



COURT OF APPEAL FOR ONTARIO

CITATION:
Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266

DATE: 20210428

DOCKET: C67814

Feldman, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Louis Balogh and Sandra Aileen Balogh

Plaintiffs (Respondents)

and

R.C. Yantha Electric Ltd. and
    Rodney Yantha

Defendants (Appellants)

Jeff G. Saikaley and James Plotkin, for
    the appellants

Robert A. Leck, for the respondents

Heard: April 13, 2021 by video conference

On appeal from the judgment of Justice Heather
    J. Williams of the Superior Court of Justice, dated November 22, 2019, with
    reasons reported at 2019 ONSC 6748.

Feldman J.A.:

[1]

The appellants purchased a piece of land,
    referred to at trial as the triangle property, adjacent to the respondents
    property. The appellants land has some water access, but no vehicle access,
    unless the appellants are entitled to use what was acknowledged at one time to
    be a private road, referred to at trial as the red track, across the
    respondents property to the triangle property. The appellants asserted a right
    to use the red track on two bases: either because it is an access road under
    the
Road Access Act
, R.S.O. 1990, c. R.34, or because the appellants
    predecessors in title acquired a prescriptive easement over it in accordance
    with the doctrine of lost modern grant, by 20 years continuous use prior to June
    14, 1999, when the respondents lands were transferred into the Land Titles
    system.

[2]

The trial judge rejected both bases and found
    that the appellants have no right to use the red track across the respondents
    property to access the triangle property. I see no error in the trial judges
    findings or analysis, and would dismiss the appeal.

Background Facts

[3]

The respondents purchased lot 27, a vacant rural
    property, in 2005 and later bought part of lot 26. The appellant, Rodney
    Yantha, through his company, R.C. Yantha Electric Ltd., bought the other part
    of lot 26, the triangle property, in 2014 from Gerry Roche, whose family had
    owned it for decades. The appellants father, Eldon Yantha, owns lot 28,
    formerly a gravel pit, on the other side of lot 27. Rodney Yantha also owns the
    next lot 29, where there is a hunting camp.

[4]

The appellants portion of lot 26, referred to
    as the triangle property, is landlocked but has some water access. There was
    evidence that there may have been a lumber mill located on the property in the
    19
th
century.

[5]

The subject of this action is a path that
    crosses lot 27 between the triangle portion of lot 26 and lot 28. It is known
    as the red track because of how it is shown on a map made an exhibit at trial.
    The appellants claimed the right to access the triangle property over that path,
    either as an easement that had been acquired under the doctrine of lost modern
    grant before 1999, when lot 27 went into the Land Titles system, or as an
    access road under the
Road Access Act
.

Issue 1: Did the appellants predecessors in
    title acquire an easement by prescription over the red track prior to 1999?

[6]

Under the doctrine of lost modern grant, an
    easement by prescription can be established by the owners of the dominant
    tenement over the affected portion of the servient tenement based on 20 years
    of continuous, uninterrupted, open and peaceful use of the land without objection
    by the owner of the servient tenement. The use must be as of right meaning
    that the owner of the servient tenement must have knowingly acquiesced to the
    establishment of the easement, not just granted permission or a license to use
    the land: see
Carpenter v. Doull-MacDonald
, 2017 ONSC 7560, 92 R.P.R.
    (5th) 6, at paras. 42-47, affd 2018 ONCA 521, 92 R.P.R. (5th) 47.

[7]

After hearing evidence from the key witnesses, Gerry
    Roche, Eldon Yantha, Rodney Yantha, Dr. Louis Balogh, plus several other
    witnesses, the trial judge found that the appellants had not established an
    easement based on 20 years of continuous use of the red track. In so finding,
    the trial judge rejected the evidence of Gerry Roche and of the Yanthas
    regarding their use of the red track prior to 1999. She based her credibility
    findings in part on her rejection of their evidence regarding the period after
    2008, where she preferred the evidence of Dr. Balogh.

[8]

The appellants base their appeal of the finding that
    no easement was established on two alleged errors. The first is with respect to
    the trial judges finding that when the Roches asked the Yanthas to check on
    the triangle property over the years by crossing the red track, they did not do
    so as agents for the Roches because their visits to the property were as much
    for their own enjoyment, including fishing, hunting, picnicking, and bonfires,
    as they were to help out the Roches. If the Yanthas were not acting as agents,
    then their use of the red track did not count as part of the 20 years of
    possession by the Roches. The appellants submit that the trial judge erred in
    law in making this finding.

