COURT FILE NO.: CV-20-00083763 DATE: 2023/05/30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Angelina Pagliaro, Applicant AND 1823360 Ontario Inc. and Robert Dennis, Respondents

BEFORE: Justice R. Ryan Bell

COUNSEL: David Contant, for the Applicant Kevin Kavanagh, for the Respondents

HEARD: May 19, 2023

Endorsement

Overview

[1] The applicant Angelina Pagliaro and her brother are the owners of 340 Fifth Avenue in Ottawa. The respondent Robert Dennis and his wife are, indirectly through the respondent 1823360 Ontario Inc., the owners of 338 Fifth Avenue, Ottawa. There is a driveway between the two houses. A strip of land on the western side of the driveway lies within the lot line of 338 Fifth Avenue.

[2] Ms. Pagliaro seeks an order granting a prescriptive easement over the strip of the driveway owned by the respondents. The respondents consent to an easement over the middle and back portions of the driveway strip; it is only the “front piece” running from the corner of the house at 338 Fifth Avenue to the sidewalk that remains in issue.

[3] Historically, a concrete retaining wall ran from the sidewalk to the edge of the house at 338 Fifth Avenue. The retaining wall was eventually removed. The respondents installed a curb that ran alongside 338 Fifth Avenue to the front sidewalk. In November 2020, the respondents removed the curb and landscaping running along the house but left in place the front curb from the corner of 338 Fifth Avenue to the sidewalk. Ms. Pagliaro would like to see the front curb removed.

[4] The properties were transferred into Land Titles on August 26, 1996. The parties agree that, in order to acquire prescriptive rights, Ms. Pagliaro must establish that she and her predecessors on title used the strip of land regularly, continuously, and exclusively for at least 20 years prior to August 26, 1996.

[5] In accordance with the respondents’ consent, I declare that Ms. Pagliaro is entitled to a prescriptive easement in respect of the middle and back portions of the driveway strip. For the following reasons, the application is otherwise dismissed.

The test for a prescriptive easement

[6] The parties agree that to make out a prescriptive easement, Ms. Pagliaro must establish the following features: (i) there must be a dominant and a servient tenement; (ii) the easement must accommodate the dominant tenement; (iii) the dominant and servient owners must be different persons; and (iv) the easement must be capable of forming the subject matter of a grant: Vivekanandan v. Terzian, at para. 8, citing Depew v. Wilkes, at para. 18; Barbour v. Bailey, at para. 56.

[7] In addition, Ms. Pagliaro must demonstrate that her predecessors in title in the period prior to August 1996, engaged in at least 20 years of continuous, uninterrupted, open, and peaceful use of the disputed portion of the driveway: Vivekanandan, at para. 9; English v. Perras, at para. 29. The use must not have been permissive: Vivekanandan, at para. 9; Henderson v. Volk, at p. 383.

Application of the test

[8] Because the parties agree to a prescriptive easement over the middle and back portions of the disputed driveway strip, my analysis focuses only on the front piece.

[9] The respondents advance two submissions. First, they argue that Ms. Pagliaro has failed to establish at least 20 years of continuous, uninterrupted, open, and peaceful use of the front piece of the driveway strip prior to August 1996. Ms. Pagliaro asserts regular, continuous, and exclusive use of the disputed strip during the prescription period and says that the respondents have provided no evidence of use during that period.

[10] Second, the respondents say that Ms. Pagliaro has not established that the alleged easement over the front piece was “reasonably necessary” to the better enjoyment of the dominant tenement, 340 Fifth Avenue. For her part, Ms. Pagliaro argues that the use of the front piece of the disputed driveway area was reasonably necessary to the better enjoyment of 340 Fifth Avenue.

(i) The applicant has failed to establish the requisite use in the prescription period

[11] Both parties agree that, historically, there was a concrete retaining wall on the west side of 338 Fifth Avenue that ran from the front of the residence toward the city sidewalk. Joe Fahey, who resided at 338 Fifth Avenue until 1965 and whose family continued to own the property until 1979, describes the retaining wall as approximately 24 to 30 inches high, tapering to the sidewalk closer to the street. Where the retaining wall ended at the corner of the house, the driveway widened. Ms. Pagliaro’s evidence is that the retaining wall ended about halfway down the front piece of the driveway toward the sidewalk, was angled in a southwest fashion and was approximately 12 to 18 inches further west than the front curb installed by the respondents.

[12] The survey evidence in the motion record shows that Ms. Pagliaro is incorrect. The survey shows the retaining wall on the lot line of 338 Fifth Avenue. The survey also confirms that the width of the driveway at the back of 338 Fifth Avenue was wider than at the front of the house.

[13] Ms. Pagliaro asserts that her family regularly used the grassy portion of 338 Fifth Avenue’s front lawn to access their vehicles. She further maintains that the retaining wall did not obstruct their ability to get in and out of their vehicles. Both parties acknowledge that throughout the prescription period, cars accessed the driveway to the garage at 340 Fifth Avenue. They continue to be able to do so.

[14] In my view, the evidence of historic use of the front piece of the disputed driveway strip falls short of establishing that it was either continuous or permanent. Given the presence of the concrete retaining wall along the lot line during the prescription period, Ms. Pagliaro is unable to establish the requisite use. Even if the retaining wall was angled as alleged by Ms. Pagliaro, she does not say that her family made use of the extra 12 to 18 inches of extra driveway; the use that she alleges in relation to the front piece is restricted to the grassy area of the front lawn of 338 Fifth Avenue. As in Vivekanandan, at para. 16, I find the alleged use was tied to specific time-limited activities – getting in and out of cars – that by their nature are sporadic: Vivekanandan, at para. 16.

