Barbour v. Bailey, 2016 ONCA 98

• Judge: MacFarland, Rouleau and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 16, 2015
• Jurisdiction: Ontario
• Citations: 2016 ONCA 98;(2016), 345 O.A.C. 311 (CA)

Barbour v. Bailey (2016), 345 O.A.C. 311 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.007

Gerald Harry Barbour (objector/respondent/appellant) v. Angelina Bailey (possessory claimant/applicant/respondent)

(C58076; 2016 ONCA 98)

Indexed As: Barbour v. Bailey

Ontario Court of Appeal

MacFarland, Rouleau and Roberts, JJ.A.

February 4, 2016.

Summary:

Barbour owned Part 2 of a parcel of land. Part 2 included a beach. It also comprised part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island. Bailey owned Tiny Island. During the period when the water level was low enough, Bailey and her predecessors in title travelled to Tiny Island mostly by foot and sometimes by motor vehicle on a path over the isthmus. During the period when Tiny Island had been completely surrounded by water and walking or driving over the isthmus was impossible, Bailey and her predecessors travelled to Tiny Island from the beach of Part 2 by boat or by wading through the water, leaving their vehicles parked on the property that they owned north of Part 2. Barbour applied under the Ontario Boundaries Act for an order confirming the northerly, westerly and southerly boundaries of his property. Bailey filed an objection to the application.

The Deputy Director of Titles confirmed that Barbour held paper title to Part 2, with the west and south boundaries being ambulatory and changing with the water's edge. It also confirmed a boundary that bisected the isthmus. Bailey appealed, but the appeal was dismissed for want of prosecution. Bailey applied under the Land Titles Act, claiming possessory title to, or alternatively, a prescriptive easement over, the entirety of Part 2, including but not limited to the path, beach and isthmus. Barbour filed an objection in response to the application.

The Deputy Director of Titles allowed the application, holding that Bailey had established possessory title to all of Part 2. Barbour appealed. Bailey applied under rule 14 of the Civil Procedure Rules requesting, as alternative relief in response to Barbour's appeal, that she be granted an interest in the nature of an easement or right-of-way over all or any portion of Part 2. The appeal and rule 14 application were heard by way of a new trial in accordance with s. 26 of the Land Titles Act.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 4019, ruled in Barbour's favour. Bailey appealed, raising several issues, including that the decision was tainted by a reasonable apprehension of bias.

The Ontario Court of Appeal, in a decision reported at 291 O.A.C. 344, allowed the appeal on the basis of bias and ordered a new trial before a different judge.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 7397, granted judgment in favour of Bailey. The court held that Bailey had acquired possessory title over the entirety of Part 2 by way of adverse possession or, alternatively, a prescriptive easement or right-of-way.

The Ontario Superior Court, in decisions with neutral citations 2014 ONSC 2343 and 2014 ONSC 3698, ordered Barbour to pay Bailey's costs of $490,000, and for Barbour's counsel to reimburse Barbour 20% or $98,000 of the costs awarded to Bailey, and pay personally the costs of a rule 57.07 motion. Barbour appealed the decision granting Bailey judgment and the costs decision.

The Ontario Court of Appeal set aside the order granting Bailey fee simple title over all of Part 2. The court varied the order to allow a grant to Bailey of an easement in the nature of a right-of-way in perpetuity for non-vehicular passage on the path as shown on a registered plan of survey, for the purposes of ingress and egress to and from Tiny Island. The court set aside the order granting costs to Bailey. The court also set aside the order directing Barbour's counsel to pay 20% of those costs personally, and the costs of the rule 57.07 motion.

Barristers and Solicitors - Topic 848.1

Duty to court - Liability for costs - For improper motions - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 of Barbour's property by way of adverse possession or, alternatively, a prescriptive easement or right-of-way over all of Part 2 - The judge ordered Barbour to pay Bailey's costs of $490,000, and for Barbour's counsel (Streisfield) to reimburse Barbour 20% ($98,000) of the costs awarded to Bailey, and pay personally the costs of a rule 57.07 motion - Barbour appealed - The Ontario Court of Appeal set aside the finding of adverse possession and limited the right of way in terms of location and use - The court set aside the order granting costs to Bailey - The court added that it would allow the appeal from the costs order against Streisfield personally because the process followed by the trial judge was flawed in that it did not give him a reasonable opportunity to be heard - First, the judge did not allow Streisfield the opportunity to respond to criticisms concerning his performance before she made findings against him in her reasons for judgment that formed the basis for her order that he should reimburse Barbour for part of Bailey's trial costs - Second, she ordered Streisfield to pay Bailey's costs of the rule 57.07 motion itself, without having heard any submissions - The process followed by the judge was contrary to rule 57.07(2) that no order under rule 57.07(1) providing that a lawyer was responsible for costs was to be made unless the lawyer was given a reasonable opportunity to make representations to the court - Streisfield was not given that opportunity and therefore the orders against him had to be set aside - See paragraphs 150 to 157.

