



COURT OF APPEAL FOR ONTARIO

CITATION:
1043 Bloor Inc. v. 1714104
    Ontario Inc., 2013 ONCA 91

DATE: 20130214

DOCKET: C53782

Laskin, MacPherson and Gillese JJ.A.

BETWEEN

1043 Bloor Inc.

Plaintiff (Appellant)

and

1714104 Ontario Inc.

Defendant (Respondent)

Warren Rapoport, for the appellant

L.J. OConnor, for the respondent

Heard: November 29, 2012

On appeal from the order of Justice Barbara A. Conway of
    the Superior Court of Justice, dated May 18, 2011, with reasons reported at
    2011 ONSC 2779.

Gillese
    J.A.:

[1]

This appeal raises an important question relating to prescriptive
    easements: can a single act interrupt the prescriptive period?

OVERVIEW

[2]

The parties are adjacent landowners.  The appellant is the owner of 1043
    Bloor Street West in Toronto (1043).  The respondent is the owner of the
    property immediately to the west, 1045 Bloor Street West (1045).

[3]

The appellants predecessors built the structure on their land almost
    right to the lot line, leaving mere inches between their building and the edge
    of their property.  They did not leave themselves any space for a lane or driveway
    by which to access the parking behind their building.

[4]

The respondents predecessors, on the other hand, built their property
    so as to leave a narrow lane
[1]
by which they can access the rear of their property.  The lane runs between the
    two properties.

[5]

The lane lies almost entirely on the respondents property.  The portion
    on the appellants property is three inches at the northern end of the land, gradually
    narrowing to nothing at the southern end, where the appellants building lies right
    on the lot line dividing the two properties.

[6]

Both parties use the lane to access the parking behind their respective
    properties.

[7]

The appellant sought a declaration that it has a prescriptive easement
    and right of way over the lane.  It claims that its predecessors in title had
    uninterrupted, open use of the lane for at least 20 years before April 2003,
    when the appellants property migrated into the Land Titles system.
[2]


[8]

The appellant wants the declaration so that it can continue to use the
    lane to access the parking space behind its building.  The respondent wants any
    suggestion of an easement to be removed so that it can develop its building to
    the lot line, which the zoning by-law permits.

[9]

By judgment dated June 15, 2011 (the Judgment), the trial judge
    dismissed the appellants claim.  She found that there had been continuous and
    open use of the lane during the relevant time period.  However, she found that
    an incident that took place in February of 1987 (the 1987 incident)
    interrupted the prescriptive period.  Consequently, February 1987 became the
    new starting point for the running of the period and, as the period from
    February 1987 to April 2003 is less than 20 years, a prescriptive easement had
    not arisen.

[10]

The
    appellants appeal to this court centres on the trial judges treatment of the
    1987 incident.  The appellant describes the 1987 incident as the action of one
    neighbour attempting to resolve a dispute amicably and says that the trial
    judge erred in finding that such an action interrupted the running of the prescriptive
    period.

[11]

As
    I explain below, I see no error in the trial judges decision.  Accordingly, I
    would dismiss the appeal.

BACKGROUND

[12]

Much
    of the following recitation of facts is taken from the reasons of the trial
    judge.

[13]

The
    chain of ownership of the two properties during the relevant time period serves
    to introduce the key players and dates in this matter.


Ownership of 1043

September of 1980  March of 1986:             Hildegard
    Welsch Orpen

March of 1986  September 2008:                 Fernando
    Vilhena

September 2008  present:                            the
    appellant (1043 Bloor Inc.)


Ownership of 1045

1966  April 2007:                            
    Wolodymer and Lesia Sochaniwskyj

April of 2007  present:                     the
    respondent (1714104 Ontario Inc.)

Use of the Lane from 1980  1986
(
Ms. Orpens tenure
)


[14]

Dr.
    Sochaniwskyj conducted his general medical practice at 1045 from the time he
    purchased 1045 in 1966 until he retired in 1997.  The Sochaniwskyjs did not
    live at 1045.

[15]

Ms.
    Orpen owned 1043 from 1980  86.  During her tenure, she operated a hair salon
    and later a café from the main floor.  She rented the remaining space to
    tenants.  Ms. Orpen testified that she and her tenants used the lane
[3]
without hindrance by the Sochaniwskyjs throughout the six-year period in which
    she owned 1043.  She also testified that she never sought Dr. Sochaniwskyjs
    permission to use the lane and that she had no contact with the Sochaniwskyjs during
    her tenure.

[16]

Dr.
    Sochaniwskyj is now infirm.  Neither he nor his wife was able to testify at
    trial.  Alex Sochaniwskyj, one of their sons, testified.  He explained that his
    father is a mild mannered man, a former concentration camp survivor who was
    liberated by the Allies during the Second World War.  He testified that he does
    not recall Ms. Orpen nor does he recall his father interfering with her use of
    the lane.

[17]

When
    Ms. Orpen sold 1043 to Mr. Vilhena in 1986, she gave him a statutory Declaration. 
    The statutory Declaration appears to be a standard form with two handwritten
    additions, some sentences struck out and certain paragraphs added in by means
    of typing.  Mr. Vilhena produced the Declaration during these proceedings.

[18]

In
    the Declaration, below para. 1, were the following handwritten words I have
    used the laneway next door to get to my driveway since occupying the above
    premises (the first handwritten addition).  No initials appear next to the
    first handwritten addition.  Ms. Orpens initials do appear next to the other handwritten
    addition in the Declaration.  Ms. Orpen testified that the first handwritten
    addition is not her handwriting and that she has no recollection of seeing it
    when she signed the Declaration.

[19]

Paragraph
    14 of the Declaration had been added in by typing.  It reads as follows: I do
    not own any lands or have any rights in any lands abutting to the
    above-mentioned lands.

