COURT FILE NO.: CV-19-627136
DATE: 20201123
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHEL de JOCAS, CATHERINE de JOCAS, DAVID CARSON, RONALD PIESANEN and LINDA PIESANEN
Applicants
- arid -
MOLDOW ENTERPRISES INC., 833633 ONTARIO LIMITED and ALENA RAVENS
Respondents
Brian N. Radnoff, for the Applicants
Bruce E. Bussin, for the Respondents
HEARD: November 19, 2020
REASONS FOR JUDGMENT
f.l. Myers j.
This Application
[1] The parties (and one other family) own five neighbouring cottage properties that lie north to south along the western shore of Soyers Lake in Haliburton County. The de Jocas’ property is the most northerly property, then the respondents’, then the Piesanens’, then the Sayewichs’ and, finally, the Carsons’. The Sayewichs are not parties to this application.
[2] The applicants claim that the respondents have interfered with their reasonable use and enjoyment of registered, deeded easements over a shared laneway.[^1]
[3] The shared laneway is referred to as “Brewers Close” or “Brewers Circle”. It is a semi-circular gravel laneway that connects at both ends to a 66 foot wide right of way called Between Lakes Trail.
[4] It is uncontested that until it was altered by the respondents in 2015, Brewers Close was the only way for vehicles to access the parties’ respective cottage properties.
[5] In 2015 and 2016, the respondents moved the piece of the laneway that crossed their land. They blocked access to the old part of the laneway.
[6] The applicants ask for a declaration that their easements exist; an order requiring the respondents to restore Brewer Close to its original location at their own cost; and an order prohibiting them from interfering with the applicants’ use and enjoyment of their easements.
[7] For the reasons that follow the relief is granted as modified below.
A Diagram
[8] This diagram helps explain the current situation. Soyers Lake would be located to the right of the diagram to the east of all of the properties. Between Lakes Trail runs down the left or west side of the properties.
[9] Until 2015, Brewers Close ran as a single loop from Between Lakes Trail, through all five properties, and back out to Between Lakes Trail.
[10] In 2015 and 2016 the respondents built a new piece to move the laneway away from their cottage to the west. They blocked both ends of the old loop at or near the “Xs” on the diagram. The northeastern piece of Brewers Close that ran through the respondents’ land near their cottage is missing from the diagram showing the current situation. In its place, the respondents built a new piece of laneway which is the straight line connecting to two broken pieces of the loop.
[11] The respondents built their new piece of laneway partly on the Piesanens’ land where the Piesanens had a parking spot. The Piesanens have now blocked the new piece at or near the spot marked with a circled “X” on the diagram. They blocked the new connection to prevent their neighbours from illegally trespassing on their property.
[12] Today therefore, the de Jocas’ and the respondents can only access their properties using the north entrance on Between Lake Trail. The other three owners can only access their properties from the south entrance.
[13] No one can drive a vehicle from one end of the original loop that was Brewers Close to the other.
The Root Deeds - 1961
[14] The parties agree that they have adduced all the evidence that is available concerning the creation of their easements over Brewers Close. While they allow that a trial of an issue may be required for credibility issues, they all say a trial is not required to determine the interpretive issues concerning the root of title to Brewers Close. All have put their “best foot forward”. There are no further deeds or evidence of existing circumstances at the time of the creation of the easements over Brewers Close.
[15] Prior to the subdivision of the land into the five lots currently in issue, all five were owned by a developer known as Rolnor Developments Limited. It was dissolved many decades ago.
[16] Thomas McMullen is the only witness available who was a party to an initial grant of one of the five lots from Rolnor Developments. His evidence is uncontested.
[4] At the time I purchased the Cottage Property, there was a narrow semi-circle roadway that crossed the Five Properties. The roadway could be entered and exited at two points from Between Lakes Trail, one entrance/exit being south of the other. The roadway was the sole access road for the Five Properties. It is my understanding and belief that Rolnor built this roadway, which many years later became known by the owners of the Five Properties as Brewers Close.
[5] The location of Brewers Close was never altered during my ownership of the Cottage Property. Attached as Exhibit "A" is a County of Haliburton GIS Record that shows the location of Brewers Close.
