Murray-Leung et al. v. Dyck et al., 2025 ONSC 2071

COURT FILE NO.: CV-22-79841 DATE: April 2, 2025 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Louise Murray-Leung and Leslie Murray-Leung, Applicants -and- Brian James Dyck and Jodi Lynn Eastwood, Respondents BEFORE: MacNeil J. COUNSEL: T. David Marshall and Matthew Jarrett – Lawyers for the Applicants William W.N. Fawcett – Lawyer for the Respondents HEARD: December 30, 2024 REASONS FOR DECISION INTRODUCTION [ 1 ] The Applicants claim property rights – either ownership by way of adverse possession or a prescriptive easement – over portions of the Respondents’ property. The primary relief sought relates to the driveway area shown on the survey dated May 28, 2021, obtained and filed by the Applicants, and marked “Gravel Driveway” (“the “Gravel Driveway”). The Applicants claim that the Gravel Driveway historically has encroached onto the Respondents’ property since at least 1977. The other property at issue is the area from the Applicants’ property line on the said survey to two trees showing just north on the Respondents’ property, encompassing a gravel parking and lawn area used by the Applicants in front of their home. [ 2 ] The Respondents argue that the application should be dismissed. They do not dispute that the Applicants’ property has been serviced by a driveway since the properties were severed in or around 1953, but they do not agree that the driveway or the gravel parking and lawn area have encroached onto the Respondents’ property for the requisite period of time and, if they did, the extent to which they may have encroached. [ 3 ] None of the parties called the evidence of any land surveyor. However, both sides filed affidavit evidence attaching a survey each had respectively obtained. The Respondents’ survey is dated June 1, 2018, and, as indicated above, the Applicants’ survey is dated May 28, 2021. The surveys were filed and marked as exhibits at the hearing of the application. [ 4 ] I have attached as a Schedule “A” to these reasons a copy of the May 28, 2021 survey plan, which was part of the schedule attached to the Notice of Application. It provides a visual illustration of the subject lands, including the strip of land owned by the Respondents over which the Applicants’ driveway claim is made (“the Disputed Land”). [ 5 ] The initial relief sought by the Applicants in the Notice of Application related to the Disputed Land only. However, in the Applicants’ factum and at the hearing of the application, the Applicants sought to amend and expand their claim of adverse possession to include the gravel parking and lawn area. Given this, I have considered the application in two parts: the first, the driveway; and the second, the gravel parking and lawn area. BACKGROUND [ 6 ] In 1949, J. Vansickle purchased a parcel of land identified as Concession 4, Lot 38-47 that became municipally known as 58 Garner Road West. She transported part of her family home from its original location onto the lot. In 1953, Ms. Vansickle severed the lot to create what is now the Respondents’ property. Both properties were converted from the registry system to the Land Titles system on January 20, 1997. [ 7 ] The Applicants own 58 Garner Road West (“the Property”). They purchased the Property on November 21, 1996 and began living there in 1998, after completing renovations to the home. [ 8 ] The Respondents purchased 56 Garner Road West on July 28, 2017. Their property is situated directly in front of the Applicants’ home and fronts onto Garner Road West. [ 9 ] The only access to the Property is by way of the Gravel Driveway, which is indicated on the surveys to be 3.38 metres wide off of Garner Road West. The entrance to the Gravel Driveway from Garner Road West deviates around a utility pole and a well which are located within the 3.38 metre opening. Due to the location of a number of mature hardwood trees, travel on the Gravel Driveway follows a path between the Respondents’ garage/house and trees that line the driveway. There is also another utility pole closer to the Applicants’ home on the west side of the Gravel Driveway. [ 10 ] It appears from the evidence filed that problems respecting the Applicants use of the entire width of the Gravel Driveway began in 2018, shortly after the Applicants’ objected to the Respondents cutting down what the Applicants believed to be a shared boundary tree without their permission. [ 11 ] Following that, in late October 2019, the Applicants received from the City of Hamilton notice of a public hearing for a minor variance application that indicated the Respondents were seeking approval to renovate their house and construct a detached garage in their backyard. The construction of the garage required the Respondents to obtain a right of way over the Applicants’ property and have access from the Gravel Driveway. When the Applicants did not agree to give the Respondents a right of way over the Gravel Driveway, the Respondents did not proceed with the detached garage plan. However, the relationship