The 1987 Incident

[20]

Mr.
    Vilhena began work as a real estate broker in 1977 and was working in that
    capacity when he bought 1043 in 1986.  He purchased 1043 with the intention of renovating
    it into an office building for his real estate business.

[21]

Under
    the municipal by-laws, Mr. Vilhena needed three parking spots to obtain a
    building permit for the renovation.  The parking area behind 1043 was not
    acceptable because Mr. Vilhena did not have a legal right of way to access it. 
    He leased three parking spaces from the church located immediately to the east
    of 1043.  This satisfied the municipal requirements for offsite parking and the
    building permit was issued in August 1986.  Mr. Vilhena began the renovation
    shortly thereafter.

[22]

In
    February 1987, Mr. Vilhena had his lawyer draft a right of way agreement over
    the lane.  The agreement was to run for a period of five years, with renewal from
    year to year thereafter unless terminated by either party on three months
    notice, for an annual payment by Mr. Vilhena of $300 per year (the 1987 document).

[23]

The
    1987 document recited the ownership of the two properties.  Another of its recitals
    states there exists no mutual right-of-way in favour of either Vilhena or
    Sochaniwskyj with respect to the use of that portion of the driveway area owned
    by the other.

[24]

Mr.
    Vilhena signed the 1987 document and approached Dr. Sochaniwskyj for his
    signature.  Dr. Sochaniwskyj refused to sign it.

[25]

Alex
    Sochaniwskyj testified that he was at his parents home when his father
    returned after the 1987 incident.  He said that his father was very upset by
    the 1987 incident and the fact that he was being asked to surrender mastery
    over part of his property to Mr. Vilhena.  Alex Sochaniwskyj testified that he
    and his brother told their father not to sign the 1987 document and that his
    father listened to them.  Dr. Sochaniwskyj told Mr. Vilhena to deal with his
    children from then on.

[26]

The
    1987 document, with Mr. Vilhenas signature on it and unsigned by the
    Sochaniwskyjs, was in evidence before the court.


After the 1987 Incident

[27]

Despite
    Dr. Sochaniwskyjs refusal to sign the 1987 document, Mr. Vilhena and his
    tenants continued to use the lane.

[28]

Mr.
    Vilhena testified that neither Dr. Sochaniwskyj nor anyone else from 1045
    complained about or stopped him from using the lane after the 1987 incident.

[29]

Alex
    Sochaniwskyj testified that in the two years following the 1987 incident there
    were so many cars parked behind 1045 from 1043 that his father often had
    difficulty finding a parking spot for his own car.  During this period, his
    father made up tickets and put them on cars from 1043 that were parked behind
    1045, stating that it was private parking for 1045 only.

[30]

Further,
    in 1989, at his fathers request, Alex Sochaniwskyj hired a sign company to
    create two signs, which read Private driveway private parking 1045 Bloor
    Street West.  Alex Sochaniwskyj personally bolted one sign to the side wall of
    1045, next to the lane.  This sign was ripped down shortly after being
    installed.  Alex Sochaniwskyj attached the other sign to a steel post in the
    back of 1045.  Within two weeks of being erected, the second sign had been
    knocked over.

[31]

Mr.
    Vilhena testified that he did not remove the signs nor have them removed.  The
    trial judge noted that there was no evidence as to who else might have removed
    the signs nor why anyone who was not using the lane would have wanted to take
    down the signs.

[32]

After
    the respondent bought 1045 in 2007, it erected a chain barrier to stop access
    by Mr. Vilhena or his invitees on the lane. Mr. Vilhena cut the chain.  The
    principals of the respondent are Kenneth McGowen and Bill Monroe.  Mr. McGowen
    confronted Mr. Vilhena about having cut the chain.  Mr. Vilhena became very aggressive
    towards him.  Mr. McGowen was in his seventies at the time.

[33]

In
    2008, when Mr. Vilhena was in the process of selling 1043, he prepared a notice
    of unregistered right, claiming an unregistered interest in 1045 (the Notice).
[4]
On May 6, 2008, Mr. Vilhena signed an agreement of purchase and sale for 1043 with
    the appellant.  On May 7, 2008, he registered the Notice.

[34]

On
    closing, Mr. Vilhena delivered a sworn statutory declaration to the appellant
    stating that he and his predecessor in title, Ms. Orpen, had used the lane continuously
    and without interruption from 1980 to April 2003, when it was converted to the
    Land Titles system.  He went on in the statutory declaration to state that I
    have never sought permission or been granted consent by any owner of [1045] for
    access to use the lane.  In the declaration, he also stated that he had never
    made any acknowledgment of title  inconsistent with my easement and right of
    way over the lane.

[35]

At
    the time he swore this statutory declaration, Mr. Vilhena had over 30 years of
    experience in the real estate field.

[36]

At
    trial, Mr. Vilhena testified that he had forgotten about the 1987 incident when
    he made the statutory declaration.

THE TRIAL DECISION

[37]

The
    trial judge began her legal analysis by setting out the appellants position: based
    on the doctrine of lost modern grant, it claimed a prescriptive easement over
    the lane.

[38]

She
    then set out the legal principles governing the doctrine of lost modern grant. 
    She quoted from
Henderson v. Volk
(1982), 35 O.R. (2d) 379 (C.A.), at p.
    383, with emphasis on the following sentence:

[T]he claimant must demonstrate a use and enjoyment of the
    right-of-way
under a claim of right
which was continuous,
    uninterrupted, open and peaceful for a period of 20 years.   [Emphasis added.]

