Court File and Parties
Court File No.: CV-22-676509 Date: 2022-07-11 Ontario Superior Court of Justice
Re: Ashley Wiley and Dave Wiley, Applicants And: Genevieve Plank, Respondent
Before: F.L. Myers J.
Counsel: Scott McGrath and Jessica DeFilippis, for the Applicants Bruce Bussin, for the Respondent
Heard: July 7, 2022
Endorsement
The Application and Outcome
[1] Neighbours are in a dispute about a proposed renovation to the respondent’s house. The applicants sought to frustrate the respondent’s renovation by claiming ownership to a strip of the respondent’s land by adverse possession. They were forced to back down when they realized that, despite their sworn evidence to having excluded the respondent from using her strip of land, the applicants had no answer to the respondent’s evidence that she used the land repeatedly to do upkeep and maintenance on the side of her house among other things.
[2] So the applicants recently backed off their claim for title and now claim just a prescriptive easement over the strip of land. For nearly fifty years, the strip of land has been used solely as their driveway - by them and their predecessors in title. However, in light of the applicants’ belated recent concession. the respondent was in no mood to yield to the obvious. She is left arguing about a lack of evidence of the precise width of cars used in the 1980s to try to answer unanswerable independent evidence of multiple independent witnesses.
[3] Neighbours’ litigation does not make their lives better. It usually does not resolve their disputes. It is just a way-station to the next battleground down the tracks. In this case, a hearing before the Local Planning Appeal Tribunal comes next.
[4] The parties still need to discuss and agree to the details of the proposed renovation. They are now just angrier, a little older, and a little poorer. And they have yet to address the real issues.
[5] Perhaps one day the parties will be helped to listen to each other and to try to accommodate each other’s respective interests. In that way, they may be able to settle their disagreements with finality, save money, and get on with their lives without making their future interactions unpleasant and stressful for decades to come.
[6] For the reasons that follow, the applicants are entitled to the relief claimed in para. 59 of their factum dated June 28, 2022.
The Issues
[7] Counsel agree on the relevant legal issues. There are multiple facts required to prove a prescriptive easement. Only two are in issue here. The applicants need to prove:
a. that for the 20 years prior to the lands being registered under the Land Titles Act, the strip of land over which they claim an easement was openly and continuously used by their predecessors in title; and
b. that the easement sought was reasonably necessary for the better enjoyment of the applicants’ land.
[8] The lands were registered under the Land Titles system in 2003. So the period under review is from 1983 to 2003.
The Facts
[9] The applicants live to the north of the respondent’s house on the west side of the street. Looking at the houses from the street, the applicants’ northern house is to the right of the respondent’s house.
[10] The respondent’s house consists of four rental units. She does not live there.
[11] The applicants’ driveway is between the two houses. The applicants’ driveway is not a mutual drive. The respondent’s house has its own driveway to the south of her house.
[12] Looking at the pictures, there appears to be a single driveway that is eleven feet wide running between the houses. But actually, the applicants’ driveway, at its narrowest, is not quite seven feet wide measured from their house to the boundary line between the properties. The remaining strip of driveway is about four feet wide running from the boundary line south to the respondent’s house. The strip is paved like the applicants’ driveway and is unobstructed. A car driving up the applicants’ driveway would not see any reason to stick close to the right so as to stay within the northernmost seven feet on the applicants’ land rather than using the full available eleven feet of driveway.
[13] The evidence of two prior owners and numerous neighbours is perfectly clear. The driveway was openly and continuously used as the driveway for the applicants’ house throughout the relevant period. The applicants’ predecessors used to back their cars into the driveway. That means that the driver’s door opened on the north side of the driveway. To leave room to open the driver’s door, the full width of the driveway was used for parking. That is, the cars were parked at least partly on the respondent’s side of the boundary.
[14] The predecessors and neighbours agree that the driveway was used for parking cars throughout the period. The garage at the top of the driveway has never been used for cars. In fact, one of the respondent’s tenants stores goods in the applicants’ garage.
