



COURT OF APPEAL FOR ONTARIO

CITATION: Condos and Castles Realty Inc. v. Janeve Corp.,
    2015 ONCA 466

DATE: 20150624

DOCKET: C59756

Juriansz, Lauwers and Huscroft JJ.A.

BETWEEN

Condos and Castles Realty Inc.

Applicant (Appellant)

and

Janeve Corp.

Respondent (Respondent)

Alfred S. Schorr, for the appellant

Andrea M. Habas, for the respondent

Heard: June 3, 2015

On appeal from the judgment of Justice Paul Perell of the
    Superior Court of Justice, dated November 17, 2014, reported at 2014 ONSC 6640.

Lauwers J.A.:

Overview

[1]

The application judge dismissed the appellants application for a declaration
    that it had a right-of-way over a private laneway behind some buildings on King
    Street West in Toronto. The application judge concluded that the appellants
    predecessors in title had not acquired a prescriptive easement over the laneway
    on the basis that there was more than 20 years of use of the private
    right-of-way but the use was by licence and not as of right.

[2]

There is no evidence to support the application judges factual finding
    that the respondents predecessor in title permitted his neighbours to cross over
    his property by way of licence and not as of right.  I would therefore allow the
    appeal.

The Factual Context

[3]

The physical layout of the relevant properties is set out in the
    following sketch, found in the application judges reasons at para. 21:



[4]

The appellant owns 842 King Street West, which abuts the right-of-way
    leading to the public lane depicted in the sketch. The respondent owns the four
    properties known municipally as 844-850 King Street West, as well as the
    right-of-way directly behind them. The issue is whether the appellants
    predecessors in title to 842 King Street West acquired from the respondents
    predecessor in title a prescriptive easement over the depicted right-of-way.

The Legal Principles

[5]

The appellant brought its application for a prescriptive easement on the
    basis that its predecessors in title exercised a continuous, uninterrupted,
    open and peaceful use of the private laneway as a right-of-way for vehicular
    and other traffic from the rear of its property westward to the public laneway,
    without the owners express consent, for over 20 years before the first
    registration of the property in the
Land Titles System
in 2003, taking
    into account s. 31 of the
Real Property Limitation Act
, R.S.O. 1990,
    c. L.15.

[6]

The appellants legal burden was to demonstrate a continuous,
    uninterrupted, open, and peaceful use of the land, without objection by the
    owner, as the application judge noted at para. 38, citing
394 Lakeshore
    Oakville Holdings Inc. v. Misek
, 2010 ONSC 6007, 98 R.P.R. (4th) 21. He
    added:

The evidence required to establish title by prescription will
    vary with the nature of the user. Where the use is notorious and the owner of
    the servient tenement makes no objection, then his or her acquiescence to the
    use as a right of the dominant tenement can more readily be inferred.

[7]

The application judge drew particularly on
Henderson v. Volk
, 35
    O.R. (2d) 379, [1982] O.J. No. 3138 (C.A.). He quoted and relied on para. 20 of
    this decision
,
where Cory J.A said
:

It is right and proper for the Courts to proceed with caution
    before finding that title by prescription or by the doctrine of lost modern
    grant is established in a case such as this. 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. It is reasonable to require those seeking to rely upon
    the
Limitations Act
or the doctrine of lost modern grant to establish
    by clear evidence both a continuous use and acquiescence in such use by the
    owner of the servient tenement.

[8]

With respect, however, these words must be understood in the context.
Henderson
    v. Volk
involved pedestrian use of property between two residences. Cory
    J.A. explained that the distinction between vehicular and pedestrian traffic
    was significant. He said at paras. 18-19:

The evidence required to establish title by prescription will
    vary with the nature of the user. The use of a passageway by noisy delivery
    trucks would be hard to hide. The use of a lane for passage by tractor trailer
    rigs with motors roaring and air brakes hissing would be difficult to disguise.
    In those instances the owner of the servient tenement can readily be taken to
    know of the user of his property. If he makes no objection then his
    acquiescence to the use can readily be inferred.

It is different when a party seeks to establish a right-of- way
    for pedestrians over a sidewalk. In those circumstances the user sought to be
    established may not even be known to the owner of the servient tenement. In
    addition, the neighbourly acquiescence to its use during inclement weather or
    in times of emergency such as a last minute attempt to catch a bus, should not
    too readily be accepted as evidence of submission to the use.

