• Document:
  • Date: 2019

Morray Investments Limited et al. v. Zerwas et al.

[Indexed as: Morray Investments Ltd. v. Zerwas]

 

66 O.R. (3d) 521

[2003] O.J. No. 3389

Court File No. 01-CV-220084CM

Ontario Superior Court of Justice

Cameron J.

August 21, 2003

Real Property — Adverse possession — Prescriptive right-of- way — Actual or constructive knowledge of use of access route — Effect of conversion from Registry Act to Land Titles Act on claim for prescriptive easement — Genuine issues to be tried — Motion for summary judgment dismissed — Limitations Act, R.S.O. 1990, c. L.15, ss. 31, 32 — Land Titles Act, R.S.O. 1990, c. L.5, ss. 44(1)3, 44(3), 45, 46(1), 51(1).

The plaintiffs were the owners of 14 abutting properties on Eglinton Ave. East, just west of Kennedy Road in what is now the City of Toronto, that constituted a strip mall of retail stores built in 1959. In 1973, the defendants, who were residents of Germany, purchased a building built in 1971 and 1972 at the southwest corner of Eglinton Ave. that abutted the plaintiffs’ lands. At the rear of the defendant’s property, there was an access route to and from Kennedy Road to the rear of the plaintiffs’ property. In 1995, pursuant to s. 32 of the Land Titles Act (“LTA”), the plaintiffs’ and the defendants’ lands were transferred by administrative conversion from the Registry Act. The defendants’ title was qualified by the rights of any person who would, but for the LTA, be entitled to the land through prescription. No notice of the application for registration under the Land Titles Act was served on any of the plaintiffs pursuant to s. 3(3) of Ontario Regulation 690 under the LTA.

In the autumn of 1996, the defendants acquired actual knowledge that the plaintiffs’ tenants were using the access route. In 1998, the defendants built a chain-link fence along the boundary of their property and the plaintiffs’, but left an opening for the access route. In March 1999, the defendants contacted the plaintiffs and contested the use of the access route. In the autumn of 1999, the defendants erected but left open a gate for the access route. In February 2001, the defendants threatened to lock the gate unless the plaintiffs agreed on a usage fee. When no agreement was reached, on April 19, 2001, the defendants locked the gate. In November 2001, the plaintiffs sued for a declaration of an easement by prescriptive right under ss. 31 and 32 of the Limitations Act over the access route for vehicles of the plaintiffs, their tenants, and of suppliers of goods and services.

The defendants and their property manager denied knowledge of or acquiescence to the use of the access route by the plaintiffs’ tenants. The plaintiffs moved for summary judgment. For the purposes of the motion, it was acknowledged that the defendants had no actual knowledge of the use of the access route before 1996; however, the plaintiffs submitted that the defendants had constructive knowledge of the use since 1972 when the defendants first inspected their property.

Held, the motion for summary judgment should be dismissed.

To establish a right-of-way by prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open and peaceful use of the land, without objection by the owner, for 20 years by an owner or tenant or a person acting under his or her direction or control. If, however, the use is by permission or the neighbourliness of the owner, the use cannot create an easement. The party claiming a prescriptive right-of-way has the onus of proving that the owner of the servient tenement had actual or constructive knowledge of the enjoyment of the alleged right.

In the immediate case of a motion for summary judgment, the legal issue of the commencement date for the 20-year period had to be determined before the court [page522] could address whether a summary judgment could be granted. Sections 44, 45, 46(1) and 51(1) of the LTA were relevant to this issue. Based on a plain reading of these provisions, and for the purpose only of assessing the evidence on the motion, each of the plaintiffs had to establish that they had acquired a prescriptive easement of at least 20 years before the date of first registration under the LTA. On this point, the evidence of the plaintiffs was not so clear as to not require a trial.

Further, the issue of whether the defendants had constructive knowledge should be left for a trier of fact. There were serious issues to be tried. Accordingly, the motion for summary judgment should be dismissed.

