Court File and Parties

COURT FILE NO.: CV-23-27 DATE: 2024/11/26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jane Owen-Brash and Alexander Brash, Applicants -and- John Sims and Eileen Sims, Respondents

BEFORE: Justice K.A Jensen

COUNSEL: M. Holmberg for the Applicants D. Winer for the Respondents

HEARD: August 26, 2024

Reasons for Decision

[1] This is a decision on an application for a declaration of a prescriptive right-of-way, as well as damages for nuisance and interference with the right-of-way in the amount of $25,000.

[2] The Applicants, Jane Owen-Brash and Alexander Brash (the Brash’s) are the owners of 15 Sumac Court, which is a waterfront property on Faraday Lake, near Bancroft, Ontario. The Brash’s allege that for many years, they have used a 100-foot path (the 100 ft path) that traverses the land owned by the Respondents, John and Eileen Sims, (the Sims and the Property) to access their cottage at 15 Sumac Court.

[3] The Brash’s contend that when the Sims took ownership of the Property in 2018, the 100 ft path was well-established and accepted as the sole means of accessing the Brash property at 15 Sumac. They say that despite there being no formal easement or right-of-way registered on title, no issue with the use of the 100 ft path was raised for decades until September 2021 when the Sims delivered a "Notice of Trespass" to the Brash’s.

[4] Originally, the Brash’s also sought a prescriptive easement over an additional 1500 feet of walking trails that they alleged had been openly developed, groomed, used and enjoyed by them and their family for decades without objection. However, they alleged, on or around July 2022, the Sims (or their agents) effectively destroyed a significant portion of those trails and rendered their continued use virtually impossible. The Brash’s withdrew their claim for a prescriptive easement over the walking trails but retained the claim for damages arising from their loss of enjoyment of the walking trails. That claim forms part of the Brash’s claim for damages for nuisance and interference.

[5] The Sims’ response to the Application is that the Brash’s are simply seeking to convert their water access only property to a road access property, without compensation through trespass. They have had opportunities in the past to purchase property from the previous owner, Frank Spena, which would have permitted them to build a road to access their property at 15 Sumac. In the Sims’ view, the Brash’s failed to avail themselves of these opportunities and cannot now obtain the right-of-way to the 100 ft path without providing compensation.

[6] The Sims point out that it is a prerequisite to finding an easement that the Sims (or Mr. Spena) knew or ought to have known of the alleged use of the land and consented and acquiesced to such use. The Sims contend that there is no evidence that they or Mr. Spena knew of the alleged use of the lands. Mr. Spena denied that he knew of the existence of the paths and his evidence is supported by evidence from other witnesses who were cross-examined on their affidavits, according to the Sims.

[7] It is well established that the threshold for establishing a prescriptive easement is high, and for the following reasons, I find that the threshold has not been met in this case. The Brash’s have failed to establish the basis for a declaration of a prescriptive right-of-way over the 100 ft path and to prove that they are entitled to damages arising from the actions taken by the Sims on the Property.

Ruling on the Preliminary Motion to Strike the Twine and A. Brash Affidavits

[8] At the outset of the hearing on the Application, the Sims brought a motion to strike two affidavits delivered by the Brash’s after the completion of cross-examinations. The Brash’s alleged that the affidavits of Alexander Brash and Terry Twine are necessary to respond to the affidavit of Wally Scheurer, which was served but later withdrawn by the Sims.

[9] For the reasons that follow, I find that the affidavits of Alexander Brash and Terry Twine are inadmissible. The affidavit of Wally Scheurer was not filed with the court and therefore does not need to be formally withdrawn. However, even if the rule regarding the withdrawal of an affidavit does apply to an unfiled affidavit, I find that it does not apply in the present case.

[10] The Application was commenced by a Notice of Application issued January 25, 2023. Jane Owen-Brash filed an affidavit, dated January 25, 2023, in support of the Application. She filed a supplementary affidavit, dated August 8, 2023.

[11] Jane Owen-Brash’s cross-examination took place on November 20 and 21, 2023.

[12] Just prior to Ms. Owen-Brash’s cross-examination, the Sims, through their lawyer, served the affidavit of Wally Scheurer, sworn on November 17, 2023. Mr. Scheurer’s affidavit was illegible so on November 20, 2023 at 11:10 a.m., counsel for the Sims served a legible version of Mr. Scheurer’s affidavit and a number of photographs, as well as emails between Eileen Sims and a William Schofield, discussing the use of a boat launch across Faraday Lake.

[13] On November 20, 2023, counsel for the Sims advised that Frank Spena (the former owner of the Sims Property) was very ill and unable to participate in examinations the next day or in the short or mid term.

