



COURT OF APPEAL FOR ONTARIO

CITATION: Gold v. Chronas, 2015 ONCA 900

DATE: 20151218

DOCKET: C59743

Simmons, Epstein and Pardu JJ.A.

BETWEEN

Elaine Gold, Lissa Brown, Robert Fairley and Peter
    Fairley

Applicants (Respondents)

and

Dianna Chronas and Mark Kane

Respondents (Appellants)

James C. Morton, for the appellants

Michael W. Carlson, for the respondents

Heard: May 27, 2015

On appeal from the order of Justice F.L. Myers of the Superior
    Court of Justice, dated November 21, 2014, with reasons reported at 2014 ONSC
    6763.

Simmons
    J.A.:

A.

Introduction

[1]

The issues on this appeal concern whether the respondents are entitled
    to use a laneway located on the appellants property to access their homes.

[2]

The respondents, Elaine Gold, Lissa Brown, Robert Fairley and Peter
    Fairley, own homes fronting on Brock Avenue in Toronto. Except on foot  and
    with difficulty  the respondents have no access to their homes from Brock Avenue
    because of an embankment and a fence at the front of their homes.

[3]

When the respondents purchased their homes, their deeds included a right
    of way over a laneway located on adjoining land at the rear of their
    properties.

[4]

The appellants, Dianna Chronas and Mark Kane, own the adjoining land, including
    the laneway, at the rear of the respondents properties. The appellants
    property fronts onto Cunningham Avenue and is municipally known as 7 Cunningham
    Avenue.

[5]

For the period from about 1948 to 1960, the deeds in the chain of title
    to 7 Cunningham Avenue stated that the property was subject to a right of way
    over the laneway. From 1960 onward, the deeds in the chain of title to 7
    Cunningham Avenue no longer referred to the right of way.

[6]

In 2003, the appellants and the respondents properties were all
    converted from the land registration system governed by the
Registry Act
,
    R.S.O. 1990, c. R.20, to the electronic land registration system governed by
    the
Land Titles Act
, R.S.O. 1990, c. L.5.

[7]

The appellants purchased 7 Cunningham Avenue in 2006. In 2013, they
    blocked the respondents access to their homes via the laneway by erecting a
    pole at the entrance to the laneway.

[8]

In response, the respondents applied for an injunction restraining the
    appellants from interfering with the respondents use of the laneway. The
    application judge granted the respondents application and prohibited the
    appellants from interfering with the use of the rights of way over the laneway as
    described in the respondents deeds.

[9]

At para. 16 of his reasons, in discussing the respondents claim for a
    remedy based on proprietary estoppel, the application judge found the
    appellants actions unconscionable, inequitable and unjust. However, he left
    for another day the availability of a remedy based on proprietary estoppel.

[10]

Instead,
    at para. 23 of his reasons, the application judge concluded, that [t]he
    combined effect of [s. 113(5)(a)(iv) of the
Registry Act
] with the
nemo
    dat
[1]
principle protects the [respondents] rights to their rights of way despite the
    fact that it is currently unregistered on the servient tenement.
[2]

[11]

In
    oral argument on appeal, the parties agreed that the issue of whether the
    respondents are entitled to use the laneway turns solely on the interpretation
    and application of s. 113(5)(a)(iv) of the
Registry Act
.

[12]

Section
    113(5)(a)(iv) is included in Part III of the
Registry Act
. Part III
    contains the investigation of titles provisions. The appellants rely on the
    investigation of titles provisions to assert that the respondents claim to the
    right of way has expired. According to the appellants, that is because the
    respondents did not register a notice of claim against the title to 7
    Cunningham Avenue within 40 years after the right of way was created  which
    they say was required under the investigation of titles provisions contained in
    Part III.

[13]

Section
    113(5) of the
Registry Act
sets out certain exceptions to the
    application of Part III. Section 113(5)(a)(iv), on which the trial judge relied,
    stipulates that Part III does not apply to a claim 
of a person to an unregistered right of way  that the person is openly
    enjoying and using. The application judge found that the respondents are
    openly using the laneway and that the appellants were aware of that use when
    they purchased their property.

[14]

The
    appellants argue that the application judge erred in relying on s.
    113(5)(a)(iv) of the
Registry Act
. According to them, s. 113(5)(a)(iv)
    applies only to prescriptive easements  that is, easements acquired through
    adverse possession rather than under a registered instrument. According to
    them, a right of way that was once registered, but that has expired because of
    failure to register a notice of claim within 40 years after the right of way
    was created, does not qualify as an unregistered right of way within the
    meaning of s. 113(5)(a)(iv). They submit that to hold otherwise would mean that
    a right of way would become frozen in existence as of a Land Titles conversion
    date, regardless of whether it continued to be openly enjoyed and used
    thereafter.

[15]

For
    reasons that I will explain, I would dismiss the appeal.

B.

Background

[16]

Brock
    Avenue is a street in Toronto that runs generally north and south. The
    respondents own contiguous properties fronting on the west side of Brock Avenue,
    as follows, beginning with the most southerly property and progressing to the
    most northerly property:

·

Lissa Brown owns 78 Brock Avenue (the most southerly property);

·

Elaine Gold owns 80 Brock Avenue;

·

Robert and Peter Fairley own 84 Brock Avenue; and

·

Robert Fairley owns 86 Brock Avenue (the most northerly property).

There is no property with the address 82 Brock Avenue.

[17]

Cunningham
    Avenue is a street in Toronto that runs generally east and west and that
    intersects Brock Avenue immediately north of Robert Fairleys property, 86
    Brock Avenue. As noted, the appellants property, 7 Cunningham Avenue, is
    located at the rear (to the west) of the respondents properties; it fronts
    onto Cunningham Avenue; and it includes the laneway.

[18]

An
    examination of the chain of title to the respondents properties reveals that the
    rights of way described in their deeds, and their dates of origin, vary.

[19]

The
    deeds to 78 and 80 Brock Avenue refer to a right of way 7 feet 6 inches wide
    running the length of the laneway abutting lots 78, 80, 84 and 86. The deeds to
    84 Brock Avenue describe a right of way 7 feet 6 inches wide running the length
    of the laneway abutting lots 84 and 86. And the deeds to 86 Brock Avenue
    describe a right of way 7 feet 6 inches wide running the length of the laneway
    abutting lot 86.