[39]

The
    trial judge noted that permissive use cannot establish a prescriptive right and
    that the use required to prove a prescriptive easement must be under a claim
    of right or as of right.  She reminded herself that the onus of proving the
    prescriptive easement is on the claimant and quoted again from
Henderson
when
    observing that the courts must proceed with caution before finding that a title
    is established pursuant to this doctrine.

[40]

The
    trial judge then made her factual findings and considered whether they met the
    legal requirements for a prescriptive easement.  She found that from 1980 to
    2003, the owners of 1043 (and their tenants, employees and guests) had used the
    lane openly and continuously.

[41]

The
    trial judge also found that during the period that Ms. Orpen owned 1043
    (1980-86), Dr. Sochaniwskyj acquiesced in her use of the lane.  However, she
    found, things changed when Mr. Vilhena acquired the property in 1986.

[42]

The
    trial judge then carefully and fully considered the events comprising the 1987
    incident, before concluding that it interrupted the running of the prescriptive
    period.

[43]

In
    reaching this conclusion, the trial judge flatly rejected Mr. Vilhenas
    testimony that he sought to have the 1987 document executed only at the
    prompting of his architect because he needed it for his building permit.  She noted
    that the building permit had been issued the year before Mr. Vilhena approached
    Dr. Sochaniwskyj with the 1987 document and that the municipal parking requirements
    had been satisfied by means of the lease of three parking spaces from the
    church to the east of 1043.

[44]

The
    trial judge found that: (1) Mr. Vilhena asked his lawyers to prepare the 1987
    document to obtain a formal right of way over the lane; (2) Mr. Vilhena knew that
    the deed from Ms. Orpen did not grant him those rights; and (3) Mr. Vilhena knew
    that a survey which he had had J.J. Konig prepare in 1987 did not reflect the
    right of way.

[45]

The
    trial judge further found that by approaching Dr. Sochaniwskyj with the 1987
    document, Mr. Vilhena acknowledged that he did not have a right to use the lane
    and that he required Dr. Sochaniwskyjs permission to do so.  This, she concluded,
    was inconsistent with the concept that Mr. Vilhena used the lane as of right.

[46]

In
    reaching this conclusion, the trial judge carefully reviewed the caselaw and
    leading texts on what must be established to show that ones use is as of
    right and stated that the claimant must use the land as if he or she had the
    right to use it without permission.

[47]

She
    explained that the issue was not whether Mr. Vilhena obtained permission to use
    the lane.  Rather, it was whether Mr. Vilhena did anything inconsistent with
    using the lane as if he had the right to.  The 1987 incident demonstrated that
    Mr. Vilhena was not using the lane as of right because it was an acknowledgment
    that he needed permission to use it.  Accordingly, the 1987 incident interrupted
    the running of the prescriptive period.

THE ISSUE

[48]

This
    appeal raises a single issue: did the trial judge err in finding that the
    appellant had not discharged the burden of proving that its predecessors had
    used the lane as of right for 20 years prior to 2003?  Specifically, did the
    trial judge err in finding that the 1987 incident interrupted the running of
    the prescriptive period?

ANALYSIS

[49]

The
    appellant argues that the 1987 incident was Mr. Vilhenas attempt to settle a
    dispute with the Sochaniwskyjs regarding use of the lane during the prescriptive
    period and that such an attempt does not disentitle it to a prescriptive
    easement over the lane.

[50]

I
    do not accept this submission as it is neither factually nor legally correct.

[51]

I
    will review the 1987 incident to demonstrate the factual inaccuracy of the
    appellants submission.  To demonstrate the legal inaccuracy, I will set out
    the legal principles governing the doctrine of lost modern grant and then
    consider their application to the facts of this case.

The 1987 Incident

[52]

The
    appellant characterizes Mr. Vilhenas actions in the 1987 incident as a good
    neighbour trying to settle a dispute.  This characterization is not borne out
    by the record.

[53]

There
    was no evidence of a dispute between Mr. Vilhena and the Sochaniwskyjs at the time
    of the 1987 incident.  On the record, it appears that the Sochaniwskyjs were
    likely unaware of Mr. Vilhenas existence in early 1987 when he approached Dr.
    Sochaniwskyj with the 1987 document.  No prior issues divided them at that time
    and there had been no prior attempts to restrict Mr. Vilhenas use of the
    lane.  There simply was no dispute to resolve at the time.  Indeed, Mr. Vilhena
    testified at trial that the 1987 incident took place only as a result of his
    architects prompting, testimony that is at odds with the suggestion that it
    was done to resolve a dispute with the Sochaniwskyjs.

[54]

Moreover,
    the appellants assertion of a dispute cannot stand in the face of the trial
    judges findings of fact, findings that are amply supported on the record.  It
    will be recalled that the trial judge rejected Mr. Vilhenas evidence that the
    1987 incident was due to the prompting of his architect because he needed to
    obtain a building permit.  As the trial judge observed, the building permit had
    been issued in the fall of 1986, well prior to the 1987 incident, and the
    municipal parking requirements had been satisfied by means of the lease of
    parking spaces from the church to the east of 1043.  To this I would add that
    the architects evidence made it clear that it had not asked Mr. Vilhena to do
    any such thing.

[55]

As
    the trial judge found, the 1987 incident occurred because Mr. Vilhena knew that
    he did not have the right to use the lane and he needed the Sochaniwskyjs
    permission to do so.

The Doctrine of Lost Modern Grant

[56]

Henderson
    v. Volk
(1982), 35 O.R. (2d) 379 (C.A.) is the leading Ontario case on
    prescriptive easements and the doctrine of lost modern grant.  In
Henderson
at p. 382, Cory J.A. (as he then was) observed that there had been a persistent,
    searching inquiry as to whether the doctrine of lost modern grant continued to
    exist in Ontario.  On behalf of this court, he found that it did and explained
    that the doctrine is the foundation for the acquisition of prescriptive easements. 
    The doctrine is based on the legal fiction that the owner of property
    originally made a grant of the easement to the claimant (or its predecessor),
    despite the absence of any direct evidence that such a grant had been made.

