COURT OF APPEAL FOR ONTARIO

CITATION:
Wang v. Lin, 2013
    ONCA 33

DATE: 20130122

DOCKET: C55582

Doherty, Goudge and Hoy JJ.A.

BETWEEN

Hong Wang (aka Jennifer Wang)

Applicant (Appellant/Respondent
    by way of cross-appeal)

and

Wei Lin

Respondent
    (Respondent/Appellant by way of cross-appeal)

Bryan R. G. Smith and Sarah Conlin, for the
    appellant/respondent by way of cross-appeal

Aaron M. Franks and Roslyn Tsao, for the
    respondent/appellant by way of cross-appeal

Heard: December 14, 2012

On appeal and cross-appeal from the order of Justice Peter
    G. Jarvis of the Superior Court of Justice, dated June 7, 2012, with reasons
  reported at 2012 ONSC 3374.

Hoy J.A.:

OVERVIEW

[1]

This appeal involves contested jurisdiction of the courts of Ontario in
    a family law matter under the
Divorce Act
, R.S.C. 1985, c. 3 (2nd
    Supp.); the
Family Law Act
, R.S.O. 1990, c. F.3 (the
FLA
);
    and the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12 (the
CLRA
).

[2]

The mother, Hong Wang (aka Jennifer Wang), appeals the
    June 7, 2012, order of the motion judge allowing the fathers motion to stay
    her claims under the
Divorce Act
and the
FLA
,

and
    her claims relating to property, on the grounds that the court has no
    jurisdiction under these acts.

[3]

The father, Wei Lin, cross-appeals the motion judges order dismissing
    the fathers motion seeking the return of the two children of the marriage to
    China under s. 40(b)(3) of the
CLRA
.

[4]

For the reasons that follow, I would dismiss the appeal, allow the
    cross-appeal, and return the issue of the appropriate order to be made under s.
    40 of the
CLRA
to the motion judge or another judge of the Superior
    Court in Toronto.

THE BACKGROUND

[5]

The parties were married in China.

[6]

The mother is now approximately 39 years of age. The father is 40. The
    children, who were born in China, are aged approximately 9 and 10.

[7]

The family immigrated to Canada from China in 2005, with the aim of
    acquiring Canadian citizenship. They purchased an expensive home in Toronto,
    and the children attended an independent school in Toronto until their academic
    year ending June 2010.  They spent most of their summers in China.  The mother
    acquired an Ontario drivers licence, and the mother and children obtained
    Ontario health cards. The mother and children obtained Canadian citizenship on
    June 1, 2010.

[8]

The father spent very little time in Canada. He continued to manage the
    familys significant assets in China. He lost his permanent resident status and
    remains a citizen of China.

[9]

The family re-united in China in August 2010, in time for the children
    to commence the September 2010 school year at an international school in
    Beijing. China does not recognize dual citizenship. The mother and children
    entered China on visitors visas, which must be renewed every 90 days.

[10]

The
    mother says the move was not a permanent one: the plan was to stay for two
    years so that the children would become more proficient in Mandarin and the
    father could re-apply for permanent residence status in Canada. The principal
    of the childrens school in Canada and a Canadian friend both confirm that the mother
    told them that they would return to Toronto in two years. The childrens nanny
    also states that in 2010, the father told her of the plan to return to Canada.
    The family kept their fully-furnished Toronto house, which is encumbered, and have
    a bank account in Toronto.

[11]

The
    father, mother, children, and nanny of some seven years, lived in one of the
    three properties owned by the family in Beijing. (According to the mother, the
    father began living in a separate residence in November of 2011; the fathers
    evidence is that he remained at the family home). The childrens maternal
    grandparents lived in another property that the father purchased, and the children
    visited them every one or two weeks. The mother and children returned to Canada
    to visit friends and relatives for several weeks during the summer of 2011.

[12]

In
    April of 2012, the mother travelled to Toronto and filed an application under
    the
Divorce Act
, the
FLA
and the
CLRA
for a divorce,
    child and spousal support, and custody of the children. She also made various
    property claims. At the time that she filed the application, the children were attending
    school in Beijing.

[13]

The
    mother also brought an
ex parte
application before the motion judge
    for a world-wide
Mareva
injunction to freeze the fathers assets. The
    application was granted on April 18, 2012, on the basis that the court had
    jurisdiction under s. 3(1) of the
Divorce Act
. The mother then secured
    an order of the High Court of Justice in the British Virgin Islands that froze
    the fathers substantial corporate assets there. It had the effect of derailing
    the initial public offering of a company in which the father has a substantial
    interest.

[14]

In
    response, the father immediately secured the childrens passports and brought a
    motion to stay the Ontario proceedings based on lack of jurisdiction under
    either the
Divorce Act
or the
FLA
or, alternatively, to set
    aside the
Mareva
injunction on the basis that mother had not provided
    full, fair and frank disclosure in her materials placed before the motion
    judge. That motion was argued on May 8 and 9, 2012.

[15]

On
    May 8, 2012, the father also started family proceedings in China, which include
    a claim for custody.

[16]

While
    the stay motion in Ontario was under reserve, the mother moved the children to Canada,
    without the fathers consent, using newly acquired passports. The mother had
    represented that the childrens passports were stolen and/or lost, and forged
    the husbands signature on the application. Within a day of their return to
    Canada, the mother re-registered the children at their former school, for the
    school year commencing September 2012.

[17]

When
    the father learned that the children were in Toronto, he immediately moved for
    their return to China under s. 40(b)(3) of the
CLRA
.  The motion judge
    heard
viva voce
evidence on this second motion on May 29, 30 and 31,
    2012.

THE LEGAL FRAMEWORK

[18]

The
    jurisdictional tests under the
Divorce Act
, the
FLA
and the
CLRA
are all slightly different. Sections 3(1) and 4(1) of the
Divorce Act
provide as follows:

3(1) Jurisdiction in divorce proceedings

A court in a province has jurisdiction to hear and
    determine a divorce proceeding if either spouse has been ordinarily resident in
    the province for at least one year immediately preceding the commencement of
    the proceeding.

4(1) Jurisdiction in corollary relief proceedings

A court in a province has jurisdiction to hear and
    determine a corollary relief proceeding if

(a)     either
    former spouse is ordinarily resident in the province at the commencement of
    the proceeding; or

(b)     both former spouses accept the
    jurisdiction of the court.

[19]

The
FLA
does not specifically address the question of jurisdiction
simpliciter
.
    Both parties take the position that given the absence of a statutory rule, the
    common law conflicts rule of Canadian private international law  the real and
    substantial connection test  determines whether jurisdiction exists in
    Ontarios courts.

[20]

As
    the Supreme Court recently explained in
Club Resorts Ltd. v. Van Breda
,
    2012 SCC 17, [2012] 1 S.C.R. 572, at para. 82, a real and substantial
    connection must be established primarily on the basis of objective factors
    that connect the legal situation or the subject matter of the litigation with
    the forum. In order to bring greater clarity and predictability to the issue
    of when the court will assume jurisdiction, the Supreme Court identified a list
    of presumptive connecting factors for tort cases.
[1]
A plaintiff must establish that one or more of those presumptive connecting
    factors exists; if she does, a rebuttable presumption of jurisdiction arises.
    As discussed below, the Supreme Court left open the possibility that over time
    courts may identify new factors which also presumptively entitle a court to
    assume jurisdiction.

