



COURT OF APPEAL FOR ONTARIO

CITATION: English v. Perras, 2018 ONCA 649

DATE: 20180718

DOCKET: C64729

Hoy A.C.J.O., Brown and Trotter JJ.A.

BETWEEN:

James English and Jill Perry

Respondents (Applicants)

and

David Perras and Brenda Perras

Appellants (Respondents)

Roxie Graystone, for the appellants

Roberto D. Aburto and Jacob Polowin, for the respondents

Heard: May 17, 2018

On appeal from the judgment of Justice Sally A. Gomery of
    the Superior Court of Justice, dated December 8, 2017, with reasons reported at
    2017 ONSC 7365.

Trotter J.A.:

A.

introduction

[1]

This appeal involves a dispute between neighbouring homeowners over a
    14-foot wide strip of land between their houses. There are garages at the rear
    of the lots, accessed exclusively via this strip of land. The property line
    runs down the middle of this strip, leaving enough space for cars to pass on
    each side.

[2]

In these proceedings, this strip of land has been casually referred to as
    the Shared Driveway. However, the land consists of two abutting driveways.
    The issue to be determined on this appeal is the legal significance of historical
    incursions by one neighbour on the property of the other.

[3]

In recent years, there have been ongoing disputes about the use and
    maintenance of this land. The rancour worsened when Mr. and Mrs. Perras (the
    Perrases) erected a fence down the centre of this strip of land, just inside their
    property line. The fence leaves enough room for the Perrases to drive vehicles from
    the road to their garage.

[4]

It is a different story for Mr. English and Ms. Perry. There is a retaining
    wall at the front of their house that narrows their driveway. Without the
    retaining wall, they would be able to use their driveway; with it, they cannot.

[5]

Despite the conflict between the current owners, their legal rights fall
    to be determined largely by the conduct of their predecessors in title, in more
    peaceful times. The application judge found that, as a result of the historical
    use of the disputed land, Mr. English and Ms. Perry are entitled to a
    prescriptive easement over the Perrases driveway. She ordered the Perrases to
    remove their fence.

[6]

The Perrases appeal, contending that the requirements for a prescriptive
    easement have not been established. For the reasons that follow, I would allow
    the appeal and set aside the order of the application judge.

B.

summary of the facts

(1)

The parties and the houses

[7]

The two houses were built in Ottawa sometime prior to 1928. The Perrases
    acquired title to 373 Third Avenue (373) on March 28, 2003. Mr. English and
    Suzanne English (the Englishs) bought 371 Third Avenue (371) as joint
    tenants in 1980. Title was transferred solely to Mr. English in 1994. Jill
    Perry moved into the home in 2006, and they married in 2014.

[8]

Leading up to the purchase of 371 in 1980, the Englishs lawyer obtained
    a land survey from Fred H. Gooch (the Gooch survey). In his letter
    instructing Mr. Gooch, dated December 29, 1979, the lawyer wrote:

I draw your attention [to] one unusual matter. There appears to
    be a common driveway used by the present owner of 371 Third Avenue along with
    his immediate westerly neighbour at 373 Third Avenue.
There is nothing
    contained in the titles or in any deeds suggesting a common driveway
.
    [Emphasis added.]

[9]

In a survey dated January 22, 1980, Mr. Gooch described a mutual
    right-of-way over the strip of land between the houses. On the application,
    there was no explanation of why Mr. Gooch came to legally characterize this land
    as he did.

(2)

The Agreement

[10]

A
    few weeks after the survey was prepared, on February 26, 1980, the predecessors
    in title to 371 and 373 entered into an agreement concerning the abutting
    driveways. The Perrases refer to this document as the Easement Agreement; Mr.
    English and Ms. Perry prefer the Driveway Agreement. What is important is the
    substance of the document, not the parties attempts to label it in a manner
    that suits their own purposes. The document describes itself as this
    Agreement and contains no reference to a driveway or an easement. I will
    refer to it as the Agreement.

[11]

First
    and foremost, the Agreement recorded mutual grants of a right-of-way over
    portions of the strip of land between 371 and 373. It then provided that the
    said laneway would be used to access the rear of both lots and that the
    parties agreed not to block the said common laneway with cars or other
    objects. The parties also agreed to split the cost of necessary repairs or
    maintenance. Significantly, the Agreement was limited to 21 years, less a day.

[12]

The
    Agreement was registered on the title of 371 on February 29, 1980. This was the
    very same day that the Englishs acquired title to this property. The Agreement
    expired in February of 2001, just over two years before the Perrases acquired
    373.

