Court File and Parties

COURT FILE NO.: CV-22-84 DATE: 2023-05-24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Danuta Talukder Applicant

– and –

Edward G. Murray Holding Company Inc. Respondent

COUNSEL: May Elajami for the Applicant Robert B. Sheppard for the Respondent

HEARD: April 28, 2023

HOOPER J.

Endorsement

[1] This is an application for a declaration of an easement.

[2] The applicant is the owner of property known municipally as 19648 Opeongo. She and her late husband purchased this property in 2004. The property is described as a two-storey mixed use building, with commercial units on the first floor and apartments on the second. In December 2019, the applicant decided to convert the commercial units into residential units, making the entire property residential. In order to do this, the property had to be rezoned. The rezoning application uncovered the issue before me today.

[3] There are two parking lots – one in the front of the building and one in the back. There are nine parking spaces in each of the parking lots.

[4] The applicant states that the second-floor units use the back parking lot which can only be accessed by a driveway that traverses from the back of 19648 Opeongo over the lands of 179 Range B connecting to a public road, Rock Lane. The applicant describes this access route as a driveway.

[5] In September 2021, the Applicant learned that the driveway was not solely situated on her property and no easement existed granting her the right to traverse over 179 Range B to access Rock Lane.

[6] The property known municipally as 179 Range B is owned by the Respondent. The Respondent filed an affidavit sworn November 17, 2022. In his affidavit, Mr. Murray deposes the following under oath:

a) While the property is currently owned by Edward G. Murray Holding Company, it was previously owned by Murray Bros. Lumber Co. (“Murray Bros.”) Murray Bros. purchased the property in 1973.

b) That since 1973, when the property was purchased by Murray Bros., he has been unaware of anyone utilizing 179 Range B. to gain access to the applicant’s property.

c) That he personally took a photograph from his property towards the applicant’s property and that there is no driveway leading to the applicant’s property. Rather, he describes an area filled with foliage. Attached as an exhibit to his affidavit is a photograph that shows an area covered with leaves.

[7] In reply, the applicant filed supplementary affidavit material that also includes photographs. These photographs clearly show an asphalt driveway. When one compares the two photographs, it is clear that Mr. Murray took his photograph in the fall when the leaves had fallen to cover the driveway.

[8] In response to my direct questions as to whether or not a driveway in fact exists and whether the affidavit of his client was false, counsel for the respondent indicated that he did not know.

Issues

[9] There are two issues before me:

a. Does the Applicant enjoy the benefit of a prescriptive easement for the use of the driveway over 179 Range B to access Rock Lane pursuant to section 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”)?

b. If not, does the Applicant enjoy the benefit of a prescriptive easement for the use of the driveway over 179 Range B to access Rock Lane under the Doctrine of Lost Modern Grant?

Does the Applicant enjoy an easement pursuant to s. 31 of the RPLA?

[10] Section 31 of the RPLA states:

31 No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. R.S.O. 1990, c. L.15, s. 31.

[11] The characteristics of a prescriptive easement are:

a. A dominant and servient tenement;

b. The easement must accommodate the dominant tenement, that is to say that it must serve and be reasonably necessary for the enjoyment of the dominant tenement;

c. The owners of the dominant and servient tenement must be different people;

d. The right must be capable of forming the subject matter of the grant.

[12] To establish the prescriptive right, the use must be uninterrupted, open, peaceful, and without permission for a twenty-year period prior to conversion to Land Titles: Kaminskas v. Storm, 2009 ONCA 318. The property was converted to Land Titles on April 12, 1999.

[13] The Applicant must also prove that the usage of this property was known.

[14] As a result, to be successful on this application, the Applicant must prove, on a balance of probabilities, the test for a prescriptive easement was met and maintained for the twenty years prior to April 12, 1999.

[15] The Respondent concedes the following points:

a. The dominant and servient tenement test is met.

b. The owners of the dominant and servient tenements are different people.

c. The right is capable of forming the subject matter of the grant.

[16] The Respondent argues that the Applicant has not met her burden as she has not proven the easement is necessary nor has she proven the requirement of uninterrupted, open and peaceful use of the subject property without permission for a twenty year period.

Necessity

[17] The building located at 19648 Opeongo was built on a hill. Retaining walls have been required to prevent soil erosion and to protect the building’s structure. Photographs of the current retaining wall show it to be quite large. Given the placement of this retaining wall, there is no ability for a driveway to be created around the applicant’s property to allow access to the back parking lot from the front.