[21]

If
    an Ontario court assumes jurisdiction and
forum non conveniens
is
    invoked, the court may decline to exercise its jurisdiction if a respondent
    establishes that another forum is clearly more appropriate for disposing of the
    litigation: see
Van Breda
, at para. 108.

[22]

The
FLA
does address what laws are to be applied in the event of a
    conflict:

Conflict of laws

15 The property rights of spouses arising out of the
    marital relationship are governed by the internal law of the place where both
    spouses had their last common habitual residence or, if there is no place where
    the spouses had a common habitual residence, by the law of Ontario.

[23]

The
CLRA
also includes specific rules as to when jurisdiction may be
    exercised:

Jurisdiction

22(1) A court shall only exercise its jurisdiction to make an order
    for custody of or access to a child where,

(a) the child is habitually resident in Ontario at
    the commencement of the application for the order;

(b) although the child is not habitually resident
    in Ontario, the court is satisfied,

(i) that the child is
    physically present in Ontario at the commencement of the application for the
    order,

(ii) that substantial
    evidence concerning the best interests of the child is available in Ontario,

(iii) that no
    application for custody of or access to the child is pending before an
    extra-provincial tribunal in another place where the child is habitually
    resident,

(iv) that no
    extra-provincial order in respect of custody of or access to the child has been
    recognized by a court in Ontario,

(v) that the child has a
    real and substantial connection with Ontario, and

(vi) that, on the
    balance of convenience, it is appropriate for jurisdiction to be exercised in
    Ontario.

Habitual residence

22(2)  A
    child is habitually resident in the place where he or she resided,

(a) with both parents;

(b) where the parents are living separate and
    apart, with one parent under a separation agreement or with the consent,
    implied consent or acquiescence of the other or under a court order; or

(c) with a person other than a parent on a
    permanent basis for a significant period of time,

whichever last occurred.

Abduction

22(3) The
    removal or withholding of a child without the consent of the person having
    custody of the child does not alter the habitual residence of the child unless
    there has been acquiescence or undue delay in commencing due process by the
    person from whom the child is removed or withheld.

[24]

The
CLRA
also accords the court limited powers when it does not have
    jurisdiction under s. 22:

Interim powers of court

40 Upon application, a court,

(a) that is satisfied that a child has been
    wrongfully removed to or is being wrongfully retained in Ontario; or

(b) that may not exercise jurisdiction under
    section 22 or that has declined jurisdiction under section 25 or 42,

may do any one or more of the following:

1. Make such interim order in respect of the
    custody or access as the court considers is in the best interests of the child.

2. Stay the application subject to,

i. the condition that a
    party to the application promptly commence a similar proceeding before an
    extra-provincial tribunal, or

ii. such other
    conditions as the court considers appropriate.

3. Order a party to return the child to such place
    as the court considers appropriate and, in the discretion of the court, order
    payment of the cost of the reasonable travel and other expenses of the child
    and any parties to or witnesses at the hearing of the application.

THE MOTION JUDGES REASONS

[25]

The
    motion judge released reasons on June 7, 2012, with respect to both of the
    fathers motions. As had been agreed by the parties, the motion judge decided
    the fathers stay motion solely on the basis of the affidavit evidence that had
    been before him at the time that he heard that motion, and without considering the
viva voce
evidence on the second motion.

[26]

In
    deciding the fathers stay motion, the motion judge concluded that the mother
    had not established that she had been ordinarily resident in Ontario for at
    least one year immediately preceding the commencement of the proceeding. The
    court therefore did not have jurisdiction to hear and determine the divorce
    proceeding under s. 3(1) the
Divorce Act
. The motion judge did not go
    on to consider whether the mother met the test for corollary relief under the
Divorce
    Act
, but concluded that the mother had not satisfied the real and
    substantial connection test and the court did not have jurisdiction to grant
    the corollary relief sought under the
FLA
:

[10
] Ms. Wangs claims for corollary
    relief are also made under the
Family Law Act
, R.S.O. 1990, c. F.3.
    The applicable test is real and substantial connection, which requires the
    court to consider objective factors to determine whether the subject of
    litigation is connected with the forum. These presumptive connecting factors
    are not exhaustive but inform the type of factors to consider. See
Club
    Resorts Ltd. v. Van Breda
, 2012 SCC 17 (CanLII), 2012 SCC 17, 2012
    CarswellOnt 4268, at paras. 82-94.

[
11
] The presumptive connecting
    factors identified by the Supreme Court in the context of a tort case were set
    out by Lebel J. at para. 90:

(a)   The defendant lives in the province;

(b)   The defendant carries on business in the
    province;

(c)   The tort was committed in the province; and

(d)   A contract connected with the dispute was made
    in the province.

[
12
] The burden is on the party
    asserting the courts jurisdiction. The test is met when a presumptive
    connecting factor is established that links the subject matter of the
    litigation to the forum. If none of the presumptive connecting factors apply,
    the court should not assume jurisdiction. See
Van Breda
, at paras. 93
    and 100.

[
13
] The facts of this case do not
    support the existence of a presumptive connecting factor that would entitle
    this court to presume jurisdiction. The relevant facts were set out in the
    Respondents factum at para. 20:

(a)   The Husband does not live in Ontario or
    carry on business in Ontario. It is acknowledged by the Wife that the Husband's
    business is based entirely in China.

(b)   The parties were not married in Toronto. The
    children were not born in Ontario.

(c)   The parties have not lived together as a married
    couple in Ontario since at least August, 2010 and the children have not
    ordinarily resided in Ontario since August, 2010 based on the following facts:

i. The family has been
    living at their Chaoyang Home together, as an intact family, since August, 2010.

ii. The parties have a
    nanny of 7 years who resides with them in Beijing at the Chaoyang Home;

iii. Forrest and Leon are
    currently in their second year of elementary school in Beijing since September
    2010 (after starting in JK in Toronto for 4 and 3 years, respectively);

iv. The children have 2 private
    tutors on a weekly basis;

v. The Husband purchased a
    home in Beijing for the Wifes parents to live in and the children visit these
    grandparents almost weekly;

vi. The Wife does some work
    for her brother-in-laws company in Beijing and does no work in Ontario;

vii. All of the familys medical,
    dental and eye care is obtained in China;

viii. The only connection to
    Ontario is an encumbered real property and a bank account. In contrast,
    the parties have three real properties in China and significant bank accounts.

[
14
]   With the exception of a
    house in Canada and a trust in the British Virgin Islands, the couples
    greatest assets are located in China. The boys have been attending school in
    Beijing for the past two years, and have family, friends and are involved in
    activities in China. Ms. Wang has not attempted to raise any new presumptive
    connecting factors that would allow the court to assume jurisdiction in these
    circumstances.

[
15
] I conclude that there is no real
    and substantial connection between the subject matter of this dispute and
    Ontario, and this court has no jurisdiction to grant corollary relief.

[27]

The
    motion judge then addressed the fathers argument that the court had no
    jurisdiction to make an order for custody or access under s. 22 of the
CLRA
and should order the return of the children to China pursuant to s. 40 of
    the
CLRA
.  He wrote, at para. 38:

It seems to me that the familys history in Toronto is
    sufficient to establish habitual residence of the children in Ontario. The
    family set down roots and developed an established way of life in Toronto. It
    seems clear on the evidence that their stay in China was intended to be
    temporary, and that they had always contemplated resuming their established way
    of life in Toronto after a 1-2 year stay in Beijing.