between the parties subsequently deteriorated. [ 12 ] On June 27, 2020, the Applicants received a letter from the Respondents advising that they were going to install a fence on their property along the Gravel Driveway. The Applicants responded by way of a letter dated July 6, 2020 that they left in the Respondents’ mailbox, but they did not hear back. Towards the end of July 2020, Ms. Murray-Leung happened upon the Respondents’ daughter on her way to the mailbox and asked if they had received the Applicants’ letter and whether they would be advising as to where the fence would be built. The Respondents said they had to check with their builder and advised it would be 6-8 inches from the property line. [ 13 ] On July 24, 2020, a chalk line appeared on the Gravel Driveway running from a front stake by the road all the way down to the Applicants’ parking area. The Applicants requested that the Respondents not proceed any further with the fence because, if erected as per the chalk line, it would have impeded or made impossible vehicular and service truck access to the Property. [ 14 ] On August 4, 2020, the Applicant discovered additional stakes had been placed along the Gravel Driveway. The Applicants’ lawyer requested that the Respondents pause the work and engage on where the fence would be placed. [ 15 ] On August 5, 2020, the Applicants’ septic tank was pumped. Their evidence is that that was the last time the tank has been emptied because the septic tanker truck is now unable to travel the driveway due to obstructions placed by the Respondents along the surveyed property line. [ 16 ] On or about August 31, 2020, Ms. Murray-Leung witnessed the Respondents’ workers installing the rear posts for a fence in the Applicants’ driveway. The Applicants spoke with the fence installer who then called the Respondent, Mr. Dyck. The Applicants’ evidence is that Mr. Dyck told them to stop interfering with the contractor. Ms. Murray-Leung called the Applicants’ lawyer who then called the contractor directly. The contractor removed the southwest pole before the concrete could set. That same day, Ms. Murry-Leung received a call from Hamilton Police because the Respondents had made a complaint to them. The police declined to get involved as both parties had lawyers. [ 17 ] By early October 2020, the Respondents began renovating their home. The evidence shows that they used the Gravel Driveway for access, and for construction vehicles and building materials. [ 18 ] The Applicants’ evidence is that the Respondents have obstructed and hindered the Applicants’ use of the Gravel Driveway by placing items directly along the property line, piling landscaping waste at the end of the Respondents’ property in front of the Applicants’ home, and installing “armour stones” along the property line some of which protrude into the Gravel Driveway. The Applicants submit that the potential installation of a fence 6-8 inches off the property line would make accessing the Property very difficult for regular vehicles and impossible for larger service vehicles, like a septic tanker truck or a fire truck. Ms. Murray-Leung’s evidence is that, in one section of the Gravel Driveway, it is “barely” 96 inches wide. For reference, she attested that the width of a modern septic tanker truck is 99 inches at the rear and 111 inches at its mirrors. THE LAW Adverse Possession [ 19 ] Adverse possession and easement claims are both codified in the Real Property Limitations Act , R.S.O. 1990, c. L.15. Both adverse possession and easement claims are limited by sections 44 , 45 , 46 , and 51 of the Land Titles Act , R.S.O. 1990, c. L.5, which prevent such claims arising from the use of property after conversion from the registry to land titles system but preserve those that may arise from use prior to conversion. [ 20 ] Section 4 of the Real Property Limitations Act provides a 10-year period for a party with an interest in real property to bring a claim for possession of that property where they have been dispossessed of same. [ 21 ] In Teis v. Ancaster (Town of) , 1997 1688 (ON CA) , 1997 CarswellOnt 2970 , at para. 9 , the Ontario Court of Appeal affirmed that, for a successful claim of adverse possession, the claimant must prove: (i) actual possession for an uninterrupted period of not less than 10 years of the lands in question; and, (ii) that such possession was with the intention of excluding the true owner from possession or use; and, (iii) that the true owner was effectively excluded from possession for that period of time. ( See also MacQuarrie v. Proulx , 2023 ONCA 625 , at para. 8 .) [ 22 ] To establish adverse possession, the “acts of possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. If any one of these elements is missing at any time during the statutory period, the claim for possessory title will fail.”: See Teis , at para. 13 . The Court of Appeal in Teis explained the two reasons why possession must be open and notorious (at para. 14): … First, open possession shows that the claimant is using the property