(3)

Prior use

[13]

There
    was little evidence as to the use of the property between the houses over the
    years. The application record included historical maps, as well as aerial
    photos taken at various times, mostly of poor quality. The photos show the
    space between the two houses, and garages at the back of the lots.

[14]

In
    one of his affidavits filed on the application, Mr. English interpreted the
    photos and maps and asserted that there has been continuous use of the Shared
    Driveway by the owners of 371 for the purposes of, at the very least, ingress
    and egress dating back to at least 1928. Mr. English referred to the Gooch
    Survey, as well as the Agreement (both of which were attached to his first
    affidavit). Mr. English made no reference to the 21-year limitation in the
    Agreement, nor did he mention the retaining wall, which is discussed in more
    detail below.

[15]

Mr.
    English and Ms. Perry also relied upon the affidavit of Brian MacNamara. His
    parents purchased 373 in 1957, and his mother sold the property to the Perrases
    in 2003.

[16]

Mr.
    MacNamara lived at 373 continuously between 1957 and 1976, and then visited
    about once a month from 1976 to 1979, while he was in school. He swore that,
    during this time, the residents of 371 and 373 passed over a portion of each
    others driveway as they drove their cars to and from the parking spaces to the
    rear of the properties.

[17]

Mr.
    MacNamaras affidavit is lacking in certain respects. It is silent about his
    age at the relevant times. The Perrases assert that he may have been a child
    when he made some of his observations. The application judge dismissed this
    concern, at para. 16, noting that Mr. MacNamara could have been cross-examined.
    Mr. MacNamaras affidavit sheds no light on any arrangement his parents may
    have had with their neighbours about the use of the land. Significantly, the
    affidavit is silent on the Agreement, entered into just before the Englishs
    bought the neighbouring property in 1980. The Agreement remained in force until
    2001, shortly before Mr. MacNamaras mother sold 373 to the Perrases.

(4)

The fence and the retaining wall

[18]

According
    to Mr. Englishs first affidavit, by 2015, the driveways were in serious need
    of repair. A dispute arose about the costs of the repair. On November 16, 2016,
    the Perrases began construction on their fence, which was completed two days
    later.

[19]

In
    his first affidavit, Mr. English asserted that he and Ms. Perry have been
    denied full enjoyment of the property because they can no longer access the two
    parking spots at the rear of their property. They have been forced to park on
    the street, resulting in numerous parking tickets.

[20]

As
    noted above, there is a retaining wall on the front lawn of 371, narrowing its
    driveway. Recent photographs show that it is quite prominent. The wall juts out
    such that, for the walls entire length, the 371 driveway is not flush with the
    house. Mr. Englishs affidavit is silent about the retaining wall. It is not
    mentioned in Mr. MacNamaras affidavit. Thus, there is no evidence about when
    it was built, nor for what purpose.

[21]

The
    single reference to this structure in the record is found in the affidavit of
    Brian Webster, a land surveyor retained by the Perrases. He conducted a survey
    on June 9, 2017. Mr. Webster referred to it as a rock retaining wall and
    indicated that it reduces the width of the 371 driveway by almost two feet. On
    appeal, counsel for Mr. English and Ms. Perry assert that there is no evidence
    that the use of the driveway is impeded by the retaining wall. However, this is
    obvious from Mr. Websters affidavit, his survey, and the photographs filed on
    the application. Moreover, the application judge found this as a fact (at para.
    4).

[22]

Mr.
    English swore a second affidavit, this time in response to Mr. Websters
    affidavit. In this affidavit, Mr. English recounted what his lawyer had told
    him in 1980 about the shared use of the disputed land in the absence of any
    shared use agreement. He also said that, during his time at 371 (since 1980),
    he passed over the property line in accessing and leaving his parking spots at
    the back of the house. His neighbours did the same. Significantly, in this
    second affidavit, which is meant to be in response to Mr. Websters, Mr.
    English again makes no reference to the retaining wall.

C.

reasons of the application judge

[23]

The
    application judge concluded that Mr. English and Ms. Perry should succeed,
    finding that they acquired a prescriptive easement based on the doctrine of
    lost modern grant.

[24]

The
    application judge found that the predecessors in title had used a portion of
    each others property over the years, as of right, and not by permission. She
    disagreed that the Agreement, signed in early 1980, undermined the claim; instead,
    she found that it clarified the mutual rights of the owners at the time.

