Bender v. Dulovic, 2023 ONSC 2536

Court File and Parties

COURT FILE NO.: CV-20-966 DATE: April 25, 2023 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tamara Bender, Applicant AND: Goran Dulovic, Respondent

BEFORE: MacNeil J.

COUNSEL: A. Bonnell – Lawyer for the Applicant Goran Dulovic – Self-represented

HEARD: January 20, 2023

Reasons for Judgment

Overview

1The parties are adjacent landowners. The Applicant, Tamara Bender (“Ms. Bender”), commenced an application seeking a declaration that the property owned by her neighbour, the Respondent, Goran Dulovic (“Mr. Dulovic”), has no right-of-way, easement or any other right of travel over Ms. Bender’s property, including by use of a driveway that leads to his property; and an order prohibiting Mr. Dulovic from using or altering a water well located on her property, among related relief.

2Mr. Dulovic commenced two cross-applications. The first seeks a declaration that his property does enjoy a right-of-way over Ms. Bender’s property and an injunction preventing interference with that right-of-way. And the second seeks, among other things, an order that the part of Ms. Bender’s property that includes the subject driveway and water well is actually part of Mr. Dulovic’s property.

3All three applications were heard together. Each of the parties filed a number of affidavits, including by experts, in support of their positions. Cross-examinations were held on those affidavits.

4More specifically, Ms. Bender filed two expert reports from Merredith A. MacLennan and Mr. Dulovic filed an expert report from Izaak de Rijcke. Their analysis and conclusions regarding title and easements concerning the properties are of assistance to the court. I find the reports satisfy the criteria for expert evidence as set out in R. v. Mohan, [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36 (S.C.C.), at para 17. They both opine on subjects that are outside the knowledge of the typical trier of fact. It is now generally accepted that the “ultimate issue” rule no longer applies to exclude opinion evidence; however, expert evidence cannot usurp the role of the trier of fact to make conclusions based on the evidence, in its totality, and decide the ultimate issue: see R. v. Bryan, [2003] O.J. No. 1960, 171 O.A.C. 391, at paras. 16-17; and Holding Tusculum B.V. v. S.A. Louis Dreyfus & Cie, 2006 QCCS 2827, 2006 CarswellQue 5151 (C.S. Que.), at paras. 26-27.

Background

5Ms. Bender is the registered owner of the lands municipally known as 4212 Trussler Road, Ayr, Ontario (“the Bender Property”) and Mr. Dulovic is the registered owner of the adjoining lands municipally known as 4218 Trussler Road (“the Dulovic Property”).

The Bender Property

6The legal description of the Bender Property is Part of Lot 38, Concession 9, North Dumfries, being more particularly described as Parts 1 and 2 on the James S. Campbell Limited, Ontario Land Surveyor, 1990 Reference Plan 67R-3667 (“Plan 67R-3667”).

7Ms. Bender jointly owned the Bender Property with her father, James Patrick Wellheiser (“Mr. Wellheiser”), prior to his death. Title was conveyed to Ms. Bender and Mr. Wellheiser in 2001, and then to Ms. Bender alone as surviving joint tenant on November 8, 2017.

8Title to the Bender Property has, in part, been traced back to Instrument 16823 registered on September 23, 1952.

9Instrument 16823 is a deed, dated August 28, 1952, from Russell Wilfred Eaton and Anne Honeyman Eaton (“the Eatons”) to George E. Delion and Lillian May Delion (“the Delions”) of part of the northwest part of the south half of Lot 38, Concession 9, Township of North Dumfries, being described by way of a metes and bounds description with dimensions of 100 x 108.9 feet. The lands are shown as “Dellion” on the Plan of Survey, dated September 26, 1955, prepared by Bert J. Roe, Dominion & Ontario Land Surveyor (“the Roe 1955 Survey”). The description in Instrument 16823 includes a reservation of a right-of-way over the southerly 10 feet of the Dellion parcel, from the Township Line on the west to the abutting lands to the east, in favour of the grantors, the Eatons. (This 10 foot right-of-way is shown on Plan 67R-3667.) The description also includes the benefit of a right to draw “sufficient water for all household needs but only for residential purposes” from a certain spring located on adjacent lands owned by the Eatons, and for access to install and maintain pipes to convey water from the spring to the lands being conveyed.

10The Delions conveyed the parcel by deed registered as Instrument 337724, dated November 30, 1966, which includes a metes and bounds description that concludes with the words “subject to a right-of-way and together with a right-of-way and other rights as more particularly described in registered Instrument Number 16823”.

11In deeds and descriptions for conveyancing made after the 1966 deed, the “together with” reference was not perpetuated.

12Title to the whole of the Bender Property is traced back to Instrument 550319, registered on May 31, 1976.