[6] It was my understanding and belief that a grant of a right of way was given by each of the Five Properties in favour of the others to ensure that each landowner would have continued access to the whole of Brewers Close. Each owner of the Five Properties knew the location of Brewers Close, as identified on Exhibit "A", and of the fact that it was a shared access road. During the time I owned the Cottage Property, the owners and guests of the Five Properties used both ends of Brewers Close to access their properties.
[17] Mr. McMullen’s property was the northernmost of the five. In 1981, he sold it to Doris Anne DeHueck. She is the mother of the applicant Catherine de Jocas.
[18] The exhibit to Mr. McMullen’s affidavit is the following drawing from the records of the municipality. It is apparent that the municipality recognized Brewers’ Close:
[19] The topography at the west end of the properties makes direct access from each property to Between Lakes Trail undesirable to the owners. I say this because, subjectively, all owners knew and know that Brewers Close is the sole vehicular access to their properties. Even when the respondents closed a piece of the laneway, they recognized that they had to ensure access for their neighbours over an alternative laneway. They did not, for example, build a driveway out to Between Lakes Trail and tell their neighbours to do likewise. No one argues that it is feasible or even possible to access each property directly from Between Lakes Trail.
[20] There is no doubt in the evidence that Brewers Close was intended to and has provided the sole vehicular access to the properties since 1961. On the uncontested evidence before me, I find that its purpose to any reasonable observer was to give vehicular access to the newly subdivided properties.
The Deeds
[21] Mr. McMullen’s deed from Rolnor Developments is dated June 30, 1961. It contains the following language:
ALSO TOGETHER WITH a right-of-way unto the Grantees, heirs and assigns over a semi-circular driveway extending from the 66 foot right-of-way through the properties located to the south of the hereindescribed lands which said semi-circular driveway connects with the end of the said 66 foot right-of-way.
AND RESERVING unto the Grantor, its successors and assigns a right-of-way over the said existing semi-circular driveway where the same crosses the herein described lands.
[22] Under this deed, Mr. McMullen was granted a right of way over a semi-circular driveway that ran through the properties to the south from the 66 foot right of way to a connection at the end of the 66 foot right of way.
[23] As noted above, the “66 foot right of way” is Between Lakes Trail. Mr. Carson gave uncontested evidence that until 1987, Between Lakes Trail ended at his property. Therefore, the reference to a connection at the “end” of the 66 foot right of way describes the southern connection of Brewers Close to Between Lakes Trail at Mr. Carson’s property.
[24] The deed reserved to “the Grantor, its successors and assigns” a right of way over Brewers Close where it crosses the McMullen property. This makes the McMullen property servient to the rights of other users of Brewers Close. The issue of who holds the dominant rights over the property is dealt with below.
McMullen/de Jocas Dominant Rights
[25] The deed granted Mr. McMullen a right of way “through the properties located to the south”. As the McMullen/de Jocas property is the northernmost of the five lots, this was a grant of dominant rights to use Brewers Close to drive over all four of the other lots.
[26] Mr. Carson’s lot is the southernmost. His deed gives rights over the properties to the north. So he too has rights over all four of the other lots.
[27] The other deeds that are the roots of title for the three interior properties used essentially the same language as the McMullen deed. The root deeds of the respondents and the two owners south of them, Piesanen and Sayewich, only provide dominant rights over the lands south of each of them. Ostensibly therefore, the respondents have no deeded right to use Brewers Close over the de Jocas’ land to the north. The Piesanens have no deeded rights to use Brewers Close over the respondents’ land or the de Jocas’ land. And the Sayewichs have no deeded right to use the driveway over the Piesanens’ land, the respondents’ land, or de Jocas’ land.
The Servient Obligations
[28] As noted above, each of the root deeds made the owner’s title subject to the rights of Rolnor Developments and its successors and assigns to use the driveway over the lot conveyed in the deed.