[20]

Reference
    to the rights of way for 78 and 86 Brock Avenue first appeared in 1946;
    references to the rights of way for 80 and 84 Brock Avenue first appeared in
    1948.

[21]

The
    question when the right of way over 7 Cunningham Avenue was first created may
    not be entirely clear because the land included in the initial deed that created
    the right of way did not encompass the entire length of the right of way that
    was later created. The chain of title to 7 Cunningham Avenue reveals that a right
    of way over that land was first reserved in a deed registered in 1948; that the
    lands conveyed under that deed did not encompass the entire north-south length
    of the current 7 Cunningham Avenue; and that the right of way is 8 feet 6
    inches wide. A right of way spanning the full length of the current 7
    Cunningham Avenue was referred to in a deed registered in 1954; that deed, too,
    referred to a right of way 8 feet 6 inches wide.
[3]


[22]

In
    1960, 7 Cunningham Avenue was sold. The 1960 deed did not refer to the servient
    right of way obligation; nor have subsequent deeds and transfers of 7
    Cunningham Avenue referred to that obligation.

[23]

There
    was no evidence presented on the application or on this appeal regarding why
    reference to the right of way disappeared from the title to 7 Cunningham Avenue
    in 1960.

[24]

In
    2013, the appellants erected a pole blocking access to the laneway. This act
    led to the current litigation.

C.

the statutory scheme

(1)

The
Registry Act

[25]

As
    noted above, the issue whether the respondents are entitled to use the laneway
    located on 7 Cunningham Avenue turns on the interpretation and application of
    s. 113(5)(a)(iv) of the
Registry Act
, which is contained in Part III
    of the
Registry Act
.

[26]

Part
    III of the
Registry Act
concerns the investigation of titles. It
    provides for a 40-year title search period in s. 112 and for a 40-year expiry
    period in ss. 113(1)-(4). Part III also provides for certain exceptions to its
    application in s. 113(5).

[27]

Before
    examining ss. 112 and 113 more closely, I will set out certain definitions
    contained in s. 111, which inform the interpretation of those later provisions:

111. (1) In this Part,


claim means a right,
    title, interest, claim, or demand of any kind
or nature whatsoever
    affecting land
set forth in, based upon or arising out of a registered
    instrument
,
and, without limiting the generality of the foregoing, includes
a mortgage, lien,
easement
, agreement, contract, option, charge,
    annuity, lease, dower right, and restriction as to the use of land or other
    encumbrance affecting land;


notice of claim means a
    notice of claim that is registered under subsection 113 (2) and that is in the
    prescribed form
and includes a notice registered under a predecessor of
    this Part or under The Investigation of Titles Act, being chapter 193 of the
    Revised Statutes of Ontario, 1960, or a predecessor of it;


notice period means the
    period ending on the day 40 years after the later of,

(a) the day of the registration of an instrument
    that first creates a claim
, or

(b) the day of the registration of a notice of claim
    for a claim;



t
itle search period
    means the period of forty years described in subsection 112 (1)
;

.

(2)
    A claim referred to in clause 113 (5)(a) or (b) is not confined to a claim
    under a registered instrument
.  [Emphasis added.]

[28]

Section
    112 stipulates that the 40-year title search period is the period over which a
    person must show that he or she is lawfully entitled to the land as owner
    through a good and sufficient chain of title. The title search period runs
    backward from the date of dealing and, subject to certain exceptions, deems
    irrelevant any claims registered more than 40 years before. One of the
    exceptions to the title search period provisions is an instrument in relation
    to any claim referred to in subsection 113(5): s. 112(3); see also the exception
    in s. 112(1).

[29]

Section
    112 reads as follows:

112. (1) A person dealing with land
    shall not be required to show that the person is lawfully entitled to the land
    as owner thereof through a good and sufficient chain of title during a period
    greater than the forty years immediately preceding the day of such dealing,
except
    in respect of a claim referred to in subsection 113 (5)
.

(2) Where there has been no conveyance, other than a mortgage, of
    the freehold estate registered within the title search period, the chain of
    title commences with the conveyance of the freehold estate, other than a
    mortgage, most recently registered before the commencement of the title search
    period.

(3)

A
    chain of title does not depend upon and is not affected by any instrument
    registered before the commencement of the title search period except
,

(a) an instrument that, under subsection (2),
    commences the chain of title;

(b) an instrument in respect of a claim for
    which a valid and subsisting notice of claim was registered during the title
    search period; and

(c)
an instrument in relation to any claim
    referred to in subsection 113(5)
.

[30]

Subsections
    113(1)-(4) of the
Registry Act
set out the 40-year expiry period, or
    notice period. This is the period of time after which claims against title
    expire unless a notice of claim is registered. The expiry period runs forward
    from the date of registration of a claim and invalidates claims not renewed
    within 40 years:

113. (1)

A
    claim that is still in existence on the last day of the notice period expires
    at the end of that day unless a notice of claim has been registered.

(2)

A person having a claim or a person
    acting on that persons behalf, may register a notice of claim with respect to
    the land affected by the claim,

(a) at any time
    within the notice period for the claim; or

(b) at any time after the expiration of the
    notice period but before the registration of any conflicting claim of a
    purchaser in good faith for valuable consideration of the land.

(3)

A notice of claim may be renewed from
    time to time by the registration of a notice of claim in accordance with
    subsection (2).

(4)

Subject to subsection (7), when a
    notice of claim has been registered, the claim affects the land for the notice
    period of the notice of claim.

[31]

Section
    113(5) sets out certain exceptions to the application of Part III. The
    exception at issue on this appeal is s. 113(5)(a)(iv). Section 113(5) reads as
    follows:

(5)

This
    Part does not apply to,

(a)
a
    claim
,

(i) of the
    Crown reserved by letters patent,

(ii) of
    the Crown in unpatented land or in land for which letters patent have been
    issued, but which has reverted to the Crown by forfeiture or cancellation of
    letters patent, or in land that has otherwise reverted to the Crown,

(iii) of
    the Crown or a municipality in a public highway or lane,

(iv)
of
    a person to an unregistered right of way, easement or other right that the
    person is openly enjoying and using
;

(b) a claim
    arising under any Act; or

(c) a claim
    of a corporation authorized to construct or operate a railway, including a
    street railway or incline railway, in respect of lands acquired by the
    corporation after the 1st day of July, 1930, and,

(i) owned
    or used for the purposes of a right of way for railway lines, or

(ii)
    abutting such right of way. [Emphasis added.]