Cases referred to

Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222, 17 C.P.C. (4th) 219 (C.A.), revg (1997), 33 O.R. (3d) 615 (Gen. Div.); Caldwell v. Elia (2000), 30 R.P.R. (3d) 295, [2000] O.J. No. 661 (QL), 129 O.A.C. 379 (C.A.); Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.); Doran v. Briggs, [1997] O.J. No. 1224 (QL) (C.A.); Garfinkel v. Kleinberg and Kleinberg, [1955] O.R. 388, [1955] 2 D.L.R. 844 (C.A.); Gutierrez v. Tropic International Ltd. (2002), 63 O.R. (3d) 63, 33 B.L.R. (3d) 18, [2002] O.J. No. 3079 (QL), 162 O.A.C. 247 (C.A.), affg [2001] O.J. No. 3659 (QL) (S.C.J.); Henderson v. Volk (1982), 35 O.R. (2d) 379, 132 D.L.R. (3d) 690 (C.A.); Hodkin v. Bigley (1998), 20 R.P.R. (3d) 9, [1998] O.J. No. 4844 (QL), 49 M.P.L.R. (2d) 260 (C.A.); Meditrust Healthcare Inc. v. Shoppers Drug Mart (2002), 61 O.R. (3d) 786, 220 D.L.R. (4th) 611, 28 B.L.R. (3d) 163, [2002] O.J. No. 3891 (QL), 165 O.A.C. 147 (C.A.), supp. reasons [2003] O.J. No. 1829 (QL) (C.A.); Rose v. Krieser (in Trust) (2002), 58 O.R. (3d) 641, 212 D.L.R. (4th) 123, 9 R.P.R. (4th) 199, [2002] O.J. No. 1384 (QL), 157 O.A.C. 252 (C.A.); Smith v. Feld Concrete Foundations Ltd. (2000), 30 R.P.R. (3d) 314, [2000] O.J. No. 548 (QL), 129 O.A.C. 377 (C.A.), affg [1999] O.J. No. 910 (QL), 95 O.T.C. 284 (Gen. Div.); Temma Realty Co. Ltd. v. Ress Enterprises Ltd., [1968] 2 O.R. 293, 69 D.L.R. (2d) 195 (C.A.); Trafford v. Dowling, [1988] O.J. No. 1121 (QL) (H.C.J.); Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank (1999), 44 O.R. (3d) 97, 173 D.L.R. (4th) 468, 28 E.T.R. (2d) 113 (C.A.), revg in part (1998), 22 E.T.R. (2d) 106 (Ont. Gen. Div.); Union Lighterage Company v. London Graving Dock, [1902] 2 Ch. 557, [1900-3] All E.R. Rep. 234, 71 L.J. Ch. 791, 87 L.T. 381, 18 754 (C.A.) Statutes referred to

Land Titles Act, R.S.O. 1990, c. L.5, ss. 32, 44, 45, 46, 51 Limitations Act, R.S.O. 1990, c. L.15, ss. 31, 32 Registry Act, R.S.O. 1990, c. R.20 Rules and regulations referred to  Forms, Records and Procedures, R.R.O. 1990, Reg. 690, s. 3(3) Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 20, 20.04

MOTION for summary judgment.

Francis J.F. Handy, for plaintiffs/moving parties. Kathryn Podrebarac, for defendants/respondents.

        1. CAMERON J.: — The plaintiffs move for summary judgment under Rule 20 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] on claims for: [page523]

  1. (a) a declaration of an easement by way of prescriptive right under s. 31 and s. 32 of the Limitations Act, R.S.O. 1990, c. L.15 over the rear of the defendants’ property to and from Kennedy Road for vehicles of the plaintiffs and their tenants and of the suppliers of goods and services to them; and

(b) an order requiring the defendants to permit those vehicles to use the rear of the defendants’ lands for access to and from the rear of the plaintiffs’ lands and Kennedy Road; or

  1. an interlocutory mandatory injunction that the gate now barring access to the plaintiffs’ lands from the defendants’ lands be opened and access to and from the plaintiffs’ lands to and from Kennedy Road be permitted pending trial.

Alleged Dominant Tenement

        1. The plaintiffs own 14 legally distinct abutting properties with 22 separate municipal addresses and seven different owners. The following chart lists each of the addresses starting with the most easterly building which abuts the building on the defendants’ lands.

