Kansun v. Diamantakos, 2020 ONSC 7193

COURT FILE NO.: CV-20-00641945

DATE: 2020/11/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT KANSUN and ARIEL NEMTEAN

Applicants

• and -

ZAFIROULA DIAMANTAKOS and PENELOPE DIAMANTAKOS

Respondents

Catherine E. Allen for the Applicants

Jim Kaumarelas for the Respondents

HEARD: November 17, 2020

Application under Rule. 14.05(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, and Section 61 of the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34

PERELL, J.

REASONS FOR DECISION

A. Introduction

1The Applicants Robert Kansun and Ariel Nemtean, who are spouses, own 126 Maplewood Avenue in the City of Toronto. The Respondents Zafiroula Diamantakos and her daughter Penelope Diamantakos own the neighbouring 128 Maplewood. Both properties are registered under the Land Titles Act.¹

2Mr. Kansun and Ms. Nemtean bring this Application seeking to discharge two easements, which are right of ways for a driveway. The easements encumber their property, which is the servient tenement, and benefit the Diamantakos’ property, which is the dominant tenement. In these Reasons for Decision, I identify the two easements as the Backyard Easement and the Laneway Easement.

3Mr. Kansun and Ms. Nemtean contend that the Backyard Easement and the Laneway Easement were abandoned before the properties were registered under the Land Titles Act system in 2000. Alternatively, they content that these easements were extinguished on a variety of grounds.

4Mr. Kansun and Ms. Nemtean also seek a trial of an issue with respect to a $500,000 claim for damages for trespass.

5To be more precise, the Applicants seek:

(a) A declaration that the owners of the property bearing Parcel Identification Number (a) ("PIN") 10469-0355, municipally known as 128 Maplewood Avenue, Toronto, Ontario ("128 Maplewood"), and further described in "Schedule A", being the Respondents, have abandoned their interest, easement or right of way (the "Abandoned Easements"), in or on the property bearing PIN 10469-0356, municipally known as 126 Maplewood Avenue, Toronto, Ontario ("126 Maplewood"), and further described in "Schedule A" and, therefore, same are of no force or effect;

(b) In the alternative, a declaration that the Abandoned Easements are extinguished, given that there is no necessity for the Abandoned Easements;

(c) In the further alternative, a declaration that the Abandoned Easements are invalid as they cannot fulfill their original purpose;

(d) In the further alternative, a declaration that the Abandoned Easements have been extinguished by the prior adverse possession of same;

(e) If necessary, an order granting the Applicants leave to register any document(s) on title to 126 Maplewood as may be necessary to give force and effect to the relief sought herein;

(f) An order that the Respondents, at their own cost, replace the portion of the Border Fence (as herein defined), that they improperly and illegally removed in or about January of 2020;

(g) Damages in the amount of $500,000.00 for trespass and nuisance and an order directing a trial of an issue to assess the said damages;

(h) An order restraining the Respondents, or anyone acting on their behalf, from trespassing upon 126 Maplewood;

(i) An order restraining the Respondents, or anyone acting on their behalf, from removing or damaging any trees, greenery, or physical items as may be located on 126 Maplewood;

(j) The costs of this application on a substantial indemnity basis, or in the alternative on a partial indemnity basis; and

(k) Such further and other relief as lawyers may advise and this Honourable Court deem just.

Schedule "A"

PIN 10469-0355 (LT)

Property Description:

