



COURT OF APPEAL FOR ONTARIO

CITATION: Barbour v. Bailey, 2016 ONCA 98

DATE: 20160204

DOCKET: C58076

MacFarland, Rouleau and Roberts JJ.A.

BETWEEN

Gerald Harry Barbour

Objector/Respondent

(Appellant)

and

Angelina Bailey

Possessory Claimant/Applicant

(Respondent)

Jeffrey E. Streisfield, for the appellant

Izaak de Rijcke and Robert Fenn, for the respondent

Sean Dewart, for the moving party/appellant on the costs
    appeal, Jeffrey E. Streisfield

Heard:  June 16, 2015

On appeal from the judgment of Justice Susan Healey of the
    Superior Court of Justice dated November 29, 2013, with reasons reported at
    2013 ONSC 7397, 39 R.P.R. (5th) 36, and from the costs orders dated April 14
    and June 18, 2014, with reasons reported at 2014 ONSC 2343 and 2014 ONSC 3698.

Roberts J.A.:

A.

Overview

[1]

These appeals mark the culmination of a 20-year dispute between
    neighbours of adjacent properties on Nottawasaga Bay in Tiny Township, Ontario.
    At the heart of this dispute is the right of ownership and possession of a
    piece of property known as Part 2 of Parcel 10, on the registered plan of
    survey Plan BA-2608. The appellant, Gerald Barbour, holds paper title to Part
    2. The respondent, Angelina Bailey, claims possessory title to it.

[2]

On November 29, 2013, following a lengthy trial
de novo
, the
    trial judge granted judgment in favour of Mrs. Bailey. The trial judge found
    that Mrs. Bailey had acquired possessory title over the entirety of Part 2 of Mr.
    Barbours property by way of adverse possession or, alternatively, a
    prescriptive easement or right-of-way.

[3]

By her orders of April 14 and June 18, 2014, the trial judge also required
    that Mr. Barbour pay Mrs. Baileys costs in the amount of $490,000.00 and that
    Mr. Barbours counsel reimburse Mr. Barbour for 20 per cent or $98,000.00 of the
    costs awarded to Mrs. Bailey, and pay personally the costs of the Rule 57.07
    motion.

[4]

For the reasons that follow, I would allow Mr. Barbours appeal from the
    trial judges finding of adverse possession, and partially allow his appeal
    from the trial judges finding of an easement in that I would limit the
    easement to non-vehicular traffic on the path over Part 2 marked track on the
    survey prepared by R.J. Stewart, O.L.S., and registered on title on October 15,
    2004 as Plan BA-2608.  I would also set aside the trial judges costs orders.

B.

Factual and procedural background

(1)

Description of the Property in Dispute

[5]

Part 2 of Parcel 10 of Lot 21 is the property in dispute in these
    proceedings.  Part 2 extends south from Parcel 9 to the southernmost border of
    Parcel 10. It is located east of Tiny Island. Tiny Island is designated as Part
    1 on the plan of survey prepared by J.W. Hiley, dated July 17, 2006. I have
    attached the Hiley survey to these reasons as Appendix A. For ease of visual
    reference, I have also attached as Appendix B to these reasons a diagram (not
    to scale) that shows the position of Part 2 of Parcel 10 in relation to Tiny
    Island.

[6]

Parcel 10 was originally part of Lot 21, a much larger property. In
    1914, Lot 21 was subdivided into ten parcels. Parcel 10 is the most southerly parcel.
    I have attached to these reasons a diagram of the ten parcels of Lot 21 as
    Appendix C.

[7]

Since 1949, Mr. Barbour has owned Parcel 10. Until 1976, when he built a
    permanent home on his property and began to live there all year round, Mr.
    Barbour used his property seasonally and on weekends during the rest of the year. 
    At the time this appeal was heard, Mr. Barbour was 99 years old and lived in a
    retirement residence.

[8]

According to Mr. Barbours deed, his property extends to the waters
    edge.  Part 2 includes the beach in front of Mr. Barbours mainland property. It
    also comprises part of an isthmus that joins Tiny Island to the beach of Part 2
    when the isthmus is above water. The beach and the isthmus on Part 2 are shown on
    Appendix B.

[9]

In December of 1988, Mrs. Bailey purchased Tiny Island from Rebecca Van
    Aller. Mrs. Bailey also acquired various other small parcels of land to the
    north of Mr. Barbours property on Parts 3 to 8, including a registered
    right-of-way that provides access to Nottawasaga Bay from the concession road, and
    parking spots located on the property north of Part 2.

[10]

Since
    the purchase of Tiny Island, Mrs. Bailey and her family have continuously used
    their property during the summer months, at Christmas, and on weekends
    throughout the rest of the year.

(2)

Historical Use of the Property

[11]

There
    is no dispute that as a result of the fluctuating levels of Nottawasaga Bay,
    Tiny Island has at times been totally, and at other times only partially,
    surrounded by the waters of Georgian Bay. During periods of lower water levels,
    the isthmus joins Tiny Island to the beach of Part 2.

[12]

As
    far back as 1943 and continuing to the present, during those periods when the
    water levels have been low enough so that it is possible to reach Tiny Island
    from the beach of Part 2, the owners of Tiny Island have travelled to it mostly
    by foot and sometimes by motor vehicle over a narrow strip of land starting to
    the north of Part 2 of Mr. Barbours property and descending south, over the
    beach and isthmus of Part 2. In particular, the former and present owners of
    Tiny Island have travelled over Part 2 on a path that they identified as that
    marked driveway on the Hiley survey.

[13]

During
    the periods when Tiny Island has been completely surrounded by water and walking
    or driving over the isthmus to Tiny Island was impossible, its owners travelled
    to Tiny Island from the beach of Part 2 of Mr. Barbours property by boat or by
    wading through the water, leaving their motor vehicles parked on the property
    that they owned north of Part 2.

[14]

Nothing
    in the evidence suggests that before 1995, Mr. Barbour objected to the owners
    of Tiny Island passing over his property in this way.

[15]

Moreover,
    for at least 70 years, the various owners of Tiny Island, Mr. Barbour, other
    neighbours, and local residents have regularly enjoyed the use of the beach of
    Part 2 of Mr. Barbours property: walking, golfing, biking, playing and
    snowshoeing on it, as well as swimming, fishing, waterskiing, and boating off
    its shore. There is no suggestion that any objection to these uses was made by,
    or that express permission for these uses was sought from, Mr. Barbour or the
    previous owners of Parcel 10.

[16]

In
    addition to the foregoing uses of and activities on Part 2, the Baileys have, on
    occasion, hired contractors and service providers who have travelled over Part
    2 to reach Tiny Island. The Baileys have arranged and paid for maintenance of
    the path that they use to travel over Part 2 to Tiny Island, including
    obtaining two permits from the Ministry of Natural Resources to lay clean rocks
    on the isthmus in 1992 and to backfill and repair the path in 1993.  They also
    continue to pay for yearly snow removal on the path. Again, there is no suggestion
    that before 1995, Mr. Barbour objected to or expressly permitted these
    activities.

[17]

Although
    it has been more convenient for the owners of Tiny Island to pass over the path
    on Part 2 of Mr. Barbours property, they have always had and still have access
    to Tiny Island without travelling over it. First, the Baileys, like the
    previous owners before them, have water access to the island by boat, by virtue
    of their ownership of, or registered rights-of-way over, the various parcels of
    Parts 3 to 8, including their right-of-way from the concession road to
    Nottawasaga Bay. Further, access to Tiny Island is possible by walking along
    the waters edge of Part 2, rather than the path, and then passing by foot or
    wading over to Tiny Island.

(3)

Beginning of the Property Dispute and Proceedings

[18]

Mr.
    Barbour and the Baileys enjoyed friendly, neighbourly relations until Mr.
    Barbour delivered a letter to the Baileys, dated September 15, 1995, requiring
    them to sign a licence agreement and pay a $1 licence fee to travel over the part
    of his property that he described as the strip of beach from a line drawn from
    the fence between Nancy Rice [the previous owner of Parcel 9] and myself to the
    waters edge and continuing to the island.  At that time, the water levels of
    Nottawasaga Bay were low enough so that the isthmus connecting Part 2 of Mr.
    Barbours property to Tiny Island was exposed.