[29] As the properties have been re-sold over the years, the deeds have described the servient obligations of the subsequent owners in two distinct ways. In the deeds of the Carsons, the Sayewichs, and the de Jocas’, the rights are reserved to “the grantor”. Mr. Bussin argues that in the case of Ms. de Jocas, the “grantor” would be Ms. De Jocas’ mother Ms. DeHuek. Similarly, the dominant rights over the Carsons’ land and the Sayewichs’ land are reserved to their respective grantors.
[30] However, in the deeds conveying the lots of the respondents and the Piesanens, dominant rights are reserved to the “grantor as described in [the root deed]” for each respective lot i.e. Rolnor Developments and its successors and assigns.
The Respondents’ Position
[31] The respondents argue that interpreting the language of the deeds:
a. No deed gives the applicants a dominant right of passage over their land. At best, the dissolved Rolnor Developments may have held dominant rights to use Brewers Close;
b. The deeds are not consistent in describing who holds whatever rights of way exist;
c. The reservations of rights to the “grantor” is absurd; and
d. The deeds do not describe the location of Brewers Close. Its width and dimensions are not mentioned. There is no metes and bounds description. There is no indication of where the northernmost connection meets Between Lakes Trial. In other words, the grant is too vague and uncertain to convey rights to a specific, identifiable piece of property.
The Applicants’ Position
[32] Mr. Radnoff argues that taking the deeds together, all grant dominant rights to the others; all receive a right to use the driveway over others’ lands; the circumstances that existed at the time of the creation of the rights of way in the root deeds was that Rolnor was subdividing and selling the properties with a laneway providing the sole vehicular access to each of them. The deeds should be interpreted in light of that purpose.
The Legal Test for a Deeded Right of Way
[33] In Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10, the Court of Appeal described the appropriate approach to interpreting deeded rights of way:
Where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created. This principle is set out in Halsbury's Laws of England, 4th ed., vol. 14 (London: Butterworths, 1980), at p. 26, para. 54:
The nature and extent of an easement created by express grant primarily depend upon the wording of the instrument. In construing a grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances. [Footnotes omitted]
[34] In Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, the Court of Appeal specified the characteristics of a deeded right of way or easement:
[52] Four characteristics are essential to the grant of an easement:
there must be a dominant and a servient tenement;
the easement must accommodate the dominant tenement;
the owners of the dominant and servient tenements must be different persons; and
a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.
[35] I will proceed to consider each of these four factors from Mihaylov in light of the interpretive principles set out in Fallowfield.
[36] On the first point, the root deeds and the current owners’ deeds each have identified a dominant and servient tenement.
[37] On the second point, there are two issues. First, I agree with Mr. Bussin that to read the dominant tenement expressed as either the “grantor” or the “grantor described in the [root deed]”, as being references to the dissolved Rolnor Developments or to the specific vendor of each property (like Ms. De Jocas’ mother), would be absurd. Neither makes commercial or logical sense viewed at 1961 or the dates of the subsequent deeds that contain the references back. However, I cannot simply shrug my shoulders and just call the deed invalid. The interpretive exercise requires me to consider if there is a meaning of the words used in the deeds “ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant”.
[38] The root deeds all recognize the dominant rights of “Grantor, its successors and assigns”. In my view, the parties and their lawyers in 1961 knew that Rolnor was selling off the lots with rights of way to each buyer so they could all access their properties with vehicles. The reference to the grantor and its assigns can only be read as a reference to Rolnor as developer of the lots and the owners to whom it assigned the dominant rights to each lot in past or in future. It is the height of artifice to ignore that all the buyers needed, wanted, and believed they were obtaining and giving enforceable rights of way over the driveway. The references to the grantor in the root deeds and subsequent deeds in my view must be read as references to Rolnor and those whose rights depend on grants assigned by it and its successors in title to the lots. Not only am I doing no violence to the words used, but I can think of nothing else to which the words “Grantor, its successors and assigns” as used in the reservations of the servient obligations could sensibly be intended to mean in the circumstances.
[39] The second interpretive question that arises when considering whether the easement accommodates the dominant tenement, is the meaning of the words “north” and “south”. The de Jocas’ have rights over the four properties that lie to their south. The Carsons have rights over the four properties that lie to their north. But the chain of deeds of the other applicants, the Piesanens, only grant rights to the south even though Brewers Close runs through properties on both sides of their property?