[15] The respondent’s evidence is that she has visited her house as a responsible owner more frequently than monthly throughout. She says that cars have never blocked her access to her strip of land when she has been there. Moreover, she says that when she has seen cars on the driveway, they have been parked facing forward and tucked close to the applicants’ house. The respondent’s sister visited the house several times as well and confirms her sister’s evidence.
[16] The respondent Ms. Plank agrees that if a car is parked on the north seven feet of the driveway, tucked close to the applicants’ house, the driver still needs to use the southern four feet to open the door and get in and out of the car.
[17] Ms. Plank also agreed that it is unsafe for a car to try to drive the length of the driveway wholly on the applicants’ side. It would have to drive too close to the brick wall of the applicants’ house for safety.
[18] Neighbours testified and most were cross-examined:
a. Marie Moliner was a neighbour from 1993 to 2003. She confirmed the evidence of the predecessor owner of the applicants’ house that they used the driveway exclusively during the relevant period; that they parked their cars on the driveway; and that they usually backed the cars into the driveway with the cars parked close to the respondent’s house so that the drivers could get in and out on the applicants’ side.
b. Richard Coles has been a neighbour from 1978. He confirmed the evidence of the predecessor owner of the applicants’ house that they always parked straddling the respondent’s land especially when they owned a truck.
c. Kalman Bohus has been a neighbour from 1991. He says that the predecessor owner of the applicants’ house always parked on the driveway. He made specific mention of the truck as well. He was not cross-examined and did not mention which direction the cars were parked.
d. Michael Dean was a neighbour from 1988 to 2003. He agreed that the predecessor owners of the applicants’ house used the entire driveway as their own. He thought it was their property. Under cross-examination he confirmed that their vehicles were usually backed into the driveway and parked nearer to the respondent’s side so as to leave room for the driver to get out on the applicants’ side.
[19] There are five photos from Google Maps in evidence. All were taken after 2003. But all show the cars of the predecessor owner of the applicants’ house parked close to the respondent’s house facing the street. They are not evidence of use during the relevant 20-year period. But they are vividly corroborative of the former owners’ and neighbours’ evidence.
[20] I agree with Mr. McGrath that it is noteworthy as well that none of the thirty tenants who occupied the respondent’s house during the relevant period gave evidence for her to contradict the applicants’ evidence.
This is not a Credibility Case
[21] I do not think that this application turns on witness credibility. Ms. Plank, and especially her sister, had limited, discrete, episodic exposure to the property. They had no reason to focus on the precise location of the cars on the driveway. I do not accept the submission that the Planks’ objection to an episode when the applicants’ predecessor plugged a power cord into the respondent’s outlet shows that the respondents would take note of any incursion onto their strip of land. I do not need to question Ms. Plank’s credibility to find that her observations were too sporadic to reliably speak to the continuous use of the land.
[22] There is no inconsistency between the evidence of the multiple independent witnesses supporting the applicants and that of the respondent and her sister that their access to their side of the property was never outright blocked. The applicants’ evidence is also not inconsistent with the respondent’s evidence that she and her sister did not see cars parked backwards or on the respondent’s four foot strip. If the respondent was there for an hour or two on average of once or twice a month, that leaves the other 99.4% of the time outside of her observational ability. She and her sister also had no reason to look, see, or notice the applicants’ predecessors’ cars. Even if they did, the fact that at the times that they looked, the cars were on the applicants’ land, does not undermine at all the unshaken evidence of the others that the applicants’ predecessors continuously and regularly backed into the driveway and parked their cars on the respondent’s land.
[23] Moreover, Ms. Plank agreed that even if cars were parked wholly on the applicants’ land as she recalled, the drivers would still need to use her land to enter and exit their cars. Plus, it would have been unsafe for them to drive the length of the driveway just on the applicants’ side. So, even on her evidence, there is reasonable use of the respondent’s land required for ingress, egress, and accessing and exiting parked cars.
