Ontario Superior Court of Justice

Court File No.: CV-24-95177
Date: 2025/03/06

Between:
David Richard Dickinson and Anita Jill Dickinson, Applicants
and
Trudi Hirsch Garcia and Lawrence Hirsch, Respondents

Before: Anne London-Weinstein
Counsel:
Andrew Lenz, for the Applicants
Ghassan Hamod, for the Respondents
Heard: January 23, 2025

Ruling on Application

Introduction

[1] The parties in this case are both homeowners of multi-residential, older homes in the Glebe, one of Ottawa’s historic neighbourhoods. A dispute has arisen over the narrow strip of land running between the properties, 156 and 152 First Avenue. The Respondents, who own 152, erected a fence making it difficult for the Applicants to access the rear of their property. The Applicants, who own 156, seek a declaration of prescriptive easement, and an order that the fence be removed.

[2] In this proceeding, this strip of land has been referred to as the “Disputed Lands”. However, the land consists of a laneway which the Applicants, Jill and Dave Dickinson, wish to use to access the rear of their property and for parking. The Respondent, Trudi Hirsch Garcia and the Estate of Lawrence Hirsch, erected the fence shortly before the Dickinsons bought 156 in September of 2023. The Respondent’s access to parking is on the other side of 152 and is not impeded by the fence.

[3] As a result of the fence, the Applicants claim they can no longer reach the back of 156 to park their vehicles, nor can contractors access the backyard with their vehicles to renovate and repair the building.

[4] The Applicants are asking the court to recognize that they have the right to use the Respondent’s side of the shared laneway by way of prescriptive easement and seek an order that the Respondent remove the fence so that a surveyor can conduct a survey and that the easement be registered. The Respondent contends that the requirements for a prescriptive easement have not been established and further, that the easement is not required for the reasonable enjoyment of the property.

Making Findings on These Affidavits Without Cross-Examination

[5] This was not an easy case to decide. One of the issues the court had to decide was the historical use of the Disputed Lands during the prescriptive period. There was contradictory evidence on this issue.

[6] Cross-examination would have assisted in arriving at the truth in this matter, however when I raised the issue with counsel I was advised that any inconsistencies were more apparent than real, and that cross-examination was not required. I respectfully do not agree with that assessment. However, I considered the factors which related to issues of credibility and reliability which presented in the affidavit evidence. At times I attributed less weight to the evidence of certain witnesses. Where I have done so, I indicated why. I also note that the quality of some of the aerial photographs in this case were not of good quality and were of limited assistance to the court.

[7] I also did not consider evidence which was not relevant to the issues before me. The Respondents submitted a list of properties owned by the Applicants. This was not relevant to any issue which the court had to decide and this evidence was not considered by the court in reaching my conclusion.

Summary of the Facts

The facts in this case are critical to the analysis, so a thorough review is required.

Evidence of the Applicants

[8] In September of 2023 the Applicants became interested in buying 156. They purchased the home in October of 2023. The Applicants’ property is bordered to the east by 152 which is registered to the Respondents.

[9] The Applicants were advised by Halina Tubin, who was selling the house on behalf of her mother, that a fence had just been recently erected by the Respondents. The Applicant understood that predecessors in title and their tenants drove along the laneway abutting 152 in order to access the rear of the Applicants’ Property and the parking lot that was at the rear of the building.

[10] Ms. Dickinson deposed that she and her husband Dave also understood that to access the rear of their building, they might have to periodically, but regularly, drive on 152. They were told that historically this was not an issue and that the predecessors in title had always done this.

[11] Ms. Dickinson noted that the asphalt associated with the Applicants’ property went past the fence toward 152. She found this to be consistent with the area being used for parking. Ms. Dickinson noted that the curb and sidewalk on First Avenue dipped down in front of both properties consistent with a previous use of the laneway by the vendors, their family and tenants. The curb and sidewalk dips down consistently in front of both properties. This dip in the curb was some evidence of historical use, however the inferences I can draw from the dip are limited and ultimately I did not find it persuasive with regard to the issue of continuous use, nor to the issue of reasonable enjoyment.