[40] Unlike the first issue where I could readily find a meaning of the words used in the deeds that respected what was in the reasonable contemplation of the parties, I do not think I can interpret the word “south” to mean “north and south”. The words are directional. The grants did not need directional words. They could have said that each party has the right to use Brewers Close. Instead the rights of the owners to the three interior lots are limited in direction. I cannot enlarge the grant. I cannot simply ignore the word. Mr. Bussin rightly argued that the applicants have not asked the court to rectify deeds to correct mutual mistake. I cannot fix the deeds in this proceeding.
[41] In my view therefore, the deeded rights of way of the Piesanens are limited to travelling over lands to their south.
[42] On the third point from Mihaylov, the owners of the dominant and servient tenements are indeed different.
[43] The fourth point from Mihaylov considers whether the proposed easement is capable of forming the subject-matter of a grant. The respondents argue that there can be no grant of Brewers Close because it is undefined. There are no surveyors’ stakes, trees, gates, or topographical markers mentioned in the deeds to give certainty to the location of Brewers Close.
[44] In Mihaylov, the issue was whether there was a right of way on the land through which an underground pipe ran. The documents did not contain a formal description of the location or size of the pipe. The court noted that there is vagueness in just looking at the location of the pipe. Even if the location could be determined, the dimensions of the land involved were undescribed. For example, could a six-inch pipe be replaced by a six-foot pipe? The court held:
[96] Fallowfield also assists because it demonstrates that the courts are loath to imply an ancillary right that would have the effect of enlarging the dimensions of an easement outside its described boundaries (at para. 24). Absent some type of description of the boundaries or dimensions of the easement, how could the court know whether it was enlarging the dimensions of the easement?
[97] Despite these concerns, in the present case, because of the wording of the grant in the 1979 Agreement, the absence of a description of the easement is not fatal. Recall that the grant is contained in the first operative provision of the 1979 Agreement. In that provision, the servient tenement owners agree with the dominant tenement owners that the latter “shall be able to leave the said water line in its present position, and to draw water from Sturgeon Lake.” Nothing in the words
of grant (or otherwise in the 1979 Agreement) gives the Respondents the right to install a new pipeline or replace the existing one. Accordingly, it does not matter that the Pipeline is not described more particularly. The Respondents have the right only to have the Pipeline left in position on the Mihaylov Land, no matter what its dimensions. [Emphasis added.]
[45] Mr. Bussin submitted that meaning had to be given to the words in all of the deeds that limit the rights of the other owners over “the said existing semi-circular driveway”. I agree. The parties’ servient obligations to allow use of their lands are limited to the driveway that existed when the root deeds were granted.
[46] The combined evidence of Mr. McMullen and Ms. DeHueck is that from 1961 to 2015, there was no change to the location of Brewers Close. The owners knew where it was and knew it was a shared right of way that provided each of them access to their properties. The same is said by Mr. Piesanen, Mr. Carson, and the non-party Mr. Sayewich who was examined under oath.
[47] The word “existing” in the root deeds in this case has the same effect as the word “present” in Mihaylov. The physical attributes of the right of way is given certainty by being fixed in time.
[48] I note for completeness that neither the Ford nor Wallace affidavits undermine the evidence that the location of Brewers Close was known in 1961 and has not changed. Mr. Ford exhibits a picture that does not show anything useable. Mr. Wallace is a surveyor and says there is insufficient information in the deeds to locate Brewers Close on a survey. He agreed in cross-examination though that he did not conduct a site visit and that doing so is an essential step to prepare a survey. His evidence just says what is obvious from the deeds, that the location described – a semi-circle connecting in two places to Between Lakes Trail - is not identifiable with precision without more.
[49] In 2016, after the respondents had made their changes, the applicants had the properties surveyed. The survey is attached to the Fresh as Amended Notice of Application and is in evidence. The surveyor was able to locate the prior location of Brewers Close (before it was closed or moved by the respondents) with sufficient certainty to allow him to certify the survey.
[50] Mr. Geyer, also a surveyor, testified that to surveyors, written metes and bounds descriptions are low on the list of priorities of sources of evidence for a survey. The physical evidence on site is the most important input. He too was able to locate Brewers Close from the deeds and physical inspection.