Barristers and Solicitors - Topic 851

Duty to court - Liability for costs - For conduct of trial - [See Barristers and Solicitors - Topic 848.1 ].

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 of Barbour's property by way of adverse possession or, alternatively, a prescriptive easement or right-of-way - Barbour appealed, asserting that the trial judge's exclusion of evidence, including transcripts from earlier proceedings, created trial unfairness for, and demonstrated the judge's bias against, Barbour - The Ontario Court of Appeal stated that "The test for reasonable apprehension of bias is a high one. Mr. Barbour has not met the high threshold to establish bias, which requires that 'an informed person, viewing the matter realistically and practically - and having thought the matter through - [would] conclude ...that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly' ... There are no particulars of bias alleged against the trial judge other than a very vague statement in Mr. Barbour's factum that the trial judge's pre-trial and mid-trial rulings demonstrate a bias in favour of the possessory claimant. ... I would not accept this ground of appeal. None of the rulings indicates bias on the trial judge's part against Mr. Barbour. Essentially, in complaining that she ruled against him and that the rulings were incorrect, Mr. Barbour is seeking to re-litigate these issues. Neither of these complaints supports his allegation of bias. ... Further, while it was unfortunate that the trial judge initially misconstrued the scope of the consent order concerning the documents and transcripts to be admitted, her explanation was reasonable, and she provided the parties with the opportunity to make further submissions about the issue before she made her final decision. ... Moreover, Mr. Barbour has not shown how the omission of these materials from the trial has caused him any trial unfairness or prejudice. In particular, his evidence from previous proceedings was not materially different from the Agreed Statement of Facts admitted in the present trial. As a result, it cannot be said that Mr. Barbour was not given a fair opportunity to put forward his position at trial or that, if the materials had been admitted, the outcome would have been different." - See paragraphs 136 to 141.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 592 ].

Estoppel - Topic 1324

Estoppel in pais (by conduct) - Acquiescence or encouragement - Proprietary estoppel - Barbour owned Part 2 of a parcel of land - Part 2 included part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island - Bailey owned Tiny Island - During the period when the water level was low enough, Bailey and her predecessors in title travelled to Tiny Island mostly by foot and sometimes by motor vehicle on a path over the isthmus - During the period when Tiny Island had been completely surrounded by water and walking or driving over the isthmus was impossible, Bailey and her predecessors travelled to Tiny Island from the beach of Part 2 by boat or by wading through the water - Bailey and her family also used the beach for recreational purposes - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 by way of adverse possession or, alternatively, a prescriptive easement over Part 2 on the basis of, inter alia, proprietary estoppel - The doctrine of proprietary estoppel applied where: (1) the Baileys improved their own land, but not Barbour's land; (2) Barbour could not have missed the Baileys making those improvements; (3) the Baileys' conduct made it clear that they believed that they had every right to travel over and to use Part 2; and (4) permitting Barbour to now rely on a strict application of his legal title would be unconscionable - The judge found that the Baileys were unilaterally mistaken about the extent of their legal rights in relation to Part 2 - The Ontario Court of Appeal held that proprietary estoppel did not apply - The Baileys' mistaken belief about their ownership of Part 2 was the product of their own failure to make appropriate inquiries - The judge correctly found that the Baileys' mistake was unilateral - Barbour was unaware of their mistaken belief - He did not encourage the improvements of the path and isthmus that the Baileys' undertook and he did not induce them to undertake the improvements they made to the cottage on Tiny Island - In light of that, the judge erred in concluding that Barbour's silence when the Baileys were making their improvements meant that he had encouraged their acts, such that his conduct in later asserting his legal rights was so "unconscionable, inequitable or unjust" as to invoke proprietary estoppel - See paragraphs 116 to 127.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 of Barbour's property by way of adverse possession or, alternatively, a prescriptive easement or right-of-way - Barbour appealed, asserting that based on a voir dire, the trial judge should not have qualified Brubacher, a surveyor specializing in collecting and analyzing spatial data, as an expert witness in any field - The Ontario Court of Appeal rejected the assertion - The trial judge properly exercised her role as gatekeeper - Her reasons demonstrated that she was aware of the relevant criteria for the qualification and admission of expert evidence - She carefully considered Brubacher's qualifications and the areas in which Bailey sought to have him qualified as an expert - She was alert to the limits of Brubacher's expertise and expressly restricted his expert qualification and the ambit of his testimony to within those identified limits - See paragraphs 142 and 143.