[24] Were it necessary to make a credibility finding, I would find this to be a paradigm case for the use of the expanded powers under Rule 20.04 (2.1) of the Rules of Civil Procedure, RRO 1990, Reg 194, as incorporated by necessary intendment into Rule 14.05 (3)(h). As I would be inclined to make a finding on reliability rather than credibility, assuming the evidence of the respondent and her sister may well be perfectly truthful, there is nothing at all to be gained by requiring a trial of an issue.
[25] But, were it necessary to make a credibility finding, it is perfectly apparent that the respondent’s evidence is self-serving, lacks circumstantial indications of reliability, and that an adverse inference should be drawn due to the lack of evidence of any of the respondent’s tenants who were present at the house throughout the 20-year period. Were it necessary to make a credibility finding therefore, I would find it to be in the interests of justice to do so without a trial. The respondent’s evidence was unshaken in cross-examination. I can readily believe that she is doing her best to be honest and just is not correct.
[26] I understand as well that the applicants’ evidence of exclusion of the respondent was plainly incorrect. The former owner of the applicants’ house moved off that evidence in cross-examination without a fight. While I might have had some pause accepting her evidence if that was all there was, the neighbours’ and the other former owner’s contemporaneous and independent observations provide an ample and credible basis for findings about the use of the driveway.
Reasonable Necessity
[27] In Hunsinger v. Carter, 2018 ONCA 656, the Court of Appeal found that reasonable necessity was made out on the following basis:
[16] The uncontradicted evidence was that large trucks have accessed the back of the appellant’s property regularly over the entire time the appellant and his family have operated their business. The motion judge inferred that the trucks did not need to drive over the portion of the strip at the front half of the driveway but could stick to the appellant’s side of the driveway until they got to the back half. Although this may be possible, it is clearly not as convenient as having access to the full driveway. One need only consider a large truck backing into the driveway, not straight backwards as before over the whole driveway, but now having to stick to the appellant’s side at the front, then making a turn onto the entire strip at the back end. [Emphasis added.]
[28] By contrast, in Vivekanandan v. Terzian, 2020 ONCA 110 the Court of Appeal rejected a claim for an easement over a strip of driveway:
[16] In my view, the predecessors in title’s evidence of historic use of the disputed driveway area falls short of establishing that it was continuous or permanent. Rather, it was tied to specific time-limited activities that by their nature are sporadic – children grow out of car seats and not every car trip involves grocery shopping or bringing things into the house. Moreover, it was clear that this use did not always require occupation of the disputed driveway area. While the predecessors in title always used their own part of the driveway, they did not always park over the disputed driveway area or park alongside the disputed driveway area and use it to exit their vehicles. As the photographs of the disputed driveway area reveal, the driveway was wide enough that the predecessors in title could park their cars on their own driveway without occupying the disputed driveway area. [Emphasis added.]
[29] Mr. Bussin submits with much logical force that the Court of Appeal’s decision in English v. Perras, 2018 ONCA 649 provides an important gloss for considering which of the foregoing two cases best applies to the facts before me.
[30] In English, the Court of Appeal found that the only reason that the applicants needed to use the respondent’s side of the driveway was due to the existence of a retaining wall on the applicants’ own side. But the applicants adduced no evidence as to why that retaining wall was there. It was not clear whether it was actually retaining anything or if it might have been just decorative for example. The application judge assumed that the retaining wall was necessary. The Court of Appeal held that the judge had made an error in mis-applying the burden of proof:
[52] Respectfully, the application judge engaged in impermissible speculation to reach her conclusion on this issue. In doing so, she reversed the onus of proof, requiring the Perrases to establish that the easement was not necessary, and that the wall could be taken down. While the onus may shift on the issue of acquiescence and permission, in the manner described in Castles and Condos, it does not shift on this issue. It was up to Mr. English and Ms. Perry to establish that the easement was reasonably necessary to the enjoyment of 371. The history of the retaining wall was important. [Emphasis added.]
