Court File and Parties
Court File No.: CV-22-1267-0000 Date: 2024-04-16 Ontario Superior Court of Justice
BETWEEN:
Gerald Robert Mighton, Paul Albert McCormick and Patti Lee McCormick, Applicants – and – Kenneth Joseph Brindley, Respondent
Counsel: J. Postnikoff, for the Applicants P. Lombardi and L. McFalls, for the Respondent
Heard: July 25, 2023
Before: I.R. Smith J.
Reasons for Judgment
1. Introduction
[1] The applicants own cottages near Lake Huron in the Township of Ashfield-Colborne-Wawanosh in Huron County. They access their cottages by way of a private road called Hunters Road, which is owned by the respondent. The relevant portion of Hunters Road runs roughly parallel to the shore of the lake at the top of a bluff or steep hill. The applicants say that they have been parking their cars on Hunters Road and walking down the hill to their cottages as a matter of routine for years. They argue that they enjoy a valid and continuing easement and right-of-way which entitles them to do so. The respondent says that the applicant’s rights are limited to their right of passage on Hunters Road (that is, their right of ingress and egress only), that this right does not include the right to park on Hunters Road, and that the applicants have parking areas clearly defined on their respective title instruments: the property owned by the applicant, Gerald Robert Mighton, has a 9 foot wide right of way “for all purposes” over a neighbouring lot and the property owned by the applicants, Paul Albert McCormick and Patti Lee McCormick, has an easement for parking on an adjacent lot.
[2] For the reasons which follow, the application is dismissed.
2. Background
[3] The respondent owns property in Huron County including various private roads, among them Hunters Road, which serve a collection of about 35 cottages, including the two owned by the applicants.
[4] Mr. Mighton’s property is municipally referred to as 82739 Hunters Road, Goderich, Ontario and is comprised of Lot 20 and Part Lot 21 within Plan 574 Colborne. On the registered transfer of this property to Mr. Mighton in 1980, the right-of-ways to which Mr. Mighton is entitled are described as follows:
i. “… a right of way over all roads shown on [Plan 574] and also a right of way over Lots 14A, 12B, 13A, 13B and 21A on Plan 574”; and,
ii.“a right of way at all times and for all purposes over, along and upon a strip of land being part of said Lot 21” that is 9 feet wide by 32.2 feet long.
[5] The McCormicks own Lot 19 within the same Plan (82743 Hunters Road in Goderich). Their rights of way are described on their 1984 transfer document as follows:
i. “… an easement to park vehicles on Part Lot 13D, Plan 574 … together with a right of way over all roads and lands shown on Plan 574 …”
ii.“… a right of way over Lots 21A and 14A … together with the right to use the well located on Part Lot 13D …”
[6] Mr. Mighton says that he has used Hunters Road for parking for the entire time he has owned the property. He and his family and guests park at the side of the road at the top of the steep hill and then use a set of stairs to get down to the cottage. According to Mr. Mighton, this practice of parking on Hunters Road and walking down to the cottage has been followed without interruption since before 1980 when he took sole title to the property (which he had previously owned jointly with his wife).
[7] The McCormicks’ cottage has been in Patti Lee McCormick’s family since 1967. Since that time, her family and their guests have used Hunters Road for parking at the top of the hill without incident or interruption. The McCormicks also use stairs to get down the hill to their cottage.
[8] The respondent denies that the applicants’ practice of parking at the top of the hill has been a continuous one of longstanding and says that he has occasionally noticed unauthorized parking at the side of Hunters Road which has blocked the use of that road. As a response to the unauthorized parking, the respondent erected signs which said, among other things, “PRIVATE ROAD NO PARKING,” “NO PARKING ON RIGHTS OF WAY” and “NO UNAUTHORIZED TAMPERING OF RIGHTS OF WAY.”