Address Current Owner Date Title Acquired From Whom Acquired
2389 Eglinton Ave. E. (“Eglinton”) 2387 Eglinton 476073 Ontario

Ltd. (“476073”)

476073

July 15,

November

1981

23,

Charles and Theresa Spring

Gerald Lionel

1981 Fenkell
2383

2381

Eglinton

Eglinton

476073

Morray

July 30, 1984

March 11, 1965

Sandra Shapiro

Solmor

Lena

Builders

Investments Ltd. (“Solmor”) Ltd. (“Morray”) 2379 Eglinton Granville March 11, 1965 Solmor Holdings Inc. (“Granville”)

2377

Eglinton Morray

March

11, 1965

Solmor

2375

Eglinton Granville

March

11, 1965

Solmor

2373 Eglinton David Freeman June 21, 1989 Isobel Joyce Wolcox

2371 Eglinton

David

Lap-Tak September 12, Triumph

Chan &

Wan-Mei 1991 Investment

Tse Corporation

2369 Eglinton

Frank,

Gennaro January 15, Dimitrios

& Luigi

Bruno 1965 German
2367 Eglinton Murray and Sam

April

30,

1965

Ruth Yamada
Spindel
2365 Eglinton Morray

March

11,

1965

Solmor
2361-2363 Granville

March

11,

1965

Solmor
Eglinton
2359 Eglinton Morray

March

11,

1965

Solmor
2353-2357 Granville

March

11,

1965

Solmor
Eglinton
2347-2351 Morray

March

11,

1965

Solmor
Eglinton

[page524]

        1. The plaintiffs’ properties constitute a strip mall of retail stores built in 1959, on the south side of Eglinton Ave. East, just west of Kennedy Rd. On the second floors of the buildings are residential apartments and offices. All the properties are occupied by tenants. There is a paved parking area on the north ends of the plaintiffs’ lands in front of the buildings. At the rear of the buildings, on the south end of the plaintiffs’ lands, is an open area with parking spaces, small loading docks and rear access doors. Some of the buildings have signs identifying the occupant.

Alleged Servient Tenement

        1. On January 31, 1973, the defendants purchased a three- storey building erected in 1971 and 1972, on a previously vacant lot at the southwest corner of Eglinton Ave. East and Kennedy Rd. The building abutted on its west end, the building on the 476073 lands. The building had retail stores on the ground level, including a grocery store and two restaurants, and offices on the upper floors.

        1. There is a paved parking area to the north and the west of the building on the defendants’ lands. At the rear or south end of the building there is an extension of part of the building which encloses a loading dock for trucks delivering goods. South of the building, and west of the west wall of the loading dock is a paved area, between Kennedy Rd. on the east and the 476073 lands on the west. At the [south] end of the paved area and the defendants’ lands are spaces to park about 15 cars facing south. The rear ends of those parked cars are about 20 to 25 feet south of the loading dock wall. West of the west wall of the loading dock are spaces to park five or six more cars facing north.

        1. The plaintiffs assert an easement for vehicles by way of prescriptive right over the paved area between the south wall of the loading dock and the south end of the spaces for cars parked to the west of the loading dock, and the north end of the parked cars at the south end of the property between Kennedy Rd. and the west side of the defendants’ property (the “Access Route”) based on use since the construction of the defendants’ building.

        1. The defendants are residents of Germany but visit Canada once a year and visit the property several times during each visit. Most of their time is spent inside the building. The office of the property manager has always been off-site. There is no evidence of property manager visits prior to 1989. Between 1989 and 1993, the property manager visited the site once a year or as required. After 1993, the property manager visited the site as required but did not pay any attention to uses by neighbours. [page525]

        1. The defendants and their property manager deny knowledge of, or acquiescence to, the use of the Access Route by the plaintiffs’ tenants. The plaintiffs acknowledge, for the purposes of this motion, that the defendants had no actual knowledge of the use of the Access Route by the plaintiffs or their tenants prior to 1996. However, the plaintiffs do argue that the defendants had constructive knowledge of such use since 1972, when the defendants first inspected the property.

