



COURT OF APPEAL FOR ONTARIO

CITATION: Vivekanandan v. Terzian, 2020 ONCA 110

DATE: 20200212

DOCKET: C65686

Hoy A.C.J.O., van Rensburg and Roberts JJ.A.

BETWEEN

Niranjan Vivekanandan and Sara Azargive

Applicants (Respondents)

and

Talyn Terzian and Kevin Gilmour

Respondents (Appellants)

AND BETWEEN

Talyn Terzian

Applicant (Appellant)

and

Niranjan Vivekanandan and Sara Azargive

Respondents (Respondents)

Shantona Chaudhury
    and Brodie Noga, for the appellants

Sarah J. Turney and
    Daniel T. Richer, for the respondents

Heard: October 7, 2019

On appeal from the judgment of Justice Edward M. Morgan of
    the Superior Court of Justice, dated June 27, 2018, with reasons reported at
    2018 ONSC 4052, 96 R.P.R. (5th) 228.

L.B. Roberts J.A.:

A.

Overview

[1]

This appeal involves a property dispute concerning possessory rights
    between next-door neighbours who live respectively at 45 and 47 Lawrence Crescent,
    in Toronto. Specifically, the dispute is over an approximate two-foot wide strip
    that runs between the two properties to which, according to the various surveys,
    the appellants have clear title.

[2]

The appellants appeal from the application judges declaration that the
    respondents enjoy a prescriptive easement over the portion of the two-foot wide
    strip that abuts the respondents driveway and ownership by way of adverse possession
    over the portion of the disputed strip that runs into the respondents backyard
    and is enclosed by a gate.

[3]

The application judge found that the respondents predecessors in title
    to 47 Lawrence Crescent had acquired a prescriptive easement over the portion
    of the disputed strip that abuts their driveway through over 20 years of open
    and continuous use without the permission of the former owners of 45 Lawrence Crescent.

[4]

With respect to the backyard portion of the strip, the application judge
    determined that the predecessors in title to 47 Lawrence Crescent had erected a
    gate which effectively excluded the former owners of 45 Lawrence Crescent from
    entering the backyard without permission.

[5]

In particular, the application judge relied on what he said was the evidence
    of the former owner of 45 Lawrence Crescent that he entered the disputed backyard
    area only with the permission of the owners of 47 Lawrence Crescent.

[6]

The appellants submit that the application judge made palpable and
    overriding errors in his consideration of the evidence and in his application
    of the law governing prescriptive easements and adverse possession. The
    appellants also argue that the application judge erred in law by failing to
    consider whether the use of the driveway was by neighbourly accommodation.

[7]

For the reasons that follow, I am of the view that the application judge
    erred and that his decision ought to be set aside.

B.

ANALYSIS

(1)

Prescriptive easement

[8]

The application judge correctly set out the essential elements that the
    respondents, asserting a dominant tenement and easement over the disputed driveway
    area, had to prove:

(i)

there must be a dominant and a servient tenement;

(ii)

an easement must accommodate the dominant tenement;

(iii)

dominant and servient owners must be different persons; and

(iv)

a right over land cannot amount to an easement unless it is capable of
    forming the subject matter of a grant.

(See
Depew v. Wilkes
(2002), 60 O.R. (3d) 499 (C.A.), at para. 18;
Barbour v. Bailey
, 2016
    ONCA 98, 345 O.A.C. 311, at para. 56.)

[9]

In addition, the respondents, as the application judge also correctly
    observed, had to demonstrate that their predecessors in title engaged in at
    least 20 years of continuous, uninterrupted, open and peaceful use of the
    disputed portion of the driveway:
Henderson v. Volk
(1982), 35 O.R.
    (2d) 379 (C.A.), at pp. 382-83;
Kaminskas v. Storm
, 2009 ONCA
    318, 95 O.R. (3d) 387, at para. 23. The use must not have been permissive:
Henderson
,
    at p. 383;
Kaminskas
, at para. 23. Further, since the
Land Titles
    Act
, R.S.O. 1990, c. L.5, s. 51(1) provides that possessory rights can no longer
    accrue once a property enters the Land Titles system, the uninterrupted and
    unchallenged use had to be for a period of at least 20 years prior to 2002:
English
    v. Perras
, 2018 ONCA 649, 425 D.L.R. (4th) 110, at para. 29.

[10]

Elements (i), (iii) and (iv) are satisfied. The appeal on this issue
    turns on the application judges consideration of the second factor in
    determining whether a prescriptive easement arose, that is, whether the alleged
    easement accommodated the dominant tenement.

[11]

In considering whether the alleged easement accommodated the dominant
    tenement, the application judge had to determine whether the easement over the
    disputed driveway area was reasonably necessary to the better enjoyment of 47
    Lawrence Crescent, the dominant tenement.

[12]

While the application judge made this determination in relation to the
    backyard area, he failed to determine whether the alleged easement over the disputed
    driveway area was reasonably necessary to the better enjoyment of the
    respondents property. It therefore falls to this court to do so.