PCL 12061 SEC WEST TOWNSHIP OF YORK; PT LT 20 N/S HIGH ST PL M316 TWP OF YORK (FORMERLY ALICE ST) BEING THE WLY 24 FT 3 INCHES FRONT TO REAR; T/W A ROW OVER THE WLY 1 FT 4 INCHES OF THE SLY 56 FT 6 INCHES OF THE LANDS IMMEDIATELY ADJOINING THESE LANDS TO THE E THEREOF; S/T A ROW OVER THE ELY 1 FT 4 INCHES OF THE SLY 56 FT 6 INCHES OF THESE LANDS, THE SAID TWO RIGHTS OF WAY TOGETHER TO FORM A PASSAGEWAY FOR THE USE IN COMMON OF THE OWNERS AND OCCUPANTS FROM TIME TO TIME OF THE HOUSE STANDING (ON 17TH AUGUST 1921) ON THESE LANDS AND THAT ON THE LANDS IMMEDIATELY TO THE E THEREOF; ALSO T/W A ROW DESCRIBED AS FOLLOWS: COMM AT A POINT IN THE ELY LIMIT OF THE ABOVE DESCRIBED LAND, DISTANT 25 FT MEASURED SLY THEREON FROM THE NLY LIMIT OF SAID LT 20; THENCE ELY PARALLEL TO THE SLY LIMIT OF SAID LT, 9 FT 7 INCHES; THENCE S ELY 8 FT TO A POINT DISTANT 8 FT 6 INCHES MEASURED WLY AT RIGHT ANGLES FROM THE ELY LIMIT OF SAID LT 20; THENCE SLY AND PARALLEL TO THE SAID ELY LIMIT OF THE SAID LT, 30 FT 4 INCHES; THENCE S ELY 7 FT TO A POINT DISTANT 3 FT 7 INCHES MEASURED WLY AT RIGHT ANGLES FROM THE SAID ELY LIMIT OF LT; THENCE ELY PARALLEL TO THE SLY LIMIT OF SAID LT, 1 INCH; THENCE SLY AND PARALLEL TO THE SAID ELY LIMIT OF LT, 54 FT TO THE SLY LIMIT THEREOF; THENCE ELY ALONG THE SLY LIMITS OF LOTS 20 AND 21 ON SAID PL, 7 FT; THENCE NLY AND PARALLEL TO THE WLY LIMIT OF SAID LT 21, 61 FT; THENCE WLY AND PARALLEL TO THE SLY LIMIT OF SAID LT 21, 3 FT 6 INCHES TO THE ELY LIMIT OF SAID LT 20; THENCE NLY ALONG THE ELY LIMIT OF SAID LT 20, 42 FT 6 INCHES TO THE INTERSECTION OF THE PRODUCTION ELY OF THE SLY FACE OF A FRAME BUILDING, THE SAID POINT OF INTERSECTION BEING DISTANT 16 FT 6 INCHES MEASURED SLY FROM THE N ELY ANGLE OF SAID LT 20; THENCE WLY ALONG THE SAID PRODUCTION TO AND ALONG THE SAID SLY FACE OF FRAME BUILDING, 23 FT 9 INCHES TO THE SAID ELY LIMIT OF THE ABOVE DESCRIBED LANDS; THENCE SLY ALONG SAID ELY LIMIT OF THE ABOVE DESCRIBED LANDS, 8 FT 6 INCHES TO THE POB; SUBJECT HOWEVER TO THE RIGHT TO MAINTAIN THE ORIOLE WINDOW (AS EXISTING ON THE 22ND NOVEMBER 1920) OVERHANG THE WLY 3 FT 6 INCHES OF THE SLY 61 FT OF LT 21 ; TORONTO , CITY OF TORONTO PIN 10469-0356 (LT)

PIN 10469-0356 (LT)

Property Description:

PCL 8686 SEC WEST TOWNSHIP OF YORK; PT LT 20 N/S ALICE ST PL M316 TWP OF YORK BEING THE ELY 23 FT 9 INCHES; T/W A ROW OVER THE ELY 1 FT 4 INCHES OF THE SLY 56 FT 6 INCHES OF THE LAND IMMEDIATELY ADJOINING THESE LANDS TO THE W; S/T A ROW OVER THE WLY 1 FT 4 INCHES OF SLY 56 FT 6 INCHES OF THESE LANDS. THE SAID TWO RIGHTS OF WAY TOGETHER TO FORM A PASSAGEWAY FOR THE USE IN COMMON OF THE OWNERS AND OCCUPANTS FROM TIME TO TIME OF THE HOUSES NOW STANDING (12TH SEPTEMBER 1921) ON THESE LANDS AND THAT ON THE LAND TO THE W THEREOF; S/T A ROW OVER THAT PT OF THESE LANDS WHICH IS INCLUDED IN THE FOLLOWING DESCRIPTION: COMM AT A POINT IN THE WLY LIMIT OF THESE LANDS DISTANT 25 FT MEASURED SLY THEREON FROM THE NLY LIMIT OF SAID LT. THENCE ELY PARALLEL TO THE SLY LIMIT OF SID LT 9 FT 7 INCHES. THENCE S ELY 8 FT TO A POINT DISTANT 8 FT 6 INCHES MEASURED WLY AT RIGHT ANGLES FROM ELY LIMIT OF SAID LT. THENCE SLY PARALLEL TO THE ELY LIMIT OF SAID LT 30 FT 4 INCHES. THENCE S ELY 7 FT TO A POINT DISTANT 3 FT 7 INCHES MEASURED WLY AT RIGHT ANGLES TO THE SAID ELY LIMIT. THENCE ELY PARALLEL TO THE SLY LIMIT OF THE SAID LT ONE INCH, THENCE SLY AND PARALLEL TO THE ELY LIMIT OF SAID LT 54 FT TO THE SLY LIMIT THEREOF. THENCE ELY ALONG THE NLY LIMIT OF HIGH ST NOW MAPLEWOOD AV 7 FT. THENCE NLY PARALLEL TO THE ELY LIMIT OF LT 20, 61 FT. THENCE WLY PARALLEL TO THE NLY LIMIT OF HIGH ST 3 FT 6 INCHES TO THE ELY LIMIT OF THE SAID LT. THENCE NLY ALONG THE ELY LIMIT OF THE SAID LT 42 FT 6 INCHES TO THE INTERSECTION WITH THE PRODUCTION ELY OF THE SLY FACE OF A FRAME BUILDING. THE SAID POINT OF INTERSECTION BEING DISTANT 1 6 FT 6 INCHES MEASURED SLY FROM THE N ELY ANGLE OF SAID LT. THENCE WLY ALONG THE SAID PRODUCTION TO AND ALONG THE SAID SLY FACE OF THE FRAME BUILDING 23 FT 9 INCHES TO THE WLY LIMIT OF THESE LANDS. THENCE SLY ALONG THE SAID LAST MENTIONED LIMIT 8 FT 6 INCHES TO THE POB. THE LAST DESCRIBED ROW TO BE USED AS AN ENTRANCE AND DRIVEWAY FOR THE OWNERS AND OCCUPANTS FROM TIME TO TIME OF THE HOUSE ON THESE LANDS AND THE HOUSE ON THE LANDS IMMEDIATELY ADJOINING ON THE W THEREOF: T/WA ROW IN OVER AND ALONG THE WLY 3 FT 6 INCHES OF THE SLY 61 FT OF LT 21 ON SAID PL. SUBJECT HOWEVER TO THE RIGHT TO MAINTAIN THE ORIOLE WINDOW (AS EXISTING 22 NOVEMBER 1920) OVERHANGING THE SAID 3 FT 6 INCHES OF SAID LT 21 ; S/T A ROW IN OVER AND ALONG THE ELY 3 FT 6 INCHES OF THE SL Y 61 FT OF THESE LANDS. THE SAID TWO LAST MENTIONED STRIPS OF LAND TO FORM TOGETHER A SIDE ENTRANCE AND DRIVEWAY FOR THE USE IN COMMON OF THE OWNERS AND OCCUPANTS FROM TIME TO TIME OF THE HOUSE ON THE WLY PT OF SAID LT21 AND THE PAIR OF HOUSES ERECTED ON THE SAID LT 20; TORONTO , CITY OF TORONTO [Emphasis Added]

