Superior Court of Justice – Ontario

Court File No.: CV-22-00000061-0000
Date: 2025-02-03

Between:
Vatcho Kelian, Applicant
and
Paul Eldred Trafford, Respondent

Before: Spencer Nicholson
Applicant Counsel: Self-represented
Respondent Counsel: J. Burns
Heard: 2024-09-18

Reasons for Decision

Introduction

[1] The Applicant, Vatcho Kelian, and the Respondent, Paul Trafford, are adjacent neighbours in the town of Gorrie, Ontario.

[2] Mr. Kelian’s septic system is located underneath Mr. Trafford’s property. That septic system has reached the end of its working life and has been permanently decommissioned. Mr. Kelian seeks an order requiring Mr. Trafford to permit him to replace the septic system with a new one with greater capacity on Mr. Trafford’s lands.

[3] Mr. Trafford opposes.

[4] This case accordingly involves easements and adjoining property rights.

[5] I note that Mr. Kelian is self-represented. His Application material is difficult to understand, as exhibits and his statements are interspersed throughout his affidavit, as opposed to having the exhibits all appear at the end of the affidavit. Mr. Kelian was cross-examined on his affidavit, and I have considered that evidence.

Background

[6] Mr. Kelian is the registered owner of 2051 Victoria Street (Lot 10). He first acquired that property on April 10, 1975. There are three residential buildings situated on this property. One of them is a single-family residence occupied by the Applicant and his spouse. The second is a two-bedroom apartment occupied by a tenant. The third building is a multi-unit rental property with two two-bedroom apartments which are occupied by tenants.

[7] At least one of these buildings would be serviced by the septic system located on Mr. Trafford’s property.

[8] Mr. Trafford now owns 2053 Victoria Street (Lot 9 and Part Lot 8) and purchased his property on April 1, 2010, from David and Patricia Booth. When he purchased the property, Ms. Booth provided a Solemn Declaration warranting that there was no easement affecting the land except as provided in the Land Registry Office. She also indicated that her possession and occupation of the property has been undisturbed by any action, suit or other proceedings, or adverse possession on the part of any person.

[9] Since Mr. Trafford’s purchase of the property, he and Mr. Kelian have had a contentious relationship. In November of 2013, Mr. Trafford served Mr. Kelian with a Notice of Trespass. Mr. Kelian accuses Mr. Trafford of sabotaging the septic system. Mr. Trafford refutes having done so. There has been police involvement. There have been complaints lodged with the Township.

[10] The septic system in question has existed in its current location since at least the time that the Applicant acquired 2051 Victoria Street. Mr. Kelian purchased the property from the Estate of James Finlay in 1975. Mr. Kelian transferred the property to his mother, Yeghsapeth Kelian (“Yeghsapeth”) on October 6, 1989. Mr. Kelian was going through matrimonial proceedings with his then current spouse. Yeghsapeth transferred the property back to Mr. Kelian on January 31, 2003. It is the Respondent’s position that Mr. Kelian continued to be the beneficial owner throughout that time period, despite the transfer of legal title. Mr. Kelian lived at the property throughout this period of time.

[11] 2053 Victoria Street was owned by David and Patricia Booth during this period of time. The Booths had acquired 2053 Victoria Street on October 1, 1986.

[12] I note that the properties were converted to the Land Titles Act on August 23, 1999.

[13] There are historical documents produced in this application. There is a written agreement between the Corporation of the Township of Howick, and Harold King, dated August 7, 1962. This pertains to the septic system on what is now the Trafford property (Lot 9). This written agreement does not confer any rights upon the owners of Lot 10. It states:

“An Agreement between The Corporation of the Township of Howick owner of the north half of lot 9 Victoria Street, Gorrie, and Harold King, owner of the south half of lot 9 Victoria Street, Gorrie, in the Township of Howick.