[19]

The
    Baileys immediately objected to Mr. Barbours stated position, advising him
    that they owned the land and had a right to pass over Part 2.  Mr. Barbours
    lawyers wrote to Mrs. Bailey in March 1996, stating that Mrs. Bailey had not acquired
    a right, title or interest in Mr. Barbours property and did not have any right
    to cross over it. In July 2000, the Baileys wrote to Mr. Barbour, alleging that
    they owned the mainland beach of Part 2 and warning him about using the
    property other than to cross over it to access the water.

[20]

In
    August 2000, Mr. Barbours lawyers responded to the Baileys and reasserted Mr.
    Barbours ownership over Part 2 of Parcel 10, stating that Mr. Barbours land extended
    to the waterline. They also indicated that Mr. Barbour was prepared to allow
    the Baileys pedestrian access along the beach of Part 2, but that the use of motorized
    vehicles was not allowed.

[21]

The
    exchange of correspondence in which the parties asserted their respective
    rights over the beach and isthmus of Part 2 continued between Mr. Barbours
    lawyers and the Baileys until March 2001.

[22]

Mr.
    Barbour subsequently commenced an application under the
Boundaries Act
,
R.S.O. 1990, c. B.10, for the purpose of confirming the
    northerly, westerly and southerly boundaries of his property.  Mrs. Bailey
    filed an objection to Mr. Barbours application.

[23]

Mr.
    Barbours
Boundaries Act
application resulted in the August 8, 2003
    order of Deputy Director of Titles Jack Keat. Among his conclusions and
    relevant to the present dispute, Deputy Director of Titles Keat denied Mrs.
    Baileys objection to the westerly boundary of Part 2 that abuts Tiny Island. He
    also confirmed that the true location of the boundaries of Mr. Barbours land
    would be as set out in the registered plan of survey prepared by Mr. Stewart. Attached
    as Appendix D to these reasons is a copy of this registered plan of survey.

[24]

The
Boundaries Act
decision confirmed that Mr. Barbour holds paper title
    to Part 2, with the west and south boundaries being ambulatory and changing
    with the waters edge of Nottawasaga Bay. It also confirmed a boundary that bisects
    the isthmus, as illustrated on the Stewart plan of survey.

[25]

Mrs.
    Bailey instigated an appeal from the
Boundaries Act
decision to the
    Divisional Court, but it was dismissed for want of prosecution.

[26]

In
    2004, Mrs. Bailey brought an application under the
Land Titles Act
,
    R.S.O. 1990, c. L.5. In her application, she claimed possessory title to, or
    alternatively, a prescriptive easement over, the entirety of Part 2 of Parcel
    10, including but not limited to the path, beach, and isthmus.  Mr. Barbour
    filed an objection in response to her application.

[27]

Following
    an eight-day hearing, on February 9, 2010, Deputy Director of Titles Carolyn Rosenstein
    allowed Mrs. Baileys
Land Titles Act
application. She found that Mrs.
    Bailey had established possessory title to all of Part 2. Mr. Barbour launched
    an appeal.

[28]

On
    December 1, 2010, Mrs. Bailey commenced an application under r. 14 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194. In her application, Mrs. Bailey
    requested, as alternative relief in response to Mr. Barbours appeal from the
Land
    Titles Act
decision, that she be granted an interest in the nature of an
    easement or right-of-way over all or any portion of Part 2 of Mr. Barbours
    property.

[29]

Mrs.
    Baileys Rule 14 application and Mr. Barbours appeal from Deputy Director of
    Titles Rosensteins decision were heard by way of a new trial in the Superior
    Court, in accordance with s. 26 of the
Land Titles Act
. The trial
    judge ruled in Mr. Barbours favour: see 2011 ONSC 4019,
8
    R.P.R. (5th) 76
. Mrs. Bailey successfully appealed to this court on the
    ground that the trial judges decision was tainted by a reasonable apprehension
    of bias: see 2012 ONCA 325, 110 O.R. (3d) 161. This court did not consider Mrs.
    Baileys appeal on the merits and ordered a new trial before a different judge.
    The second trial culminated in the decisions under the present appeal.
[1]

C.

Analysis

(1)

Possessory Claims

[30]

Mr.
    Barbour submits that the trial judge erred in determining that Mrs. Bailey
    acquired possessory title over Part 2 of his property by way of adverse
    possession or that she obtained an interest in the nature of an easement over
    Part 2.

[31]

Mr.
    Barbours and Mrs. Baileys respective properties were transferred into the Land
    Titles regime on September 10, 2001. In accordance with s. 51 of the
Land
    Titles Act
, after the transfer into the Land Titles system, it is no
    longer possible to acquire possessory title, subject to the grandfathering of
    previously established claims. In consequence, as the trial judge correctly
    noted and the parties agreed, any possessory claim or easement by Mrs. Bailey
    had to crystallize by September 10, 2001.

(i)

Adverse Possession

[32]

With
    respect to the adverse possession claim, Mr. Barbour submits as his principal
    argument that the trial judge erred in finding that Mrs. Bailey had
    demonstrated adverse possession when there was no effective exclusion of Mr.
    Barbour from Part 2 of his property.

[33]

Mrs.
    Bailey argues that the trial judge correctly determined that the Baileys
    actual use of Part 2 was consistent with the
bona fide
use that a
    rightful owner would ordinarily be expected to make of her property.

[34]

For
    the reasons that follow, I accept Mr. Barbours position. It is therefore
    unnecessary to address his other submissions on this issue. The difficulty with
    Mrs. Baileys argument is that her use of the property, even if consistent with
    that of a rightful owner, did not effectively exclude Mr. Barbour from his
    property. Without establishing this criterion, her claim for adverse possession
    fails.

[35]

The
    trial judge correctly stated that to establish adverse possession, a claimant
    to possessory title throughout a ten-year period pursuant to s. 4 of the
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15, must establish that he or
    she:

i.

Had actual possession of the property in issue;

ii.

Had the intention of excluding the true owner from possession of his
    property; and

iii.

Effectively excluded the true owner from possession of his property.

See
Masidon Investments Ltd. v. Ham

(1984), 45 O.R. (2d) 563 (C.A.), at p. 567, leave to appeal
    refused,

[1984] S.C.C.A.
    No. 232.

[36]

The
    claimants possession must be open, notorious, constant, continuous, peaceful
    and
exclusive of the right of the true owner
 for the full term of the ten-year
    statutory period:
Fletcher v. Storoschuk
(1981), 35 O.R. (2d) 722
    (C.A.), at p. 724 (emphasis added).

[37]

A
    claim for adverse possession will fail unless the possessory claimant meets all
    of the criteria noted above and time will begin to run against the true owner
    of the lands only from the last date when all criteria are satisfied:
Masidon
    Investments
, at p. 567.

[38]

The
    trial judge held that all three criteria were met.

[39]

On
    the question of actual possession, she found that the evidence established that
    Mrs. Bailey and her predecessors in title possessed Part 2 by travelling on it
    and using it for seasonal activities. This possession was open, notorious,
    constant, continuous, peaceful, and ha[d] literally occurred under the very eye
    of the true owner from 1949 onward: para. 383.

[40]

On
    the intention issue, the trial judge held that Mrs. Bailey did not need to
    demonstrate that her use of the property was inconsistent with Mr. Barbours,
    by virtue of Mrs. Baileys honest but mistaken belief that she was the true
    owner of Part 2. In such circumstances, the trial judge was prepared to infer
    that the owners of Tiny Island occupied all of Part 2 with the intention of
    excluding all others, including Mr. Barbour, as a true owner would have done.