6For the reasons that follow, I grant Mr. Kansun’s and Ms. Nemtean’s Application - in part. I discharge the Backyard Easement and the Laneway Easement, and I dismiss their cause of action for trespass.

7This is not an appropriate case for costs, and each party should bear their own legal costs.

B. Evidentiary Background

8On June 3, 2020, the Applicants commenced this Application. In support of their application, they relied on the evidence of Mr. Kansun, Angela Keturakis, Zenia Peterson, Lori Hood, and Linda Pergantes. And the Applicants summoned Zafiroula Diamantakos as a witness pursuant to rule 39.03.

9In response to the Application, the Respondents relied on the evidence of Penelope Diamantakos, Anastasia Lambrianakos, and Zafiroula Diamantakos, who, as noted above, was summoned as a witness pursuant to rule 39.03.

10The Applicants Robert Kansun and Ms. Nemtean are spouses. They are the owners of 126 Maplewood. In January 2020, they purchased 126 Maplewood from the Estate of Vytautas Keturakis. In this Application, Mr. Kansun delivered an affidavit dated April 9, 2020. He was cross-examined.

11Angela Keturakis, (born 1959) is the elder daughter of the late Maria Keturakis (d. 2014) and Vytautas Keturakis (d. 2019). She lived at 126 Maplewood from 1959 until she left the family home in the 1980s. Ms. Keturakis delivered an affidavit dated September 20, 2020. Ms. Keturakis was cross-examined.

12Zenia Peterson (born 1963) is the younger daughter of the late Maria Keturakis (d. 2014) and Vytautas Keturakis (d. 2019). She lived at 126 Maplewood from 1963 until the 1980s, when she left the family home. Ms. Peterson delivered affidavits dated April 13, 2020 and September 20, 2020. She was cross-examined.

13Lori Hood lived at 124 Maplewood, which is immediately to the east of 126 Maplewood. from 1976 to 1993. Ms. Hood delivered an affidavit dated September 9, 2020. She was cross-examined.

14Linda Pergantes lived at 124 Maplewood from 1997 to 2017. She delivered an affidavit dated September 2, 2020. She was cross-examined.

15The Respondent Zafiroula Diamantakos (neé Lambrianakos) is an 89-year old widow. She is the mother of the Respondent Penelope Diamantakos. Mrs. Diamantakos and Penelope Diamantakos are the co-owners of 128 Maplewood, where Mrs. Diamantakos now lives alone. Mrs. Diamantakos moved to 128 Maplewood in 1966, when the property was purchased by her husband, the late George Diamantakos, and by her brother, the late Chris Lambrianakos. Summoned as a witness by the Applicants pursuant to rule 39.03, Mrs. Diamantakos was cross-examined. Mrs. Diamantakos speaks Greek and understands English poorly. She was cross-examined using an interpreter.

16The Respondent Penelope Diamantakos is the daughter and only child of the widow Zafiroula Diamantakos and the late George Diamantakos. Penelope lived at 128 Maplewood from 1966 until 1994. Penelope Diamantakos is married to John Koutsougeras. She delivered an affidavit dated August 7, 2020. She was cross-examined.