(ii) An easement was not reasonably necessary for the better enjoyment of 340 Fifth Avenue

[15] Even if Ms. Pagliaro had established the requisite use over the front portion, I find that she has not established that an easement was reasonably necessary for the better enjoyment of 340 Fifth Avenue. The use asserted by Ms. Pagliaro in relation to the front piece was personal to the owners of 340 Fifth Avenue; that is, it may have been “personally convenient” to them but it did not serve as a reasonably necessary accommodation to the property: Vivekanandan, at para. 19.

[16] In Vivekanandan, the historic use of the disputed driveway area was similar to that asserted here and consisted primarily of “parking on the driveway close to the side door of 47 Lawrence Crescent, most notably for the purposes of unloading small children, groceries and other things from their cars. This involved swinging car doors over the disputed driveway area and stepping out of cars on to that same land”: Vivekanandan, at para. 15. The Court of Appeal for Ontario concluded that the alleged easement over the disputed driveway area was not reasonably necessary for the better enjoyment of the dominant tenement. At para. 18 of Vivekanandan, the Court of Appeal relied on its prior decisions in Caldwell v. Elia and Hodkin v. Bigley in stating:

In Caldwell, at para. 16, referring to Hodkin, this court described this kind of use as personal to the owner of the dominant tenement:

The use asserted in Hodkin v. Bigley involved the plaintiff swinging the door of her car out over the defendant’s land and her stepping out of the car on to that same land. This use would be personal to the plaintiff rather than an accommodation to her property and thus not ‘reasonably necessary’ to the use of the property …. [Emphasis in Vivekanandan.]

[17] Ms. Pagliaro relies on the Court of Appeal’s decision in Carlini v. Hammoud, and this court’s decisions in Monika Law v. 450470 Ontario Limited and Nunes v. Fernandes. In my view, these cases do not assist Ms. Pagliaro. In Carlini, the evidence accepted by the application judge was that the disputed driveway was originally owned exclusively by the owners of the dominant tenement and was used by them in a variety of ways to “facilitate the better enjoyment of the Carlinis’ property”: Carlini, at para. 4. The prescriptive easement was well established prior to the sale of the servient tenement.

[18] In Monika Law, the evidence established that the right claimed was “tied specifically to the applicant’s use of their parking of vehicles at the rear of their property…The ability to use the turnaround area is significant to them for the safe use of the parking area and ability to exit it”: Monika Law, at para. 32. By contrast, in the case before me, the evidence establishes that cars were able and continue to be able to access the driveway to the garage at 340 Fifth Avenue. Using the grassy area of the front lawn of 338 Fifth Avenue was a matter of convenience for the property’s owners, but was not reasonably necessary for the better enjoyment of their property.

[19] Finally, in Nunes, the application judge concluded that the easement was necessary for the full use and enjoyment of the dominant tenement because, among other things, to go into the rear of the property towards the garage, “given the angles and dimensions, would be very difficult and potentially unsafe to property”: Nunes, at para. 6. Again, the factual matrix in Nunes was very different than that before me.

[20] Accordingly, I find that an easement over the front piece of the disputed driveway strip was not reasonably necessary for the better enjoyment of 340 Fifth Avenue.

Conclusion

[21] On consent, there will be an order permitting the registration of an easement in favour of 340 Fifth Avenue over the strip of land within the 338 Fifth Avenue lot line between the two houses, extending from Ms. Pagliaro’s garage to the eastern corner of the front of the structure at 338 Fifth Avenue. The easement shall be limited to the purpose of walking on the easement lands to enter and exit a vehicle; but the owner of 340 Fifth Avenue shall specifically not be able to park on the easement land or leave property on the easement land, and shall not be able to obstruct the use of the easement land by the owner of 338 Fifth Avenue. The easement shall be prepared and registered at the expense of Ms. Pagliaro.

[22] The balance of Ms. Pagliaro’s application is dismissed.

[23] The parties provided submissions on costs at the conclusion of the hearing. The respondents are the successful parties and are entitled to their costs. They seek their fees on a substantial indemnity basis based on their offer to agree to an easement in respect of the middle and back portions of the disputed strip of driveway. In my view, the respondents’ offer does not entitle them to substantial indemnity costs because the offer did not address the front piece.

[24] The partial indemnity fees of both parties are similar. Costs “should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”: Boucher v. Public Accountants Council for the Province of Ontario. Having regard to this principle and the relevant factors in r. 57.01 of the Rules of Civil Procedure, I conclude it is fair and reasonable to require Ms. Pagliaro to pay the respondents’ costs of the application in the amount of $10,500, all inclusive.

Justice R. Ryan Bell Date: May 30, 2023

COURT FILE NO.: CV-20-00083763 DATE: 2023/05/30 ONTARIO SUPERIOR COURT OF JUSTICE RE: Angelina Pagliaro, Applicant AND 1823360 Ontario Inc. and Robert Dennis, Respondents BEFORE: Justice R. Ryan Bell COUNSEL: David Contant, for the Applicant Kevin Kavanagh, for the Respondents ENDORSEMENT Ryan Bell J. Released: May 30, 2023

[1] 2020 ONCA 110 . [2] (2002) , 60 O.R. (3d) 499 (Ont. C.A.). [3] 2016 ONCA 98 . [4] 2018 ONCA 649 . [5] (1982) , 35 O.R. (2d) 379 (Ont. C.A.). [6] , [2000] O.J. No. 661 (Ont. C.A.). [7] (1998), 20 R.P.R. (3d) 9 (Ont. C.A.) . [8] 2011 ONCA 285 . [9] 2018 ONSC 6043 . [10] 2019 ONSC 4815 . [11] , 71 O.R. (3d) 291 (C.A.). [12] R.R.O. 1990, Reg. 194 .