[14] The Application was due to be heard on December 11, 2023. However, a case conference was held instead during which Justice Hurley endorsed a timetable for the delivery of further affidavits and completion of further cross-examinations.

[15] Counsel for the Sims stated that he advised the Brash’s at the December 11, 2023 case conference that he would not be relying on the Scheurer affidavit.

[16] On December 19, 2023, counsel for the Sims sent an email repeating that his clients would not be relying on the affidavit of Wally Scheurer and that it had not, in fact, been filed with the court.

[17] On January 11, 2024, through counsel, the Brash’s delivered the affidavit of Alexander Brash, sworn January 9, 2024 as well as an affidavit of Terry Twine, sworn January 10, 2024. Terry Twine and his wife owned 15 Sumac from 1990 to 1998.

[18] The Brash’s take issue with the Sims’ withdrawal of Wally Scheurer’s affidavit. They say that it is a tactical manoeuvre designed to prevent them from being able to file the affidavits of Terry Twine (Twine) and Alexander Brash (A. Brash).

[19] However, in my view, if the only reason for filing the affidavits of A. Brash and Terry Twine was to respond to the information in the Scheurer affidavit then surely the withdrawal of the Scheurer affidavit would obviate the need for the Twine and A. Brash affidavits. There should then be no objection by the Brash’s to the withdrawal of the Scheurer affidavit.

[20] The Brash’s continued objection to the withdrawal of the Scheurer affidavit reveals that they have other reasons for wanting the Twine and A. Brash affidavits to be admitted. As discussed below, I find that those reasons do not justify the admission of the Twine and A. Brash affidavits.

[21] The case law provided by the parties on the withdrawal of affidavits deals with those that have been filed with the court. Doef v Hockey Canada et al., 2022 ONSC 1411; P.G. v. L.S.G., 2004 BCSC 518. The Scheurer affidavit was not filed with the court. Therefore, the case law dealing with withdrawals does not apply to the present case.

[22] I understand the Brash’s frustration over the fact that the service of the Scheurer affidavit and the other material, whether it was filed with the court or not, took them off guard and may have taken the cross-examinations in different directions than they had prepared for. However, as will be further discussed below, the Brash’s could have refused to proceed with the cross-examinations, pending a resolution of the late delivery of the Scheurer affidavit.

[23] The rule against the withdrawal of affidavit evidence is to prevent a party from avoiding cross-examination on the affidavit for tactical reasons or from altering the court record upon which judicial directions might have been made. P.G. v. L.S.G., at para. 15.

[24] In this case, no such prejudice or harm to the administration of justice is alleged. The court has not made use of the Scheurer affidavit and the Brash’s are not alleging that the affidavit was withdrawn to avoid cross-examination. Therefore, I find that even if the rule against withdrawal of affidavits applies to affidavits that have not been filed with the court, it does not apply in the present circumstances.

[25] As noted above, the evidence presented in the Twine and A. Brash affidavits was purportedly provided in response to the Scheurer affidavit. The Brash’s maintain that they should be admitted even though they were proffered after the close of cross-examinations and despite the fact that the Sims have withdrawn the Scheurer affidavit.

[26] The situation is governed by r. 39.02(2) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194. Rule 39.02(2) states:

A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

[27] The legal test for admission of further evidence after cross-examination under r. 39.02(2) is set out in Catalyst Fund Limited Partnership II v. IMAX Corporation, at para. 15, citing Canadian Royalties Inc. v. Ungava Minerals Corp:

(1) is the evidence relevant; (2) is the evidence responsive to something raised in cross-examination; (3) is there prejudice; and (4) is there a satisfactory explanation for not having included this evidence at the outset?

[28] All four criteria should be weighed evenly when considering the facts of each case in determining whether it is appropriate to grant leave. First Capital Realty Inc. v. Centrecorp Management Services Ltd. (2009), 258 O.A.C. 76 (Div. Ct.), at para. 24.

[29] There is a tension in the case law regarding the application of r. 39.02. On the one hand, it has been held that the rule should be applied in a flexible, contextual manner to ensure a just, timely resolution of the dispute. Sewchand et al. v. Hurry-Goriah et al., 2024 ONSC 1597, at para. 29. The preference for adjudicating disputes on a full and complete record with all relevant evidence before the Court is a significant consideration in assessing whether to exercise discretion to admit new affidavits. First Capital Realty Inc., at para. 14.

[30] On the other hand, some cases reflect a stricter interpretation of the Rule stating that leave under r. 39.02(2) should be granted sparingly. Shah v. LG Chem, Ltd., 2015 ONSC 776, 124 O.R. (3d) 570, at para. 23.

