Hearsay evidence not enough to establish prescriptive easement

The Ontario Superior Court of Justice recently ruled against a landowner seeking a prescriptive easement over property owned by the Township of Guelph/Eramosa for lack of evidence.  The applicant, 1718351 Ontario Inc., had owned its property for only 4 years.  The establishment of an easement by prescription (the passage of time) required evidence of use of the land in question for a period of no less than 20 years.  The applicant relied upon statutory declarations that had been registered on title by previous owners which purported to establish the use of the Township property by the previous owners of the applicant's lands.  The Township objected to the admission of this evidence on the basis that it is hearsay (out of court statements tendered for the truth of their contents - i.e. tendered to show that it is true that the previous owners made use of the Township property).

Hearsay evidence may be admissible in certain circumstances if it falls within a traditional exception to the hearsay rule or if it meets the tests of reliability and necessity (the "principled approach").  Mr. Justice Hourigan found that the proposed evidence did not fall within any established exception and did not meet either of the tests of reliability or necessity:

Turning first to the issue of necessity, there was nothing in the record before me indicating the current whereabouts of the individuals who executed the statutory declarations. Counsel asked me to assume that given their likely ages at the time of executing the documents that the declarants are deceased. However, there is no evidence before me to make such an assumption.  Nor was there any evidence of even the most cursory efforts to locate the declarants.  Moreover, there was no explanation proffered regarding why Ms Tomlinson could not have sworn an affidavit. I conclude, therefore, that the applicant has not established necessity.

The applicant has also not met its onus of establishing the reliability of the statements in issue. There is no explanation provided as to why the statutory declarations were completed in the first place, nor is there a description of the context in which they were made.  We do know that they were executed some years after the time when the owner of the Applicant Parcel and the Police Village of Rockwood could not reach an agreement on an easement. This timing makes their reliability more suspect given that they appear to have been made during an on-going negotiation between the parties. Similarly, the context in which the statement was made by Ms Tomlinson to Mr. Clarke is nowhere described.

Given the lack of supporting evidence, the application was dismissed.  Read the decision at: 1718351 Ontario v. Township of Guelph/Eramosa.