Alternate Access

        1. In January 1966, the owners of the Sea View Apartments property, abutting the west end of the plaintiffs’ lands, granted in writing to the then owners of the plaintiffs’ lands a right-of-way from the south side of Eglinton Ave. East to the rear of the Morray Investments property, the most westerly of the plaintiffs’ lands. The right-of-way agreement, which was registered on title, stated that it . . . shall terminate upon the establishment of a right-of- way extending easterly from the easterly limit of the Grantor’s lands along the southerly limit of the Grantees’ lands to Kennedy Road . . .

        1. In the autumn of 1996, the access to the rear of the plaintiffs’ lands from Eglinton Ave. East, via the Sea View Apartments lands, was barred by a fence on the line between the Sea View lands and the Morray lands at the west end of the plaintiffs’ lands. This left the Access Route as the only access for vehicles to the rear of the plaintiffs’ lands.

Transfer to Land Titles

        1. The lands of Sea View Apartments, the plaintiffs and the defendants were transferred by administrative conversion under s. 32 of the Land Titles Act, R.S.O. 1990, c. L.5 (“LTA”) from the Registry Act, R.S.O. 1990, c. R.20, on June 5, 1995. The lands of the defendants were subject to the following qualification noted on the register:

Subject, on first registration under the Land Titles Act to:

— Subsection 44(1) of the Land Titles Act, except . . . ;

— The Rights of any person who would, but for the Land Titles Act be entitled to the land or any part of it through length of adverse possession, prescription, misdescription or boundaries settled by convention;

. . .

        1. No notice of the application for registration under the LTA was served on any of the plaintiffs as contemplated in s. 3(3) of Regulation 690 under the LTA, R.R.O. 1990. [page526]

Actual Knowledge

        1. In the autumn of 1996, the defendants acquired actual knowledge of passage by the plaintiffs, their tenants and their suppliers, including garbage trucks, over the Access Route at the rear of the defendants’ lands. In 1998, the defendants built a chain-link fence along the property line at the rear of their lands between themselves and the plaintiffs, where concrete curbs dividing the properties had been located, but left the opening about 20 feet wide which had existed with the curbs for vehicles to continue to access the rear of the plaintiffs’ lands from Kennedy Road.

Objection

        1. On March 9, 1999, the defendants made their first contact with the plaintiffs on the issue, contesting the use of the Access Route and calling a meeting with the plaintiffs to discuss the costs of its granting access over the Access Route to the plaintiffs.

        1. In the autumn of 1999, the defendants erected, but left open, a gate in the space in the fence built in 1998.

        1. In February 2001, the defendants threatened to lock the gate unless the parties could agree on an amount to be paid to the defendants for use of the Access Route. Negotiations ensued. No agreement was reached. The defendants closed and locked the gate on April 19, 2001.

        1. This action was commenced November 6, 2001.

        1. The defendants have counterclaimed for damages, for damage to locks and the gate on three occasions of attempted forced entry by the plaintiffs. They are not seeking judgment on these issues now.

Law

Rule 20: Summary judgment

        1. Summary judgment procedure is used to weed out those cases where it is demonstrated clearly that a trial is unnecessary and would serve no purpose. Summary judgment may only be granted where the moving party establishes that there is no genuine issue of a material fact requiring a trial for resolution of that issue of a material fact. If there is evidence capable of supporting a defence, a trial must be held. The summary procedure of a motion is unsuitable for assessing credibility, weighing conflicting evidence, making findings of controverted facts or drawing factual inferences, other than those situations where only one inference is [page527] reasonably available. These issues require a trial, exposure of the evidence to testing by cross-examination and determination by a trier of fact. See Meditrust Healthcare Inc. v. Shoppers Drug Mart (2002), 61 O.R. (3d) 786, [2002] O.J. No. 3891 (QL) (C.A.), at para. 23; Gutierrez v. Tropic International Ltd. (2002), 63 O.R. (3d) 63, [2002] O.J. No. 3079 (QL) (C.A.), at para. 11; Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222 (C.A.), at pp. 172-74 O.R.; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 20 R.P.R. (3d) 207, 164 D.L.R. (4th) 257 (Ont. C.A.), at paras. 19, 20, 29 and 126; Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank (1999), 44 O.R. (3d) 97, 173 D.L.R. (4th) 468 (C.A.), at p. 110 O.R.

