



COURT OF APPEAL FOR ONTARIO

CITATION: Carpenter v. Doull-MacDonald, 2018 ONCA 521

DATE: 20180606

DOCKET: C64854

MacPherson, LaForme and Roberts JJ.A.

BETWEEN

Carol Carpenter

(Appellant)
Applicant

and

Cynthia Doull-MacDonald

(Respondent)
Respondent

Robert Kalanda, for the appellant

Sarah Corman and Hilary Brown, for the respondent

Heard: June 5, 2018

On appeal from the order of Justice Paul Perell of the Superior Court
    of Justice dated December 19, 2017, with reasons reported at 2017 ONSC 7560.

REASONS FOR DECISION

[1]

The appellant appeals from the
    dismissal of her application for a declaration that she holds a permanent
    easement over part of the respondents property. At the conclusion of the
    hearing of the appeal, we dismissed the appeal with reasons to follow. These
    are those reasons.

[2]

The appellant and respondent own
    neighbouring houses, respectively at 11 and 15 Ferncroft Drive in Toronto. The
    appellant claims a right of easement over the passageway between the two houses
    that runs to the backyards of the properties. No easement is registered on
    title to 15 Ferncroft Drive. The appellant bases her claim on the historical
    use exercised by the former owner of 11 Ferncroft Drive over the respondents
    property in order to carry out cleaning and repairs. She submits that the
    application judge erred in determining that this historical use of the
    respondents property was not as of right but was instead granted by
    permission or licence from its former owner, and that the former owner had not acquiesced
    to such use by the appellants predecessor.

[3]

We do not accept this submission.

[4]

The application judge carefully
    reviewed and applied the correct legal principles, including that a
    prescriptive easement requires the use of the property over which the easement
    is claimed to be a claim of right which is continuous, uninterrupted, open and
    peaceful for a period of twenty years:  see s. 31 of the
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15;
    and
Henderson v. Volk
, [
1982]
O.J. No. 3138
    (C.A.), at para. 12.  Moreover, the use or enjoyment of the easement must not
    be permissive but, instead, as if the claimant had the right to the easement:
1043 Bloor Inc. v. 1714104 Ontario Inc.
, 2013 ONCA 91, at para. 59.

[5]

The application judge concluded that
    the historical usage of the respondents property on which the appellant relies
    was only modest, infrequent, and intermittent, and was permitted by the
    extension of the former owners neighbourly good will to his fellow war veteran
    and neighbour of many years.  This conclusion was based on the application
    judges acceptance of the testimony given by the former owner of 15 Ferncroft
    Drive, William Tryon, who had lived at the property for almost 60 years.  Specifically,
    Mr. Tryon testified that the historical usage of his property consisted of the
    former owner of 11 Ferncroft Drive coming onto the passageway perhaps once or
    twice a year to clean eaves troughs or windows, or service air conditioning
    lines. As a result, the application judge found that the appellant had not met
    her evidentiary burden of establishing an easement as of right.

[6]

As noted by the application judge, the
    threshold for meeting the criteria for establishing an easement is high. It is
    well-established that courts should proceed cautiously before finding that an
    easement exists because of the burden it places on a landowners ownership
    interest without compensation. Moreover, it may discourage neighbourly
    accommodations and reward aggressive overreaching. (See:
Henderson
, at para. 21;
1043 Bloor Inc.
, at paras. 103-106.)

[7]

The application judges
    characterization of the occasional permissive historical usage of the
    respondents property was open to him on the record.  We see no error that
    would permit appellate intervention.

[8]

For these reasons, we dismiss the
    appeal.

[9]

The respondent is entitled to her partial
    indemnity costs of the appeal in the amount of $9,000.00, inclusive of
    disbursements and applicable taxes.

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.B. Roberts J.A.