[41]

Finally,
    the trial judge held that this possession acted to the effective exclusion of
    the true owner. She explained, at para. 385:

Accepting as this court has, that Mr. Barbours actions in 1995
    are evidence that he believed that he owned to the waters edge, he did nothing
    between 1949 and 1995 to alert the parties who were using and occupying it to
    his ownership. Even after 1995, he took no further affirmative steps until
    letters were sent from his lawyer in 2000. Any use that he made of the land in
    question was no more than any other cottager in the area; that is, to walk on
    the beach and occasionally swim or boat from the north beach, and there is no
    evidence of when he last did so.

[42]

In
    my view, it was open to the trial judge on the evidence before her to conclude
    that the activities of the Baileys and their predecessors in title at the times
    that they used Part 2 were open, notorious, constant, continuous and peaceful.

[43]

I
    am also prepared to accept for purposes of this analysis that it was open to
    the trial judge to infer that the owners of Tiny Island intended to exclude all
    others from possession of Part 2. This court has previously held that the
    inconsistent use criterion does not apply in cases of mutual mistake:
Teis
    v. Ancaster (Town)
(1997), 35 O.R. (3d) 216. It has not considered whether
    the inconsistent use criterion applies in cases of honest unilateral mistake. Assuming
    without deciding that the same principle may apply in cases of honest unilateral
    mistake
[2]
, in my view, the trial judge nonetheless
    erred in proceeding to hold that Mrs. Bailey had effectively excluded Mr.
    Barbour from his own property. I say this for three reasons.

[44]

First,
    the trial judge impliedly reversed the burden of establishing effective
    exclusion by suggesting that the onus was on Mr. Barbour to prove that he had
    not been dispossessed, rather than on the Baileys to prove that they had
    dispossessed him.

[45]

Second,
    and related, the trial judge failed to appreciate that a true owner does not
    need to exercise the same degree of control over his property as an adverse
    possession claimant must demonstrate. The holder of paper title is regarded as
    being in constructive possession of the entire property when in actual
    possession of merely a part. Fairly trivial acts of dominion by an owner will
    usually suffice: Bruce Ziff,
Principles of Property Law
, 6th ed.
    (Toronto: Carswell, 2014), at p. 148.

[46]

That
    Mr. Barbour did not use Part 2 of his property all of the time does not matter.
    Mr. Barbour was not asserting a claim for adverse possession; he is the true
    owner of the lands and therefore did not have Mrs. Baileys burden of proving
    open, notorious, constant, continuous, peaceful and, in particular, exclusive
    use of his own property for any ten-year period before 2001. As this court
    stated in
Fletcher v. Storoschuk
, at p. 725,  [i]t is trite law that
    the legal owner of property is in
constructive
possession of it even
    if he is not in
actual
possession of the whole of it (emphasis in
    original).

[47]

Third,
    this court has held that even where the inconsistent use test does not apply,
    the effective exclusion of the true owner throughout the ten-year period
    remains a requirement to establish adverse possession:
Shennan v. Szewczyk
,
    2010 ONCA 679, 96 R.P.R. (4th) 190, at para. 20.

[48]

Here,
    there was no evidence that Mr. Barbour was effectively excluded from his
    property. On the contrary, as the trial judge acknowledged, the evidence
    suggested that Mr. Barbour (who did not testify) used the property as any
    other cottager in the area; that is, to walk on the beach and occasionally swim
    or boat from the north beach: para. 385. These are precisely the activities
    the Baileys and their predecessors in title engaged in on the disputed
    property. They, too, used Part 2 as any other cottager in the area. There was
    nothing in the record before the trial judge to suggest that they did so to Mr.
    Barbours exclusion.

[49]

In
    fact, the opposite is true. In a July 2000 letter to Mr. Barbour, Mr. Bailey
    wrote, under the heading Beach access: Previously we have not prevented you
    from crossing over our land in order to access the water from your lot and are
    prepared to continue to give you permission to do so on an annual basis. Under
    the heading Encroachment, Mr. Bailey wrote: You are encroaching on our land
    on the easterly side of our lot. You have erected a shade tent during the
    summers of the last three years and this year you have also erected two bird
    houses and several flower planters. These are not the statements of an adverse
    possessor who has effectively excluded the true owner.

[50]

Simply
    put, there was nothing that the Baileys or their predecessors in title did that
    effectively or otherwise stopped Mr. Barbour from using his property or that materially
    interfered with his use of his property. Their actions, in the summer and on
    weekends throughout the year, of entering and exiting the property and of
    carrying on recreational and maintenance activities did not constitute an
    ouster of Mr. Barbour, the true owner of the property, who also used it.

[51]

As
    there was no evidence that Mrs. Bailey or her predecessors in title effectively
    excluded Mr. Barbour from possession of Part 2 during any ten-year period prior
    to 2001, the trial judge erred in finding that Mrs. Bailey had established
    adverse possession over Part 2 of Mr. Barbours property.

[52]

I
    would therefore set aside the trial judges conclusion on this point.

(ii)

Easement Claims

[53]

I
    turn next to the trial judges alternate conclusion that Mrs. Bailey
    established an easement or a right-of-way over Part 2 of Mr. Barbours property
    on the bases of prescription (whether statutory or under the doctrine of modern
    lost grant), necessity, and proprietary estoppel.

[54]

On
    this issue, Mr. Barbour advances several principal grounds of appeal, which I
    summarize as follows. First, he submits that the trial judge erred in her
    determination that Mrs. Bailey acquired a prescriptive easement because the
    evidence in this case was insufficient to establish any 20-year period of
    uninterrupted use that was more than seasonal, sporadic or infrequent and for a
    temporary or seasonal purpose. Second, any use was interrupted during the
    periods when Tiny Island was an island totally surrounded by water. Third, Mr.
    Barbours 1995 objection to the Baileys driving over his beach stopped the
    running of any limitation period. Fourth, he permitted the use that the owners
    of Tiny Island made of Part 2 through good neighbourliness, which is insufficient
    to enable Mrs. Bailey to acquire an easement. Fifth, the trial judge erred in
    finding an easement by necessity because it is possible to access Tiny Island
    other than by passing over Part 2 of Mr. Barbours property. Finally, the trial
    judge erred in holding that an easement arose out of proprietary estoppel
    because Mr. Barbour did not engage in unconscionable conduct.

(a)

Prescriptive easement

[55]

I
    start my analysis of the trial judges findings with a consideration of the
    general principles concerning prescriptive easements, which are not in dispute.

General principles concerning prescriptive easements

[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
Depew v. Wilkes

(2002), 60 O.R. (3d) 499 (C.A.), at paras. 18-19.

[57]

With
    respect to the fourth criterion, what is reasonably necessary will depend on
    the nature of the property and the purpose of the easement. In
Depew v.
    Wilkes
, at para. 24, this court confirmed that the reasonable necessity
    requirement for a prescriptive easement is fact-specific and must be applied in
    a flexible manner, citing with approval the following instructive passage from
Anger
    and 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.

[58]

However,
    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, as opposed to a personal right
    belonging to the dominant tenement owner:
Depew v. Wilkes
, at para.
    20.  Examples of uses that courts have found to be reasonably necessary usually
    involve a very practical purpose, such as parking spaces or driveways: see e.g.
Depew v. Wilkes
; and
Carlini Estate v. Hammoud
, 2011 ONCA 285.

[59]

This
    is reinforced by the fact that in order to be capable of forming the subject
    matter of a grant (the third criterion listed above), easement rights must not
    be ones of mere recreation and amusement; the rights in issue must be of
    utility and benefit to the dominant tenement:  see
In re Ellenborough Park
,
    [1956] 1 Ch. 131 (Eng. C.A.), at pp. 175-76, cited with approval by this court
    in
Combined Air Mechanical Services Inc. v. Flesch
, 2011 ONCA 764, 108
    O.R. (3d) 1, at para. 204.

[60]

In
    addition to the above criteria, a claimant must demonstrate a use and enjoyment
    of the easement under a claim of right that is continuous, uninterrupted, open
    and peaceful, and without permission, for a period of 20 years. See
Henderson
    v. Volk
(1982), 35 O.R. (2d) 379 (C.A.), at p. 383; and
1043 Bloor
    Inc. v. 171404 Ontario Inc.
, 2013 ONCA 91, 359 D.L.R. (4th) 688, at paras.
    57, 59.