Real Property - Topic 5609

Title - Extinguishment, prescription and adverse possession - Adverse possession and prescription - General principles - Evidence and proof - Barbour owned Part 2 of a parcel of land - Part 2 included part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island - Bailey owned Tiny Island - In the summer and on weekends throughout the year, Bailey and her predecessors in title would enter and exit Part 2 and carry on recreational and maintenance activities on Part 2 - A trial judge held that Bailey had demonstrated adverse possession - The Ontario Court of Appeal allowed Barbour's appeal - It was open to the trial judge to conclude that the activities of Bailey and her predecessors at the time that they used Part 2 were "open, notorious, constant, continuous and peaceful" - The court also accepted for the purposes of its analysis that it was open to the judge to infer that the owners of Tiny Island intended to exclude all others from possession of Part 2 - The court had previously held that the inconsistent use criterion did not apply in cases of mutual mistake - Assuming, without deciding, that the same principle applied in cases of honest unilateral mistake, the judge nonetheless erred in holding that Bailey had effectively excluded Barbour from his own property - The court reached that conclusion for three reasons - First, the judge impliedly reversed the burden of establishing effective exclusion by suggesting that Barbour had to prove that he had not been dispossessed - Second, the judge failed to appreciate that a true owner did not have to exercise the same degree of control over his property as an adverse possession claimant had to demonstrate - The holder of paper title was regarded as being in constructive possession of the entire property when in actual possession of just a part of the property - Fairly trivial acts of dominion by a true owner would usually suffice - Third, even where the inconsistent use test did not apply, the effective exclusion of the true owner throughout the 10 year period remained a requirement to establish adverse possession - The actions of Bailey and her predecessors did not constitute an ouster of Barbour, who also used Part 2 - See paragraphs 32 to 52.

Real Property - Topic 5609.1

Title - Extinguishment, prescription and adverse possession - Adverse possession and prescription - General principles - Inconsistent use test - [See Real Property - Topic 5609 ].

Real Property - Topic 5632

Title - Extinguishment, prescription and adverse possession - Possession - Constructive possession - [See Real Property - Topic 5609 ].

Real Property - Topic 5646

Title - Extinguishment, prescription and adverse possession - Possession - Possessory title - Establishment of - [See Real Property - Topic 5609 ].

Real Property - Topic 5682

Title - Extinguishment, prescription and adverse possession - Open possession - What constitutes - [See Real Property - Topic 5609 ].

Real Property - Topic 5686

Title - Extinguishment, prescription and adverse possession - Notorious possession - General - What constitutes - [See Real Property - Topic 5609 ].

Real Property - Topic 5691

Title - Extinguishment, prescription and adverse possession - Exclusive possession - General - [See Real Property - Topic 5609 ].

Real Property - Topic 5705

Title - Extinguishment, prescription and adverse possession - Continuity of possession - What constitutes "continuous possession" - [See Real Property - Topic 5609 ].

Real Property - Topic 5751

Title - Extinguishment, prescription and adverse possession - Adverse possession - General - What constitutes - [See Real Property - Topic 5609 ].

Real Property - Topic 5882

Title - Extinguishment, prescription and adverse possession - Evidence - Burden of proof - [See Real Property - Topic 5609 ].

Real Property - Topic 5884

Title - Extinguishment, prescription and adverse possession - Evidence - Presumption of possession in favour of owner of land - [See Real Property - Topic 5609 ].