[28]

He
    continued that, even assuming that the children are not habitually resident in
    Ontario, each of the conditions in s. 22(1)(b) of the
CLRA
seemed to
    be established. He cautioned that he did not want to be taken as having made any
    finding of habitual residence, and explained that the concept of the best
    interests of the children guided him in resolving the issues before him. He
    concluded by inviting the parties to bring an application for custody and
    access, if they wished, and declined to make the order sought by the father.

THE PARTIES SUBMISSIONS

[29]

The
    mother makes four main submissions.

[30]

First,
    she argues that the motion judge erred by failing to consider the
viva voce
evidence on the second motion in deciding the fathers stay motion. As a
    result, the motion judge came to inconsistent findings as to jurisdiction.

[31]

Second,
    she argues that the motion judge erred in law by failing to consider the evidence
    that was before him of the mothers intention to return to Canada in two years in
    determining whether the mother was ordinarily resident in Canada, within the
    meaning of the
Divorce Act
. She cites Evans J.A.s opinion (for the
    court on that issue) in
MacPherson v. MacPherson
(1976)
, 13 O.R. (2d) 233 (C.A.), at p.
    239, for the proposition that the test the motion judge should have applied was:
    Did the mother intend to stay in China for an indefinite period of time? If
    she did not, she did not become ordinarily resident in China, and therefore
    remained ordinarily resident in Ontario, despite her absence.

[32]

Third,
    she argues that in applying the real and substantial connection test, the
    motion judge failed to consider what presumptive connecting factors might be
    applicable in a family law matter. The real home of a party and/or the
    children is clearly such a factor, and the real home of the mother and children
    is in Ontario. The fact that the family has property of value in Ontario, and
    the fact that the motion judge determined that the parties rights and
    obligations with respect to custody and access may be determined in Ontario,
    should also be presumptive connecting factors in a family law case. Therefore,
    there is a real and substantial connection, and the father has not established
    that China is a clearly more appropriate forum.

[33]

Finally,
    in response to the fathers cross-appeal, she asserts that the children were
    habitually resident in Ontario within the meaning of s. 22(1)(a) of the
CLRA
.
    And, even if not, the motion judge did not err in declining to return the
    children to China, since s. 40 of the
CLRA
is discretionary.

[34]

The
    father, in turn, submits that the mother, having agreed that the
viva voce
evidence
    would not be considered on the stay motion, cannot resile from that position on
    appeal.

[35]

He
    further submits that the motion judges finding that the mother was not ordinarily
    resident in Canada for the purposes of the
Divorce Act
is very much a
    factual finding, and as such should not be disturbed, absent a palpable and
    overriding error. He argues that
MacPherson
, at para. 18, as well as
    other cases, make clear that intention alone cannot determine the issue of
    ordinary residence; the motion judge correctly focussed on the location of the
    parties real home in the period leading up to the mothers filing of the
    application.

[36]

The
    father argues that, in applying the real and substantial connection test in a
    family law matter, the ordinary residence of the parents should be the
    presumptive connecting factor. Given the motion judges finding that the mother
    was not ordinarily resident in Canada at the time of the application, the
    motion judge properly concluded that the mother had not made out a real and
    substantial connection to Canada, and the courts of Ontario therefore have no
    jurisdiction over the mothers claims for corollary relief under the
FLA
.
    Even if Ontario does have jurisdiction, the father argues that China is clearly
    the more appropriate forum: among other things, nearly all of the familys very
    significant assets are located there.

[37]

Finally,
    the father argues that the motion judge erred in finding that Ontario had
    jurisdiction under the
CLRA
. The statutory test for jurisdiction in s.
    22, which supersedes the common law, is not made out. Accordingly, this court
    should order the immediate return of the children to China.

ANALYSIS

[38]

Before
    considering the jurisdiction issues, I will dispose of the issue of the use of
    the
viva voce
evidence. In my view, the motion judge did not err by
    respecting the agreement of the parties that the
viva voce
evidence on
    the second motion would not be considered on the first, stay motion. Moreover,
    I am not persuaded that the outcome of the stay motion would have been
    different, had he considered the
viva voce
evidence. Most of the
    evidence regarding the mothers intention to return to Canada was in affidavits
    that were before the motion judge on the stay motion. As will become apparent,
    the process agreed to by the parties, and applied by the motion judge, does not
    actually result in inconsistent decisions on jurisdiction.

[39]

As
    to the jurisdiction issues, in my view the motion judge correctly concluded
    that the courts of Ontario do not have jurisdiction under the
Divorce Act
or the
FLA
. However, he did, in my view, err in concluding that the
    court had jurisdiction to make an order for custody of or access to the
    children, other than to the limited extent permitted by s. 40(b)(1) of the
CLRA
.

[40]

I
    first address the motion judges finding that the mother was not ordinarily
    resident in Ontario for at least one year immediately preceding the
    commencement of the proceeding such that the courts of Ontario do not have
    jurisdiction to hear and determine the divorce proceeding under the
Divorce
    Act
.

[41]

In
MacPherson
, this court found that the wife was not ordinarily resident
    in Ontario for the requisite one year period before filing for divorce in
    Ontario. The family lived in Ontario for four and a half years before moving to
    Nova Scotia. After eight months, the wife returned to Ontario; the husband
    stayed in Nova Scotia. She filed her application in Ontario about two and a
    half months later. At p. 239, Evans J.A. wrote:

In my opinion, the arrival of a person in a new locality with
    the intention of making a home in that locality for an indefinite period makes
    that person ordinarily resident in that community. In the present matter, while
    the husband and wife expressed opposing views as to their intention with
    respect to the establishment of a permanent residence in Nova Scotia, I do not
    believe that the intention alone can determine the issue of ordinary residence.
    Mrs. MacPherson left Ontario to reside with her husband and family with the
    intention of residing in Nova Scotia for an indefinite period of time. Her
    stated intention of returning to live in Ontario does not detract from the fact
    she was ordinarily resident in Nova Scotia for that period which continued
    until she moved and established her residence in Ontario.

[42]

In
    my view, the motion judge did not err in the manner in which he approached the question
    of whether the mother was ordinarily resident in Ontario in the year
    immediately before filing her divorce application. His approach was consistent
    with
MacPherson
, which makes clear that intention alone cannot determine
    ordinary residence. Nor did the motion judge make any palpable and overriding
    factual errors.

[43]

The
    wife and children returned to China once they obtained Canadian citizenship,
    taking up residency in a home owned by the family. They carried on their
    customary mode of life in China: the children went to school and engaged in
    extra-curricular activities, and the mother and children regularly visited
    family. The family was able to live together, which, given the fathers
    business interests in China, they had been unable to do while the mother and
    children obtained Canadian citizenship. The fact that the mother and children
    entered China on visitors visas is not determinative. As the motion judge
    observed, given that the father is a Chinese citizen, and, I would add, given
    the fathers very significant financial resources, it is hard to imagine that
    their re-entry to China would face any serious impediment. The father, on the
    other hand, has no immigration status in Ontario.

