and vehicle ingress and egress over that portion of PIN 33160-0346 (LT) described as Part 1, Plan 3R10276 which right-of-way shall be added to and form part of the legal description for PIN 33160-0336 (LT) and the Registrar for the Land Titles Office for the County of Bruce No. 3 is hereby directed to amend the Parcel Register accordingly.
PIN 33160-0346 (LT), being the lands and premises owned by the Respondent Veronica Elizabeth Malfara, shall be subject to perpetual rights-of-way over part of the lands and premises described therein and more particularly described as Part 1, Plan 3R10276 for pedestrian and vehicle ingress and egress in favour of Parcels PIN 33160-0335 (LT), PIN 33160-0338 (LT) and PIN 33160-0336 (LT) and the Registrar for the Land Titles Office for the County of Bruce No. 3 is hereby directed to amend the Parcel Register accordingly.
The Respondent Veronica Elizabeth Malfara shall within 60 days of the date of this Order remove all obstructions from the right-of-way including the river rocks, fire pit, trees, and plants/gardens, and any other item which she placed on the right-of-way and completely bury the big-O drainage pipe so that the use of the right-of-way by pedestrian and vehicular traffic to access to Chesley Lake is unimpeded.
The Applicants, or any of them, are permitted to place docks at the lake side boundary of the right-of-way, being Part 1, Plan 1, 3R10276.
If the parties cannot agree on the issue of costs, then the parties shall serve and file written submissions as set out below:
i. On or before June 22, 2020, the Applicants shall serve and file written costs submissions of no more than 4 pages, double-spaced in 12-point font.
ii. On or before July 13, 2020, the Respondent shall serve and file responding written costs submission of no more than 4 pages, double-spaced in 12-point font.
iii. There shall be no reply submissions without leave of the court.
iv. The page length set out above does not include any authorities that the parties wish to rely upon, and if applicable, Offers to Settle. Counsel have already filed their Bills of Costs.
v. The written cost submissions shall be filed by email to my judicial assistant. The email address is: sherry.mchady@ontario.ca.
- This Order is effective from the date these Reasons for Judgment are released and without the necessity of a formal order being prepared, issued and entered.
“ Original signed by Justice Kumaranayake ”
Kumaranayake J.
DATE: June 1, 2020