[31] In the present case, the evidence is clearly relevant. However, it is not properly responsive to issues raised in cross-examination and the Brash’s have not provided an adequate explanation as to why the evidence in the two affidavits could not have been included in earlier affidavits. I find that the information provided in the Twine and A. Brash affidavits is not necessary for a fair resolution of this case. Furthermore, it would be unfair to permit the Brash’s to present that evidence after the close of cross-examinations.

[32] The Brash’s state that the delivery of the Affidavit of Wally Scheurer, sworn November 17, 2023, and the unsworn photographs and emails introduced the following new information, which required a response:

• the purported availability of parking across from the lake from the Applicants' property.
• assertions by Mr. Scheurer that the Brash property was 'water access' only.
• the use of the 15 Sumac Court property from 1990 – 1998.
• the use (or lack thereof) of a boat launch on Faraday Lake.

[33] The Brash’s also state that the supplementary affidavits were necessary to respond to the affidavit of Frank Spena, sworn July 18, 2023, and his unavailability for cross-examination. Frank Spena’s affidavit was delivered to the Brash’s on July 18, 2023, through counsel.

[34] I find that the evidence provided in the supplementary affidavits is, in part, designed to rehabilitate the evidence Ms. Brash gave in cross-examination on her affidavit. This is improper. At paragraph 19 of her affidavit sworn on January 25, 2023, Ms. Brash stated:

The only access to and from our cottage at 15 Sumac Court by land is by passage over a well-established path from 13 Sumac Court, over the Sims property, southwest of Pine Road, Township of Faraday, County of Hastings, being approximately 8 feet wide and extending a distance of approximately 100 feet. (emphasis added)

[35] In her cross-examination, Ms. Brash conceded that it is possible that the Brash’s could access the shore road allowance from Ms. Brash’s sister’s property instead of walking through the Sims’ Property. In answer to the question about using her sister’s property at 13 Sumac to access her property at 15 Sumac, Ms. Brash stated in cross-examination:

A. It's possible. We don't have a, a trail there and we don't have stairs, but it's possible. Q. Okay. A. We'd have to clear some trees.

[36] Paragraphs 26 to 30 of A. Brash’s affidavit would seem to be an effort to rehabilitate Ms. Brash’s testimony. The title of these paragraphs is “Shoreline Allowance Impractical/Impossible to Access”. The paragraphs in question do not refer to Mr. Scheurer’s affidavit or the photographs and emails that were provided to the Brash’s on November 20, 2023.

[37] Furthermore, Mr. Brash’s affidavit and Terry Twine’s affidavit deal with issues that were already raised in Ms. Brash’s January 25, 2023 affidavit and in her supplementary affidavit of August 8, 2023. Thus, these were not new issues raised in Mr. Scheurer’s affidavit and Mr. Spena’s affidavit. They were issues that could have been discussed in greater detail in Ms. Brash’s two affidavits that pre-date the cross-examination.

[38] For example, in her affidavit of January 25, 2023. Ms. Brash discussed the historical use of the 100 ft path. She referred to the use of the paths by the “preceding owners,” who were the Twines. She also referred to the Twine’s ownership of 15 Sumac Court and use of the 100 ft trail in her supplementary affidavit. These were not new issues that were raised in Mr. Scheurer’s affidavit.

[39] Similarly, the issue of parking and storage options at the public boat launch was discussed in Ms. Brash’s supplementary affidavit. Further detail and pictures could have been provided with that affidavit.

[40] Finally, Ms. Brash responded to Mr. Spena’s evidence in her supplementary affidavit. Mr. Spena specifically referred to 15 Sumac Court as being a water access property. Therefore, that issue was not raised only in the Scheurer affidavit and could have been addressed in more depth by Ms. Brash in her supplementary affidavit.

[41] I find that the Brash’s have not therefore, provided a satisfactory explanation as to why they did not present the impugned evidence prior to the cross-examinations.

[42] Furthermore, it is not in the interests of justice to permit the Brash’s to file lengthy affidavit material after the cross-examinations were completed. The principles of finality and fairness require that I draw the line and refuse admission of this additional material.

[43] Undoubtedly, the discovery that Mr. Spena was not available for cross-examination would have been extremely disappointing for the Brash’s. However, it was open to them to argue that his evidence should therefore be given very little weight. That is preferable to giving leave to the Brash’s to file additional evidence after cross-examinations have been completed.

[44] I recognize that Justice Hurley endorsed a schedule for the delivery of additional affidavits and cross-examinations on December 11, 2023. However, in doing so he did not grant his approval for the filing of additional affidavits by the Brash’s, nor did he make any comment as to whether the affidavits would be admissible at the hearing.