[44]

The
    fact that the parties maintained a home in Toronto while living in China is
    also not sufficient to make the mother ordinarily resident in Ontario while she
    was living and carrying on her customary mode of life in China. The value of
    the parties assets in Ontario pales in comparison to their assets in China. China
    was not a special, occasional or casual residence. I agree that the mother was not
    ordinarily resident in Ontario in the year immediately preceding the filing of
    her divorce application. In my view, her real home during that period was in China.

[45]

Since
    the motion judge proceeded to consider the issue of jurisdiction under the
FLA
without turning to the jurisdictional test for corollary relief under the
Divorce
    Act
, I will do the same without comment on the correctness of this
    approach. Had he considered the question as to whether the mother was
    ordinarily resident at the time of the application for the purposes of claiming
    corollary relief under the
Divorce Act
, the answer on these facts
    would have been that she was not. She had been living in China immediately
    prior to bringing the application.

[46]

Turning
    to whether Ontario has jurisdiction under the common law test that requires a
    real and substantial connection, I agree with the parties that, in the context
    of marriage breakdown, the presumptive connecting factors are necessarily
    different from those identified by the Supreme Court in
Van Breda
in
    the context of a tort case. The Supreme Court in
Van Breda
was clear
    that the list of presumptive factors it identified related to tort claims and
    issues associated with those claims, and that the list of presumptive
    connecting factors is not closed. At para. 91, the court directed that:

In identifying new presumptive factors, a court should look to
    connections that give rise to a relationship with the forum that is similar in
    nature to the ones which result from the listed factors. Relevant
    considerations include:

(a) Similarity of the connecting factor with the recognized
    connecting factors;

(b) Treatment of the connecting factor in the case law;

(c) Treatment of the connecting factor in statute law; and

(d) Treatment of the connecting factor in the private
    international law of other legal systems with shared commitment to order,
    fairness and comity.

[47]

While
    they differ in their view as to where, in this case, the real home or
    ordinary residence of the mother is, both parties submit that the location of
    the real home or ordinary residence should be a presumptive connecting
    factor. This in my view makes eminently good sense. Ordinary residence and
    habitual residence are the jurisdictional tests under the
Divorce Act
and the
CLRA
,

respectively. Accepting the real home or ordinary
    residence as a presumptive connecting factor, and having concluded that the
    motion judge did not err in finding that the mother was not ordinarily resident
    in Ontario, I agree with the motion judge that [t]he facts of this case do not
    support the existence of a presumptive connecting factor that would entitle
    this court to presume jurisdiction. The mother therefore did not satisfy the
    real and substantial connection test, and the courts of Ontario do not have
    jurisdiction over the mothers corollary claims under the
FLA
. Given
    this, it is not necessary to address the parties arguments on the issue of
forum
    non conveniens.

[48]

The
    final jurisdictional question is whether the court had jurisdiction to make an
    order under s. 22 of the
CLRA
. My answer is no.

[49]

The
    court does not have jurisdiction under s. 22(1)(a), because the children were
    not habitually resident in Ontario at the time that the mother commenced her
    application. Habitually resident is defined in s. 22(2), reproduced above.
    Based on that definition, the children were habitually resident in China, which
    is the place that they last resided with both parents prior to the filing of
    the application.

[50]

The
    court also does not have jurisdiction under s. 22(1)(b). Pursuant to that
    section, although a child is not habitually resident in Ontario, the court can
    exercise jurisdiction if
all
of the conditions set out in ss. 22(1)(b)(i)-(vi)
    are fulfilled. Section 22(1)(b)(i) requires that the children have been
    physically present in Ontario when the application was commenced. In this case,
    they were attending school in Beijing. It is not necessary to go any further.

[51]

As
    the father submits, if the statutory test for jurisdiction in s. 22 is not made
    out, the court cannot resort to a common-law test to ground jurisdiction: see
Dovigi
    v. Razi
, 2012
ONCA 361, 110 O.R. (3d)
    593, leave to appeal to S.C.C. refused, 34945 (November 22, 2012).

[52]

The
    remaining issue is whether this court should, as the father requests, order the
    return of the children to China.

[53]

Under
    s. 40 of the
CLRA
, the court has several options when it is satisfied
    that a child has been wrongfully removed to or is being wrongfully retained in
    Ontario, or alternatively that it may not exercise jurisdiction under s. 22.
    These options include making such interim order in respect of the custody or
    access as the court considers is in the best interests of the child. The
    children are currently mid-school year in Toronto, with their mother, who has
    been their primary caregiver. Given the motion judges conclusion that the
    court had jurisdiction, he did not consider whether the court should make an
    interim order with respect to custody or access pending the childrens return
    to China, or order the immediate return of the children to China. In my view,
    this matter should be returned to the motion judge, or another judge of the
    Superior Court in Toronto, to determine what order should issue pursuant to s.
    40 of the
CLRA
.

COSTS

[54]

If
    the parties are unable to agree on the issue of costs, they shall provide brief
    written submissions within 30 days. No reply submissions shall be provided
    without leave.

Released: Jan. 22, 2013                                         Alexandra
    Hoy J.A.

DD                                                                    I
    agree Doherty J.A.

I
    agree S.T. Goudge J.A.

[1]
In a tort case, those factors are: (a) the defendant is domiciled or resident
    in the province; (b) the defendant carried on business in the province; (c) the
    tort was committed in the province; and (d) a contract connected with the
    dispute was made in the province: see
Van Breda
, at para. 90.


COURT OF APPEAL FOR ONTARIO

CITATION:

Wesley v. Iles, 2013
    ONCA 8

DATE: 20130111

DOCKET: C55076

LaForme and Watt JJ.A. and Lederman J. (
ad
    hoc
)

BETWEEN

William Wesley

Plaintiff (Respondent)

and

Michael Iles and Julie Sunday

Defendants (Appellants)

AND BETWEEN

Michael Iles and Julie
    Sunday

Plaintiffs by
    Counterclaim

(Appellants)

and

William Wesley and Pamela Eisenhauer

Defendants by Counterclaim

(Respondents)

Morris Cooper, for the appellants

D. Kenneth Gibson and Ryan E. Flewelling, for the
    respondents

Heard: December 13, 2012

On appeal from the order of Justice John A. McMunagle of
    the Superior Court of Justice, dated February 1, 2012, reported at 2012 ONSC
    629; and on cross-appeal from his order as to costs dated March 26, 2012,
    reported at 2012 ONSC 1557.

ENDORSEMENT

THE APPEAL

[1]

Michael Iles and Julie Sunday (the appellants)
are adjoining neighbours
of William Wesley and
    Julie Eisenhauer (the respondents).  There is an easement that lies between
    their respective homes, but which is on the property of the respondents.  The
    appellants believed
that because it

is
    possible to park more than one vehicle on the easement, and because they have
    done so in the past; they should be permitted to do so for the foreseeable
    future.  The respondents disagreed, and as often occurs in such disputes
    between neighbours, the matter ended up in court for resolution.

[2]

The appellants moved for partial summary judgment for a determination of
    their right to park on
the
easement.  At
    the same time the respondents moved for partial summary judgment to restrict their
    parking to a single car, and to eliminate or substantially reduce the area
    permitted for parking on the easement.

[3]

The motion judge ordered that: (i) parking be limited to one car only;
    (ii) the appellants are to park their car in such a way that the respondents may
    have access to their backyard; and (iii) the easement on title be amended to
    add a restriction that the vehicle shall not be parked so as to restrict
    backyard access.  Mr. Iles and Ms. Sunday appeal the decision.