        1. In order to determine whether a fact is material, I must consider the applicable law.

Limitations Act

        1. Sections 31 and 32 of the Limitations Act are as follows:

    1. No claim that may be made lawfully at common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

    1. Each of the respective periods of years mentioned in sections 30 and 31 shall be deemed and taken to be the period next before some action wherein the claim or matter to which such period relates was or is brought into question, and no act or other matter shall be deemed an interruption within the meaning of those sections, unless the same has been submitted to or acquiesced in for one year after the person interrupted has had notice thereof, and of the person making or authorizing the same to be made.

        1. In order to establish a right-of-way by prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open and peaceful use of the land, without objection by the owner, for 20 years by an owner or tenant or a person acting under his direction and control. In addition, if the use of the property is by permission of the owner or by an act of neighbourliness, the use cannot create [an] easement. Hodkin v. Bigley, [1998] O.J. No. 4844 (QL), 20 R.P.R. (3d) 9 (C.A.), at para. 9, citing [page528] Henderson v. Volk (1982), 35 O.R. (2d) 379, 132 D.L.R. (3d) 690 (C.A.), at pp. 382-83 O.R.; Temma Realty Co. Ltd. v. Ress Enterprises Ltd., [1968] 2 O.R. 293, 69 D.L.R. (2d) 195 (C.A.).

        1. The foundation of the law of prescription is the legal fiction that the use originated with a grant of the right claimed but that the grant has been lost. On the other hand, grant of permission negatives a claimant’s assertion that its use was as of right and constitutes a defence to the claim: See Rose v. Krieser (in Trust) (2002), 58 O.R. (3d) 641, 212 D.L.R. (4th) 123 (C.A.), at para. 36; Henderson v. Volk, at pp. 382-83 O.R.

        1. Our courts require clear evidence of continuous use and acquiescence to establish a title by prescriptive right because it is a title, based originally on trespass, which gives a benefit to the dominant tenement by depriving the owner of the servient tenement of the exclusive possession of its property without compensation: See Henderson v. Volk, at p. 383 O.R. For the same reasons, the same degree of clarity ought also [to] apply for the full period of 20 years.

        1. There are four characteristics of an easement:

  1. there must be a dominant tenement and a servient tenement;

  1. the easement must accommodate the dominant tenement;

  1. the dominant tenement and the servient tenement must be owned by different persons; and

  1. a right-of-way over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

See Hodkin v. Bigley, at para. 10; Smith v. Feld Concrete Foundations Ltd., [1999] O.J. No. 910 (QL), 95 O.T.C. 284 (Gen. Div.), at para. 9, affd [2000] O.J. No. 548 (QL), 30 R.P.R. (3d) 314 (C.A.).

        1. By specifying that the easement must accommodate the dominant tenement, the courts mean that the easement must be reasonably necessary for the better enjoyment of the dominant tenement, rather than merely conferring an advantage upon the owner and rendering his ownership more valuable: Rose v. Krieser, at para. 46; Caldwell v. Elia (2000), 30 R.P.R. (3d) 295, [2000] O.J. No. 661 (QL) (C.A.), at paras. 9 and 10.

        1. The defendants argue that the Sea View Apartments’ grant of right-of-way subsists until a court finds that the plaintiffs have an access to Kennedy Road over the Access Route and accordingly, the easement the plaintiffs claim over the Access Route is [page529] not reasonably necessary for the better enjoyment of the plaintiffs’ lands.

        1. In my opinion, this is a question of fact which is not clear on the evidence before me and should be determined by a trier of fact: see Caldwell v. Elia. However, if the Sea View grant was terminated because of acquisition of an easement over the Access Route, the issue of accommodation has been clearly satisfied.

        1. The defendants argue that the fourth requirement, namely, that the easement be capable of forming the subject matter of a grant, has not been satisfied. The location of the right-of-way must be clear: Doran v. Briggs, [1997] O.J. No. 1224 (QL) (C.A.); Smith v. Feld Concrete, at para. 13.