17Anastasia Lambrianakos is Penelope Diamantakos’ aunt by marriage. Anastasia, who is now a widow, was married to Chris Lambrianakos who is Mrs. Diamantakos’ late brother. Mrs. Lambrianakos lived at 128 Maplewood from 1967 to 1979, when she and Chris Lambrianakos moved to Greece. Mrs. Lambrianakos continues to be a resident of Greece. She delivered an affidavit dated July 30, 2020. Because of circumstances that I shall describe below, she was not cross-examined.

18On September 29, 2020, Justice Ramsay ordered that all cross-examinations be completed by October 30, 2020.

19Arrangements to cross-examine Mrs. Lambrianakos were made, but on October 26, 2020, her brother passed away in Greece, and she returned to Greece. The Respondent offered to make Mrs. Lambrianakos available for cross-examination on November 2, 2020, but this offer was refused because counsel for the Applicants had other commitments, which for present purposes I need not recount save to say that somebody else from her firm should have been briefed to conduct the cross-examination.

20Mr. Kansun and Ms. Nemtean ask that Mrs. Lambrianakos’ affidavit be struck because she was not made available for cross-examination and because given her reliance on an interpreter, her affidavit was not properly sworn. When during argument I advised that I was very much not inclined to strike Mrs. Lambrianakos’ affidavit on technical grounds, counsel for the Applicants withdrew the request to have the evidence excluded. That was the correct response in the circumstances of this case where the technical problems could and should have been resolved and where there was no good reason for the Applicants not to cross-examine Mrs. Lambrianakos on November 2, 2020.

C. Facts

21In 1951, Vytautas Keturakis purchased 126 Maplewood. He lived there with his wife, Maria and their children Angela (born 1959) and Zenia (born 1963). Maria died in 2014, and Mr. Keturakis died in 2019. During Mr. Keturakis’ occupancy, from time to time, the title of the property was transferred among the family members, including a conveyance to his daughter Zenia Peterson. In 2020, the Estate of Vytautas Keturakis conveyed the property to the Applicants.

22The sketch below depicts 124, 126, and 128 Maplewood Avenue, which are detached single-family homes. 126 Maplewood is situated in close proximity and between 128 and 124 Maplewood Avenue. The frontage of these properties is on Maplewood Avenue, which is to the south. Each of the lots are narrow with frontages of approximately 25 feet.

23For 126 Maplewood, the sketch below depicts three easements; namely: (a) a L-shaped easement in the backyard of the property (the “Backyard Easement”); (b) a rectangular easement running between 124 and 126 Maplewood from the street and connecting to the Backyard Easement (the “Laneway Easement”); and (c) an easement running between 126 and 128 Maplewood (the “Walkway” Easement).

24From the legal description, set out above, for 126 Maplewood, it is to be noted that the Laneway Easement forms a “side entrance and driveway for 128 Maplewood, 126 Maplewood, and 124 Maplewood.” The Laneway Easement begins at Maplewood Avenue and has a width of approximately 7 feet. It has a length of approximately 35 feet as it runs to join the north-south leg of the L-shaped, Backyard Easement.

25From the legal description, set out above, it is to be noted that the Backyard Easement is “to be used as an entrance and driveway” just for 128 Maplewood. The Backyard easement is approximately 7-9 feet in width and is approximately 35 feet in length after it joins with the Laneway Easement. The east-west leg of the L-shaped Backyard Easement runs through the backyard of 126 Maplewood across its width of approximately 25 feet. And the Backyard Easement terminates at the property line between 126 and 128 Maplewood.

26It is to be noted that the Walkway Easement is approximately 3 to 4 feet in width and it runs between 128 Maplewood and 126 Maplewood. The Walkway Easement provides an external access route or path to the backyard of the property and an alternative to walking through the inside of the house. The Walkway Easement is not wide enough for an automobile.

27When Mr. Keturakis purchased 126 Maplewood in 1951, it was separated from 128 Maplewood, by a fence which may have been erected approximately a century ago and that was rebuilt from time to time. While the point is disputed, I find as a fact that from 1951 until 1975, the fence between 126 and 128 Maplewood did not blockade the Backyard Easement at the property line between 128 Maplewood and 126 Maplewood.

28In 1966, Zafiroula Diamantakos and her husband George Diamantakos along with Zafiroula’s brother, Chris Lambrianakos, purchased 128 Maplewood Avenue. Mr. and Mrs. Diamantakos, their daughter Penelope, and Mr. Lambrianakos lived at 128 Maplewood and they became the Keturakis family’s neighbours.

29In 1967, Mr. Lambrianakos married, and Mrs. Anastasia Lambrianakos moved into 128 Maplewood. The Lambrianakoses resided at 128 Maplewood for twelve years until October 1979, when Mr. Lambrianakos sold his interest in the property, and the Lambrianakos moved to Greece.

30When Penelope Diamantakos married in 1994, she too moved from 128 Maplewood. After her departure, her parents regularly babysat her daughter (born 1999) and her son (born 2001) while Penelope was at work. In other words, Penelope Diamantakos would regularly visit 128 Maplewood.

