1043 Bloor Inc. v. 1714104 Ontario Inc., (2013) 302 O.A.C. 266 (CA)

• Judge: Laskin, MacPherson and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 29, 2012
• Jurisdiction: Ontario
• Citations: (2013), 302 O.A.C. 266 (CA);2013 ONCA 91

1043 Bloor Inc. v. 1714104 Ont. (2013), 302 O.A.C. 266 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. FE.011

1043 Bloor Inc. (plaintiff/appellant) v. 1714104 Ontario Inc. (defendant/respondent)

(C53782; 2013 ONCA 91)

Indexed As: 1043 Bloor Inc. v. 1714104 Ontario Inc.

Ontario Court of Appeal

Laskin, MacPherson and Gillese, JJ.A.

February 14, 2013.

Summary:

The parties were adjacent landowners. Based on the doctrine of lost modern grant, the plaintiff applied for a declaration that it had a prescriptive easement over a lane that lay almost entirely on the defendant's property.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 2779, dismissed the application. While there had been continuous and open use of the lane during the relevant time period, an incident that took place in February of 1987 interrupted the prescriptive period. As the period from February 1987 to April 2003 (when the plaintiff's property migrated into the Land Titles system) was less than 20 years, a prescriptive easement did not arise. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Real Property - Topic 6091

Title - Extinguishment - Prescription and adverse possession - Defences - Acknowledgment by dominant owner - The parties were adjacent landowners - Based on the doctrine of lost modern grant, the plaintiff applied for a declaration that it had a prescriptive easement over a lane that lay almost entirely on the defendant's property - The plaintiff claimed that its predecessors in title had continuous, uninterrupted and open use of the lane for at least 20 years before April 2003 (when the plaintiff's property migrated into the Land Titles system) - In 1987, a previous owner of the plaintiff's property (Vilhena) had approached the previous owner of the defendant's property (Sochaniwskyj) with a request to sign a right-of-way agreement - Sochaniwskyj refused to sign - The application judge agreed with the defendant that the 1987 incident was an acknowledgement that Vilhena did not have the right to use the lane and that this restarted the period for calculating a prescriptive easement - Since the period from 1987 to 2003 was less than 20 years, a prescriptive easement did not arise - The Ontario Court of Appeal dismissed the appeal - Gillese, J.A. (MacPherson, J.A., concurring), agreed with the application judge that the 1987 incident interrupted the prescriptive period - See paragraphs 65 to 75, 128 - Laskin, J.A. (MacPherson, J.A., concurring) held that Sochaniwskyj's later posting of "Private Driveway" signs along the lane was sufficient to interrupt the running of the prescription period - See paragraphs 86, 129 - On either basis, the prescriptive period did not run for the required 20 years.

Real Property - Topic 7028

Easements, licences and prescriptive rights - Creation by express grant - "Lost modern grant" - The Ontario Court of Appeal set out the legal principles governing the doctrine of lost modern grant, including the acquisition of a prescriptive easement by lost modern grant - See paragraphs 56 to 64; 91 to 101.

Real Property - Topic 7028

Easements, licences and prescriptive rights - Creation by express grant - "Lost modern grant" - The Ontario Court of Appeal discussed the policy considerations underpinning the doctrine of lost grant, particularly relating to easements by prescription - See paragraphs 62 to 64; 102 to 108.

Real Property - Topic 7060

Easements, licences and prescriptive rights - Creation by prescription - Conditions precedent - [See first Real Property - Topic 7028 ].

Real Property - Topic 7068

Easements, licences and prescriptive rights - Creation by prescription - Bars (permission, etc.) - [See Real Property - Topic 6091 ].

Cases Noticed:

Henderson et al. v. Volk et al. (1982), 35 O.R.(2d) 379 (C.A.), appld. [paras. 38, 56].

Garfinkel v. Kleinberg and Kleinberg, [1955] O.R. 388 (C.A.), refd to. [para. 60].

Kaminskas v. Storm (2009), 248 O.A.C. 297; 95 O.R.(3d) 387; 2009 ONCA 318, refd to. [para. 61].

Temma Realty Co. v. Ress Enterprises Ltd. et al., [1968] 2 O.R. 293 (C.A.), refd to. [para. 64].

Dalton v. Angus (1881), 6 App. Cas. 740 (H.L.), refd to. [para. 99].

Authors and Works Noticed:

Burn, E.H., and Cartwright, J., Cheshire and Burn's Modern Law of Real Property (17th Ed. 2006), pp. 614-615 [para. 96].

Ziff, Bruce, Principles of Property Law (5th Ed. 2010), pp. 386 [para. 91]; 388 [paras. 96, 124].

Counsel:

Warren Rapoport, for the appellant;

L.J. O'Connor, for the respondent.

This appeal was heard on November 29, 2012, before Laskin, MacPherson and Gillese, JJ.A., of the Ontario Court of Appeal, who delivered the following judgment and reasons for judgment, released on February 14, 2013:

Gillese, J.A. - see paragraphs 1 to 85;

Laskin, J.A. - see paragraphs 86 to 127;

MacPherson, J.A. - see paragraphs 128 to 130.