as an owner might. Second, open possession puts the true owner on notice that the statutory period has begun to run. Because the doctrine of adverse possession is based on the true owner’s failure to take action within the limitation period, time should not run unless the delay can fairly be held against the owner. Ziff, Principles of Property Law (2nd ed. Carswell 1996) at pp. 118-126. [ 23 ] The element of adversity means that the claimant is in possession without the permission of the owner. If the claimant acknowledges the right of the true owner, then the possession is not adverse: Teis , at para. 16 . [ 24 ] The test of inconsistent use focuses on the intention of the owner or paper title holder, not on the intention of the claimant: Teis , at para. 24 . [ 25 ] The test of inconsistent use by the claimant does not apply to a case of mutual mistake about title, however. This is because, if the true owner mistakenly believed that the claimant owned the disputed land, then the owner can have no intended use for it and, thus, the claimant’s use cannot be inconsistent with the owner’s intended use: Teis , at para. 25 . In cases of mutual mistake, the court may reasonably infer that the claimant intended to exclude all others, including the paper title holder: Teis , at para. 30 . [ 26 ] A titled owner does not need to exercise the same degree of control over the property as someone claiming adverse possession. Fairly trivial acts of dominion by an owner will usually suffice: Barbour v. Bailey , 2016 ONCA 98 , at para. 45 . Prescriptive Easement [ 27 ] An easement by prescription can arise either under s. 31 of the Real Property Limitations Act , or pursuant to the doctrine of lost modern grant. Both have the same four requirements, being: (i) a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land; (ii) the properties cannot be owned by the same person; (iii) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and (iv) there must be 20 or 40 years of continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner: Hunsinger v. Carter , 2018 ONCA 656 , at para. 9 . [ 28 ] The claimant bears the onus of demonstrating “a continuous, uninterrupted, open, and peaceful use of the land, without objection by the owner” for the 20 (or 40) year period of time: Carpenter v. Doull - MacDonald , 2017 ONSC 7560 , at para. 50 ; appeal dismissed 2018 ONCA 521 . [ 29 ] For a right-of-way, the requirement for its continuous, uninterrupted use will be satisfied if clear and unambiguous evidence shows that the use was of such a nature, and took place at such intervals, as to indicate to the ordinarily diligent owner of the servient tenement that a right is being claimed: Carpenter , at para. 50. [ 30 ] Use permitted by neighbourliness and enjoyed on that basis is insufficient to establish an easement by prescription: Carpenter, at para. 51. [ 31 ] Once the claimant has proven facts that support the inference of acquiescence in 20 years of use, the evidentiary burden passes to the respondent to lead evidence to rebut the inference by proving the use was by permission: Condos and Castles Realty Inc. v. Janeve Corp. , 2015 ONCA 466 , at para. 17 . [ 32 ] A prescriptive easement claim does not require an element of “necessity”: Caldwell v. Elia , 2000 CarswellOnt 587 , 2000 5672 (ON CA) , at para. 14 . ISSUES [ 33 ] The following issues are to be determined on this application: (a) Have the Applicants, through their predecessors in title, established adverse possession over the portion of the Gravel Driveway that is on the Respondents’ property? (b) Have the Applicants, through their predecessors in title, established a prescriptive easement over the portion of the Gravel Driveway that is on the Respondents’ property? (c) Have the Applicants, through their predecessors in title, established adverse possession over the gravel parking and lawn area in front of the Applicants’ home that is on the Respondents’ property? ANALYSIS [ 34 ] The parties agree that the properties of both the Applicants and the Respondents were converted to the Land Titles Act system on January 20, 1997. Therefore, any claim by way of adverse possession or any claim for an easement must be based upon use prior to that date. (a) Have the Applicants, through their predecessors in title, established adverse possession over the portion of the Gravel Driveway that is on the Respondents’ property? Position of the Applicants [ 35 ] The Applicants argue that they, and their predecessors in title, have had open, notorious, peaceful, adverse, exclusive, actual, and continuous use of the Gravel Driveway, including the Disputed Land, for more than 10 years prior to 1997. In this regard, they primarily rely on aerial photographic images attached to the affidavit of Ms. Murray-Leung; and on the evidence of use of P. Morrison (“Mr. Morrison”), a former owner of the Property who, along with his wife, sold it to the Applicants, and of D. Johnston (“Mr. Johnston”), the owner of a septic pumping service company, both of whom swore affidavits and