[12] The Applicants maintain that the newly erected fence prevents their vehicles and vehicles owned by their contractors from accessing the rear of their property. Although a small car could be driven to the back of the property, the Applicant’s Mercedes SUV does not fit, nor does her contractor’s vehicle. The fence is causing a significant amount of trouble for the contractor and the Applicants. If a vehicle is parked in the laneway, the rear of the property cannot be accessed even on foot.

[13] When there are winter parking bans they are unable to park on the street and there is not enough room at the front of the house to park without obstructing the sidewalk, given the distance between the fence and the laneway.

[14] The distance between the side of the building and the fence is 2.13 meters and Ms. Dickinson’s vehicle is 2.15 meters wide. There was no evidence as to whether this measurement includes the side mirrors fully extended, or whether they were retracted at the time of measurement.

[15] The inability to access the rear of the Applicants’ property affects their ability to repair it. For example, there are increased costs for set up because a vehicle cannot drive to the back of the property in order to repair the eavestroughs.

[16] There are cement bollards which are photographed in Exhibit 9, which lay between the fence and 152. The Applicants would still be able to access the backyard by driving around these bollards if the fence were removed.

Evidence of Halina Tubin

[17] Ms. Tubin lived in 156 in June 2, 1969 when it was purchased. She was nine when her family moved in and is now 63. The property always had tenants. Ms. Tubin moved out when she was 25 but remained in Ottawa and visited the property regularly. She later moved back and stayed until 1992 when her mother became ill. Her mother was hospitalized in October of 2022 and is now in care.

[18] There is a storage shed, and what Ms. Tubin described as a parking area, at the rear of 156. Ms. Tubin attested that in accessing the rear parking area her family regularly drove over the Disputed Lands. They also parked in the laneway. She attested that tenant parking was eliminated in 2005, but that her family continued to park back there and allowed the tenants to park at the rear of the property as needed. Her evidence on this issue was contested by the Respondents and is inconsistent with the other tenants of both 156 and 152 who submitted affidavits in this matter.

[19] Ms. Tubin’s evidence, and that of her husband Ed Gancarcik, was that the laneway and rear area were cleared of snow and parking regularly occurred in the backyard.

[20] Ms. Tubin also attested that her father Leon Tubin parked on the laneway, but because the laneway was narrow, he would have to open the car door onto and walk over the Disputed Lands and more particularly the side and front of 152 in order to return to the front of 156 and access the front door.

[21] Ms. Tubin attested that her family did not ask for permission and that the owners of 152 did not give permission to traverse the Disputed Lands. Her evidence regarding not asking permission is consistent with that of the Respondents. Ms. Tubin indicated that her family believed that the paved portion of the 156 laneway was the lot line and they thought that the entire paved part was their property until approximately 2007. At that time 152 was surveyed and the Tubins learned that a portion of the asphalt part of the laneway belonged to 152.

[22] Ms. Tubin attested that the bollards along the laneway next to 152 used to support a three-story set of porches. The porches are no longer there; however, they did not prevent access to the rear of the Applicant’s property. The bollards remain in place.

[23] In or around 2007, the owners of 152 had a survey done which delineated the lot line between the properties. Ms. Tubin attested that her family continued to drive over that portion of the laneway in order to access the rear of the property and were not prevented from doing so. She indicated that to the best of her knowledge and belief the laneway was used for vehicle parking and to access the rear of the property prior to 1969. Aerial photographs dated 1965 and following, show cars parked in the rear of the lot, as set out in Exhibit 1 to her Affidavit.

[24] Just after 156 was listed for sale, but prior to the sale, the owners of 152 installed a fence which is the subject of the Application. The Respondent told Ms. Tubin that it was always her intention to put up a fence, which seemed odd to Ms. Tubin as the Respondent knew that they were using the laneway to access the rear of the property. The fence makes it very difficult to access the rear of the property, according to Ms. Tubin.

