CITATION: LeVan v. Hatton-Bauer, 2026 ONSC 1596

COURT FILE NO.: CV-25-00000128-0000

DATE: 2026-04-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

William Ryerson LeVan and Joan Elaine LeVan

Applicants

– and –

Jane Hatton-Bauer

Respondent

Jonathan Miller, counsel for the Applicants

Amber Bonnell, counsel for the Respondent

HEARD: January 13, 2026

the honourable JUSTICE r. b. REID

REASONS FOR JUDGMENT

1By application dated February 3, 2025, William and Joan LeVan (“the LeVans”) seek a declaration that the property of the respondent, Jane Hatton-Bauer (“Ms. Hatton-Bauer”) known municipally as 1201 Ferndale Road, #1, Port Carling, Ontario, is subject to a prescriptive easement in favour of the LeVans as owners of the property known municipally as 1210 Ferndale Road, #3, Port Carling, Ontario, as well as a declaration as to their use of the easement and a prohibition on its obstruction.

2In a related application dated June 20, 2024, Ms. Hatton-Bauer seeks a declaration that the LeVans have no right to use her property as to any non-registered easement and prohibiting trespass by the LeVans. She also seeks an order for the removal of chattels and restoration of any changes made to her property through their trespass. Her claim for damages for trespass including costs of remediation was not pursued at the hearing.

3I made an order dated February 13, 2025, consolidating the two applications pursuant to which the LeVans are the applicants and Ms. Hatton-Bauer is the respondent.

4For the following reasons, I find that a prescriptive easement has been established over the pathway, subject to its dimensions and location as existed on September 17, 2007. Accordingly, the LeVans and their invitees are entitled to traverse the pathway. There also will be an order that the LeVans remove at their own expense any unauthorized alterations made to the Hatton-Bauer property outside the limits of the prescriptive easement as defined, and any chattels that have been placed on it without authorization.

Introduction:

5The parties own adjacent cottage properties on the shore of Lake Rosseau. The Hatton-Bauer parcel includes a right-of-way in favour of the LeVan parcel to permit access from the public roadway.

6The dispute concerns the right to use a footpath (the “pathway”) over the Hatton-Bauer property that runs from the right-of-way to an area on the LeVan property referred to as the “Plateau”. The LeVans assert that they have established a prescriptive easement over the pathway.

Facts:

Property Ownership:

7From 1952, the LeVan and Hatton-Bauer properties were one parcel, owned by Bauer Holdings Limited, which in turn was controlled by Roy and Louise Bauer, the grandparents of Ms. LeVan.

8On December 31, 1971, the single parcel was transferred to the sons of Roy and Louise Bauer: Donald Bauer (the father of Ms. LeVan) and Gerald Bauer (the uncle of Ms. Hatton-Bauer's late husband) as tenants in common.

9On January 17, 1974, a severance of the single parcel was registered. What is now the LeVan property was transferred to Donald Bauer, and the Hatton-Bauer property was transferred to Gerald Bauer.

10On severance, the registered description of the LeVan property included a right of way across the Hatton-Bauer property “at all times and for all purposes, for all persons, animals and vehicles”. It was shown as Part 3 on Reference Plan No. 35R-2442. That right of way permits access to the LeVan property from the municipal roadway. Otherwise, the LeVan property had no road access.

11Ms. Hatton-Bauer acquired the property from Gerald Bauer in September 1985 and has owned it either solely or with her late husband since that date.

12The LeVans acquired their property on October 5, 2017, from Donald Bauer.

13Both the LeVan and Hatton-Bauer properties were converted from the Registry system to the Land Titles system on September 17, 2007.

Access to the “Plateau”:

14An elevated portion of the LeVan property located beside and about 20 feet above the LeVan cottage is known for the purposes of this application as the “Plateau”. It is surrounded by steep, rocky embankments, except from the direction of the Hatton-Bauer property.

15In about 1970, before the two parcels were severed, a cottage was constructed on what is now the LeVan property, serviced by a septic system and tile bed installed on the Plateau.