[45] Finally, if the Brash’s were unprepared to proceed with the cross-examination on November 20, 2023, given the late delivery of the Scheurer affidavit and the pictures, it was their prerogative to refuse to proceed. Counsel for the Sims put it on record that if they proceeded that day, he would oppose any request for additional affidavits to be filed after the cross-examination. Although the parties finally agreed that Ms. Brash could file a short three-page responding affidavit to the Scheurer affidavit, this is not what was done. Rather, the Brash’s filed affidavits from Mr. Brash and Mr. Twine that were essentially a rehashing of the issues raised in Ms. Brash’s previous affidavits as well as an attempt to counter the admission that Ms. Brash made in cross-examination. This cannot be permitted.

The Spena Affidavit

[46] Mr. Spena, who owned the Property from 1992 to 2018, provided an affidavit, but due to serious health issues, he could not be cross-examined on that affidavit. The Spena evidence is therefore hearsay evidence. Given that it does not meet any of the exceptions for hearsay evidence, it must meet the principled exception to the hearsay rule if it is to be admitted. Fair Change v. His Majesty the King in Right of Ontario, 2024 ONSC 1895, at para 48.

[47] Under the principled exception, hearsay can be admitted into evidence when the party tendering it demonstrates that the evidence meets the twin criteria of necessity and threshold reliability on a balance of probabilities. R. v. Khelawon, 2006 SCC 57, at para 47. The court must act as a gatekeeper and only admit necessary and sufficiently reliable hearsay. R. v. Bradshaw, 2017 SCC 35, at para. 24.

[48] With regard to the necessity of the evidence, the party seeking to tender the evidence must demonstrate that it is unable to obtain evidence of a similar quality from another source. Fair Change, at para 54. In the present case, I find that Mr. Spena’s evidence could not have been provided by anyone else. He is the only person who could give evidence as to his knowledge of and acquiescence to the use of the 100 ft path on the Property prior to the arrival of the Sims, which was relatively recent.

[49] With regard to reliability, the fact that Mr. Spena took an oath and swore that the statements contained in the affidavit were true is a sufficient guarantee of procedural reliability to meet the test for threshold reliability. Fair Change, at paras 60 – 64.

[50] Thus, I find that the Spena affidavit meets the test for admissibility. However, the question that remains is how much weight to give to the evidence. The lack of cross-examination makes it more difficult for me to assess factors relevant to ultimate reliability, namely, Mr. Spena’s credibility and reliability, including his perception, memory, narration and sincerity. R. v. Shaw, 2024 ONCA 119, at para. 132.

[51] Nevertheless, I am prepared to give some weight to Mr. Spena’s affidavit because it is consistent with other evidence presented in this case.

[52] In his affidavit, Mr. Spena stated that he was very protective of the Property and did not permit people to trespass upon it. He put up signs and markers to show the boundaries of the Property. Mr. Spena stated that he did not witness the Brash’s or their relatives walking on the Property. Mr. Spena further stated that at some point, Ms. Brash’s father, Ken Querengesser, approached him to purchase some of his land to allow them to build a legal road. Mr. Spena quoted him a price of $25,000 for the land. Mr. Querengesser declined the offer because it was too high, according to Mr. Spena. Mr. Spena also stated that he told Mr. Querengesser that their property was water access only and that trespassing on Mr. Spena’s property was prohibited.

[53] In their affidavits in support of the Sims’ response to the Application, Dan Bierworth and Steve Campbell stated that Mr. Spena was very protective of the Property and did not allow people to trespass without his permission. They stated that they have never witnessed the Brash’s or Mr. Querengesser walking the paths. In fact, like Mr. Spena, Mr. Bierworth and Mr. Campbell stated that there were no paths on Mr. Spena’s land. Both gentlemen stated in their affidavits that it was apparent from their discussions with the Brash’s that the Brash’s knew they needed Mr. Spena’s permission to build a road because they did not have a right-of-way over the land. They both stated that they knew the Brash’s had attempted to purchase part of the Property to build the road but there was no agreement on the price.

[54] Mr. Spena’s affidavit is also consistent with the statutory declaration that he provided to the Sims upon purchase of the Property. In that declaration, Mr. Spena stated that he was not aware of any person who had a claim or interest in the Property that would be adverse to or inconsistent with registered title.

[55] I find that although Mr. Spena’s evidence was untested through cross-examination, some weight should still be attributed to it because it is consistent with other evidence provided in this case. However, I have not relied exclusively on Mr. Spena’s affidavit in my assessment of the evidence for and against the prescriptive claim made by the Brash’s. I have given it some weight, but not substantial weight.

The Issues

[56] The following issues are raised in the Application:

i. Have the Brash’s established a prescriptive easement over the 100 ft path? ii. Are the Brash’s entitled to damages for nuisance and interference?

Issue 1 – Have the Brash’s established a Prescriptive Easement?

