



COURT OF APPEAL FOR ONTARIO

CITATION: Hunsinger v. Carter, 2018 ONCA 656

DATE: 20180720

DOCKET: C64923

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Ray Christian Hunsinger

Applicant (Appellant)

and

Jonathan David Carter and Christina Carter

Respondents (Respondents)

C. Edward McCarthy, for the appellant

Tyler Nicholson, for the respondents

Heard: July 6, 2018

On appeal from the order of Justice James A. Ramsay of
    the Superior Court of Justice, dated January 8, 2018.

REASONS FOR DECISION

Introduction

[1]

The appellant brought an application to declare an easement over a strip
    of land between his property and the property of the respondents, and to
    restrain the respondents from blocking his right of way by erecting a fence. Although
    the application judge found the appellant had established an easement over the
    strip, he declared the easement over only the rear part of the strip, and concluded
    that the respondents could erect a fence to block the front of the strip, as
    its use was not necessary for the appellant. The appellant appeals the order
    allowing the respondents to erect the fence. There is no cross-appeal.

Background Facts

[2]

Since 1948, the appellants family has operated a plumbing business on the
    appellants property. The respondents purchased their property in 2017 for
    residential use. However, they intend to operate a daycare there.  There is a
    gravel driveway between the two properties. The respondents own a strip of the
    gravel driveway running lengthwise that varies in width from 8.5 feet to 11
    feet. Following their purchase, the respondents advised the appellant that they
    proposed to erect a fence along the boundary of their property in the middle of
    the gravel driveway. The purpose of the fence is for the safety of the children
    at the daycare.

[3]

The gravel driveway has been used and maintained by the appellant and
    his family since at least 1965 in connection with their plumbing business in
    order to access the rear of the property, which has buildings used for storage
    and other purposes. Many delivery trucks, as well as the appellants vehicles, regularly
    use the driveway for ingress and egress. The appellant also parks his two large
    commercial trucks at the rear of his property, fuel and water deliveries are
    made there, and supplies for the business are stored there. The appellant gave
    detailed evidence regarding the difficulties he, his suppliers and customers,
    and his tenant would face if their vehicles were required to manoeuver around
    vehicles parked on the respondents side of the strip or if it was otherwise
    blocked. The respondents asserted that the appellant and others needing to
    access the rear of his property were able to manoeuver their trucks and other
    vehicles on the appellants own portion of the driveway and that using the
    entire strip was not necessary. The application judge stated that the
    respondents had demonstrated that it was possible to get trucks between their
    property line and the appellants buildings, but only with great difficulty.

[4]

The respondents predecessors never disputed the appellants right to
    use the strip. Additionally, they used the driveway themselves in order to
    access the rear of their property.

The Application Judges Reasons

[5]

Referring to this courts decision in
Weidelich v. de Koning
,
2014 ONCA 736, 122 O.R. (3d) 545 to conclude that the test for establishing
    a prescriptive easement is reasonable convenience, the application judge
    found that the appellant had established his right to a prescriptive easement.
    The appellants property was the dominant tenement, while the respondents
    property was the servient tenement. The properties are and were owned by
    different people. For over 40 years before 2007, when both properties were registered
    in the Land Titles system, the appellant and his family had made use of the
    gravel driveway openly, continuously, and without licence.

[6]

The application judge then came to the issue of the proposed obstruction
    of the easement. He stated that the obstruction would only be actionable to
    the extent that the property was actually used and the easement actually
    exists.

[7]

He then made the finding that vehicles that either parked in front of
    the appellants building or gained access to the rear would not need to use the
    front part of the strip. He inferred that the vehicles used the part that they
    needed to use and concluded that the easement had been established only over
    the rear portion of the strip, not the front, and made the declaration accordingly.

Issues

[8]

With respect, the application judge erred in his articulation and
    application of the tests for determining whether a prescriptive easement has
    been established and the basis on which an obstruction of an easement or right
    of way will be allowed or limited.