[51] Case law has recognized that despite the law’s normal assumption that the written word brings the most certainty, describing the physical world in writing in deeds is a very imprecise activity. Anyone who tries to read a metes and bounds description understands how difficult that task can be. It takes many words expressed in a most opaque manner to describe what people viewing the physical site can encapsulate in one word - “here”. See: Murphy v. Longmore, 2019 ONSC 2602 (Div. Ct.).
[52] In my view, there is no vagueness or uncertainty to the definition of the land over which rights were granted. The words used in the root deeds and in the parties’ deeds are reasonably ascertainable. On the evidence before the court, which is the only evidence available, the location of Brewers Close was known and did not change from 1961 to 2015. In fact, there is now a survey by a licensed surveyor showing it.
[53] Accordingly, I grant the declaration sought by the de Jocas and Carson applicants. The Peisanens are entitled to a declaration recognizing that they hold easements to use Brewers Close over the properties located south of their property.
Breach
[54] There is substantial conflicting evidence as to whether the de Jocas’ and the Piesanens agreed to allow the respondents to move the driveway in 2015. The respondents say they did. The applicants say they did not agree to do so. In addition, the respondents submit that even if there are no binding agreements, they relied on the representations or promises made by the de Jocas’ and the Piesanans and therefore the doctrine of promissory estoppel prohibits them from denying their assent. There are credibility issues involved in the assessment of these issues that I would not resolve on an application.
[55] The respondents concede however, that they never sought or obtained the permission of the Carsons to close or to move Brewers Close. They assert no right to prevent the Carsons from using Brewers Close no matter what the de Jocas or the Piesanens may or may not have agreed upon.
[56] The parties made submissions on the issue of whether the change in location of Brewers Close by the respondents was a substantial interference with the rights of the applicants. Not every change to the use of a right of way made by the owner of the servient tenement necessarily amounts to a breach of the dominant owner’s rights.
[57] In Weidelich v. de Koning, 2014 ONCA 736 at para. 15 the Court of Appeal set the test as follows:
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?
[58] Both sides made submissions about the degree of impact that the respondents’ changes had on the applicants. For example, the de Jocas’ say that due to the topography, the loss of the ability to exit to the south on Brewers Close requires them to back their cars out to Between Lakes Trail and raises safety issues. The respondents counter that the de Jocas’ never used the exit to the south and are not inconvenienced at all by the changes. Based on the Weidelich test, it is not open to the respondents to dictate how they would like the applicants to use the rights of way.
[59] However, I do not see this as a proper or relevant issue. The respondents have not just made a change that makes others’ use of their rights of way less convenient. They have closed the rights of way with large boulders and made Brewers Close impassable. While they have offered an alternative, no one has any defined rights over the new section. I know of no law that allows the owner of a servient tenement to completely deprive the dominant tenement owner of the use of the deeded land while offering to substitute another piece of land in its place. The respondents have not interfered with the manner by which the applicants use their rights of way; they have prevented them from travelling over the rights of way altogether.
[60] Once again, the respondents point to the alleged agreements of the applicants and plead estoppel. But they have no answer to the Carsons whose permission was never sought. Accordingly, the Crasons are entitled to an order requiring the respondents to restore Brewers Close at their own cost as sought.
[61] Moreover, the evidence as to whether the de Jocas’ agreed to the respondents changes is contested. There are serious issues requiring a trial on this issue. Pending the trial, the potential loss of the property rights amounts to irreparable harm. Moreover, since the respondents have to reopen Brewers Close for the Carsons in any event, the balance of convenience favours protecting the de Jocas’ rights pending trial.
[62] I therefore grant interlocutory relief to the de Jocas’. However, as the Piesenans’ grant does not give them rights over the respondents’ property to their north. I therefore would not make an interlocutory order in their favour.
Outcome
[63] The court declares that the de Jocas and Carson applicants hold an easement for a right of way known as Brewers Close or Brewers Circle located as depicted in the survey dated October 7, 2016, attached as Schedule "A" to the Fresh as Amended Notice of Application.