13Instrument 550319 is a grant from William Stephens and Marguerite Kathleen Stephens (“the Stephens”) to Mr. Wellheiser. Instrument 550319 indicates that the lands included in that conveyance are all of the lands of the grantors, as described in instrument numbers 149020, 173844, 179244, 204100, 230845, 239257, 385131 and 386299. Of these, the two instruments of relevance are: (i) Instrument 173844 which is a grant from the Eatons to William Stephens, registered on September 2, 1958, the legal description of which is a metes and bounds description of a 12 foot right-of-way (adjacent to the northerly lands of the former Dellion parcel) and a 27 foot right-of-way, both of which are noted on the Roe 1955 Survey; and (ii) Instrument 386299 which is a quit claim deed from the Eatons and the Delions to the Stephens, registered on November 29, 1968, of both the former Dellion parcel and the 12 foot and 27 foot rights-of-way.

14The Bender Property was administratively converted from the Registry system to the Land Titles system on September 15, 2003 to a Land Titles Conversion Qualified title.

The Dulovic Property

15The legal description of the Dulovic Property is Part of Lot 38, Concession 9, North Dumfries as described in Instrument number 1415193. It is shown on the Roe 1955 Survey as the parcel titled “Derfler”.

16Instrument 1415193 is a conveyance of the lands from Helen Marie Lehman (“Ms. Lehman”) to Mr. Wellheiser registered on April 16, 1999. The legal description is a metes and bounds description that is 100 x 108.9 feet, as previously described in Instrument 16761.

17Ms. Lehman acquired title by way of a deed registered as Instrument 16761 on June 26, 1952. The metes and bounds description in that deed measures a property with 100 feet frontage and a depth of 108.9 feet.

18The conveyance prior in sequence to Instrument 16761 was by a deed identified as Instrument 15665, registered on October 14, 1949, from Blundell to Dupras. The metes and bounds description is a parcel with 100 feet frontage and a depth of 108.9 feet.

19Blundell received title in 1941 by deed registered as Instrument 13250 on March 11, 1943. The land described in Instrument 13250 is larger and comprises just over 38 acres within Lot 38, Concession 9, Township of North Dumfries. As a result, the first conveyance or description of land owned today by Mr. Dulovic appears to be the deed registered as Instrument 15665, registered on October 14, 1949.

20Title to the Dulovic Property can be traced back to Instrument 11868, registered on April 15, 1933.

21On November 5, 2001, Mr. Wellheiser gave a mortgage of the Dulovic Property to Canadian Imperial Bank of Commerce (“CIBC”), which charge was registered as Instrument 1517559. Following Mr. Wellheiser’s death, the Dulovic Property was sold under power of sale by CIBC to Mr. Dulovic and the transfer was registered on September 25, 2019 as Instrument 1213454.

22There is no reference to a right-of-way in Instrument 11868 or any subsequent grants or transfers of the Dulovic Property, which are instruments 13250, 15665, 16761, 1415193 and 1213454.

23The Dulovic Property was administratively converted from the Registry system to the Land Titles system on September 15, 2003 to a Land Titles Conversion Qualified title.

Matters in Dispute

24The parties’ main dispute relates to Mr. Dulovic’s use of a driveway entrance and a water well which Ms. Bender claims are located on her property.

25Mr. Dulovic began travelling over the driveway to access the Dulovic Property upon taking possession of it on September 25, 2019. His evidence is that, sometime after he met Ms. Bender in early October 2019, she began to assert that he had no right to use the driveway to access the Dulovic Property.

26Upon taking possession, Mr. Dulovic also began using water from a well that is located behind his house. Ms. Bender’s evidence is that the well was disconnected in and around July 2019, prior to Mr. Dulovic’s ownership of the Dulovic Property, and that he took steps to re-connect it contrary to her direction. Mr. Dulovic disputes that the well was disconnected and states that he has only ever performed regular maintenance to the well. Mr. Dulovic has continued to use the well for his water despite Ms. Bender’s protestations.

27Ms. Bender obtained a land survey of the properties, as prepared by Pat Haramis (“Mr. Haramis”), Ontario Land Surveyor, ACI Survey Consultants, dated January 9, 2020 (“the Haramis 2020 Survey”).

28The Haramis 2020 Survey shows both the driveway from Trussler Road, which is identified as “Gravel Area” (“the Driveway”), and the water well (“the Water Well”) to be located within the boundaries of the Bender Property. No existing easements or rights-of way are noted.

29Ms. Bender presented Mr. Dulovic with a copy of the Haramis 2020 Survey and told him that he did not have a right to use the Driveway or the Water Well. Mr. Dulovic disagreed and refused to stop using them.

30Ms. Bender alleges that, since approximately October 6, 2019, Mr. Dulovic has interfered with the Bender Property in many ways, including:

a. by using the Driveway to park his own and his visitors’ vehicles; b. by re-routing the Water Well to deliver water to the Dulovic Property; c. by placing his own lock on the Water Well so that Ms. Bender could not access it; d. by placing locks and/or other construction materials over and/or near the Water Well following Ms. Bender’s removal of the locks; e. by disposing of garbage and/or other waste onto the Bender Property; and f. by cutting and/or other interfering with the trees located on the Bender Property and disposing of the debris on the Bender Property.

