Kaminskas v. Storm, (2009) 248 O.A.C. 297 (CA)

• Judge: Rosenberg, Feldman and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 18, 2008
• Jurisdiction: Ontario
• Citations: (2009), 248 O.A.C. 297 (CA);2009 ONCA 318

Kaminskas v. Storm (2009), 248 O.A.C. 297 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. AP.061

John Michael Kaminskas (applicant/respondent) v. Larry Storm and Joan Storm (respondents/appellants)

(C46886; 2009 ONCA 318)

Indexed As: Kaminskas v. Storm

Ontario Court of Appeal

Rosenberg, Feldman and Blair, JJ.A.

April 20, 2009.

Summary:

The driveway to the applicant's home encroached three feet on the respondents' titled property. A dispute arose. The applicant sought a declaration that he was entitled to a right-of-way over the driveway and for injunctive relief.

The Ontario Superior Court, in a decision reported at [2007] O.T.C. Uned. 253, found that the applicant was entitled to a prescriptive easement over the disputed portion of the land and that he would be entitled to an injunction preventing the respondents from interfering with his use of the property. The respondents appealed.

The Ontario Court of Appeal allowed the appeal, set aside the judgment below, and dismissed the application.

Real Property - Topic 7028

Easements, licenses and prescriptive rights - Creation by express grant - "Lost modern grant" - The Ontario Court of Appeal stated that, in law, there were three ways or methods in which an easement could be acquired by prescription: prescription at common law, prescription by the doctrine of lost modern grant, and prescription by statute (Real Property Limitations Act) - The court discussed each of the methods - The court also set out the characteristics of prescriptive easements by lost modern grant and statute and the differences between them - See paragraphs 20 to 36.

Real Property - Topic 7028

Easements, licenses and prescriptive rights - Creation by express grant - "Lost modern grant" - The driveway to the applicant's home encroached three feet on the respondents' titled property - A dispute arose - The applicant sought a declaration that he was entitled to a right-of-way over the driveway - The application judge found that the applicant was entitled to a prescriptive easement over the disputed portion of the land - The Ontario Court of Appeal allowed the respondents' appeal - Consent or permission operated to defeat a claim to a prescriptive right by statute or the doctrine of lost modern grant - While the applicant and his predecessors in title had exclusive and continuing use of the driveway for parking purposes for over half a century, the evidence was clear that they used the driveway in that fashion with the permission (oral or written) of the prior owners of the respondents' property - They did not use the driveway "as of right" - Further, the application judge erred in the manner in which she calculated the 20 year period required for a prescriptive easement pursuant to ss. 31 and 32 of the Real Property Limitations Act - See paragraphs 37 to 48.

Real Property - Topic 7055

Easements, licenses and prescriptive rights - Creation by prescription - General - [See first Real Property - Topic 7028 ].

Real Property - Topic 7056

Easements, licenses and prescriptive rights - Creation by prescription - Requirement of use for statutory period - [See both Real Property - Topic 7028 ].

Real Property - Topic 7068

Easements, licenses and prescriptive rights - Creation by prescription - Bars (permission, etc.) - [See second Real Property - Topic 7028 ].

Cases Noticed:

Abell v. Woodbridge (Village) and York (County) (1917), 39 O.L.R. 382 (H.C.), revd. (1919), 45 O.L.R. 79 (C.A.), refd to. [para. 21].

Henderson et al. v. Volk et al. (1982), 35 O.R.(2d) 379 (C.A.), refd to. [para. 22].

Rose v. Krieser (2002), 157 O.A.C. 252; 58 O.R.(3d) 641 (C.A.), refd to. [para. 23].

MacRae v. Levy, [2005] O.T.C. 68; 28 R.P.R.(4th) 291 (Sup. Ct.), refd to. [para. 26].

Burrows v. Lang, [1901] 2 Ch. 502, refd to. [para. 30].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), vol. 2, p. 936 [para. 21].

Gale, The Law of Easements (17th Ed. 2002), p. 179 [para. 24, footnote 3]; para. 4-82 [para. 30].

Megarry, Robert E., and Wade, H.W.R., The Law of Real Property (6th Ed.) (2000 Update), p. 1138, fn. 76 [para. 32].

Mew, Graeme, The Law of Limitations (2nd Ed. 2004), p. 237 [para. 26].

United Kingdom, Law Commission, Easements, Covenants and Profits à Prendre, Consultation Paper No. 186 (2008), p. 80, para. 4.213 [para. 33].

United Kingdom, Law Reform Commission, Acquisition of Easements and Profits by Prescription, Report No. 14 (1966), Cmnd. 3100, para. 40 [para. 25, footnote 4].

Counsel:

Arthur Robert Camporese and Karen Power, for the appellants;

Nicholas F. Ferguson, for the respondent.

This appeal was heard on November 18, 2008, before Rosenberg, Feldman and Blair, JJ.A., of the Ontario Court of Appeal. Blair, J.A., delivered the following decision for the Court of Appeal on April 20, 2009.