The Ontario Court of Appeal has issued rulings in at least three cases this summer on these issues and, in two of the judgments, set aside the conclusions of the application judge.
In municipalities with older housing stock, disputes still arise that pre-date the land titles registry and require searching for evidence from decades ago as to whether a shared use of property was expressly by permission or acquiescence.
The threshold that must be met was set out again by the Court of Appeal last month in a dispute over a four-metre-wide strip of land on a “shared driveway” between two residential homes in Ottawa that were originally constructed at least 90 years ago.
“Despite the conflict between the current owners, their legal rights fall to be determined largely by the conduct of their predecessors in title, in more peaceful times,” wrote Justice Gary Trotter in English v. Perras.
The Court of Appeal found that Superior Court Justice Sally Gomery erred in finding a prescriptive easement and ordering one of the couples to remove a fence erected just inside their property line.
“The courts have insisted on a high standard for establishing a prescriptive easement by lost modern grant,” wrote Trotter, with justices Alexandra Hoy and David Brown concurring.
“In this case, the evidence did not establish anything more than permissive use during the prescriptive period,” wrote Trotter.
The Court of Appeal stated that it was not endorsing the “aggressive conduct” of the Perrases in erecting the fence. However, for the neighbours to meet the requirements of establishing a prescriptive easement, they needed to prove 20 years of “uninterrupted and unchallenged use” before the properties were registered into land titles, which was 1996.
Roxie Graystone, who acted for the Perrases in their successful appeal, says the decision provides “some clarity” in this area of the law and for other neighbours engaged in shared property disputes.
“It explains what type of evidence you need” when seeking to establish this right, says Graystone, a lawyer at Merovitz Potechin LLP in Ottawa.
“You might need to find evidence from 20, 30 or 40 years ago. There has to be a clear assertion of a right to use it like you owned it and the other folks know it,” adds Graystone.
The decision in English is a reminder by the Court of Appeal that an applicant’s evidence must be very solid to establish a prescriptive easement, says Douglas Stewart, a partner at Dentons in its Toronto office.
“It is not showing any lenience toward the evidence. If the servient tenement can create an ambiguity, the court will likely decide in its favour. The equities do not seem to come into play. Justice Trotter makes it clear he did not like what the [Perrases] did, but [he] found that the application judge did not follow key points of law,” says Stewart, who is part of the firm’s litigation and dispute resolution group.
David Thompson, a partner at Scarfone Hawkins LLP in Hamilton, says these types of cases can be very difficult to meet the threshold in terms of the requirement to show that a neighbour acquiesced to the use of the land instead of granting permission.
“If you say nothing, it is acquiescence. But most of us think of silence as a granting of permission,” says Thompson, a commercial and civil litigator at the firm.
The Court of Appeal, in its decision in English, stated there can be a “fine line” between the two concepts.
“There must be clear and unambiguous evidence that the use of the land was as of right and not by permission. If the evidence is equally consistent with both uses, a claim based on lost modern grant must fail,” wrote Trotter.
Establishing these claims often requires searching for the predecessors in title, notes Thompson.
“You try to track them down. You may also be looking at old surveys and grainy images,” he says. These types of disputes continue to be litigated, especially in municipalities with older housing stock, because of “generational turnover,” says Thompson.
“You get younger people who buy a property and want to do renovations. There is not a history of getting along with your neighbour,” he observes.
Another recent decision of the Court of Appeal found that the application judge was wrong to grant an easement over only the rear strip of land between two properties in a small community in southwestern Ontario.
The court, in its decision in Hunsinger v. Carter, concluded that a prescriptive easement had been clearly established on a gravel driveway that had been used by a family for more than 40 years.
A couple that purchased the neighbouring property in 2017 built a fence as part of plans to establish a daycare business.
The fence made it very difficult for its neighbours to drive vehicles to the back section of the strip of land.
Superior Court Justice James Ramsay “erred” in applying the legal test as to when an obstruction of an easement or right of way will be permitted, said the Court of Appeal ruling.
“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,” wrote Justice Kathryn Feldman with justices David Brown and William Hourigan concurring. One of the authorities cited by the Court of Appeal in finding that an easement had been established over the whole strip of land was an 1860 decision issued in Britain.
Edward McCarthy, who acted for the successful appellants, says the fence did amount to substantial interference with his client’s right to use that property.
“The judge pulled a Solomon on me” in granting an easement over only part of the driveway, notes McCarthy, a lawyer at McCarthy & Fowler in Hagersville, Ont.
In all of these cases, another and less costly option is for neighbours to come to an agreement without going to court.
“We try to get them to be rational,” says Thompson. “But our property rights are so ingrained in us. People become incredibly emotional when it comes to the protection of their homes,” he adds.