31Ms. Bender rents out the Bender Property to a tenant (“the Tenant”) who has resided at the property since January 2018. Ms. Bender alleges that Mr. Dulovic has exhibited behaviour towards her and the Tenant that is harassing, bullying, and/or threatening and which has significantly interfered with their enjoyment of the Bender Property.

Retained Experts

32Mr. Dulovic filed an expert report prepared by Izaak de Rijcke (“Mr. de Rijcke”), dated January 25, 2021, on the boundaries and rights-of-way affecting the Dulovic Property. In preparing his report, Mr. de Rijcke reviewed and considered registered deeds, land title records, survey records, and the field notes of James S. Campbell Limited and Pat Haramis; and attended the site and verified survey monumentation shown on Plan 67R-3667 and the Haramis 2020 survey.

33The de Rijcke Report concludes, among other things:

a. That neither Plan 67R-3667 nor the Haramis 2020 Survey “created” the boundary for the Dulovic Property. b. On the Roe 1955 Survey, the Dulovic Property appears as the Derfler parcel and there is no right-of-way or easement laid out immediately to the north and adjoining the Derfler parcel. c. There is no reservation in the 1949 deed to Dupras, registered as Instrument 15665, of an easement or right-of-way. d. The James S. Campbell Limited field notes do not depict an easement or right-of-way nor any survey monument found that could be associated with an easement or right-of-way along the north side of the Dulovic Property. e. The reporting letter from James S. Campbell Limited, dated January 16, 1990, to Mr. Wellheiser’s lawyer does not refer to an easement or right-of-way along the north side of the Dulovic Property. f. Plan 67R-3667 does not mention any “subject to” in relation to an easement or right-of-way. g. Plan 67R-3667 attributes ownership for Part 1 on the Plan to Instrument 550319 which is a deed to Mr. Wellheiser, registered May 31, 1976, with a metes and bounds description that includes the words: “Subject to a right-of-way 10 feet in width and 108.9 feet in depth running easterly from the easterly limit of the said Townline Road allowance as described in Instrument Numbers 16823, 337724, and 360274 and subject to water rights to a spring …” h. Mr. Wellheiser was the owner during a period of history of both the Dulovic Property and the lands to the north, being the Bender Property. Title would have merged and any easement would have ceased to exist at law but for the fact that: (i) the easement continued to be physically used on the ground; and (ii) the Dulovic Property was mortgaged to the bank which was sold under power of sale to Mr. Dulovic, thereby separating the titles once again. i. The boundaries shown on Plan 67R-3667 and the Haramis 2020 Survey “are accurate and correct as reflected by monuments planted in the ground”.

34Mr. Dulovic also retained Jeremy Matthews (“Mr. Matthews”), Ontario Land Surveyor, Stantec Geomatics Ltd., to prepare a Surveyor’s Real Property Report of the Dulovic Property, certified on July 16, 2021 (“the Stantec SRPR”). The Stantec SRPR agrees with the boundaries described on the Haramis 2020 Survey and concludes that the Driveway and the Water Well are on the Bender Property; it also concludes that there is no right-of-way or easement for access across the Bender Property registered on title to the Dulovic Property.

35In response to the de Rijcke Report, Ms. Bender retained an expert, Merredith MacLennan (“Ms. MacLennan”), to prepare a report, dated August 20, 2021, on whether there are any easements or rights-of-way in favour of the Dulovic Property in relation to the Driveway and the Water Well (“the First MacLennan Report”). The conclusions reached in the First MacLennan Report include that:

a. The Dulovic Property does not enjoy the benefit of an easement over the Bender Property, including the use of the Driveway or the Water Well. b. There is no registered, prescriptive, or implied easement for the use of either the Driveway or the Water Well. c. Both of the 12 foot and 27 foot historical rights-of-way depicted on the Roe 1955 Survey and the 10 foot right-of-way depicted on Plan 67R-3667 merged when the Stephens became owners of the dominant and servient lands in 1968. d. Any claim for prescriptive easements would be defeated by Mr. Wellheiser’s ownership of both the dominant and the servient lands.