[9] The respondent says that Hunters Road, a narrow unpaved lane or track, cannot safely accommodate parking where the applicants want to park. He says that the applicants’ parking impedes the access of other cottagers and – in cases of emergency – ambulances, fire trucks and police vehicles.
[10] The appearance of the “No Parking” signs caused the applicants to worry that the respondent intended to prevent them from parking where they have always parked. They launched this application to protect their right to park on Hunters Road. They claim that their use of Hunters Road for parking does not obstruct the road in any way. They say that they have continued to park at the top of the hill despite the signs.
[11] Mr. Mighton says that it is impractical for him to park on the 9-foot-wide strip of land described in the transfer because it is on a 45-degree angle on the hill and because it is not his property. The respondent says, however, that he has seen cars parked by Mr. Mighton or his guests on the 9-foot strip. Indeed, he says that this is where Mr. Mighton moves his car when the respondent complains to him about the cars parked on Hunters Road.
[12] The McCormicks say that at the time their property was developed there was no parking associated with their property. On cross-examination, Ms. McCormick confirmed that she and her guests had a right to park on Lot 13D.
[13] The applicants say that they were never granted permission by the respondent to park at the top of the hill.
[14] The applicants’ properties were registered under the Land Titles Act, R.S.O. 1990, c. L.5, on March 26, 2007.
3. The Law
[15] The applicants say that the facts establish that they enjoy a prescriptive easement which permits them to park on or adjacent to Hunters Road. The respondent argues that no prescriptive easement has been made out and adds that the right of way over Hunters Road to which the applicants are entitled does not permit them an ancillary right to park on, or adjacent to, the road.
[16] By the combined operation of sections 31 and 32 of the Real Property Limitations Act, R.S.O. 1990, c.L.15, and section 51 of the Land Titles Act, the applicants bear the burden of establishing that their alleged prescriptive rights were acquired in the 20 years prior to the date upon which the properties were registered under the Land Titles Act (1043 Bloor Inc., v. 1714104 Ontario Inc., 2013 ONCA 91, per Laskin J.A., at para. 92 and footnote 6, Roalno Inc. v. Schaefer, 2024 ONCA 262, at para. 11, Talukder v. Edward G. Murray Holding Company Inc., 2023 ONSC 3100, at paras. 12 – 14). In this case, that means that the applicants must show that from March 26, 1987, at the latest, their use of the area at the top of the hill and on or adjacent to Hunters Road was “uninterrupted, open, peaceful, and without permission” for 20 years (1043 Bloor, supra, at paras. 94 – 97, Talukder, supra, at paras. 11 – 14, Carpenter v. Doull-MacDonald, 2017 ONSC 7560, at para. 43 – 50).
[17] The applicants must also show that the alleged easement is “reasonably necessary for the enjoyment” of their properties (Barbour v. Bailey, 2016 ONCA 98, at paras. 56 – 58). [1]
[18] With respect to the question of whether the right of way granted to the applicants includes or may be expanded to include parking on or adjacent to Hunters Road, such an ancillary right will only be recognized where it is necessary for the use and enjoyment of the easement in question (MacKenzie v. Matthews (1999), 46 O.R. (3d) 21 (C.A.), at para. 8). Convenience or reasonableness alone are not sufficient to establish the right (Primont v. Friuli, 2023 ONCA 477, at para. 56). The analysis begins with “the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created” (Primont, supra, at para 56. See also Markowski v. Verhey, 2020 ONCA 472, at paras. 27 – 28; Weidelich v. De Koning, 2013 ONSC 7486, at paras. 19 – 20). Moreover, the ancillary right claimed must not be for a significantly different purpose than the purpose of the right of way granted (Khazai v. Disante, 2020 ONSC 2152, at para. 34) and must not exceed or “over-burden” the right granted (York Region Condominium Corporation No. 890 v. Market Village Markham Inc., 2020 ONSC 3993, at para. 300).