[64] The court declares that the Piesanen applicants hold an easement for a right of way known as Brewers Close or Brewers Circle located as depicted in the survey dated October 7, 2016, attached as Schedule "A" to the Amended Notice of Application over the lands located to the south of their property.
[65] The court orders the respondents to forthwith restore Brewers Close or Brewers Circle to its original location at their own cost.
[66] The court orders that the respondents are prohibited from directly or indirectly interfering or impeding Brewers Close or Brewers Circle and the de Jocas and Carson applicants’ use and enjoyment of Brewers Circle permanently in respect of the Carson applicants and pending final outcome of the trial of the issues in respect of the de Jocas applicants.
[67] There shall be a trial of the following issues:
a. Whether the de Jocas’ agreed to alter their rights as asserted by the respondents;
b. Whether any agreement as may be found is void under the Statute of Frauds; and
c. Whether the doctrine of promissory estoppel precludes the applicants from relying on their strict legal rights to avoid the binding effects of any oral representations or promises that they may have made.
[68] I would not order a trial of an issue on the applicants’ claims of prescriptive title before the manner of proceeding with those claims is clarified. Similarly, I would not order a trial of the issues concerning the Piesanens’ alleged agreement because their deeded rights do not flow north in any event. Whether those issues become relevant to claims to be brought or proceeded with in this application remains to be seen.
Next Steps
[69] As I mentioned during the hearing. Legal disputes between neighbours are rarely finally resolved in court. The parties have been to the Court of Appeal once already and are likely to go again. There may be one or more further trials and then further trips to the Court of Appeal.
[70] The costs and distress being suffered by the parties to find a way to move a driveway that they all need are truly astounding. I also heard whispers of other issues – possibly damage to property and other trespasses.
[71] Nothing will end the hostilities, costs, stress, and risk of harm until the parties find a way to settle their disputes.
[72] They all need access to their land. They all know that each of the others needs access too. They all have their own priorities, needs, and wants. Unfortunately, they overlap with the priorities, needs, and wants of the other side.
[73] Even if the parties go to the Supreme Court of Canada, as long as they live beside each other and interact while in heightened states of upset, disputes will continue and new ones will start.
[74] The only answer that will bring final resolution and peace to these idyllic cottages is for the parties to decrease the volume so they can truly hear the other sides’ priorities, needs, and wants and compromise their own sooner rather than later.
[75] I reserve costs pending the final resolution of the proceedings. I have not seen the offers to settle and I do not think that I should until the full matter is resolved.
[76] I convene a case conference under Rule 50.13 to discuss a process for consideration of prescriptive title, the process for the trials of the issues ordered, if necessary, and to consider if I can facilitate settlement discussions.
[77] Whether with me or a colleague, these parties’ interests would so obviously be better served by resolution than another decade of economically ruinous litigation that they are on notice that, at the case conference, I may make an order under Rule 50.13 (6) to require them to attend mediation prior to any further steps being taken.
F.L. Myers J.
Released: November 23, 2020
COURT FILE NO.: CV-19627136
DATE: 20201123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHEL de JOCAS, CATHERINE de JOCAS, DAVID CARSON, RONALD PIESANEN and LINDA PIESANEN
Applicants
- arid -
MOLDOW ENTERPRISES INC., 833633 ONTARIO LIMITED and ALENA RAVENS
Respondents
REASONS FOR JUDGMENT
F.L. Myers J.
Released: November 23, 2020
[^1]: I am dealing only with the applicants’ claims that they have deeded easements or rights of way. That is all that is pleaded in the Fresh as Amended Notice of Application. Mr. Radnoff argues that the respondents have known since they received his factum last March that the applicants were advancing claims for prescriptive title. The respondents have responded on the issue without doubt. However, it is not clear to me that questions of prescription are readily dealt with in an application process. Each claim by each applicant against each respondent turns on individual facts that are very much in dispute. There is no pleading of the particulars of each applicant’s claim against each respondent. There is no ability of the respondents to plead defences (such as a limitation period that they say may apply). Whether this proceeding can be amended is not before me. Mr. Bussin argued that the issue of prescriptive title is not fairly before me and I agree.