We the Corporation of the Township of Howick agree to give Harold King permission to place a septic tank on the south boundary of our property (North half lot 9, Victoria Street, Gorrie).

I, Harold King agree to give the Township of Howick permission to have use of septic tank placed by me on the boundary between South half lot 9 and north half lot 9 in the Village of Gorrie at any future date they may wish to do so.”

[14] There is also a “Schedule” that has been produced in the Applicant’s material, although it is not clear to me where this document has come from. It is located within Mr. Kelian’s affidavit sandwiched between two pages of the Indenture which transferred Lot 10 from the Estate of James Finlay to Mr. Kelian in 1975. The Schedule describes as follows:

“6.(b) Other

The transferor acknowledges that there is an existing easement for the purpose of the transferee’s septic system which has been acquired by the operation of the Limitations Act of Ontario. In consideration of the mutual covenants herein, the transferor grants to the transferee, her heirs, successors and assigns, an easement and rights as follows:

1. To enter, maintain, inspect and repair on the lands herein described a septic system similar in size and design to the existing system suitable for the existing single-family residence.

2. The transferee agrees to give to the transferor not less than forty-eight (48) hours notice of intention to enter onto the property for the purpose of the easement;

3. For the servants, agents, contractors and workers of the transferee to enter with machinery, material vehicles and equipment necessary for the use of the easement.

4. The transferee covenants, to fill in all excavations, to re-sod or provide top soil and re-seed and as far as is practicable to restore the surface of the transferor’s land whether forming part of the easement or otherwise to the same condition as prior to the commencement of any work at her own expense.

5. The transferee agrees to be responsible for any damage to the transferor’s septic system occasioned by her equipment crossing over the transferor’s septic system while the transferee is exercising the right of easement.

6. If the transferee’s septic system is replaced with a holding tank or with a system occupying or requiring more land than the present septic system then this easement shall terminate.

7. Any work to be done on the septic system shall conform to the standards of the local health Authority and shall be pursuant to a permit from such authority if the same is required and a copy of such permit shall be provided to the transferor, a minimum of seven (7) days before any work commences.”

[15] This Schedule has no context and is undated and unsigned. It may have been a draft. It was not registered on title. It does not appear to be between Mr. Kelian and Mr. Finlay’s estate, so I do not understand why Mr. Kelian has included the Schedule in his affidavit in the location that it is found. The “transferee” is quite clearly female. The only other females described in the historical progression of ownership of either property are Mrs. Ruth King, who was married to Harold King, Yeghsapeth Kelian and Patricia Booth. Mrs. King and Mrs. Booth were predecessors in title to the Trafford property and thus would have been the “transferor” not the transferee. The transferor would have been someone residing on what is now the Trafford property. I cannot even be assured from the evidence that this document relates to the properties in question. Without some explanation, the Schedule is not particularly helpful.

[16] It is quite possible, but unclear, that the “transferee” is Yeghsapeth, and this Schedule was meant to be done between her and the Booths as part of the Minutes of Settlement described below. I cannot be sure.

[17] The Application Record also includes the parcel registers for Lots 8, 9 and 10. Mr. Kelian’s property is Lot 10. Mr. Trafford’s property is Lot 9. Nothing about the notations appears to suggest an easement between Lots 9 and 10. The Booths did appear to have a right of way over part 2 of Lot 8.

[18] In 1995, the septic system required repairs and maintenance, sparking a dispute between Yeghsapeth and the Booths, who denied access to their property for that purpose. On December 5, 1995, Yeghsapeth commenced an application in Superior Court against the Booths in respect of the septic system. It was Patricia Booth’s position, as gleaned by her affidavit filed in that application dated February 1996, that Yeghsapeth’s use and maintenance of the septic system located on her property was done with her express consent since their purchase of the property on October 1, 1986. For example, Ms. Booth states “In order to be neighbourly we permitted {Mr. Kelian} to empty the tank.” She also states “We have, however, from time to time consented to {Mr. Kelian’s} entry upon the lands owned by my husband and I to make repairs to his mother’s building provided he asks first if it is convenient to us. We have not allowed him to enter upon the lands at will nor without our consent.”

