COURT FILE NO.: CV-21-172 (Kingston)

DATE: 20210929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FRANCINE IRENE BRUNET and BRIAN HERBERT KENT

Applicants

– and –

GEOFFREY DOUGLAS MICHIE

Respondent

COUNSEL:

Brett Hodgins, for the Applicants

Michael D. Swindley, for the Respondent

HEARD: 27 September 2021, at Kingston (by videoconference)

BEFORE: Mew J.

REASONS FOR DECISION

(Application for Declaratory Relief)

[1] The parties to this and a related application bearing Court File No. CV-21-265 (Kingston) are involved in a dispute concerning the use of some land adjacent to a cottage in the Township of Central Frontenac owned by Francine Brunet and Brian Kent (the “Kents”).

[2] Since 10 July 2019, legal title to the adjacent land in question, known as “Part 186”, has been held by the respondent, Geoffrey Michie. There is a shed, parking area and gardens on the land which, according to the Kents, has also been used for storage, decorations, patio furniture, and “the general type of leisure that would be expected of a cottage property”.

[3] The Kents have owned the lot on which their cottage is located, as well as a separate adjacent lot, since 2000. They assert that their use of the respondent’s property accords with an easement, granted in 1972, which provides a right of way to them and to a number of other nearby property owners over a portion of Part 186. That easement provides:

An easement in, over, along and upon that Part of Lot 8, Concession 5, in the said Township of Kennebec, designated as 186, Reference Plan RD-128, for the purpose of ingress and egress and general recreation, such easement, however, not to constitute a nuisance to other persons similarly entitled.

[4] Alternatively, the Kents claim that they, and the previous owners of their cottage, used the land in front of the cottage for recreation, parking and storage for 20 continuous years prior to the properties of the parties being converted to the Land Titles system in 2010 and, hence, that they benefit from a prescriptive easement permitting the use of the land adjacent to their cottage for recreation, parking and storage, or that they have gained ownership of the land that the shed is located on through adverse possession.

[5] At the risk of some oversimplification, the material facts are straightforward.

[6] In the 1970s, various properties, including the Kents’ properties, were subdivided from Part 186 and sold off as recreation lots. The easement in question exists for the benefit of the owners of all of the subdivided parts. It includes a road known as Clancy Lane, which is a local access road maintained by the local cottage association. The Kents’ property is the last property that can be accessed by Clancy Lane and sits at a dead end.

[7] The shed used by the Kents that sits on Part 186 was built in or about 1997 by the previous owner of the Kents’ cottage, Peter Hipwell. A building permit for the shed was obtained from the local authority. The permit was issued to Roll No. 1039-001-010-003-46-0000, which is the roll number for Part 132, which is the land that the Kents’ cottage sits on.

[8] There is also a fire pit on the subject land, with an inscription bearing the date “07-16-78”.

[9] The Kents have not provided evidence from anyone who can attest to the use of the property prior to 2000. Their factual case relies heavily on inferences which I am asked to draw. For example, I am asked to infer that the area now used for parking must have been put to such use for many years prior to the Kents acquiring the property, on the basis that there is nowhere else that vehicles could have been parked.

[10] According to the Kents, the flat area in front of their cottage containing the parking area, the storage shed, some small garden beds, patio stones, a small rock wall and the fire pit, were all features that were present when they purchased the property. Mr. Kent says in his affidavit that based on the features as they existed in 2000 when they acquired the property “and based on our discussions with the previous owner at the time of our purchase”, the previous owner used these features and the land “for general recreation” in a way that is entirely consistent with the way that the Kents have used the land since they purchased it. No further detail is given about Mr. Kent’s discussion with the previous owner.

[11] Mr. Michie has no first-hand knowledge of the use of the property in question prior to 2019. However, his parents have owned the property abutting Part 186 since 1971. A photograph of the Kents’ cottage said to have been taken around the time that they acquired it is described as devoid of “gardens, gnomes, decorations screwed into trees, and the like”.

[12] Mr. Michie believes that the shed erected in 1997 was built on Part 186 in error. The building permit appears to support that conclusion.

Effect of Easement

[13] The parties agree that the question to be answered is whether the Kents’ use of the area in front of their cottage for parking, storage (i.e. the shed), gardens and the like conforms with the easement, and in particular whether it falls within the scope of “general recreation”.

[14] No authorities were provided to me to provide guidance on what the term “general recreation” means in the context of an easement such as this.

[15] As a general principle, where the words in the grant of a right of way are unclear, the historic use and circumstances surrounding the use of the property subject to the easement will help to inform the nature and extent of the rights granted: Markowski v. Verhey, 2020 ONCA 472, at para. 32.

[16] In the present case, there is very little evidence concerning the historic use and circumstances surrounding the use of the property. As already alluded tod, I am asked to infer that because, when the Kents acquired the property, the shed was there and there was nowhere else to park, storage and parking have been historic uses of the property.

[17] Mr. Hodgins, on behalf of the applicants, concedes that his clients’ claims fall to be determined on the record before the court, imperfect though it is.