[25]

The
    application judge also found that the use of the disputed land was reasonably necessary
    to the enjoyment of 371. The retaining wall was critical to this aspect of her
    decision. The application judge recognized, at para. 4, that there is not
    enough space to drive a car between the fence and a retaining wall that runs
    along the outer side of the driveway on 371Mr. and Mrs. Perras still have the
    use of the driveway,
because there is no similar retaining wall on 373
 (emphasis
    added). However, she ultimately held, at para. 31, that there was no reason to
    assume that the retaining wall was not practically necessary; nor was she
    prepared to conclude that the wall could be removed (para. 32).

D.

issues on appeal

[26]

The
    Perrases argue that the application judge erred in her application of the
    doctrine of lost modern grant by: (1) finding that the use of the driveway had
    been as of right, as opposed to by permission, and (2) finding that the
    easement was reasonably necessary to the enjoyment of 371. The latter argument
    turns on the significance of the retaining wall.

E.

analysis

(1)

Introduction

[27]

The
    Perrases challenge the application judges conclusion that an easement had been
    acquired through the doctrine of lost modern grant. The essential features of
    an easement are set out in
Barbour v. Bailey
, 2016 ONCA 98, 345 O.A.C.
    311, in which Roberts J.A. wrote, at para. 56:

To make out an easement, a claimant must satisfy the following
    four essential characteristics of an easement or right-of-way:

i. There must be a dominant and servient tenement;

ii. The dominant and servient owners must be different persons;

iii. The easement must be capable of forming the subject matter
    of a grant; and

iv. The easement must accommodate  that is, be reasonably
    necessary to the better enjoyment of  the dominant tenement.

See also
Depew v. Wilkes
(2002), 60 O.R. (3d)
    499 (C.A.), at paras. 18-23;
Kaminskas v. Storm
, 2009 ONCA 318, 95
    O.R. (3d) 387, at paras. 26-28; Bruce H. Ziff,
Principles of Property Law
,
    6th ed. (Toronto: Carswell, 2014), at pp. 381-85; Anne Warner La Forest,
Anger
    & Honsberger Law of Real Property
, loose-leaf (2017, Rel. 19), 3rd ed.
    (Toronto: Thomson Reuters), vol. 2, at p. 17-3.

[28]

The
    doctrine of lost modern grant is recognized as a method for acquiring a prescriptive
    easement. It involves requirements in addition to the constituent elements of
    an easement. In
1043 Bloor Inc. v. 1714104 Ontario Inc
.
, 2013
    ONCA 91, 114 O.R. (3d) 241, Laskin J.A. described the doctrine in the following
    way, at para. 91:

[T]he acquisition of a prescriptive easement by lost modern
    grant rests on a judicial fiction. The law pretends that an easement was granted
    at some point in 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

See also Charles Harpum, Stuart Bridge & Martin
    Dixon,
Megarry & Wade: The Law of Real Property
, 8th ed. (London:
    Sweet & Maxwell, 2012), at pp. 1309-11; Ziff, at pp. 392-93.

[29]

In
    Ontario, there are certain restrictions on prescriptive easements; they have
    been abolished with respect to properties registered in the Land Titles system:
Land Titles Act
, R.S.O. 1990, c. L.5, s. 51. Consequently, the 20-year
    period must precede the transfer of property into the Land Titles system. In
    this case, both properties were registered in the Land Titles system in 1996. Accordingly,
    Mr. English and Ms. Perry were required to prove uninterrupted and
    unchallenged use for any 20-year period before 1996: see
Kaminskas v.
    Storm
, at para. 31.

[30]

The
    courts have insisted on a high standard for establishing a prescriptive
    easement by lost modern grant. Numerous policy reasons are offered in support
    of this cautious approach. The recognition of such a claim burdens the servient
    owners property, without any compensation:
1043 Bloor Inc.
, per
    Laskin J.A., at paras. 102-104. See also
Ebare v. Winter
(2005), 193
    O.A.C. 174 (C.A.), at paras. 27-28. Moreover, as Cory J.A. said in
Henderson
    v. Vouks
(1982), 35 O.R. (3d) 379 (C.A.), 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. See also
1043 Bloor Inc
.,
    per Gillese J.A., at para. 83;
Carpenter v. Doull-MacDonald
, 2018 ONCA
    521, at para. 6.

[31]

There
    are countervailing concerns. As Laskin J.A. also points out in
1043 Bloor
    Inc
.
, at para. 105, 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.