[19] Yeghsapeth and the Booths reached a settlement and signed Minutes of Settlement on March 25, 1997. I note that Yeghsapeth is the “Applicant” described in the Minutes, and the Booths the “Respondent.” In the Minutes of Settlement, the Booths “granted an easement” to Yeghsapeth “over that portion of Lot 9, Plan 276, Village of Gorrie, County of Huron which is occupied by the Applicant’s present septic system, such easement to contain the following terms:

(a) The easement is to allow the continued occupation of the Applicant’s present septic system and is to allow the Applicant access from time to time over the easement to effect repairs to that system.

(b) The Applicant is to give the Respondent forty-eight (48) hours notice of entry upon the easement for the purpose of effecting repairs required.

(c) The Applicant shall be responsible at her own expense to repair forthwith any damage to the Respondent’s land, whether part of the easement or otherwise, occasioned by her septic system or any work upon such system. In effecting such repairs, the Applicant shall re-sod or provide top soil and re-seed any areas damaged and shall return the lands to the same state that they were in prior to work commencing.

(d) The Applicant may replace her present septic system with a new system of similar capacity in the same position suitable for the existing single-family residence. A copy of such permit shall be provided to the Respondent’s a minimum of seven (7) days before any work commences.

(e) In the event that any equipment used in repairing or replacing the Applicant’s present septic system shall cross over the Respondent’s septic bed, the Applicant shall be responsible for the cost of repairing any failure of the Respondent’s septic bed which occurs within six (6) months of the crossing.

(f) If the Applicant’s present septic system needs to be replaced by a system occupying or requiring more land than that occupied by her present septic system or by a system requiring more frequent access to it than the present septic system (i.e., a holding tank), then this easement shall terminate.”

[20] The Minutes of Settlement also contemplated Yeghsapeth obtaining a survey to properly locate and describe the easement containing the “present septic system” which survey was to be paid for by her and done with seven days notice to the Booths.

[21] Mr. Kelian’s Application Record contains a “Transfer/Deed of Land” form prepared by Yeghsapeth’s counsel and signed by both of the Booths dated October 28, 1997, in which they appear to grant an easement in respect of part of the north half of Lot 9, Plan 276. I do not believe that this was ever registered as no survey was done.

[22] The Minutes of Settlement contain no language specifying that the rights or obligations undertaken and assumed by the parties run appurtenant to the land or are binding upon the parties’ heirs, assigns or successors in title.

[23] There are obvious similarities between the Minutes of Settlement and the Schedule. Again, I suspect that the Schedule relates to the settlement between Yeghsapeth and the Booths. I cannot conclude that it was signed by either side.

[24] Unfortunately, Yeghsapeth is now deceased and there is no evidence from her before the court.

[25] I note that Mr. Kelian believes that a judge “ruled in his favour” with respect to Yeghsapeth’s application. He described an attendance before a judge, suggesting that the judge endorsed that Yeghsapeth had the right to use the septic system beneath the Booths’ property due to the passage of time. He described that the court attendance took less than two minutes. However, there are no endorsements or orders from this alleged attendance produced, despite Mr. Kelian’s efforts to locate one. There are only the executed Minutes of Settlement, which would suggest that even if the judge did make comments, those comments were made to encourage the parties to resolve the issue. The existence of Minutes of Settlement refutes that there was ever a judicial decision but implies that the parties resolved the issue without judicial pronouncement. The reported length of the attendance belies a judicial decision being made. I can place no weight on these alleged judicial comments in the circumstances.

[26] I also note from Mr. Kelian’s cross-examination, it is clear that he was the “real” litigant in that court proceeding, and not his mother. For example, he described the judge saying that “I have the right for it and then the lawyers drew up this minute plan, minute settlement. And in the minute settlement my lawyer screwed up.”