(2)

The
Land Titles
    Act

[32]

Following
    their conversion to the system of land registration governed by the
Land
    Titles Act
, the appellants and respondents properties were classified as
    Land Titles Conversion Qualified (LTCQ) parcels.

[33]

LTCQ
    parcels are converted to the Land Titles system without surveys or notice to
    owners: Marguerite E. Moore,
Title Searching and Conveyancing in Ontario
,
    6th ed. (Markham: LexisNexis, 2010) at p. 294.

[34]

Thus,
    LTCQ status does not guarantee boundaries:
Land Titles Act
, s. 140(2).
[4]
Further, LTCQ parcels are subject to mature adverse possession claims and
    prescriptive easements claims: Moore at p. 296. Under s. 44(1) of the
Land
    Titles Act
, they are also subject to any existing right of way or easement:

44.

(1)

All
    registered land, unless the contrary is expressed on the register, is subject
    to such of the following liabilities, rights and interests as for the time
    being may be subsisting in reference thereto, and such liabilities, rights and
    interests shall not be deemed to be encumbrances within the meaning of this
    Act:



2. Any right of way, watercourse, and right of water, and
    other easements.

[35]

Conversion
    to the system of land registration governed by the
Land Titles Act
from the system of land registration governed by the
Registry Act
is
    authorized under s. 32 of the
Land Titles Act
,
[5]
which was first introduced in 1972.

D.

the application judges decision

[36]

In
    the portion of his reasons addressing s. 113(5)(a)(iv) of the
Registry Act
,
    the application judge rejected the appellants argument that s. 113(5)(a)(iv)
    merely codifies the historic exclusion of prescriptive easements from the 40-year
    search rule.

[37]

As
    a starting point, he noted that prescriptive easements are already excluded
    from the 40-year search rule. This is because the definition of claim for the
    purpose of the 40-year search rule is set out is s. 111(1) of Part III of the
Registry
    Act
, and includes only claims based upon or arising out of a registered
    instrument. Claims such as prescriptive easements, which do not arise out of a
    registered instrument, are therefore not claims at all for the purpose of the
    40-year search rule and consequently are outside its ambit.

[38]

Section
    113(5)(a)(iv) would thus be unnecessary if it applied only to prescriptive
    easements.

[39]

The
    application judge also noted that there is an interpretive question regarding
    whether the respondents are claiming an unregistered right of way within the
    meaning of s. 113(5)(a)(iv). This was in dispute because the right of way had
    been registered on the title to the servient tenement, albeit outside the
    40-year search period, and continued to be referred to in the deeds and
    transfers of the respondents properties.

[40]

Citing
    Jeffrey W. Lems annotation to the Superior Court decision in
Ramsay
,

[6]
the application judge noted, at paras. 21 and 22 of his decision, that the 40-year
    rule would not cause unregistered interests to expire, so s. 113(5)(a)(iv) must
    apply to easements that had been registered at one time and that were then
    openly enjoyed and used at the time of the dispute: The subclause precisely
    fits the case where an easement or right of way existed once in a registered
    deed and is still used although it may not exist any longer.

[41]

Acknowledging
    the argument that this approach might undermine the absolute certainty of the
    register, the application judge noted that the existence of prescriptive title
    and the doctrine of actual notice both do so as well. In the application judges
    view, s. 113(5)(a)(iv) promotes both fairness and certainty, for a purchaser is
    far likelier to see an open use than to understand an arcanely drafted point
    buried in a metes and bounds description registered on title.

[42]

In
    the course of his reasons, the application judge concluded, at paras. 11 and
    13, that the laneway has been openly enjoyed and used by the respondents
    throughout their periods of ownership of the dominant tenements:

The [appellants] do not deny the evidence of each of the [respondents]
    that each of them has used the laneway for access to their properties and,
    significantly, in all but one case, for tenants to obtain access to leased
    premises in the properties throughout their ownership (Gold from 2009, Brown
    from 2003, and Fairley from 2001).



As is dealt with below, subclause 113(5)(a)(iv) of the
Registry
    Act
, does require a finding that the [respondents] are openly enjoying and
    using the right of way. As noted above however, the [appellants] do not deny
    the [respondents] evidence concerning their present use of the laneway.

[43]

The
    application judge granted the respondents application and made an order
    prohibiting the appellants from interfering with the respondents use of the rights
    of way over the laneway as described in their deeds.

E.

THE PARTIES ARGUMENTS ON APPEAL

[44]

As
    I have said, in oral argument the parties agreed that the only issue on appeal
    is the correct interpretation of s. 113(5)(a)(iv) of the
Registry Act
.
    Proprietary estoppel, prescriptive easements and the
nemo dat
principle are not at issue.

[45]

The
    appellants assert that s. 113(5)(a)(iv) applies only to prescriptive easements.
    In their view, the intent of s. 113(5)(a)(iv) is to deal with prescriptive
    rights that have crystalized and to ensure that those rights are not in some
    way eliminated.

[46]

The
    appellants also assert that the respondents rights of way do not fall within
    the ambit of s. 113(5)(a)(iv) because this section applies to an unregistered right
    of way, easement or other right. In the appellants view, the word
    unregistered means
never
registered, and thus s.
    113(5)(a)(iv) does not apply to rights of way, like the respondents, that were
    once registered on the servient tenement but have not been properly renewed
    within the 40-year expiry period. Moreover, to hold otherwise would mean that a
    right of way would become frozen in existence as of a Land Titles conversion
    date. This is because the
Registry Act
requirements would no longer
    apply. Accordingly, the right of way would continue to exist regardless of
    whether it continued to be openly enjoyed and used thereafter. The appellants
    assert that cannot have been the Legislatures intention.

[47]

The
    respondents argue that s. 113(5)(a)(iv) does not apply only to prescriptive
    easements. In their view, the intent of s. 113(5)(a)(iv) is to ensure that, in
    the rare circumstances where a past registered right is not validly renewed for
    some reason yet the usage still openly continues, no danger exists that an
    existing right will be lost unfairly through the operation of Part III of the
Registry
    Act
.