(1)

Establishment of an easement by prescription

[9]

An easement by prescription can arise either under s. 31 of the
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15, or pursuant to the
    doctrine of lost modern grant. Both have the same four requirements, which were
    properly recognized by the application judge: i) a dominant tenement that
    enjoys the benefit of the easement and a servient tenement whose owner suffers
    some use of its land; ii) the properties cannot be owned by the same person; iii)
    the benefit of the easement must be reasonably necessary for the enjoyment of
    the dominant tenement; and iv) there must be 20 or 40 years (see:
Kaminskas
    v. Storm
, 2009 ONCA 318, 95 O.R. (3d) 387, at paras. 31-36) continuous,
    uninterrupted, open, and peaceful use enjoyed without obtaining the permission
    of the servient tenement owner. See:
Henderson et al. v. Volk et al.
(1982), 35 O.R. (2d) 379 (C.A.).

[10]

After
    a property has been registered under the Land Titles system, a pre-existing prescriptive
    easement over the land can be established if the four criteria can be proved to
    have been met before the land was transferred into Land Titles:
Carpenter v.
    Doull-MacDonald
, 2017 ONSC 7560, at paras. 54-55.

(2)

Ability to encroach

[11]

Where
    an easement has been found to exist, an adjoining owner will be entitled to
    encroach on it unless that encroachment amounts to substantial interference
    with the use of the easement. In
Gale on Easements
, 19th ed. (London:
    Sweet & Maxwell, 2012), at para. 13-06, the authors quote the test from
    Cockburn C.J. in
Hutton v. Hamboro

(1860), 175 E.R. 1031 (U.K.
    Assizes):

[W]here the obstruction of a private way was alleged  the
    question was whether practically and substantially the right of way could be exercised
    as conveniently as before.

[12]

In
Weidelich
,

Doherty J.A. discussed how that test should be
    applied in the context of a right of way granted in a deed. He concluded at
    para. 15 that [t]he dominant owner is entitled to every reasonable use of the
    right-of-way for its granted purpose. He adopted as correct the articulation
    of the test in the case of
B & Q Plc v. Liverpool and Lancashire
    Properties Ltd.
, [2000] E.W.H.C. 463 (U.K. Ch.), as follows:

In short, the test  is one of convenience and not necessity or
    reasonable necessity. Provided that what the grantee is insisting on is not
    unreasonable, the question is: can the right of way be substantially and
    practically exercised as conveniently as before?

Analysis

[13]

In
    our view, the application judge erred in law when he referred to the
Weidelich
case when discussing the criteria for finding a prescriptive easement. He also
    erred in his application of the test in
Weidelich
by conflating the criteria
    for finding an easement with the criteria for finding an encroachment. Finally,
    he erred by imposing a test of necessity on the owner of the dominant tenement,
    rather than the test of whether the dominant owner would be able to use the
    easement as conveniently as before.

[14]

The
    evidence before the court clearly showed a prescriptive easement through over
    40 years use by the appellant and his family of the entire strip of gravel
    driveway from front to back.

[15]

The
    question then became whether a fence running lengthwise on either all of the
    strip or down the front portion of the strip would practically interfere with
    the appellants use of the right of way to the extent that he would not be able
    to use it as conveniently as before. Framing the question in that way, the
    answer is clear on the finding by the application judge that it would be
    possible to drive trucks there, but only with great difficulty.

[16]

The
    uncontradicted evidence was that large trucks have accessed the back of the
    appellants property regularly over the entire time the appellant and his
    family have operated their business. The motion judge inferred that the trucks
    did not need to drive over the portion of the strip at the front half of the
    driveway but could stick to the appellants side of the driveway until they got
    to the back half. Although this may be possible, it is clearly not as
    convenient as having access to the full driveway. One need only consider a
    large truck backing into the driveway, not straight backwards as before over
    the whole driveway, but now having to stick to the appellants side at the
    front, then making a turn onto the entire strip at the back end.

Conclusion

[17]

In
    our view, the appeal must be allowed, and the easement granted over the entire
    strip, with an order that the respondents be enjoined from obstructing the
    easement with the proposed fence or otherwise in a way that would similarly
    interfere with its established use.

[18]

Costs
    of the appeal to the appellant in the amount of $10,000 inclusive of
    disbursements and HST. The motion judge ordered no costs on the basis that
    success was divided. As the result has now changed, the appellant is entitled
    to its costs of the motion in the amount of $12,000 inclusive of disbursements
    and HST.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