[4]

The motion judges decision should remain undisturbed.  He committed no
    errors of law and his conclusions are reasonable ones supported by the evidence.
    The appeal has no merit.

Background

[5]

In 1993, 16 Noel Street was severed to create an infill parcel of land
    that became 14A Noel Street.  The parcel was registered under the
Land
    Titles Act
, R.S.O. 1990, c. L.5.
At the time
    the lawyer for the promoter of the severance made the following representation
    to the Committee of Adjustments:

The other part of the variance is
      for the parking space for the old house that is being sold, which will be
      partly on the lot that goes with the new house that is being created.  That is
      the easement that is being applied for as part of the severance application.
      So that 1.34 meters of that
required parking space
will be on this easement.  It will not change
the parking
        space and it will be a standard size parking space
. (Emphasis added)

[6]

On March 31, 1994, Dr. and Mrs. Reesor
    purchased 14A Noel Street as a vacant lot and developed it.
They purchased
    it seven months after the easement was concluded with full knowledge that the
    title was subject to a parking easement.

At
    the time, the Reesors understood their obligation was to provide an easement
    for parking one car.  The grant of right-of-way and the easement on the
    Reesor's transfer/deed is worded as follows:

Together with a right-of-way for
      access and egress and a right
to park a motor vehicle
over part of Lot 23, Registered Plan No. 68, City of Ottawa, Regional
      Municipality of Ottawa-Carleton, more particularly described as Part 3, on
      deposited Reference Plan 4R-9422. (Emphasis added)

[7]

On September 15, 2004, the respondents purchased 14A Noel Street.  On
    September 15, 2005, the appellants purchased 16 Noel Street and knew about the
    easement when they purchased.  The parties therefore are immediate neighbours.

[8]

The dispute between the parties arose in 2008 because of the appellants
    practice of parking two cars on the easement right up against the house wall
    and a retaining wall of 14A Noel Street.  As a result, the respondents cannot
    access their backyard via the easement.

Analysis

[9]

While the appellants raise numerous grounds of appeal, we do not, as
    already noted, see any merit to any of them.  The motion judge applied the
    correct law; he made no palpable and overriding errors in his findings of fact;
    and he properly applied those facts to the law.  The following brief comments
    will sufficiently demonstrate the reasons for our decision.

[10]

First,
    contrary to the appellants submission, the motion judge did not order an
    impermissible derogation from the original grant of easement
.  Rather,
he interpreted the original grant
    according to its plain and ordinary meaning and after consideration of all the
    circumstances surrounding the grant.

[11]

The
    appellants underpin much of their arguments on their contention that the motion
    judge failed to properly consider all the relevant circumstances surrounding
    the September 1, 1993 easement grant.  For example, they argue that the motion
    judge failed to consider the fact that the easement in 1993 was paved and was
    11.4 metres in length, which was double the length of a single parking space
    under the existing City of Ottawa by-law thereby providing space for parking
    two cars.  They contend that he relied almost exclusively on the
    representations made to the Committee of Adjustment in 1993.  They point particularly
    to para. 26 of his reasons on the summary judgment motions:

While I agree that the purpose of the easement
    was to preserve the ''historical parking rights of 16 Noel Street", when
    one carefully reviews the Committee of Adjustments evidence and the documents
    that are on title, references made are for a singular parking space.  Had it
    been the intention of various parties involved to create more than one space,
    then clearly the Committees decision would have reflected that and the
    documents on title would have referred to spaces, plural.  That is not in fact
    the case.

[12]

They
    also rely on para. 12 of the motion judges costs endorsement where he
    observes: As I indicated in my endorsement, essentially this case came down to
    whether or not the word a parking space could constitute more than one
    parking space and I found that a parking space means one parking space.

[13]

The
    appellants arguments and the narrow reading of the motion judges reasons
    ignore the interpretation to be given to them when read as a whole.  When
    considering the motion judges reasons in this fashion, together with the record,
    as we are bound to do, it is clear that he relied on all the evidence presented
    on these summary judgment motions, to which process the parties agreed.  This
    included the representations to the Committee of Adjustment, the evidence of
    the Reesors, who were prior owners and developers of 14A Noel Street, and the
    language of their transfer/deed.

[14]

After reviewing the evidence, the motion judge,
    at para. 22 of his summary judgment reasons, found that:

The evidence does not support the
    [appellants] position that an easement was granted in favour of 16 Noel Street
    to allow the owners of 16 Noel Street to continue to park on the entirety of
    the driveway.  In fact, the evidence is to the contrary that the easement was
    granted to provide a sufficient space to park a vehicle.

[15]

The
    decision of the motion judge was clear that the intention of the parties was to
    create a right to park one vehicle.  This is amply supported by the evidence
    and the language of the documents he relied on.

[16]

Second,
    contrary to the appellants submissions, the motion judge did not err in his
    reliance on the evidence of Dr. Reesor.  Dr. Reesors evidence was relevant as
    it related to the creation of the easement, and the history of its use.  Indeed,
    his evidence was relevant to both partys arguments.  Clearly the motion judge found
    Dr. Reesors evidence credible and such decisions are entitled to significant
    deference and no reasons have been established in this case that would require
    us to interfere.

[17]

Third,
    the motion judge did not err by failing to resolve any ambiguities in
    accordance with the rule in
Wheeldon v. Burrows
, (1879) Ch. D. 31 (C.A.)
    and in failing to apply the law of the implied grant.  While this issue does
    not appear to be one that was raised with the motion judge, nevertheless, it
    has no application here.  Very briefly,
Wheeldon v. Burrows
is an English property law case on the
    implying of
grant easements
.  Put simply, there is
    nothing to imply in this case because the finding of the motion judge was that
    the intention of the parties was to create a right to park one vehicle and
    there was an express grant to this effect.

[18]

Fourth,
    the motion judge did not exceed his jurisdiction and err in law by revising the
    grant of easement to add a restriction.  His decision is well within the wide
    discretion afforded him by s. 159 of the
Land Titles Act
, which allows
    him to make any order directing the land register be rectified in such a manner
    as is considered just.

[19]

Fifth,
the motion judge
did not
err by ordering a judgement inconsistent
    with a city by-law
.
The easement was
    established before the by-law that prohibits parking in front of the front wall
    of a house.  The easement is a legal non-conforming use and the motion judge
    was not required to interpret the grant in a way that was consistent with it.
    The relevant considerations were the language of the express grant and the
    context of its creation.

Disposition

[20]

For
    these reasons, the appeal is dismissed.

THE CROSS-APPEAL

[21]

The
    respondents cross-appeal on the issue of costs.  They ask that the cost award
    of the motion judge - $20,000 plus disbursements and HST - be varied to
    $80,000.  This cross-appeal is also dismissed.

[22]

We
    see no error in the findings and decision of the motion judge.  He referred to
    the correct statutory principles and applied the factors correctly to the facts
    before him.  He properly considered the defendants offer to settle and the
    complexity of the case.  His decision, absent an error in law, or unless his
  decision is plainly wrong, is entitled to deference.