[32]

The
    outcome of this case should not be understood as an endorsement of the Perrases
    aggressive conduct in erecting the fence. It is not behaviour that is worthy of
    reward. Quite the contrary. Nevertheless, in this case, it is the conduct of
    the predecessors in title during the putative prescriptive period (1957 to
    1979) that matters, not that of the present-day owners. I turn now to the
    prescriptive period.

(2)

Land not used as of right

[33]

The
    key issue in this case is how to characterize the use of the land during the
    prescriptive period. As Laskin J.A. noted in the above-quoted passage of
1043
    Bloor Inc.
, the use must be uninterrupted and unchallenged throughout the
    20-year period. And the use must be as of right, not by permission.

[34]

This
    element has been emphasized in a number of this courts decisions. In
Henderson
    v. Volk
, Cory J.A. said, at p. 383: the enjoyment must not be permissive.
    That is to say, it cannot be a user of the right-of-way enjoyed from time to
    time at the will and pleasure of the owner of the property over which the
    easement is sought to be established. In
Kaminskas v. Storm
, Blair
    J.A. said, 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. In
Mason v. Morrow

(1998), 114 O.A.C. 194 (C.A.), this court
    said, at para. 5: user permitted through good-neighbourliness, and enjoyed on
    that basis, is not sufficient to acquire an easement by prescription. See also
Garfinkel v. Kleinberg and Kleinberg
, [1955] O.R. 388 (C.A.), at p.
    398;
1043 Bloor Inc
.
at paras. 58-61, per Gillese J.A.; and Ziff,
    at pp. 392-93.

[35]

There
    is sometimes a fine line between acquiescence in anothers exercise of
    easement-like rights and use by permission: see
1043 Bloor Inc
.
at
    para. 100, per Laskin J.A.;
Condos and Castles Realty Inc. v. Janeve Corp
.
,
    2015 ONCA 466, 255 A.C.W.S. (3d) 777, at para. 19; Ziff, at p. 393. As such,
    there must be clear and unambiguous evidence that the use of the land was as of
    right and not by permission:
Carpenter v. Doull-MacDonald
, 2017 ONSC
    7560, 287 A.C.W.S. (3d) 580, at paras. 50-51, affd 2018 ONCA 521. If the
    evidence is equally consistent with both uses, a claim based on lost modern
    grant must fail: see
Mason v. Morrow
, at para. 5.

[36]

In
    this case, the evidence did not establish anything more than permissive use
    during the prescriptive period. At best, the evidence showed that the occupants
    of 371 and 373 permitted each other to cross the property line as they went to
    and from their parking spots. There was no evidence that the occupants of
    either dwelling did so as a matter of right: see
Jaz Management Services
    Ltd. v. VBI Group Inc.
, 2013 ONCA 644, 235 A.C.W.S. (3d) 550, at para. 2.

[37]

The
    application judge placed great reliance on the evidence of Mr. MacNamara. His
    evidence tended to support the respondents claim, but only to a limited
    extent. He described the conduct of the occupants of 371 and 373, but he failed
    to shed any light on how his parents regarded this situation from a legal point
    of view.

[38]

The
    application judge also relied on the Gooch survey. However, it is impossible to
    get beneath the surface of his survey. There is no explanation for his
    conclusion on the issue that is the very subject matter of this litigation.
    Without more, it was worthless.

[39]

Nevertheless,
    having accepted this evidence, the application judge, at para. 21, referred to
Condos
    and Castles
, in which Lauwers J.A. said, at para. 17: Once the appellant
    had proven facts that support the inference of acquiesce[nce] in 20 years of
    use, the evidentiary burden passed to the appellant to lead evidence to rebut
    the inference by proving the use was by way of permission. The application
    judge held that there was no evidence to rebut this inference. I respectfully
    disagree.

[40]

The
    Agreement was compelling evidence that the use during the prescriptive period was
    by way of permission. I do not accept the conclusion that this document merely
    clarified the existing rights of the owners at the time, crystallizing in 1979.
    If this were the case, and there had been a pre-existing right-of-way, it would
    make no sense to enter into an Agreement that limited its operation to 21
    years. The record suggests that both owners were unsure of their respective
    rights. This is all the more significant because one of the signatories to the
    Agreement was Harry MacNamara, who had lived at 373 during the prescriptive period
    that his son purported to describe. The Agreement undermines the value of his
    sons affidavit.