[27] Mr. Kelian testified that in 2003, he wished to replace the existing tank with a 2000-gallon tank, but the Booths did not agree to such a large tank. A larger tank was never installed.

[28] In August of 2021, the septic system failed and is now in need of repairs. This resulted in pooling of waste and greywater in Mr. Trafford’s rear yard. Mr. Kelian accuses Mr. Trafford of sabotaging the system. Mr. Trafford denies that allegation.

[29] The responsible Ministry attended on August 4, 2021. Mr. Kelian was given a Notice of Violation because there was no Use Permit or environmental compliance approval obtained prior to maintaining the septic system. A Work Order to decommission the septic system was also issued.

[30] On September 3, 2021, a site survey was finally completed at Mr. Kelian’s request. The surveyors proposed that a holding tank sewage system be established on the “Site” which was defined as Mr. Kelian’s property. However, Mr. Kelian did not agree with this proposal and felt that the only acceptable option was to replace the existing septic system with a new septic system. However, the proposed new septic system (at least 1000 gallons) is substantially larger than the decommissioned system (600 gallons). It was accepted during arguments that there are no longer 600-gallon systems even available.

[31] On May 16, 2022, Mr. Kelian’s then counsel wrote to Mr. Trafford and indicated that Mr. Kelian was exercising his right of entry onto the property to conduct a survey pursuant to the Minutes of Settlement. Mr. Trafford refused to allow access.

[32] On August 22, 2022, the existing septic system was permanently and irreversibly decommissioned.

[33] Mr. Trafford deposed that he was not provided with a copy of the Minutes of Settlement from the 1995 proceedings until August of 2021. He deposes that prior to August of 2021, Mr. Kelian had never contacted him to request to maintain, service or repair the septic system. He does not believe that any such activity had occurred since the time he purchased the property.

Issues

[34] In determining the outcome of this Application, I propose to address three issues:

1. Does Mr. Kelian’s property have an easement with respect to the septic tank located on Mr. Trafford’s property?
2. If there is an easement, has it nonetheless come to an end?
3. Does Mr. Kelian have an easement as a result of the passage of time?

[35] I note that given the relief sought on this Application, I need not address the allegations of tampering levied by Mr. Kelian against Mr. Trafford. Whether or not those allegations are true does not impact whether there is an easement or prescriptive easement which gives Mr. Kelian the right to have a septic system on Mr. Trafford’s land.

1. Does Mr. Kelian’s property have an easement with respect to the septic tank located on Mr. Trafford’s property?

[36] In Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, the Ontario Court of Appeal distinguished between an easement and a licence to enter onto another’s land. At paras. 48-50, Gillese J.A. explained as follows:

[48] The right to do something on land belonging to another can be a licence or an easement. A right to walk over a path on another’s land is a good example of this. If I give you the right to walk along a path on my land so that you can reach the lake in front of it, that right may be a licence or an easement. In its simplest terms, it depends upon whether I gave you alone the right to walk along the path or whether I agreed that the right to walk along the path was to bind my land and benefit yours. The former is a personal right known as a licence. The latter is a proprietary right, known as an easement.

[49] Because a licence is a personal right, a licence would give only you the right to walk along the path on my property to reach the lake—that right would not extend to anyone else. Further that right is neither connected to the use of any lands which you might own nor does it amount to an estate or an interest in my land. The licence simply makes lawful that which would otherwise be trespass. Without the licence, the act of your entering on my land and walking along it to reach the lake would amount to trespass. Importantly, unless we agree otherwise, I may revoke, at will, the permission I gave you (i.e., the licence).