were cross-examined on those affidavits. [ 36 ] The Applicants also submit that this may be considered a case of mutual mistake where each party misunderstood where the boundary lay between the two properties. They argue that this position is supported by the evidence of Mr. Morrison. Position of the Respondents [ 37 ] The Respondents reject the Applicants’ claim for possessory title of the disputed land by way of adverse possession. They argue that, at its highest, the evidence establishes only that the Applicants’ predecessors in title drove over the driveway and occasionally performed maintenance on it. The driveway is “open land”. The fact that it was always located between the trees on either side of it is not in dispute. However, there is no evidence showing that the limits of the Gravel Driveway, as surveyed in 2021, match the limits of the driveway during any ten-year period prior to 1997. Even if the driveway did encroach onto the Respondents’ property prior to 1997, there is no evidence as to the extent of any such encroachment. [ 38 ] The Respondents also allege that, in 2009, the Applicants and a former owner of the Respondents’ property widened the driveway by placing additional gravel on it. Further, they argue that the shape of the driveway at its termination in front of the Applicants’ house has also noticeably changed. Early images of the driveway from 1960, 1978 and 1984, filed, show it running straight back to the Applicants’ house, while later images show the driveway cutting into the corner of the rear of the Respondents’ property leading into the gravel parking area for which the Applicants are seeking a declaration of adverse possession (which claim is addressed later on in these reasons). Discussion [ 39 ] Both parties accept that the Property was converted to Land Titles on January 20, 1997. Therefore, the court must determine whether the Applicants or their predecessors in title acquired possessory title at least 10 years prior to that date. The onus is on the Applicants to establish that possessory title has been acquired. [ 40 ] The issue comes down to what form of the driveway was in existence as of January 20, 1997 and ten years prior to that date. [ 41 ] The evidence is not clear as to when the driveway was actually constructed. However, the Applicants and the Respondents all agree that the driveway has been in use – in some form or another – since the properties were severed into two lots in 1953. [ 42 ] I accept the evidence of Mr. Morrison that he and his wife consistently used the driveway for the period of time they owned the Property, from 1981 through to 1996, and that they never sought permission to do so from the prior owners of 56 Garner Road West. [ 43 ] I find that the evidence establishes that, given the nature of the Disputed Land and its immediate adjacency to the Applicants’ driveway, the Morrisons must have used the Disputed Land when vehicles travelled the driveway to and from their house and land. [ 44 ] However, there is no evidence to support a finding that the Morrisons were ever in actual possession of the Disputed Land during their period of ownership of the Property. Accordingly, I find that the first branch of the adverse possession test is not met. [ 45 ] I also find that the second branch of the test, requiring an intention to exclude the true owner from the Disputed Land, has not been met by the Applicants. The evidence of Mr. Morrison was that the Respondents’ predecessors in title and the Morrisons were each able to traverse, and did traverse, the Disputed Land as needed; and that the former owners of the Respondents’ property tended to their grass and property beside the driveway as their own, which included at one point a small garden area. In cross-examination, Mr. Morrison’s evidence was that he did not take any steps to prevent the former owners of the Respondents’ property from walking or travelling over or on the driveway and they were able to walk across and drive across the driveway for the entire time he owned the Property. I conclude, therefore, that there is no evidence of an intention to exclude the true owner of the Disputed Land in the years prior to 1997. [ 46 ] Finally, I find that the third branch of the adverse possession test is not met in the circumstances of this case, as there is no evidence that the Morrisons effectively excluded the Respondents’ predecessors in title from using the Disputed Land throughout the 10-year period prior to January 20, 1997. The evidence also does not raise a reasonable inference of such exclusion. The Disputed Land was open for use to the owners of both 56 and 58 Garner Road West, in accordance with its nature – for the Respondents’ predecessors, as part of a sideyard to their house, and for the Applicants’ predecessors, as part of their driveway. [ 47 ] Mr. Morrison gave evidence that predecessors in title to the Respondents placed flags in the driveway, in the vicinity of the property line, to help guide the former owner of the Property (prior to the Morrisons) so