Kaminskas v. Storm

Kaminskas v. Storm

The Court allowed the appeal because the evidence established that the predecessor owners of the servient tenement had given permission (including a written 1991 consent) for the use; the application judge erred by failing to apply s.32's 'period next before' requirement and by treating prior permission as ineffective. Permission defeated both the statutory claim (the 1991 letter fell within the relevant period) and any lost modern grant claim (oral permission precluded user 'as of right'), so the prescriptive easement was not established and the application was dismissed.

Citation
2009 ONCA 318
Parties
Applicant (respondent): John Michael Kaminskas; Respondent (appellant): Larry Storm; Respondent (appellant): Joan Storm
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
20 April 2009
Procedural Posture
Civil / Appeal
Outcome
Appeal allowed; judgment below set aside; application dismissed.
Legal Topics
Prescriptive Easement, Lost Modern Grant, Permission/consent, Calculation of Limitation Period
Source Language
English
Property Law Easements Civil Procedure Prescriptive Easement Lost Modern Grant Permission/consent Calculation of Limitation Period

Case Brief

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Parties

John Michael Kaminskas

Applicant (respondent)

Larry Storm

Respondent (appellant)

Joan Storm

Respondent (appellant)

Procedural Posture

Civil / Appeal

Legal Issues

  1. 1 Whether a prescriptive easement existed over the encroaching portion of the driveway
  2. 2 Whether permission or consent defeated a statutory or common‑law prescriptive claim
  3. 3 How to calculate the relevant period under Real Property Limitations Act ss.31‑32 ('period next before')

Ratio Decidendi

The Court allowed the appeal because the evidence established that the predecessor owners of the servient tenement had given permission (including a written 1991 consent) for the use; the application judge erred by failing to apply s.32's 'period next before' requirement and by treating prior permission as ineffective. Permission defeated both the statutory claim (the 1991 letter fell within the relevant period) and any lost modern grant claim (oral permission precluded user 'as of right'), so the prescriptive easement was not established and the application was dismissed.

Court Disposition

Appeal allowed; judgment below set aside; application dismissed.

Orders

  • Appeal allowed
  • Judgment below set aside