[50] But if the right that I granted was an easement—and not a mere licence—the situation is quite different. Because an easement is a proprietary right—not a personal one—the right to walk along the path on my land is not limited to you alone; it would attach to your land so that all those who lawfully occupy your land (present and future) would have the right to walk along the path on my land to the lake. It would also bind my land so that the owners of my land (present and future) would have to permit the lawful occupants of your land to walk along the path. Moreover, because an easement is a proprietary interest in or right over my land, while I retain absolute dominion over my property, my use of the land is subject to the limitations imposed by the easement.

[37] The Court described that there are four requisite characteristics of an easement, at para. 52, as follows:

1. There must be a dominant and a servient tenement;
2. The easement must accommodate the dominant tenement;
3. The owners of the dominant and servient tenements must be different persons; and
4. A right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

[38] In this case, it is uncontroversial that if there is an easement in this case, Mr. Kelian’s property would be the dominant tenement and Mr. Trafford’s property the servient tenement. The easement accommodates the dominant tenement by serving the buildings located on the Kelian property and is necessary for the better enjoyment of that land. Furthermore, the owners of the dominant and servient tenements are different persons.

[39] In Mihaylov, Gillese J.A. disagreed with the application judge that the original agreement from 1966 created an easement. Instead, it conferred a licence personally to the prior owner to enter onto the land of the other prior owner to complete any necessary repairs of the pipeline in question. I note that the 1968 agreement even used the word “Easement” to describe what the parties intended to create. That document was registered in the land registry office. However, Gillese J.A. held that the 1968 agreement was also a licence and not an easement. Again, any rights were conveyed personally, and did not run with the land.

[40] The Minutes of Settlement between Yeghsapeth and the Booths, on their own, fail to grant an easement, in my view. Here, the word “easement” is used. However, the use of the words “Applicant” and “Respondent” within the Minutes of Settlement, make the rights granted personal to Yeghsapeth (and I would hold Mr. Kelian) and the Booths. Again, nothing about the Minutes of Settlement suggest that the rights conferred attach to the properties, rather than to the persons.

[41] The Schedule, which I am cautious about, does include a provision that indicates that the transferee’s heirs, successors and assigns would benefit from the grant of easement. However, this Schedule clearly has more clauses in it since the portion that has been produced starts with clause 6. If it related to this settlement, the Schedule would afford more evidence that the parties intended to grant an easement. However, although I suspect it relates to the settlement, there is simply no context for this document and, I reiterate, it is not executed, initialled, dated and there is no specific connection to any specific person, or even the properties in question. For all I know, it is merely a precedent. I can put no weight on this document.

[42] However, I find that the Transfer/Deed document that the Booths signed on October 28, 1997, although never registered, provides considerable evidence that the Booths intended to grant an easement to Yeghsapeth.

[43] In other words, I am satisfied that had Yeghsapeth, and/or Mr. Kelian, obtained the survey following this settlement, a proper easement would have been created and registered on title. The parties had “agreed to agree.”

[44] Having not completed the survey, I do not agree that Mr. Kelian could force this agreement upon Mr. Trafford by giving him 7 days notice of a desire to enter upon his property to complete a survey as had been contemplated within the Minutes of Settlement. Neither of Mr. Kelian or Mr. Trafford were parties to the Minutes of Settlement, and the easement had not been finalized and as such, had not bound Mr. Trafford’s property.

[45] I come to that conclusion because of the fourth requisite feature of an easement as set out in Mihaylov. Gillese J.A. held that the fourth characteristic requires the court to consider the express terms of the grant to determine whether the rights purported to be given by the grant are too wide or vague.

[46] I am satisfied that a septic system on an adjacent property is capable of forming the subject matter of a grant. However, it is argued by the Respondent that absent the survey, the precise location and size of the septic system needs to be described within the grant to meet the fourth requirement for an easement. In accordance with the rationale in Mihaylov, I agree. The Minutes of Settlement did not specify the location of the septic tank, nor its current size. It did specifically contemplate that the easement would only be granted in respect of a septic system of “similar capacity.” Thus, the size of the septic system was a crucial aspect of the purported easement. Without the survey, which was entirely within the control of Yeghsapeth, and Mr. Kelian, to obtain, it would be impossible for future owners of either property to know what septic system would be of “similar capacity” and, in my view, the easement was not finalized.