36In response to the First MacLennan Report, Mr. Dulovic swore another affidavit setting out the reasons for his belief that he owns the part of the Bender Property upon which the Driveway and the Water Well are located. He also produced three affidavits from his brother and his brother’s friends concerning their measurement of the frontage of the Dulovic and Bender properties. Mr. Dulovic argues that the surveyor who prepared Plan 67R-3667 (“the Campbell Surveyor”) started surveying from the wrong point on Trussler Road. In that regard, Mr. Dulovic relies on the Roe 1955 Survey. He submits that, historically, the Bender and Dulovic parcels had the same place of beginning at a distance of 818.40 feet from the southwest angle of Lot 38, Concession 9. He alleges that by not checking distances and information from Instrument 550319, registered on May 31, 1976, the Campbell Surveyor made a “mistake of 18 feet on [the] eastern limit of [the] road Allowance between the Townships of North Dumfries and Blenheim setting the corner of Instrument 5412739”. He further submits that the Campbell Surveyor “allegedly found a UO monument between Bender and Dulovic properties ‘siting [sic] too far into’ Trussler Road and set [the] western corner of [the] properties at the same place by 5,12 feet inside. … Because of the alleged UO monument, surveyor Campbell shortened the northern boundary of Dulovic’s parcel …” Mr. Dulovic contends that, in relying on Plan 67R-3667, subsequent surveyors have repeated and/or compounded the errors made by the Campbell Surveyor.

37Mr. Dulovic claims that the Haramis 2020 Survey now shows the Bender Property as having a frontage of 112 feet when it should only have a 100 feet frontage as indicated in the Roe 1955 Survey. He submits that the extra 12 feet has been taken from the Dulovic Property and, if the frontages of the properties were restored to their historical dimensions, the Driveway would be located on the Dulovic Property. Mr. Dulovic argues that, according to his measurements, the disputed land and disputed access from Trussler Road were fully a part of the 100 feet frontage belonging to the Dulovic Property.

38Mr. Dulovic also claims that if 6.61 feet was added to the 102.29 feet depth measurement indicated on the Haramis 2020 survey, such that the depth of the Dulovic Property equalled the depth of 108.9 feet as described in the transfer instruments, then a portion of the Water Well would be located on his property.

39Ms. Bender retained Ms. MacLennan to prepare a second expert report in response, dated April 5, 2022 (“the Second MacLennan Report”). Among the opinions Ms. MacLennan provided therein are as follows:

a. The firstly and secondly described lands in Deed 386299 gives the Bender Property a 112 foot frontage because all of the lands that currently comprise the Bender Property merged when the Stephens became the owner of all of them in 1968. As a result, Plan 67R-3667 does not show the 12 foot right-of-way separately from the former Dellion lands (or any other individual parcel that was separately conveyed to form the whole of the Bender Property). b. Plan 67R-3667 shows the Bender Property as having a 112 foot frontage and the Dulovic Property as having a 100 foot frontage. c. A prescriptive easement over the Bender Property is not possible because: (i) Mr. Dulovic has not owned the property for the required 20 years to claim a prescriptive easement himself; and (ii) the prior owner, Mr. Wellheiser owned both the dominant and the servient lands within the prescribed twenty-year timeframe, which violates one of the fundamental principles of an easement that the servient lands must be owned by a different party than the dominant lands. d. Any prescriptive rights merged once Mr. Wellheiser became the owner of the dominant and the servient lands. e. The Haramis 2020 Survey identifies measurements of the Dulovic Property frontage along Trussler Road using two survey monuments that were found. f. The edge of the Water Well appears to be 108.658 feet from Trussler Road (102.198 feet to the survey monument found plus 6.46 feet (1.97 m) between the easterly boundary line shown and the Water Well). The metes and bounds description comprising Dulovic’s lands as in Instrument 1415193 is 100 x 108.9 feet. The well is not within his boundary lines using the measurements on the Haramis 2020 Survey.

Issues

40The following are the issues to be determined:

a. Does Mr. Dulovic own the part of the Bender Property containing the Driveway and the Water Well? b. Does Mr. Dulovic have a right or right-of-way or easement over the Bender Property? c. Does the conduct of Mr. Dulovic rise to the level of harassment? d. Should damages be awarded to Ms. Bender?

41Each issue is addressed, in turn, below.

(a) Does Mr. Dulovic own the part of the Bender Property containing the Driveway and the Water Well?

Position of Ms. Bender

42It is the position of Ms. Bender that the Haramis 2020 Survey is clear that the Driveway and the Water Well are wholly located within the boundaries of the Bender Property. No survey, instrument or any other document has been produced in the litigation that contradicts the Haramis 2020 Survey.

Position of Mr. Dulovic

43Mr. Dulovic submits that the Driveway was open to access the Dulovic Property and that the water from the Water Well was in the pipes in the house when he purchased the property, and so he just continued using both as he believed they had been used by the prior owner. He was not obstructed from accessing the Driveway when first attending at the property. There were no signs preventing this use and the MLS listing for his property said that there was a mutual/shared driveway.

44Mr. Dulovic disagrees with the Haramis 2020 Survey, and with the conclusions reached by Mr. Matthews and Ms. MacLennan. He contends that there were mistakes made in Plan 67R-3667 which were referenced by the Haramis 2020 Survey.