[61]

Specifically,
    the use as of right of the person seeking to establish an easement cannot be at
    the will and pleasure of the owner of the property over which the easement or
    right-of-way is sought to be established. Instead, the use must be as if the
    claimant had the right to the easement or right-of-way. See
Henderson v.
    Volk
, at p. 383;
1043 Bloor Inc.,
at para. 59; and
Mason v.
    Morrow

(1999), 114 O.A.C. 194, at para. 5.

[62]

Acquiescence
    by the owner of the servient property to the use of the person seeking to
    establish an easement must be more than good neighbourliness. In those
    instances where the owner of the servient tenement can readily be taken to know
    of the notorious use of his property, if he makes no objection, then his
    acquiescence to that use, sufficient to establish a prescriptive title, can
    readily be inferred:
Henderson v. Volk
, at p. 384.

[63]

Finally,
    to acquire a prescriptive easement under the
Real Property Limitations Act
,
    a claimants use must be established to run for 20 years immediately before
    some action wherein the claim or matter to which such period relates was or is
    brought into question:  s. 32.
[3]


Application of the general principles to the present case

[64]

The
    trial judge held that for at least 20 years, Mrs. Bailey and her predecessors
    in title continuously exercised and enjoyed a right-of-way over all of Part 2. In
    particular, the trial judge found that since 1943 or possibly earlier, the
    owners of Tiny Island had continuously used the beach, the path, and the
    isthmus connecting the beach of Part 2 to Tiny Island, when the isthmus was
    above water.

[65]

Mr.
    Barbour argues that the trial judge erred in finding an uninterrupted 20-year
    period of use. He maintains that his 1995 objection to the Baileys use of his
    property interrupted the running of any 20-year period. I would not accept this
    submission for the following reasons.

[66]

For
    the purposes of ss. 31 and 32 of the
Real Property Limitations Act
,
    Mr. Barbours 1995 objection to the Baileys use of his property did not serve
    to interrupt their continuous use because they did not submit or acquiesce to
    it.

[67]

Rather,
    the Baileys immediately disagreed with his objection and continued openly and
    peacefully to assert what they mistakenly thought was their right to use Part 2
    of Mr. Barbours property. According to s. 32 of the
Real Property
    Limitations Act
, no act or other matter shall be deemed an interruption
    within the meaning of [s. 31], unless the same has been submitted to or
    acquiesced in for one year after the person interrupted has had notice thereof,
    and of the person making or authorizing the same to be made.

[68]

While
    I do not accept Mr. Barbours submission that his September 1995 letter
    interrupted the running of the prescriptive period, I have concluded, for the
    reasons set out below, that the trial judge erred in granting a prescriptive
    easement over all of Part 2 and for all purposes.

[69]

Specifically,
    the trial judge erred in treating as identical the nature and the duration of
    the uses that the Baileys and their predecessors in title made of the various
    portions of Part 2. These uses varied for the beach, the path and the isthmus,
    and lead to different results.

[70]

Further,
    the trial judge erred in granting an easement that included vehicular use when
    there was no evidentiary basis for doing so.

Recreational and permissive uses of the beach and isthmus

[71]

Turning
    first to the beach and isthmus of Part 2, it was open to the trial judge to
    find on the evidence that the Baileys, along with the former owners of Tiny
    Island, carried out continuous, uninterrupted, open, and peaceful use of those areas
    of Part 2 for the requisite 20-year period.

[72]

However,
    the trial judge erred in concluding that Mrs. Bailey had proven that the former
    owners and her own familys recreational uses of the beach and isthmus were
    reasonably necessary to their enjoyment of Tiny Island, and that Mr. Barbour
    acquiesced to such use.

[73]

First,
    as already noted, to establish an easement over Part 2 of Mr. Barbours
    property, in addition to the other criteria already reviewed, Mrs. Bailey had
    to demonstrate that these uses were reasonably necessary for the better
    enjoyment of Tiny Island.

[74]

The
    trial judges finding of the recreational uses that Mrs. Bailey and the
    previous owners of Tiny Island made of the beach and isthmus of Part 2 in
    swimming, fishing, putting up a shade tent, placing chairs, snowshoeing, and
    playing on the beach and isthmus were not, as a matter of law, reasonably
    necessary for their better enjoyment of Tiny Island, as the authorities have
    defined that term. Rather, these recreational uses were only for their personal
    recreation or amusement, along with that of Mr. Barbour, the other neighbours,
    and local residents, who similarly used the beach and isthmus on Part 2.

[75]

The
    owners of Tiny Island had on the island and on their side of the isthmus their own
    sandy area on which they could and did carry on recreational activities. The
    fact that these activities periodically spilled over onto Mr. Barbours side of
    the isthmus and his beach on Part 2 does not make them reasonably necessary for
    the enjoyment of Tiny Island by its owners.

[76]

Further,
    the evidence establishes that Mr. Barbours silence about the recreational use
    of his beach demonstrated mere neighbourly goodwill, and not acquiescence, in
    allowing the Baileys, his neighbours and anyone else to walk across or play on
    his beach. As Mr. Bailey testified, it was an unwritten rule that anyone
    could walk across the beach and the evidence of Neil Lackie, a local resident, was
    that from the 1950s to the 1990s, all of the local residents would walk up and
    down the beach without any concern or challenge. Their uncontested evidence is
    consistent with the testimony of Dr. Christopher Van Aller, whose family
    previously owned Tiny Island, that the isthmus was sort of a big common beach
    area, and that everybody shared it.

[77]

The
    present case is similar to the circumstances of this courts decision in
394
    Lakeshore Oakville Holdings Inc. v. Misek
.
[4]
In that case, this court upheld
    the motion judges determination that the appellant neighbours had not acquired
    an easement, but only a revocable personal licence by their nightly walks on
    the meandering path over the unmarked grassy area to a sloped path that led to
    a slate beach:  para. 212. The owners of the property had tacitly permitted these
    walks because it was the custom to allow such personal, recreational use: 
    para. 215. This court held that the motion judge was entitled to draw the
    inference that the appellants were simply the recipients of neighbourly
    goodwill:  para. 222.

[78]

As
    this court noted in
Temma Realty Co. Ltd. v. Ress Enterprises Ltd.

(1968), 69 D.L.R. (2d) 195, at p. 199, 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.

[79]

For
    these reasons, the trial judge erred in concluding that Mrs. Bailey had
    acquired an easement over the entirety of Part 2 of Mr. Barbours property through
    the former owners and her familys recreational uses of the beach and isthmus,
    which were not reasonably necessary for the enjoyment of Tiny Island, and which
    Mr. Barbour tacitly permitted only as a neighbourly gesture.

Reasonably necessary use of the path for 20 years

[80]

That
    leaves two questions:  did Mrs. Bailey acquire an easement or right-of-way over
any
portion of Part 2 of Mr. Barbours property, and in particular, the
    path identified on the Stewart survey? If so, was the acquired use of the path for
    all purposes, including vehicular use?

[81]

For
    the reasons that follow, I am of the view that Mrs. Bailey did acquire an
    easement over the path on Part 2, including the isthmus when it is above water,
    but that the trial judge erred in failing to restrict its use to non-vehicular
    traffic.

[82]

Mr.
    Barbour argues that the use made of the path by the Tiny Island owners was
    seasonal, sporadic or infrequent and that it was for a temporary or seasonal
    purpose.

[83]

I
    disagree.  The fact that the Tiny Island owners used the path during the
    summers and on weekends and holidays does not preclude their acquisition of an
    easement or right-of-way over the path. The acts necessary to establish continuous
    use depend on the type of property. For some types of property, such as a
    cottage property, as in this case, seasonal and weekend use is consistent with
    the type of continuous use an owner would make of the property and therefore satisfies
    the criterion of continuous use:
Lanty v. Ontario (Minister of Natural
    Resources)
(2006), 89 L.C.R. 161 (Ont. S.C.), at para. 109, affd 2007
    ONCA 759, 61 R.P.R. (4th) 161. See also
Teis
,

at p. 222.