[47] Unlike Mihaylov, where the agreement did not give the respondent the right to replace the existing pipeline, the Minutes of Settlement here did grant Yeghsapeth the right to replace the existing septic system in the same position. Therefore, the size and location of the septic system was an essential aspect of the agreement and needed to be documented by survey to meet the fourth characteristic of an easement. I conclude that the fourth characteristic required to constitute an easement is not established in this case. I find that there was no easement because neither Yeghsapeth nor Mr. Kelian took the necessary steps to obtain a survey in a timely fashion.

[48] That is not to say that the Booths could have reneged on their agreement with Yeghsapeth and prevented her from accessing the septic system while they lived there. She could enforce it as against them, in my view. However, it does mean that Mr. Trafford’s property is not bound by the settlement between Yeghsapeth and the Booths.

[49] Mr. Kelian relies upon Conkie v. Bugow, 2018 ONSC 4959 because in that case the claimant failed to register an easement but was nonetheless found to have an easement. However, in that case, the road in question was “there for all to see.” There could be no ambiguity in where it was located or its size. Here, the septic system, which could be replaced, needed to be clearly located by survey in order to complete the easement.

[50] I also note that this is a fair result as between the parties before me. It was Mr. Kelian’s responsibility, or his mother’s, to obtain a survey under the Minutes of Settlement and they have not satisfactorily explained their failure to do so for over 20 years. In his affidavit and factum, Mr. Kelian describes his failure to obtain a survey to register the easement as an administrative error. However, he had legal counsel. This was not a mere failure to file a document, it was a failure to obtain the necessary survey required to particularize the easement and thus create an easement.

[51] On the other hand, Mr. Trafford was specifically told by Mrs. Booth that the property was not subject to an easement when he purchased it “except as the record of the Land Registry Office discloses” (which was true). He acquired the property believing that to be the case.

[52] Given this conclusion, I need not address the Respondent’s arguments concerning s. 50(3) of the Planning Act.

2. If there is an easement, has it nonetheless come to an end?

[53] If I am in error with respect to whether the Minutes of Settlement on their own, or in conjunction with the signed Transfer/Deed, granted an easement in this case, I would nevertheless conclude that the easement had come to an end.

[54] An easement may be extinguished by operation of law. In Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443, at para. 65, it was described that an easement will be extinguished by operation of law where:

(a) The purpose for which it was created has come to an end;
(b) The period for which the easement was created terminates;
(c) The right is abused; or
(d) The same person comes to own the dominant and servient lands in fee simple.

[55] In Lywood v. Hunt, 97 O.R. (3d) 520 (Ont.Sup.Ct.) at para. 41, Lauwers J. (as he then was) quoted from Halsbury’s Laws of England, 4th ed., vol. 14, (London: Butterworths, 1980) at 26, para. 54, stating:

The nature and extent of an easement created by express grant primarily depends upon the wording of the instrument. In construing the grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances.

[56] In Mihaylov, at para. 111, Gillese J.A. stated “…[t]he limits of the right are determined by reference to the language of the express grant creating the right: [page 423] Golisky v. Romanuik, [1951] O.J. No.564, [1951] 2 D.L.R. 475 (C.A.), at para. 6. The interpretation of a written agreement must be grounded in the text and read in light of the entire document (Sattva, at para. 57).”

[57] In this case, it is clear from the Minutes of Settlement, and the Schedule if it were part of the agreement, that if there is an easement, it has now terminated. Paragraph (f) of the Minutes of Settlement provides as follows:

“(f) If the Applicant’s present septic system needs to be replaced by a system occupying or requiring more land than that occupied by her present septic system or by a system requiring more frequent access to it than the present septic system (i.e., a holding tank), then this easement shall terminate.”