[13]

I am not persuaded by the respondents submission that the application
    judge implicitly considered and found that the historic use of the disputed driveway
    area was reasonably necessary because he adverted to this factor in relation to
    the backyard area. In his analysis, the application judge found that the backyard
    portion of the disputed strip cannot be said to be reasonably necessary for the
    enjoyment of 47 Lawrence. However, a finding that the disputed strip in the backyard
    area was not reasonably necessary for the better enjoyment of 47 Lawrence Crescent
    is not a finding that the disputed strip in the driveway area was reasonably
    necessary for its better enjoyment.

[14]

What does reasonably necessary mean? There is a distinction between what
    is meant by necessity and reasonably necessary. A prescriptive claim need have
    no element of necessity, namely, that use of the disputed portion is required
    for the owner of the dominant tenement to use his or her own land:
Caldwell
    v. Elia
, [2000] O.J. No. 661, at paras 13-14. However, there must be a connection
    between the easement and the dominant tenement, as opposed to a personal right.
    A personal benefit or an advantage to the owner of the dominant tenement does
    not rise to the level of an accommodation reasonably necessary for the better enjoyment
    of the dominant tenement. See:
Depew
, at para. 20;
Barbour
,
    at para. 58;
Caldwell
, at para. 19. What is reasonably necessary is
    fact specific and will depend on the nature of the property and the purpose of
    the easement
.
See
Depew
, at paras. 19, 24;
Barbour
,
    at para. 57.

[15]

The respondents evidence concerning the historic use of the disputed driveway
    area consisted primarily of parking on the driveway close to the side door of
    47 Lawrence Crescent, most notably for the purposes of unloading small children,
    groceries and other things from their cars. This involved swinging car doors
    over the disputed driveway area and stepping out of cars on to that same land.

[16]

In my view, the predecessors in titles evidence of historic use of the disputed
    driveway area falls short of establishing that it was continuous or permanent.
    Rather, it was tied to specific time-limited activities that by their nature are
    sporadic  children grow out of car seats and not every car trip involves grocery
    shopping or bringing things into the house. Moreover, it was clear that this
    use did not always require occupation of the disputed driveway area. While the
    predecessors in title always used their own part of the driveway, they did not
    always park over the disputed driveway area or park alongside the disputed
    driveway area and use it to exit their vehicles. As the photographs of the
    disputed driveway area reveal, the driveway was wide enough that the
    predecessors in title could park their cars on their own driveway without
    occupying the disputed driveway area.

[17]

This was virtually the same kind of use that this court in
Hodkin v.
    Bigley
, 20 R.P.R. (3d) 9 (C.A.), confirmed was not reasonably necessary
    for the better enjoyment of the dominant tenement. In that case, the disputed strip
    also ran between the parties driveways. The prescriptive easement claimant
    complained that the erection of a fence on the disputed strip prevented her
    from using her driveway and accessing her garage. The trial judges rejection
    of this position was upheld by this court for the following reasons, at paras.
    11 and 12:

I see no error in the trial judge's finding that "[t]he
    four or four and a half feet that the defendant owns ... is not critical or
    even significant to the enjoyment of the house by the owners of Number
    11."
The appellant still had substantial use of her driveway even after
    the respondent's land was fenced off.

The benefit that accrued to the appellant before the erection
    of the fence
facilitated the appellant's parking
but I agree with the
    trial judge that it cannot be said to accommodate the dominant tenement in such
    a way as to justify the creation of an easement. I see no merit in this ground
    of appeal. [Emphasis added.]

[18]

In
Caldwell
, at para. 16, referring to
Hodkin
, this
    court described this kind of use as personal to the owner of the dominant tenement:

The use asserted in [
Hodkin v. Bigley
] involved the plaintiff
    swinging the door of her car out over the defendants land and her stepping out
    of the car on to that same land.
This use would be personal to the plaintiff
    rather than an accommodation to her property and thus not reasonably necessary
    to the use of the property
. [Emphasis added.]

[19]

The conclusions reached in
Hodkin
and
Caldwell
are pertinent
    here. The historic use relied upon by the respondents may have been personally
    convenient to their predecessors in title, but it did not serve as a reasonably
    necessary accommodation to their property. As in
Hodkin
, the respondents
    predecessors in title still had substantial use of their driveway without using
    the disputed driveway area.

[20]

In my view, since the alleged easement over the disputed driveway area is
    not reasonably necessary for the better enjoyment of 47 Lawrence Crescent, the
    application judge erred in finding that the respondents had demonstrated that a
    prescriptive easement arose. Given my conclusion on this point, it is not necessary
    to consider whether the predecessors in titles use was the result of neighbourly
    accommodation.

(2)

Adverse possession

[21]

As the application judge correctly stated, to establish title by adverse
    possession, the respondents had the burden of proving:


(i)

actual
    open, notorious, constant, continuous, [and] peaceful possession of the backyard
    portion of the disputed strip for the statutory period of ten years in accordance
    with s. 4 of the
Real Property Limitations Act
, R.S.O. 1990, c. L.15;


(ii)

that
    such possession was with the intention of excluding the true owner; and


(iii)

that
    the true owners possession was effectively excluded for the statutory period.