16According to the LeVans, the Plateau was also a place of open storage for building materials, firewood, and other items used to maintain the LeVan property over the years.

17The sole point of access to the Plateau was by the pathway, which began from the registered right of way beside a carport on the Hatton-Bauer property. The carport was removed by Ms. Hatton-Bauer and her spouse in 2010 in preparation for the construction of a three-car garage, which was never built.

18Ms. LeVan deposed that in or around 1983, her father (who owned the LeVan property at the time) purchased an ATV to help transport items, materials, and junk to and from the cottage to the Plateau via the pathway.

19In the early 2000s, Ms. LeVan’s father repaired the septic bed on the Plateau.

20In or around 2018, the LeVans replaced the septic bed and installed a new electrical box and propane tank on the Plateau.

21Ms. LeVan estimates the length of the pathway from the registered right of way to the LeVan property boundary to be about 30 feet. A surveyor’s sketch dated May 15, 2024, filed as Exhibit B to the affidavit of Ms. LeVan, shows the pathway to be between 54 and 61 feet long. She deposed that the pathway was about 4 feet wide “when she was young”. She is now 64 years old. The widening of the path was made possible in part by the removal of the carport, to a width which Ms. LeVan estimates was about 8 feet in 2018 and 10 feet at the present time. The 10-foot estimate coincides with a 2024 surveyor’s sketch.

22Beginning in the summer of 2021, Ms. Hatton-Bauer’s spouse (Ms. LeVan’s brother) became ill. He died in June 2022. Ms. Hatton-Bauer only attended at her property occasionally after her spouse’s illness and death. She observed in June 2023 that the pathway had been expanded and then raised an objection to the LeVans’ use of the pathway.

Elements required to establish a prescriptive easement:

23An easement by prescription may be established under s. 31 of the Real Property Limitations Act, R.S.O 1990, c. L.15 (the “Act”), or by the doctrine of lost modern grant. Under either method, the same four elements must be proven: Hunsinger v. Carter, 2018 ONCA 656, at para. 9.

24To establish an easement by prescription, the LeVans bear the onus of proving that:

a. there is a dominant and a servient tenement, with the owner of the dominant tenement enjoying the benefit of the easement and the owner of the servient tenement suffering some use of his/her land;

b. the dominant and servient owners are different persons;

c. the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and

d. there has been at least 20 years continuous uninterrupted, open, and peaceful use enjoyed by the owner of the dominant tenement without obtaining permission of the owner of the servient tenement, who must have acquiesced to the use, and the acquiescence must have been more than good neighbourliness: Hunsinger, at para. 9; Kubiniec v. Dy, 2025 ONCA 113, at para. 6.

25Once a property has been registered under the Land Titles system, the establishment of a new prescriptive easement is not possible. In this case, it is acknowledged that the period after the Land Titles registration on September 17, 2007 cannot be used to support the LeVans’ claim.

26A pre-existing prescriptive easement over the land can be established if the four elements are proven to have been met before the land was transferred into the Land Titles system: Hunsinger, at para. 10.

27In this case, the establishment of a prescriptive easement by statute is not available to the LeVans. Under s. 31 of the Act, the period of use must be for the 20 or 40 years immediately preceding the application: Kaminskas v. Storm, 2009 ONCA 318, 95 O.R. (3d) 387, at para. 31. Therefore, the LeVans must use the doctrine of lost modern grant to establish their claim.

28The policy underlying the elements required to establish a prescriptive easement were articulated by this court in Carpenter v. Doull-MacDonald, 2017 ONSC 7560, at paras. 51-52:

51The threshold for meeting the criteria for establishing a prescriptive easement under the Limitations Act or by lost modern grant is high, and courts are hesitant to recognize an easement by prescription because doing so would permit a landowner’s neighbourly accommodation of sufferance to ripen into a legal burden on his or her lands without compensations. Use permitted by neighbourliness and enjoyed on that basis is insufficient to establish an easement by prescription.