[84]

It
    was open to the trial judge to conclude on the evidence that for a 20-year
    period, Mrs. Bailey and her predecessors in title made continuous,
    uninterrupted, open, and peaceful use by foot of the path over Part 2 of Mr.
    Barbours property shown on Appendix D, including the isthmus when it was above
    water, and that their use of the path was not permissive in its nature.

[85]

Mr.
    Barbours failure to object to this use of the path by the owners of Tiny
    Island until 1995 did not amount to his tacit permission out of good
    neighbourliness, as he has argued. This was not simply occasional use by the
    owners of Tiny Island, but a path that they regularly and routinely took
    whenever they travelled by foot to or from Tiny Island.

[86]

In
    the face of this continuous, open and peaceful passage by foot over the path,
    which Mr. Barbour must have observed, his silence constituted acquiescence to
    such use. There was no evidence that Mr. Barbour gave permission to the owners
    of Tiny Island to use the path over Part 2, that the owners sought his
    permission, or, unlike the recreational use of his beach, that the use of the
    path was the product of established custom on the part of all the neighbouring
    cottagers.

[87]

Mr.
    Barbour argues that the trial judge erred in failing to follow the
Boundaries
    Act
decision and to give effect to the law of accretion. In
    particular, he alleges that she failed to take into account that the ambulatory
    boundaries of Part 2 and the reversion to the Crown of the isthmus when
    submerged under water precluded the acquisition of an easement.

[88]

I
    do not accept Mr. Barbours position.

[89]

During
    the periods when the boundaries ambulated and the isthmus was under water, the
    owners of Tiny Island continued regularly to pass by foot over the path and
    then wade over the area of the submerged isthmus to reach the island. The
    ambulatory boundaries and status as Crown land of the isthmus when under water
    did not affect the continuous use that the owners of Tiny Island made of the
    path over Part 2. Specifically, they did not prevent the creation of an
    easement over the path, extending to the waters edge, even when the isthmus
    was under water.

[90]

Finally,
    the owners use by foot of the path over Part 2 to reach Tiny Island was
    reasonably necessary to the better enjoyment of their property. The fact that
    an alternative route to Tiny Island existed to Mrs. Bailey and her predecessors
    in title for their use, including that they had water access to it by boat from
    their registered right-of-way, does not preclude a finding that their pedestrian
    use of Mr. Barbours property was reasonably necessary for the better enjoyment
    of their property: see
Depew v. Wilkes
, at para. 26. In this case, such
    pedestrian access is connected with the normal enjoyment of the cottage
    property.

[91]

The
    evidence accepted by the trial judge does not, however, establish any
    continuous 20-year period of use of the path on Part 2 by motor vehicle because
    of the various periods that the isthmus was under water and travel by motor
    vehicle ceased. In particular:

(i)

The evidence of Nancy Rice,
    previous owner of Parcel 9 and sister of Rebecca Van Aller, was that water
    separated Tiny Island from the mainland for a period of a few years between
    1949 and 1958; during this period, the water was very shallow and she and her
    family waded across, or rowed over to Tiny Island in a rowboat or canoe from
    the beach of Part 2. At those times, the family did not drive to Tiny Island,
    but rather left their car on their property north of Part 2, walked down the
    path on Part 2, and then waded or boated over to Tiny Island.

(ii)

Dr. Christopher Van Aller, the
    son of Rebecca Van Aller, testified that his first recollection of driving to
    Tiny Island was in 1966, when his mother bought an International Scout in order
    to be able to drive to Tiny Island. He also testified that the isthmus
    disappeared in about 1974 when the water became quite high and then remained
    under water until the mid-1980s, when it formed again. However, by that time,
    his mother was hesitant to drive on the beach, due to her age and health. He
    recalled seeing canoes, a motorboat, and someone waterskiing between the island
    and mainland of Part 2 when the water was high.  He also confirmed that during
    the times when the water was high, his family would not drive over the isthmus to
    Tiny Island, but rather would leave their car on their property north of Part 2
    and walk down the path, and then wade or boat over to the island from the beach
    on Part 2.  Although he testified that he and his family members would
    sometimes drive their vehicles to the bottom of the beach on Part 2, unload
    their supplies and return the vehicles to the parking space north of Part 2, he
    also confirmed that they did not always drive.

(iii)

Heidi Lauridsen, the daughter of
    Nancy Rice and the niece of Rebecca Van Aller, testified that there was one occasion
    in or around 1985 when it was simply impossible to get to Tiny Island from
    the beach of Part 2 because of the height of the water. She confirmed that
    during this period of time, her aunt walked along the beach and reached Tiny
    Island by wading over from the beach on Part 2 and that the family parked their
    cars on their property north of Part 2. She testified that most of the time
    they would walk to the island and that she would walk along the beach on Part
    2.  She said that they would sometimes drive to Tiny Island whenever they had a
    load of things to deliver and when it was clear of water.

(iv)

Neil Lackies evidence was that
    Tiny Island was separated from Part 2 at times in the 1950s and that there was
    some water in the 1960s. He recalled canoeing and taking his little motorboat
    around the entirety of Tiny Island.

(v)

Charlene Lowes testified that Tiny
    Island was an island until sometime in the 1960s. She said that in the 1960s,
    there was a peninsula between Tiny Island and the mainland beach on Part 2. She
    recalled that subsequently the water became higher and at that time, the owners
    used a rowboat to reach Tiny Island. She recalled Rebecca Van Aller walking
    down to the shoreline, putting her things in a rowboat and pulling the boat
    behind her to the island. She said that the highest water level was in the mid
    to late 1980s.

(vi)

Natasha Bailey, the daughter of Mrs.
    Bailey, testified that she paddled in a canoe between Tiny Island and the
    mainland beach of Part 2 over ten years ago and that water separated Tiny Island
    from the beach for more than a year.

[92]

The
    trial judge found that [t]here have been times when the owners of Tiny Island
    have not been able to use all of Part 2 because it has been partially covered
    with water (para. 347) and that this occurred in the mid to late 1980s and
    late 1990s (para. 9).

[93]

This
    means that, on the evidence that the trial judge accepted and in accordance
    with the parties Agreed Statement of Facts, there were extended periods of
    time during which the owners of Tiny Island could not and did not continue by motor
    vehicle over the path and isthmus on Part 2 to reach Tiny Island. Rather, during
    those periods of time when the isthmus was under water, the owners of Tiny
    Island would leave their motor vehicles parked on their property north of Part
    2 and would gain access to the island by wading or rowing across the water from
    Mr. Barbours beach on Part 2. This evidence falls short of establishing the
    kind of continuous, uninterrupted use for 20 years that is required for an
    easement for the purpose of vehicular traffic.

[94]

In
Henderson v. Volk
, at p. 384, this court warned against granting an
    easement in the absence of clear evidence of both continuous use and
    acquiescence in such use by the owner.

[95]

In
    this case, it would make little sense to suggest that Mr. Barbour had to object
    to the owners of Tiny Island driving over Part 2 to access their property when,
    on the evidence accepted by the trial judge, there were long stretches of time
    during which the isthmus was under water and the previous owners did not drive.
    Simply put, Mr. Barbour could not have acquiesced to something that was not
    taking place.

[96]

In
    short, there is no evidence of continuous vehicular use of the path by the
    owners of Tiny Island for any uninterrupted 20-year period prior to September
    2001, when Tiny Island and Mr. Barbours property entered the Land Titles
    system.

[97]

Moreover,
    the courts have been careful to restrict easements to the actual, continuous
    and uninterrupted 20-year use that has been openly and peacefully made of the
    property in issue. As this court noted in
Henderson v. Volk
, at p.
    383:

[T]he nature of the user cannot be changed by the owner of the
    dominant tenement. As an ancient example, a way used for the passage of
    carriages cannot be used for driving horned cattle or swine.  In the same vein,
    the user is not entitled to change the character of his land so as to
    substantially increase or alter the burden on the servient tenant. Nor may the
    user increase the intensity of his use and thereby alter or increase the burden
    upon the servient tenement.

