Court Of Appeal Summaries (July 16 – July 20, 2018)

Following are the summaries of this week's civil decisions of the Court of Appeal of Ontario.

There were two property boundary disputes between neighbours decided this week, with different results. Both related to prescriptive easements and the "doctrine of lost modern grant". The test for getting a prescriptive easement over a neighbour's land, whether by statute or by the doctrine of lost modern grant is basically the same, and is as follows:

a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land; the properties cannot be owned by the same person; the benefit of the easement must be reasonably necessary for the enjoyment of the doMinant tenement; and there must be 20 or 40 years' (depending on the facts and whether proceeding under statute or under the lost modern grant doctrine) continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner. In English v Perras, the Court allowed the appeal and set aside the prescriptive easement that had been found by the application judge. The applicants had not succeeded in proving entitlement to the easement. The effect of the decision was to allow the respondent to keep a fence they had erected in the middle of what had been a shared driveway. On the other hand, in Hunsinger v. Carter, the Court allowed the appeal and expanded the more limited prescriptive easement that had been ordered by the application judge. The Court found that the application judge had erred in determining that the easement was not necessary over the front portion of the disputed area. The test is not whether the prescriptive easement is absolutely necessary in order to gain access, but whether it is necessary to gain "reasonably convenient" access.

In Di Gregorio v Sunwing Vacations Inc., vacationers were injured when the balcony railings in their hotel room in the Dominican Republic gave way. They sued in Ontario the hotel, hotel managers and Sunwing, the Canadian travel company that sold them the vacation package. The defendants moved to stay the claim on jurisdictional grounds and, alternatively, because the claims were out of time in accordance with the limitation period applicable in the Dominican Republic (six months for torts, two years for contracts). The motion judge dismissed the claims only in reliance on the six-month tort limitation period applicable in the Dominican Republic. The Court of Appeal allowed the appeal for several reasons. First, it was not open to the judge to decide the case only on the limitation period issue. She was first obligated to determine if she had jurisdiction before deciding any other issue. If there was no jurisdiction, the judge should not have decided the limitation period issue. As it turned out, there was jurisdiction because the accident had contractual implications between the various parties and some of those contracts were made in Ontario. Accordingly, there was a contract made in Ontario that was connected to the incident, and this therefore gave the court jurisdiction simpliciter. Second, the judge erred in applying the tort limitation period of the Dominican Republic (6 months) without determining whether there may have been a valid claim pleaded in contract (where a two-year limitation period applies). Third, the judge decided the limitation period issue as if the motion was a Rule 20 motion for summary judgment. However, neither party had relied on that rule in their materials, so it was therefore not clear that this was a motion for summary judgment. Finally, the judge's reasons did not permit for meaningful appellate review. In the circumstances, the Court declined to decide the limitation period issue and the parties will have to start all over again.

There was also a child custody decision, several criminal decisions, and a couple of Ontario Review Board decisions.

Civil Decisions

English v Perras, 2018 ONCA 649 [Hoy ACJO, Brown and Trotter JJA]


R Graystone, for the appellants

RD Aburto and J Polowin, for the respondents

Keywords: Real Property, Prescriptive Easements, Doctrine of Lost Modern Grant, Evidence, Burden of Proof, Barbour v Bailey, 2016 ONCA 98, 1043 Bloor Inc. v 1714104 Ontario Inc., 2013 ONCA 91, Land Titles Act, RSO 1990, c L5, s 51


The appeal involves a dispute between neighbouring homeowners over the use and maintenance of a 14-foot wide strip of land (the "Shared Driveway") between their houses. There are garages at the rear of the lots, accessed exclusively via this strip of land. The property line runs down the middle of this strip.

Mr. and Mrs. P ("the P's") erected a fence down the centre of the Shared Driveway, just inside their property line. This allows the P's to drive vehicles from the road to their garage, but this prevents their neighbours, Mr. E and Ms. P, from accessing their garages from the road due to a retaining wall that narrows their driveway.

The legal rights of Mr. E and Ms. P fall to be determined largely by the conduct of their predecessors in title. The application judge found that, as a result of the historical use of the Shared Driveway, Mr. E and Ms. P are entitled to a prescriptive easement over the P's driveway. She ordered the P's to remove their fence.

The application judge concluded that Mr. E and Ms. P had acquired a prescriptive easement based on the doctrine of lost modern grant. The P's appealed contending that the requirements for a prescriptive easement have not been established.


Did the application judge err in her application of the doctrine of lost modern grant by:

(1) finding that the use of the driveway had been "as of right", as opposed to by permission, and;

(2) finding that the easement was reasonably necessary to the enjoyment of Mr. E and Ms. P's property?

Holding: Appeal allowed.


(1) The essential features of an easement are set out in Barbour v Bailey. To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or the right-of-way:

there must be a dominant and servient tenement; the dominant and servient owners must be different persons; the easement must be capable of forming the subject matter of a grant; and the easement must accommodate - that is, be reasonably necessary to the better enjoyment of - the dominant tenant. The Court of Appeal cited 1043 Bloor Inc. v 1714104 Ontario Inc., stating that the doctrine of lost modern grant is recognized as a method for acquiring a prescriptive easement. A prescriptive right emerges from long, uninterrupted, unchallenged use for a specified period of time - in Ontario, 20 years.

In Ontario, prescriptive easements have been abolished with respect to...

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