[41]

The
    Agreement must be viewed from a broader perspective. The Englishs were
    interested in buying 371. The letter from their lawyer to the surveyor, referenced
    in para. 8 above, demonstrates concern about his clients ability to use this
    land. Despite having a survey that described an unregistered right-of-way, the
    Englishs took title to 371 knowing that the Agreement, time-limited as it was,
    had been registered on title that very same day.

[42]

The
    application judge discounted the value of Agreement, having found that the
    right-of-way already existed when it was signed. As she said at para. 25 of her
    reasons:

If an easement already existed based on 20 years of
    uninterrupted, continuous and peaceful use,
it did not wink back out of
    existence just because the parties' predecessors in title failed to recognize
    it at the time
. The failure of property owners to formally recognize an
    easement is the whole rationale for the doctrine of the lost modern grant.
    Neglecting to record the easement on title does not defeat it, if the claimant
    can prove that it exists. Similarly, neglecting to recognize the right in a
    private agreement does not defeat the claim, if the court agrees that an
    easement existed prior to its signature. [Emphasis added.]

[43]

The
    question before the application judge was not whether the easement had winked
    out of existence; it was whether it existed in the first place. The fact that
    the Agreement was entered into at all was compelling evidence that the
    predecessors in title had been acting as good neighbours in permitting
    incursions on each others property.

[44]

Respectfully,
    I find that the application judge committed palpable and overriding error in
    finding that the evidence of Mr. MacNamara and the Gooch survey supported the
    inference of acquiescence in 20 years of use. The Agreement made that inference
    untenable. Alternatively, if the MacNamara evidence and Gooch survey did
    support the inference, it was rebutted by the Agreement. Either way, the claim
    for a prescriptive easement must fail.

[45]

Before
    leaving this ground of appeal, I note that it is possible for an easement to be
    released, expressly by agreement or impliedly through abandonment: see Ziff, at
    pp. 397-98; Jonathan R. Gaunt, Q.C. & Sir Paul Morgan,
Gale on
    Easements
, 20th ed. (London: Sweet & Maxwell, 2017), c. 12; La Forest,
    vol. 2, at pp. 17-27 to 17-28. It would appear that this was not a live issue
    on the application. On appeal, neither counsel wished to pursue this line of
    thought when raised by the panel. This is not meant to be critical of counsel.
    It may be that the record, which was already sparse, was incapable of
    clarifying whether the parties to the Agreement intended to create a
    time-limited right-of-way, or whether they meant to mutually release and/or
    vary a pre-existing easement.

(3)

Necessary to the enjoyment of the property

[46]

The
    Perrases also argue that the application judge erred in finding that a right-of-way
    is reasonably necessary to the enjoyment of 371. I accept that the use of the 371
    driveway is reasonably necessary to the enjoyment of 371. However, the question
    is whether the claimed prescriptive easement is reasonably necessary to the
    enjoyment of 371, including its driveway. As discussed below, the retaining
    wall is critical to this decision. If it were not for the retaining wall, Mr.
    English and Ms. Perry would be able to use their driveway. This raises the
    question of whether there is an alternative solution that would allow Mr.
    English and Ms. Perry to reasonably enjoy their property and its driveway
    without resort to a prescriptive easement (that is, by removing the retaining
    wall).

[47]

In
Depew v. Wilkes
,

at para. 23, Rosenberg J.A. held that reasonable
    necessity for the better enjoyment of the dominant tenement is a requirement
    for a prescriptive easement. As he explained at para. 24:

The reasonable necessity requirement is fact specific and must
    be applied in a flexible manner. As was said in [Oosterhoff, A.H., and W.B.
    Rayner,
Anger & Honsberger: Law of Real Property
, 2nd ed. (Aurora:
    Canada Law Book, 1985)]at p. 927:

What is reasonably necessary must be a flexible criterion
    and have reference to current social conditions and the prevailing patterns and
    trends of conduct. What today might not be regarded to be a reasonable amenity
    for the better enjoyment of a property might be regarded as a reasonable
    amenity tomorrow.

[48]

In
    that case, this court upheld the trial judges conclusion that, even though other
    parking for cottagers was available nearby, the putative easement claimed over
    parking spaces adjacent to the cottages was reasonably necessary. As Rosenberg
    J.A. held at para. 26, the fact that an alternative exists does not preclude a
    finding that the easement is reasonably necessary for the better enjoyment of
    that tenement.