[57] A prescriptive easement may be established in two ways under the Real Property Limitations Act, R.S.O. 1990, c. L. 15 (“RPLA”), and a third way pursuant to the doctrine of lost modern grant. Carpenter v. Doull-MacDonald, 2017 ONSC 7560, at para. 40, aff’d at 2018 ONCA 521.

[58] At common law, prescription was based on the legal fiction that if there were 20 years of uninterrupted use by the owner of the dominant tenement, it could be presumed that there had been a grant of an easement and that the grant had been lost. Carpenter (ONSC), at para. 40.

[59] Section 31 of the RPLA sets a 20-year period or a 40-year period for the creation of prescriptive easements. The period of alleged prescriptive use is specified to be the period immediately before the commencement of an action, whereas for an easement created by the doctrine of lost modern grant, the duration of use does not have to be a 20-year or 40-year period immediately preceding the bringing of an action. Carpenter (ONSC), at para. 42.

[60] To establish a prescriptive easement, the claimant must demonstrate the continuous, uninterrupted, open and peaceful use of the land, without objection by the owner. Talukder v. Edward G. Murray Holding Company Inc., 2023 ONSC 3100, at para. 12, citing Kaminskas v. Storm, 2009 ONCA 318.

[61] 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. Talukder, at para. 11.

[62] The dominant tenement in this case is 15 Sumac Court and the servient tenement is the Property on which the 100 ft path is located.

[63] In Talukder v. Edward G. Murray Holding Company Inc., Justice Hooper noted that there are two additional requirements to establish a prescriptive easement under the RPLA. Firstly, the use must be uninterrupted, open, peaceful, and without permission for a twenty-year period prior to conversion to Land Titles. Talukder, at para. 12. Secondly, the applicant must prove that the usage of this property was known. Talukder, at para. 13.

[64] The threshold for meeting the criteria for establishing a prescriptive easement under the RPLA or by lost modern grant is high, and courts are hesitant to recognize an easement by prescription. Carpenter (ONSC), at para. 51. In Henderson et al. v. Volk et al. (1982), 35 O.R. (2d) 379 (C.A.), 1982 ONCA 1744, the Court of Appeal for Ontario warned against granting an easement in the absence of clear evidence of both continuous use and acquiescence in such use by the owner.

[65] Furthermore, the Court of Appeal has urged the courts to proceed cautiously in finding that an easement exists for the following reasons:

It is well-established that courts should proceed cautiously before finding that an easement exists because of the burden it places on a landowner’s ownership interest without compensation. Moreover, it may discourage neighbourly accommodations and reward aggressive overreaching. (citations omitted) Carpenter (ONCA), at para. 6.

[66] In the present case, the Sims argue that the Brash’s have not met the burden of establishing a prescriptive easement because they have not proven that the easement is necessary nor have they proven the uninterrupted, open and peaceful use of the subject property without permission for a 20 or 40 year period.

Uninterrupted, Open and Peaceful Use of the Property Without Permission

[67] To establish a prescriptive easement, the use of the servient tenement (the 100 ft path on the Sims’ Property) by the dominant tenement (the Brash property) must be continuous, uninterrupted, open and peaceful.

Uninterrupted Use

[68] In the 1950s and 1960s, Jane Owen-Brash's father, Ken Querengesser, began visiting Faraday Lake.

[69] Mr. Querengesser established a footpath that travels approximately 100 feet over the Sims’ Property to a 66-foot-wide shoreline road allowance and then approximately 515 feet along the shoreline to the Brash property. The Sims presented evidence that questioned whether any paths existed on the Sims’ Property, but I find the Brash’s evidence, which included pictures and videos depicting a well-worn path that meet the description of the 100 ft path, to be credible.

[70] The Sims argued that Ms. Brash would have been too young to know whether her father had established the 100 ft path in the 1950’s and 1960’s. That may be the case, but it is undisputed that in 1973, Mr. Querengesser purchased 13 Sumac Court (the Querengesser Mills property), and in 1981, he purchased 15 Sumac Court (the Brash property). The Querengesser Mills property was approximately 750 feet from the Brash property. I accept the Brash’s evidence that the 100 ft path was used by Mr. Querengesser and his family, including Jane Owen-Brash, to access the Brash property from at least 1981. I also accept that in 1990, when the Twines purchased 105 Sumac Court, they used the 100 ft path to access their “bunky” at 105 Sumac Court. The Twines were friends of Ms. Brash’s parents, and they visited one and other using the 100 ft path.

[71] In 1999, the Brash’s purchased the Brash property from the Twine family. On August 8, 2007, Ms. Brash’s sister, Anne Mills, purchased 13 Sumac Court from Mr. Querengesser. I accept Ms. Brash’s evidence that she and her sister’s family use the 100 ft path to travel between the cottages and to access the Brash property at 15 Sumac Court.

[72] On May 26, 2008, the Brash property was converted to Land Titles.