31In 1966, at the time of the purchase of 128 Maplewood by Mr. Diamantakos and his brother-in-law Mr. Lambrianakos, in addition to the house, which fronted on 128 Maplewood, the property was improved by a garage at the rear of the backyard. In 1966, vehicular access to this garage was only possible using the Laneway Easement and then the Backyard Easement across 126 Maplewood.

32The evidence was that no vehicular access was utilized by Zafiroula and George Diamantakos. They did not drive vehicles. However, Mrs. Lambrianakos testified that from 1966 to 1979, when he lived at 128 Maplewood, Chris Lambrianakos used the Laneway Easement and the Backyard Easement as a route to the backyard of 128 Maplewood to park his vehicles, a small Dodge truck, and then a small Fiat automobile.

33I believe Mrs. Lambrianakos’ evidence, except that she is mistaken as to the duration of Mr. Lambrianakos’ infrequent use of the Backyard Easement, which I find as a fact ended in 1975 and not 1979.

34In 1975, Lori Ann Hood’s parents moved into 124 Maplewood along with her uncle Juraj Cacic. The Hoods and Mr. Cacic initially were tenants, and then they purchased 124 Maplewood in 1977. There is an unobscured view of the backyard of 126 Maplewood from 124 Maplewood and Ms. Hood often played in the backyards.

35I believe Ms. Hood’s evidence and find as a fact that by 1975, the fence between 126 and 128 Maplewood closed off the Backyard Easement and that in addition to the fence, the route along the Backyard Easement was impassible because of the growth of trees along the property line and by the placement of lawn furniture and other personal property in the backyard of 126 Maplewood.

36I find as a fact that after 1975, the fence between the properties blocked the westerly terminus of the Backyard Easement. From 1975, the fence obstacle meant that the Backyard and Laneway Easements were of no utility to the owners of 128 Maplewood. The easements no longer provided a route to or from 128 Maplewood.

37In any event, Mrs. Diamantakos and Penelope Diamantakos admitted that since 1979, the Backyard Easement and the Laneway Easement have not been used as a driveway for vehicular access, and they admitted that save for a very few occasions, their family did not use the easements at all.

38Mr. and Mrs. Diamantakos did not drive a vehicle, and thus they certainly did not use the Easement. The evidence establishes that from at least 1979, the Easements were used only by the owners of 126 and 124 Maplewood. The occupants of 126 and 124 Maplewood would use the Laneway Easement as a storage site for their waste bins and the Laneway Easement provided a route to the basement apartment of 124 Maplewood.

39I find as fact that Ms. Keturakis (born 1959) and her sister Ms. Peterson (born 1963) are mistaken in their recollection, that the route across the Backyard Easement was blocked by the fence between the properties as far back as 1951. Their evidence, however, is correct that the Backyard Easement was not useable for vehicular access after 1975 because of the fence and because of the obstacles in the backyard of 126 Maplewood.

40Mrs. Diamantakos and Penelope Diamantakos admitted that by the 1970s, the garage on 128 Maplewood had fallen into disrepair and that eventually the garage was demolished and replaced by a small tool shed.

41Before her departure from the home and after Penelope Diamantakos purchased a vehicle, in 1990, a parking pad was built at the front of 128 Maplewood and used by Penelope to park her car.

42I find as a fact that after 1975, the members of the Diamantakos family did not use the Laneway Easement and the Backyard Easement on 126 Maplewood as driveway to gain access to their property at 128 Maplewood. Around 1990, they built the parking pad in the front of their own property and did not use or need to use the Easements as a driveway to a garage that no longer existed.

43I find as a fact that the Diamantakos family knew that they had a right to use the Laneway Easement and the Backyard Easement at the time that they built the parking pad, but they affirmatively decided to abandon the use of the Easements and instead they decided not to replace the garage. They decided instead to build and to utilize the parking pad at the front of their property. They decided that if they needed to use the 126 Maplewood property to gain access to deliver goods to their backyard, which occurred once or twice, they would rely on the neighbourliness of the Keturakis family.

44From the cross-examinations of Mrs. Diamantakos and Penelope Diamantakos, it emerged that when Penelope Diamantakos had just used the Laneway Easement to park her car, Mr. Keturakis asked her to move the vehicle. This request was correct. The Laneway Easement was for access as a driveway and not for parking. The Laneway Easement and the Backyard Easement were not for parking and the parking pad was a legal, practical, and preferable solution to having parking for 128 Maplewood.

45From the cross-examinations of Mrs. Diamantakos and Penelope Diamantakos, it emerged that the family was aware of the registered easements, and it was disclosed that the family even considered hiring a lawyer to litigate and enforce their legal rights to use the Easements and to have the obstacles removed, but I find as a fact that the family intentionally decided that the better course was to build the parking pad and no longer to use the Laneway Easement and the Backyard Easement.

46Penelope Diamantakos deposed that her family would have made more use of the Easements, but they were afraid of Vytautas Keturakis who they knew to be the owner of guns. This was a feeble, and after-the-fact, self-serving attempt to avoid the inference that the family had decided to abandon the Easements which had not been used for a driveway for vehicular access since 1975 and that progressively had become less and less usable because of the blocking trees and the blocking uses being made by the Keturakis family of their own backyard.