[57]

To
    acquire an easement by prescription, the claimant must demonstrate a use and
    enjoyment of the easement under a claim of right that is continuous,
    uninterrupted, open, and peaceful, for a period of 20 years: see
Henderson
,
    at p. 383.

[58]

This
    appeal turns on the scope of the requirement that use must be under a claim of
    right or as of right.

[59]

In
Henderson
,

at p. 383, use as of right is described as enjoyment
    that is
not
at the will and pleasure of the owner of the property over
    which the easement is sought to be established (i.e. the owner of the servient
    tenement).  That is, enjoyment of the easement must not be permissive but, instead,
    as if the claimant had the right to the easement.  In short, the claimants use
    of the easement must be as if it had obtained a legal grant of the easement from
    the owner of the servient tenement.

[60]

Statements
    by this court in two other prescriptive easement cases play a significant role in
    this appeal.  The first statement is found in
Garfinkel v. Kleinberg and
    Kleinberg
,

[1955]
    O.R. 388, at p. 394:

acknowledgment by the dominant owner that his [use] is not as
    of right, at any time during the 20 year period will prevent his acquiring a
    prescriptive right.

[61]

The
    second is Blair J.A.s statement in
Kaminskas v. Storm
, 2009 ONCA 318,
    at para. 30:

User as of right means that the use has been uninterrupted,
    open, peaceful and without permission for the relevant time.

[62]

Finally,
    it is important to bear in mind the policy considerations that underpin the
    doctrine of lost grant.

[63]

In
Henderson
,

at p. 384, Cory J.A. described these policy
    considerations, stressing the need for caution before finding that a
    prescriptive easement has been established.  He wrote this:

It is right and proper for the courts to proceed with caution
    before finding that title  by the doctrine of lost modern grant was
    established  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.

[64]

In
Temma Realty Co. Ltd. v. Ress Enterprises Ltd.
,

[1968] 2 O.R. 293, this court
    considered a different aspect of the doctrine of lost grant, namely, the
    character of the use that must be proved and whether that use accommodated the
    dominant tenement.  Nonetheless, when determining whether a prescriptive right
    of way over a road had been proved, the court was careful to consider the
    evidence in light of the underlying policy considerations, saying at p. 297:

Where such [use by the neighbour] does not injure the road or
    interfere with the owners use of it, the tendency of the Courts is to lean
    against a doctrine that would permit such a neighbourly accommodation from
    ripening into a legal right as against the true owner.

Application of the Doctrine to the Present Case

[65]

With
    these principles in mind, I turn to the question that lies at the heart of this
    appeal:  what are the legal consequences of the 1987 incident?  Did that
    incident interrupt the running of the prescriptive period?

[66]

The
    appellant acknowledges that had Dr. Sochaniwskyj signed the 1987 document, its
    claim to an easement would be defeated because use thereafter would have been
    by way of permission.  Permissive use cannot be use as of right.

[67]

But,
    the appellant argues, because Dr. Sochaniwskyj did not sign the 1987 document, Mr.
    Vilhenas use of the lane thereafter was without permission.  Thus, it says,
    Mr. Vilhenas use was as of right within the
Kaminskas

definition:
    uninterrupted, open, peaceful and without permission.  Accordingly, the 1987
    incident did not interrupt the prescriptive period.

[68]

The
    respondent, on the other hand, relies on the statement in
Garfinkel
. 
    It submits that the 1987 incident amounts to an acknowledgment by Mr. Vilhena
    (the dominant owner) that his use was not as of right and, as was stated in
Garfinkel
,
    such an acknowledgment interrupts the running of the prescriptive period.

[69]

In
    my view, the respondent is correct.

[70]

As
    we have seen, use as of right means that the claimant has used the easement as
    if it owned the easement  that is, as if the owner had given the claimant (or
    its predecessor) a grant of the easement.  When a person has a grant, he or she
    is entitled to use the easement as of right.  There is obviously no need to
    seek the true owners permission to use the easement when one has the right to
    use it.  Thus, it can be seen, asking permission to use the lane is simply inconsistent
    with using it as a matter of entitlement (i.e. as of right).

[71]

If
    Mr. Vilhena had the right to use the lane, there would have been no need to
    seek permission as he did when he asked Dr. Sochaniwskyj to sign the 1987
    document.  That was the whole point of the 1987 document: to gain the right to
    use the lane, rather than to remain in the precarious position of relying on
    the Sochaniwskyjs neighbourly forebearance.  Thus, presenting the 1987
    document to Dr. Sochaniwskyj was, in the words of
Garfinkel
, an
    acknowledgment by Mr. Vilhena that his enjoyment of the lane was not as of
    right and that he needed permission to use it.

[72]

In
    fact, the 1987 document contains an express acknowledgment by Mr. Vilhena to
    this effect.  It will be recalled that one of the recitals in the 1987 document
    states there exists no mutual right-of-way in favour of either Vilhena or
    Sochaniwskyj with respect to the use of that portion of the driveway area owned
    by the other.

[73]

The
    point that an acknowledgment of title will stop the clock from running for
    claimants seeking to prove a right based on prescription was well-expressed in
    the letter given to the appellant on the closing of the purchase of 1043 from
    Mr. Vilhena.  The appellants real estate lawyers cautioned the appellant that:

In order to acquire and maintain a prescriptive easement, it is
    important that you do not ever contact the property owner to the west to
    request consent to the use of the Laneway, as a request such as this is
    inconsistent with your prescriptive easement position over the Laneway lands. 
    You must always take the position that your prescriptive easement is as of
    right .