52Courts proceed with caution before finding that a landowner’s ownership interest has been diminished or lost by prescriptive right or by the doctrine of lost modern grant. In 1043 Bloor Inc. v. 1714104 Ontario Inc. [2013 ONCA 91], Justice Laskin described the legal policy decisions associated with the recognition of a prescriptive easement; he stated:

103. One obvious consideration is that awarding an easement by prescription burdens the servient owner's land without compensation. This policy consideration suggests that courts should tread cautiously before concluding that a dominant owner has acquired an easement by prescription.

104. A second policy consideration is the one referred to by Cory J.A. in Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 at p. 384 O.R.: "Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor." This consideration, too, argues for caution before making a finding that a prescriptive easement by lost modern grant has been acquired.

105. A third consideration, however, is that the courts ought reasonably to 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. [Footnotes omitted.]

Discussion:

(a) Was there a dominant and servient tenement?

29There is no dispute that the LeVans have satisfied the first requirement: their property is the dominant tenement as regards the pathway, and Ms. Hatton-Bauer’s property is the servient tenement.

(b) Were the dominant and servient tenements owned by different persons?

30Until January 17, 1974, the unsevered parcel was owned as tenants in common by Donald and Gerald Bauer. No prescriptive easement can be established up to that date for lack of separate ownership. However, separate ownership is satisfied from the date that the single parcel was severed into two and transferred to Donald and Gerald Bauer individually.

(c) Was the benefit of the easement reasonably necessary for the enjoyment of the dominant tenement?

31It is not disputed that the septic system and tile bed which service the LeVan premises was installed on the Plateau in about 1970. It was then repaired in the early 2000s. The undisputed evidence is that the only way the Plateau could have been accessed for the installation and repair of the septic system and bed, was by use of the pathway.

32Ms. LeVan and her brother, Jason Bauer, deposed that the Plateau was also used by their father, Donald Bauer, and then by the LeVans for general storage and utility purposes: to split wood, as well as to store firewood, building materials, equipment and supplies. The pathway was the access route for carrying out those activities on the Plateau. Those uses were for the benefit of the dominant tenement. Their evidence is convincing based on the accounts of their attendances and observations at the property for over five decades and their personal participation in some of the activities described.

33Ms. Hatton-Bauer has owned her property, either solely or with her late husband, since September 1985. She does not dispute the LeVans’ stated reasons for accessing the Plateau in the period before September 2007.

34As affirmed by the Ontario Court of Appeal in Barbour v. Bailey, 2016 ONCA 98, at para. 57, “[W]hat is ‘reasonably necessary’ will depend on the nature of the property and the purpose of the easement.”

35The reasonable necessity requirement is fact-specific and must be applied flexibly. The court in Barbour continued, at para. 58, to cite examples of uses found to be reasonably necessary which typically involved very practical purposes such as parking spaces or driveways.

36Based on the evidence to which I have referred, I find that during the period between January 17, 1974 and September 17, 2007, using the pathway to access the Plateau was reasonably necessary for the LeVans enjoyment of the property because it facilitated the installation and maintenance of the septic system, and the other purposes including storing materials.

(d) Were there 20 years of continuous, uninterrupted, open, and peaceful use enjoyed by the dominant tenement owner without obtaining permission of the servient tenement owner?

37As set out above, the two properties became separately owned as of January 17, 1974. The date of Land Titles conversion, September 17, 2007, is the latest date that the prescriptive easement can be established. Therefore, the available period for establishing a prescriptive easement (the “prescriptive period”) is between January 17, 1974 and September 17, 2007.

38The onus of proof of the requisite period of use is on the owner of the dominant tenement, in this case, the LeVans: Carpenter, at para. 50 They must also establish acquiescence to such use. Thereafter, the burden shifts to the servient tenement to rebut the inference of acquiescence by providing direct or inferential evidence of permission or, alternatively, evidence that the dominant tenement’s actions were known to, and accepted by, the servient tenement out of neighbourliness: Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, at para. 23.