47Linda S. Pergantes lived at 124 Maplewood from October 1997 to 2017. She rented the property from 1997 until 2004, when she purchased it from Mr. Cacic. Ms. Pergantes testified that there was no gap in the fence that ran between 128 and 126 Maplewood and that the Backyard Easement was also blocked by large trees growing near the back of the two properties. The trees were dense enough that she could not see into the yard of 128 Maplewood from the shared laneway or driveway on 124 and 126 Maplewood.

48I thus find as a fact that: (a) from 1966 to 1975, Mr. Lambrianakos of 128 Maplewood, very sporadically used the Easements; and (b) from 1975 to date the Easements were not used for a driveway for 128 Maplewood and that this was the advertent decision of the owners of 128 Maplewood.

49On September 18, 2000, the titles of 124, 126, and 128 Maplewood were converted from the Registry Act system to the Land Titles Act system. By the time that 128 and 126 Maplewood were converted to the Land Titles Act system in 2000, the Backyard Easement and the Laneway Easement had not been used by the owners of 128 Maplewood as a driveway for twenty-five years.

50On October 22, 2019, Mr. Kansun entered into an agreement to purchase 126 Maplewood from the Estate of Vytautas Keturakis. The agreement was scheduled to close in the new year.

51In the run up to the closing, the title to 126 Maplewood was searched, and Mr. Kansun learned that it was subject to the Backyard Easement and the Laneway Easement. Before the closing, in early January 2020, Mr. Kansun and Ms. Nemtean contacted the Diamantakoses and asked if they would consent to the deletion of the Backyard and the Laneway Easements. They refused.

52On December 13, 2019, during the nighttime, Penelope Diamantakos and her husband John Koutsougeras went to 128 and 126 Maplewood and: (a) they removed a portion of the fence; (b) they cut down trees at the boundary of the properties; and (c) they moved the garbage bins located on the Laneway Easement that had been used by the owners of both 124 and 126 Maplewood; and (d) they parked a vehicle in the backyard of 128 Maplewood gaining access via the Laneway and Backyard Easements.

53The police were called but would not get involved in this neighbours dispute. The intrusion by Penelope Diamantakos and her husband John Koutsougeras was at best a foolish and legally useless effort to provide evidence that the family had not abandoned the Easements.

54On or about January 21, 2020, the late Mr. Keturakis’ daughters wrote to the Diamantakoses and demanded that the fence be repaired. The Diamantakoses refused.

55On January 30, 2020, Mr. Kansun and Ms. Nemtean completed the purchase of 126 Maplewood from the Estate of Vytautas Keturakis. I can infer from the questions refused on Mr. Kansun’s cross-examination that the Applicants received a significant abatement in the purchase price of 126 Maplewood in consideration of closing the transaction.

56On June 3, 2020, the Applicants commenced this Application seeking a discharge of the Laneway Easement and the Backyard Easement and damages of $500,000 for trespass.

D. The Action for Trespass

57I can address the claim for trespass briefly. There is no merit to this claim by the Applicants.

58Trespass does not protect title or ownership of land; trespass is an intentional tort that protects actual possession of land. On December 13, 2019, the Applicants had no right of possession to 126 Maplewood. They have no claim for trespass.

59I, therefore, dismiss the claim for trespass.

60On this matter of their dismissed trespass claim, I have no sympathy for the Applicants, whom I infer suffered no damage or pecuniary loss from the trespass and whose claim of a $500,000 loss was both fanciful and abusive. If there was any loss, it is the Estate of Vytautas Keturakis that may have suffered from the abatement of the purchase price because of the foolish actions of Penelope Keturakis and her husband.

E. Abandonment and Extinguishment of Easements

61I turn next to the Applicants’ request for an order discharging the Easements.

62Section 61 of the Conveyancing and Law of Property Act,² authorizes the court to modify and discharge restrictive covenants including easements. Section 61 states:

Restrictive covenants, modification or discharge of

61 (1) Where there is annexed to land a condition or covenant that the land or a specified part of it is not to be built on or is to be or not to be used in a particular manner, or any other condition or covenant running with or capable of being legally annexed to land, any such condition or covenant may be modified or discharged by order of the Superior Court of Justice.

63An easement is an incorporeal hereditament, being an inheritable, non-possessory ownership interest in land. It is a right of usage over a property, which is described as the servient tenement that is annexed to a parcel of land, which is described as the dominant tenement.³ It is important to keep in mind that an easement is a non-possessory ownership interest in land.

64Owning an easement permits the owner of the dominant tenement to require the owner of the servient tenement to suffer some use on that land.⁴ Easements may be positive or negative. A positive easement grants to the owner of the dominant tenement the right to use the land of the servient tenement in a particular way that would, in the absence of the easement, be a nuisance or trespass.

