1043 Bloor Inc. v. 1714104 Ontario Inc.
2013 ONCA 91
Court of Appeal for Ontario, Laskin, MacPherson and Gillese JJ.A.
February 14, 2013
Real property — Easements — Prescription — Doctrine of lost modern
grant — Use “as of right” — Plaintiff and his predecessors in title using
laneway on neighbour’s property to access parking — Running of
prescriptive easement interrupted in 1987 when plaintiff’s predecessor
in title asked defendant’s predecessor in title for permission to use
laneway and was refused — Request for permission amounting to
acknowledgment that use was not “under claim of right” or “as of right”
— Alternatively, running of prescriptive easement being interrupted
when defendant’s predecessor in title posted “private driveway” signs
along laneway in 1989.
O used a laneway on neighbouring property owned by the defendant’s predecessor in title, S, to access parking spaces behind her building from 1980 to 1986.
S did not object. V continued to use the laneway after purchasing the property
from O in 1986. In 1987, he asked S to sign a right-of-way agreement over the
lane. S refused (the “1987 incident”). V continued to use the laneway. In 1989,
S had “private driveway” signs posted along the lane. After purchasing the property from V in 2008, the plaintiff sought a declaration that it had a prescriptive
easement and right of way over the lane on the basis that its predecessors in title
had uninterrupted, open use of the lane for at least 20 years before April 2003,
when the plaintiff’s property migrated into the land titles system. The trial judge
dismissed the action. She found that there had been continuous and open use of
the lane during the relevant time period, but that the 1987 incident interrupted
the prescriptive period. The plaintiff appealed.
Held, the appeal should be dismissed.
Per Gillese J.A.: To acquire an easement by prescription, the claimant must
demonstrate a use and enjoyment of the easement under a claim of right that is
continuous, uninterrupted, open and peaceful for a period of 20 years. V’s request
for permission to use the laneway in 1987 amounted to an acknowledgment that
his use was not “as of right” or “under a claim of right”. The trial judge did not
err in finding that the 1987 incident interrupted the prescriptive period.
Per Laskin J.A. (concurring): V’s acknowledgment that S had legal title to the
lane was irrelevant to the question of whether V’s use was as of right. Usage as of
right does not mean usage based on a mistaken view of who holds legal title. V
always knew and acknowledged that S legally owned the lane. His claim to a
prescriptive easement was based on his uninterrupted usage and S’s acquiescence to that usage. V’s 1987 request that S sign the right-of-way agreement did
not interrupt the prescriptive period. Nor did S’s refusal to sign the agreement
interrupt the prescriptive period. If anything, S’s refusal showed that V’s later
use was not with S’s consent.
Use “as of right” means use without violence. Use without violence is broadly
defined. It means not only that there has been no physical obstruction of the
easement, but also that the use did not proceed in the face of protests from the
servient owner that might be seen as challenging the claimed right. In the
context of a dispute between neighbours, where the servient owner, S, was a non-confrontational man, the posting of the “private driveway” signs in 1989 was an