[73] I find that there was uninterrupted use of the 100 ft path from at least 1981 until the litigation was commenced in 2023, which is a period of 42 years. Therefore, the time requirements under s. 31 of the RPLA have been met.

Continuous and Peaceful Use

[74] The conduct required to establish continuous use depends on the type of property. For a cottage property, such as the Brash property, seasonal or weekend use may be considered consistent. Barbour v. Bailey, 2016 ONCA 98, at para. 83.

[75] The Sims concede that in the case of seasonal properties, continuous use on 24 hour/7 days/full year basis is not required.

[76] Ms. Brash kept a record of the visits to the Brash property from 1999 to 2023 in a logbook. The logbook reveals that the Brash property was typically in use for a total of about a month a year, although that time was usually broken up into two to six segments. Although a total of about a month per year is not a lot of use, I find that the Brash’s continuously used the property over the years.

[77] Ms. Brash indicated in her affidavit that the Twines spent every summer, as well as weekends in late spring and through the fall, at 15 Sumac Court from 1990 to 1998.

[78] Based on this evidence, which was uncontradicted, I find that the Brash property was in continuous use throughout the 40 year period. I also find that it was used peacefully.

Open Use

[79] Usage is open if an ordinary diligent owner would have a reasonable opportunity to become aware of the use of their land. Carpenter (ONSC), at para. 48. An applicant must show that the owners of the disputed property knew or ought to have known of the notorious use of the property over the period in question. Barbour v. Bailey, at para. 62. In situations where the owner can readily be taken to know of the notorious use of their property and no objection is made, their acquiescence to that use of the property is sufficient to infer and establish a prescriptive title. Barbour v. Bailey, at para. 62.

[80] As this court noted in Carpenter v. Doull-MacDonald, it is not easy to tell whether there was, in fact, acquiescence in a particular case. Yet, acquiescence lies at the root of prescription. Carpenter (ONSC), at para. 47.

[81] In this case, I conclude that Mr. Spena and the Sims did not have knowledge of the use of the 100 ft path and did not acquiesce in its use by people at the Brash property. I further find that an ordinary diligent owner of the Property would not have become aware of the use of the 100 ft path to access the Brash property. My conclusions are based on the following findings of fact:

a. In his affidavit, Mr. Spena stated that he never witnessed Ms. Brash or her family walking on his Property. Ms. Brash admitted on cross-examination that it was entirely possible that Frank Spena did not see her, or her family use the 100 ft path and was not aware it existed. In her supplementary affidavit, Ms. Brash stated that she never had occasion to observe Mr. Spena or any of his relatives traveling through the Property. He simply did not seem to frequent the trail areas or the Point in all the years that the Brash’s owned and frequented the Property. Thus, I find it more probable than not that Mr. Spena simply did not witness the use of the 100 ft path. b. The Brash’s, Twines and other guests at 15 Sumac Court were not present for very much of the year and therefore, the opportunities to see people on the trail were relatively few. At most, people were present at 15 Sumac Court for two to three months of the year. c. The 100 ft path was not readily visible to a diligent property owner. To access the 100 ft path, a person must drive down Pine Drive, which is a private road, and then drive on to Sumac Court, which is also a private road. They then park their vehicle in a parking spot on the Querengesser Mills property and walk for approximately 50 feet to the west over the Querengesser Mills property. It is at this point that the 100 ft path over the Property begins. The videotape evidence and pictures of the 100 ft path show that it is located in a heavily wooded area at the base of a steep slope that would likely hide it from the view of someone on the Property. Similarly, there is a steep slope leading to the shore road allowance that would conceal parts of the path from boaters on Faraday Lake. Ms. Brash admitted that the stairs on the 100 ft path are not readily visible from Pine Drive. The 100 ft path is a very small part of the 168 acre Property previously owned by Mr. Spena and now owned by the Sims. d. While there are signs that read “Brash” at the intersection of the private roads leading to the driveway where people from the Brash property parked their cars, the signs do not necessarily indicate that there is a path across the Property. The signs could indicate the shoreline access road is to be used to access the Brash property. e. To investigate the 100 ft path, one would have to trespass on the Querengesser Mills property because the first part of the path is on their land. Ms. Sims testified that when she took her walks around the Property before purchasing it, she noticed some “rough lumber” that looked like old gravel and stairs. Ms. Sims was not sure on whose property the stairs were located. Ms. Sims stated that she would not trespass on another person’s property to investigate the path. It is unlikely that Mr. Spena would trespass on the Querengesser Mills property to investigate the path, given his dislike of trespassing. f. Mr. Spena was very protective of the Property and did not permit trespassing on his land. He put up “No Trespassing” signs and markers to define the boundaries of the Property. This evidence was corroborated by the evidence of Mr. Bierworth and Mr. Campbell. Although Ms. Sims admitted during cross-examination that there were no “No Trespassing” signs on or near the 100 ft path, her admission does not counter the evidence provided by Mr. Spena, Mr. Bierworth and Mr. Campbell that Mr. Spena would not permit others to use the Property without his permission. g. If Mr. Spena had known there was a path on his land that was being used by the Brash’s and others to access their property, he would have put a stop to it. Mr. Bierworth stated in cross-examination that he refused to clear out brush on the 100 ft trail, when requested to do so by the Brash’s, because they told him it was on Mr. Spena’s property. Mr. Bierworth stated in cross-examination that Mr. Spena would not tolerate trespassing. Mr. Bierworth believed that Mr. Spena would have “charged him” if he had cleared the brush on the Property. In addition, Mr. Campbell testified that Mr. Spena was a difficult man. He refused Mr. Campbell’s request to access his property to engage in four-wheeling activities. h. Mr. Spena told the Brash’s that their property was water access only and that he did not permit them to trespass on his land. Mr. Spena told them this when there were discussions involving Ms. Brash’s father, Mr. Querengesser, and Alexander Brash regarding the purchase some of Mr. Spena’s Property. This is a strong indication that Mr. Spena would not have acquiesced to the use of his land by the Brash’s to access 15 Sumac Court if he had known about it. i. The Brash’s knew that their property was water access only and that they needed Mr. Spena’s permission to use his land. Both Mr. Bierworth and Mr. Campbell stated that in their discussions with the Brash’s, it was apparent that the Brash’s knew they needed Mr. Spena’s consent to cross his land. They did not assert that they had a right-of-way.