COSTS

[23]

The
    respondents are awarded costs of the appeal fixed in the amount of $7,500
    inclusive of disbursements and HST.  The appellants are awarded costs of the
    cross-appeal fixed in the amount of $3,000 inclusive of disbursements and HST.
    In the result, the respondents are entitled to costs from the appellants in the
    all inclusive amount $4,500.

H.S. LaForme
    J.A.

David Watt J.A.

S. Lederman J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: Wilson
    v. Canada Revenue Agency,
    2013 ONCA 31

DATE: 20130118

DOCKET: C55208

Doherty, Laskin and Simmons JJ.A.

Grant R. Wilson

Appellant
(Plaintiff
)

and

Canada Revenue Agency

Respondent (Defendant)

Grant R. Wilson, appearing in person

Maria Vujnovic, for the respondent (defendant)

Heard:  January 18, 2013

On appeal from the order of Justice J. Carey of the
    Superior Court of Justice, dated September 8, 2011.

APPEAL BOOK ENDORSEMENT

[1]

There is no merit to this appeal.  The record fully supports the
    finding that Mr. Wilson is a vexatious litigant.  The Federal Court came to the
    same conclusion in 2006.  The claim was, in our view, properly struck given the
    vexatious litigant finding.

[2]

The appeal is dismissed in its entirety.  Costs to the respondent in the
    amount of $6,100, inclusive of disbursements and taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
1043 Bloor Inc. v. 1714104
    Ontario Inc., 2013 ONCA 91

DATE: 20130214

DOCKET: C53782

Laskin, MacPherson and Gillese JJ.A.

BETWEEN

1043 Bloor Inc.

Plaintiff (Appellant)

and

1714104 Ontario Inc.

Defendant (Respondent)

Warren Rapoport, for the appellant

L.J. OConnor, for the respondent

Heard: November 29, 2012

On appeal from the order of Justice Barbara A. Conway of
    the Superior Court of Justice, dated May 18, 2011, with reasons reported at
    2011 ONSC 2779.

Gillese
    J.A.:

[1]

This appeal raises an important question relating to prescriptive
    easements: can a single act interrupt the prescriptive period?

OVERVIEW

[2]

The parties are adjacent landowners.  The appellant is the owner of 1043
    Bloor Street West in Toronto (1043).  The respondent is the owner of the
    property immediately to the west, 1045 Bloor Street West (1045).

[3]

The appellants predecessors built the structure on their land almost
    right to the lot line, leaving mere inches between their building and the edge
    of their property.  They did not leave themselves any space for a lane or driveway
    by which to access the parking behind their building.

[4]

The respondents predecessors, on the other hand, built their property
    so as to leave a narrow lane
[1]
by which they can access the rear of their property.  The lane runs between the
    two properties.

[5]

The lane lies almost entirely on the respondents property.  The portion
    on the appellants property is three inches at the northern end of the land, gradually
    narrowing to nothing at the southern end, where the appellants building lies right
    on the lot line dividing the two properties.

[6]

Both parties use the lane to access the parking behind their respective
    properties.

[7]

The appellant sought a declaration that it has a prescriptive easement
    and right of way over the lane.  It claims that its predecessors in title had
    uninterrupted, open use of the lane for at least 20 years before April 2003,
    when the appellants property migrated into the Land Titles system.
[2]

[8]

The appellant wants the declaration so that it can continue to use the
    lane to access the parking space behind its building.  The respondent wants any
    suggestion of an easement to be removed so that it can develop its building to
    the lot line, which the zoning by-law permits.

[9]

By judgment dated June 15, 2011 (the Judgment), the trial judge
    dismissed the appellants claim.  She found that there had been continuous and
    open use of the lane during the relevant time period.  However, she found that
    an incident that took place in February of 1987 (the 1987 incident)
    interrupted the prescriptive period.  Consequently, February 1987 became the
    new starting point for the running of the period and, as the period from
    February 1987 to April 2003 is less than 20 years, a prescriptive easement had
    not arisen.

[10]

The
    appellants appeal to this court centres on the trial judges treatment of the
    1987 incident.  The appellant describes the 1987 incident as the action of one
    neighbour attempting to resolve a dispute amicably and says that the trial
    judge erred in finding that such an action interrupted the running of the prescriptive
    period.

[11]

As
    I explain below, I see no error in the trial judges decision.  Accordingly, I
    would dismiss the appeal.

BACKGROUND

[12]

Much
    of the following recitation of facts is taken from the reasons of the trial
    judge.

[13]

The
    chain of ownership of the two properties during the relevant time period serves
    to introduce the key players and dates in this matter.

Ownership of 1043

September of 1980  March of 1986:             Hildegard
    Welsch Orpen

March of 1986  September 2008:                 Fernando
    Vilhena

September 2008  present:                            the
    appellant (1043 Bloor Inc.)

Ownership of 1045

1966  April 2007:
    Wolodymer and Lesia Sochaniwskyj

April of 2007  present:                     the
    respondent (1714104 Ontario Inc.)

Use of the Lane from 1980  1986
(
Ms. Orpens tenure
)

[14]

Dr.
    Sochaniwskyj conducted his general medical practice at 1045 from the time he
    purchased 1045 in 1966 until he retired in 1997.  The Sochaniwskyjs did not
    live at 1045.

[15]

Ms.
    Orpen owned 1043 from 1980  86.  During her tenure, she operated a hair salon
    and later a café from the main floor.  She rented the remaining space to
    tenants.  Ms. Orpen testified that she and her tenants used the lane
[3]
without hindrance by the Sochaniwskyjs throughout the six-year period in which
    she owned 1043.  She also testified that she never sought Dr. Sochaniwskyjs
    permission to use the lane and that she had no contact with the Sochaniwskyjs during
    her tenure.

[16]

Dr.
    Sochaniwskyj is now infirm.  Neither he nor his wife was able to testify at
    trial.  Alex Sochaniwskyj, one of their sons, testified.  He explained that his
    father is a mild mannered man, a former concentration camp survivor who was
    liberated by the Allies during the Second World War.  He testified that he does
    not recall Ms. Orpen nor does he recall his father interfering with her use of
    the lane.

[17]

When
    Ms. Orpen sold 1043 to Mr. Vilhena in 1986, she gave him a statutory Declaration.
    The statutory Declaration appears to be a standard form with two handwritten
    additions, some sentences struck out and certain paragraphs added in by means
    of typing.  Mr. Vilhena produced the Declaration during these proceedings.

[18]

In
    the Declaration, below para. 1, were the following handwritten words I have
    used the laneway next door to get to my driveway since occupying the above
    premises (the first handwritten addition).  No initials appear next to the
    first handwritten addition.  Ms. Orpens initials do appear next to the other handwritten
    addition in the Declaration.  Ms. Orpen testified that the first handwritten
    addition is not her handwriting and that she has no recollection of seeing it
    when she signed the Declaration.

[19]

Paragraph
    14 of the Declaration had been added in by typing.  It reads as follows: I do
    not own any lands or have any rights in any lands abutting to the
    above-mentioned lands.

The 1987 Incident

[20]

Mr.
    Vilhena began work as a real estate broker in 1977 and was working in that
    capacity when he bought 1043 in 1986.  He purchased 1043 with the intention of renovating
    it into an office building for his real estate business.