Real Property - Topic 7003

Easements, licences and prescriptive rights - General principles - Uses which may constitute an easement - The Ontario Court of Appeal, in reviewing the general principles concerning prescriptive easements, stated that "To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or right-of-way: i. There must be a dominant and servient tenement; ii. The dominant and servient owners must be different persons; iii. The easement must be capable of forming the subject matter of a grant; and iv. The easement must accommodate - that is, be reasonably necessary to the better enjoyment of - the dominant tenement. ... With respect to the fourth criterion, what is 'reasonably necessary will depend on the nature of the property and the purpose of the easement. See [Depew v. Wilkes et al. (2002, ONCA)] ... In Depew v. Wilkes, ... this court confirmed that the reasonable necessity requirement for a prescriptive easement is fact-specific and must be applied in a flexible manner .... However, not every use will be 'reasonably necessary' for the purposes of establishing a right to an easement. There must be a connection between the easement and the normal enjoyment of the dominant tenement, as opposed to a personal right belonging to the dominant tenement owner ... Examples of uses that courts have found to be 'reasonably necessary' usually involve a very practical purpose, such as parking spaces or driveways ... This is reinforced by the fact that in order to be capable of forming the subject matter of a grant (the third criterion listed above), easement rights must not be ones of mere recreation and amusement; the rights in issue must be of utility and benefit to the dominant tenement ..." - See paragraphs 56 to 59.

Real Property - Topic 7006

Easements, licences and prescriptive rights - General principles - Equitable easement - [See Estoppel - Topic 1324 ].

Real Property - Topic 7008

Easements, licences and prescriptive rights - General principles - Nature of easement - [See Real Property - Topic 7003 ].

Real Property - Topic 7018

Easements, licenses and prescriptive rights - Creation - General - Requirement of dominant and servient tenements - [See Real Property - Topic 7003 ].

Real Property - Topic 7034

Easements, licences and prescriptive rights - Creation by implication of law - Estoppel - [See Estoppel - Topic 1324 ].

Real Property - Topic 7056

Easements, licences and prescriptive rights - Creation by prescription - Requirement of use for statutory period - The Ontario Court of Appeal, in reviewing the general principles concerning prescriptive easements, stated that "In addition to the above criteria, a claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years. ... Specifically, the use as of right of the person seeking to establish an easement cannot be at the will and pleasure of the owner of the property over which the easement or right-of-way is sought to be established. Instead, the use must be as if the claimant had the right to the easement or right-of-way. ... Acquiescence by the owner of the servient property to the use of the person seeking to establish an easement must be more than good neighbourliness. In those instances where the owner of the servient tenement can readily be taken to know of the notorious use of his property, if he makes no objection, then his acquiescence to that use, sufficient to establish a prescriptive title, can readily be inferred ... Finally, to acquire a prescriptive easement under the Real Property Limitations Act, a claimant's use must be established to run for 20 years immediately before 'some action wherein the claim or matter to which such period relates was or is brought into question': s. 32" - See paragraphs 60 to 63.

Real Property - Topic 7056

Easements, licences and prescriptive rights - Creation by prescription - Requirement of use for statutory period - Barbour owned Part 2 of a parcel of land - Part 2 included part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island - Bailey owned Tiny Island - During the period when the water level was low enough, Bailey and her predecessors in title travelled to Tiny Island mostly by foot and sometimes by motor vehicle on a path over the isthmus - During the period when Tiny Island had been completely surrounded by water and walking or driving over the isthmus was impossible, Bailey and her predecessors travelled to Tiny Island from the beach of Part 2 by boat or by wading through the water - Bailey also carried on recreational and maintenance activities on Part 2 - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 by way of adverse possession or, alternatively, a prescriptive easement or right-of-way - Barbour appealed - With respect to the alternate conclusion, Barbour asserted that his 1995 objection to the Baileys' use of his property interrupted the running of any 20 year period - The Ontario Court of Appeal rejected Barbour's argument - For the purposes of ss. 31 and 32 of the Real Property Limitations Act, Barbour's 1995 objection did not serve to interrupt the Baileys' continuous use because they did not submit or acquiesce to it - Rather, they immediately disagreed with his objection and continued openly and peacefully to assert what they mistakenly thought was their right to use Part 2 - See paragraphs 64 to 67.