45Mr. Dulovic submits that there is no explanation for why, on Plan 67R-3667, the property line goes through the edge of the building shown. Mr. Dulovic alleges that Mr. Haramis knew that Plan 67R-3667 was inaccurate and that he made changes to the property line between the properties by moving the border so that it does not go over the roof of the building on the Dulovic Property but next to it. Mr. Dulovic contends that the most logical explanation for the property line going over the building is that the property line is at the wrong place for 18 feet because of a mistake made by the Campbell Surveyor who prepared Plan 67R-3667. Mr. Dulovic argues that, “It can be assumed that Dulovic’s parcel was moved 18 feet onto unoccupied land to compensate for the loss of 18 feet caused by an error in the initial surveying step.”

46Mr. Dulovic also submits that, according to measurements he took, the Water Well is located approximately two-thirds on the Dulovic Property; and further, that the disputed piece of land was taken from his property after an inaccurate survey that, without reason, shortened his parcel in depth by 6.61 feet. Since the northern boundary of the Dulovic Property has been shortened from 108.9 feet to 102.29 feet on the Haramis 2020 Survey, the Water Well would be located on the Dulovic Property if that distance was corrected. Finally, Mr. Dulovic submits that the Water Well is solely connected underground to the house on the Dulovic Property by means of one water supply pipe.

Discussion

47Mr. Dulovic has provided a good deal of detailed information on the measurements he relies upon and on his analysis of the surveys and how 18 feet and/or 12 feet were taken from the Dulovic Property and added improperly to the Bender Property, and how the depth of the Dulovic Property has been shortened by 6.61 feet. All of his conclusions are based on his opinion of the information at hand. However, he is not a professional land surveyor nor has he satisfied me that he has the necessary skillset or experience in land surveying for his opinion to be accepted and preferred over the qualified experts and professionals who provided evidence in this litigation.

48While Mr. Dulovic alleges that the surveyors did not use performance standards for the practice of professional surveying when undertaking the surveys of the properties, there is no evidence that supports such a finding.

49There is also no substantive evidence produced by Mr. Dulovic, including any expert reports or surveys, that establishes that the boundary lines were improperly moved or located by any of the surveyors. None of the professionals retained by Mr. Dulovic disagreed with or invalidated the Haramis 2020 Survey. In any event, I am not in a position to make a determination on whether the actual boundary lines as set out in Plan 67R-3667 or the Haramis 2020 Survey are incorrect. As Mr. Dulovic noted in his materials, an application made under the Boundaries Act, R.S.O. 1990, c. B.10 would appear to be the most appropriate forum to obtain a ruling confirming the true location on the ground of the boundaries of his property if he has any doubts.

50Based on the record before me, I am satisfied that the 12 foot right-of-way indicated on the Roe 1955 Survey merged to form part of the whole of the Bender Property when the predecessors in title, the Stephens, became the owners of the lands in 1968. The reason why the Bender Property is now depicted on Plan 67R-3667 and the Haramis 2020 Survey as having a 112 foot frontage is because the 12 foot right-of-way shown on the Roe 1955 Survey merged with the former Dellion lot which had a 100 foot frontage. I conclude that the 12 feet was not taken from the former Derfler parcel (now the Dulovic Property) as contended by Mr. Dulovic.

51I am also satisfied that the 10 foot right-of-way indicated on Plan 67R-3667 merged to form part of the whole of the Bender Property when Mr. Wellheiser became the owner of the Dulovic Property in 1999.

52With respect to Mr. Dulovic’s submission that Instrument 550319 was not referenced when Plan 67R-3667 was prepared, the letter from James S. Campbell Limited, dated January 16, 1990, to Mr. Wellheiser’s lawyer sets out what steps were taken by the Campbell Surveyor when preparing Plan 67R-3667 and shows that it was considered.

53Mr. Dulovic questions why Plan 67R-3667 shows a 1 storey frame dwelling encroaching by 0.7 feet and 1.9 feet northerly into the Bender Property but the Haramis 2020 Survey does not. There was some speculation by the land professionals retained in this litigation that perhaps the current dwelling on the Dulovic Property is not the same dwelling or that it was moved from its original location. The evidence shows that the original building was a seasonal building and permission to install a holding tank and plumbing was approved by the Grand River Conservation Authority by permits granted in 1990 and 1993. I do not have sufficient evidence upon which to make any findings whether the building was moved and, if so, when. But in my view, such a finding is ultimately irrelevant since each of Mr. Haramis, Mr. de Rijcke and Mr. Matthews agree as to the current location of the monuments/markers relied upon to locate the boundaries of the Dulovic Property. Given that those monuments/markers are independent and more permanent in nature, I prefer and accept the evidence of their location over the location of the dwelling on the Dulovic Property for the purpose of determining the boundaries of the Dulovic Property.

54I conclude that the Driveway and the Water Well are located within the boundaries of the Bender Property and both are owned by Ms. Bender. Mr. Dulovic does not own the lands on which the Driveway and/or the Water Well are located.