[58] Paragraph 6 of the Schedule provides:

“6. If the transferee’s septic system is replaced with a holding tank or with a system occupying or requiring more land than the present septic system than this easement shall terminate”

[59] On Mr. Kelian’s own evidence, by 2003 he recognized that the 600-gallon septic system needed to be replaced by a larger septic system—2000 gallons. He indicated that in 2021, he was looking at a 1000-gallon replacement. It is noteworthy that, as he testified in cross-examination, the Booths refused to agree to the larger tank. That is because the easement did not obligate them to do so.

[60] Given that the 600-gallon tank has been decommissioned and that there are no longer 600-gallon tanks available according to Mr. Kelian, if there was an easement, it has terminated by its own terms. A larger tank takes up more of the servient lands, whether above or below ground. This accords with the bargain reached between Yeghsapeth (for whom Mr. Kelian was acting) and the Booths.

3. Does Mr. Kelian have an easement as a result of the passage of time?

[61] The passage of time can create a prescriptive easement. Under s. 31 of the Real Property Limitation Act, there is a 20-year period or a 40-year period for the creation of prescriptive easements. The statute provides that the period of alleged prescriptive use must be the period immediately before the commencement of an action.

[62] In Lynwood, supra, Lauwers J., discussed prescriptive easements, at para. 47. He noted that in order to establish a right-of-way by prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open and peaceful use of the land for a period of 20 years. In addition, if the use of the property is with the permission of the owner, the use cannot create a prescriptive easement.

[63] The doctrine of lost modern grant was discussed in Henderson v. Volk. The doctrine indicates that where there has been upwards of 20 years uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfill the requirements of prescription, the law will adopt the legal fiction that such a grant was made despite the absence of any direct evidence that it was in fact made. The nature of the enjoyment necessary to establish an easement under this doctrine is exactly the same as that required to establish an easement by prescription. The claimant must demonstrate a use and enjoyment of the right of way under a claim of right which has been continuous, uninterrupted, open and peaceful for a period of 20 years. However, it does not have to be the 20 years immediately preceding the bringing of an action.

[64] Importantly, the enjoyment must not be permissive. If a user enjoyed the right of way from time to time at the will and pleasure of the owner of the property over which the easement is sought, the doctrine does not apply (see also: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91). The claimant’s use of the land must be “as of right” or “as if they were entitled to it” (see: Carpenter v. Doull-MacDonald, 2017 ONSC 7560, at paras. 43-46).

[65] Furthermore, the owner of the dominant tenement may not substantially increase or alter the burden on the servient tenant.

[66] As noted in Henderson, the court should exercise caution before finding that a prescriptive easement has been established because to do so subjects the servient property’s owner to a burden without compensation (see also: Carpenter v. Doull-MacDonald, 2018 ONCA 521). The onus of proof is upon Mr. Kelian.

[67] The properties owned by Mr. Kelian and Mr. Trafford were registered under the Land Titles Act on August 23, 1999. When that conversion occurred, “an unripe claim for adverse possession or for prescriptive rights will never ripen” (Carpenter v. Doull-MacDonald, 2017 ONSC 7560 at para. 54). The registration of lands under the Land Titles Act will interrupt the running of the 20-year period immediately preceding any action.

[68] Thus, was there a 20-year period of continuous, uninterrupted, open and peaceful use from 1979 to August 23, 1999? The affidavit of Patricia Booth makes it clear that it was her position that she and her husband permitted the Kelians access to their property, as well as ordered Mr. Kelian to stay off their property during their ownership of the land. Indeed, the Minutes of Settlement evince the Booths’ consent to him entering upon their lands. Importantly, the affidavit indicates that it has been since 1988 that Mr. Kelian has requested permission to enter upon their lands to dig up the septic system. Mrs. Booth deposed as follows:

“2. Two years after purchasing the lands my husband and I were approached by Mr. Vatcho Kelian about allowing him to empty his septic tank which was located upon the lands owned by my husband and I. This was the first time that we became aware that Mr. Kelian’s septic tank was located upon our property. In order to be neighbourly we permitted him to empty the tank.