Real Property - Topic 7056

Easements, licences and prescriptive rights - Creation by prescription - Requirement of use for statutory period - Barbour owned Part 2 of a parcel of land - Part 2 included part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island - Bailey owned Tiny Island - During the period when the water level was low enough, Bailey and her predecessors in title travelled to Tiny Island mostly by foot and sometimes by motor vehicle on a path over the isthmus - During the period when Tiny Island had been completely surrounded by water and walking or driving over the isthmus was impossible, Bailey and her predecessors travelled to Tiny Island from the beach of Part 2 by boat or by wading through the water - Bailey also carried on recreational and maintenance activities on Part 2 - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 by way of adverse possession or, alternatively, a prescriptive easement or right-of-way - Barbour appealed - The Ontario Court of Appeal held that, with respect to the alternate conclusion, it was open to the trial judge to find that the Bailey and her family, along with her predecessors in title, carried out continuous, uninterrupted, open, and peaceful use of the beach and isthmus for the requisite 20 year period - However, the judge erred in concluding that Bailey had proven that the former owners' and her family's recreational use of the beach and isthmus were reasonably necessary to their enjoyment of Tiny Island, and that Barbour had acquiesced to such use - Barbour's silence about the recreational use demonstrated neighbourly goodwill, not acquiescence - The judge therefore erred in concluding that Bailey had acquired an easement over the entirety of Part 2 through the recreational use of the beach and isthmus - See paragraphs 71 to 79.

Real Property - Topic 7056

Easements, licences and prescriptive rights - Creation by prescription - Requirement of use for statutory period - Barbour owned Part 2 of a parcel of land - Part 2 included part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island - Bailey owned Tiny Island - During the period when the water level was low enough, Bailey and her predecessors in title travelled to Tiny Island mostly by foot and sometimes by motor vehicle on a path over the isthmus - During the period when Tiny Island had been completely surrounded by water and walking or driving over the isthmus was impossible, Bailey and her predecessors travelled to Tiny Island from the beach of Part 2 by boat or by wading through the water - Bailey also carried on recreational and maintenance activities on Part 2 - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 by way of adverse possession or, alternatively, a prescriptive easement or right-of-way - Barbour appealed - With respect to the alternate finding, Barbour asserted that the use made of the path by the Tiny Island owners was seasonal, sporadic or infrequent and that it was for a temporary or seasonal purpose - The Ontario Court of Appeal held that the fact that the owners used the path during the summers and on weekends and holidays did not preclude their acquisition of an easement or right-of-way over the path - The acts necessary to establish continuous use depended on the type of property - For cottage property, seasonal and weekend use was consistent with the type of continuous use an owner would make of the property and therefore satisfied the criterion of continuous use - It was open to the judge to conclude that for a 20-year period, Bailey and her predecessors in title made continuous, uninterrupted, open, and peaceful use of the path over Part 2, including the isthmus when it was above water, and that use was not permissive in its nature - Barbour's failure to object to that use until 1995 did not amount to his tacit permission out of "good neighbourliness" - This was not simply occasional use, but a path that the owners regularly and routinely took whenever they travelled by foot to or from Tiny Island - Barbour's silence constituted acquiescence to such use - There was no evidence that he gave permission to the owners to use the path, that the owners sought his permission, or, that the use of the path was the product of established custom on the part of all the neighbouring cottagers - See paragraphs 80 to 86.

Real Property - Topic 7056

Easements, licences and prescriptive rights - Creation by prescription - Requirement of use for statutory period - Barbour owned Part 2 of a parcel of land - Part 2 included part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island - Bailey owned Tiny Island - During the period when the water level was low enough, Bailey and her predecessors in title travelled to Tiny Island mostly by foot and sometimes by motor vehicle on a path over the isthmus - During the period when Tiny Island had been completely surrounded by water and walking or driving over the isthmus was impossible, Bailey and her predecessors travelled to Tiny Island from the beach of Part 2 by boat or by wading through the water - Bailey also carried on recreational and maintenance activities on Part 2 - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 by way of adverse possession or, alternatively, a prescriptive easement or right-of-way - Barbour appealed - With respect to the alternate finding, Barbour asserted that the judge erred in failing to follow a decision under the Boundaries Act respecting his title and to give effect to the law of accretion - In particular, he asserted that she failed to consider the ambulatory boundaries of Part 2 and the reversion to the Crown of the isthmus when submerged under water precluded the acquisition of an easement - The Ontario Court of Appeal rejected the argument - During the periods when the boundaries ambulated and the isthmus was under water, the owners of Tiny Island continued regularly to pass by foot over the path and then wade over the area of the submerged isthmus to reach the island - The ambulatory boundaries and status as Crown land of the isthmus when under water did not affect the continuous use that the owners of Tiny Island made of the path over Part 2 - See paragraphs 87 to 89.