[74]

Just
    so.  The 1987 incident was a request for consent (permission) to use the lane
    and, as such, an acknowledgement by Mr. Vilhena that he needed permission to
    use it.  That acknowledgment was inconsistent with use of the lane as of
    right.

[75]

It
    is for these reasons that I accept the respondents submission on this matter.

[76]

A
    word is in order to explain why I reject the appellants submission.  The
    appellants submission hinges on his characterization of Mr. Vilhenas use of
    the lane after the 1987 incident as being without permission.  Such a
    characterization completely misunderstands the legal implications of Dr.
    Sochaniwskyjs refusal to sign the 1987 document.

[77]

By
    refusing to sign the 1987 document, Dr. Sochaniwskyj refused to grant Mr.
    Vilhena an easement over the lane.  The legal effect of his refusal was
    tantamount to saying to Mr. Vilhena I will not give you any legal right to use
    the lane.  I may permit you to use it, as I have in the past, but only so long
    as I wish.  By refusing to give you any legal right to use the lane, I am
    telling you that I can and will withdraw my permission at will.  In other
    words, in law, the refusal to sign the 1987 document (i.e. grant the easement) made
    it clear that any future use by Mr. Vilhena of the lane was solely at the
    discretion of the Sochaniwskyjs.

[78]

This
    understanding of the legal consequences of Dr. Sochaniwskyjs refusal to sign
    the 1987 document is borne out by the events in the two years that followed the
    1987 incident.  During that period, it will be recalled, Dr. Sochaniwskyjs use
    of his own lane was being impeded by Mr. Vilhena (and his tenants and invitees). 
    Dr. Sochaniwskyj took steps to preclude their use of the lane (i.e. to withdraw
    his permission at will).  Through his son, he paid for and installed a
    commercially produced sign stating that the lane was private property belonging
    to 1045.  The parking tickets he placed on cars behind 1045 reinforced that
    message.

[79]

This
    understanding also explains why the reasoning in
Kaminskas
is fully
    congruent with that in both
Henderson
and
Garfinkel
.  In
Kaminskas
,
    the issue was whether the granting of permission by the owner of the servient
    tenement defeated a prescriptive easement.  It was within that context that
    Blair J.A. defined the term as of right and held that permission granted did
    defeat the prescriptive easement.  Here, as I have explained, the refusal to
    sign the 1987 document made it clear that Mr. Vilhenas use was with the
    Sochaniwskyjs permission, and not as of right.  Therefore, Mr. Vilhenas use
    did not meet the definition of as of right in
Kaminiskas
.

[80]

Furthermore,
    the policy considerations that underpin the doctrine of lost modern grant are
    fully at play in this proceeding.  Should the doctrine be found to apply, the
    owner of 1045 will be subject to the burden of a right of way without compensation. 
    Despite being the legal owner of the lane, it will be limited in its own use of
    the lane.  For example, the respondent could not park on the lane in such a way
    as to preclude the appellant from using it as a right of way to gain access to
    the parking behind 1043.  And, despite being the legal owner of 1045, the
    respondent would lose the right to extend its building to the lot line, even
    though that is permitted by the municipal by-laws.  Such an encroachment on the
    respondents ownership rights would be particularly unsettling in light of the
    fact that Mr. Vilhena took the full benefit of such a right when he was the
    owner of 1043.

[81]

As
    the evidence makes plain, the Sochaniwskyjs acted throughout as considerate, thoughtful
    neighbours.  They were content to permit the owners of 1043 and their tenants,
    employees and invitees to use the lane, so long as that use did not interfere
    with their own use of the lane.  Dr. Sochaniwskyj is a non-confrontational man,
    with a personal history that well explains why he may have been more
    acquiescent than others might be in similar circumstances.  Even when he
    asserted his ownership rights after the 1987 incident, he did so in a
    non-confrontational manner.  Rather than confronting would-be users of the
    lane, as we have seen, he had his son post a sign on his building next to the
    lane, advising that the lane was private property belonging to 1045.

[82]

Were
    there any ambiguity in my mind about whether the 1987 incident interrupted the
    prescriptive period, I would resort to this courts exhortation in
Temma
    Realty
to lean against applying the doctrine in a fashion that would
    permit a neighbourly accommodation from ripening into a legal right as against
    the true owner.

[83]

The
    policy of the law in this area is clear:  the law ought not to discourage
    considerate neighbourly behaviour by creating the fear that those acts will
    later be construed as acquiescence sufficient to give your neighbour rights
    over your land.  To use the language of
Henderson
, the doctrine of lost
    grant ought not to punish Dr. Sochaniwskyj for being a kind and good neighbour nor
    ought it to reward the aggressor, Mr. Vilhena.

Conclusion

[84]

The
    trial judge was in the best position to determine whether the 1987 incident
    demonstrated that Mr. Vilhena sought permission to use the lane and, hence, was
    an acknowledgment that he was not using it as of right.  There is no basis for
    appellate interference with those findings.  Further, in my view, the trial
    judge correctly applied the relevant legal principles in concluding that the 1987
    incident interrupted the prescriptive period.

DISPOSITION

[85]

Accordingly,
    I would dismiss the appeal with costs in the agreed-on amount of $16,000, all
    inclusive.


E.E. Gillese J.A.


Laskin
    J.A. (Concurring):

A.

introduction

[86]

I
    have read the judgment of my colleague Gillese J.A.  Although I reach the same
    result as she does, I do so for different reasons.

[87]

Both
    the application judge and my colleague rely on the document Vilhena proffered
    to Sochaniwskyj in February 1987, which Sochaniwskyj refused to sign. 
    According to the application judge and Gillese J.A., that document amounted to
    an acknowledgment by Vilhena that he was not using the lane as of right.  And
    further, in my colleagues words, at para. 79 of her reasons, the refusal to
    sign the 1987 document made it clear that Mr. Vilhenas use was with the
    Sochaniwskyjs permission, and not as of right.

