Top 5 Civil Appeals From The Court Of Appeal (March 2013)

1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 (Laskin, MacPherson and Gillese JJ.A.), February 14, 2013 Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (MacPherson, Armstrong and Blair JJ.A.), February 7, 2013 Lavier v. MyTravel Canada Holidays Inc., 2013 ONCA 92 (Laskin, MacPherson and Gillese JJ.A.), February 14, 2013 Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72 (Weiler, Juriansz and Hoy JJ.A.), February 5, 2013 Moreira v. Ontario Lottery and Gaming Corporation, 2013 ONCA 121 (Simmons, Armstrong and Watt JJ.A.), February 26, 2013 1. 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 (Laskin, MacPherson and Gillese JJ.A.), February 14, 2013

Can a single incident interrupt the prescriptive period in a prescriptive easement?

The parties, who own adjacent properties on Toronto's Bloor Street, both access their parking spots via a lane which lies almost entirely on the respondent's property. The appellant sought a declaration that it has a prescriptive easement and right of way over the lane, while the respondent wanted any suggestion of an easement to be removed. The trial judge dismissed the appellant's claim, finding that although there had been continuous and open use of the lane by the appellant's predecessors in title, an incident that took place in February of 1987 interrupted the prescriptive period. That date therefore became the new starting point for the running of the period and, as the appellant's property was converted to the Land Titles System less than twenty years later, in April 2003, there was no prescriptive easement.

The appeal turned on the interpretation of an incident which occurred in 1987, in which a Mr. Vilhena, the owner of the appellant's property at that time, approached a Dr. Sochaniwskyj, then-owner of the respondent's property, seeking permission to use the lane. Vilhena requested that Sochaniwskyj sign a right of way agreement, drafted by Vilhena's lawyer. Sochaniwskyj refused.

Citing Henderson v. Volk, (1982), 35 O.R. (2d) 379 (C.A.), the provincial authority on the doctrine of lost modern grant, Gillese J.A. explained that to acquire an easement by prescription, a claimant must demonstrate "a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful" for twenty years.

Key to the requirement are the words "under a claim of right". Gillese J.A. clarified that the enjoyment of the right of way must not be permissive, or provided at the will of the owner of the property over which the easement is sought; rather, the claimant's use of the easement "must be as if it had obtained a legal grant of the easement from the owner of the servient tenement."

Gillese J.A. agreed with the trial judge that the impugned incident demonstrated an acknowledgment by Vilhena that he did not have a right to use the lane and that he required Sochaniwskyj's permission to do so. Vilhena's behaviour is inconsistent with the notion that he used the lane "under a claim or right" or "as of right".

The appellant had submitted that because Sochaniwskyj refused to sign the right of way agreement, Vilhena's subsequent use of the lane was without permission and "as of right" within the Court's definition in Kaminskas v. Storm, 2009 ONCA 318, namely "uninterrupted, open, peaceful and without permission". Gillese J.A. rejected this interpretation of the incident. It failed to appreciate the implications of Sochaniwskyj's refusal to sign the agreement and was contrary to the policy considerations underpinning the doctrine of lost modern grant. Sochaniwskyj's refusal to grant Vilhena a right of way did not simply deny Vilhena permission to use the lane; it made clear that Vilhena's use of the lane was solely at his discretion, with permission given or withdrawn at his pleasure.

In Temma Realty Co. Ltd. v. Ress Enterprises Ltd., [1968] 2 O.R. 293, the Court of Appeal urged against applying the doctrine of lost modern grant in a manner that would "discourage considerate neighbourly behaviour by creating the fear that those acts will later be construed as acquiescence sufficient to give your neighbour rights over your land." The doctrine of lost modern grant should not be interpreted so as to punish Sochaniwskyj for being a generous neighbour, nor reward Vilhena for his aggression.

Gillese, J.A. concluded that Vilhena's failed attempt to gain Sochaniwskyj's permission to use the lane demonstrated an acknowledgement that his use of it was not as of right and, in accordance with the Court of Appeal's decision in Garfinkel v. Kleinberg and Kleinberg, [1955] O.R. 388, this acknowledgement interrupted the running of the prescriptive period.

In a concurring opinion, Laskin J.A. took the appellant's approach, finding that Vilhena's request for permission to use the lane did not interrupt the running of the prescriptive period. Had Sochaniwskyj signed the right of way agreement, Vilhena's later use...