[18] Regrettably, in the absence of something more compelling, by way of evidence, I am not prepared to draw the inferences which the applicants ask me to. Without evidence from other sources, such as the prior owner or his family - or at least some explanation as to why such evidence could not be adduced - how, by whom, and for whose benefit the land was used prior to the applicants’ ownership, is a matter of speculation.

[19] Given that the other activities specified in the easement are “ingress and egress”, it seems to me likely that what was contemplated were recreational activities which are transitory in nature. Mr. Swindley, on behalf of the respondent, drew an analogy between the term “general recreation” in the easement and permitted recreational use of Crown land, which includes activities such as hiking, biking, boating, canoeing, cross-country skiing, water-skiing, swimming, bird watching, camping, hunting and fishing, but not harming, killing, taking or collecting plants, trees or habitat. Physical alteration of Crown land is not permitted under the guise of recreational use. Nor is the erection of permanent or semi-permanent structures or land features.

[20] With the benefit of such guidance, I find that the installation of fixtures, such as a shed, or even a fire pit, would not amount to “general recreation” (Mr. Swindley said that building a camp fire would be a recreational use. Perhaps so. But the structure depicted in the record is more substantial and permanent in appearance). Nor, in my view, would the regular and routine parking and storage of cars, used to access and leave the cottage, comfortably fit within the ordinary meaning and nature of the term “general recreation”.

[21] That said, a grant will include such “ancillary rights“ as are reasonably necessary to the use and enjoyment of the easement contemplated by a grantor: MacKenzie v. Matthews (1999), 1999 CanLII 19931 (ON CA), 46 O.R. (3d) 21 (C.A.). In that case, it was held that a right of way over a property which afforded owners of two islands access to their properties included a grant of ancillary rights including installation and maintenance of a dock and the parking of vehicles while users enjoyed access to islands. Such ancillary rights were reasonably necessary to the use and enjoyment of easement. Users of right of way had to arrive in vehicles, which they could not transport to islands. On the other hand, the Court of Appeal reinforced the principle that the user of a right of way is precluded from enlarging the burden of an easement on the servient tenement by using it for a purpose different from that for which it was created.

[22] Mr. Kent asserts that because of the topography of their lot, there is nowhere on the lot that the applicants’ cottage is located on where vehicles can be parked. Without conceding that vehicles could be parked on the adjacent lot, also owned, or beneficially owned, by the applicants, the applicants say (and I agree) that their ownership of the other lot should be ignored for the purposes of determining the application of the easement.

[23] Be that as it may, no evidence from an expert or an objective witness was tendered on the question of whether there are places on the applicants’ cottage property lot that a car or cars could be parked.

[24] It has undoubtedly been convenient for the applicants to park in front of their cottage. It might even be reasonable for them to have used the right of way in such a manner. But, as Swartz J. recently observed in Fisher v. Saade, 2021 ONSC 1241, at para 34, citing Fallowfield v. Bourgault, 2003 CanLII 4266 (ON CA), in addressing ancillary right claims, the right must be necessary for the use and enjoyment of the easement, and not just convenient or even reasonable. In that case, while a right of way providing access over a property to the waterfront was found to enure to the benefit of not only the owner of an abutting property, but also guests who rented the property through AirBnB, ancillary rights to that easement did not extend to him having the right to unilaterally install a ramp and dock on the waterfront property. Swartz J. concluded that no ramp or dock was needed to provide safe access to the water.

[25] In the present case, the genesis of the easement was to facilitate access to numerous subdivided properties, including the accommodation of Clancy Lane. There is a dearth of evidence about parking, other that the bald statement from Mr. Kent that there is nowhere to park on his property. The lack of reference to parking in the easement could be an indication that the grantor did not feel it necessary to specify parking as a use permitted by the easement because parking on what is now the Kents’ land was possible. Or it could indicate that parking was a use which the easement contemplated. We simply do not know, and there is nothing to inform a determination of what was contemplated or intended beyond possible inferences or guessing what was in the grantor’s mind.

[26] Ultimately, in the absence of better evidence, I find that the Kents have not met their burden of establishing, on a balance of probabilities, that if they are not able to park on the right of way they will be precluded from the use and enjoyment of the easement.

[27] In short, I find that none of the disputed uses raised by Mr. Michie and addressed in this application fall within the scope and application of the easement.

Prescriptive Easement

[28] An easement may be obtained by prescription either through application of the doctrine of lost modern grant or pursuant to statute (section 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15). For the purposes of these applications, the existence of a prescriptive easement was argued on the basis that, if it exists, it would be through operation of the doctrine of lost modern grant.

[29] The doctrine of lost grant is a common law "theory" that holds that where it is found that there has been an equivalent to adverse possession for more than 20 years, it ought to be presumed to have originated lawfully in a grant at the time when the enjoyment began. The deed granting the easement is treated as if it had been made but then lost. The acquisition of easements by prescription over property in the land titles system has been abolished by the Land Titles Act, R.S.O. 1990, c. L.5 s.51. However, a pre-existing prescriptive right established pursuant to the doctrine of lost modern grant that had already crystallised when title was registered under the Land Titles Act will survive.