39The LeVans provided evidence of continued use of the pathway during the prescriptive period. For decades before September 2007, the pathway was used to access the Plateau by the owners of the LeVan property and their invitees. The uses were said to be continuous, uninterrupted, open, and peaceful, in the context of a seasonal property. I accept the evidence of Ms. LeVan and her brother, Jason Bauer, as to what they personally did and observed in the years prior to September 2007 which supports the use of the pathway by Donald Bauer and his invitees.

40Ms. Hatton-Bauer did not provide evidence disputing the LeVans’ evidence as to use of the pathway. She relied on Reference Plan No. 35R-2442 made prior to registration of the severance in 1974, which did not mention the pathway. However, the terms of reference for the surveyors who prepared the Reference Plan are unknown, so little can be drawn from the absence of any reference to the pathway shown on the Reference Plan.

41There was no evidence of any positive act of permission for use of the pathway during the prescriptive period when Donald and Gerald Bauer owned the properties. In addition, Ms. Hatton-Bauer specifically denied giving permission during the relevant years of her ownership.

42I find, however, that there was implicit permission or acquiescence based on good neighborliness by Gerald Bauer in the use of the pathway by Donald Bauer and his invitees during his period of ownership between 1974 and 1985.

43Ms. Hatton-Bauer relied on the declaration of possession given by Gerald Bauer at the time of her purchase in 1985, which stated in part that he had been in “actual, peaceable, continuous, exclusive, open, undisturbed and undisputed possession and occupation of the lands and premises from January 17, 1974”, and that he knew of no one having a claim or interest in the lands adverse to his title, and that no such claims or interests ever existed. The document referred to the registered right of way as an exception to the general denial of any adverse claims. The failure to mention the pathway is an indication that Gerald Bauer did not consider its use to be an issue. Put another way, it reasonably can be inferred that Gerald Bauer permitted the casual use that was being made of the pathway when the two brothers owned the properties. Permission is fatal to a claim for a prescriptive easement. An alternate inference to be drawn from the failure to mention the pathway in the declaration of possession is that the use was simply an indication that the brothers (whose parents had owned the undivided parcel before them) continued to enjoy joint family use, that is, that the acquiescence of Gerald Bauer was a sign of good neighbourliness on his part toward his brother, regardless of where the property line had been drawn.

44As noted in Carpenter, the threshold for meeting the criteria for establishing a prescriptive easement by lost modern grant is high.

45I need not choose between the two plausible explanations for Gerald Bauer’s declaration. Either one is fatal to the claim for a prescriptive easement during that time. The alternate explanation, that Gerald Bauer simply let the use occur as of right by acquiescence such that a prescriptive easement could be established, defies logic and is inconsistent with his sworn statutory declaration. Therefore, I conclude that the fourth necessary element to establish a prescriptive easement during the time of Gerald Bauer’s ownership after severance has not been satisfied.

46However, even excluding the first 11 years and 9 months from the prescriptive period, there remains the 22 years of Ms. Hatton-Bauer’s tenure (from 1985 to 2007) to consider.

47I need not repeat my reasons for concluding that the uses by Donald Bauer and his invitees of the pathway were continuous, uninterrupted, open, and peaceful, and that there was no evidence of direct permission given for the use. The focus then, is on acquiescence.

48As noted by the Ontario Court of Appeal in Barbour, at para. 62, to establish a prescriptive easement, the owner of the servient tenement must have acquiesced to the use, and the acquiescence must have been more than good neighbourliness. The court went on to state that, “[i]n those instances where the owner of the servient tenement can readily be taken to know of the notorious use of his property, if he makes no objection, then his acquiescence to that use, sufficient to establish a prescriptive title, can readily be inferred.”

49In this case, the entrance to the pathway is in full view from the doorway to the Hatton-Bauer cottage. Prior to the removal of the Hatton-Bauer carport in 2010, its entrance was directly beside the carport and as such not only visible from the cottage but immediately adjacent to the place used by the Hatton-Bauers for vehicular parking. It is not reasonable to infer that the use of the pathway over the years was unknown to Ms. Hatton-Bauer and her late spouse. Acquiescence clearly occurred for over 20 years prior to September 17, 2007, during the tenure of Ms. Hatton-Bauer.

