





CITATION:
Carlini
v.
Hammoud
, 2011
          ONCA 285



DATE: 20110412



DOCKET: C50719



COURT OF APPEAL FOR ONTARIO



Cronk, MacFarland and Rouleau JJ.A.



BETWEEN



Anthony
          Carlini, the Personal Representative of the

Estate of
          Maria Carlini, deceased



Applicant (Respondent in Appeal)



and



Abdullah Hammoud



Respondent (Appellant)



James K. Ball, for the appellant



Steven D. Bezaire, for the respondent



Heard and released orally: March 29, 2011



On appeal from the judgment of
          Justice R. J. Harper of the Superior Court of Justice, dated June 8, 2009.



ENDORSEMENT



[1]

This case concerns the determination of whether
    the respondent estate enjoys a prescriptive easement over a disputed driveway.

[2]

The appellant challenges the application judges
    conclusion that the respondent estate does enjoy a prescriptive easement over
    the driveway based on the continuous, frequent, uninterrupted, open and
    peaceful use of the driveway, without express permission, since 1978 by the
    deceased, Maria Carlini, and/or her family members.

[3]

We see no basis on which to interfere with the
    application judges disposition.  A right
    enjoyed by a person over the land of another has the status of an easement if
    it accommodates and serves the dominant tenement and it is reasonably necessary
    for the better enjoyment of that tenement: see
Depew v. Wilkes
(2002), 60 O.R. (3d) 499 (C.A.), at para. 19.

[4]

The dominant tenement in this case was the
    property owned by Mr. and Mrs. Carlini senior.  On the evidence accepted by the application judge, the driveway was
    originally owned exclusively by them and was used by them, and by their sons
    and others, in a variety of ways to facilitate the better enjoyment of the
    Carlinis property.  After they severed
    their property in 1978, and sold the lot on which the disputed driveway is
    located (the servient tenement) to one of their sons and his wife, usage of the
    driveway to facilitate the enjoyment of their property (the dominant tenement)
    continued without objection until the servient tenement was resold to the
    appellant in 2007.  The prescriptive
    easement, therefore, was established well prior to the sale of the servient
    tenement to the appellant.

[5]

None of these parties, save the appellant, were
    strangers to one another.  On the
    contrary, they were all family members who collectively used the driveway for a
    host of purposes associated with the better enjoyment of the dominant
    tenement.  These facts distinguish this
    case from
Temma Realty Co. Ltd. v. Ress
    Enterprises Ltd.
, [1968] 2 O.R. 293 (C.A.).

[6]

The uses in question were conventional uses
    associated with vehicular access to a residential property, including a garage.  The driveway in question was and remains the
    only access route to the garage.

[7]

The credibility-based factual findings of the
    application judge regarding the use of the driveway by the owners of the dominant
    tenement and their agents are supported by the evidential record.  These findings attract deference from this
    court.  Although
neither
    Mr. or
Mrs. Carlini senior drove a car, the evidence nonetheless
    established the requisite pattern of use of the driveway by Mr. and Mrs.
    Carlini senior and others to enjoy vehicular access to the Carlinis residence
    and the associated garage, sufficient to ground a prescriptive easement.

[8]

As a final point, there appears to have been no
    dispute before the application judge as to the location and boundaries of the
    disputed driveway.  If the parties are
    unable to agree on the appropriate document to be registered on title to
    confirm the proper legal description of the property that is subject to the
    easement, the matter should be raised before the application judge for
    clarification and, if necessary, for further order by him.

[9]

The appeal is dismissed.  The respondent estate is entitled to its
    costs of the appeal fixed, as agreed by counsel, in the amount of $3,000,
    inclusive of disbursements and all applicable taxes.

E.A.
    Cronk J.A.

J.
    MacFarland J.A.

Paul
    Rouleau J.A.