F.

Legislative history of Part iii of the
Registry Act

[48]

As
    I will explain, the 40-year title search period and the 40-year expiry period
    provisions of Part III have been amended on several occasions. The legislative
    history of these provisions is important because they are the provisions to
    which s. 113(5) provides exceptions. The amendments demonstrate a consistent
    intention on the part of the Legislature, from at least 1981 onward, to attempt
    to confine, as far as is reasonably possible, the 40-year search period to 40
    years, and to attempt to limit the manner in which a claim can be renewed to
    the registration of a notice of claim.

[49]

Unlike
    the 40-year title search period and the 40-year expiry period provisions, the
    language of the exception now contained in s. 113(5)(a)(iv) has remained
    relatively unchanged. Notably, however, the opening words of the exception
    provision have been amended so that the exceptions it contains, which
    originally applied only to the 40-year expiry period, now apply to Part III of
    the
Registry Act
. Section 113(5)(a)(iv) is therefore an exception, not
    only to the 40-year expiry period, but also to the 40-year title search period.
    Where s. 113(5)(a)(iv) applies, a right will not expire after 40 years. And an
    instrument registered outside the 40-year title search period will continue to
    affect the chain of title.
[7]


[50]

In
1387881 Ontario Inc. v. Ramsay
(2005), 77 O.R. (3d) 666, Lang J.A.
    reviewed the legislative and jurisprudential history of Part III of the
Registry
    Act
that was relevant to that case up to 2005.

[51]

Like
    this case,
Ramsay
presented an issue concerning how rights of way can
    be preserved under Part III of the
Registry Act
. Unlike this case, in
Ramsay
,
    after the right of way was created, each conveyance of the servient tenement
    stated that the new owner of the servient tenement took title subject to a
    right of way in favour of the owners of the dominant tenements. After the
    40-year expiry period ended, the then-owner of the servient tenement sought a
    declaration that the dominant tenement owners claims to a right of way had
    expired.

[52]

In
Ramsay
, Lang J.A. observed that the
Investigation of Titles Act
,
    1929
, S.O. 1929, c. 41 (the 1929 Act), was enacted to codify
[8]
the common law on title searches. In addition, she noted that the 1929 Act
    became Part III of the
Registry Act
by virtue of the
Registry
    Amendment Act, 1966
, S.O. 1966, c. 136 (the 1966 Act). Further, she said
    Part III remained relatively unchanged until the
Registry Amendment Act,
    1981
, S.O. 1981, c. 17 (the 1981 Amendments).

[53]

The
    1981 Amendments addressed both the 40-year title search period and the 40-year
    expiry period.

[54]

Concerning
    the title search period, Lang J.A. observed that, although both the 1929 Act
    and the 1966 Act purported to confine that period to 40 years, cautious
    practitioners continued to search for a root of title before that period:
Ramsay
,
    at para. 16, citing
Ontario Hydro v. Tkach
(1992), 10 O.R. (3d) 257
    (C.A.). Lang J.A. concluded that by using very specific language to replace the
    former s. 105 of the 1980 Act,
[9]
the 1981 Amendments established that it was unnecessary to search for an
    earlier root of title:
[10]

Ramsay
, at para. 16.

[55]

Notably,
    the 1981 Amendments also introduced a new provision to address the 40-year
    expiry rule.

[56]

The pre-1981 Amendments 40-year expiry rule was found in
s. 106(1) of the 1980 Act. Section 106(1) of the 1980
    Act provided that a claim that had been in existence for longer than 40 years
    would expire unless acknowledged, referred to, or contained in an instrument or
    notice of claim within 40 years from its creation:

106. (1)
A claim that has been in
    existence for longer than forty years does not affect land
to which this
    Act applies
unless the claim has been acknowledged or
    specifically referred to or contained in an instrument or a notice
under
    this Part or under
The Investigation of Titles Act
, being chapter 193 of
    the Revised Statutes of Ontario, 1960, or any predecessor thereof, registered
    against the land
within the forty-year period
.
    [Emphasis added.]

[57]

Following
    the 1981 Amendments, the amended provision (which is now s. 113(1)) referred
    only to a notice of claim, and no longer referred to the claim being
acknowledged, referred to or contained in an
    instrument
:

106. (1)
A claim
that is still in
    existence
on the last day of the notice period
expires at the end of that day unless a notice of claim has been registered.

[58]

As part of the
1981
    Amendments, notice of claim and notice period were defined in s. 104 (now
    s.111):


notice of claim means a notice of claim
    registered under subsection 113(2)
and includes a notice registered
    under a predecessor of this Part or under
The Investigation of Titles Act
[citation omitted], or a predecessor thereof;


notice period
 means the period
ending
on the day forty years
after
the day of the
registration of an instrument or a notice
    of claim
, as the case may be. [Emphasis added.]

[59]

Ramsay
was significant because this court held that, following the 1981 Amendments, a
    registered easement could still be preserved not only by registering on the
    servient tenement a notice of claim in the prescribed form but also by
    registering a deed referencing the right of way. This was largely because the
    definition of notice period referred to a period 40 years after the
    registration of
an instrument
or notice of claim. In the light of this
    conclusion, the court found it unnecessary to address the argument made in that
    case by the owner of the servient tenement that s. 113(5)(a)(iv) of the
Registry
    Act
would preserve an easement that was openly enjoyed and used.

[60]

Concerning
    the latter issue, at para. 40, the court commented on the intent of s.
    113(5)(a)(iv) and its requirements. The court also expressed concern whether
    the section could adequately alleviate the unfairness that would result from
    interpreting the 1981 Amendments to mean that a right of way would not be
    preserved even though it was referred to in deeds registered on the servient
    tenement:

The intent of [s. 113(5)(a)(iv)]
,
    however,
is not clear
. It appears that, first, to
    be excepted, the claim must be a right of way or other right. Second, if that
    requirement is satisfied, the claimant will be required to establish current
    usage. This combination of traditional easement law with current usage raises
    complex considerations.
As a result, it is not obvious
    that this provision would alleviate potential unfairness
. [Emphasis
    added.]