Reasonable Necessity

[82] Another characteristic of a prescriptive easement is that it must be reasonably necessary. A reasonably necessary easement will “usually involve a very practical purpose.” The easement rights must have “utility and benefit” to the dominant tenement (the Brash property), rather than being ones of “mere recreation and amusement.” Barbour, at paras. 57-59.

[83] In the present case, there are two alternate means by which the Brash’s could access their property: by boat from the public boat launch of Faraday Lake; and by foot using the shore allowance path. However, the Brash’s maintain that neither of those two alternatives are feasible.

[84] The Brash’s maintain that there is no practical option of accessing their property by boat because the public boat launch on Faraday Lake does not have any docking capabilities for boats and does not provide sufficient car parking options to those who wish to utilize it.

[85] The Brash’s maintain that theoretically, the Brash property is accessible from the Querengesser Mills property and then along the shoreline allowance. However, the part of the shoreline closer to the Querengesser Mills property is uneven, steep in parts, treed and cannot accommodate a wide or straight footpath. In her cross-examination, Ms. Brash admitted that it was possible to access the Brash property using the shoreline allowance path. She stated that trees would have to be cut and stairs constructed. However, there are already stairs leading down from the Querengesser Mills property that could be used. This, of course, would require that an easement or permission be granted by the Querengesser Mills to make use of the stairs.

[86] The case law establishes that the existence of an alternate route does not preclude the finding of an easement. Barbour, at para. 90. When the proposed alternatives are less convenient and practical than the proposed easement, the courts may find that the proposed easement significantly contributes to the normal enjoyment of the dominant tenement beyond mere recreation and amusement. Mighton v. Palmer, 2021 ONSC 2275 at paras. 40-42.

[87] In this case, the alternatives of boat access and the shoreline allowance path are less practical and convenient than the 100 ft path. However, there was an alternative that was explored at some point in the past that I find would have been even more practical and convenient than using the 100 ft path. That alternative involved the purchase of some of the Property to construct a legal access road either along the 100 ft path or in another location.

[88] There is a dispute between the parties as to whether the offer to purchase land from Mr. Spena was for an access road to 15 Sumac Court or for the land at the Point of the Property. Ms. Brash stated in cross-examination that the discussions with Mr. Spena were not about purchasing land for an access road. In contrast, Mr. Spena and Mr. Campbell both stated that the discussions were about an access road to 15 Sumac Court. Mr. Campbell stated that the Brash’s contacted him regarding a possible road that they wanted to build from Pine Drive, through Mr. Spena’s land, to their cottage. Mr. Campbell understood from his discussions with the Brash’s that they had spoken with Mr. Spena about purchasing the land but could not reach an agreement with him about the price. Mr. Campbell’s evidence on this point was not shaken in cross-examination.

[89] Mr. Spena stated that after his discussions with Mr. Querengesser about purchasing land to build a road to access their property, Alexander Brash approached him with an offer of $1,000 per acre. Mr. Spena rejected Mr. Brash’s counter-offer and told him that the price of $25,000 was firm and that the Brash property was water access only. Mr. Spena told Mr. Brash that trespassing on his Property was prohibited.