[9]

The legal issue turns on the application of two
    decisions of this court on the agency issue,
Temma Realty Co. Ltd. v. Ress
    Enterprises Ltd. et al.
,
[1968] 2 O.R. 293 (C.A.), and
Carlini v.
    Hammoud
, 2011 ONCA 285.

[10]

In
Temma
, the issue was whether a right
    of way by easement had been established over a laneway that was used by
    independent delivery vehicles to access the appellants commercial enterprise.
    The court held that even if the nature of that use would otherwise have met the
    test to establish an easement, the fact that the truckers were independent of
    the owner of the dominant tenement meant that they were not under the direction
    and control of the owner, and their use was not as agent for the owner.

[11]

In
Carlini
, the appellants property had
    a driveway that had been used by the respondent family since 1978. The respondents
    parents home was on the lot that originally included the driveway. They later severed
    the lot and sold the portion with the driveway (i.e., the servient tenement) to
    their son. The Carlini family continued to use the driveway to access the
    parents property until the son sold the servient tenement to strangers in
    2007. The court held that an easement over the driveway had been established well
    before the sale in 2007 by the collective use of the driveway by the Carlini
    family members, not strangers, for a host of purposes associated with the
    better enjoyment of the dominant tenement: at para. 5. The court specifically
    distinguished
Temma
on that basis.

[12]

The appellants submit that the trial judge erred
    by rejecting the applicability of the
Carlini

case. We do not
    agree. The trial judge analyzed the nature of the relationship between the
    Roches and the Yanthas, and in particular, the basis of the Yanthas use of the
    triangle property at the invitation of the Roches. She found that the
    arrangement was that the Roches allowed the Yanthas to use the triangle
    property, and in exchange, the Yanthas would keep an eye on it from time to
    time. There were no specific dates or checks and no reporting back.
    Furthermore, the Roches never told the Yanthas to drive to the triangle
    property or to use the red track to get there.

[13]

The trial judges conclusion is a finding of
    mixed fact and law. It was open to her on this evidence, and there is no basis
    to interfere with it.

[14]

The trial judge stated that if she was in error
    on the agency issue, the claim failed in any event because the nature and
    frequency of the use of the red track by the Roches prior to 1999 was not
    sufficient to establish a prescriptive easement. In particular, she was not
    prepared to accept the evidence of Gerry Roche regarding either the frequency
    or the consistency of his use of the triangle property over the years, and gave
    a number of reasons for her credibility findings. For example, Dr. Balogh
    testified that before Mr. Roche sold the triangle property to the appellants,
    Mr. Roche once asked him for permission to cross the part of lot 26 that he, Dr.
    Balogh, owned in order to get to the triangle property to cut down a Christmas
    tree. This evidence was confirmed by another witness, Ms. Wood, who had had a
    similar encounter. Dr. Balogh testified that he understood that Mr. Roche only
    needed to get to the triangle property to cut down his traditional Christmas
    tree, and that he had no other way to access the property, i.e., Mr. Roche did
    not believe he could use the red track.

[15]

The trial judge also found Mr. Roche to be
    evasive about previous efforts he had made to secure formal access to the
    triangle property over a north/south route that was closed off by other
    property owners. She also found his evidence about his grandfather difficult to
    reconcile.

[16]

The trial judge further found that there was no
    evidence that the predecessors of the Baloghs knew or ought to have known that
    the red track was being used to access the triangle property, another essential
    component of the easement test. For all of these reasons, the trial judge found
    that the evidence was not sufficient to establish a prescriptive easement over
    the red track.

[17]

The appellants second alleged error in the
    trial judges finding that the evidence did not establish an easement, is that
    her credibility findings were based on five alleged misapprehensions of the
    evidence involving Dr. Balogh. These alleged misapprehensions are set out in
    detail in the appellants factum.

[18]

It is trite law that it is not the role of this
    court to retry factual issues and conclusions reached by the trial judge,
    especially findings of credibility. Of course, a misapprehension of evidence on
    a key issue can give rise to a palpable and overriding error. That is not the
    case here. The alleged errors the appellants identify involving Dr. Balogh
    would not impact the trial judges findings regarding the Roches use of the red
    track before 1999 and whether their use was sufficient to meet the test to establish
    a prescriptive easement.