4. Discussion
4.1 Have the applicants established a new prescriptive easement?
[19] The applicants rest their claim for a right to park on or adjacent to Hunters Road at the top of the hill on the claim that they have established a prescriptive easement to do so. A consideration of this submission requires the court to answer two questions: (i) have the applicants established that their practice of parking at the top of the hill was continuous, open, peaceful and without permission since 1987? and (ii) have the applicants established that the parking in question was reasonably necessary for the enjoyment of their properties?
4.1.1 Have the applicants established that their use of Hunters Road for parking was, from 1987, uninterrupted, open, peaceful, and without permission?
[20] In his affidavit, Mr. Mighton says that he and his wife purchased their cottage property in 1979 and that, in 1980, he became the sole owner of the property. He deposes as follows: “Ever since the day that my wife and I purchased the [cottage property], I, and my family, guests, and visitors have used [Hunters Road] for access and egress to/from the [cottage property]; and have parked at the top of the [cottage property].” Such use was, according to Mr. Mighton, “uninterrupted” until Mr. Brindley posted the no parking signs referred to earlier in these reasons, although he and his guests have continued to park at the top of the hill after the erection of the signs. Mr. Mighton notes that the set of stairs used to get from the cottage up the hill to Hunters Road were originally made from concrete and that newer wooden stairs were built over top of the concrete stairs.
[21] The McCormicks have filed a joint affidavit. In it, they assert that their cottage property was owned by Mrs. McCormick’s family (the Salters) from 1967 until they purchased it in 2002. Mrs. McCormick has been attending the cottage since 1967 and Mr. McCormick since 1980 after he met Mrs. McCormick. Like Mr. Mighton, they depose that “ever since 1967, [Mrs. McCormick’s] family, their guests and visitors have used [Hunters Road] for access and egress to/from the [cottage property]; and have parked at the top of the [cottage property].” Such use was, according to the McCormicks, “uninterrupted” until Mr. Brindley posted the no parking signs, although they continued to use the road for parking. The McCormicks also use a set of stairs which were originally concrete but over which newer wooden stairs have also been built.
[22] Both affidavits attach photographs of the areas used for parking by the applicants at the top of the hill and photographs of the stairs. I think it is fair to observe that the parking areas appear to be worn down – that is to say, they appear to have been used for parking for some time, and that the concrete stairs underneath the wooden stairs also appear to have been constructed years ago. The affidavits are very short and are strikingly free of precise dates except for the dates of the acquisitions of the two properties.
[23] Following the delivery of the applicants’ affidavits, the respondent delivered an affidavit. He states that he has lived on his property, which abuts the applicants’ properties, since he purchased it over 40 years ago. Mr. Brindley also asserts that “At all times, I have reminded the Hunters Beach cottagers that there is no parking permitted on the Private Roads” and that he has sought to enforce his rights as owner of the private roads by posting “No Parking” signs. He says that “sometimes” the applicants have parked on Hunters Road with the effect of obstructing the use of the road by others.
[24] In a reply affidavit, Mr. Mighton says that the respondent has at all times known that he was parking at the top of the hill. He further asserts that he has never obstructed the road by parking on or adjacent to it and has never been asked to move his vehicle by Mr. Brindley. Similarly, the McCormicks’ reply affidavit says that they have always parked at the top of the hill and that Mr. Brindley has never told them that they could not park there. They too deny ever obstructing Hunters Road.
[25] On cross-examination, Mr. Mighton said that he built the stairs from his cottage to the top of the hill about 25 years ago. He said that he did not recall seeing “No Parking” signs in the early 2000’s but did acknowledge having seen the signs in the previous two or three years, and that the signs had been vandalized. He said that the respondent had once told him to move a load of gravel that had been dumped on the spot where Mr. Mighton parks at the top of the hill, and that the respondent “has said to me you are not to park there” but that the respondent had never “ordered” him not to park there or to move it once he has parked at that spot.