[61]

Following
    the decision in
Ramsay
, the
Ministry of Government Services
    Consumer Protection and Service Modernization Act, 2006
, S.O. 2006, c. 34
    (the 2006 Amendments) amended the definitions of notice of claim and
    notice period in the
Registry Act
to read as they now do. The
    amended definitions confine a notice of claim to a notice of claim in the
    prescribed form. In addition, they confine the reference to an instrument in
    the definition of notice period to an instrument that first creates a
    claim.

[62]

The
    interpretation and application
[11]
of the 2006 Amendments is not directly at issue on this appeal. Nonetheless, I
    observe that, on their face, the amended definitions I have referred to appear
    to be aimed at reversing the holding in
Ramsay
that a registered right
    of way could be preserved through the registration on the servient tenement of
    a deed referring to the right of way. That said, nothing in these reasons
    should be taken as determining the interpretation or application of the 2006
    Amendments.

[63]

Turning
    to s. 113(5), this exception provision was first introduced in the 1966 Act.
    However, the exceptions were to the 40-year expiry period rather than to Part
    III.
[12]
As part of the 1981 amendments, the opening language of the section was
    broadened so that the section creates exceptions to Part III rather than simply
    to the 40-year expiry period. Apart from that change, the wording of the actual
    exception in s. 113(5)(a)(iv) has remained essentially the same since 1966.
[13]


G.

ANALYSIS

[64]

The
    main issue on appeal is the proper interpretation of s. 113(5)(a)(iv) of the
Registry
    Act
. This raises a question of statutory interpretation, which is
    reviewable on a standard of correctness.

[65]

A
    second issue involves the application of s. 113(5)(a)(iv) to the facts of this
    case.

[66]

I
    will begin with the statutory interpretation issue.

(1) The interpretation of s. 113(5)(a)(iv) of the
Registry Act

[67]

The
    modern approach to statutory interpretation requires that the words of a
    statute be read in their entire context and in their grammatical and ordinary
    sense harmoniously with the scheme of the Act, the object of the Act, and the
    intention of Parliament: see
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27 at para. 21, quoting from Elmer Driedger,
Construction
    of Statutes
, 2nd ed. (Toronto: Butterworths, 1983) at 87.

[68]

Like
    the application judge, I conclude that s. 113(5)(a)(iv) of the
Registry Act
can apply to protect a dominant tenement holders right to use a right of way
    that was once registered on the servient tenement but the registration of which
    was not validly renewed within 40 years after its creation.

[69]

However,
    in my view, at least while land continues to be governed by the system of land
    registration governed by the

Registry Act
, this protection will
    apply following the expiration of the 40-year expiry period only for so long as
    the right of way continues to be openly enjoyed and used by the owners of the
    dominant tenement.

[70]

Accordingly,
    although the application judge determined that the respondents were openly enjoying
    and using the laneway as of the date of the application, in my view, it was
    also necessary that the respondents show the laneway had been openly enjoyed
    and used following the expiration of the 40-year expiry period (either 1988 or
    1994, depending on when the right of way was first created). I will return to
    this issue below.

[71]

A
    question may exist whether open enjoyment and use must continue after the date
    of Land Titles conversion because the
Land Titles Act
does not address
    the issue. However, the question does not arise in this case for two reasons.
    First, for reasons set out below, I am satisfied that, for all properties at
    issue, the respondents demonstrated open enjoyment and use to the date of the
    application, which was following the date of Land Titles conversion. Second,
    that interpretive issue was not raised as an issue on appeal.

(a)

Section 113(5)(a)(iv) can protect
    rights of way that are no longer validly registered

[72]

Like
    the application judge, I reach the conclusion that s. 113(5)(a)(iv) of the
Registry
    Act
can apply to protect a dominant tenement holders right to use a right
    of way that was once registered on the servient tenement but no longer is
    validly registered largely for the reasons articulated by Jeffrey W. Lem in his
    annotation to the trial decision in
Ramsay
.

[73]

As
    Mr. Lem notes, the concept of prescriptive easements has long been part of the
    common law. Accordingly, if the Legislature had intended s. 113(5)(a)(iv) to
    apply only to prescriptive easements,  it could easily have said so explicitly.
    The Legislature could have done so either by referring specifically to the
    concept  as it did on several occasions in the
Land Titles Act
, by
    using terms like possessory, prescription, and length of possession in,
    for example, ss. 36(1) and 51(1)
[14]
 or by importing language into s. 113(5)(a)(iv) that mirrors relevant portions
    of the well-established test for prescriptive easements.
[15]


[74]

The
    Legislature did neither. Instead, it used the following language: This Part
    does not apply to  a claim  of a person to an unregistered right of way 
    that the person is
openly enjoying and using

    (emphasis added).

[75]

Further,
    as both Mr. Lem and the application judge correctly observed, prescriptive
    easements are not caught by the 40-year title search rule or the 40-year expiry
    rule, which Part III addresses. This is because s. 111(1) limits the definition
    of claim for the purposes of those rules to an interest set forth in, based
    upon or arising out of a registered instrument. Prescriptive rights are
    neither set forth in, nor based upon, nor do they arise out of registered
    instruments. Thus, if s. 113(5)(a)(iv) were intended to apply only to
    prescriptive rights, it would be redundant. If the 40-year title search rule
    and the 40-year expiry rule do not apply to unregistered prescriptive easements,
    it was unnecessary to enact s. 113(5)(a)(iv)  to preserve them.

[76]

In
    this regard, it is noteworthy that s. 111(2) expands the definition of claim
    for the purposes of s. 113(5)(a)-(b), so that it is not confined to a claim
    under a registered instrument. The expanded definition of claim is thus broad
    enough to encompass prescriptive easements. However, it seems unlikely that the
    Legislature would draft an exception to Part III that was intended to apply
    only to the expanded portion of the definition of claim, particularly when
    the focus of Part III is on claims arising out of registered instruments.

[77]

Further,
    I agree with Mr. Lem and the application judge that once-registered rights of
    way that are not effectively renewed within the 40-year search period meet the
    definition of unregistered. In its plain meaning, the word unregistered is
    not synonymous with never registered. In my view, on its face, unregistered
    right of way also encompasses a right of way that once was, but no longer is,
    effectively registered.