[9]

In my view, the inconspicuous nature of pedestrian traffic distinguishes
Henderson

from this case, which concerns vehicular traffic. In
    a case of straightforward vehicular use of a laneway as a right-of-way, the
    applicable principle is more direct, as Laskin J.A. pointed out in
1043
    Bloor Inc. v. 1714104 Ontario Inc.
, 2013 ONCA 91, 114 O.R. (3d) 241, at
    para. 105: [T]he 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.

[10]

There is
    no doubt that the burden of proof is and remains on the claimant in such cases,
    but the evidentiary burden may shift as the evidence unfolds. That is what
    occurred in this case.

The Evidence

[11]

All five
    subject properties. 842-850 King Street West, were part of a subdivision
    registered in 1874. On November 8, 1982, David Chan registered four of the
    properties, 844-850 King Street West, under survey Plan 63R-2752. The
    application judge noted, at para. 23 :

It can be inferred from the registration of survey Plan
    63R-2752 that Mr. Chan was positioning himself to sell the four properties
    comprising 844-850 King St. West as four discrete properties. Of these four
    properties, 850 King St. West had access to the public lane, and to afford the
    remaining three properties access to the public laneway, Mr. Chan created
    registered mutual private rights-of-way.

[12]

When
    survey Plan 63R-2752 was registered in 1982, Agostino and Maria Lopes (now
    deceased) were the registered owners of 842 King Street West, the neighbouring
    property to the east. In December 2001, the Lopes sold the property to Patricia
    Pelech, who sold it to Inner City Films, the respondents immediate predecessor
    in title, in September 2005.

[13]

The trial
    judge observed, at para. 24, that 842 King St. West was a family home, and
    there is evidence that family members parked their vehicles at the rear of 842
    King St. West and used the private right-of-way to access the public laneway.

[14]

Morry Katz
    was a tenant in the house at 844 King St. West from 1982 or 1983 until 2010. His
    son, Michael, then occupied the house until 2012. The Lopes family were the
    Katz's neighbours. Mr. Morry Katz testified that he saw various members of the
    Lopes family drive their vehicles across the private-right-of-way. His own
    belief was that the private right-of-way was a public road. The application
    judge noted, at para 27:

There is evidence from Mr. Morry Katz and from the documents
    filed on the Application that indicates that there was a garage for cars on 842
    King St. West but that the garage was removed, probably by Ms. Pelech.

[15]

The
    application judge also noted, at para 41, that the real estate listing
    agreement on the sale of 842 King St. West from Inner City Films to the
    appellant stated there was a right-of-way to parking at the rear of the
    property.

Analysis

[16]

After
    reciting the foregoing evidence, the application judge found there was more
    than 20 years use of the private right-of-way but he went on to add at para.
    40:

but the use was by licence and not as of right. It appears
    that Mr. Chan permitted his neighbours to cross over his property and
    there was no reason for him to think that Ms. Pelech and the Lopes were using
    his private right-of-way as if they had an ownership right to do so.

[17]

Mr. Chan
    did not testify and there was no evidence about his attitude about the
    appellants use of the laneway. The respondent submitted the appellant could
    not establish its case without calling Mr. Chan as a witness. I disagree. Once
    the appellant had proven facts that support the inference of acquiesce 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 permission.

[18]

The
    following facts are sufficient to shift the evidentiary burden in this case:

·

the longstanding physical layout of the area by which 842 King
    Street West abuts the laneway Mr. Chan turned into a registered right-of-way;

·

the existence of a garage accessible only over the right-of-way
    was located at the rear of 842 King Street West for many years until it was
    torn down by Ms. Pelech;

·

the plain and obvious vehicular use of the right-of-way by the
    occupants of 842 King Street West, as described by witnesses who were present
    at the time;

·

the absence of any evidence of objection or exercise of control
    by Mr. Chan; and

·

the documentary evidence that the owners of 842 King Street West
    considered that they enjoyed the right-of-way as noted in listing agreements
    over the years.

Nor does the application judge explain why this
    evidence did not call for a response from the respondents.