[26] Mrs. McCormick was also cross-examined. She testified that her father built the wooden stairs over top of the concrete stairs from her cottage to the top of the hill before she and Mr. McCormick purchased the cottage. She agreed that “No Parking” signs were put up in 2022 but said that she did not recall seeing “No Parking” signs as early as the late 1990’s or early 2000’s but allowed that she “was not there at every weekend at that point in time.” Apart from the signs, Mrs. McCormick said that the respondent had never objected to the McCormicks parking at the top of the hill, had never spoken to her about it, nor asked her to move a car from that area. Mr. McCormick was not cross-examined.
[27] At his cross-examination, the respondent said that he told Mr. Mighton not to park at the top of the hill “several times” and that “sometimes he’ll obey, and when my back is turned, he’ll go and park there.” He described Mr. Mighton’s use of the top of the hill to park as “off and on.” He denied that either the Mightons or the McCormicks parked at the top of the hill “continuously since they have owned the properties” and said that they only park there part of the time. The respondent said that when he has asked Mr. Mighton to move his car from the top of the hill Mr. Mighton has moved his car to the 9-foot-wide strip referred to above. The respondent said that the McCormicks always park down the hill on the space allotted to them (“where they are supposed to”), and that he has spoken four or five times to Mr. McCormick or to the McCormicks together (but not Mrs. McCormick alone) about not parking at the top of the hill. The respondent produced photographs of “No Parking” signs which he said he had erected and said that those photographs were taken in December of 2001. He said that there have been “No Parking” signs since the early 1980’s. He said that the “No Parking” signs were repeatedly vandalized over the years. The respondent was asked if he had been paying attention to where the Mightons and McCormicks had been parking since before 1990, and he said that he had.
[28] This last question was undoubtedly a veiled reference to earlier litigation involving the respondent. In 2001, Justice J.M.W. Donohue of this court heard and decided a case similar to the present case involving several other lots (lots 15, 16, 17 and block A) in the same cottage development. The cottagers who then owned those properties (including one named Salter) testified that they had always parked at the top of the hill. Donohue J. found (in Lafferty v. Brindley, reversed in part, ) that the cottagers were unable to park on their own lots because of the steep pitch of the hill. He accepted (at para. 40) that they had parked at the top of the hill since “long before the deeded right of way was granted, or the plan was registered [in 1952].” He rejected the evidence of the defendant in that proceeding, who is the respondent in this proceeding, saying (at para. 22) that “he was paying little attention to where parking was occurring before 1994 when he first became fully attentive to where his lot line actually lay.”
[29] Donohue J. found that parking at the top of the hill was permitted by a prescriptive easement, for the following reasons (at para. 49):
The plaintiffs and their predecessors in title have been parking at the brow of the slope since before 1950 until after 1990 when the defendant first commenced to object. Their parking has been continuous, open, uninterrupted, peaceable, and with the knowledge of and without objection from the defendant or his predecessors.
[30] The Court of Appeal allowed the respondent’s appeal in part but dismissed his appeal against Justice Donohue’s order that the cottagers had a right to park at the top of the hill. Justice Donohue had found that right on the basis of his conclusions (i) that the cottagers enjoyed an ancillary right to park at the top of the hill, or, in the alternative (ii) they had established a prescriptive easement which permitted them do so. The Court of Appeal confirmed the former conclusion and therefore found it unnecessary to consider whether the prescriptive easement had been made out.
[31] For reasons which will be explained more fully below, I am not of the view that the decisions of either the Court of Appeal or Justice Donohue are dispositive of the case before me. Although both the applicants and the respondent rely on Justice Donohue’s reasons, neither has submitted that they are dispositive of the issues to be decided now. Indeed, the applicants (who have the most to gain from Justice Donohue’s conclusions) have led their own evidence of the history of their parking practices and ask me to find it credible on its own merits. This, it seems to me, is the right approach. The parties to the two proceedings are not identical and, although the lots in issue are part of the same plan, they are not the same lots. Different considerations may (and, as we shall see, do) apply.