(b) Does Mr. Dulovic have a right or right-of-way or easement over the Bender Property?

Position of Ms. Bender

55It is the position of Ms. Bender that there are no existing easements, rights-of-way, or any other such rights that would allow Mr. Dulovic or anyone else to use, travel on or over, or interact with the Bender Property without Ms. Bender’s permission. She agrees that there were historical rights-of-way but contends that they have merged and been extinguished. She also submits that the Dulovic Property is not landlocked without the use of the Bender Property.

Position of Mr. Dulovic

56If the court is not prepared to revise the boundaries as he requests, Mr. Dulovic claims a prescriptive easement over the Driveway and the Water Well.

Discussion

Express rights

57There is no evidence of any express or registered right-of-way or right over the Bender Property in favour of the Dulovic Property found in any of the relevant deeds, surveys or instruments. Accordingly, Mr. Dulovic has failed to show any title by grant of the easements claimed by him.

Prescriptive rights

58Section 51(1) of the Land Titles Act, R.S.O. 1990, c. L.5 provides:

51(1) Despite any provision of this Act, the Real Property Limitations Act or any other Act, no title to and no right or interest in land registered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or be deemed to have been acquired heretofore by any length of possession or by prescription.

59Both of the properties were converted to Land Titles on September 15, 2003. Mr. Dulovic must therefore establish a prescriptive easement for at least twenty years prior to 2003.

60As the Ontario Court of Appeal explained in Kaminskas v. Storm, 2009 ONCA 318, at paras. 20-26, there are two ways in which an easement may be acquired by prescription:

(i) by the doctrine of lost modern grant whereby the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years: see Henderson v. Volk (1982), 35 O.R. (2d) 379 (Ont. C.A.), at para. 14; and

(ii) by statute, being sections 31 and 32 of the Ontario Real Property Limitations Act, R.S.O. 1990, c. L.15.

61To establish a prescriptive easement of either kind, the user must first meet the four essential characteristics of an easement at common law, namely:

a. there must be a dominant and servient tenement; b. an easement must accommodate the dominant tenement; c. the dominant and servient owners must be different persons; and d. a right must be capable of forming the subject matter of a grant.

See Kaminskas, at para. 27.

62Since Mr. Dulovic has not owned the Dulovic Property for 20 years prior to 2003, he cannot satisfy the test for a prescriptive easement based on his own use of the Driveway or the Water Well. Thus, it must be considered whether the use of the lands by his predecessors in title satisfies the test.

63Mr. Wellheiser was the owner of both the Dulovic Property and the Bender Property prior to Mr. Dulovic purchasing his lands. As a result of Mr. Wellheiser’s ownership of both properties, I am of the view that any prescriptive easement that may have existed has been extinguished by operation of law, given that a prescriptive easement cannot exist where the dominant and servient tenements are owned by the same person. Unity of ownership is inconsistent with an easement since one does not require an easement in order to enjoy rights over one’s own property. The need for separate ownership of the dominant and servient lands has been confirmed in the case law: see Siegel v. 22 Shallmar Inc., 2004 CarswellOnt 4980 (Ont. S.C.J.), [2004] O.J. No. 486, at para. 7; and North Portage Development Corp. v. Winnipeg (City) Assessor, 1995 CarswellMan 222, 107 Man. R. (2d) 103 (Man. C.A.), at paras. 21-22.

64Mr. Wellheiser owned the dominant tenement as sole owner and the servient tenement as a joint tenant with Ms. Bender. Mr. Dulovic argues that since Mr. Wellheiser did not own both properties in the same manner, there was no merger and no extinguishment of the 10 foot right-of-way easement shown on Plan 67R-3667. No caselaw was placed before me in support of his position in this regard. I reject this argument for the reason that Mr. Wellheiser enjoyed the full bundle of rights of ownership of both tenements and, therefore, had an unrestricted right of enjoyment over both properties during his ownership. When he passed over from the servient tenement (the Bender Property) onto the dominant tenement (the Dulovic Property), he did not do so by exercising a right-of-way. He was making use of his own land to get from one part of it to another. Ms. Bender, as the other joint owner of the servient tenement, could not have prevented the use of the 10 foot right-of-way on the Bender Property by Mr. Wellheiser. Accordingly, as owner of the two tenements, he had no easement over one of them in respect of the other: see McDonald v. McDougall (1897), 1897 CarswellNS 63, 30 N.S.R. 298 (N.S.C.A.), at paras. 1-2, 9, and 18-20; and MacDonald v. Tunney, 2016 ONSC 5346, at para. 71.

65I acknowledge that the outcome may have been different if it was the dominant tenement that had been jointly owned since, in that situation, extinguishment of the easement on the basis of one of the joint owners also being the owner of the servient tenement would be to deny the other co-owner of the dominant tenement their right to the easement they were jointly granted. The outcome may also have been different if Mr. Wellheiser and Ms. Bender had held the servient tenement as tenants in common.