[88]

I
    do not agree.  If Sochaniwskyj had signed the document, he would have granted
    permission to Vilhena to use the lane and Vilhena would have acknowledged that
    going forward he was using the lane with Sochaniwskyjs consent or permission. 
    Permission would have broken the running of the prescriptive period.  However,
    Sochaniwskyj did not sign the document.  In my view, if any inference can be
    drawn from Sochaniwskyjs refusal to sign the document, it is that Vilhenas
    later use of the lane was
not
with permission.

[89]

However,
    Sochaniwskyjs later conduct  specifically, asking his son to post signs
    restricting use of the lane to residents or guests of his property  was
    sufficient to defeat Vilhenas claim to a prescriptive easement.  Posting the
    signs was an overt act of protest against Vilhenas use of the lane that
    interrupted the running of the prescriptive period.  For this reason, I do not
    believe the appellant is entitled to an easement.  Therefore, I reach the same
    result as my colleague and would dismiss the appeal.

[90]

Gillese
    J.A. has thoroughly set out the factual background of this litigation, and it
    is unnecessary to repeat it here.  In these reasons, I will deal with the legal
    requirements of a prescriptive easement by lost modern grant, the policy
    considerations underpinning this dispute, and their application to this case.

B.

prescriptive easements by lost modern grant

[91]

As
    my colleague notes, the acquisition of a prescriptive easement by lost modern
    grant rests on a judicial fiction.  The law pretends that an easement was
    granted at some time in the past but that the grant of the easement has gone
    missing.  A prescriptive right emerges from long, uninterrupted, unchallenged
    use for a specified period of time  in Ontario, 20 years: Bruce Ziff,
Principles
    of Property La
w, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at
    p. 386.

[92]

But
    while the right to a prescriptive easement protects the dominant owners
    reliance on long usage, courts are naturally reluctant to find a prescriptive
    right because doing so burdens the servient owners land without compensation.
[5]
And now, in Ontario, the availability of a prescriptive easement is quite
    limited.  We have abolished the acquisition of easements by prescription over
    property in the Land Titles system:
Land Titles Act
, R.S.O. 1990, c.
    L.5, s. 51.
[6]


[93]

However,
    a prescriptive easement by lost modern grant continues to be available in
    Ontario outside the Land Titles system.  The requirements for acquiring one are
    well established.  The use must be continuous for the prescriptive period and
    it must be as of right.  This appeal turns on the as of right requirement.

[94]

As
    of right is a technical, legal phrase that consists of three elements.  First,
    the dominant owners use must be without violence or force.  In this context,
    violence is broadly defined  even use
, for
    example, in
the face of protest by the servient owner may demonstrate
    that the dominant owners use was not without violence.

[95]

Second,
    the dominant owners use must be without secrecy.  The law will not allow a
    prescriptive right to be acquired where the use has not been open.  If a
    dominant owners use has been covert, then it cannot be inferred that the
    servient owner acquiesced in the use.

[96]

Third,
    the dominant owners use must be without the servient owners permission. 
    Where use is by permission or on the consent of the servient owner, it cannot
    be said to be as of right.  Permission can be withdrawn at any time; thus use
    by permission is inconsistent with use as of right: see Ziff,
Principles
    of Property Law
, at p. 388; E. H. Burn and J. Cartwright,
Cheshire and
    Burns Modern Law of Real Property
, 17th ed. (Oxford: Oxford University
    Press, 2006), at pp. 614-15.

[97]

Blair
    J.A. summed up these three elements of as of right usage in
Kaminskas v. Storm,
at para. 30:

User as of right means that the use has been uninterrupted,
    open, peaceful and without permission for the relevant period of time.  It is
    often described using the Latin maxim
nec vi, nec clam, nec precario
(i.e., without force, without secrecy, and without precario). Precario in
    this sense is taken to mean [t]hat which depends not on right, but on the will
    of another person
Nec precario
, therefore, means without
    permission. [Internal citations omitted.]

[98]

Two
    points about these elements of as of right usage are important for this
    appeal.  First, what underlies all three elements is the notion of
    acquiescence.  Where a servient owner acquiesces in another persons use of
    land for a long period of time, and does nothing to prevent that use though
    able to do so, the law reasonably concludes that the use has been rightfully
    enjoyed  enjoyed as of right.  The law then protects this usage by granting
    a prescriptive easement.

[99]

In
Dalton v. Angus
(1881), 6 App. Cas. 740 (H.L.), Fry J. emphasized that
    prescriptive rights rest on acquiescence, at pp. 773-74:

But leaving such technical questions aside, I prefer to observe
    that, in my opinion, the whole law of prescription and the whole law which
    governs the presumption or inference of a grant or covenant rest upon
    acquiescence. The Courts and the Judges have had recourse to various expedients
    for quieting the possession of persons in the exercise of rights which have not
    been resisted by the persons against whom they are exercised, but in all cases
    it appears to me that acquiescence and nothing else is the principle upon which
    these expedients rest.

[100]

Admittedly, a
    fine line may well exist between acquiescence and implied permission or
    consent.  And, as I discuss next, the policy considerations surrounding a
    prescriptive easement may, in some contexts, argue for taking a generous view
    of implied permission.  Nonetheless, whether a servient owner acquiesces in
    anothers use of the property or impliedly permits or consents to its use turns
    on the facts of each particular case.

[101]

The second
    important point about as of right usage is that it does not depend on a
    dominant owners mistaken view of its rights.  The dominant owner knows that
    the servient owner owns the property in question, but uses it anyway.  As of
    right usage depends only on long, uninterrupted and unchallenged usage, which
    the servient owner could have prevented but did not.