50As noted, once acquiescence is established, the evidentiary burden shifts to the owner of the servient tenement to rebut the inference of acquiescenceby establishing that the use was either made with permission or that the acquiescence was a matter of neighbourliness: Condos and Castles Realty Inc., at para. 23. Ms. Hatton-Bauer denies ever giving permission to the LeVans to use the pathway.

51The issue is therefore whether the acquiescence occurred as an act of Ms. Hatton-Bauer’s “neighbourliness”.

52There appears to have been a continuation of the status quo as to use of the pathway by Donald Bauer after the sale to Ms. Hatton-Bauer in 1985, through to the end of the prescriptive period. By the time Donald Bauer acquired an ATV in or about 1983, the pathway was well-established as a regular access route to the Plateau, which in turn was used as an ancillary area to what is now the LeVan cottage.

53Unlike Gerald Bauer’s situation, there is no statutory declaration or other document from which Ms. Hatton-Bauer’s intentions can be inferred. The family connection in property ownership had been diluted: from brothers to uncle/nephew. They did not both own the properties together or as one parcel prior to severance. Perhaps of greatest importance is that Ms. Hatton-Bauer makes no suggestion that she was allowing the use of the pathway out of neighbourliness. In fact, she provides no evidence that she was even aware of the use being made of the pathway prior to 2007. As such, Ms. Hatton-Bauer has not rebutted the inference of acquiescence.

54Returning to the policies undergirding the reasons courts are cautious in establishing prescriptive easements, there does not seem to be any concern in this case about discouraging acts of kindness, since no such facts are alleged. It is true that confirming the existence of a prescriptive easement will result in a benefit to the LeVans’ property for which they have not paid. Alternatively, however, to deny an easement would be a failure to protect the reliance interest that the LeVans and their predecessor in title have enjoyed for many years.

55In summary, I find that the LeVans have established that there were more than 20 years of continuous, uninterrupted, open, and peaceful use enjoyed by the dominant tenement owner over the property of the servient tenement owner as to the pathway, without obtaining permission of the servient tenement owner, who acquiesced to the use.

Definition of the Prescriptive Easement

56Quite apart from the legal dispute about whether a prescriptive easement has been established, it is apparent from the materials filed that the precipitating incident to the litigation was the LeVans’ significant expansion of the pathway. That expansion was made partly on a gradual basis over the years, but largely by way of a major change in approximately 2022 and 2023, to allow vehicular access to the Plateau. That expansion included widening the pathway, levelling the ground, applying gravel, expanding the entranceway, and removing trees and brush.

57The fact that a prescriptive easement has been found to exist does not mean that its dimensions and uses can be expanded at the will of the LeVans or that they have control of the land beyond the right to use it to access the Plateau.

58As noted by the Ontario Court of Appeal in Henderson v. Volk, (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.), at p. 383:

[T]he nature of the user cannot be changed by the owner of the dominant tenement. As an ancient example, a way used for the passage of carriages cannot be used for driving horned cattle or swine. In the same vein, the user is not entitled to change the character of his land so as to substantially increase or alter the burden on the servient tenant. Nor may the user increase the intensity of his use and thereby alter or increase the burden upon the servient tenement.

59In short, courts are careful to restrict easements to the actual, continuous and uninterrupted 20-year use that has been openly and peacefully made of the property in issue: Barbour, at para. 97.

60In this case, during the prescriptive period the pathway was used to access the Plateau by foot and by a small utility ATV.

61The dimensions of the easement, particularly as to width, are constrained by the situation as it existed during the prescriptive period. That means that the maximum dimensions are those that existed as of September 2007, when the prescriptive period ended. The exact historical dimensions of the pathway at any particular time are not known. Its width is estimated to have been four feet in approximately 1970 when Ms. LeVan was young, which was also the time that the original septic tank and tile bed were installed on the Plateau. Jason Bauer deposed that the pathway was three to four feet wide when the ATV began to be used in 1983 and had expanded to a width of four to five feet in 2005. Ms. LeVan deposed that the pathway is now about ten feet wide, running from the right of way to the easterly boundary of her property and that it was expanded to about eight feet in width after the removal of the Hatton-Bauer carport in 2010. The evidence is that vehicular access to the Plateau (beyond that of an ATV) began after the end of the prescriptive period.