        1. There is no evidence before me to suggest that the easement claimed is anywhere other than the Access Route, namely, a way for vehicles about 20 feet wide from the driveway ramp in the curb on the west side of Kennedy Road to the west limits of the defendants’ lands, and between the south wall of the loading ramp and the north end of cars parked facing south at the southerly limit of the defendants’ lands. The aerial photos from May 1971 to 2001 are clear. There is no material variation except for occasional parked vehicles and garbage bins along the south wall of the loading dock from 1971 to 1978, which still left a space wide enough for cars to pass. The physical arrangement of the south wall of the loading dock and the north end of the spaces for parked cars permits no other route. The entrance to the east end of the plaintiffs’ lands from the Access Route is the present opening in the fence which is in approximately the same location as the opening in the curbstones, marking the boundary between the 476073 lands and the defendants’ lands prior to the erection of the fence. I find this objection without merit.

Measuring the 20-Year Period

        1. A court should not determine a legal issue if there is a genuine issue of fact requiring a trial. Rule 20.04(4) provides: 20.04(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly . . .

        1. There is a legal issue here which must be determined before the court can address the issue of the sufficiency of the evidence to avoid a trial. That issue is the date from which the 20-year period is to be calculated. Section 32 of the Limitations Act provides that the period [page530] . . . shall be deemed and taken to be the period next before some action wherein the claim or matter to which such period relates was or is brought into question . . .

        1. The “action” could be

  1. the commencement of this action, namely November 6, 2001;

  1. the closing and locking of the gate, namely April 19, 2001;

  1. the defendants’ letter threatening to lock the gate, namely February 2001; or

  1. the meeting called by the defendants to discuss sharing of its costs to keep open an access to and from the plaintiffs’ properties.

        1. However, several sections of the LTA impact on this issue of the date from which the 20-year period must be measured. Section 44(1)3 of the LTA provides:

44(1) All registered land, unless the contrary is expressed on the register, is subject to such of the following liabilities, rights and interests as for the time being may be subsisting in reference thereto, and such liabilities, rights and interests shall not be deemed to be encumbrances within the meaning of this Act:

. . . . .

3. Any title or lien that, by possession or improvements, the owner or person interested in any adjoining land has acquired to or in respect of the land.

        1. Section 44(3) of the LTA exempting land from the para. (1)3 is not applicable as no notice of application for registration of the defendants’ lands under the LTA was served on the plaintiffs.

        1. Section 45 of the LTA provides in part:

  1. The first registration of a person as owner of land . . . vests in the person so registered an estate in fee simple in the land . . . free from all estates and interests whatsoever . . . subject to the following:

    1. The encumbrances, if any, entered on the register.

    1. The liabilities, rights and interests that are declared for the purposes of this Act not to be encumbrances, unless the contrary is expressed on the register. [See s. 44(1)3 and (3).]

    1. Where the first registered owner is not entitled for the owner’s own benefit to the land registered, then as between the owner and any persons claiming under the owner, any unregistered estates, rights, interests or equities to which such person may be entitled.

        1. Section 46(1) of the LTA provides: 46(1) The registration of a person as first registered owner with a qualified title has the same effect as the registration of such person with an absolute [page531] title, except that registration with a qualified title does not affect or prejudice the enforcement of any estate, right or interest appearing by the register to be excepted.

        1. Section 51(1) of the LTA provides: Despite any provision of this Act, the Limitations Act or any other Act, no title to and no right or interest in land registered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or be deemed to have been acquired heretofore by any length of possession or by prescription.

        1. In my opinion, and for the purpose only of assessing the evidence on this motion, based on a plain reading of these provisions of the LTA and the reservation in the first registration under the LTA, each of the plaintiffs must establish that they had acquired a prescriptive easement of at least 20 years by the date of first registration under the LTA, namely June 5, 1995. There must be clear evidence of continuous, open, uninterrupted and peaceful use of the defendants’ lands for a period of 20 years commencing not later than June 5, 1975, 20 years prior to the first registration under the LTA.

        1. In any event, I am satisfied that any use by the plaintiffs’ tenants after 1996, was with the actual knowledge and consent of the defendants as a neighbourly act.

