Drainage Tribunal decides it has no jurisdiction to rule on prescriptive easement rights

In a recent drainage appeal case, the Agriculture, Food and Rural Affairs Tribunal has decided that it does not have jurisdiction to determine property and prescriptive rights; this jurisdiction rests exclusively with the Ontario Superior Court of Justice pursuant to Sections 97 and 100 of the Courts of Justice Act and, on a limited basis, with the Director of Titles on an application to convert a property to Land Titles Absolute under the Land Titles Act.

One of the appellants in the drainage case alleged that he had acquired a prescriptive right in the form of an easement.  The easement, it was alleged, allowed for the construction of a built up roadway crossing of the natural watercourse on the appellant's property.  The building up dammed the water, causing drainage problems.

The Tribunal noted that it is a creature of statute (a creation of the Province) and has no inherent jurisdiction or authority.  It's only jurisdiction in this case arose from the Drainage Act and, in the absence of a decision of the Superior Court determining the prescriptive rights alleged (or in the absence of title documents demonstrating those rights), the Tribunal has no jurisdiction to determine whether a prescriptive right exists.

Read the decision at: David Adams Municipal Drain.

Update: Cottagers keep right-of-way over farm, but have duty to repair

I posted in early 2011 about a decision of the Ontario Court of Appeal concerning a lane used by cottagers located on a neighbouring farm (see March 18, 2011).  The Court of Appeal upheld the decision of a Superior Court Judge which ruled that certain cottage owners in Northumberland County had acquired a prescriptive easement over the laneway. The owner of the farm property does not use the lane and did not want to pay for upgrades to the lane. 

In a further ruling, Ontario Superior Court Justice Peter Lauwers has ruled that the cottagers (the owners of the "dominant tenement") "have the duty to repair Sunnybrae Lane that is imposed on them by the common law".  He also ruled that, "the duty is flexible and relates to the conditions on the ground as they appear from time to time."

In other words, the cottagers can use the lane, but it is their responsibility, and not the responsibility of the farm owner, to repair the lane when necessary.

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.

Court of Appeal says trial judge was right to find cottagers may use farm lane

The Ontario Court of Appeal has upheld the decision of a Superior Court Judge which ruled that certain cottage owners in Northumberland County had acquired a prescriptive easement over a laneway on an adjacent farm property.  The owner of the farm property does not use the lane and does not want to pay for upgrades to the lane.  The municipality has refused to take responsibility for the lane until the farm owner upgrades the lane to municipal standards.  The cottage owners have not been prepared to contribute to the upgrades.

The farm owner had commenced a claim against the Municipality and the cottagers, asking that there be an order that no prescriptive easement had arisen and asking for an injunction to prevent use of the lane during the winter unless the cottagers made the necessary upgrades.

The Court of Appeal did not agree with the farm owner that the trial judge had made any reversible errors.  In dismissing the appeal, the Court awarded $15,000 in costs to the cottagers (who had sought $26,000).  The Municipality did not participate in the appeal.

Read the decision at: Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality).

Court determines cottagers have right-of-way over farm lane

In 1913, Charles C.C. Huycke owned a farm in the Township of Percy, in the County of Northumberland on the east side of the Trent River, across from Huycke’s Island.  On March 31, 1913, he registered Plan 104 described as a “plan of lots”, which we would today recognize as a plan of subdivision.  It is described on its face as: “Plan of Sunnybrae-on-Trent, a Summer Resort De Luxe as laid out on Lot No. 20, Con. 13, in the Tp. of Percy, 1913.” Plan 104 was executed by the Reeve and Township Clerk: “We certify that the above plan or map was prepared according to the direction of the municipality of the Township of Percy and in accordance with the provisions of the “Registry Act.””

Plan 104 created 40 lots and some access corridors and rights-of-way.  To the east of the lots is a right-of-way described on Plan 104:  “Farm Lane, a right-of-way, 30 feet in width (for all ordinary vehicles) to give access to Lots numbered 1 to 40 (inclusive) and to Lots A, B and C to the public high-way between Cons.12 & 13.” The right-of way terminated to the north at the south end of Lot 1, which was substantially larger than the other lots and was bounded to the north by the unopened road allowance between Concessions 13 and 14. The configuration shows that the owner of Lot 1 was intended to control access to that road should the allowance be opened.

A recent action before the Ontario Superior Court of Justice addressed the respective rights and interests of the parties in a laneway or roadway known as “Sunnybrae Lane” that is located to the east of the cottage lots and is the means by which the cottagers access their properties.  The plaintiff in the action, Sunnybrae Springbrook Farms Inc., has legal title to most of the laneway, and wanted the municipality to assume it as a municipal road so that the plaintiff could avoid the costs and liabilities of ownership. The municipality refused to assume the road until it was upgraded to municipal standards at great expense.  It took the position in its Statement of Defence that “Trent Hills has no legal interest in the right-of-way and bears no responsibility for upgrading, repairing or altering the road and lacks the jurisdiction to do so. Trent Hills states that it is the responsibility of the owners of the dominant tenements and /or the land owners to ensure that the private road is maintained in accordance with their wishes and desires.” The plaintiff farm did not use the road and did not want to pay for its upgrading. The cottagers, who appear to be the road’s main if not only users, were not prepared to contribute to its upgrading, although they asserted that they do some work on it from time to time. A site visit on August 3, 2010 by the court with counsel confirmed this to be true.

In the end, in ruling on a motion for summary judgment, the Court found that the cottagers had acquired a right-of-way by prescription (related to the passage of time) over Sunnybrae Lane.  The Court then referred the issues regarding the repair of Sunnybrae Lane (including who is responsible for the repairs and to what extent) to the trial judge, along with any other issues that survived the summary judgment motion.

Read the decision at: Sunnybrae Springbrook Farms Inc.