[32] In any case, with respect to this body of evidence, on which the applicants bear the burden of proof, I note that the evidence of all parties is lacking in precision and specifics. There is little by way of corroborating documentation to support the assertions of any of the four affiants. This is no doubt the result of the significant passage of time since the beginning of the relevant events some 50 or 60 years ago.
[33] Nevertheless, I can say that I am satisfied that Mr. Mighton and the McCormicks and their families and guests have parked at the top of the hill for many years. The appearance of the worn-down parking spots and the presence of old sets of stairs leading directly from their cottages to those parking spots provides some corroboration for their assertions that this was so. I also satisfied that their practice of parking on these spots was “open” and “without permission.”
[34] However, the respondent says that the applicants’ practice of parking at the top of the hill was neither “uninterrupted” nor “peaceful.” Nor, according to the respondent, did it last for the requisite 20 years leading up to 2007, or for any earlier 20 year period.
[35] As for peacefulness, the respondent points to his habit of posting and re-posting “No Parking” signs, and his claims to have told both Mr. Mighton and the McCormicks that they were not to park at the top of the hill. In other words, he registered his objections to the parking and, according to the respondent, he has been doing so since the 1980’s. It strikes me that this evidence is credible. No challenge was made to the assertion that some of the photos of the “No Parking” signs were taken in 2001 and it is evident from the judicial history that the respondent has been making his objections to hill-top parking by cottagers since at least 1994. Moreover, Mr. Mighton conceded during his cross-examination that the respondent had said to him that he was not to park at the top of the hill (although when this happened is not clear) or to use it to dump gravel. Mr. McCormick was not cross-examined and therefore offered no response to the respondent’s claim that he had told Mr. McCormick to refrain from parking at the top of the hill. Further, apart from what they can say from memory, the applicants have offered little to corroborate their memories. The photographs they have tendered, for example, were taken recently and reveal little more than that there is reason to believe people have been parking at the top of the hill for some time.
[36] As I have said, this body of evidence suffers from vagueness from both the applicants and the respondent. Of course, given that the applicants bear the burden of meeting the test for a prescriptive easement, vagueness weighs more heavily against them. This is especially so given the courts’ reluctance to recognize prescriptive easements (Carpenter, supra, at paras. 50 – 52; 1043 Bloor, supra, at paras 103 – 106) and their insistence on “clear evidence” to support the existence of such an easement (Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.)). In my view, the applicants have not met their burden to establish that their use of the top of the hill to park was “uninterrupted, open, peaceful, and without permission” between 1987 and 2007 or for any 20-year period before that time. At a minimum, I am satisfied that the respondent registered his objection to right of the applicants to park at the top of the hill at some point during the 20-year period. The use of the parking area at the top of the hill was, therefore, not “peaceful” (1043 Bloor, supra, at para. 94; Somogyi v. Kapasky (2003), 7 R.P.R. (4th) 291 (Ont. S.C.J.), at paras. 12, 20 – 21, 30 – 31).
4.1.2 Have the applicants established that the easement they claim is reasonably necessary for the enjoyment of their properties?
[37] Given the conclusion I have reached on the first question it is, strictly speaking, not necessary to consider the question of whether the applicants have established that the easement they claim is reasonably necessary to the enjoyment of their properties. Nevertheless, it is useful to do so in the event that my first conclusion is erroneous.
[38] It was important to Justice Donohue’s decision in 2001 that the cottagers in Lots 15 to 18 were unable to park on their own properties because the pitch of the hill was so steep that it was an “impossibility” to park there (Lafferty v. Brindley, supra, at para. 20). Doing so “would inevitably result in their cars rolling down the face of the slope” (para. 19). After making this finding, Donohue J. turned to the face of the relevant documents to determine the rights of the cottagers and of the respondent.