[19]

In my
    view, Mr. Chans acquiescence can be readily inferred from this evidence. A
    fine line may well exist between acquiescence and permission in many cases:
1043
    Bloor Inc
.
, at para. 100. However, in this case, all the evidence
    points to acquiescence. There is no evidence of permission.

[20]

The
    relationship between acquiescence and permission, and the shifting evidentiary
    burden, was well laid out by the Nova Scotia Court of Appeal in
Mason v.
    Partridge
, 2005 NSCA 144, 261 D.L.R. (4th) 315. Justice Oland held that, in
    deciding whether Partridge had granted Mason permission to use an old logging
    road to cross over Partridge's land, the trial judge erred in law by failing to
    differentiate between acquiescence and permission. At para. 30, Oland J.A.
    noted that the trial judge erred by failing to recognize that absence of
    consent can be established by evidence of acquiescence or evidence sufficient
    to raise an inference of acquiescence. At para. 31, citing
Gale on
    Easements
,
17th ed. (London: Sweet & Maxwell, 2002), at p. 215,
    she called acquiescence the "foundation of prescription" and stated
    that "passive toleration is all that is required for acquiescence".

[21]

This
    accords with the principles in this courts statement in
Monaghan v. Moore
(1996), 31 O.R. (3d) 232, [1996] O.J. No. 3900, at para. 8, citing
Dalton
    v. Angus
(1881), 6 App. Cas. 740 at pp. 773-74 (H.L.). Doherty J.A said:

[I]n 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
. It becomes then of the highest importance to
    consider of what ingredients acquiescence consists. In many cases, as, for
    instance, in the case of that acquiescence which creates a right of way, it
    will be found to involve, 1st, the doing of some act by one man upon the
    land of another; 2ndly, the absence of right to do that act in the person doing
    it; 3rdly, the
knowledge of the person affected by it that the act is done
;
    4thly, the
power of the person affected by the act to prevent such act
either by act on his part or by action in the Courts; and lastly, the
abstinence
    by him from any such interference
for such a length of time as renders it
    reasonable for the Courts to say that he shall not afterwards interfere to stop
    the act being done. [Original emphasis omitted; emphasis added.]

[22]

In
Mason
,
    Oland J.A. added, at para. 45:

[O]nce there is proof of acquiescence in acts of user which are
    of such a character as to support a claim of right, the claimant has
    established that the acts were as of right
unless the owner points to some
    "positive acts" on his or her part which either expressly or
    impliedly grant permission
.
Here, there was no evidence that the
    owner, at any time, took any positive steps to prevent the use in question or
    did anything else from which a grant of permission reasonably could be implied.
    [Emphasis added.]

[23]

In
MacNeil
    v. MacNeil
, 2014 NSSC 171, 344 N.S.R. (2d) 350, Edwards J. considered and
    applied
Mason
. He noted, at para. 26, Acquiescence is not implied
    permission; instead acquiescence is acceptance of actions known to the property
    owner. He added, at para. 27, that the burden of proving acquiescence falls
    to the claimant seeking prescriptive rights. Upon proof the true owner
    acquiesced to the use of his property,
the burden shifts to the owner to
    establish some positive act of permission
 (emphasis added).

[24]

In
    conclusion, the evidentiary record is that the appellants predecessors in title
    had used the laneway in a continuous, uninterrupted, open and peaceful manner
    without objection by Mr. Chan for over 20 years. This evidence gives rise to an
    inference of acquiescence by Mr. Chan. As there was no evidence to rebut the
    inference the application should have been allowed.

Disposition

[25]

I would
    allow the appeal, set aside the judgment of the application judge, and issue a
    declaration that the appellant has an easement (right-of-way) over the
    northerly portions of Janeve Corp.'s properties identified by Parcel
    Registration PIN numbers 21244-0307 (LT) and 21244-0305 (LT) and 21244-0306
    (LT), to a width equal to that of the laneway to the west of the aforesaid
    properties.

[26]

I would order
    appeal costs payable to the appellant in the amount of $10,000, as agreed, and
    reverse the costs award made by the application judge, making it payable to the
    appellant.

P. Lauwers J. A.

Released: June 24, 2015 PL                       I
    agree R.G. Juriansz J.A.

I
    agree Grant Huscroft J.A.