66In his report, Mr. de Rijcke opined that the easement did not cease to exist at law because: (i) the easement continued to be physically used on the ground; and (ii) the Dulovic Property was mortgaged to the bank and sold under power of sale to Mr. Dulovic “thereby separating the titles once again”. There was no caselaw placed before me in support of either of these contentions. With respect to the first, I reject the argument that an easement continues to exist at law simply because it continues to be visible on the ground. Something more is clearly needed. And with respect to the second, I am not persuaded that the bank selling the property automatically served to separate the titles. CIBC sold the lands pursuant to its rights as a mortgagee, not as an owner; Mr. Wellheiser remained the owner.

67For the same reasons that a prescriptive right claim cannot be successful as it relates to the Driveway, such a prescriptive right cannot succeed with respect to the Water Well. As Mr. Wellheiser was the owner of the dominant and servient tenements, any easement that may have existed was extinguished when he came to own both properties.

68I further conclude that it would be inconsistent with the jurisprudence regarding the nature of an easement to find that there is an easement over the Water Well since such an easement would impose a positive obligation on the servient tenement (the Bender Property) to provide, maintain and operate a water system for the benefit of the dominant tenement (the Dulovic Property). Where positive acts are required, absent privity of contract, no easement exists; for the easement must be the subject matter of a grant. Positive covenants cannot run with the land: see Lohse v. Fleming, 2008 ONCA 307, at paras. 14-17.

69Accordingly, Mr. Dulovic has not satisfied the essential elements of an easement at common law and so the Dulovic Property does not have a prescriptive easement over either the Driveway or the Water Well.

Implied easements

70As the Ontario Court of Appeal held in Toronto-Dominion Bank v. Wise, 2016 ONCA 629, at paras. 20-21; leave to appeal refused 2017 CarswellOnt 1012 (S.C.C.), easements of necessity are “presumed to have been granted when the land that is sold is inaccessible except by passing over adjoining land retained by the grantor. The concept arises from the premise that the easement is an implied grant allowing the purchaser to access the purchased lot”. The necessity of an easement of necessity is determined at the time of the grant. An easement of necessity must be necessary to use or access the property. If access without it is merely inconvenient, the easement will not be implied.

71The test for necessity is one of “strict necessity” and not practical necessity. If there is another way of accessing the subject property, even via water access, an easement of necessity does not apply: see Toronto-Dominion Bank v. Wise, at paras. 24-25, 29, and 32.

72Mr. Dulovic gives three reasons why he is not able to add another access point from his property to Trussler Road: (i) because the grade of the road is not the same as the grade of his property; (ii) he believes that there would be safety concerns in adding an access point as a result of the nature of Trussler Road to the south of his property; and (iii) any changes would be subject to the approval of the Grand River Conservation Authority. None of his stated concerns are supported by any probative evidence establishing that he is unable to construct a new driveway on the Dulovic Property.

73The availability of access from Trussler Road along the frontage of the Dulovic Property means that the test of necessity at the time of the grant to Mr. Dulovic is not met. An easement of necessity as it relates to the Driveway has not been established.

74I find that there is also no easement of necessity as it relates to the Water Well. Mr. Dulovic has not provided any evidence that establishes that a new water well cannot be dug on the Dulovic Property or that potable water cannot be delivered to service the property.

75Accordingly, there is no implied easement to benefit the Dulovic Property.

Conclusion

76For the foregoing reasons, Ms. Bender has established her legal rights to quiet enjoyment of the entirety of her property as outlined by the boundaries described in the Haramis 2020 Survey. Mr. Dulovic has failed to establish any entitlement to rights over the Driveway or the Water Well, including by way of prescriptive easement or right-of-way.

77I recognize that it will take time for Mr. Dulovic to build a driveway to access the Dulovic Property and to obtain an alternate water source. Given that the Dulovic Property is within a conservation authority, I also recognize that the construction of the alternative access to the property and an alternate water source may require planning or other regulatory approvals. In my view, Mr. Dulovic should therefore be permitted reasonable use of the Driveway and the Water Well for a limited period of time. Such allowances have been permitted by Mew J. in Brown v. Savage, 2017 ONSC 4357 and by Doyle J. in Thompson v. Lidtkie, 2019 ONSC 6613, and I agree with their disposition in providing conditions.

(c) Does the conduct of Mr. Dulovic rise to the level of harassment?

78This case raised a number of uncommon questions. To answer those questions involved the obtaining and consideration of information provided by certified surveyors and other land title professionals. While the boundaries set out in the Haramis 2020 Survey were clear, I am satisfied that Mr. Dulovic did raise relevant questions in terms of the possibility of prescriptive easements in relation to the Driveway and the Water Well for the benefit of the Dulovic Property.