Clarity of Evidence of Use for 20 Years

        1. Mr. Lorne Shiff has been the non-resident manager of the Morray and Granville properties since 1986. He also manages other properties not constituting part of the plaintiffs’ properties. He has never occupied the plaintiffs’ properties. Mr. Shiff has given his own direct evidence of use of the Access Route by “all the tenants” of all the plaintiffs’ properties as a group. He gave hearsay evidence of use of the Access Route by all the tenants and their suppliers as follows:

  1. Mr. Defeo, a present tenant since 1959;

  1. Mr. Nassell, a tenant from 1966 to 1991;

  1. His father Allan, who is still living, since 1965;

  1. His grandfather Morris since the early 1960s.

        1. Morris Shiff was also involved in the building of the Morray and Sea View properties.

        1. There is no direct evidence from any of the present or former tenants of the Morray or Granville properties. [page532]

        1. There is no evidence from either an owner or a tenant, past or present, in respect of the properties owned by Wan-Mei Tse or David Freedman.

        1. Gerald Fenkell has had an ownership interest in the [476073] lands since 1960. His affidavit contains no evidence respecting the use of the Access Route. It contains evidence of the use of the “Rear Parking Lot” behind the plaintiffs’ lands and of the absence of any barring or blocking of the Access Route prior to 2001. In his cross-examination he did recall that he entered the south end of the defendants’ property from Kennedy Road when he went to the back of the plaintiffs’ lands. He did not recall ever using the Sea View Apartments lands to access the rear of the 476073 lands.

        1. Lars Fenkell has been the non-resident manager of the 476073 property since 1994. He gives some hearsay evidence from his father Gerald which is proven by that affidavit to be an overstatement of what was merely a belief of his father. Lars Fenkell gives evidence of three tenants but that evidence only covers the period from 1994 to the present.

        1. Murray Spindel’s property was occupied by his father Sam, now deceased, from 1961 to 1986. Since then the property has been rented to tenants. He gives direct evidence of the use of the Access Route by himself, his father and other tenants based on two or three visits per week prior to 1987, and occasional visits thereafter. There is no direct evidence from any tenant of Mr. Spindel.

        1. Mr. Bruno and his two brothers were partners in the operation of three or four shoe stores, one of which was in their property from the mid 1960s to 1992. He and his brothers managed this store on a rotating basis. He cannot recall the years when he worked at the store. Since 1992, the property has been rented to tenants. There is no evidence from any tenant. Mr. Bruno used both the Access Route and the Sea View access.

        1. Mr. Bruno also gives by hearsay evidence of use of the Access Route by his brother Gennaro Bruno, and Gennaro’s evidence that the Access Route “was used by others for access to and from the rear parking lot” that the rear parking lot “was used for parking by other tenants, for garbage collection, deliveries, and repair and maintenance, and construction work by hydro and other services[“] and that prior to the gate closing “there had always been continuous, year- round visible use of the route from the Kennedy Road access to the rear parking lot by vehicles going into and out of the rear parking lot both day and night with no interruptions in usage.”

        1. Notwithstanding the absence of any evidence from the defendants to rebut the plaintiffs’ evidence of continuous and [page533] open use for 20 years prior to June 1995, by the occupants of their properties, the plaintiffs retain the burden of establishing such use with evidence sufficiently clear to warrant the imposition of the burden of an easement on the defendants’ lands with respect to each of the 14 properties. The evidence of the plaintiffs contains generalities, much hearsay and many gaps. I am not persuaded that all the hearsay is either necessary or reliable. There is no evidence of use by occupants of two of the alleged dominant tenements except general statements by others respecting “other tenants”.

        1. I am not persuaded that the evidence of the plaintiffs is so clear as to not require a trial on the issue of continuous and open use for 20 years in respect of any of the plaintiffs’ 14 properties. The defendants are entitled to test that evidence by cross-examination and assessment of its credibility and reliability by a trier of fact with respect to the use by the owners and occupants of each of the 14 properties owned by the plaintiffs.

Actual or Constructive Knowledge

        1. The party claiming a prescriptive right-of-way has the onus of proving that the owner of the servient tenement had actual or constructive knowledge of the enjoyment of the alleged right: Trafford v. Dowling, [1988] O.J. No. 1121 (QL) (H.C.J.), at pp. 2 and 4. Only with such knowledge can the defendants be said to have acquiesced in the plaintiffs’ use.