3. Since 1988, Mr. Kelian has had problems with his septic system virtually every summer and has requested permission to enter onto my and my husband’s lands to dig up the system and make repairs on almost a yearly basis. This has consistently interfered with my and my husband’s use and enjoyment of our property.”

[69] Nowhere in the Minutes of Settlement is it acknowledged by the Booths that the Kelians had satisfied the 20-year period to have acquired a prescriptive easement. Rather, the Minutes of Settlement speak of the Booths granting an easement, suggesting that they did not acknowledge that an easement was already present.

[70] Accordingly, I find that Mr. Kelian has not established entitlement to a prescriptive easement under the Real Property Limitation Act. His attendance on the Booth’s property during that period of time was with their permission, and at his request for permission. It was not “as of right”.

[71] I am not satisfied that Mr. Kelian has met his onus under the doctrine of lost modern grants. From Mrs. Booth’s affidavit, Mr. Kelian will have to go back to at least 1968 to establish a 20-year period in which his use of the property was continuous, uninterrupted, open and peaceful use. He can rely upon his predecessor’s use as well.

[72] From the agreement between the Township and Mr. King, we know that the septic system was placed upon Lot 9 (the Trafford property) sometime after 1962. Mr. Kelian only acquired his property in 1975. I have no evidence of whether his predecessor in title, Mr. Finlay, was using or relying upon the septic system on Lot 9, and if so, under what arrangements with Mr. King. If that use was with the consent of Mr. King, or his successors in title, then Mr. Finlay was not using the septic system “as of right.”

[73] Mr. Kelian’s affidavit only states that at the time he purchased his property in 1975 it had two homes constructed on it, each with a septic system servicing it. This included the system on Mr. Trafford’s property. He states that he “presumes that the septic system was constructed by Mr. Finlay given that he owned My Property from as early as 1946”. Respectfully, that does not shed any light on what arrangements, if any, were in place between Mr. Finlay and the owner of Lot 9 in respect of the septic system. In fact, his assumption is inconsistent with the agreement between the Township and Mr. King, which suggests that Mr. King built the septic system.

[74] I conclude that this is not a clear case in which Mr. Trafford should be deprived of his property without compensation. Mr. Kelian has not established that he has acquired an easement by way of lost modern grant.

Disposition

[75] I am not unsympathetic to Mr. Kelian’s plight. However, he had an opportunity to obtain a survey when he settled his mother’s application with the Booths. On the other hand, Mr. Trafford was an innocent purchaser of the Booth property, specifically told that his property was not subject to any easements. Furthermore, although it may not be an attractive remedy, Mr. Kelian can place a holding tank upon his property according to the experts involved. In my view, he has not established that he is entitled to encroach upon Mr. Trafford’s property without his express agreement.

[76] For those Reasons, I find that Mr. Kelian’s Application for an easement in respect of Mr. Trafford’s property must fail. I find that I need not address any of Mr. Trafford’s alternative arguments.

[77] Further, it is clear to me that the rights conferred by the Minutes of Settlement have terminated by their express terms. Furthermore, given the terms of the Minutes of Settlement, I find Mr. Kelian is responsible for the costs of removing the existing septic system. Mr. Trafford is to cooperate with the removal of the septic system.

[78] If the parties are unable to agree on the costs of this Application, the Respondent may serve and file submissions in writing through the Goderich trial coordinator by no later than February 21, 2025. The submissions are to be no longer than three pages in length double-spaced. Any offers to settle or bill of costs should be appended.

[79] The Applicant shall have until March 3, 2025, to serve and file responding written costs submissions within the same parameters, through the Goderich trial coordinator.

“Spencer Nicholson”
Date: 2025-02-03