COURT FILE NO.: CV-20-00652636-0000

DATE: 20220906

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CATHERINE SUZANNE DESCHÊNES

AND:

767905 ONTARIO LIMITED AND THE ESTATE OF THE LATE THOMAS R. CRAWFORD BY HIS ESTATE TRUSTEE THOMAS WISHART CRAWFORD

BEFORE: Mr. Justice Chalmers

COUNSEL: D. Winer, for the Applicant

B. J. Weinert and S. Frion, for the Defendant, 767905 Ontario Limited (a cancelled Corporation)

T. W. Crawford, for the Estate of the Late Thomas Crawford by his Estate Trustee Thomas Wishart Crawford

HEARD: In-writing

ENDORSEMENT

Overview

[1] The Applicant seeks a prescriptive easement in the nature of a right of way over a private, undedicated road. The Application is unopposed.

[2] The Applicant is the owner of a residential property in a subdivision at Lake Simcoe, known municipally as 11 Grandview Crescent Oro, Ontario. The purchase of the property closed in July 2019. The only access to the property is by way of a private road known as Grandview Crescent. Before the purchase closed, the Applicant discovered that she did not have deeded access over the private road.

[3] The roads within the subdivision are private undedicated roads. The lands were initially subdivided more than six decades ago. At the time of the initial subdivision, most of the homes were deeded rights of way over the private, undedicated roads. It was expected that the deeded rights of way would only be necessary until the local township assumed the roads.

[4] The property was originally owned by Thomas Crawford. He transferred the Lot to Leo and Mary Goudreau by deed dated June 1, 1960. A right of way is specifically referred to in the deed. The Goudreaus transferred the property to Joann Worobec by deed dated September 29, 1987. The deed makes specific reference to the right in common law to use Grandview Road to access the property.

[5] At the time of the sale of the property to the Applicant, the property was owned by George and Dianne Hibrant. On closing, they provided a Statutory Declaration that the only access to the property was over Grandview Crescent and that during their ownership, access to Grandview Crescent had been uninterrupted, open, peaceful, undisturbed and undisputed by any party. They also advised that to the best of their knowledge, the previous owners of the property also accessed the property using Grandview Crescent.

[6] The portion of the road over which the Applicant seeks the easement is owned by the Estate of Thomas R. Crawford. His only surviving Estate Trustee is Tim Crawford. Tim Crawford advises that it was the expectation of his late father that the township would assume Grandview Crescent. The township did not assume the roads. When the Township failed to assume the road, the Estate of Thomas Crawford transferred what they thought was the entirety of the road to a corporation. They intended to dissolve the Corporation at which time the road would be forfeited to the Crown.

[7] The Estate Trustees transferred what they thought was the entire road to 767905 Ontario Limited. They later learned that only a portion of the road was transferred with a portion remaining with the estate.

[8] The Estate Trustees continue to own a portion of Grandview Crescent. Tim Crawford does not oppose the relief sought. The other portion of the road is owned by the Respondent, 767905 Ontario Limited. This corporation was cancelled by the Companies Branch on January 7, 1995. As a result of the cancellation, its assets including the portion of the road, were forfeited to the Crown. The Crown takes no position with respect to the relief sought.

Analysis

[9] To establish an easement, the user must establish the following requirements:

(a) A dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land;

(b) the properties cannot be owned by the same person;

(c) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and

(d) there must be 20 or 40 years’ continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner: Hunsinger v. Carter, 2018 ONCA 656, at para. 9.

[10] I am satisfied that the Applicant has established the necessary elements to meet the test for a prescriptive easement. The property was converted to Land Titles Qualified on May 23, 2000. Therefore, there must be 20 years of continuous, uninterrupted, open and peaceful use prior to May 23, 2000.

[11] The evidence establishes that the owners of the property and the predecessors on title have always used Grandview Crescent to access the property. This has been the case for more than 20 years. There is no other way to access the property and the easement is reasonably necessary for the enjoyment of the property.

[12] The evidence also establishes that it was the intention of the developer, Thomas Crawford to have the Town assume the road. Many of the properties in the subdivision had deeded access to the private roads. Also, Thomas Crawford did not take any steps to restrict the use of the roads to himself as the developer of the property. The Applicant submits that it was an inadvertent error that the deed did not contain a right of way.

[13] Sections 159 and 160 of the Land Titles Act, R.S.O. 1990, c. L.5, permits the Court to rectify title if the Court is satisfied that a person is entitled to an interest in registered land. The Court may order rectification in the case of an easement: MacIsaac v. Salo, 2013 ONCA 98, (leave to appeal to the SCC refused at 2013 SCC 174), at para. 53.

[14] I am satisfied that there is no injustice in ordering the rectification of the register in this case. Based on the evidence before me, it is clear that all parties believed that the owners of 11 Grandview Crescent had the benefit of the right of way for the purpose of accessing the property. As noted in MacIsaac, “if there is a risk of injustice, it would be if rectification were not ordered in these circumstances”.

Disposition

[15] I find that the Applicant has acquired a prescriptive easement by nature of a right of way over Grandview Crescent. I grant the relief sought by the Applicant. I also order that the Applicant may register a copy of this Judgment on title and as against 11 Grandview Crescent, Oro, Ontario.

[16] The Order shall go in accordance with the draft Judgment filed and signed by me.

Chalmers J

Date: September 6, 2022