[21]

Under
    the municipal by-laws, Mr. Vilhena needed three parking spots to obtain a
    building permit for the renovation.  The parking area behind 1043 was not
    acceptable because Mr. Vilhena did not have a legal right of way to access it.
    He leased three parking spaces from the church located immediately to the east
    of 1043.  This satisfied the municipal requirements for offsite parking and the
    building permit was issued in August 1986.  Mr. Vilhena began the renovation
    shortly thereafter.

[22]

In
    February 1987, Mr. Vilhena had his lawyer draft a right of way agreement over
    the lane.  The agreement was to run for a period of five years, with renewal from
    year to year thereafter unless terminated by either party on three months
    notice, for an annual payment by Mr. Vilhena of $300 per year (the 1987 document).

[23]

The
    1987 document recited the ownership of the two properties.  Another of its recitals
    states there exists no mutual right-of-way in favour of either Vilhena or
    Sochaniwskyj with respect to the use of that portion of the driveway area owned
    by the other.

[24]

Mr.
    Vilhena signed the 1987 document and approached Dr. Sochaniwskyj for his
    signature.  Dr. Sochaniwskyj refused to sign it.

[25]

Alex
    Sochaniwskyj testified that he was at his parents home when his father
    returned after the 1987 incident.  He said that his father was very upset by
    the 1987 incident and the fact that he was being asked to surrender mastery
    over part of his property to Mr. Vilhena.  Alex Sochaniwskyj testified that he
    and his brother told their father not to sign the 1987 document and that his
    father listened to them.  Dr. Sochaniwskyj told Mr. Vilhena to deal with his
    children from then on.

[26]

The
    1987 document, with Mr. Vilhenas signature on it and unsigned by the
    Sochaniwskyjs, was in evidence before the court.

After the 1987 Incident

[27]

Despite
    Dr. Sochaniwskyjs refusal to sign the 1987 document, Mr. Vilhena and his
    tenants continued to use the lane.

[28]

Mr.
    Vilhena testified that neither Dr. Sochaniwskyj nor anyone else from 1045
    complained about or stopped him from using the lane after the 1987 incident.

[29]

Alex
    Sochaniwskyj testified that in the two years following the 1987 incident there
    were so many cars parked behind 1045 from 1043 that his father often had
    difficulty finding a parking spot for his own car.  During this period, his
    father made up tickets and put them on cars from 1043 that were parked behind
    1045, stating that it was private parking for 1045 only.

[30]

Further,
    in 1989, at his fathers request, Alex Sochaniwskyj hired a sign company to
    create two signs, which read Private driveway private parking 1045 Bloor
    Street West.  Alex Sochaniwskyj personally bolted one sign to the side wall of
    1045, next to the lane.  This sign was ripped down shortly after being
    installed.  Alex Sochaniwskyj attached the other sign to a steel post in the
    back of 1045.  Within two weeks of being erected, the second sign had been
    knocked over.

[31]

Mr.
    Vilhena testified that he did not remove the signs nor have them removed.  The
    trial judge noted that there was no evidence as to who else might have removed
    the signs nor why anyone who was not using the lane would have wanted to take
    down the signs.

[32]

After
    the respondent bought 1045 in 2007, it erected a chain barrier to stop access
    by Mr. Vilhena or his invitees on the lane. Mr. Vilhena cut the chain.  The
    principals of the respondent are Kenneth McGowen and Bill Monroe.  Mr. McGowen
    confronted Mr. Vilhena about having cut the chain.  Mr. Vilhena became very aggressive
    towards him.  Mr. McGowen was in his seventies at the time.

[33]

In
    2008, when Mr. Vilhena was in the process of selling 1043, he prepared a notice
    of unregistered right, claiming an unregistered interest in 1045 (the Notice).
[4]
On May 6, 2008, Mr. Vilhena signed an agreement of purchase and sale for 1043 with
    the appellant.  On May 7, 2008, he registered the Notice.

[34]

On
    closing, Mr. Vilhena delivered a sworn statutory declaration to the appellant
    stating that he and his predecessor in title, Ms. Orpen, had used the lane continuously
    and without interruption from 1980 to April 2003, when it was converted to the
    Land Titles system.  He went on in the statutory declaration to state that I
    have never sought permission or been granted consent by any owner of [1045] for
    access to use the lane.  In the declaration, he also stated that he had never
    made any acknowledgment of title  inconsistent with my easement and right of
    way over the lane.

[35]

At
    the time he swore this statutory declaration, Mr. Vilhena had over 30 years of
    experience in the real estate field.

[36]

At
    trial, Mr. Vilhena testified that he had forgotten about the 1987 incident when
    he made the statutory declaration.

THE TRIAL DECISION

[37]

The
    trial judge began her legal analysis by setting out the appellants position: based
    on the doctrine of lost modern grant, it claimed a prescriptive easement over
    the lane.

[38]

She
    then set out the legal principles governing the doctrine of lost modern grant.
    She quoted from
Henderson v. Volk
(1982), 35 O.R. (2d) 379 (C.A.), at p.
    383, with emphasis on the following sentence:

[T]he claimant must demonstrate a use and enjoyment of the
    right-of-way
under a claim of right
which was continuous,
    uninterrupted, open and peaceful for a period of 20 years.   [Emphasis added.]

[39]

The
    trial judge noted that permissive use cannot establish a prescriptive right and
    that the use required to prove a prescriptive easement must be under a claim
    of right or as of right.  She reminded herself that the onus of proving the
    prescriptive easement is on the claimant and quoted again from
Henderson
when
    observing that the courts must proceed with caution before finding that a title
    is established pursuant to this doctrine.

[40]

The
    trial judge then made her factual findings and considered whether they met the
    legal requirements for a prescriptive easement.  She found that from 1980 to
    2003, the owners of 1043 (and their tenants, employees and guests) had used the
    lane openly and continuously.

[41]

The
    trial judge also found that during the period that Ms. Orpen owned 1043
    (1980-86), Dr. Sochaniwskyj acquiesced in her use of the lane.  However, she
    found, things changed when Mr. Vilhena acquired the property in 1986.

[42]

The
    trial judge then carefully and fully considered the events comprising the 1987
    incident, before concluding that it interrupted the running of the prescriptive
    period.

[43]

In
    reaching this conclusion, the trial judge flatly rejected Mr. Vilhenas
    testimony that he sought to have the 1987 document executed only at the
    prompting of his architect because he needed it for his building permit.  She noted
    that the building permit had been issued the year before Mr. Vilhena approached
    Dr. Sochaniwskyj with the 1987 document and that the municipal parking requirements
    had been satisfied by means of the lease of three parking spaces from the
    church to the east of 1043.

[44]

The
    trial judge found that: (1) Mr. Vilhena asked his lawyers to prepare the 1987
    document to obtain a formal right of way over the lane; (2) Mr. Vilhena knew that
    the deed from Ms. Orpen did not grant him those rights; and (3) Mr. Vilhena knew
    that a survey which he had had J.J. Konig prepare in 1987 did not reflect the
    right of way.

[45]

The
    trial judge further found that by approaching Dr. Sochaniwskyj with the 1987
    document, Mr. Vilhena acknowledged that he did not have a right to use the lane
    and that he required Dr. Sochaniwskyjs permission to do so.  This, she concluded,
    was inconsistent with the concept that Mr. Vilhena used the lane as of right.

[46]

In
    reaching this conclusion, the trial judge carefully reviewed the caselaw and
    leading texts on what must be established to show that ones use is as of
    right and stated that the claimant must use the land as if he or she had the
    right to use it without permission.

