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Good afternoon,

Following are the summaries of this week’s civil decisions of the Court of Appeal of Ontario.

There were two property boundary disputes between neighbours decided this week, with different results. Both related to prescriptive easements and the “doctrine of lost modern grant”. The test for getting a prescriptive easement over a neighbour’s land, whether by statute or by the doctrine of lost modern grant is basically the same, and is as follows:

a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land;
the properties cannot be owned by the same person;
the benefit of the easement must be reasonably necessary for the enjoyment of the doMinant tenement; and
there must be 20 or 40 years’ (depending on the facts and whether proceeding under statute or under the lost modern grant doctrine) continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner.
In English v Perras, the Court allowed the appeal and set aside the prescriptive easement that had been found by the application judge. The applicants had not succeeded in proving entitlement to the easement. The effect of the decision was to allow the respondent to keep a fence they had erected in the middle of what had been a shared driveway. On the other hand, in Hunsinger v. Carter, the Court allowed the appeal and expanded the more limited prescriptive easement that had been ordered by the application judge. The Court found that the application judge had erred in determining that the easement was not necessary over the front portion of the disputed area. The test is not whether the prescriptive easement is absolutely necessary in order to gain access, but whether it is necessary to gain “reasonably convenient” access. Continue Reading COURT OF APPEAL SUMMARIES (JULY 16 – JULY 20, 2018)