[78]

In
    relation to this point, the main focus of Part III of the
Registry Act
is on claims set forth in, based upon or arising out of registered
    instruments, their impact in the chain of title, their expiry and how they can
    be renewed.

[79]

Through
    various amendments, the Legislature has attempted to confine, to the extent possible,
    the title search period to 40 years and to eliminate any mechanism for renewing
    a claim, other than by registration of a notice of claim in a prescribed form.

[80]

Considered
    in that context, it makes sense that the word unregistered in a provision
    creating an exception to Part III would encompass claims that were once
    registered but are no longer validly registered. In my view, the purpose of s.
    113(5)(iv) is, at least in part, to preserve, because of particular
    circumstances relating to the claim, a claim that was once registered, but
    which is no longer validly registered. The particular circumstances are the
    fact that the underlying right continues to be openly enjoyed and used.

[81]

In
Ramsay
, at para. 46, this court articulated the overall purpose of the
Registry Act
as seeking to promote commercial certainty; to simplify
    the title search process; and, to this end, to eliminate stale claims.

[82]

Through
    s. 113(5)(iv), the Legislature protects claims that are old, but not stale, in
    a manner that is consistent with the purposes of the
Registry Act
and
    that is not unfair to purchasers. Even though not validly renewed, the claims
    are not stale because they are still being openly enjoyed and used. And
    protecting such claims does not defeat the purposes of Part III  nor is it
    unfair to purchasers. This is because the enjoyment and use is open. The claims
    are  there to be seen.

[83]

Moreover,
    assuming the Legislature intended to reverse the result in
Ramsay
,
    which held that rights of way could be preserved if referred to in registered
    deeds on the servient tenement, s. 113(5)(iv) is the only mechanism that would
    protect against the manifest unfairness that could accrue to dominant tenement
    owners because of the legislated change in the law. Prior to the 2006
    Amendments, dominant tenement holders may have relied reasonably on references
    to rights of way in deeds registered on the servient tenement. Properly
    interpreted, s. 113(5)(a)(iv) could protect them from losing, unfairly, a right
    of way they continue to use and enjoy, openly.

[84]

In
    oral argument on appeal, the appellants submitted that the application judges
    interpretation of s. 113(5)(a)(iv) creates a title search problem, in that it
    defeats the 40-year title search rule, and effectively requires a search back
    to the Crown grant. I reject this argument. The words openly enjoying and
    using do not point to doing a title search; rather, they point to conducting a
    careful inspection of the property and of all available (or new) surveys.

[85]

Fairness
    suggests that a right of way that was once registered and continues to be
    openly enjoyed and used should be exempted from the operation of the 40-year
    rules set out in Part III. This must have been what the Legislature intended  and
    is what a proper interpretation of s. 113(5)(a)(iv) requires.

[86]

Having
    regard to these factors, I reject the appellants argument that s.
    113(5)(a)(iv) applies only to prescriptive easements.

[87]

I
    also reject the appellants argument that the impact of Land Titles conversion
    has any bearing on the interpretation of s. 113(5)(a)(iv). Section 113(5)(a)(iv)
    was enacted originally in 1966, prior to the enactment of any section authorizing
    conversion to Land Titles.

[88]

In
    any event, the factors I have enumerated mandate the interpretation I have
    reached. The fact that the Legislature may not have addressed the impact of
    Land Titles conversion does not diminish the weight of those factors. I
    conclude that s. 113(5)(a)(iv) can apply to preserve a right of way that was once
    registered but that is no longer validly registered.

(b)

An applicant must show open
    enjoyment and use from the expiration of the 40-year expiry period

[89]

In
    my view, however, to succeed in demonstrating that s. 113(5)(a)(iv) applies in
    a particular case, an applicant must show that, at least while governed by the
Registry
    Act
, the owner(s) of the dominant tenement have openly enjoyed and used
    the right of way continuously from the expiration of the 40-year expiry period
    in relation to the creation of the right of way on the servient tenement.

[90]

I
    reach this conclusion because of the requirements of s. 113(5)(a)(iv). I agree
    with Lang J.A.s
obiter
description of those requirements in
Ramsay
.
    On a plain reading of s. 113(5)(a)(iv), the subsection has two requirements.
    First, to be excepted, the claim must be a right of way or easement or other
    right. Second, if that requirement is satisfied, the claimant will be required
    to establish current usage.

[91]

In
    my view, to satisfy the first requirement, the right of way must not have
    expired through the operation of the 40-year expiry period. Under s. 113(1), a
    claim that is still in existence on the last day of the notice period
expires
at the end of that day unless a notice of claim has been registered.

[92]

Where
    no notice of claim has been registered, which is the situation in this case,
    notice period means the period ending on the day 40 years after the day of
    the registration of an instrument that first creates a claim. This means that,
    where a notice of claim has not been registered, unless s. 113(5)(a)(iv)
    applies, a right of way will expire 40 years after it was created.

[93]

If
    the right of way expired at any point following the expiration of the 40-year
    expiry period, it would no longer be a valid right of way. To show that the
    right of way has never ceased to be a valid right of way, a claimant must
    satisfy the other requirement of s. 113(5)(a)(iv), namely open enjoyment and
    use.  Accordingly, to qualify for the exception in s. 113(5)(a)(iv), a claimant
    must show open enjoyment and use continuously from the expiration of the 40-year
    expiry period  at least to the date of any Land Titles conversion, at which
    point the
Land Titles Act
would apply.

(2)The application of s. 113(5)(a)(iv) to the facts of this case

[94]

As
    noted above, the application judge found that the respondents were openly
    enjoying and using the laneway as at the date of the application. Although he
    did not expressly address whether they had demonstrated open enjoyment and use
    of the laneway from the expiration of the expiry period, he did discuss whether
    their evidence could show a prescriptive easement. He found the respondents
    evidence insufficient to meet the test for a prescriptive easement prior to
    2003, the Land Titles conversion date for 7 Cunningham Avenue.
[16]

[95]

Nonetheless, 
    read as a whole, in my view, the application judges reasons demonstrate that,
    had he turned his mind to the issue, he would have made a finding that the
    respondents had demonstrated open enjoyment and use of the right of way from
    the expiration of the expiry period, whether it was 1988 or 1994. That is
    because he observed there were statutory declarations registered on title
    purporting to show continuous usage of the rights of way from the date of their
    creation. Further, he concluded the vague assertions of the appellant Kane,
    based on information and belief, concerning the positions of prior owners, were
    either not admissible or not sufficiently cogent to disprove the respondents
    evidence.