[49]

Depew

was followed in the recent case of
Barbour v. Bailey
. In that case,
    the applicant brought a claim for possessory title by adverse possession, or
    alternatively a prescriptive easement. The applicant owned a cottage on an island
    that was accessible by a footpath that joined the island with a beach. Both the
    footpath and the beach were property of the respondent, who objected to the
    claim. While the footpath provided the more convenient route to the island, the
    claimant and her family could also access the island by boat or by wading
    through the water.

[50]

After
    referring to the passage from
Depew v. Weekes
cited above, Roberts
    J.A. observed, at para. 58, that not every use will be reasonably necessary
    for the purposes of establishing a right to an easement. There must be a
    connection between the easement and the normal enjoyment of the dominant
    tenement... She observed that reasonably necessary usually involves
    practical uses, such as parking spaces and driveways: para. 58, citing
Depew
    v. Wilkes
and
Carlini v. Hammoud
, 2011 ONCA 285, 200 A.C.W.S.
    (3d) 1206. She concluded, at para. 90, that despite there being alternatives to
    the footpath to reach the island, it did not prelude a finding that pedestrian
    use of a footpath was necessary to the reasonable enjoyment of the claimants property.
    As she said, pedestrian access is connected with the normal enjoyment of the cottage
    property.

[51]

As
    I have noted above, the question of whether an easement is reasonably necessary
    for the enjoyment of 371 turns largely on the retaining wall. The application
    judge, at para. 4, accepted that without the retaining wall, Mr. English and
    Ms. Perry would be able to use their driveway. However, she was not persuaded
    that the existence of the retaining wall undermined the contention that the
    right-of-way was reasonably necessary to the enjoyment of 371. As she said at
    paras. 31- 32 of her reasons:

This argument is speculative. Mr. Webster does not say when the
    retaining wall was built or the purpose it serves. There is no reason to assume
    that it is not practically necessary. In fact, Mr. Webster's use of the term
    "rock retaining wall" as opposed to "decorative rock wall"
    or simply "rock wall" suggests the opposite. There is also no
    evidence on when the wall was constructed. It may have been there since the
    house at 371 Third Avenue was built.

In these circumstances, I cannot conclude that Mr. English and
    Ms. Perry could simply get rid of the retaining wall.
Mr. Englishs sworn
    statement that the easement is required for access to the back property is
    uncontradicted. I find that a right-of-way is reasonably necessary to the
    enjoyment of 371
. [Emphasis added.]

[52]

Respectfully,
    the application judge engaged in impermissible speculation to reach her conclusion
    on this issue. In doing so, she reversed the onus of proof, requiring the
    Perrases to establish that the easement was not necessary, and that the wall
    could be taken down. While the onus may shift on the issue of acquiescence and
    permission, in the manner described in
Castles and Condos
, it does not
    shift on this issue. It was up to Mr. English and Ms. Perry to establish that
    the easement was reasonably necessary to the enjoyment of 371. The history of
    the retaining wall was important.

[53]

To
    use a simple example, suppose Mr. English and Ms. Perry were carless when the
    fence went up. Being disinterested in the vehicular use of their driveway, they
    decide to build the retaining wall for aesthetic reasons. Having later decided
    to use cars again, they would be hard-pressed to argue that the fence must come
    down because an easement was reasonably necessary to their enjoyment of 371. In
    these circumstances, they would be the authors of their own misfortune.

[54]

On
    the evidence before the application judge, Mr. English and Ms. Perry stood in a
    similar position, in the sense that they did not prove that the easement was
    reasonably necessary to their enjoyment. In his second affidavit, Mr. English
    decided to remain silent on the provenance of the retaining wall, even after
    the Webster affidavit put the issue squarely in play. He did so at his own
    peril. His assertion that the easement was reasonably necessary to the enjoyment
    of 371 was just that  a factual claim. The application judge erred by
    essentially treating it as a legal conclusion on one of the elemental features
    of an easement.

[55]

I
    would also allow the appeal on this ground.

F.

conclusion

[56]

I
    would allow the appeal and set aside the order of the application judge.

[57]

It
    was agreed between counsel that the successful parties should have costs of
    $20,000, inclusive of HST and disbursements. Accordingly, the appellants shall
    have their costs in this amount for the appeal. The costs order in favour of
    the respondents in the court below is set aside. In its place, and giving
    effect to the agreement of counsel, the appellants are entitled to $10,000, also
    inclusive of HST and disbursements.

Released: AH JUL 18 2018

Gary T. Trotter J.A.

I agree. Alexandra Hoy A.C.J.O.

I agree. David Brown J.A.