C.

Policy considerations

[102]

The policy
    considerations relating to easements by prescription, and to this case in
    particular, are varied.

[103]

One obvious
    consideration is that awarding an easement by prescription burdens the servient
    owners 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
,
    at p. 384: 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 owners 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.

[106]

A final policy
    consideration applies directly to this case.  The courts should not propound
    rules that reward a dominant owners surreptitious behaviour and that
    discourage neighbours from approaching one another about potentially litigious
    issues.  Instead, the rules should encourage property owners to alert one
    another to concerns about mutual usage and to reach fair and reasoned
    resolutions to these concerns.

[107]

Moreover,
    holding that a dominant owners attempt to secure an agreement to use the
    servient owners property by itself defeats the acquisition of a prescriptive
    easement creates perverse incentives.  This holding encourages dominant owners
    to follow the very advice given by the appellants real estate lawyers: never
    contact the servient owner, never seek the servient owners consent or
    permission, pretend that your use is of right.   A dominant owner would have no
    incentive to try to reach an amicable agreement with the servient owner and
    every incentive not to do so.

[108]

By receiving a
    proposed agreement, a servient owner is also given notice of the dominant
    owners potential claim and, consequently, an opportunity to protect its
    interests.  For instance, a servient owner could always defeat the acquisition
    of a prescriptive easement by granting express permission to the use, or by
    insisting on a modest fee paid periodically.

D.

application to this case

(a)

Use of the lane before 1987

[109]

The application
    judge found  and this finding is not challenged on appeal  that from 1980-86,
    Ms. Orpen used the lane openly and without permission to access her parking at
    the back of 1043 Bloor West.  In other words, Sochaniwskyj acquiesced in her
    use.  Similarly, it would seem that Sochaniwskyj acquiesced in Vilhenas use
    from the time Vilhena purchased the property in 1986 to February 1987.

(b)

The 1987 document

[110]

In February
    1987, Vilhena asked Sochaniwskyj to sign an agreement giving Vilhena the right
    to use the lane to access his parking for five years, at an annual fee of
    $300.  Sochaniwskyj refused to sign the agreement.  What is the effect of
    Vilhenas proffering of the agreement, and of Sochaniwskyjs refusal to sign
    it, on the third element of as of right use  that the dominant owners use
    be without the servient owners permission?  That is the main question on
    appeal.

[111]

Both the
    application judge and my colleague say that the mere proffering of the
    agreement, though it was not signed, amounted to an acknowledgment by Vilhena
    that his use was not as of right: see
Garfinkel v. Kleinberg and
    Kleinberg
, at p. 394.  Gillese J.A. also says that Sochaniwskyjs refusal
    to sign the agreement shows that Vilhenas future use of the lane was only with
    Sochaniwskyjs permission.  Respectfully, I take a different view from that of
    the application judge and Gillese J.A.

[112]

I begin by
    looking at Vilhenas use up to February 1987, that is, up until the time he
    proffered the agreement.  Certainly, up until then, Vilhena used the lane
    without Sochaniwskyjs permission.  The evidence shows that Sochaniwskyj
    acquiesced in Vilhenas use.  And, nothing in the provisions of the proposed
    agreement suggests otherwise.

[113]

I then turn to
    the proffering of the agreement itself and to Sochaniwskyjs refusal to sign
    it.  Did either alter the basis on which Vilhena used the lane after February
    1987?

(i)

The effect of Vilhenas proffering of the agreement on his future use of
    the lane

[114]

By proffering
    the agreement, Vilhena unquestionably sought Sochaniwskyjs permission to use
    the lane.  But because Sochaniwskyj refused to sign the document, there was no
    agreement  no meeting of the minds  and therefore no acknowledgment of the
    basis of Vilhenas later use of the lane.  His later use could have been with
    Sochaniwskyjs permission, or it could have been with Sochaniwskyjs
    acquiescence, or it could have been in the face of Sochaniwskyjs protests. 
    That was a factual question the unsigned agreement does not resolve, and the
    application judge did not determine.

[115]

Gillese J.A.
    suggests that because the proposed agreement was an acknowledgement of Sochaniwskyjs
    title, it stopped the clock from running.  I disagree.  It seems to me that
    Vilhenas acknowledgment that Sochaniwskyj had legal title to the lane is
    irrelevant to the question whether Vilhenas use was as of right.  As I said
    earlier, usage as of right does not mean usage based on a mistaken view of who
    holds legal title.  Vilhena always knew and acknowledged that Sochaniwskyj
    legally owned the lane.  Vilhenas claim to a prescriptive easement was based
    on his uninterrupted usage and Sochaniwskyjs acquiescence to that usage.

[116]

Therefore, I
    conclude that the unsigned February 1987 agreement, standing alone, did not
    amount to an acknowledgement by the dominant owner [Vilhena] that his user is
    not as of right:
Garfinkel
, at p. 394.  Because Sochaniwskyj did not
    sign the agreement, the agreement did not amount to an acknowledgment of
    anything.  Therefore, by itself, the agreement did not interrupt the running of
    the prescriptive period.  The policy considerations that I referred to earlier
    support this conclusion.

(ii)

The effect of Sochaniwskyjs refusal to sign the agreement

[117]

Gillese J.A.
    says that, by refusing to sign the agreement, Sochaniwskyj was, in effect,
    telling Vilhena that any future use of the lane would only be with his
    (Sochaniwskyjs) permission.  She writes at para. 77 of her reasons:

By refusing to sign the 1987 document, Dr. Sochaniwskyj refused
    to grant Mr. Vilhena an easement over the lane. The legal effect of his refusal
    was tantamount to saying to Mr. Vilhena I will not give you any legal right to
    use the lane. I may permit you to use it, as I have in past, but only so long
    as I wish. By refusing to give you any legal right to use the lane, I am
    telling you that I can and will withdraw my permission at will. In other
    words, in law, the refusal to sign the 1987 document (i.e. grant the easement)
    made it clear that any future use by Mr. Vilhena of the lane was solely at the
    discretion of the Sochaniwskyjs.