[98]

The
    fact that the former owners of Tiny Island continuously travelled by foot over a
    path on Part 2 to reach Tiny Island from the beach on Part 2 does not give the
    Baileys a right to travel on that path by motor vehicle when their vehicular
    use of the path has not been continuous for an uninterrupted period of 20 years.
    The change of use from pedestrian traffic to vehicular traffic substantially
    increases and alters the burden on Mr. Barbours property.

[99]

In
    addition, it has only been since the Baileys ownership of Tiny Island that
    vehicular traffic over the path on Part 2 has substantially increased in
    intensity.  Unlike the Baileys, the previous owners of Tiny Island did not regularly
    use the island year round, nor did they always drive.

[100]

In contrast,
    since the waters have subsided and the isthmus emerged in the mid to late
    1980s, the Baileys have frequently driven to Tiny Island in the summers and on
    weekends and holidays throughout the rest of the year. They have hired
    contractors who have sometimes used the path over Part 2 of Mr. Barbours
    property, and the Baileys have even deposited material on the path and isthmus in
    order to build it up and make it more stable. Until the Baileys undertook this
    work, the path used by the owners of Tiny Island consisted only of hard-packed
    sand.

[101]

The fact that
    the Baileys increased travel by motor vehicle did not go unnoticed or
    unremarked upon by their neighbours and was the subject of complaints
    demonstrates the substantial intensification of their vehicular use of the path.

[102]

In addition to
    Mr. Barbours September 1995 objection to the Baileys driving over his beach
    without payment of a fee, earlier opposition came in 1993 from another
    neighbour, Judith Skelton-Grant, whose cottage was located north of Part 2 and
    who was the President of the Addison Beach Association at that time. In her
    September 14, 1993 letter to the Baileys, Ms. Grant set out her objection as
    follows:

This is just to put in writing what I said on the telephone on
    the weekend  that we do not want you driving across our property. I am
    sympathetic to the difficulty you experience in reaching the island once the
    snow in the woods gets deepbut the solution is not driving from the concession
    along the shore, across all of the privately owned beach properties. It sets a
    bad precedent, is aesthetically unpleasant, and impinges on others ownership
    rights.

[103]

Mrs. Bailey
    testified at trial that she understood Ms. Grants concerns and complied with
    her request.

Conclusion on the prescriptive easement claim

[104]

For these
    reasons, the use of motor vehicles over Part 2 falls short of the 20-year
    requisite period to establish an easement. There was no continuous 20-year
    period during which the previous owners drove over Part 2. Having acquired the
    property only in 1988, the Baileys have not satisfied this criterion. Finally,
    the evidence does not establish any continuous 20-year period during which the
    previous owners and the Baileys drove over Part 2, even when the previous owners
    use of motor vehicles and the Baileys use is combined.

[105]

Mr. Barbour
    could not have acquiesced to vehicular use of Part 2 when there were
    significant stretches of time during which it did not occur. Moreover, Mrs.
    Bailey cannot rely upon the 20-year period during which the previous owners and
    her family used the path to access Tiny Island by foot in order to establish a
    prescriptive easement for the use of motor vehicles because to do so would
    substantially increase the burden on the servient tenement.

[106]

Therefore, while
    the trial judge correctly found that Mrs. Bailey acquired an easement or
    right-of-way over the path on Part 2 of Mr. Barbours property, by virtue of its
    use by Mrs. Bailey and her predecessors in title, she erred in failing to
    restrict Mrs. Baileys easement to the non-vehicular use that the owners of
    Tiny Island continuously made of the path during the required 20-year period. Mrs.
    Baileys use should therefore be restricted to non-vehicular passage over the path
    on Part 2.

(b)

Easement of necessity

[107]

As a further
    basis for finding that Mrs. Bailey had acquired an easement over Part 2 of Mr.
    Barbours property, the trial judge stated that an easement of necessity
    existed, which she described as follows, at para. 405:

To the extent that the parcel was accessed and enjoyed by its
    owners in the past by crossing dry land on the shore, an easement of necessity
    existed or arose by operation of law immediately after the merger of title by
    Dr. Kynoch in 1961.  While the shore of Nottawasaga Bay is accessible to the
    owners of Tiny Island through the extension of Part 6 on the Hiley Plan (the
    Cut) to the waters edge, Mrs. Baileys predecessors in title never relied
    exclusively on boat access to reach the island, and Mrs. Bailey did not bargain
    to buy a boat access only island.

[108]

The trial judge
    erred in concluding that an easement of necessity arose in these circumstances.

[109]

In
Depew v.
    Wilkes
, this court cited, at para. 21, the following description of easements
    of necessity from
Gale on Easements
, 16th ed. (London: Sweet &
    Maxwell, 1997), at p. 148:

A way of necessity, strictly so called, arises where, on a
    disposition by a common owner of part of his land, either the part disposed of
    or the part retained is left without any legally enforceable means of access. In
    such a case the part so left inaccessible is entitled, as of necessity, to a
    way over the other part.

[110]

Tiny Island has
    never been inaccessible except over Part 2. The evidence accepted by the trial
    judge demonstrates that the previous owners of Tiny Island regularly used a
    boat to access the island, predominantly, but not exclusively, during periods
    when water levels were high and the isthmus was covered.

[111]

Betty Van Aller,
    Nancy Rice, Heidi Lauridsen, and Dr. Christopher Van Aller all gave evidence to
    the effect that the Van Allers used a rowboat to reach Tiny Island, either by
    rowing it over or pulling it behind them as they waded across. More
    particularly, Betty Van Aller stated in her statutory declaration that her
    family had placed a dock on the mainland opposite the island for the purpose of
    boat access to the island.

[112]

While the trial
    judge was correct to find that Mrs. Baileys predecessors in title never relied
    exclusively on boat access to reach Tiny Island, in the circumstances of this case,
    water access to the island is nonetheless possible and was used by the previous
    owners.

[113]

For the reasons
    already discussed in relation to prescriptive easements, I have found that the
    use of the path by foot was reasonably necessary for the owners enjoyment of
    their property. However, this does not prove necessity because Tiny Island was
    and is accessible by water, as well as by walking along the shoreline.

[114]

That the owners
    of Tiny Island have long preferred to walk or drive over Part 2 and may have found
    that route quicker and more convenient than travelling on their registered
    right-of-way and then by boat to reach Tiny Island, or else on foot along the
    shoreline, does not give rise to an easement of necessity. It cannot be said
    that in the absence of an easement over Part 2, the Baileys would be left
    without a legally enforceable means of accessing Tiny Island.

[115]

As a result, the
    trial judges finding of an easement of necessity is set aside.

(c)

Proprietary estoppel

[116]

With respect to
    the application of the doctrine of proprietary estoppel, citing this courts
    decision in
Schwark Estate v. Cutting
, 2010 ONCA 61, 316 D.L.R. (4th)
    105, at paras. 16 and 34, the trial judge considered whether the following requisite
    criteria had been satisfied in the context of this case:

i.

Encouragement of Mrs. Bailey by Mr. Barbour;

ii.

Detrimental reliance by Mrs. Bailey to Mr. Barbours knowledge; and

iii.

Mr. Barbour seeking to take unconscionable advantage of Mrs. Bailey by reneging
    on an earlier promise.

[117]

The trial judge properly
    equated the third criterion of unconscionable conduct with fraudulent
    conduct, and also correctly noted that it can only be established by Mrs.
    Bailey meeting the following five-part test:

i.

Mrs. Bailey must have made a mistake as to her legal title;

ii.

She must have expended some money or must have done some act (not
    necessarily on the defendants land) on the faith of her mistaken belief;

iii.

Mr. Barbour must have known of the existence of his own right, and it
    must be inconsistent with the right claimed by Mrs. Bailey;

iv.