that he knew where he should drive at night and avoid hitting the neighbours’ garden or car. While counsel for the Applicants submitted that this supports a finding that the owners were not aware of the precise location of the property line, given that the test for adverse possession is not otherwise met in this case, this evidence does not assist the Applicants. [ 48 ] In the result, I find that there has been no actual possession by the Applicants or their predecessors of the Disputed Land proven; there is no compelling evidence of an intention to exclude the true owners; and there has been no effective exclusion of the Respondents and their predecessors in title from the Disputed Land. Accordingly, the Applicants’ claim for adverse possession of the Disputed Land must fail. (b) Have the Applicants, through their predecessors in title, established a prescriptive easement over the portion of the Gravel Driveway that is on the Respondents’ property? Position of the Applicants [ 49 ] The Applicants seek a prescriptive easement on the basis that their predecessors in title exercised a continuous, uninterrupted, open and peaceful use of the Disputed Land as part of the driveway for vehicles travelling between their house and Garner Road West, without the owner’s express consent, since at least 1977. Position of the Respondents [ 50 ] The Respondents’ position is that there is no evidence that the driveway was on the Respondents’ property for the requisite 20-year period, and that Mr. Morrison’s evidence only establishes 16 years of use of the driveway. [ 51 ] It is submitted by the Respondents that the real issue is the presence of the hardwood trees to the west of the driveway as they are what is limiting vehicular access. The Applicants have not provided any evidence that they cannot remove those trees. The 3.38 metre width of the driveway is wide enough for large trucks to traverse the length of the driveway if the trees are removed. Discussion [ 52 ] The driveway is the only means of access onto the Property. Photos taken in July 2020, filed in evidence as Exhibit “H” to Ms. Murray-Leung’s affidavit, show the orange surveyed property line clearly within the worn tire tread of the lane closest to the Respondents’ property. [ 53 ] I am persuaded that, to establish whether the driveway encroached onto the Respondents’ property prior to 1997, the most reliable evidence is the photographic evidence from the time period in question, which was presented as exhibits to the affidavit of Ms. Murray-Leung. Specifically, aerial photographs from 1953 to 1985 and an aerial digital animation of the properties from 1960 to 2019 (Exhibit “T”) show the driveway leading from Garner Road West up to the house now owned by the Applicants. I find that those images show the driveway in essentially the same location as it is now. The deviation at the entrance of the Gravel Driveway, due to the utility pole, can be seen on the photographs from 1960 and 1978, as can the presence of the hardwood trees that remain to this day. Given that these are clearly visible on the 1960 and 1978 images, I am satisfied that the width of the driveway from 1977 to 1997 has not had any significant widening as it has been primarily dictated by the seasons and the growth of the trees and surrounding vegetation lining its sides. [ 54 ] With respect to the Respondents’ submission that the driveway was widened by the application of gravel in 2009, I am not persuaded that that had any permanent effect. While the photographs from 2009 do show the gravel going up to the side of the house now owned by the Respondents, photos in evidence taken on later dates show that the worn tire treads, the grass on the shoulders, and the grass in the centre of the driveway returned. As a result of this reversion back to the lane’s more “natural state”, as it appears in the 1960 and 1978 aerial photos, I find that the application of the gravel in 2009 does not defeat the Applicants’ prescriptive easement claim. [ 55 ] The affidavit evidence of the neighbour to the west of the driveway, C. Roberts, filed by the Respondents, is that she moved into her property in 1973 and she recalls the driveway was two dirt tracks with a strip of grass in the middle. She attested she would cross the driveway to visit her then neighbours who formerly owned the Respondents’ property. [ 56 ] I accept the uncontroverted evidence of Mr. Johnston that, in working for his father’s septic truck company, he had serviced the Property “for decades (since 1960s and 70s)”, using a vacuum tanker to empty the septic tank located in the back of the Property. Mr. Johnston described his septic tanker as a standard size, being 31 feet in length, 9-9½ feet in width, including the wing mirrors, and 16 feet in height. Since he did not specify a precise year, I find that it was at least since 1977 that the Applicants’ driveway accommodated a standard septic tanker truck. [ 57 ] I further accept the uncontroverted evidence of Mr. Morrison that they had an oil truck, snowplows, an 