65An easement being a non-possessory interest in land, adverse possession is not sufficient to extinguish a right to an easement.⁵ The Limitations Act does not apply to extinguish the right and title to an easement.⁶ The theory is that one cannot adversely possess a non-possessory interest in land.

66While an easement cannot be lost by adverse possession, an easement may be extinguished by: (a) operation of a statute; (b) operation of law; or (c) expressed or implied release, the onus of proof being on the party asserting the release.⁷ Whether there is an implied release is a question of fact in all the circumstances of the case.⁸ An abandonment is a matter as between the servient tenement and the dominant tenement.⁹

67At common law, an easement will be extinguished by operation of law where: (a) the same person comes to own the dominant and servient lands in fee simple (This is known as merger.); (b) the period for which the easement was created comes to an end; (c) the purpose for which the easement was created has come to an end; or (d) the right to the easement is abused.¹⁰

68Whether the owner of the dominant tenement intends an abandonment is not a subjective question; it is a question of fact to be ascertained from all the circumstances of the particular case.¹¹ Abandonment depends on the intention of the person alleged to be abandoning, and to establish abandonment of an easement, the conduct of the dominant owner must have been such as to make it clear that he or she had at the relevant time a firm intention that neither he or she nor any successor in title of his or her should thereafter make use of the easement.¹²

69Where there has been an express grant of a right of way, it is extremely difficult to show abandonment because a right of way is not lost by mere non-user.¹³ Unless the easement is granted for a term of years, the rights conferred by an easement are valuable rights and it is not lightly to be inferred that the owner released his or her rights for no consideration or advantage.¹⁴ The non-use of the right of way must be coupled with the grantee’s intention to abandon the right of way, which taken together imply release by abandonment.

70Where the owner of the dominant tenement does not use the easement and also does not object nor make any effort to remove obstructions or to stop the servient owner from interfering with the easement, abandonment may be inferred.¹⁵ In other words, if there is evidence of non-user and also evidence of acquiescence, abandonment may be inferred;¹⁶ however, on its own, non-use is insufficient to constitute an implied release. Non-use by itself is insufficient because non-use may arise because the dominant owner from time to time may have no need for the easement, or he or she may have a more convenient means of use than the easement. Thus, lack of use, even for prolonged periods of time, does not necessarily prove that the owner of the easement intended to abandon it.¹⁷

71The intent to abandon means that the person entitled to the easement has knowingly, and with full appreciation of his rights, determined to abandon it.¹⁸ Intention to abandon an easement will be found where the person entitled to it has demonstrated a fixed intention never at any time hereafter to assert the right himself or to attempt to transmit it to anyone else.¹⁹

72Based on my findings of fact, I conclude that in the immediate case, the Backyard Easement and the Laneway Easement have been abandoned and that it should be discharged.

73The legal test for the abandonment requires the court to engage in findings of fact perhaps more readily made by a psychologist. The fundamental question in the immediate case is: Given that they knew that they had legal rights to use the Backyard Easement and the Laneway Easement, did the Diamantakos family intend to abandon their property interest?

74As a psychologist knows, humans at a very early age develop a concept of “mine”. Anyone who is a parent also knows this psychological fact to be true. A child psychologist and an exasperated parent will tell you that there is a developmental stage for toddlers around 18 months known in the scientific literature as the “mine-stage,” and parents and psychologists will tell you that the word “mine” makes an early appearance when a child begins to talk. This emotional attachment to owning things probably explains the psychology that prompted the childish behaviour of Penelope Diamantakos and her husband John Koutsougeras on the evening of December 13, 2019, but their behaviour obscures the real issue about whether the Diamantakos family had already abandoned the Backyard Easement and the Laneway Easement many years before.

75As my findings of fact above reveal, the Diamantakos’ thinking back in 1975 - as evidenced by their conduct - demonstrates that that they made a logical and intentional decision to abandon the Backyard Easement and the Laneway Easement as a driveway. The Diamantakos family knew that 128 Maplewood was the dominant tenement, and they intentionally decided to abandon the Easements.

76Apart from the admitted fact that the two Easements were rarely used as a driveway, the intent to abandon was evidenced, among other things, by the circumstances that there were common sense reasons that the Diamantakos family would abandon the Easements. Given the awkwardness and inconvenience of traversing the middle of the backyard of one’s neighbour along a driveway of approximately 100 feet in length, which circumstances likely would be worse during Canadian winters, to reach a dilapidated garage, it was logical and clever of the Diamantakoses to build a parking pad and replace the garage with a shed and to complete the fence, which along with the trees, would provide privacy to their own backyard. Building a parking pad likely added to the value of 128 Maplewood.

77The parking pad was not a matter of a more convenient route to a parking garage because there was no longer a garage on 128 Maplewood and a major purpose, if not the purpose for the Easements had come to an end. The Backyard Easement and the Laneway Easement were not available for parking, and they never were used for pedestrian access, and, in any event, the Walkway Easement provided pedestrian access to the backyard of 128 Maplewood.