Issue 2: Is the red track an access road
    under the
Road Access Act
?

[19]

Under the
Road Access Act
, landowners
    cannot close off an access road on their property except with a court order (or
    in other, limited, enumerated circumstances). The purpose of the
Road
    Access Act
is to prevent self-help measures by landowners, especially in
    rural and cottage areas, who may want to prevent others from using an access
    road to get to their properties.

[20]

Access road and road are defined in s. 1 of the
Road Access Act
as follows:

access road means a road located
    on land not owned by a municipality and not dedicated and accepted as, or
    otherwise deemed at law to be, a public highway, that serves as a motor vehicle
    access route to one or more parcels of land; and

road means land used or intended
    for use for the passage of motor vehicles.

[21]

The trial judge referred to this courts
    decisions in
2008795 Ontario Inc. v. Kilpatrick
, 2007 ONCA 586, 86
    O.R. (3d) 561 at para 32, and
Blais v. Belanger
, 2007 ONCA 310, 282
    D.L.R. (4th) 293, and found that because the definition of access road uses the
    word serves, in the present tense, an access road must be one that exists
    contemporarily, i.e., in the present, and that a former access road can lose
    its status by disuse or overgrowth.

[22]

The trial judge considered two points in time to
    assess the status of the red track: 2008, when Dr. Balogh erected a fence
    across the red track; and 2014, when the appellants purchased the triangle
    property and took down the fence. She found that the red track was not an
    access road at either point in time because it was not in use at either time.

[23]

Regarding 2008, the trial judge identified four
    factors to suggest that the red track did not serve as a motor vehicle access
    route: (1) the respondents received a statutory declaration made by a predecessor
    owner, a lawyer, that he was not aware of any easements or anyone traversing lot
    27 from 1990 until he sold the property in 2003; (2) in the 1980s or 1990s,
    Eldon Yantha installed blocking mechanisms on the red track, first between lots
    27 and 28, and then between lots 30 and 29; (3) when the respondents bought lot
    27, the real estate agent for the seller informed them that they would require
    a road to access the lot and, as a condition of the Baloghs purchase, the
    seller built an access road to the property from the south east; and (4) when
    the respondents purchased lot 27 in 2005, the red track was overgrown. Furthermore,
    when the respondents built their fence across the red track in 2008, there was
    evidence that the trial judge accepted, that it was not serving as a motor vehicle
    access route to the triangle property.

[24]

Regarding 2014, the trial judge found that no
    one had driven over the red track between 2008 and 2014, it was overgrown, and
    the appellant, Rodney Yantha, had had to trim back some overgrowth to make the
    track driveable for his truck after he purchased the triangle property.

[25]

The trial judge concluded that although the red
    track may have been an access road at one time, it no longer was by 2005 when
    the respondents purchased lot 27, or in 2008 when Dr. Balogh erected his fence.

[26]

The appellants submit that the trial judge erred
    by failing to recognize that the red track was traversable by an all-terrain
    vehicle, which qualifies as a motor vehicle under the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8, definition, and had therefore not lost its status as an
    access road by overgrowth. They also submit that when the two definitions, road
    and access road, are read together, a road that is intended for use and
    exists contemporarily meets the meaning of access road, and that otherwise, the
    words intended for use in the definition of road would be effectively read
    out.

[27]

The answer to this argument is that this court
    has already held in
Blais
and in
Kilpatrick
, that in order to
    be an access road, it must exist contemporarily, i.e., it must serve as a
    motor vehicle access road to one or more parcels of land at the relevant point
    in time. In this case, the trial judge found that at the relevant points in
    time, 2008 and 2014, the red track was not in use. Because it was overgrown, it
    was also not, at those points in time, intended for use for the passage of
    motor vehicles. We see no error in the trial judges approach to the law or to
    her findings of fact and mixed fact and law.

Conclusion

[28]

I would therefore dismiss the appeal with costs
    fixed in the agreed amount of $30,000, inclusive of disbursements and HST.

Released: April
    28, 2021 K.F

K. Feldman J.A.

I agree. Harvison Young J.A.

I agree. Thorburn J.A.