18-wheeler, a water truck, hydro trucks, and septic trucks come down the driveway from Garner Road West, between the trees, to the house now owned by the Applicants. I also accept Mr. Morrison’s evidence that his former tenant, who resided at the Property for “about a year or two”, travelled the driveway in his “big rig truck”. Mr. Morrison’s evidence was that “the trees lining the driveway on the right (travelling again towards our former home) were large even in 1981”. This evidence supports a finding that the extent of the encroachment onto the Respondents’ property has historically been at least as wide as a standard septic tanker truck. A photo taken in 2020, filed into evidence, of a septic tanker truck traversing the driveway shows that the body of the truck and its tires fill the entire width of the driveway. [ 58 ] I find that the evidence of both Mr. Morrison and Mr. Johnston establishes that large trucks needed to drive over the driveway’s entire length and would have been unable to navigate the length of the driveway, due to the existing trees and utility poles, without driving on the Disputed Land. [ 59 ] The uncontroverted evidence of Mr. Morrison is that he never asked for, nor was he ever given, permission to use the Disputed Land for travelling over the driveway. He attested that “[i]t was a practical consequence of the then-as-now location of the driveway … it seems logical to me that the driveway was simply wherever it needed to be, and where it remains now, some 65+ years later”. [ 60 ] I conclude that the Applicants have established the acquiescence of the former owners of 56 Garner Road West to the use of the Disputed Land by the Applicants’ predecessors since at least 1977. In my view, the fact that it was the original owner of the Property who severed her lot to create 56 Garner Road West supports an inference that she did not require permission from the former owners of 56 Garner Road West to use the driveway to access her land. The physical layout of the Property’s driveway by which it abuts and, at times, integrates the Disputed Land; the fact that the Applicants’ house is only accessible over the driveway as it is located behind 56 Garner Road West; the obvious vehicular use of the driveway by the residents of the Property, as described by witnesses who were present at the various times, including the 1960s and 1970s; and the absence of any evidence of objection or exercise of control by the Respondents’ predecessors in title – all of this shifts the evidentiary burden in this case to the Respondents. [ 61 ] The Respondents have led no evidence of permission being granted. Further, there is no evidence that the Respondents’ predecessors in title took any positive steps to prevent the use in question or did anything else from which a grant of permission reasonably could be implied. I conclude that the Respondents have not met the burden that falls on them to establish some act of permission of the owners of 56 Garner Road West that rebuts the inference of acquiescence. [ 62 ] The Respondents have not demonstrated that it is possible to get service trucks down the length of the Applicants’ driveway without encroaching on the Disputed Land. [ 63 ] While the Respondents have suggested that the Applicants could remove the hardwood trees located to the west of the Gravel Driveway, the evidence is that the trees belong to the neighbours, Ms. Roberts and her husband. Ms. Roberts’ evidence on cross-examination was: “They’re our trees that have grown, and they’re half on their property, half on ours”. Later on, during her cross-examination, Ms. Roberts indicated that she and her husband “don’t want the trees down”. Although, I note that that evidence contradicts the statement found in her affidavit that the Roberts do not object to the Applicants taking down two of the trees, as long as they do so at their own full expense and provide notification to the Roberts before the trees are removed. I also take into consideration the fact that the hardwood trees are mature and have been in place and growing since before 1960, as the photographs in evidence indicate. In my view, to suggest that the trees be cut down, given the history of the two properties and the historical use of the driveway and the Disputed Land, is not reasonable. [ 64 ] I find that the requirements for a prescriptive easement have been met by the Applicants. The Property is the dominant tenement that enjoys the benefit of the use of the Disputed Land, and the Respondents’ property is the servient tenement. The properties are and have been owned by different people, since at least 1953. The evidence establishes that the use of the Disputed Land for vehicular traffic is necessary in order to service the Property and is not just for the sake of convenience. The evidence shows that, at least since 1977, the Applicants and their predecessors in title have made use of the Disputed Land for the purpose of vehicular travel on their driveway in a continuous, uninterrupted, open, peaceful manner, without permission. [ 65 ] Accordingly, the application for a prescriptive easement over the Disputed Land is allowed. [ 66 ] I am satisfied that the placement by the Respondents of a fence or other obstructions along the property line would practically interfere with the Applicants’ use of the easement over the Disputed Land since they would not be able to use it as conveniently as before: Hunsinger , at paras. 