[25] Ms. Tubin disputes that the tenants of 156 did not park in the back, and maintains that her father parked in the laneway. Her sister Mary also parked her Chevrolet Monte Carlo in the laneway. Occupational therapists, her mother’s other nurses and caregivers all parked in the laneway.

[26] She attested that she and her father and her husband drove materials to the back of the building as needed. They performed the maintenance on the property and would not have been able to do so with the fence as it exists now.

[27] There was evidence in this case that a tenant named Jenelle Selatria was involved in proceedings against the Tubins in or around Christmas 2001 at the Landlord and Tenant Tribunal. Ms. Tubin had advised her that she did not want her to continue to park at the back of the building. Ms. Tubin demanded that the parking spots be returned to her. The matter was heard in 2002 and the Tubins were successful. Ms. Tubin attested that she looked for the documentation related to the litigation but could only locate the letter that she wrote setting out her position at the end of January 2001. That letter was set out as Exhibit 1 to her affidavit. At that point there were three vehicles being parked in the rear of the building being accessed via the laneway. I accept this evidence that at least in 2001, Ms. Tubin sought to eliminate Ms. Selatria’s parking at the rear of the building and that there had been parking in the rear of the property at that time. There was no specific evidence as to how long Ms. Selatria had been parking in the rear of the property prior to being asked to relinquish her parking spaces.

[28] Ms. Tubin disagreed with the Respondents’ assertion that the 156 residents would have been forced to keep their vehicle on the 156 side of the property line in driving to the rear of the property to park.

[29] Ms. Tubin attested that the cedar tree at the front, depicted in Exhibit 4, did not prevent passing over the Disputed Lands with a vehicle as the Respondent claimed. I agree with Ms. Tubin that the tree was not sufficiently substantive to block vehicle access over the Disputed Lands.

[30] Ms. Tubin also deposed that her sister Mary’s boyfriend Chris Cullum also parked at the side of the building. He lived with Mary for five years on the second floor of 156. He worked for Honeywell Security and had a large white commercial van which he parked regularly at the side of the building, in the same way as her father did, exiting and entering the van on the other side of the lot line. He would have stepped on 152’s property and would not have been able to do that with the fence in the current location.

[31] Similarly, at various times, there were many service providers who had to go to the back of the building and drive partially over the lot line to do so.

[32] Ms. Tubin’s husband attested that they began dating in January of 1991 and they married in 1993. His recollection of the historical use of the property accords with his wife. He dealt with the service providers at 156.

Evidence of the Respondent

[33] The Respondent, Trudi Hirsch Garcia and her husband Aris Garcia moved into Unit 4 of 152 in 1984. The property was owned by her late mother, Sonia Hirsch.

[34] Sonia Hirsch and Lawrence Hirsch never lived at 152. Sonia Hirsch died on March 30, 1992 and the Respondent and her late brother inherited the property and became the registered owners on August 27, 1992.

[35] The Respondent attested that she knew Gienefa Tubin and Leon Tubin very well. She indicated that she remembered that Leon always parked his car in the front of the laneway between 152 and 156, very close to the 156 building.

[36] The Respondent does not recall Mr. Tubin ever parking his car in the rear, nor does she recall ever seeing any cars parked in the rear until the Applicants took possession. I do not accept that cars were never parked in the rear of the property. Clearly at some point there were cars parked in the rear, as there was a litigated dispute with regard to rear parking. The issue, however, is whether the use of the rear of the property for parking was open and continuous over 20 years during the prescriptive period, not whether parking occurred sporadically.

[37] The Respondent attested that after Mr. Tubin passed away, she would occasionally see a car parked in the spot he had parked at beside 156.

[38] The Respondent submitted aerial photos from the City of Ottawa geoOttawa interactive online map. Most of the photos were of poor quality and of little assistance in determining whether a car was parked in the rear or not. Some depicted no cars parked in the rear of the property. A photo from 1965 submitted by the Tubins showed two cars parked in the rear of the property. An aerial photo from 1991 depicts a car parked in the laneway between the two properties.

