



COURT OF APPEAL FOR ONTARIO

CITATION: Jaz Management Services Ltd. v. VBI Group
    Inc., 2013 ONCA 644

DATE: 20131024

DOCKET: C57197

Cronk, Blair and Strathy JJ.A.

BETWEEN

Jaz Management Services Ltd.

Applicant/Appellant

and

VBI Group Inc. and Decade Group Inc.

Respondents/Respondents

Gregory Gryguc for the appellant

Sarah Turney for the respondents

Heard: September 6, 2013

On appeal from the judgment of Justice Patrick J. Moore
    of the Superior Court of Justice, dated May 17, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the application judges conclusion that the appellants
    evidence did not establish the requisite 20 year user of the alleged easement
    over the respondents parking spaces prior to the transfer to land titles in
    2002. On its face, the affidavit filed by the appellant did not state the
    affiants personal knowledge of the use of the property prior to its
    acquisition in 1986. Contrary to the appellants submission before this court,
    the issue was highly contentious and the affiant stated no source of her
    information and no basis for her belief concerning the use to which the
    property was put before 1986. Her affidavit did not comply with rule 39.01(5)
    of the
Rules of Civil Procedure
and the application judge rightly
    rejected her evidence on this issue. The fact that she was not cross-examined
    on her affidavit did not make her evidence admissible.

[2]

This was sufficient reason to dismiss the application. We agree with the
    respondents, however, that the evidence did not establish that the respondents
    parking spaces were being used by the appellant, its tenants and visitors, As
    of right  that is, without permission: see
Kaminskas v. Storm
(2009),
    95 O.R. (3d) 387 (C.A.). At its highest, the evidence is consistent with each
    party occasionally using the other partys parking spaces, as a matter of
    convenience, and without either asserting or relinquishing any property right.
    This is not a use as of right, so as to create a prescriptive easement:
1043
    Bloor Inc. v. 171404 Ontario Inc.
, 2013 ONCA 91.

[3]

We see no error in principle in the costs award made by the application
    judge, nor was it plainly wrong and there is therefore no basis for appellant
    interference with that award.

[4]

Accordingly, the appeal is dismissed and the application for leave to
    appeal costs is denied.

[5]

Costs to the respondents fixed at $13,000.00, inclusive of disbursements
    and applicable taxes.