79The impugned conduct of Mr. Dulovic related to his interference with the Driveway and the Water Well. His evidence was that he reasonably believed he had title to or an interest in those lands that entitled him to act the way he did. Mr. Dulovic disputes Ms. Bender’s characterization of his conduct as being threatening or harassing and he contends that he did not assault the Tenant or anyone else.

80I am persuaded that Mr. Dulovic believed he had a right to use the Driveway and the Water Well. He has now been shown to be wrong in his belief in this regard. I make no finding of harassment in the circumstances.

(d) Should damages be awarded to Ms. Bender?

81Given the complex nature of the property rights at issue and given that Mr. Dulovic believed he was acting pursuant to rights he had, I decline to order damages for trespass, nuisance, or loss of enjoyment of the Bender Property. Further, there was no evidence to support Ms. Bender’s claim for an amount to remediate any alleged damage done to her property by Mr. Dulovic (e.g., receipts or repair cost estimates), so I decline to make such an award.

82Ms. Bender requested an order for the cost of removing hydro lines and internet cables for the Dulovic Property overhanging the Bender Property. However, there was no survey evidence in the record before me showing the actual location of such lines and cables and no cost estimate provided, and so I decline to make any order in this regard.

83In her application, Ms. Bender also sought punitive damages against Mr. Dulovic. Punitive damages are an exceptional remedy. They are awarded in cases where the conduct has been so reprehensible that they are necessary to achieve the goals of denunciation and deterrence. They are limited to misconduct that represents a marked departure from ordinary standards of decent behaviour: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 (S.C.C.), at paras. 36 and 68. While Mr. Dulovic’s conduct in insisting on using the Driveway and the Water Well contrary to Ms. Bender’s objections may have been done in a manner that bordered on being high-handed, I do not find that it can reasonably be characterized as oppressive, malicious, vindictive or otherwise reprehensible in the circumstances of this case. I am of the view that this is not a case where punitive damages are warranted. Accordingly, I decline to order punitive damages as against Mr. Dulovic.

84Finally, with respect to Ms. Bender’s request for a police enforcement clause, I decline to grant such an order. In my view, such clauses should be used sparingly. If there are problems that arise that cannot be resolved amicably between the parties, then Ms. Bender is free to contact the police for assistance. She does not require a court order to do so.

85It is the Court’s expectation that, with this decision, Mr. Dulovic will respect Ms. Bender’s ownership rights and not interfere with her property which includes the Driveway and the Water Well.

Disposition

86Accordingly, for the reasons given, Ms. Bender’s application is granted, in part, and there shall be judgment as follows:

a. a declaration is made that the Dulovic Property has no right-of-way, easement or any other right to travel over the Bender Property; b. a declaration is made that Mr. Dulovic and any other occupiers of the Dulovic Property have no right-of-way, easement, or any other right to travel onto the Bender Property; c. an order is made prohibiting Mr. Dulovic and any other occupiers of the Dulovic Property from trespassing, entering onto, and otherwise interfering with the Bender Property; d. an order is made prohibiting Mr. Dulovic and any other occupiers of the Dulovic Property from parking on, loitering on, and/or otherwise using the Driveway and/or any other part of the Bender Property; e. an order is made prohibiting Mr. Dulovic and any other occupiers of the Dulovic Property from using and/or altering the Water Well located on the Bender Property; f. the above-noted subparagraphs (a) through (e) are subject to the following additional provisions: (i) the enforcement of this judgment in favour of Ms. Bender is suspended for a period of six months from the date of this order, but only to the extent that she shall not close or block the Driveway and thereby prevent its use by others for the limited purpose of providing vehicular access to and from the Dulovic Property, and she shall not close or block the Water Well and thereby prevent its use by Mr. Dulovic for the limited purpose of providing residential use water to the Dulovic Property; (ii) Mr. Dulovic’s use of the Driveway and the Water Well for the limited purposes and time described in subparagraph (f)(i) shall not otherwise unreasonably interfere with the use and enjoyment of her property by Ms. Bender and its occupants; and, (iii) either party may apply to the court for a variation, extension or termination of the period of suspension set out in subparagraph (f)(i) by way of motion under Rule 59.06 of the Rules of Civil Procedure.

87I will not be formally seized of this matter for the purposes of any further motions arising in connection with the preceding paragraph or in relation to any other motion to amend, set aside or vary my judgment.

88Mr. Dulovic’s cross-applications bearing Court File Numbers CV-21-433 and CV-21-1615 are dismissed.

Costs

89Ms. Bender has been substantially successful and is presumptively entitled to her costs of these applications. If the parties are unable to resolve the issue of costs, written submissions may be delivered as follows:

a. By May 16th, 2023, Ms. Bender shall serve and file her written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and b. Mr. Dulovic shall serve and file his responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, by May 30th, 2023; and c. Ms. Bender’s reply submissions, if any, are to be served and filed by June 6th, 2023 and are not to exceed two pages. d. If no submissions are received by June 6th, 2023, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.

MacNEIL J.