[30] The shed on the subject land was constructed no earlier than 1997, when the building permit for it was issued. That was just 13 years before the registration under Land Titles.

[31] As explained by Perrell J. in Carpenter v. Doull-MacDonald, 2017 ONSC 7560, at para. 51, the threshold for meeting the criteria for establishing a prescriptive easement is high, and courts are hesitant to recognise an easement by prescription “because doing so would permit a landowner’s neighbourly accommodation of sufferance to ripen into a legal burden on his or her lands without compensations”.

[32] As already intimated in my discussion of the effect of the easement, I am not satisfied on the record provided that the Kents and their predecessors in title have enjoyed the use of the land for parking, storage and the other alleged uses without force, secrecy and without permission, in an uninterrupted fashion, for a period in excess of twenty years.

Adverse Possession

[33] Adverse possession is a long-standing common law device by which the right of the prior possessor of land may be displaced by a trespasser, whose possession of the land goes unchallenged for the requisite period of time. A claim for adverse possession is dependent upon the claimant establishing that he or she:

a. had actual possession of the land in question;

b. had the intention of excluding the true owner of the land from possession; and

c. had effectively excluded the true owner from possession throughout a ten-year period.

[34] The ten-year period begins to run when the "trespasser" starts using the land as possessor. Because of the conversion to Land Titles, which, in the present case, occurred on 25 October 2010, any claim for adverse possession had to have existed for at least ten years prior to that date.

[35] To establish actual possession of land, the acts of possession must be "open, notorious, peaceful, adverse, exclusive, actual and continuous": McClatchie v. Rideau Lakes (Township), 2015 ONCA 233 (Ont. C.A.) at para. 11.

[36] The shed was already on site when the Kents acquired the property. The Kents argue that throughout their ownership of the shed they have exercised actual possession and control of it. They have stored various items in the shed while intending to exclude all others, including the true owner of the property, from it. As a result, they say that they have effectively excluded the true owner’s possession for the statutory period.

[37] It is conceded that the Kents had actual possession of the shed for more than 10 years. However, evidence of intent to exclude the true owner from possession is wanting. A photograph of the shed, which is a substantial structure, shows that its door is padlocked. There is, however, nothing in the narrative to indicate the nature and extent of the exclusion of the possession of the true owner, nor of the Kents’ intention to effect such exclusion.

[38] Establishing adverse possession is just as high a bar to overcome as establishing a prescriptive easement.

[39] In Osman v. Heath, 2016 ONSC 4812, the court had to determine an adverse possession claim involving a large shed which straddled a property line. C. MacKinnon J. found that the true owner of the land, who was resisting a claim of adverse possession, had effectively abandoned it. Furthermore, there was evidence that the claimants and their predecessors in title had never acknowledged the right of possession of the true owner. In that case, the claim for adverse possession succeeded.

[40] By contrast, in the present case, it would appear that the shed was built in or about 1997 pursuant to a permit that referred to Part 132. Whether or not it was erected on Part 186 by error, there is insufficient evidence for me to infer that the shed was erected, and its subsequent use and occupancy carried out, with the intention of excluding the true owners.

[41] I would therefore reject the claim to adverse possession of the shed.

Other Matters

[42] The respondent brought a counter-application seeking, inter alia, an interim order that the applicants serve a copy of their application on all persons having either a registered easement or right of way over Part 186. He argues that these are persons “whose presence is necessary to enable the court to adjudicate effectively and completely on the issues” raised (as per Rule 5.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194).

[43] No evidence was adduced of any impact that the relief sought by the applicants, however decided, would have on other property owners. Mr. Swindley fairly conceded that concerns about the interests of other property owners were theoretical rather than patent.

[44] The counter application is in any event redundant, given my decision on the principal application. It should be dismissed.

[45] While this will not be the outcome the applicants hoped for, I note that Mr. Michie has granted licences for various uses of the easement to other property owners. I note too that the applicants and Mr. Michie had reached an informal agreement for the applicants to purchase the land that is now the subject of this application. That deal foundered because of various conditions which the local authority imposed before the purchase could proceed. I would encourage the parties to seek a reasonable outcome which, while possibly beyond the jurisdiction of the court to impose, lies within their ability to resolve by agreement.

Costs

[46] If, within 10 days of the release of these reasons, the parties are unable to agree on the issue of costs, they should advise me via my judicial assistant Aimee McCurdy at aimee.mccurdy@ontario.ca following which I will provide further directions.

Graeme Mew J.

Released: 29 September 2021

COURT FILE NO.: CV-21-172 (Kingston)

DATE: 20210929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FRANCINE IRENE BRUNET and BRIAN HERBERT KENT

Applicants

– and –

GEOFFREY DOUGLAS MICHIE

Respondent

REASONS FOR DECISION

Mew J.

Released: 29 September 2021