        1. In determining whether such knowledge should be imputed, the party claiming the right-of-way must satisfy the court that an ordinary owner of land diligent in the protection of his interest must have known about the use, or at the very least had a reasonable opportunity to become aware of that use: Trafford v. Dowling at p. 2 citing Union Lighterage Company v. London Graving Dock, [1900-3] All E.R. Rep. 234, [1902] 2 Ch. 557 (C.A.), at pp. 571 and 574 Ch.; Garfinkel v. Kleinberg and Kleinberg, [1955] O.R. 388, [1955] 2 D.L.R. 844 (C.A.), at pp. 393-94 O.R.

        1. The defendants assert that not only did they have no actual knowledge of the use by the plaintiffs’ tenants prior to 1996, but they had no constructive knowledge as they had a very limited opportunity to know of the use of the Access Route. They say that when they saw the property they thought the access to the plaintiffs’ lands was by way of the Sea View Apartments property. Only when the Sea View access was closed did the defendants learn of the use by the plaintiffs’ tenants of the Access Route.

        1. The plaintiffs assert that the defendants had constructive knowledge of the plaintiffs’ tenants’ use of the Access Route based on the physical layout of their respective lands. They point [page534] to the 20-foot wide space in the low concrete curb dividing the properties at the rear of the buildings, loading docks and doors at the rear of the plaintiffs’ buildings, parked cars and spaces for parking cars, advertising of tenant locations at the rear of some of the plaintiffs’ buildings and evidence of heavy use of the Access Route by the plaintiffs and tenants, and the suppliers of goods and services to them.

        1. The issue of whether the defendants ought to have had knowledge of the use of the Access Route by the plaintiffs and their tenants and suppliers is a question of fact which will vary with the circumstances. The plaintiffs ask that I apply an “air of reality” test to the issue of knowledge. That is the function of a trier of fact. Our courts require clear evidence of acquiescence. The defendants resided in Germany and visited the property only several times on their annual visits to Canada. Their property manager visited the site only occasionally prior to 1993.

        1. The plaintiffs must establish the acquisition of an easement to the benefit of each of the 14 distinct properties. The Access Route ought not to bear the burden of use in respect of occupants of a property for which an easement cannot be established.

        1. Prior to 1996, there was access to the plaintiffs’ lands through the Sea View Apartments property. There is evidence of heavy periodic use by truck traffic making deliveries to the defendants’ loading dock and parking of cars by the defendants south and north of the Access Route. There is no evidence before me of the proportion of use of the Sea View property to the use of the Access Route in respect of any of the plaintiffs’ properties prior to 1996.

        1. One of the issues to be determined in this action is whether the standard of constructive knowledge described in Trafford v. Dowling and Garfinkel v. Kleinberg and Kleinberg is an objective standard or whether it is a subjective standard based on the facts of the case, including the overseas residence of the owner of a wholly leased commercial building who has retained an off-site professional property manager. This consideration should be left for a trier of fact. See Temma Realty Co. Ltd. v. Ress Enterprises Ltd. Put shortly, there is a triable factual issue on whether the use by the plaintiffs was open, and a legal issue as to whether such use had to be open to the defendants specifically, or merely to any occupant of the servient tenement.

Interlocutory Injunction

        1. There are clearly serious issues to be tried. There is a serious detriment to the plaintiffs if the Access Route remains blocked and there is a serious burden on the rights of the defendants if [page535] they are required to give access to the plaintiffs. The situation of barred access and consequent inconveniences to the plaintiffs has subsisted for over two years. The action was not commenced until almost seven months after the gate was erected. There was no evidence of a previous motion for an interim or interlocutory injunction which could have been brought on much sooner than this motion. The balance of convenience favours maintenance of the status quo pending trial.

        1. I would recommend a trial at the earliest available date.

Conclusion

        1. I am not satisfied that there is no genuine issue for trial with respect to the plaintiffs’ claims on the issues before me.

        1. The motion is dismissed.

        1. If the parties cannot agree on costs they may address me in writing on the issue. The defendants’ submissions shall be submitted to me within 20 days after release of these reasons and the submissions of the plaintiffs within 15 days thereafter.

Order accordingly.