McClatchie v. Rideau Lakes (Township) et al., (2015) 333 O.A.C. 381 (CA)

• Judge: Doherty, Rouleau and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 06, 2015
• Jurisdiction: Ontario
• Citations: (2015), 333 O.A.C. 381 (CA);2015 ONCA 233

McClatchie v. Rideau Lakes (2015), 333 O.A.C. 381 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.005

David McClatchie and Victoria McClatchie (plaintiffs/respondents/appellants by way of cross-appeal) v. The Corporation of the Township of Rideau Lakes, and Allen Churchill by his Litigation Guardian Alma Churchill and Alma Churchill (defendant/appellant/respondent by way of cross-appeal)

(C58477; 2015 ONCA 233)

Indexed As: McClatchie v. Rideau Lakes (Township) et al.

Ontario Court of Appeal

Doherty, Rouleau and Watt, JJ.A.

April 9, 2015.

Summary:

In 1922, lot 20-5 was subdivided in 38 waterfront lots, one of which was lot 16. The plan created a 40 foot road allowance. However, historically, the owners of lots 16 to 38 had used several gravel roads that ran across lot 20-5. The portion of the road allowance that touched lot 16 was L-shaped, forming the western and southern boundary of the lot. Lot 16 was purchased by the plaintiffs in 2001. Lot 20-5 was currently owned by Churchill. At issue was the plaintiffs' assertion of a claim by adverse possession to the L-shaped road allowance surrounding lot 16 and an easement of necessity to the gravel road over lot 20-5 that they used for access to lot 16.

The Ontario Superior Court granted the plaintiffs ownership of the road allowance and an easement of necessity to the gravel road. Churchill appealed. The plaintiffs cross-appealed, asking the court to remit part of the matter to the trial judge to determine whether the gravel road was an "access road" under the Road Access Act.

The Ontario Court of Appeal allowed Churchill's appeal in part, setting aside the portion of the order below granting the plaintiffs an easement of necessity. It was unnecessary to address the cross-appeal. However, the court declared the road to be an "access road" with the meaning of the Road Access Act.

Real Property - Topic 5609.1

Title - Extinguishment, prescription and adverse possession - Adverse possession and prescription - General principles - Inconsistent use test - In 1922, lot 20-5 was subdivided in 38 waterfront lots, one of which was lot 16 - The plan created a 40 foot road allowance - The portion that touched lot 16 was L-shaped, forming the western and southern boundary of the lot - Lot 16 was purchased by the plaintiffs in 2001 - Lot 20-5 was currently owned by Churchill - At issue was the plaintiffs' assertion of a claim by adverse possession to the L-shaped road allowance surrounding lot 16 - The trial judge granted the plaintiffs ownership of the road allowance, finding that the plaintiffs' and their predecessor in title's possession of the land for the 10 year period preceding its conversion to Land Titles (1998 to 2008) was "open, notorious, constant, continuous, peaceful and exclusive" - This satisfied the "inconsistent use" test - The Ontario Court of Appeal dismissed Churchill's appeal - The trial judge's findings provided a solid basis for his conclusion that the whole of the L-shaped road allowance was occupied and used by the plaintiffs to the exclusion of Churchill - A September 1998 agreement between Churchill and the plaintiffs' predecessor in title was not an acknowledgement of Churchill's title and had not interrupted the period of adverse possession - See paragraphs 29 to 46.

Real Property - Topic 5705

Title - Extinguishment, prescription and adverse possession - Continuity of possession - What constitutes "continuous possession" - [See Real Property - Topic 5609.1 ].

Real Property - Topic 5720

Title - Extinguishment of title - Prescription and adverse possession - Continuity of possession - Interruption of continuity - General - [See Real Property - Topic 5609.1 ].

Real Property - Topic 5751

Title - Extinguishment, prescription and adverse possession - Adverse possession - General (incl. what constitutes) - [See Real Property - Topic 5609.1 ].

Real Property - Topic 6093

Title - Extinguishment, prescription and adverse possession - Defences - Acknowledgement of owner's title by adverse claimants - [See Real Property - Topic 5609.1 ].

Real Property - Topic 7080

Easements, licences and prescriptive rights - Rights of way - Way of necessity - General - In 1922, lot 20-5 was subdivided in 38 waterfront lots, one of which was lot 16 - The plan created a 40 foot road allowance - However, historically, the owners of lots 16 to 38 had used several gravel roads that ran across lot 20-5 - Lot 16 was purchased by the plaintiffs in 2001 - Lot 20-5 was currently owned by Churchill - At issue was the plaintiffs' assertion of an easement of necessity to the gravel road over lot 20-5 that they used for access to lot 16 - The trial judge granted the easement - The Ontario Court of Appeal allowed Churchill's appeal - Easements of necessity were presumed to have been granted when land was sold that was inaccessible except by passing over adjoining land retained by the grantor - Necessity was assessed at the time of the original grant - Here, it was obvious that, in 1922, access to lot 16 was to be over the road allowance - The fact that the owners of lots 16 to 38 had long preferred to drive over lot 20-5 did not prove necessity in 1922 - See paragraphs 47 to 56.

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. 9].

Teis v. Ancaster (Town) (1997), 103 O.A.C. 4; 35 O.R.(3d) 216 (C.A.), refd to. [para. 11].

Goode v. Hudon, [2005] O.T.C. 352; 30 R.P.R.(4th) 202 (Sup. Ct.), refd to. [para. 12].

1043 Bloor Inc. v. 1714104 Ontario Inc. (2013), 302 O.A.C. 266; 114 O.R.(3d) 241; 2013 ONCA 91, refd to. [para. 12].

Tasker v. Badgerow, [2008] O.A.C. Uned. 699; 2008 ONCA 202, refd to. [para. 13].

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 39].

Nelson et al. v. 1153696 Alberta Ltd. (2011), 510 A.R. 153; 527 W.A.C. 153; 46 Alta. L.R.(5th) 113; 2011 ABCA 203, leave to appeal denied (2012), 435 N.R. 381 (S.C.C.), refd to. [para. 48].

Dobson v. Tulloch et al. (1994), 17 O.R.(3d) 533 (Gen. Div.), affd. [1997] O.A.C. Uned. 373; 33 O.R.(3d) 800 (C.A.), refd to. [para. 48].

Counsel:

Joseph Y. Obagi, for the appellant/respondent by way of cross-appeal;

Robert J. De Toni, for the respondents/appellants by way of cross-appeal.

This appeal and cross-appeal were heard on January 6, 2015, by Doherty, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal. On April 9, 2015, Rouleau, J.A., delivered the following judgment for the court.