[39] The laneway is covered with asphalt and gravel from the edge of one building to the edge of the other. The Respondent attested that she and her tenants were always careful not to encroach on the Tubin side of the laneway. The Respondent maintained that the Tubins never claimed a right to her portion of the laneway and would have been physically blocked from doing so by the tree and the porches. I reject the Respondent’s evidence that the porches—which were removed in 2007—or the tree at the front of the property—since removed—prevented cars on the 156 side from parking at the rear of 156. The 1965 geoOttawa photo shows two cars parked in the back of the building at a time that the tree and porches were purportedly blocking vehicle access to the back of the yard. I reject the Respondent’s evidence on this issue, preferring the photographic evidence submitted in this case and the evidence of Ms. Tubin on this issue.

[40] In the summer of 2023, the Respondent decided to construct a fence along the boundary between 152 and 156 and cut down the tree at the front of 152. No reason was provided for the construction of the fence.

[41] The Respondent attests that the fence does not block the laneway, it remains passable. The Respondent points out that the sales listing for 156 shows the total number of parking spaces as zero. The listing also states that the tenants have street parking permits and do not park on property. The listing also indicates there is potential to develop a 4th apartment in the basement with direct access from the south facing yard.

[42] The Respondent attests that her own research establishes that the Applicants are developers who own a lot of other properties. She attests that the fence was a good idea as the Applicants are intent on radically changing the character and use of the laneway and to interfere with her use of the laneway. She submits photographs of items leaned against her fence, and a photograph of her grass which is flattened and squashed, along with bent small metal partitions which she had installed to protect the grass.

[43] The Respondent submits a photo of a service van/truck parked in the spot where Leon Tubin parked. The photo was taken on January 4, 2024. This photo, along with a similar photo taken on May 14, 2024, demonstrates that the spot where Leon Tubin and others traditionally parked can be used for parking with the fence present.

[44] The Respondent submits a photo taken on April 8, 2024, of a small car parked at the back of 156 to demonstrate that it is possible to drive to the rear of the property in a small vehicle.

[45] There were also a number of tenants of both 156 and 152 who provided affidavit evidence, along with evidence from a long-time neighbour of both properties. The evidence of these witnesses was consistent that parking had not occurred regularly in the rear of 156. Some of the observations were made during the prescriptive period. Other observations were made outside of the prescriptive period. I treated evidence of observations made outside of the prescriptive period as circumstantial evidence giving rise to a possible inference as to how the rear of the property had historically been used. However, I afforded less weight to this evidence, given that these observations did not occur during the legally material time period.

Evidence of the Tenants and Neighbour

[48] There was evidence that Kareena Butler, a former tenant of 156, parked in the laneway. Ms. Butler, in her affidavit, indicated that she was never allowed access for parking at the rear of the building. She lived at 156 for 14 years from March of 2010 to February of 2024 when she was forced to leave at the request of the Applicants. Her evidence related to a time period outside of the prescriptive period.

[49] Ms. Butler attested that the rear area of 156 was not used for parking, and she never saw a car parked in that backyard area. She also had a garden box in the rear area of the property and indicated that the rear area of the property was used for recreation and that clothing was hung on a clothesline in the back. Her wooden garden box was two feet by six feet in size.

There was no evidence as to when the garden box was constructed. Its presence did tend to suggest that the area immediately in front of the garden box was not used for parking at least while it was present. Ms. Butler attested that she “vividly” recalls having to move her winter tires into the shed at the back of the building in 2016 and 2018. She drove down the laneway four times, two times a year to store and retrieve her tires. I accept her evidence on this issue, despite the fact that I find that Ms. Butler bears some animus toward the Applicants for the manner in which they served her with notice to end her tenancy. She described them as very pushy, insisting that she had to be out of her apartment by February 1, 2024, so that they could redo the electrical wiring in the building even though the last day of her rental period was February 29, 2024. I did give less weight to Ms. Butler’s evidence as a result, but I nonetheless accept her clear recollection of the few times that she accessed the rear shed with her vehicle to get her tires.