[18] The evidence supports the following findings of fact:

a. The applicant has been unable to maintain commercial tenants in the lower units.

b. In order to ensure the building is not left half vacant, converting the commercial units to residential units would be necessary.

c. There is insufficient parking in the front to allow for the entire building to become re-zoned as residential.

d. The township will not permit a rezoning of the building to residential without the availability of the back parking lot

e. The back parking lot is only available to be used if an easement is granted.

[19] The applicant has therefore established that access to the back parking lot is “reasonably necessary for the better enjoyment of the dominant tenements”: Depew v. Wilkes at para 20. I also find that this easement right is not one of mere recreation or amusement but involves a very practical purpose: Barbour v. Bailey, 2016 ONCA 98 at para 57-59.

[20] Even if I am wrong and there is a way for the retaining wall to be altered to allow for access to the back parking lot off of Opeongo Line, the existence of an alternate route does not preclude the finding of an easement: Barbour at para. 83.

[21] Further, in Barbour, para. 57, the Court noted quoting from Anger and Honsberger: Law of Real Property, 2nd ed. (Aurora: Canada Law Book, 1985), at p. 927:

What is reasonably necessary must be a flexible criterion and have reference to current social conditions and the prevailing patterns and trends of conduct. What today might not be regarded to be a reasonable amenity for the better enjoyment of a property might be regarded as a reasonable amenity tomorrow.

Uninterrupted, open, and public use

[22] Dealing with open and public use first, as a result of the false statements and misleading photographs within his affidavit, I do not believe the evidence of Mr. Murray as to his knowledge of the driveway and the use of 197 Range B to gain access to the applicant’s property. It is not credible. I find that it is very likely Mr. Murray knew of the driveway and did nothing to prevent its use over the years. It was also open to anyone from the public to use.

[23] The issue is whether its use was uninterrupted or continuous.

[24] The Respondents acknowledge that the evidence of Robert Howe proves continuous usage of the driveway from 1979 to 1990. They argue, however, that there is a break in the evidence between 1990 and 1999 with no direct witness evidence for that time period.

[25] The acts necessary to establish continuous use will depend on the type of property: Barbour at para. 83. The word “continuous” has been interpreted to be something “akin to permanence”: Report on the Doctrine of Implied Grant: the rule in Wheeldon v. Burrows, British Columbia Law Institute, 2012 Docs 371 at page 11.

[26] While there may not be direct evidence of cars or people traversing on this driveway to access the upper units of 19648 Opeongo between 1990 and 1999, I find it more than likely that the use of this driveway was uninterrupted during this time. This finding is supported by the following evidence:

• The driveway to the back parking lot existed as of 1979 as attested to by Mr. Howe;
• The driveway was paved as of 1979;
• The driveway was the most efficient route of access for the second floor units prior to 1990 and there is no evidence to suggest it would not have remained the preferred route of access; and
• The driveway remains in use today.

[27] I therefore find that there was likely regular usage of this driveway for the twenty-year period prior to the property being placed into Land Titles. As a result, the requirement that the use be uninterrupted and continuous has been met.

Permission

[28] Once acquiescence to the use is established, the evidentiary burden shifts to the owner of the servient tenement to show that there was, in fact, permission and not as of right: Elisma v. Geil, 2016 ONSC 4815 at para. 42. Since Mr. Murray denies the very existence of the driveway, he obviously did not give any evidence he granted permission for its use.

[29] As a result of the above, the Applicant has met the test for an easement under s. 31 of the RPLA. With the first issue answered in the affirmative, I do not have to move to the second issue and consider the doctrine of lost grant.

Conclusion

[30] The Application is granted. An order granting the declaration set out in the Notice of Application will follow. The Land Registrar for the District Municipality of Renfrew, LRO 49 will be directed to amend the property records for the 179 Range B to note that the land is subject to an easement for both foot and vehicular traffic in favour of 19648 Opeongo. The Land Registrar will further amend the property records of 19648 Opeongo to note the easement for foot and vehicular traffic over 179 Range B.

[31] As the easement is now in place, the injunctive relief sought within the application is unnecessary.

[32] The Applicant is entitled to costs. The Applicant will file cost submissions by no later than June 15, 2023. Those submissions should be no more than five pages in length not including a bill of cost or any offers to be considered. The Respondent will have until June 30, 2023 to file responding submissions with the same page restrictions.

Justice J. Hooper Released: May 24, 2023