Real Property - Topic 7056

Easements, licences and prescriptive rights - Creation by prescription - Requirement of use for statutory period - Barbour owned Part 2 of a parcel of land - Part 2 included part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island - Bailey owned Tiny Island - During the period when the water level was low enough, Bailey and her predecessors in title travelled to Tiny Island mostly by foot and sometimes by motor vehicle on a path over the isthmus - During the period when Tiny Island had been completely surrounded by water and walking or driving over the isthmus was impossible, Bailey and her predecessors travelled to Tiny Island from the beach of Part 2 by boat or by wading through the water - Bailey also carried on recreational and maintenance activities on Part 2 - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 by way of adverse possession or, alternatively, a prescriptive easement or right-of-way - Barbour appealed - The Ontario Court of Appeal held that, with respect to the trial judge's alternate conclusion, the evidence accepted by her did not establish any continuous 20-year period of the use of the path on Part 2 by motor vehicle - There were various extended periods that the isthmus was under water and travel by motor vehicle ceased - The fact that the former owners of the Island continuously travelled by foot over the path to reach the Island from the beach on Part 2 did not give Bailey a right to travel on that path by motor vehicle when their vehicular use of the path had not been continuous for an uninterrupted period of 20 years - The change of use from pedestrian traffic to vehicular traffic substantially increased and altered the burden on Barbour's property - Further, vehicle traffic over the path only substantially increased in intensity after the Baileys' acquired ownership of the Island - See paragraphs 91 to 102.

Real Property - Topic 7057

Easements, licences and prescriptive rights - Creation by prescription - Nature and extent of right acquired - [See sixth Real Property - Topic 7056 ].

Real Property - Topic 7060

Easements, licenses and prescriptive rights - Creation by prescription - Conditions precedent - [See Real Property - Topic 7003 ].

Real Property - Topic 7061

Easements, licenses and prescriptive rights - Creation by prescription - Sufficiency of use - [See fourth Real Property - Topic 7056 ].

Real Property - Topic 7063

Easements, licenses and prescriptive rights - Creation by prescription - Requirement of use for benefit of dominant tenement - [See Real Property - Topic 7003 ].

Real Property - Topic 7063

Easements, licenses and prescriptive rights - Creation by prescription - Requirement of use for benefit of dominant tenement - Barbour owned Part 2 of a parcel of land - Part 2 included part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island - Bailey owned Tiny Island - During the period when the water level was low enough, Bailey and her predecessors in title travelled to Tiny Island mostly by foot and sometimes by motor vehicle on a path over the isthmus - During the period when Tiny Island had been completely surrounded by water and walking or driving over the isthmus was impossible, Bailey and her predecessors travelled to Tiny Island from the beach of Part 2 by boat or by wading through the water - Bailey also carried on recreational and maintenance activities on Part 2 - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 by way of adverse possession or, alternatively, a prescriptive easement or right-of-way - Barbour appealed - The Ontario Court of Appeal, in reviewing the trial judge's alternate conclusion, held that the owners' use by foot of the path was reasonably necessary to the better enjoyment of their property - The fact that an alternative route existed, including water access by boat from Bailey's registered right-of-way, did not preclude a finding that their pedestrian use of Barbour's property was reasonably necessary for the better enjoyment of their property - Such pedestrian access was connected with the normal enjoyment of the cottage property - See paragraph 90.

Real Property - Topic 7068

Easements, licenses and prescriptive rights - Creation by prescription - Bars (permission, etc.) - [See first, third and fourth Real Property - Topic 7056 ].

Real Property - Topic 7080

Easements, licences and prescriptive rights - Rights of way - Way of necessity - General - [See Real Property - Topic 7003 and third Real Property - Topic 7056 ].