[47] I find as a fact that Ms. Butler also sometimes parked in the laneway. Ms. Tubin had an email exchange with her about this which she attached as Exhibit 2 to her supplementary affidavit. Ms. Tubin did not want her parking in that location. Ms. Tubin also submitted a photo which shows Ms. Butler’s car parked at the side of the building contrary to her evidence. The email exchange is attached as Exhibit 2 of Ms. Tubin’s supplementary affidavit. Also attached as Exhibit 3 is a photo of Ms. Butler’s car which was parked at the time at the side of the building. Having found that Ms. Butler did park at the side of the building, I find support for the inference that she, as a tenant of 156, was not parking at the rear of the building.

[48] Ms. Stephanie Montgomery is a neighbour of 156. She lived across the street for the past 35 years. From 1989 to 1999 she lived at 157 and she has resided at 163 since 1999. Ms. Montgomery indicated she cannot recall the rear of 156 ever being used for parking. She did note parking at the front of 156. I find her evidence corroborative of the fact that the front of 156 was used continuously and openly for parking. Her observations occur both during and outside of the prescriptive period.

[49] Ms. Montgomery submitted a video of the rear of 156 which she filmed herself using a flying drone. While taking the video, the driver of a truck interdicted her filming efforts, and Ms. Montgomery said that he tried to intimidate her. There was no cross-examination of Ms. Montgomery on her affidavit. There is no evidence before me that Ms. Montgomery was asked by the Respondents to film the property belonging to 156. It is somewhat unusual that she would do so without request. Her interaction with the driver of the truck, who seemed to be associated to 156, suggests there is definite animus between her and the owners of 156. Further, while Ms. Montgomery may not recall the rear of the property ever being used for parking, I accepted the evidence of Ms. Tubin that in 2001, Ms. Selatria, the former tenant, was parking in the rear for a time, contrary to the evidence of Ms. Montgomery.

[50] Mr. Innis Williamson deposed that he has been a tenant at 152 since 1983 and knew Leon Tubin. His observations occur during and outside of the prescriptive period. He recalled Mr. Tubin parking in the laneway and not anywhere else. He attested that there was only one car parked in the laneway at the time. He also deposed that Leon Tubin did not shovel snow from all of the laneway, but shoveled only a narrow walkway to the back of the building, wide enough for one person to walk through. The laneway was covered in snow all winter, and no one drove there. This evidence, which I accept, supports the inference that the back of the property was not used consistently for parking from 1983 onward. Ms. Tubin disputes this evidence.

[51] When Leon Tubin passed away, Mr. Williamson shoveled snow in the same pattern as Mr. Tubin, leaving the rear of the property snow-covered. He stopped shoveling only when he broke his leg in 2016 or 2017. He indicated he was a close friend of Leon and Gienefa Tubin and they never indicated they had a right to park their car on 152 property.

[52] I prefer the evidence of Mr. Williamson on the issue of whether the rear of 156 was fully cleared of snow or not, to that of Ms. Tubin. I accept that he was a close friend of Ms. Tubin’s parents and I find his evidence to be credible. The fact of his friendship with the older Tubins was not challenged in this case. I accept his observations that the snow was not shoveled in a manner that permitted parking in the rear of 156.

[53] Cyril Mayo has been a tenant of 152 since 1986 and attested that he was friends with the older Tubins. His observations occur during and outside of the prescriptive period. He has also shoveled snow at 156 for the last five years. He attested that Leon Tubin parked his car in front of the laneway right next to the edge of the sidewalk beside 156. He could not recall seeing any cars driving down the laneway to the rear of the property, except for this last year when an SUV was parked there while someone emptied out a shed.

[54] He attested that he did not recall seeing more than one car parked on the property when the Tubins owned 156. He recalled that the porches extended past the two concrete pillars, and he believes the porches were removed in 2007.