[96]

In
    the course of his reasons, at paras. 12 and 13, the application judge said:

There are statutory declarations
    registered on title that purport to show continuous usage of the rights-of-way
    as far back as their creation in 1948. [The appellant,] Kane[,] recites, by way
    of information and belief, some evidence to the contrary
. I note that
    the evidence from [a prior owner] is not inconsistent with the evidence of
    long-term use by the [respondents]. The evidence of the [appellants] next door
    neighbour is double hearsay and inadmissible as the neighbour is not
    identified. The evidence concerning [other prior owners] is wholly
    unparticularized.

While
I would not accept this evidence as
    disproving the [respondents'] evidence
, I do not need to make a
    historical finding in this case. The [respondents'] do assert prescriptive
    easements. They do not have sufficient evidence to meet the test prior to 2003
    when 7 Cunningham Ave. was registered under qualified land titles. As is dealt
    with below, subclause 113 (5)(a)(iv) of the
Registry Act
, does require
    a finding that the [respondents] are openly enjoying and using the
    right-of-way.
As noted above however, the [appellants] do
    not deny the [respondents'] evidence concerning their present use of the
    laneway
. [Emphasis added.]

[97]

In
    any event, based on my review of the record, I am satisfied that, collectively,
    the evidence supports a finding that the respondents  openly enjoyed and used
    and enjoyed  the right of way from at least the expiration of the expiry period,
    to 2003, when the servient tenement was converted to Land Titles, and from that
    date to the date of the application. I base this conclusion on the following
    factors:

·

depending on ones view of whether the 1948 deed or the 1954 deed
    created the right of way at issue over 7 Cunningham Avenue, the 40-year expiry
    period elapsed in either 1988 or 1994;

·

the record includes a document purporting to be a copy of the
    parcel register for 7 Cunningham Avenue. That document discloses a date of
    conversion to Land Titles of February 24, 2003;

·

the respondents evidence includes statutory declarations from individuals
    claiming to have owned 78 Brock Avenue (the most southerly property claiming
    access to the right of way), between June 20, 1946 and July 17, 2003.
[17]
The declarants of these statutory declarations claim to have had, during the
    period they each owned 78 Brock Avenue, either free and uninterrupted use or continuous,
    open, undisturbed and undisputed use of a right of way over 7 Cunningham
    Avenue, which had a width of approximately seven feet six inches and a depth of
    approximately 89 feet nine inches;

·

the respondents evidence also included a statutory declaration
    from a Jenny Ramlogan who claimed to have owned 80 Brock Avenue between 1998
    and September 14, 2009. In the statutory declaration, Ms. Ramlogan claims that
    while she (or she and her husband) owned 80 Brock Avenue they used, on a
    regular and continuous basis, the right of way over 7 Cunningham Avenue, which
    was referenced in their deed and also shown on a survey dated May 2, 1986. She
    also states that the right of way has been used, based on [her] personal
    knowledge and observations, by the owners of 78, 82 [sic], and 84 Brock Avenue,
    and/or their tenants and guests throughout her period of ownership;

·

each of the respondents filed an affidavit establishing their
    open enjoyment and use of the right of way from the date they acquired their
    respective properties: Brown  2003, Gold  2009, and Fairley  2001.

·

the photographs appended as exhibits to the respondent Elaine
    Golds affidavit demonstrate the impossibility of gaining vehicular access to
    the dwellings depicted by the photographs except by use of the laneway depicted
    in the photographs;  and

·

the photographs appended as exhibit 12 to the respondent Elaine
    Golds affidavit bear out the application judges comment discounting the
    appellant Kanes claim that when the appellants bought their home, there was
    no suggestion any of the respondents had a right to use 7 Cunningham Avenue:

He must not have realized that the laneway was part of the
    property that he was buying since it is perfectly obvious that it serves as the
    driveway for the [respondents] homes.

[98]

Like
    the application judge, I conclude, for the reasons he stated, that the
    appellants evidence does not displace the respondents evidence of ongoing
    open enjoyment and use.

[99]

I
    acknowledge that only one of the respondents (Brown) filed direct evidence
    demonstrating open enjoyment and use of the laneway from the expiration of the
    expiry period until 2003. Further, the record does not reveal when the
    respondents houses depicted in the photographs I have referred to were built.

[100]

Nonetheless,
    taken as a whole, I am satisfied that the record creates an inference, on a
    balance of probabilities, that all of the respondents and their predecessors in
    title, dating back to at least 1988, openly enjoyed and used the right of way. That
    is because using the laneway is the only realistic way to access the
    respondents homes and associated parking.

H.

disposition

[101]

Based on the
    foregoing reasons, I would dismiss the appeal with costs to the respondents on
    a partial indemnity scale fixed in the amount of $7,000 inclusive of
    disbursements and applicable taxes.

Released:

GE                                                  Janet
    Simmons J.A.

DEC 18 2015                                   I agree
    Gloria Epstein J.A.

I
    agree G. Pardu J.A.





[1]
The common law principle of
nemo dat quod non habet
holds that one
    cannot convey what one does not already own.



[2]

The servient tenement is the land that bears the burden of the
    right of way. The dominant tenement is the land that enjoys the benefit of the
    right of way.



[3]
I summarize below the particulars of the legal
    descriptions and origins of the right of way for all the properties.

The
    legal descriptions of the various properties reveal that the appellants
    property, including the laneway (7 Cunningham Avenue), encompasses part of lots
    11 and 12, plan 402, Parkdale. The Brown and Gold properties (78 and 80 Brock
    Avenue, respectively) are part of lot 11, plan 402 (the more southerly lot on
    plan 402). The Fairley properties (84 and 86 Brock Avenue) are part of lot 12
    Plan 402 (the more northerly lot on plan 402).

The
    chain of title to the appellants property (7 Cunningham Avenue) indicates that
    it was once part of a larger parcel of land described as the westerly 44 feet,
    9 inches, of lots 11 and 12, plan 402, Parkdale. The chain of title also
    reveals that the appellants property, including the laneway, comprises the
    easterly 27 feet of that larger parcel.