11-15, 17 . [ 67 ] In my view, given the Respondents’ placement of items on and/or along the property line already, an order is required to enjoin them from interfering with the easement in a way that would interfere with its established use or not allow for vehicular traffic to access and service the Property, including septic tanker truck service. [ 68 ] Consequently, the Respondents shall remove any items – including parked cars, plant stands, chairs, ladder, and “armour stones” – that have been placed in a manner or location that prevents the Applicants from practically and substantially exercising their easement rights over the Disputed Land as conveniently as they could before such items were so placed. (c) Have the Applicants, through their predecessors in title, established adverse possession over the gravel parking and lawn area in front of the Applicants’ home that is on the Respondents’ property? Position of the Applicants [ 69 ] The Applicants sought leave to amend their claim for adverse possession to include a gravel parking and lawn area in front of their home that is located on the Respondents’ property. Position of the Respondents [ 70 ] Counsel for the Respondents objected to the requested amendment of the Notice of Application and submitted that, if the court was inclined to grant the relief requested by the amendment, the Respondents requested an adjournment in order to properly respond to same with further evidence. However, he also submitted that there is no evidence before the court as to either the current extent of the gravel area or the historical use of that graveled area. He argued that the evidence of Mr. Morrison was that he did not recall placing any gravel in the area until sometime around 1988, which is less than the time required to establish adverse possession. Discussion [ 71 ] Rule 26.02 (c) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, provides that a party may amend their pleading with leave of the court. A notice of application may be amended in the same manner as a pleading: Rule 14.09 . Where a pleading is amended at the trial, and the amendment is made on the face of the record, an order need not be taken out and the pleading as amended need not be filed or served unless the court orders otherwise: Rule 26.06. [ 72 ] In Yvonne Andersen et al. v. St. Jude Medical, Inc. et al. , 2010 ONSC 77 , Lax J. explained the effect of Rule 26.01, which deals with the general power of the court to grant leave to amend a pleading, at para. 11: Rule 26 clearly contemplates that pleadings may be amended on motion at any stage of an action and amendments are frequently granted on "the eve of trial", at trial, and during trial unless prejudice is demonstrated that cannot be addressed by costs or an adjournment. [ 73 ] For the reasons set out below, I conclude that leave should be granted to the Applicants to amend their claim as requested. However, I dismiss the claim for adverse possession of the gravel parking and lawn area. [ 74 ] I find that allowing the amendment would not cause an injustice not compensable by costs or an adjournment. The factual matrix regarding the history of the driveway, including vehicular ingress and egress to the Property, is already in issue and, in my view, the relevant documents and facts necessary for the court to make a determination on the issue have been presented. I find that it would be a waste of judicial resources and the parties’ resources to require the Applicants to bring another proceeding to address the gravel parking and lawn area, as the evidence before the court is sufficient to determine the expanded claim. I am also satisfied that the Respondents understood the amended claim against them and their counsel was able to make proper submissions regarding same: Extreme Venture Partners Fund I LP v. Varma , 2021 ONCA 853 , at para. 63 ; application for leave to appeal dismissed 2022 69787 (SCC) . [ 75 ] In my view, the Applicants have not met their onus of proving adverse possession of the gravel parking or lawn area claimed. I find that the aerial images in evidence, including Exhibit “T” to the affidavit of Ms. Murray-Leung, being an animation of photos taken from 1960, 1978, 1984 and 2019, show that the driveway ran straight past the Respondents’ property and did not cut into the corner of it until sometime after 1984. Further, photographs attached to Ms. Roberts’ affidavit, taken in 2007 and 2009, do not show the same shape of the curve or gravel parking area as now exists in front of the Applicants’ house. [ 76 ] The evidence of Mr. Morrison, relied on by the Applicants, was that he had a truck and he “parked it under the tree”, but his evidence does not clearly identify which tree. There are two trees on the Respondents’ property marked on the May 28, 2021 survey as being located 2.68 metres north of the property line. Ms. Murray-Leung’s evidence was that one or more of the two trees had branches that “crossed over” the property line. I find that Mr. Morrison’s evidence could be understood to mean that he parked on his own property under the branches of one of those trees. I accept the Respondents’ argument that there is no evidence that Mr. Morrison parked right beside the trunk of the trees identified as being 2.68 metres north of the property line. The evidence of Ms. Murray-Leung was also that there had been a “shared boundary tree” that was removed by the Respondents in early 2018. It was not clear from the evidence whether it was that “shared boundary tree” that was the tree that Mr. Morrison parked under. Finally, I accept the Respondents’ argument that, even if Mr. Morrison’s evidence was accepted that he parked his truck under the tree, he did not start to gravel the area where he parked until after he had obtained the truck around 1988. Accordingly, that does not establish possession for a period of ten years prior to the properties entering the Land Titles system on January 20, 1997. [ 77 ] I also find that the evidence does not establish that the curving of the driveway entrance into the current gravel parking area, to the extent it appears over the back rear corner of the Respondents’ property as shown on the May 28, 2021 survey, was in place when the Morrisons lived at the Property. Rather, it appears to have happened in more recent years since the Applicants have owned the Property. [ 78 ] As the Applicants have access to their property by way of the driveway, there is nothing preventing them from making a gravel parking area solely on their own property, including a turning point to access same. There is no need for them to encroach on the Respondents’ property to do this. [ 79 ] I find that the evidence does not establish that any portion of the Respondents’ property was possessed by the Applicants’ predecessors in title with respect to a gravel parking or lawn area in front of the Applicants’ home. In the result, the test for adverse possession has not been satisfied. [ 80 ] The Applicants’ claim for adverse possession of the gravel parking and lawn area in front of their home, that encroaches on the Respondents’ property, is dismissed. DISPOSITION [ 81 ] Based on the foregoing, I order as follows: (a) that the Applicants’ property, municipally located at 58 Garner Road West and bearing PIN 17412-0022, has an easement of vehicular ingress and egress over the area within the marked thatched lines and indicated to be the Gravel Driveway on the survey prepared by West & Ruuska Ltd., dated May 28, 2021, and including that portion of the Respondents’ property, municipally located at 56 Garner Road West and bearing PIN 17412-0023, contained within the thatched lines beginning northwest from the tip of the arrow marked with an “0.8” and running parallel with the Gravel Driveway to the back of the Respondents’ property and ending at the tip of the arrow marked with an “0.64”; (b) that the Respondents shall not interfere with or obstruct the Applicants’ use of the above-described easement; (c) that the Respondents shall remove any items that may interfere with or obstruct the Applicants’ use of the above-described easement that are already in place; (d) that the Land Registrar for Hamilton Wentworth shall amend the title and legal descriptions of the subject properties to reflect the above-described easement; (e) that, if the above-described easement is not sufficiently clear, the Applicants may obtain a survey to better define same, and the Land Registrar for Hamilton Wentworth shall accept such survey as a schedule to the instruments defining the easement; and, (f) that the parties may request an appointment before me in the event there is an impasse implementing any of this Order, including if the Land Registrar for Hamilton Wentworth requires different wording. COSTS [ 82 ] I would urge the parties to agree on costs. If they are unable to do so, then costs submissions may be made as follows and submitted to the Sopinka Judicial Assistants to my attention: (a) By April 23, 2025, the Applicants shall serve and file their written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and (b) The Respondents shall serve and file their responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, by May 7, 2025; and (c) The Applicants’ reply submissions, if any, are to be served and filed by May 14, 2025 and are not to exceed two pages. (d) If no submissions are received by May 14, 2025, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me. [ 83 ] If the parties are able to settle the question of costs or if a party does not intend to deliver submissions, counsel are requested to advise the court accordingly. __________________________ MacNEIL J. Released: April 2, 2025