Mr. Barbour must have known of Mrs. Baileys mistaken belief of her
    rights; and

v.

Mr. Barbour must have encouraged Mrs. Bailey in her expenditure of money
    or other acts, either directly or by abstaining from asserting his legal right.

See
Schwark Estate v. Cutting
, at para. 27.

[118]

The trial judge
    found that the doctrine of proprietary estoppel applied for the following
    reasons:

i.

The Baileys improved their own land, but not Mr. Barbours land;

ii.

Mr. Barbour could not have missed the Baileys making those improvements;

iii.

The Baileys conduct made it clear that they believed that they had
    every right to travel over and to use Part 2; and

iv.

Permitting Mr. Barbour to now rely on a strict application of his legal
    title would be unconscionable.

[119]

The trial judge
    found that the Baileys were unilaterally mistaken about the extent of their
    legal rights in relation to Part 2 of Mr. Barbours property. In particular, on
    the Baileys second visit to Tiny Island with their real estate agent, they
    understood as a result of where the owner, Rebecca Van Aller, pointed that the
    property extended over Part 2 as far as the tree line at the back of the beach,
    and up north to the southerly boundary of Parcel 9, Nancy Rices property.

[120]

Further, just
    before closing, Mrs. Bailey saw part of the 1942 Cavana survey, which depicted
    Tiny Island, the isthmus, a portion of the beach adjacent to Tiny Island, and
    the path that the Baileys and other witnesses identified at trial on the Hiley
    survey as the path on Part 2 over which they travelled. A reduced copy of this
    survey was attached to the Baileys Agreement of Purchase and Sale of Tiny
    Island.  For ease of visual reference, I have attached it as Appendix E to
    these reasons.

[121]

However, while
    the Baileys may have believed that they owned all or some of Part 2, the
    evidence establishes that their mistaken belief about their ownership of it was
    the product of their own failure to make appropriate inquiries.

[122]

Prior to
    purchasing the island, the Baileys did not inquire about vehicle access. On the
    initial occasions that the Baileys visited Tiny Island in 1988, they did not
    drive down the beach, but rather left their motor vehicles in the parking spot
    north of Part 2, and walked down the path on Part 2 and across the isthmus to
    Tiny Island. Mrs. Bailey also admitted that before purchasing Tiny Island, she
    had Mr. Barbours deed that stipulated his ownership of Part 2 all the way to
    the waters edge, including the path and the beach. She did not see the full
    version of the 1942 Cavana survey until after the closing of the transaction. However,
    she declined to have a survey conducted. She appears to have based her belief
    of ownership over Part 2 primarily on the assertions made by the former owner
    of Tiny Island concerning her familys use of Part 2.

[123]

The trial judge
    correctly found that the Baileys mistake was unilateral.  There was no
    evidence that Mr. Barbour was aware of the Baileys mistaken belief about their
    rights prior to their assertions of ownership in 1995 in response to his
    request that they pay a licence fee to travel over his beach.

[124]

There was also no
    evidence that Mr. Barbour encouraged the improvements of the path and isthmus that
    the Baileys undertook in 1992 and 1993, or that he induced them to undertake
    the improvements they made to the cottage on Tiny Island soon after they bought
    it.

[125]

In fact, the
    Baileys planned to renovate their property before meeting Mr. Barbour. Mrs.
    Bailey testified that on her very first visit to Tiny Island with the real
    estate agent, she knew that renovations would have to be carried out. The
    evidence of the Baileys was that they decided to make extensive improvements to
    the cottage on Tiny Island during the first year that they owned it because it
    was an old, dusty log cabin with a very dark interior and it was not
    winterized.  Plans were drawn up that summer and significant renovations
    immediately followed. Mr. Bailey admitted during cross-examination that Mr.
    Barbour did and said nothing to cause them to undertake the improvements to
    their property.

[126]

In light of this,
    the trial judge erred in concluding that Mr. Barbours silence when the Baileys
    were making their improvements meant that he had encouraged their acts, such
    that his conduct in later asserting his legal rights was so unconscionable,
    inequitable or unjust as to invoke proprietary estoppel:
Schwark Estate v.
    Cutting
, at para. 28.

[127]

For all of these
    reasons, the trial judge erred in concluding that the doctrine of proprietary
    estoppel applied to the circumstances of this case.

(iii)

Location of the Easement

[128]

As I have
    determined that Mrs. Bailey has the right to an easement or right-of-way over
    the path and isthmus, when above water, of Part 2 for the purpose of access to
    Tiny Island by foot, it is necessary to determine the easements boundaries. As
    this court stated in
Luloff v. Kaiser
, 2002 CanLII 44992, at para. 2,
    the prescriptive right of a claimant to an easement must be confined to the
    land that the claimant used continuously for a period of 20 years.

[129]

The trial judge
    granted Mrs. Bailey title over all of Part 2 of Parcel 10  namely, an area
    greater than the land that Mrs. Bailey and her predecessors in title
    continuously used for an uninterrupted period of 20 years. As a result, she did
    not make a finding as to the dimensions and location of the path used by Mrs.
    Bailey and her predecessors in title.

[130]

In my view, it
    is not necessary to remit this matter back to the trial judge or a surveyor to
    determine the exact dimensions and location of the right-of-way because the
    witnesses at the second trial, including Mrs. Bailey and the family members of
    Tiny Islands former owners, as well as the experts who attended the property,
    identified the path that they used as that marked on the Hiley plan of survey
    as driveway (see Appendix A).

[131]

The lay
    witnesses described the path as hard-packed sand that wound its way naturally
    through sand dunes. Mrs. Bailey made the location of the path more definite by
    the deposit of material onto the path that she identified as driveway on the
    Hiley plan of survey.

[132]

Mr. Hiley
    testified that when he visited the property, he saw a wheel track in the sand. He
    said that the track generally was in the same place as where he indicated the
    driveway on his survey, although he agreed that there could be 15 feet of
    shift either way as the sand blew onto the track, and that the track had an
    ambulatory boundary that might not remain exactly the same. He echoed the
    evidence of the other witnesses that the wheel track flowed naturally and that
    persons using the track would take more or less the same route. He believed
    that the track would be in a similar location to where he showed it on his plan
    of survey. Mr. Hileys plan of survey was admitted on the consent of the
    parties, as noted in the trial judges February 22, 2013 Order.

[133]

Mr. Stewart
    testified that when he visited the property, he observed and measured an actual
    track across the beach that he indicated was illustrated and labelled
    driveway on the Hiley plan of survey and that it corresponded to the track
    illustrated with two dotted lines on the plan of survey that he prepared (see Appendix
    D).

[134]

This evidence
    establishes that the path marked as track on Mr. Stewarts registered plan of
    survey was more or less the path that the owners of Tiny Island travelled on
    foot across Part 2 of Mr. Barbours property. While there has been some
    variation in the actual route travelled because of the shifting in sand over
    the years, the path used has always been within a well-defined,
    naturally-flowing path that the witnesses had no difficulty in identifying and
    that the surveyors for the parties were able to designate on their respective
    plans of surveys.

[135]

Mrs. Bailey is
    therefore entitled to an easement in the nature of a right-of-way for
    non-vehicular passage on the path marked track on the Stewart plan of survey
    for the purposes of ingress and egress to and from Tiny Island.

(2)

Other Grounds of Appeal

(i)

Bias and Trial Unfairness

[136]

Mr. Barbour
    argues that the trial judges exclusion of evidence, including transcripts from
    earlier proceedings, created trial unfairness for, and demonstrated the trial
    judges bias against, Mr. Barbour.

[137]

The test for
    reasonable apprehension of bias is a high one. Mr. Barbour has not met the high
    threshold to establish bias, which requires that an informed person, viewing
    the matter realistically and practically  and having thought the matter
    through  [would] concludethat it is more likely than not that [the
    decision-maker], whether consciously or unconsciously, would not decide
    fairly:
Committee for Justice and Liberty

v.