[55] When he shoveled snow for the last five years he only cleared the front laneway and Gienefa Tubin instructed him to not go over the property line to 152 so as not to upset the Respondents. This evidence was not objected to by the Applicants. It is an out of court statement of Ms. Gienefa Tubin who is deceased.

[56] I find it admissible, even without it being admissible for the truth of its contents, i.e. for a hearsay purpose, as it is circumstantial evidence which gives rise to an inference with regard to the state of mind of Gienefa Tubin, relevant to her understanding of her ability to access the Disputed Lands. See: R v. Candir, 2009 ONCA 915, para 56. Mr. Mayo also knew other tenants in the building, including Kareena Butler, Cameron MacDonald and a person named Holly who lived on the third floor. Mr. Mayo indicated that the tenants of 156 always parked on the street because parking was not offered to them as tenants. Mr. Mayo claims to recall that Ms. Butler once parked her car at the spot at the front of the laneway and Ms. Halina Tubin told her that tenants are not permitted to park there. I find it unlikely that Mr. Mayo would recall such a mundane incident of his own accord 17 years after the fact. While I accept much of his evidence, I disregard his evidence with regard to his purported recall of this incident with Ms. Butler.

[57] One gets the sense from reading these affidavits that there has been some cross-contamination of evidence between the tenant witnesses, who all know each other and who all submitted affidavits on behalf of the Respondent. I considered this factor, and where indicated gave less weight to certain aspects of their evidence. It was also apparent that many of the affiants, such as Ms. Montgomery and Ms. Butler, for example, also appeared to also bear animus toward the new owners of 156. I considered this in assessing their evidence. However, despite this factor, I accept that Ms. Montgomery’s recollection of the use of the rear of 156 was an honest one.

What is the Legal Basis for the Applicant’s Claim?

[58] The Applicants claim that they have prescriptive easement over the Disputed Lands belonging to the Respondent’s property. An easement is a right to cross or otherwise use land that does not belong to you for a specified purpose. The essential features of an easement are set out in Barbour v. Bailey, 2016 ONCA 98, para 56:

To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or right-of-way:

i) There must be a dominant and serving tenement;

ii) The dominant and servient owners must be different persons;

iii) The easement must be capable of forming the subject matter of a grant; and

iv) The easement must accommodate—that is be reasonably necessary to the better enjoyment of—the dominant tenement.

See also, Depew v. Wilkes, paras 18-23; Kaminskas v. Storm, 2009 ONCA 318, paras 26-28.

[59] The doctrine of lost modern grant is recognized as a method for acquiring a prescriptive easement. It involves requirements in addition to the constituent elements of an easement. English v. Perras, 2018 ONCA 649, para 28. In 1043 Bloor Inc. v. 171404 Ontario Inc., 2013 ONCA 91, para 91:

The acquisition of a prescriptive easement by lost modern grant rests on a judicial fiction. The law pretends that an easement was granted at some point in time in the past, but that the grant of the easement has gone missing. A prescriptive right emerges from long, uninterrupted, unchallenged use for a specified period of time—in Ontario, 20 years….

[60] In Ontario, prescriptive easements have been abolished with respect to properties registered in the Land Titles system: Land Titles Act, RSO 1990, c L.5, s.51. As a result, the 20-year period must precede the transfer of property into the Land Titles system. In this case the property was transferred to the Land Titles system on August 26, 1996. In order to acquire prescriptive rights, the Applicants must establish that they and their predecessors on title used the strip of disputed land on the laneway continuously, uninterruptedly, openly and peacefully for at least 20 years prior to August 1996: Vivekanandan v. Terzian, 2020 ONCA 110, para 9; Pagliaro v. 1823360 Ontario Inc., 2023 ONSC 3253, para 4.

