RPLA - Easements [s.31]. Hydro One Networks Inc. v. Shiner
In Hydro One Networks Inc. v. Shiner (Ont CA, 2023) the Court of Appeal considered a prescriptive easement application case, here where the hydro authorities sought a declaration that allowed the use of a road (one easement) to access hydro installations (located on another another easement). Prescriptive easements are the property equivalent of 'adverse possession', accruing over a prolonged use of land by someone other than the owner. The court assessed the case on both the doctrine of 'lost modern grant', and RPLA s.31 ['Right of way easement, etc.'] - which appear to be essentially the same despite their different equitable law and statutory origins:
 The application judge described the positions of the parties. Hydro One’s position was that it had continuous, uninterrupted, open and peaceful use of the road without the owner’s permission for more than 40 years, giving it a prescriptive easement either under the doctrine of lost modern grant, or by s. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15.
(1) Legal requirements for a prescriptive easement
 Section 31 of the Real Property Limitations Act sets a 20-year period or a 40-year period for the creation of prescriptive easements. The section provides:
No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.. Establishing a prescriptive easement under the doctrine of lost modern grant was recently described by this court in Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266, 156 O.R. (3d) 46, at para. 6 (“Balough (ONCA)”) as follows:
 Under the doctrine of lost modern grant, an easement by prescription can be established by the owners of the dominant tenement over the affected portion of the servient tenement based on 20 years of continuous, uninterrupted, open and peaceful use of the land without objection by the owner of the servient tenement. The use must be “as of right” meaning that the owner of the servient tenement must have knowingly acquiesced to the establishment of the easement, not just granted permission or a license to use the land: see Carpenter v. Doull-MacDonald, 2017 ONSC 7560, 92 R.P.R. (5th) 6, at paras. 42-47, aff’d 2018 ONCA 521, 92 R.P.R. (5th) 47. Therefore, a prescriptive easement can be established after 20 years of continuous, uninterrupted, open and peaceful use without objection by the owner of the servient tenement if it was as of right, meaning without permission of the owner of the servient tenement. That permission could have been sought either orally or in writing during the 20-year period under the Real Property Limitations Act or pursuant to the doctrine of lost modern grant. However, under the Real Property Limitations Act, after 40 years, the right is absolute unless permission to use the land was given in writing during the 40 years.
(2) Did the application judge err by misinterpreting the meaning of the requirement that the prescriptive use must be “continuous”?
 The application judge adverted only to the need to prove 20 years’ use prior to 2008 in order to establish a prescriptive easement. She acknowledged that there was evidence of 20 years’ use of the Hydro Road by Hydro One, including the evidence of Douglas Hunt, the neighbouring property owner who “had seen Hydro One using that road since at least 1966.” I note that that evidence, which was accepted, established 40 years of use, subject to the issues of “as of right” and whether the use was “continuous”.
 The application judge found there was no evidence that Hydro One used the road continuously within the caselaw meaning. She referred to three cases for the proposition that continuously does not mean infrequently or occasionally. In my view, the application judge erred in her interpretation of the continuous use requirement of the test for a prescriptive easement.
 The application judge relied on the case of Carpenter v. Doull-MacDonald, 2017 ONSC 7560, 92 R.P.R. (5th) 6, aff’d 2018 ONCA 521, 92 R.P.R. (5th) 47 where the claim was based on one family using a passageway between houses once or twice a year. The court found that the other neighbour allowed this because they were friendly. There was no intention to grant or allow an easement. While the infrequency of the use contributed to the court’s conclusion in that case, the paragraph relied on by the application judge to describe the legal principles underlying this matter described “a landowners’ neighbourly accommodation” as insufficient to establish an easement. In other words, the court in Carpenter perceived the owner of the servient tenement as having consented to the infrequent acts by the neighbours, thus, preventing the establishment of an easement.
 The second case relied on by the application judge was the lower court’s decision in Balogh v. R.C. Yantha Electric Ltd., 2019 ONSC 6748, 15 R.P.R. (6th) 131, aff’d 2021 ONCA 266, 156 O.R. (3d) 46 that crossing over the track in dispute once a year to cut down a Christmas tree was not continuous use. Again, the decision that there was no prescriptive easement established in that case turned on a number of factors, including that the use had been with permission and not as of right. The decision of this court upholding the original decision on appeal did not turn on whether the alleged use was continuous.
 The third case referred to by the application judge is Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, 55 R.P.R. (5th) 171, where a prescriptive easement was established where the applicant and its predecessors had driven over the private right of way frequently for more than 20 years. The issue in that case was not whether the use was continuous and no comment was made on it by the court beyond describing the elements necessary to prove the existence of a prescriptive easement.
 In order to establish an easement by prescription, the claimant’s use of the property over the 20-year period must be “continuous, uninterrupted, open and peaceful” and without objection by the owner of the servient tenement: Balogh (ONCA), at para. 6; Carpenter, at para. 43. All of these requirements work together to indicate a pattern of behaviour that was accepted by the owner of the servient tenement over a long period so that the user would come to rely on the right to that use. Whether the use is “continuous” is viewed in that context.