National
    Energy Board
, [1978] 1 S.C.R. 369, at p. 394. See also
Wewaykum Indian
    Band v. Canada
,
2003 SCC 45
,
    [2003] 2 S.C.R. 259, at para. 60
.

[138]

There are no
    particulars of bias alleged against the trial judge other than a very vague
    statement in Mr. Barbours factum that the trial judges pre-trial and mid-trial
    rulings demonstrate a bias in favour of the possessory claimant.

[139]

I would not
    accept this ground of appeal. None of the rulings indicates bias on the trial
    judges part against Mr. Barbour. Essentially, in complaining that she ruled
    against him and that the rulings were incorrect, Mr. Barbour is seeking to
    re-litigate these issues. Neither of these complaints supports his allegation
    of bias.

[140]

Further, while
    it was unfortunate that the trial judge initially misconstrued the scope of the
    consent order concerning the documents and transcripts to be admitted, her
    explanation was reasonable, and she provided the parties with the opportunity
    to make further submissions about the issue before she made her final
    decision.

[141]

Moreover, Mr.
    Barbour has not shown how the omission of these materials from the trial has
    caused him any trial unfairness or prejudice. In particular, his evidence from
    previous proceedings was not materially different from the Agreed Statement of
    Facts admitted in the present trial. As a result, it cannot be said that Mr.
    Barbour was not given a fair opportunity to put forward his position at trial
    or that, if the materials had been admitted, the outcome would have been
    different.

[142]

Finally, and without
    developing his argument, Mr. Barbour submits that based on the
voir dire
,
    the trial judge should not have qualified Mr. Brubacher, a surveyor
    specializing in collecting and analyzing spatial data, as an expert witness in
    any field. I would not give effect to Mr. Barbours contention.

[143]

The trial judge
    properly exercised her role as gatekeeper. Her reasons demonstrate that she was
    aware of the relevant criteria in
R. v. Mohan
, [1994] 2 S.C.R. 9, for
    the qualification and admission of expert evidence. She carefully considered
    Mr. Brubachers qualifications and the areas in which Mrs. Bailey sought to have
    him qualified as an expert. She was alert to the limits of Mr. Brubachers
    expertise and expressly restricted his expert qualification and the ambit of
    his testimony to within those identified limits.  I would not interfere with
    her decision.

(ii)

Expiry of the Limitation Period

[144]

Mr. Barbour says
    that Mrs. Baileys claims are statute-barred because Mrs. Bailey should have
    known of the problems with her property boundaries when she purchased Tiny
    Island in 1988 and she sat on her rights until 2004 when she launched her
Land
    Titles Act
application.  He contends that by the time Mrs. Bailey
    instigated her Rule 14 application, the ten-year limitation period under s. 4
    of the
Real Property Limitations Act
for asserting a claim for adverse
    possession or an easement had long expired.

[145]

Given my reasons
    for allowing the appeal with respect to Mrs. Baileys claim for adverse
    possession, it is unnecessary to address Mr. Barbours argument on this aspect
    of the appeal.

[146]

I would not give
    effect to Mr. Barbours submission concerning Mrs. Baileys easement claim. She
    did not sit on her rights. She continuously and openly enjoyed and used the
    right-of-way over Part 2 until the
Boundaries Act
decision.

D.

Disposition

[147]

The trial
    judges order that Mrs. Bailey is granted fee simple title over all of Part 2
    of Parcel 10 is set aside.

[148]

The trial
    judges order is varied to allow a grant to Mrs. Bailey of an easement in the
    nature of a right-of-way in perpetuity for non-vehicular passage on the path
    marked track over Part 2 of Parcel 10, Concession 13 in Tiny Township, as
    shown on Mr. Stewarts plan of survey that was registered on title on October
    15, 2004 as Plan BA-2608, for the purposes of ingress and egress to and from
    Tiny Island, shown as Part 1 on the Hiley survey.

[149]

An order shall
    issue accordingly.

E.

Costs

[150]

Given the
    disposition of this appeal, the trial judges order granting costs to the
    Baileys is set aside.

[151]

The trial
    judges order directing Mr. Streisfield to pay 20 per cent of those costs
    personally, and the costs of the Rule 57.07 motion, is also set aside.

[152]

I would allow
    the appeal from the costs order against Mr. Streisfield personally because the
    process followed by the trial judge was flawed in that it did not give him a
    reasonable opportunity to be heard.

[153]

First, the trial
    judge did not allow Mr. Streisfield the opportunity to respond to criticisms
    concerning his performance before she made findings against him in her reasons
    for judgment that formed the basis for her order that he should reimburse Mr.
    Barbour for part of Mrs. Baileys trial costs.

[154]

For example, in her reasons for judgment, the trial judge held
    that she had come to the regretful conclusion that Mr. Streisfield allowed
    Mr. Stewart to disregard [his] duty to the court: para. 321. She considered it
    of grave seriousness that Mr. Streisfield proffered Mr. Stewart as an expert witness
    despite what she considered hallmarks of Mr. Stewarts bias:  para. 323. She
    made these findings without having heard submissions from Mr. Streisfield on
    these matters.

[155]

Second, she ordered Mr. Streisfield to pay Mrs. Baileys costs of
    the Rule 57.07 motion itself, without having heard any submissions.

[156]

The process followed by the trial judge is contrary to the
    provisions of r. 57.07(2) of the
Rules of Civil Procedure
that no
    order under r. 57.07(1), providing that a lawyer is responsible for costs,
    shall be made unless the lawyer is given a reasonable opportunity to make
    representations to the court.

[157]

Mr. Streisfield was not given that opportunity in this case and
    the orders against him must therefore be set aside.

[158]

In the circumstances, it is unnecessary to consider the other
    grounds of appeal advanced on this issue.  I would note that the trial judge
    did not have the benefit of this courts recent decision in
Moore v.
    Getahun
, 2015 ONCA 55, 125 O.R. 3d 321, leave to appeal refused, [2015]
    S.C.C.A. No. 119.

[159]

If the parties cannot agree on the disposition of the costs of
    the appeal, the first trial, and the second trial (including the costs hearings
    before the trial judge), they shall make written costs submissions of no more
    than five pages, double-spaced, plus cost outlines and any settlement offers,
    as follows:  Mr. Barbour shall serve and file his costs submissions within two
    weeks of today; Mrs. Bailey shall serve and file her costs submissions within
    two weeks thereafter; and Mr. Barbour shall provide any reply submissions to
    Mrs. Baileys submissions within ten days after that.

Released: February 4, 2016

L.B. Roberts
    J.A.


J.
MacFarland J.A.


Paul
Rouleau J.A.


Appendix A


Appendix B


Appendix C


Appendix D


Appendix E






[1]
Section 27 of the
Land Titles Act
directs that further appeals from
    orders under that Act lie to the Divisional Court. In this case, the trial
    judges Amended Judgment disposed of both Mrs. Baileys claim under the
Land
    Titles Act
and granted her declaratory relief in the nature of an easement
    or right-of-way. Accordingly, this court determined it had jurisdiction to hear
    the appeal.



[2]
In
Marotta v. Creative Investments Ltd.
(2008), 69 R.P.R. (4th) 44 (Ont.
    S.C.), Tulloch J. (as he then was) considered the Superior Court jurisprudence
    post-
Teis
and concluded, at para. 74, that the inconsistent use test
    does not apply in specific situations involving contiguous land, a
bona fide
belief on the part of the
    adverse possessor that he or she owned the disputed lands, and no claim by or
    physical contact of the owner in relation to the disputed lands: para. 74. The
    final criterion does not arise on the facts of this case.



[3]
Given my reasons for affirming that the trial judge was correct in finding that
    Mrs. Bailey acquired a prescriptive easement for non-vehicular use under the
Real
    Property Limitations Act
, it is unnecessary for me to consider the trial
    judges alternative finding that an easement was acquired under the doctrine of
    lost modern grant.



[4]

394 Lakeshore Oakville Holdings Inc. v. Misek
is one of the cases
    grouped with and reported under the same citation as
Combined Air Mechanical
,
supra
, and discussed at paras. 182-231 of that decision.