[118]

And again at
    para. 79:

Here, as I have explained, the refusal to sign the 1987
    document made it clear that Mr. Vilhenas use was with the Sochaniwskyjs
    permission, and not as of right. Therefore, Mr. Vilhenas use did not meet the
    definition of as of right in
Kaminiskas
.

[119]

Respectfully,
    there is no evidence to support the conclusion that Sochaniwskyjs refusal to
    sign the agreement meant that Vilhenas later use, or indeed his previous use,
    was with Sochaniwskyjs permission.  If Vilhena had Sochaniwskyjs permission,
    then presumably Sochaniwskyj would have told him so, or signed the agreement,
    or negotiated another agreement.   But he did none of these things.  If
    anything, Sochaniwskyjs refusal to sign the
agreement
    showed that Vilhenas later use was not with Sochaniwskyjs consent. And,
    indeed, the evidence of Sochaniwskyjs subsequent conduct suggests that
    Vilhenas later use was
without
Sochaniwskyjs permission and against
    his will.

[120]

Therefore, in my
    view, neither Vilhenas proffering of the agreement nor Sochaniwskyjs refusal
    to sign it stopped the running of the prescriptive period.  To determine
    whether the prescriptive period was interrupted, we need to examine what
    actually happened after February 1987.

(c)

Use of the lane after February 1987

[121]

Vilhena said
    that he continued to use the lane after February 1987 as he had in the past. 
    Thus, he claims that his usage was open, uninterrupted and as of right. 
    Although the application judge made no finding about the basis on which Vilhena
    used the lane after February 1987, the evidence of what Sochaniwskyj did is not
    seriously disputed.  And, in my view, the evidence of Sochaniwskyjs conduct
    after he refused to sign the proposed agreement contradicts Vilhenas claim.

[122]

In 1989,
    Sochaniwskyj asked his son to have two commercial signs made by a sign
    company.  The signs said: Private Driveway Private Parking 1045 Bloor Street
    West.  They cost approximately $250.  At his fathers request, Sochaniwskyjs
    son bolted one sign to the side wall along the lane, angled towards the street
    about ten feet above the ground, and another to a steel post in the parking
    area in the back of the property.  Though Vilhena denied at trial that a sign
    was mounted in the lane, the respondents do not seem to dispute that it was in
    fact posted.

[123]

A couple of
    weeks later, the sign posted in the lane was removed and the other sign was
    knocked down.  It is unclear from the record who removed the signs, though
    Vilhena denied any involvement.  When asked why his father did not replace the
    signs, Sochaniwskyjs son testified that his father had not wanted to spend the
    money when he knew that they would just get taken down again.

[124]

Use as of
    right means use without violence.  Use without violence is broadly defined. 
    It means not only that there has been no physical obstruction of the easement,
    but also that the use did not proceed in the face of protests from the servient
    owner that might be seen as challenging the claimed right: Ziff,
Principles
    of Property Law,
at p. 388.

[125]

In the context of
    a dispute between neighbours, where the servient owner is a
    non-confrontational man, the posting of the signs was an overt act of protest
    that demonstrated the use was disputed.  The underlying policy considerations
    militate against the courts taking a narrow view of the meaning of protest in
    cases like this.  We should not require servient owners to take expensive,
    drastic, or aggressive measures to assert their rights, so long as their
    actions clearly signify that the use is contested.  The signs are enough, in my
    view, to show that Vilhenas use of the lane after February 1987 was not
    without violence.

[126]

For these
    reasons, I agree with the result reached by the trial judge and Gillese J.A and
    would dismiss the appeal.

E.

Conclusion

[127]

In my view, the
    1987 document by itself did not defeat the acquisition of a prescriptive
    easement by lost modern grant.  However, Sochaniwskyjs later posting of
    Private Driveway signs along the lane was sufficient to interrupt the running
    of the prescriptive period.  Accordingly, I would dismiss the appeal.

John
    Laskin J.A.

MacPherson (Concurring):

[128]

I agree with
    Gillese J.A. that the 1987 incident interrupted the prescriptive period and
    with her analysis in support of this conclusion.

[129]

I agree with
    Laskin J.A. that Sochaniwskyjs later posting of Private Driveway signs
    along the lane was sufficient to interrupt the running of the prescriptive
    period and with his analysis in support of this conclusion.

[130]

On either basis,
    the prescriptive period did not run for the required 20 years. Accordingly, I
    too would dismiss the appeal.

Released: February 14, 2013 (J.L.)

J.C.
    MacPherson J.A.





[1]
In the proceedings below, the lane is sometimes referred to as a driveway.



[2]
1043 migrated to the Land Titles system on April 28, 2003.  It was undisputed
    at trial that any prescriptive rights had to have accrued prior to that date.



[3]
The rear part of the lane was a garden during this period.  Although claimed at
    first instance as part of the right of way, in oral submissions in this court,
    the appellant stated that no claim was made to that rear part of the lane.



[4]
In these proceedings, the respondent took the position that the Notice was
    fraudulent, void and of no effect as against it.



[5]
A servient owner is the owner of land over which one exercises an easement.  A
    dominant owner is an owner who seeks the right to an easement.



[6]
The lane and adjoining property at issue in this dispute were transferred into
    the Land Titles system in 2003.  Thus, the appellant had to establish the
    requisite use during a 20 year period before 2003.


