Defina v. Antunes

Defina v. Antunes

The trial judge's factual findings that any agreement related only to the fence and that any initial permission was not renewed were supported by evidence; accordingly a prescriptive easement was established and there was no basis for appellate interference, including with the costs decision.

Citation
2008 ONCA 710
Parties
Plaintiff/appellant: Giovanni Defina; Plaintiff/appellant: Caterina Defina; Defendant/respondent; Plaintiff on Counterclaim: Claudia Sofia Antunes; Defendant/respondent; Plaintiff on Counterclaim: Manuel Pires Rei; Defendant/respondent: John Doe #1; Defendant/respondent: John Doe #2; Defendant/respondent: John Doe #3; Defendant/respondent: John Doe #4; Defendant by Counterclaim: Lisa Del'Casale; Defendant by Counterclaim: Giuseppe Del'Casale
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
17 October 2008
Procedural Posture
Civil / Appeal
Outcome
Appeal dismissed
Legal Topics
Prescriptive Easement, Permission/license, Costs
Source Language
English
Property Law Civil Procedure Appeals Prescriptive Easement Permission/license Costs

Case Brief

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Parties

Giovanni Defina

Plaintiff/appellant

Caterina Defina

Plaintiff/appellant

Claudia Sofia Antunes

Defendant/respondent; Plaintiff on Counterclaim

Manuel Pires Rei

Defendant/respondent; Plaintiff on Counterclaim

John Doe #1

Defendant/respondent

John Doe #2

Defendant/respondent

John Doe #3

Defendant/respondent

John Doe #4

Defendant/respondent

Lisa Del'Casale

Defendant by Counterclaim

Giuseppe Del'Casale

Defendant by Counterclaim

Procedural Posture

Civil / Appeal

Legal Issues

  1. 1 Whether a prescriptive easement was established over the disputed lands
  2. 2 Whether the Del'Casales gave permission or a licence for use of the lands or renewed any permission
  3. 3 Whether the trial judge erred in law or fact such that the appellate court should intervene

Ratio Decidendi

The trial judge's factual findings that any agreement related only to the fence and that any initial permission was not renewed were supported by evidence; accordingly a prescriptive easement was established and there was no basis for appellate interference, including with the costs decision.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed.
  • Costs to the respondents fixed in the amount of $11,000.00 inclusive of disbursements and GST.