 The following passage from p. 278 of Gale on Easements has been quoted with approval in Axler et al. v. Chisholm (1977), 1977 CanLII 1156 (ON SC), 16 O.R. (2d) 665, at pp. 669-670 and in Creeggan v. Fijalkowski, 1990 CarswellOnt 5116 (Ont. Dist. Ct,), at para. 11:
[I]t is mainly a question of fact and degree whether the nature of a given enjoyment establishes an easement of an intermittent character or whether the enjoyment is so lacking in continuity as to be otiose. Thus it is not to be understood that the enjoyment of an easement must necessarily be incessant; although, in a great variety of cases, it would obviously be so such as in the case of windows, or rights to water. In those easements which require the repeated acts of man for their enjoyment, as rights of way, it would appear to be sufficient if the user is of such a nature, and takes place at such intervals, as to afford an indication to the owner of the servient tenement that a right is claimed against him – an indication that would not be afforded by a mere accidental or occasional exercise. In Axler, Craig J. then concluded about the use (the off-season storage of a removable cottage dock on the adjacent lands) in that case:
In this case the user was intermittent but in my view, having in mind the nature of the user, this intermittent use would not of itself deprive the plaintiff of an easement by prescription. It was incumbent on the application judge to view the evidence regarding the nature, frequency and pattern of use by Hydro One of the Hydro Road over the period of 40 years in order to determine whether it met the criteria to establish a prescriptive easement.
 The application judge stated at para. 14 of the reasons that “[i]t is conceded by the Applicant [Hydro One] that its workers access the easement approximately every one to three years for a foot patrol and every six to eight years for brush clearing.” Later in the reasons, the application judge noted that the evidence of Hydro One’s affiants was that the road was used “at most once a year and probably considerably less frequently than that.”
 These statements constitute a misapprehension of the evidence. First, Douglas Hunt’s evidence, which was accepted, was that he observed Hydro One vehicles accessing the right of way twice a year since 1966. There was further evidence from Ms. Seymour that when Hydro One was undertaking spraying operations from about 1997 to early 2008 that spraying would occur daily during the spring and the summer. The interaction with Mr. Shiner involved access in order to perform insulator work. There was also evidence of the types of vehicles used by Hydro One to access the easement and discussion of the need to have access to deal with emergency hydro situations as they arise.
 The weight of the evidence before the application judge was of a pattern of use of the Hydro Road by Hydro One which was open, peaceful and uninterrupted from 1966 to 2018. Hydro One accessed its registered easement with vehicles, as needed, in order to maintain its transmission lines and towers. In the circumstances, the frequency and nature of the access was sufficient to satisfy the “continuous” criterion, within the meaning of the relevant caselaw.
(3) Did the application judge err by finding a) that Hydro One thought it needed permission to use the road in 2018, and b) that therefore Hydro One’s use of the road before 2008 was not “as of right”?
 There are two issues to be addressed here. The first is whether the application judge misapprehended the evidence or made a palpable and overriding error in finding that the 2018 agreement that Hydro One made with Mr. Shiner to install gates, fences and gravel indicated that Hydro One believed it required his permission to access the Hydro Road. The second is whether the interaction would have the effect in law of invalidating a prescriptive easement if one had been established prior to 2008 when the lands went into the Land Titles system.
 As indicated, this matter proceeded as an application based on affidavit evidence. There was a serious factual issue in dispute but no trial of an issue was ordered. The letter from Mr. Boomhour was unsworn and no affidavit was provided by Mr. Boomhour. Merely marking a document an exhibit to an affidavit does not convert it into admissible evidence, particularly where it is tendered for the truth of its contents: L.M.U. v. R.L.U., 2004 BCSC 95, 25 B.C.L.R. (4th) 171, at para. 32. It was not admitted based on an analysis of necessity and reliability. By contrast, the evidence given by Hydro One employees was sworn and not challenged on cross-examination.
 In that evidence, the Hydro One employees were consistent that they were seeking to accommodate and appease Mr. Shiner’s concerns regarding the use of his road by Hydro One and by hunters in order to have a good relationship, but they were not seeking his permission to use the road. Without cross-examination challenging that evidence, it was not open to the application judge to reject all of that evidence without explanation. There is nothing in the written correspondence that indicates that the provision of the gates, fencing and gravel was in exchange for the respondent’s permission to use the Hydro Road.
 In any event, the issue before the application judge was whether a prescriptive easement had been established by Hydro One over the Hydro Road over a 20-year period without consent or over a 40-year period without written consent before 2008. There was no evidence of written or oral consent by the O’Donnell family at any time during their ownership from 1925 to 2017. The application judge erred in law by failing to find that Hydro One’s use of the Hydro Road over the prescriptive period was as of right. As a result, the prescriptive easement was established on the record before the court.
 Finally, the availability of other access points to the registered easement does not alter these conclusions. There is considerable evidence in the record regarding other potential access points to the registered easement, and their efficacy. This evidence was not relevant to the declaration request as necessity is not a requirement for a prescriptive easement: Vivekanandan v. Terzian, 2020 ONCA 110, 443 D.L.R. (4th) 678, at para. 14; Caldwell v. Elia (2000), 2000 CanLII 5672 (ON CA), 30 R.P.R. (3d) 295 (Ont. C.A.), at para. 14.