





CITATION:
Sunnybrae
Springbrook Farms
      Inc. v. Trent Hills (Municipality), 2011 ONCA 179





DATE:
          20110304



DOCKET: C52743



COURT OF APPEAL FOR ONTARIO



MacPherson, Rouleau and Epstein JJ.A.



BETWEEN



Sunnybrae

Springbrook
Farms Inc.



Plaintiff (Appellant)



and



The Corporation
          of the Municipality of Trent Hills, William John
Coroz
,
          1258099 Ontario Inc., Leonard David Brant, James George Butler, and
          Jacqueline Elizabeth Anne Butler, Mario Cabral and Leonor Cabral, Lina Marie
Calomino
, Anthony Terence
Crosta
,
Afonso
De Medeiros and
Filomena
De Medeiros, Teresa
Dutkiewicz

adn

Romulad

Dutkiewicz
and
Andrzej

Dutkiewicz
,
Arkadi

Karpelson
, Laura Alice
Kurhan
, Nora
Marcheasan
and
Edia
Roberto, Marie Eve Mill, Michael
Mitas
,
          Keith
Mocon
, Joseph Victor Muller and Gloria
          Hildegard Muller, David Nelson
Owles
and Sharon
Mayreen

Owles
,
Noram
Joyce Lucy and Thomas Laird Lucy, The Robert
          Webster Co. Limited, Simon
Resch
and Maria
Resch
and Frank
Resch
, Simon
Resch
, Daniel
Sprongl
and Frank
Sprongl
and Jennifer Cote and
Ilana

Osenshein
, Elizabeth Mary Walker, Raymond Bartley
          Welsh
adn

Crol
Anne
Terris
and Terry
Luscombe




Defendants (Respondents in Appeal)



AND BETWEEN



James George
          Butler and Jacqueline Elizabeth Anne Butler, Mario Cabral and Leonor Cabral,
          Lina Marie
Calomino
, Anthony Terence
Crosta
,
Afonso
De Medeiros and
Filomena
De
Mederios
, Nora
Marchesan
and
Edio
Roberto,
          Marie Eve Mill, Keith
Mocon
, Joseph Victor Muller
          and Gloria Hildegard Muller, Norma Joyce Lucy and Thomas Laird Lucy, The Robert
          Webster Co. Limited, Simon
Resch
and Maria
Resch
and Frank
Resch
, Simon
Resch
, Daniel
Sprongl
and Frank
Sprongl
and Jennifer Cote and
Ilana

Osenshein
, Elizabeth Mary Walker, Raymond Bartley Welsh
          and Carol Anne
Terris




and



Plaintiffs by Counterclaim



and



Sunnybrae

Springbrook
Farms Inc., Vincent
Paneduro
also known as
Vincenzo

Paneduro
and Frances
Paneduro




Defendants by Counterclaim



Stanley Fienberg, for the appellant



Peter Robertson, for the respondents



Heard
and released orally: March 3, 2011



On appeal from the judgment of Justice Peter
Lauwers
of the Superior Court of Justice dated September
          2, 2010.



ENDORSEMENT



[1]

The appellant
Sunnybrae

Springbrook
Farms Inc., the owner of property in
    Northumberland County, appeals the judgment of
Lauwers
J. of the Superior Court of Justice dated September 2, 2010. The appeal
    concerns the parties respective rights and interests in a laneway called 
Sunnybrae
Lane, which passes through cottage country in the
    municipality of Trent Hills (the Municipality). The parties are engaged in an
    ongoing dispute over who is responsible for upgrading
Sunnybrae
Lane, which has, over the years, fallen into disrepair. In some areas, it is
    too narrow for emergency vehicles to enter, and during the winter the road is
    susceptible to icing.

[2]

The appellant is the successor in title to the farm
    property adjacent to cottage properties owned by the respondents and holds
    title to most of the laneway. However, the appellant does not use the laneway
    and does not want to pay for its upgrading. It wants the Municipality to assume
    the laneway as a municipal road and bear the costs and liabilities of
    ownership. The Municipality refuses to assume the laneway until the appellant
    upgrades it to municipal standards, which would come at great expense. The  respondent cottagers, who have owned their
    lots for many years and are the laneways primary users, are also not prepared
    to contribute to its upgrading, although they have done some work on it from
    time to time.

[3]

The appellant commenced an action against the cottagers
    and the Municipality. It moved for summary judgment seeking a declaration that
    the cottagers have no prescriptive easement over the part of
Sunnybrae
Lane that the appellant owns. The appellant also
    sought an injunction preventing the cottagers from driving on
Sunnybrae
Lane during the winter months (from November 1 to
    April 15) of each year until they upgraded the laneway. The cottagers in turn
    filed a cross-motion for an order to strike the appellants statement of claim
    for disclosing no reasonable cause of action or, alternatively, for summary
    judgment dismissing the action against them. The cottagers primary argument
    was that their use of the laneway for more than 20 years gave them a
    prescriptive easement pursuant to s. 31 of the
Real Property Limitations Act,
R.S.O. 1990, c. L.15.

[4]

Justice
Lauwers
agreed with
    the cottagers position. He declared that they have acquired an easement by
    prescription over
Sunnybrae
Lane and he dismissed the
    appellants motion for an injunction preventing the respondents from accessing
    the laneway in the winter. The appellant appeals this judgment.

[5]

The appellant contends that the motion judge erred in
    two respects in concluding that the respondents had acquired an easement by
    prescription over
Sunnybrae
Lane.

[6]

First, the appellant submits that the motion judge
    erred by failing to apply the principle of illegality to the facts of this case
     he should have held that the respondents breach of a municipal by-law,
    relating to buildings fronting on to improved public streets, disqualified them
    from arguing prescription.

[7]

We do not accept this submission. Even if the
    respondents are in breach of a municipal by-law, which, in our view, is
    doubtful, there is no connection between this breach and the ownership/easement
    issue in this case. As suggested by the motion judge, there are alternative
    remedies, and a regulatory process, for third parties, including the appellant,
    to challenge an alleged breach of a municipal by-law.

[8]

Second, the appellant contends that the motion judge
    erred in concluding that there was a sufficient evidentiary basis for finding a
    prescriptive easement, in particular in relation to the issue of winter use of
Sunnybrae
Lane.

[9]

We disagree. There is no palpable and overriding error
    in the motion judges treatment of the evidence. The deed by which the
    appellant and his predecessor in title acquired the property clearly indicates
    a right of way in favour of the cottagers. In addition, there was evidence of
    year round use of the lane going back at least to 1975. The evidence about
    continuity of use between 1975 and 2010 was a bit more ambiguous, but was
    sufficient to support the motion judges ultimate conclusion that the cottagers
    used their properties year round for many years and that some have lived there
    full time since 1975.

[10]

The appeal is dismissed. The respondents are entitled
    to their costs of the appeal fixed at $15,000 inclusive of disbursements and
    HST.

J. C.
    MacPherson J.A.

Paul Rouleau
    J.A.

Gloria Epstein J.A.