[39] Turning to the relevant documents in the present case yields a different result than that found by Donohue J. because the relevant documents show that parking for the applicants’ lots was contemplated and provided for in the documents at the time of the transfer of the properties to the applicants. There was, quite simply, nothing similar in the documents before Donohue J. As set out above at paras. 4 and 5, when Mr. Mighton’s lot was transferred to him in 1980, he was granted “a right of way at all times and for all purposes over, along and upon a strip of land being part of said Lot 21” that is 9 feet wide by 32.2 feet long; and in 1984, the McCormicks received along with their property “… an easement to park vehicles on Part Lot 13D, Plan 574 … together with a right of way over all roads and lands shown on Plan 574 …” As the respondent argues, these provisions demonstrate that the issue of parking for the applicants’ lots was taken into account when the properties were transferred to them.
[40] This is especially clear with respect to the McCormicks’ lot, where express reference is made to “an easement to park vehicles on Part Lot 13D.” In their original affidavit, the McCormicks make no reference to this easement. Nor does that affidavit assert that they cannot park on Lot 13D such that parking at the top of the hill on the respondent’s road is reasonably necessary for the enjoyment of their cottage property. Even though the respondent’s responding affidavit raised the fact of the easement, the McCormicks’ reply affidavit again makes no reference to it, and again makes no claim that they cannot park on Lot 13D or that parking at the top of the hill is reasonably necessary.
[41] When the easement for parking purposes was brought to the attention of Mrs. McCormick in cross-examination, she acknowledged that Lot 13D is where “we are supposed to park” and that it is in front of the McCormicks’ lot at the bottom of the hill. Mrs. McCormick maintained, however, that Lot 13D was “not connected” to their lot. I note, in this respect, that each of the various maps in evidence before me shows that the McCormicks’ lot, Lot 19, is contiguous to Lot 13D. No explanation for this apparent conflict is in the evidence. In any case, at no point during her cross-examination did Mrs. McCormick say that the McCormicks and their guests could not park on Lot 13D, nor did she say that it was necessary for them to park at the top of the hill. For his part, the respondent testified on cross-examination that the McCormicks normally park on Lot 13D, “where they are supposed to.”
[42] On the basis of this record, I agree with the respondent that the McCormicks have not shown that parking at the top of the hill is reasonably necessary for the enjoyment of their cottage property. In a nutshell, there is simply no evidence before me that they cannot park on Part Lot 13D.
[43] With respect to Mr. Mighton’s application, there is some conflicting evidence. In his original affidavit, Mr. Mighton made no reference to the 9-foot wide right of way granted to him “for all purposes” with his cottage property. In his responding affidavit, however, the respondent referred to this “strip of land” as providing “vehicular access to the Mighton Property so that parking of vehicles can be accommodated on the Mighton Property.” He also deposed that he has always understood that parking for Mr. Mighton’s property was to be on Mr. Mighton’s lot accessed by the strip of land. In his reply affidavit, Mr. Mighton says that “it is impossible for me to gain access to my property by this right-of-way because the right-of-way is on a 45 degree slope.” He adds that he is not able to park on the strip because “it is not my property.” Mr. Mighton appended to his reply affidavit photographs of the 9 foot strip. In the photographs, one can see ski poles stuck into the ground to mark what Mr. Mighton says is the property line. He says that the photos show that the strip is too narrow for parking.
[44] In cross-examination, Mr. Mighton acknowledged that he did have the right to use the 9-foot strip of land for all purposes but maintained that he was limited in how that right could be used given the 45-degree slope on which part of right of way rests. During his cross-examination, the respondent testified that Mr. Mighton has a right to park on his own property and that he does so from time to time. He denied that it was impossible to park on that lot. He said that Mr. Mighton “is supposed to park on his own lot” and that that was a condition of Mr. Mighton’s building permit. He said that he has also seen Mr. Mighton park on the 9 foot strip of land and presented recently taken photographs purporting to show cars (although not necessarily those of Mr. Mighton or his guests) parked on the right of way (Mr. Mighton agreed that at least one of the cars was parked on the right of way). He said that Mr. Mighton can and does park both on the right of way and on his own lot. He added that to the extent that there was a concern that the right of way had become too narrow, that was not his concern. It was the responsibility of the property owner to maintain the right of way. He noted that several property owners in the area had had to build retaining walls to maintain parking on their own property.