[31] I agree with Mr. Bussin. The burden to establish that an easement was reasonably necessary for the use of the applicants’ land by their predecessors in title is and remains on the applicants.
[32] Mr. Bussin submits that the applicants have failed to meet the burden upon them because:
a. There is no evidence of the specific makes and models of the cars owned by the applicants’ predecessors from 1983 to 2003 and the exact widths of each vehicle;
b. The applicants have not proven why they cannot park in their garage, in the rear yard, or build a pad at the front of their property.
[33] I disagree. I find that the applicants have proven on a balance of probability that an easement was reasonably necessary throughout the relevant 20-year period for ingress, egress, parking, and access to vehicles.
[34] For ingress and egress, Ms. Plank concedes it is not safe to drive on the applicants’ land alone. It is not necessary for an owner to have to barely squeak by. See: Elisma v Geil, 2016 ONSC 4815, at paras. 35 to 37. Rather, as was the case in Hunsinger, using their own land for ingress and egress was “clearly not as convenient as having access to the full driveway”. In fact, trying to drive up an eleven foot driveway by trying to stay within inches of a brick wall would be improvident.
[35] Similarly, access to parked vehicles required an easement no matter where on the driveway cars were parked. If they were parked facing forward, an easement was reasonably required to open the driver’s side doors. If they were parked facing the street, then an easement was reasonably required so as to leave room to open the driver’s door on the applicants’ side.
[36] But was an easement reasonably necessary to park on the driveway at all? I note first that the notion of requiring the applicants to build a pad now is not the issue. The question is whether the predecessors obtained a prescriptive easement by their use from 1983 to 2003. Their use of the driveway for parking was not sporadic or episodic. It was not tied to the children or just unloading groceries. The garage was never used for cars. Neither was the backyard. The independent witnesses say that the predecessors always parked on the driveway.
[37] Unlike the facts in Vivekanandan, the evidence in this case deals expressly with the continuous use of the driveway. The evidence establishes the reasonable necessity for the predecessor owners to use the driveway for parking for the better enjoyment of their own land on a balance of probabilities. The garage and back yard were not unique and unexplained obstacles to the applicants’ use of their own land alone. Whether they can use them today is (a) not the issue temporally; and (b) in any event, not an answer to 20 years of continuous use of the driveway for parking.
[38] I do not agree that proof on a balance of probabilities requires the applicants to establish the precise make, model, and dimensions of every single car owned by their predecessors to then measure whether the cars might have just fit on the applicants’ own side. The civil standard is proof on a balance of probabilities or more likely than not. Proof to a standard of mathematical precision is not required. In any event, whether a car is 55 inches, 60 inches, or 65 inches wide is of no consequence. Ms. Plank agrees that it is not safe to actually drive down the seven foot side. Similarly, unless they were driving DeLoreans, car doors opened outward no matter what kind of car was being driven. A little common sense is required too. The applicants’ predecessors parked on the driveway and it is more likely than not that doing so was reasonably required for the better enjoyment of their own land for all the reasons above.
[39] Mr. Bussin also submits that the applicants delayed from 2003 to 2022 to bring this application. He does not ask me to apply laches or say that the ultimately 15 year limitation period applies. I think he is using this submission to fit with the theme that this application was brought as an answer to his client’s renovation. I assume that is true. People don’t usually sue until a disagreement precipitates it. The issue of the purpose and breadth of the application may go to costs. It is not an answer to the merits.
[40] The respondent has put into evidence a declaration of possession from her prior owner. He swore that when he sold the property to Ms. Plank, there were no rights of way or encroachments. However, his evidence in this proceeding supports the applicants. Whether the respondent has any rights against him this many years later is for another day.
[41] The application is therefore granted as set out in para. 6 above.
[42] The applicants may deliver up to five pages of costs submissions by July 18, 2022. The respondent may deliver up to five pages of submissions by July 25, 2022. Both sides shall deliver a Costs Outline. Counsel may also provide me with any offers to settle on which they rely for costs purposes.
F.L. Myers J.
Date: July 11, 2022