[61] As noted in English v. Perras, supra, at para 30, the courts have insisted on clear and unequivocal evidence to establish a prescriptive easement by lost modern grant. There are compelling policy reasons mandating a cautious judicial approach. The recognition of such a claim burdens the servient owner’s property, without any compensation: 1043 Bloor Inc., per Laskin J.A. at paras 102-104; see also Ebare v. Winter, paras 27-28. The ready invocation of a prescriptive easement has also been noted as potentially discouraging acts of kindness and good neighborliness; it may punish the kind and thoughtful and reward the aggressor, Henderson v. Volk (1982), 35 O.R. (3d) 379 (C.A.) para 21; see also, Carpenter v. Doull-MacDonald, 2018 ONCA 521, para 6.

[62] On the other hand, courts ought also to reasonably protect the dominant owner’s reliance interest where the usage has been open and uninterrupted for many years and where the evidence clearly shows that the servient owner has acquiesced in that usage. 1043 Bloor Inc., supra, at para 105.

[63] As in English v. Perras, supra, para 32, the outcome of this case should not be viewed as an endorsement of the Respondent’s conduct in erecting a fence along the laneway. Since the owners of 152 do not park on that side of their property, the fence does not interfere with parking at 152, just 156. As Justice Trotter noted, this type of behaviour is “not worthy of reward. Quite the contrary.” However, in that case, as in this one, it is the use of the property and the conduct of the parties in title during the putative prescriptive period that matters, not that of the present-day owners.

[64] The doctrine of the lost modern grant provides a property owner with a method of establishing that they have a prescriptive easement over another property. The underlying rationale is that owners of the servient property granted a right-of-way, or use, to the owners of the dominant property sometime in the past, but it was not recorded formally on title.

[65] The Respondents argue that the Applicants have not established, on a balance of probabilities, 20 years of peaceful, uninterrupted and continuous use of the laneway. They argue that the right-of-way over their property is not reasonably necessary for the enjoyment of 156 and the scope of the alleged easement is not certain.

Application of the Test to the Facts

[66] There is a dominant and serving tenement in this case.

[67] The properties are not owned by the same parties.

[68] However, I was unable to conclude that the prescriptive easement sought in this case was reasonably necessary for the enjoyment of 156.

[69] In my view, the use of the Disputed Lands is personal to the Applicants rather than an accommodation to their property and thus not reasonably necessary to the use of the property. See: Pagliaro v. 1823360 Ontario Inc., 2023 ONSC 3253, para 15; Hodkin v. Bigley, paras 11-12. The fence is entirely on the Respondent’s property line and does not encroach upon the Applicants’ property.

[70] The Applicants can park at the front of 156. Smaller vehicles can drive to the back and park. The ability to drive larger vehicles to the rear of the property is not an inherent requirement for the reasonable enjoyment of the property, but to the personal use of the Applicants.

[71] While it is somewhat inconvenient to not be able to access the rear of the property with larger vehicles, it is not reasonably necessary to the use of the property. A larger vehicle can park at the front of 156. The materials required for reparation of the building can be carried to the rear of the building. While this is not ideal, and may incur greater costs to the Applicants, it is not an inherent requirement to the reasonable enjoyment of the property that these vehicles be able to park at the rear of 156. Ms. Dickinson also attested that her Mercedes SUV is 2.15 meters wide. The evidence is that the distance from the laneway to the fence is 2.13 meters wide. I have no evidence as to whether this measurement included the mirrors of the SUV being extended, or whether they are retractable. I take judicial notice of the fact that retractable mirrors can make a car narrower. Given the lack of evidence on this subject, I cannot speculate as to how much narrower retraction of the mirrors makes a Mercedes SUV, or whether Ms. Dickinson has retractable mirrors, or whether her mirrors were retracted at the time of measurement of the vehicle. I suspect retractable mirrors are standard fare in a Mercedes SUV. However, as in English v. Perras, supra, I note that the burden is on the Applicant to establish facts which would favour the granting of an easement. In that case the issue was whether the Applicant’s retaining wall was necessary, as it restricted the width of the laneway. The Applicants failed to establish that the wall was necessary.

[72] Given that whether the mirrors are retractable or not has not been established, I am not satisfied that it would be impossible for Ms. Dickinson to drive her SUV to the rear of the building. In evidence is a photograph of a smaller vehicle parked at the rear of the building, so it is apparent that a smaller car can traverse the laneway.