Real Property - Topic 7080

Easements, licences and prescriptive rights - Rights of way - Way of necessity - General - Barbour owned Part 2 of a parcel of land - Part 2 included part of an isthmus that, during periods of lower water levels, joined the beach of Part 2 with Tiny Island - Bailey owned Tiny Island - During the period when the water level was low enough, Bailey and her predecessors in title travelled to Tiny Island mostly by foot and sometimes by motor vehicle on a path over the isthmus - During the period when Tiny Island had been completely surrounded by water and walking or driving over the isthmus was impossible, Bailey and her predecessors travelled to Tiny Island from the beach of Part 2 by boat or by wading through the water - They also carried on recreational and maintenance activities on Part 2 - The trial judge found that Bailey had acquired possessory title over the entirety of Part 2 by way of adverse possession or, alternatively, a prescriptive easement or right of way over Part 2 on the basis of, inter alia, necessity - Barbour appealed - The Ontario Court of Appeal held that an easement of necessity did not arise in the circumstances - While the trial judge correctly found that Bailey's predecessors in title never relied exclusively on boat access to reach Tiny Island, water access to the Island was nonetheless possible and was used by the previous owners - Although the use of the path by foot was reasonably necessary for the owners' enjoyment of their property, that did not prove necessity because the Island was accessible by water, as well as by walking along the shoreline - That the owners of the Island had long preferred to walk or drive over Part 2 and found that route quicker and more convenient than travelling on their registered right-of-way and then by boat to reach Tiny Island, or else on foot along the shoreline, did not give rise to an easement of necessity - It could not be said that absent an easement over Part 2, Bailey would be left without a legally enforceable means of accessing the Island - See paragraphs 107 to 115.

Cases Noticed:

Masidon Investments Ltd. et al. v. Ham (1984), 2 O.A.C. 147; 45 O.R.(2d) 563 (C.A.), refd to. [para. 35].

Fletcher v. Storoschuk (1981), 35 O.R.(2d) 722 (C.A.), refd to. [para. 36].

Teis v. Ancaster (Town) (1997), 103 O.A.C. 4; 35 O.R.(3d) 216 (C.A.), refd to. [para. 43].

Marotta v. Creative Investments Ltd., [2008] O.T.C. Uned. 728; 69 R.P.R.(4th) 44 (Sup. Ct.), refd to. [para. 43, footnote 2].

Shennan v. Szewczyk, [2010] O.A.C. Uned. 595; 96 R.P.R.(4th) 190; 2010 ONCA 679, refd to. [para. 47].

Depew v. Wilkes et al. (2002), 162 O.A.C. 23; 60 O.R.(3d) 499 (C.A.), refd to. [para. 56].

Carlini Estate v. Hammoud, [2011] O.A.C. Uned. 260; 2011 ONCA 285, refd to. [para. 58].

Ellenborough Park, Re, [1956] 1 Ch. 131 (C.A.), refd to. [para. 59].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 108 O.R.(3d) 1; 2011 ONCA 764, refd to. [para. 59].

Henderson et al. v. Volk et al. (1982), 35 O.R.(2d) 379 (C.A.), refd to. [para. 60].

1043 Bloor Inc. v. 1714104 Ontario Inc. (2013), 302 O.A.C. 266; 359 D.L.R.(4th) 688; 2013 ONCA 91, refd to. [para. 60].

Mason v. Morrow (1998), 114 O.A.C. 194 (C.A.), refd to. [para. 61].

Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al. (1968), 69 D.L.R.(2d) 195, refd to. [para. 78].

Lanty v. Ontario (Minister of Natural Resources), [2006] O.T.C. 47; 89 L.C.R. 161 (Sup. Ct.), affd. (2007), 61 R.P.R.(4th) 161; 2007 ONCA 759, refd to. [para. 83].

Schwark et al. v. Cutting (2010), 261 O.A.C. 262; 316 D.L.R.(4th) 105; 2010 ONCA 61, refd to. [para. 116].

Luloff v. Kaiser et al., [2002] O.A.C. Uned. 127; 2002 CanLII 44992 (C.A.), refd to. [para. 128].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 137].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 137].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 143].

Moore v. Getahun et al. (2015), 329 O.A.C. 363; 125 O.R.(3d) 321; 2015 ONCA 55, leave to appeal denied, [2015] S.C.C.A. No. 119, refd to. [para. 158].

Counsel:

Jeffrey E. Streisfield, for the appellant;

Izaak de Rijcke and Robert Fenn, for the respondent;

Sean Dewart, for the moving party/appellant on the costs appeal, Jeffrey E. Streisfield.

These appeals were heard on June 16, 2015, by MacFarland, Rouleau and Roberts, JJ.A., of the Ontario Court of Appeal. Roberts, J.A., released the following judgment for the court on February 4, 2016.