[45] Bearing in mind that the onus is on Mr. Mighton, I cannot find that that he has shown that parking at the top of the hill is reasonably necessary for the enjoyment of his cottage property. First, there is contested evidence about whether he is able to park on his own lot. [2] Second, while the evidence of exactly where the 9-foot strip of land is situated in the various photographs tendered is contested, Mr. Mighton conceded that at least part of the strip is represented in the photographs presented by the respondent and that at least one car is shown parked on that part of the right of way. Third, I am simply unable to conclude that the photographs of the right of way tendered by Mr. Mighton show that it is impossible to travel in a car over it, or that a car could not be parked on it. The ski poles are of little or no assistance. Fourth, it seems to me that it is clear that the transfer documents provided for the right of way in Mr. Mighton’s favour “for all purposes” which would include access to his lot and parking on the right of way if necessary (see Weidelich, supra, at para. 20). Fifth, I agree with the respondent that if parking has become difficult since the transfer of the property to Mr. Mighton, responsibility for maintaining the property so that it can accommodate parking rests with the applicant. The fact of the matter is that parking was taken into account when the property was transferred to Mr. Mighton. In all these circumstances, Mr. Mighton has not met his burden.
4.2 Do the applicants enjoy an ancillary right to park on or adjacent to Hunters Road?
[46] As noted above, the applicants enjoy a right of way over Hunters Road. The remaining question for consideration, then, is whether that right of way includes an ancillary right to park on or adjacent to the road. Justice Simmons described the issue to be decided as follows in Primont, supra, at para. 56 (emphasis added):
Where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created. The grant of an express easement includes such ancillary rights as are reasonably necessary to use or enjoy the easement. However, to imply a right ancillary to that which is expressly granted, the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable: Fallowfield v. Bourgault (2004), 68 O.R. (3d) 417 (C.A.), at paras. 10-11.
[47] In 2001, Justice Donohue found that there was such an ancillary right for the plaintiffs in his case and the Court of Appeal upheld that conclusion.
[48] In 2004, in another case involving the respondent and cottagers [3], Templeton J. of this court referred to the Court of Appeal’s earlier decision and wrote that “there is no doubt, in my view, that the decision in that case applies in general to the Defendant and all of the owners who require access via roads on Plan number 574.” This very short endorsement does not expand on Justice Templeton’s reasoning in support of this conclusion and, while I do not doubt the correctness of her conclusion as it relates to the case that was before her, I do not accept that the conclusion of the Court of Appeal applies in such a way as to allow all cottagers who own property in Plan 574 to park on or adjacent to Hunters Road irrespective of whether they have parking made available to them elsewhere.
[49] As with a prescriptive easement, an ancillary right will be found only where the right claimed is reasonably necessary to the enjoyment of the existing right of way. The Court of Appeal expressly found that Donohue J. had been “fully justified” in concluding that the parking right claimed by the cottagers was a right ancillary to their right of way along Hunters Road. The Court continued as follows (at para. 2):
In determining that parking is an ancillary right, the trial judge properly considered those factors relevant to determining what is reasonably necessary to the enjoyment of the right of way, including a consideration of the language of the conveyance creating the easement, the purpose and circumstances surrounding the creation of the right of way, the history of its development and the circumstances of its use.
[50] Nothing in the reasons of the Court of Appeal suggests to me that all lots in Plan 574 must necessarily have a right to park at the top of the hill. On the contrary, the Court’s conclusion is that the cottagers in that case were able to establish that parking at the top of the hill was reasonably necessary for their enjoyment of their lots. Cottagers in different circumstances might not be able to establish that they have such an ancillary right because parking at the top of the hill might not be necessary to their enjoyment of the right of way.