Since
    1948, the deeds to the Brown property (78 Brock Avenue) have provided that the
    owners are entitled to an easement over the easterly 7 feet 6 inches of the
    westerly 44 feet 9 inches of lots 11 and 12, plan 402. Since 1946, the deeds to
    the Gold property (80 Brock Avenue) have provided that the owners are entitled
    to this same easement.

Since
    1948, the deeds to the Robert and Peter Fairley property (84 Brock Avenue) have
    provided that the owners are entitled to an easement over the easterly 7 feet 6
    inches of the westerly 44 feet 9 inches of lot 12, plan 402.

Since 1946, the deeds to
    the Robert Fairley property (86 Brock Avenue) have provided that the owners are
    entitled to an easement over the easterly 7 feet 6 inches of the westerly 44
    feet 9 inches of the northerly 22 feet 5 inches of lot 12, plan 402.



[4]
Section 140(2) of the
Land Titles Act
states:

140. (2)
The description of registered land is not conclusive as to the
    boundaries or extent of the land.



[5]

The relevant parts of s. 32 of the
Land Titles Act
read as follows:

32. (1) A land registrar, with the concurrence of the
    Director of Titles, may, subject to the regulations or the orders made under
    subsection (4), register under this Act any land in his or her land titles
    division to which the Registry Act applies, including land owned by Her Majesty
    the Queen in right of Canada or Ontario in respect of which evidence of such
    ownership has been registered under the
Registry
    Act
.

(2) A parcel of land may be registered under this
    section with an absolute, possessory, qualified or leasehold title, according
    to the circumstances, as appears most appropriate to the land registrar.

(3) A parcel of land may be registered under this
    section with a title qualified as to the location of the boundaries and the
    extent of the parcel.

(4) The Director of Titles may make orders governing
    the registration of land under subsection (1) and the procedure to be followed
    in connection with the registration, including the notices to be given to
    owners and encumbrancers.



[6]
Jeffrey W. Lem,
1387881 Ontario Inc. v. Ramsay (Annot)
(Dec 2004), 24
    R.P.R. (4th) 37-49, a case comment on
1387881 Ontario Inc. v. Ramsay

(2004), 71 O.R. (3d) 735
.



[7]

Other provisions in Part III have also been amended. I have
    not referred to those amendments because they are not relevant.



[8]

I would say clarify.



[9]

Registry Act
, R.S.O. 1980, c. 445 (the 1980
    Act).



[10]
Section 105 of the 1980 Act essentially mirrored s. 112(1) in its current form.
    The 1981 Amendments replaced s. 105 of the 1980 Act with a section that essentially
    mirrored ss. 112(1)-(3) in its current form.



[11]
For example, an issue could arise whether the 2006 Amendments apply
    retrospectively. At para. 18 of
Ramsay
, Lang J.A. said that in
Fire
    v. Longtin
(1994), 17 O.R. (3d) 418 (C.A.), aff'd [1995] 4 S.C.R. 3, McKinlay
    J.A. held that the 1981 Amendments applied retrospectively. In affirming
    McKinlay J.A.s reasons, the Supreme Court effectively overruled two other
    decisions of this court that had come to a contrary conclusion on
    retrospectivity:
Camrich Developments Inc. v. Ontario Hydro
(1990), 72
    O.R. (2d) 225 (H.C.J.), at p. 235, affd (1993), (C.A.) and
National Sewer
    Pipe Ltd. v. Azova Investments Ltd.
(1993), 14 O.R. (3d) 385 (C.A.).



[12]

When first introduced, the exception now set out
    in s. 113(5)(a)(iv) was contained in s. 135(2)(d) of the 1966 Act. Section
    135(1) of the 1966 Act described the 40-year expiry period. Section 135(1) and
    (2)(d) read as follows:

135(1) A claim that has been in
    existence for longer than forty years does not affect land to which this Act
    applies unless the claim has been acknowledged or specifically referred to or
    contained in an instrument or a notice under this Part or under
The
    Investigation of Titles Act
[citation omitted] or any predecessor thereof,
    registered against the land within the forty-year period.

(2) Subsection 1 does not apply
    to,



(d) a claim to an unregistered
    right-of-way or other easement or right that a person is openly enjoying and
    using[.]

The hyphens
    in the term right-of-way were eliminated in the 1980 Act.



[13]

The 2006 Amendments changed the
    wording of s. 113(5)(a)(iv) from:

This Part does not apply to,  a
    claim  of a person to an unregistered right of way or other easement or right
    that a person is openly enjoying and using

to:

This Part does not apply to,  a
    claim  of a person to an unregistered right of way,
easement
    or other

right that the person is
    openly enjoying and using.



[14]

Sections 36(1) of the
Land Titles Act
reads as follows:

36. (1) Where
    on an application for first registration it appears that the applicant is so
    entitled by virtue of length of possession of the land, the applicant may be
    registered as the owner of the land with a possessory title.

Sections
    51(1) states:

51. (1) Despite
    any provision of this Act, the

Real Property Limitations Act

or any other Act, no title to and no
    right or interest in land registered under this Act that is adverse to or in
    derogation of the title of the registered owner shall be acquired hereafter or
    be deemed to have been acquired heretofore by any length of possession or by
    prescription.



[15]

In
Kaminskas v. Storm
, 2009 ONCA 318, [2009]
    O.J. No. 1547 (C.A.), Blair J.A. noted, that to establish a prescriptive
    easement, the owner of the dominant tenement must meet the four requirements
    for an easement at common law; and must also show that use was continuous for
    the required time period and as of right: uninterrupted, open, peaceful and
    without permission for the requisite time period 
nec vi, nec clam, nec
    precario
 without force, without secrecy and without permission.



[16]

A prescriptive easement cannot arise after Land Titles
    conversion:
Land Titles Act
, s. 51.



[17]

The deponents of the statutory declarations who claim to be
    prior owners of 78 Brock Avenue and the period during which they claim prior
    ownership are, respectively: Ernest Harrest Lund and Renee Olive Lund, June 20,
    1946 to February 28, 1990; Gobin Persuad and Radica Persaud, February 28, 1990
    to November 30, 1999; and Kenneth John Mogridge, December 1, 1999 to July 17,
    2003.