[73] As I write this decision, it is winter in Ottawa and the city has experienced a massive snowfall. The lack of street parking during snow clearing periods is a reality in heavily populated neighbourhoods like the Glebe. However, the lack of street parking does not prevent the Applicants from parking smaller vehicles at the rear of the property, or from parking a larger vehicle in the front.

[74] I turn now to the issue of whether the Applicants have established that they have traversed over the Disputed Lands for 20 years in an open and uninterrupted fashion prior to August 26, 1996 and whether the evidence clearly shows that the owners of 152 or their predecessors in title acquiesced in that usage. 1043 Bloor Inc., supra, at para 105.

[75] After assessing all of the evidence in this case, I am not satisfied that the use of the laneway to access the rear of the property for tenant parking was open and uninterrupted during the prescriptive period. The evidence establishes that the backyard was at one time used for tenant parking. However, when the property was sold it was advertised as having no parking available and the listing indicated that tenants parked on the street. I take judicial notice of the fact that tenant parking for this home in the Glebe would add significant value to the property. If the property had been historically and regularly used for parking, I would expect that this would have been featured in the sales listing. Ms. Tubin does not indicate why the property was listed as having zero parking, with street parking available for tenants. This is not conclusive evidence, as the home was sold outside of the prescriptive period, but it is some evidence which is relevant to the historical use of the rear portion of the property. Likewise, the existence of the clothes line and the garden box in the rear of the property, while not conclusive, do tend to suggest that the rear area of the property was historically not used for parking but for gardening and doing laundry. And while I do not accept all of the evidence of every tenant and Ms. Montgomery, the neighbour, I do accept some of their evidence, and it persuades me on a balance of probabilities, when I consider the evidence as a whole, that the rear area of 156 was not used for parking on an open and uninterrupted basis during the 20 year prescriptive period.

[76] Further, while I accept that there would be service vehicles which had to periodically access the backyard, this was on an occasional basis, and not, on the evidence, on an uninterrupted basis for 20 years during the prescriptive period.

[77] On the other hand, I am satisfied, based on all of the evidence, that Leon Tubin and others, continually parked their vehicles in the front spot next to 156 on an open and uninterrupted basis for over 20 years during the prescriptive period. Further, I am satisfied on a preponderance of the evidence that in parking there, the residents of 156 likely encroached on the Disputed Lands in entering and exiting their car.

[78] If a prescriptive easement were to be found at all in this case, it would be only on this narrow strip of the Disputed Lands at the front of 156.

[79] However, again, in relation to the reasonable enjoyment of the property, it is clear from the photographic evidence in this case that a large vehicle can be parked at the front of 156, even with the fence present. Therefore, it is not necessary that even this small portion of the Disputed Lands be accessed in order to reasonably enjoy the property by parking in front of 156.

[80] I reject the evidence of Ms. Montgomery and the tenants who claimed that parking was always close to 156. Considering that Ms. Tubin herself did not know where the property line was until 2007, I find it unlikely that a casual observer would note if Leon Tubin’s car was encroaching on the Disputed Lands in exiting his vehicle during the prescriptive period.

[81] The requirement that an easement be necessary, not merely convenient, for the reasonable enjoyment of the property is strictly construed by the courts in the balancing of interests between the dominant and servient tenement. English v. Perras, supra. The Applicants have not provided evidence which sufficiently satisfies me that this test has been met, nor that the use of the rear area of 156 was used for parking in the manner required for 20 years such that it would require driving over the Disputed Lands. The Application is therefore dismissed.

[82] The parties indicated that they wished to make additional submissions with regard to costs. These can be done in writing, directed to scj.assistants@ontario.ca to my attention with a maximum of three pages excluding any offers to settle by March 31st, 2025. If the parties require another appearance, it can be scheduled through my assistant Tina.Gloyn@ontario.ca.

Anne London-Weinstein

Date: March 6, 2025