[51] For several reasons, I am of the view that the applicants have not been able to discharge their onus to show that the ancillary right they claim exists.
[52] First, as I have already found, parking on Hunters Road is not necessary for the applicants because parking was otherwise provided for in the documents by which title was transferred to them. A similar situation was considered in Primont, supra, where parking rights were dealt with by the parties otherwise than by right of way. Simmons J.A. concluded as follows (at para. 59): “Parking rights could not therefore be construed as reasonably necessary for the enjoyment of the easement when it was created.”
[53] Second, a consideration of what is entailed in a right of way is a balancing of interests in which neither interest can be detrimental to the other (Stella Psarakis Medicine Professional Corporation v. Gonnsen, 2015 ONSC 25, at para. 10). As noted above, the analysis starts with the words of the grant of the right of way and the circumstances at the time the easement was created. In this case, the applicants were granted a right of way “over” Hunters Road (among other roads). Mr. Mighton was also granted an easement “for all purposes, over, along and upon” the 9-foot strip. The McCormicks were also granted “an easement to park vehicles on Part Lot 13D.” As the respondent argues, the granting instruments indicate that the applicants can travel “over” Hunters Road so that they can park elsewhere. This is what was intended at the time of the transfers. By contrast, nothing in the language of the documents suggests a right to park at the top of the hill, or for that matter anywhere other than the 9-foot strip or on Lot 13D. Parking on Hunters Road would be for a different purpose than the contemplated purpose of the right of way at the time it was granted to the applicants.
[54] Third, the respondent also argues that the parking engaged in by the applicants “overburdens” the right of way they enjoy because it obstructs the ability of other cottagers to use the road and may impede emergency vehicles. Hunters Road is not paved or maintained to municipal standards. Indeed, the photographs of it in evidence suggest that its appearance has changed little since Justice Donohue described it as follows in 2001 (Lafferty v. Brindley, supra, at para. 33): “All that is there is a pair of dirt paths in the undergrowth over which the tires of one vehicle may pass.” I note now only that the applicants conceded on cross-examination that the road was narrow, not wide enough for two cars at once, and that in the event that an emergency vehicle was approaching a cottager in a vehicle might have to pull off the road at the point where the applicants park their cars. Again, the burden is on the applicants in this respect. On this evidence, I cannot say that they have discharged their burden to establish that the proposed ancillary right would not represent an over-burdening of the right of way they enjoy on Hunters Road.
[55] For these reasons, I conclude that the applicants have not established that they should enjoy as a right ancillary to their right of way over Hunters Road a right to park on or adjacent to that road.
5. Conclusion and costs
[56] For all these reasons, the application is dismissed.
[57] If the parties are unable to agree on costs, the respondent may serve and file brief written submissions respecting costs within 10 days of the release of this judgment. The applicants may serve and file brief responding submissions within 7 days of the service of the respondent’s submissions. The respondent may serve and file his reply, if any, within 3 days of the service of the applicant’s response.
I.R. Smith J. Released: April 16, 2024
[1] The test for prescriptive easements is a four-part test (Barbour, supra, at para. 56; Depew v. Wilkes (2002), 60 O.R. (3d) 499 (C.A.), at paras. 18 – 19), but in this case only the “reasonably necessary” branch of the test is in issue.
[2] I note both that Justice Donohue had “many photographs” in evidence (Lafferty v. Brindley, supra, para. 33) and that he attended the site and took a view of the properties (para. 9). On this basis he was able to make crucial factual findings. In the absence of better evidence, including possibly the evidence of a surveyor, or a view of the property, I find myself unable to conclude, in the face of diametrically opposed assertions by the parties, whether Mr. Mighton can park on his property.
[3] Jennings and May v. Brindley, unreported, April 26, 2004 (Ont. S.C.J.)