78The circumstances and the behaviour of the Diamantakoses demonstrate that the Diamantakos family intended never again to use the Backyard and Laneway Easements as a driveway. I am satisfied by the evidence in the immediate case that an intent to abandon has been demonstrated long before the lands were transferred into the Land Titles Act system, and, therefore, it follows that the Backyard Easement and the Laneway Easement should be discharged and removed from the title of the servient tenement.

F. Conclusion

79For the above reasons, I grant Mr. Kansun’s and Ms. Nemtean’s Application in part. I discharge the Backyard Easement and the Laneway Easement, and I dismiss their cause of action for trespass.

80In addition to the fact that there was divided success, this is not an appropriate case for costs and each party should bear their own legal costs. The Diamantakoses had a registered property interest that they were entitled to defend, and the Applicants purchased a property knowing it was subject to the registered easements. Both sides should neither be encouraged or discouraged from putting their legal rights before the court for a decision.

Perell, J.

Footnotes

1. 1R.S.O. 1990, c. L.5.
2. 2R.S.O. 1990, c. C.34.
3. 3Weeks v. Rogalski, 1955 148 (ON CA), [1956] O.R. 109 (C.A); Bibieffe International Holdings B.V. v. York Region Condominium Corp. No. 838, [2000] O.J. No. 3579 (C.A.); In Re International Pipeline Co., 1951 212 (SK CA), [1951] 2 D.L.R. 187 (Sask. C.A); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007, aff’d Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, aff’d 2014 SCC 7; P.M. Perell, “The Creation of Easements” (2005), 30 Adv. Q. 487.
4. 4Phipps v. Pears, [1965] 1 Q.B. 76; Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 342 (ON CA), [1968] 2 O.R. 293 (C.A.), aff’g 1967 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.); Vannini v. Public Utilities Commission of Sault Ste. Marie, 1972 413 (ON SC), [1973] 2 O.R. 11 (H.C.J.).
5. 5455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.).
6. 6Lester v. Bond, 2013 ONSC 7888, aff’d 2014 ONSC 749; Midanic v. Gross, [1956] O.J. No. 401 (C.A.); Inde v. Starr (1910), 21 O.L.R. 407 (C.A.); Mykel v. Doyle (1880), 45 U.C.Q.B. 65.
7. 7Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443 at para. 46; Liscombe v. Maughan (1927), 1928 450 (ON CA), 62 O.L.R. 328 at p. 335 (C.A.).
8. 8Currie v. Chatterton, 2014 ONSC 4571; 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.).
9. 9Currie v. Chatterton, 2014 ONSC 4571.
10. 10Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443.
11. 11Clarke v. Kukic, 2017 ONSC 6485; Relaxmuskoka Cottage Inc. v. 205219 Ontario Inc., 2017 ONSC 5131; 2108133 Ontario Inc. v. Kabcan Foods Ltd., [2009] O.J. No. 951 (S.C.J.); 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.); Crossley & Sons Ltd. v. Lightowler (1866) L.R. 3 Eq. 279, aff’d L.R. 2 Ch. 478.
12. 12Dwyer v. The City of Westminster [2014] EWCA Civ. 153.
13. 13Bialkowski v. Cowling, 2015 ONSC 1744 at para. 57; Bison Realty Ltd. v. Athersych, [1998] O.J. No. 2358 (S.C.J.); Laker v. Jackson, [2001] O.J. No. 3815 (S.C.J.); Jakmar Developments Ltd. v. Smith (1973), 1973 489 (ON SC), 1 O.R. (2d) 87 (H.C.J.).
14. 14Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443 at para. 46; CDC2020 Pic v. Ferreira, [2005] EWCA Civ 611.
15. 15455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.); Swan v. Sinclair, [1924] 1 Ch. 254, aff’d [1925] A.C. 227 (H.L.); Bell v. Golding, [1896] O.J. No. 41 (C.A.).
16. 16Bialkowski v. Cowling, 2015 ONSC 1744; Overs v. ten Kortenaar, [2006] O.J. No. 822 (S.C.J.); 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.); Bell v. Golding, [1896] O.J. No. 41 (C.A.).
17. 17Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443; Liscombe v. Maughan (1927), 1928 450 (ON CA), 62 O.L.R. 328 (C.A.); Crossley and Sons Limited v. Lightowler (1867), L.R. 3 Eq. 279, aff’d L.R. 2 Ch. 478; Ward v. Ward (1852), 155 E.R. 1189; Seaman v. Vawdrey (1810), 33 E.R. 1032.
18. 18Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443; 2108133 Ontario Inc. v. Kabcan Foods Ltd. (2009), 80 R.P.R. (4th) 194 at para. 8 (Ont. S.C.J.).
19. 19Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443; Almel Inc. v. Halton Condominium Corp. No. 71 (1997), 1997 14498 (ON CA), 98 O.A.C. 72 at para. 7 (C.A.); Shklar v. Kwiecien (1972), 1972 485 (ON SC), 3 O.R. 245 at p. 247 (H.C.J.); Tehidy Minerals Ltd. v. Norman, [1971] 2 All E.R. 475 at p. 492.