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Easement - Prescriptive

Real Estate - Prescriptive Easement

Condos and Castles Realty Inc. v. Janeve Corp. (Ont CA, 2015)

In this case the Court of Appeal stated the following legal principles on when a prescriptive easement arises (prescriptive easements are similar to adverse possession over lands, but only grant an easement over them - typically a right-of-way):
[5] The appellant brought its application for a prescriptive easement on the basis that its predecessors in title exercised a continuous, uninterrupted, open and peaceful use of the private laneway as a right-of-way for vehicular and other traffic from the rear of its property westward to the public laneway, without the owner’s express consent, for over 20 years before the first registration of the property in the Land Titles System in 2003, taking into account s. 31 of the Real Property Limitation Act, R.S.O. 1990, c. L.15.

[6] The appellant’s legal burden was to “demonstrate a continuous, uninterrupted, open, and peaceful use of the land, without objection by the owner”, as the application judge noted at para. 38, citing 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007 (CanLII), 98 R.P.R. (4th) 21. He added:
The evidence required to establish title by prescription will vary with the nature of the user. Where the use is notorious and the owner of the servient tenement makes no objection, then his or her acquiescence to the use as a right of the dominant tenement can more readily be inferred.
[7] The application judge drew particularly on Henderson v. Volk, 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379, [1982] O.J. No. 3138 (C.A.). He quoted and relied on para. 20 of this decision, where Cory J.A said:
It is right and proper for the Courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant is established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor. It is reasonable to require those seeking to rely upon the Limitations Act or the doctrine of lost modern grant to establish by clear evidence both a continuous use and acquiescence in such use by the owner of the servient tenement.
[8] With respect, however, these words must be understood in the context. Henderson v. Volk involved pedestrian use of property between two residences. Cory J.A. explained that the distinction between vehicular and pedestrian traffic was significant. He said at paras. 18-19:
The evidence required to establish title by prescription will vary with the nature of the user. The use of a passageway by noisy delivery trucks would be hard to hide. The use of a lane for passage by tractor trailer rigs with motors roaring and air brakes hissing would be difficult to disguise. In those instances the owner of the servient tenement can readily be taken to know of the user of his property. If he makes no objection then his acquiescence to the use can readily be inferred.

It is different when a party seeks to establish a right-of- way for pedestrians over a sidewalk. In those circumstances the user sought to be established may not even be known to the owner of the servient tenement. In addition, the neighbourly acquiescence to its use during inclement weather or in times of emergency such as a last minute attempt to catch a bus, should not too readily be accepted as evidence of submission to the use.
[9] In my view, the inconspicuous nature of pedestrian traffic distinguishes Henderson from this case, which concerns vehicular traffic. In a case of straightforward vehicular use of a laneway as a right-of-way, the applicable principle is more direct, as Laskin J.A. pointed out in 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 (CanLII), 114 O.R. (3d) 241, at para. 105: “[T]he 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.”
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