Case: Hydro One Networks Inc. v. Shiner, 2023 ONCA 346 (CanLII)
Keywords: prescriptive easement; Real Property Limitations Act, R.S.O. 1990, c. L. 15
Hydro One Networks Inc. (“Hydro One”) applies for a declaration that it holds a permanent easement by prescription over a portion of road on the Respondent’s land. The road gives Hydro One access to transmission lines and towers built in the 1930s, and over which an easement was granted and registered in 1948 and 1950 respectively. (See paras. 1-2).
The issue before the Application Judge (Parfett J.): whether Hydro One’s use is of sufficient nature and duration to meet the test for prescriptive easement prior to registration of the lands under the Land Titles Act, R.S.O. 1990, c. L.5. (See para. 2). The Application Judge declines to make the declaration. However, the Court of Appeal (Doherty, Feldman, and Trotter JJ.A.) allows the appeal, with costs. (See paras. 3, 60).
At paras. 38-40 of their reasons, the Court of Appeal outlined the legal requirements for a prescriptive easement.
The starting point of the analysis is s. 31 of the Real Property Limitations Act, which sets a 20-year or 40-year period for the creation of prescriptive easements, and the “doctrine of lost modern grant”. (See para. 38; see also Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266 at para. 6).
According to the Court of Appeal, “a prescriptive easement can be established after 20 years of continuous, uninterrupted, open and peaceful use without objection by the owner of the servient tenement if it was as of right, meaning without permission of the owner of the servient tenement.” (See para. 40).
Citing Carpenter v. Doull-MacDonald, 2017 ONSC 7560 at paras. 42-47, the Court noted that the owner of the “servient tenement” must have “knowingly acquiesced to the establishment of the easement, not just granted permission or a license to use the land”. Importantly, after 40 years, the Court of Appeal says the right is “absolute unless permission to use the land was given in writing during the 40 years”. (See para. 40).
Applying this framework to the present case, the Court of Appeal found that “[t]he weight of the evidence” before the Application Judge was of “a pattern of use…which was open, peaceful and uninterrupted from 1966 to 2018” – all of which was sufficient to satisfy the “continuous” criterion within the meaning of the jurisprudence. (See para. 52).
Considering the available evidence, the Court of Appeal noted that an unsworn letter tendered by the Respondent was not admissible evidence: “[m]erely marking a document an exhibit to an affidavit does not convert it into admissible evidence, particularly where it is tendered for the truth of its contents”. (See para. 54, citing L.M.U. v. R.L.U., 2004 BCSC 95 at para. 32). By way of contrast, the Court of Appeal observed that Hydro One’s evidence was sworn and not challenged on cross-examination. (See para. 54). Ultimately, the Court of Appeal concluded the prescriptive easement was established on the record before the Court. (See para. 56).
The Court of Appeal allowed the appeal, granted a declaration that Hydro One had a permanent prescriptive easement over the lands in question, and ordered that the Respondent remove any obstacles restricting access (together with a permanent injunction regarding same). The Court declined to direct the involvement of the Ontario Provincial Police or local police. (See paras. 58-59).
Counsel for the Appellant: Reeva Finkel, Brendan Jones, and Ines Ferreira (Blaney McMurtry LLP, Toronto)
Counsel for the Respondent: Marc Kemerer (Devry Smith Frank LLP, North York)