Condos and Castles Realty Inc. v. Janeve Corp.

Condos and Castles Realty Inc. v. Janeve Corp.

The Court inferred acquiescence from long open, continuous vehicular use, documentary and witness evidence and absence of any evidence of objection or positive permission by the servient owner; once acquiescence was established the evidentiary burden shifted to the owner to prove permission, which was not done, therefore a prescriptive easement was established and the appeal must be allowed.

Citation
2015 ONCA 466
Parties
Applicant (appellant): Condos and Castles Realty Inc.; Respondent (respondent): Janeve Corp.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
23 June 2015
Procedural Posture
Civil Appeal / Court of Appeal Decision on Appeal From Application Judge of Superior Court of Justice
Outcome
Appeal allowed; application judge's judgment set aside; declaration of easement granted; costs awarded to appellant.
Legal Topics
Prescriptive Easement, Right of Way, Acquiescence Vs Permission, Evidentiary Burden
Source Language
English
Property Law Civil Procedure Real Property Limitation Prescriptive Easement Right of Way Acquiescence Vs Permission Evidentiary Burden

Case Brief

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Parties

Condos and Castles Realty Inc.

Applicant (appellant)

Janeve Corp.

Respondent (respondent)

Procedural Posture

Civil Appeal / Court of Appeal Decision on Appeal From Application Judge of Superior Court of Justice

Legal Issues

  1. 1 Whether predecessors in title acquired a prescriptive easement over a private laneway
  2. 2 Whether the use was as of right or by licence/permission
  3. 3 Whether the evidentiary burden shifted to the servient owner once claimant proved long open vehicular use

Ratio Decidendi

The Court inferred acquiescence from long open, continuous vehicular use, documentary and witness evidence and absence of any evidence of objection or positive permission by the servient owner; once acquiescence was established the evidentiary burden shifted to the owner to prove permission, which was not done, therefore a prescriptive easement was established and the appeal must be allowed.

Court Disposition

Appeal allowed; application judge's judgment set aside; declaration of easement granted; costs awarded to appellant.

Orders

  • Set aside the judgment of the application judge
  • Declare that appellant has an easement (right-of-way) over the northerly portions of Janeve Corp.'s properties identified by PINs 21244-0307 (LT), 21244-0305 (LT) and 21244-0306 (LT) to a width equal to the laneway to the west