[90] I find that the offer to purchase land was for an access road to 15 Sumac Court. The evidence of Mr. Campbell is corroborated by that of Mr. Spena and is uncontradicted.

[91] The Brash’s had the opportunity at some point in the past to purchase the land from Mr. Spena. The purchase of the land from Mr. Spena would have allowed them to create a legal access road to their property. They declined that opportunity. The Brash’s cannot now argue that it is reasonably necessary for them to use the 100 ft path on a gratuitous basis, when they had the opportunity to obtain the land for fair market value.

[92] I find that it would be contrary to the legal policy considerations set out by the Court of Appeal for Ontario in 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, to find that the proposed easement is reasonably necessary, given that a practical and convenient alternative was offered to them in the past which would have resulted in a fair and reasonable resolution of this dispute. In 1043 Bloor, at para. 106, the Court of Appeal stated:

The courts should not propound rules that reward a dominant owner's surreptitious behaviour and that discourage neighbours from approaching one another about potentially litigious issues. Instead, the rules should encourage property owners to alert one another to concerns about mutual usage and to reach fair and reasoned resolutions to these concerns.

[93] I understand that the Brash’s may have believed that Mr. Spena was demanding an unreasonable price for the land and therefore, this did not appear to them to be a reasonable alternative at the time. However, in comparison to the expense and hard feelings generated by litigation such as this, the option of purchasing the land, even at an elevated price, should have been viewed as a reasonable alternative to trespassing on Mr. Spena’s property. Although they may not have previously been aware of Mr. Spena’s hard line against trespassing on the Property, after their discussions with him about the purchase of the land, whether it was at the Point or on the 100 ft path, the Brash’s had to know that Mr. Spena did not acquiesce to their use of his land without compensation. Therefore, the option of purchasing the land was a more reasonable alternative than trespassing on it.

Conclusion Regarding the Easement

[94] The Brash’s have failed to establish a prescriptive easement over the 100 ft path. Mr. Spena and the Sims did not have knowledge of the use of the 100 ft path and did not acquiesce in its use by people at the Brash property. Furthermore, a reasonably diligent landowner would not have been aware of the use of the land. Finally, it was not reasonably necessary for the Brash’s to use the 100 ft path.

Issue 2: Are the Brash’s Entitled to Damages for Nuisance and Interference?

[95] The Brash’s contend that the Sims have undertaken extensive roadwork, construction, and tree-clearing projects within 250 feet of the Brash property, which infringe local zoning bylaws and interfere with their enjoyment of their property and established trail system.

[96] The Brash’s state that in February 2021, they discovered that the Sims had clearcut a large area (approximately 500 metres in length by 8-10 metres wide) on the Property. In the process, they state, the Sims destroyed a section of the trail system that the Brash’s and their predecessors had maintained for decades. They state that additional clearing and construction work has been completed periodically on the Sims’ Property.

[97] Finally, the Brash’s contend that the Sims have been interfering with their enjoyment of their property by denying them use of the 100 ft path, which is their traditional means of travelling to and from the Brash property.

[98] On September 8, 2021, the Applicants received a Notice of Trespass from the Respondents. At some uncertain point, a "No Trespassing" sign was placed near the entrance of the 100 ft path.

[99] I do not accept that the Sims have prevented the Brash’s from using the 100 ft path pending the court’s determination of the easement issue. On the contrary, I accept Ms. Sims’ evidence that they put the notices up as a safety precaution when they were constructing a road to reach the point on their land. The road was close to the 100 ft path, and they did not want anyone using it while the road was being built. The road work required the clearing of some of the trees on the Property. The Brash’s have otherwise been permitted to use the 100 ft path.

[100] The Sims inquired as to whether they were required to have a permit to build the road and were told that a permit was not required since the road is a private road which connects to another private road.

[101] I find that the Sims did not violate any by-laws or public ordinances in the development and use of their own property. They did not interfere with the Brash’s enjoyment of their property any more than creating the usual noise and commotion that happens whenever a neighbour chooses to build on their own property.

[102] The Brash’s have withdrawn their claim to an easement over the trail system on the Property (with the exception of the 100 ft path). They acknowledge that the trail system is on the Property, which the Sims now own. They cannot now claim that the Sims have created a nuisance to them by depriving them of the use of the trail system.

[103] The Brash’s claim for damages arising from nuisance is dismissed.

Conclusion

[104] The Application is dismissed in its entirety. The Sims are presumptively entitled to their costs. I would encourage the parties to agree to costs, failing which an appointment may be scheduled to address that issue before me. Five days prior to the scheduled appearance, the parties are to file short written submissions of no more than three pages including the Bill of Costs.

Justice KA Jensen Date: November 26, 2024