(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;
Barbour
, at paras. 35-36.)

[22]

The appeal on this issue turns on the question of whether the
    application judge made palpable and overriding errors in concluding that the
    appellants predecessors in title were effectively excluded from the backyard
    portion of the disputed strip for the statutory period. In my view, he did err by
    materially misapprehending the evidence of the appellants predecessor in
    title, Amyot Michael Aymong, who owned and occupied 45 Lawrence Crescent from
    October 1963 to June 2007.

[23]

The application judges misapprehension of Mr. Aymongs evidence appears
    first at para. 38 of his reasons: Mr. Aymong deposed that he never entered the
    backyard of 47 Lawrence except with permission of whoever resided there at the
    time. The application judge misstated the evidence related to this point again
    at para. 45 of his reasons: There is no evidence, however, that Mr. Aymong
    ever accessed that eavestrough without seeking permission of the owner/resident
    of 45 Lawrence at the time.

[24]

This was not Mr. Aymongs evidence. Mr. Aymongs evidence was the opposite.
    In para. 16 of his affidavit, he expressly disputed as inaccurate the respondents
    evidence that he never entered the disputed backyard area without permission
    and deposed that he did so freely, and at will, periodically throughout the
    years that he lived at 45 Lawrence Crescent and that [t]here was never any
    discussion with [his] neighbours about [his] entering through the gate, and [he]
    did so without any problems. [He] never sought permission to do so because [he]
    was accessing [his] property and [he] did not feel that [he] had to ask. He
    deposed that the gate was installed with his permission, for the purpose of
    containing his neighbours children and pets, but that it was understood and
    accepted that he was always to be accommodated with access to that portion of
    his property. He further stated that [he] used this area to reach [his]
    garages roof for re-shingling, as well as cleaning out the eaves troughs, and
    fixing the eaves. Similarly, during his cross-examination, Mr. Aymong stated
    that he did not recall ever being in a situation where [he] asked permission
    to go into their backyard.

[25]

The frequency of Mr. Aymongs entries into the disputed area of the
    backyard is irrelevant. It is well established that the true owner of the
    disputed property need not demonstrate the same continuous use that the adverse
    claimant must show. The true owner is in constructive possession of the entire
    property even when in actual possession of only a part of it. As such, [f]airly
    trivial acts of dominion, such as the acts described by Mr. Aymong, may
    demonstrate that the true owner has not been excluded. See
Barbour
, at
    para. 45.

[26]

The application judges material misapprehension of Mr. Aymongs
    evidence was palpable and overriding since it was critical to his conclusion
    that Mr. Aymong was effectively excluded from the backyard portion of the disputed
    strip: see
H.L. v. Canada (Attorney General)
, 2005 SCC 25, [2005] 1
    S.C.R. 401, at para. 55. In my view, the evidence does not establish that Mr.
    Aymong was effectively excluded from his own property.

[27]

As a result, the application judge erred in finding that the respondents
    had demonstrated adverse possession over the backyard portion of the disputed strip.

(3)

Conclusion

[28]

The application judges errors tainted his conclusions that the
    respondents had discharged their burden of proving a prescriptive easement and
    adverse possession. They are therefore not entitled to deference and I would
    set them aside.

[29]

The respondents evidentiary onus is a heavy one. Traditionally, courts
    have been reluctant to impose burdens on or take away rights from property
    owners without compensation. The policy reasons behind this reluctance are
    clear: it would hardly promote good neighbourliness and would discourage acts of
    kindness:
Henderson
, at p. 384;
English
, at para. 30; and
1043
    Bloor Inc. v. 1714104 Ontario Inc.
, 2013 ONCA 91, 114 O.R. (3d) 241, at
    para. 83,
per
Gillese J.A.

[30]

In my view, the respondents have not met their heavy evidentiary burden.
    The evidence in this case falls far short of clearly establishing that the
    respondents acquired any possessory rights over the appellants property.

C.

Disposition

[31]

Accordingly, I would allow the appeal and dismiss the respondents application.
    I would set aside the judgment and grant the declaratory relief requested in
    subparagraph 84, 2. a. of the appellants factum that Talyn Terzians title to
    45 Lawrence Crescent alongside the driveway of 47 Lawrence Crescent and
    alongside the original detached garage is unencumbered by any possessory or
    non-possessory claims by Niranjan Vivekanandan and Sara Azargive.

[32]

I would grant the appellants their partial indemnity costs of the appeal
    in the amount of $45,000 and of the applications below in the amount of $93,000,
    both amounts being inclusive of disbursements and applicable taxes.

Released: February 12, 2020 (A.H.)

L.B. Roberts
    J.A.

I
    agree. Alexandra Hoy A.C.J.O

I
    agree. K. van Rensburg J.A.