62The pathway was used to access the Plateau to facilitate the cutting of grass, chopping of wood, storing wood and other materials, and to allow service of the septic system when needed. More recently (and since the expiry of the prescriptive period), the LeVans have used the pathway to bring materials and vehicles to the Plateau to install an electrical service and a propane tank. In doing so, they expanded the dimensions of the pathway as referred to above.

63Despite the lack of conclusive dimensions, the pathway is acknowledged to have begun from the edge of the right of way beside the Hatton-Bauer carport prior to its demolition in 2010. Although the proximity of the pathway to the carport is not defined, it is reasonable to assume that it would have passed no closer that three feet from the northern edge of the carport. The LeVans acknowledge that prior to the removal of the carport, the pathway was not wide enough to be used for vehicular travel (other than the ATV). I conclude from that evidence, coupled with the estimates from Ms. LeVan and Jason Bauer, that the width of the pathway at the end of the prescriptive period in September 2007 was five feet. I also conclude that gravel was already laid on the pathway by that time. There was no evidence to the contrary from Ms. Hatton-Bauer.

64Based on the evidence, and accepting that the LeVans bear the onus of establishing the details of the prescriptive easement, I find that the prescriptive easement runs west from the edge of the right of way, beginning three feet north of the northern edge of the location previously occupied by the carport, and as far as the westerly boundary of the Hatton-Bauer property towards the Plateau with a width of five feet.

65There is no permitted use of the pathway by the LeVans beyond what was in place prior to September of 2007, namely the accessing of the Plateau on foot or by vehicles similar to an ATV for the purpose of maintenance of the septic system, and the storage of wood and other materials used to maintain the LeVan property.

66I note that an unrelated development of the LeVan property since the end of the prescriptive period has made alternative access to the Plateau possible from the area of their garage. That alternative access may be helpful if the permitted use of the pathway is deemed insufficient for their needs.

67In the past, and in the absence of specific consent, the LeVans have operated under the mistaken assumption that they had control over the pathway and could develop it as they wished. For the reasons set out above, that is an incorrect assumption. They only had the right to use it.

68Ms. Hatton-Bauer has not pursued a claim for damages for trespass. However, there will be an order that the LeVans remove at their own expense any unauthorized alterations made to the Hatton-Bauer property outside the limits of the prescriptive easement as it has been defined. Likewise, any unauthorized chattels placed on it are to be removed by the LeVans at their own expense.

Conclusion:

69For the foregoing reasons, the application by the LeVans for a declaration that a prescriptive easement has been established over the pathway on the property of Ms. Hatton-Bauer is granted, subject to the dimensions and location as I have defined them. There will also be a declaration that the LeVans and their invitees are entitled to traverse the pathway. Further, there will be an order requiring the LeVans to restore the Hatton-Bauer property as indicated above.

Costs:

70The award of costs is a matter for further submissions, if required, following the receipt of this decision.

71The parties are encouraged to resolve the issue of costs of the applications between themselves, particularly in view of their divided success. If they are unable to do so, they may submit their bills of costs and make written submissions, consisting of not more than three pages in length according to the following timetable:

• The LeVans are to serve and file their Bill of Costs and submissions by April 28, 2026.

• Ms. Hatton-Bauer is to serve and file her Bill of Costs and submissions by May 12, 2026.

• The LeVans are to serve and file their reply submissions, if any, by May 19, 2026.

• All submissions are to be filed with the court with a copy to St.Catharines.SCJJA@ontario.ca and uploaded to Case Center by May 20, 2026.

72If no submissions are received by the court by May 22, 2026, or any agreed extension, the matter of costs will be deemed to have been settled.

Reid J.

Released: April 15, 2026

CITATION: LeVan v. Hatton-Bauer, 2026 ONSC 1596