[47]

She
    explained that the issue was not whether Mr. Vilhena obtained permission to use
    the lane.  Rather, it was whether Mr. Vilhena did anything inconsistent with
    using the lane as if he had the right to.  The 1987 incident demonstrated that
    Mr. Vilhena was not using the lane as of right because it was an acknowledgment
    that he needed permission to use it.  Accordingly, the 1987 incident interrupted
    the running of the prescriptive period.

THE ISSUE

[48]

This
    appeal raises a single issue: did the trial judge err in finding that the
    appellant had not discharged the burden of proving that its predecessors had
    used the lane as of right for 20 years prior to 2003?  Specifically, did the
    trial judge err in finding that the 1987 incident interrupted the running of
    the prescriptive period?

ANALYSIS

[49]

The
    appellant argues that the 1987 incident was Mr. Vilhenas attempt to settle a
    dispute with the Sochaniwskyjs regarding use of the lane during the prescriptive
    period and that such an attempt does not disentitle it to a prescriptive
    easement over the lane.

[50]

I
    do not accept this submission as it is neither factually nor legally correct.

[51]

I
    will review the 1987 incident to demonstrate the factual inaccuracy of the
    appellants submission.  To demonstrate the legal inaccuracy, I will set out
    the legal principles governing the doctrine of lost modern grant and then
    consider their application to the facts of this case.

The 1987 Incident

[52]

The
    appellant characterizes Mr. Vilhenas actions in the 1987 incident as a good
    neighbour trying to settle a dispute.  This characterization is not borne out
    by the record.

[53]

There
    was no evidence of a dispute between Mr. Vilhena and the Sochaniwskyjs at the time
    of the 1987 incident.  On the record, it appears that the Sochaniwskyjs were
    likely unaware of Mr. Vilhenas existence in early 1987 when he approached Dr.
    Sochaniwskyj with the 1987 document.  No prior issues divided them at that time
    and there had been no prior attempts to restrict Mr. Vilhenas use of the
    lane.  There simply was no dispute to resolve at the time.  Indeed, Mr. Vilhena
    testified at trial that the 1987 incident took place only as a result of his
    architects prompting, testimony that is at odds with the suggestion that it
    was done to resolve a dispute with the Sochaniwskyjs.

[54]

Moreover,
    the appellants assertion of a dispute cannot stand in the face of the trial
    judges findings of fact, findings that are amply supported on the record.  It
    will be recalled that the trial judge rejected Mr. Vilhenas evidence that the
    1987 incident was due to the prompting of his architect because he needed to
    obtain a building permit.  As the trial judge observed, the building permit had
    been issued in the fall of 1986, well prior to the 1987 incident, and the
    municipal parking requirements had been satisfied by means of the lease of
    parking spaces from the church to the east of 1043.  To this I would add that
    the architects evidence made it clear that it had not asked Mr. Vilhena to do
    any such thing.

[55]

As
    the trial judge found, the 1987 incident occurred because Mr. Vilhena knew that
    he did not have the right to use the lane and he needed the Sochaniwskyjs
    permission to do so.

The Doctrine of Lost Modern Grant

[56]

Henderson
    v. Volk
(1982), 35 O.R. (2d) 379 (C.A.) is the leading Ontario case on
    prescriptive easements and the doctrine of lost modern grant.  In
Henderson
at p. 382, Cory J.A. (as he then was) observed that there had been a persistent,
    searching inquiry as to whether the doctrine of lost modern grant continued to
    exist in Ontario.  On behalf of this court, he found that it did and explained
    that the doctrine is the foundation for the acquisition of prescriptive easements.
    The doctrine is based on the legal fiction that the owner of property
    originally made a grant of the easement to the claimant (or its predecessor),
    despite the absence of any direct evidence that such a grant had been made.

[57]

To
    acquire an easement by prescription, the claimant must demonstrate a use and
    enjoyment of the easement under a claim of right that is continuous,
    uninterrupted, open, and peaceful, for a period of 20 years: see
Henderson
,
    at p. 383.

[58]

This
    appeal turns on the scope of the requirement that use must be under a claim of
    right or as of right.

[59]

In
Henderson
,

at p. 383, use as of right is described as enjoyment
    that is
not
at the will and pleasure of the owner of the property over
    which the easement is sought to be established (i.e. the owner of the servient
    tenement).  That is, enjoyment of the easement must not be permissive but, instead,
    as if the claimant had the right to the easement.  In short, the claimants use
    of the easement must be as if it had obtained a legal grant of the easement from
    the owner of the servient tenement.

[60]

Statements
    by this court in two other prescriptive easement cases play a significant role in
    this appeal.  The first statement is found in
Garfinkel v. Kleinberg and
    Kleinberg
,

[1955]
    O.R. 388, at p. 394:

acknowledgment by the dominant owner that his [use] is not as
    of right, at any time during the 20 year period will prevent his acquiring a
    prescriptive right.

[61]

The
    second is Blair J.A.s statement in
Kaminskas v. Storm
, 2009 ONCA 318,
    at para. 30:

User as of right means that the use has been uninterrupted,
    open, peaceful and without permission for the relevant time.

[62]

Finally,
    it is important to bear in mind the policy considerations that underpin the
    doctrine of lost grant.

[63]

In
Henderson
,

at p. 384, Cory J.A. described these policy
    considerations, stressing the need for caution before finding that a
    prescriptive easement has been established.  He wrote this:

It is right and proper for the courts to proceed with caution
    before finding that title  by the doctrine of lost modern grant was
    established  It tends to subject a property owner to a burden without
    compensation.  Its ready invocation may discourage acts of kindness and good
    neighbourliness; it may punish the kind and thoughtful and reward the aggressor.

[64]

In
Temma Realty Co. Ltd. v. Ress Enterprises Ltd.
,

[1968] 2 O.R. 293, this court
    considered a different aspect of the doctrine of lost grant, namely, the
    character of the use that must be proved and whether that use accommodated the
    dominant tenement.  Nonetheless, when determining whether a prescriptive right
    of way over a road had been proved, the court was careful to consider the
    evidence in light of the underlying policy considerations, saying at p. 297:

Where such [use by the neighbour] does not injure the road or
    interfere with the owners use of it, the tendency of the Courts is to lean
    against a doctrine that would permit such a neighbourly accommodation from
    ripening into a legal right as against the true owner.

Application of the Doctrine to the Present Case

[65]

With
    these principles in mind, I turn to the question that lies at the heart of this
    appeal:  what are the legal consequences of the 1987 incident?  Did that
    incident interrupt the running of the prescriptive period?

[66]

The
    appellant acknowledges that had Dr. Sochaniwskyj signed the 1987 document, its
    claim to an easement would be defeated because use thereafter would have been
    by way of permission.  Permissive use cannot be use as of right.

[67]

But,
    the appellant argues, because Dr. Sochaniwskyj did not sign the 1987 document, Mr.
    Vilhenas use of the lane thereafter was without permission.  Thus, it says,
    Mr. Vilhenas use was as of right within the
Kaminskas

definition:
    uninterrupted, open, peaceful and without permission.  Accordingly, the 1987
    incident did not interrupt the prescriptive period.

[68]

The
    respondent, on the other hand, relies on the statement in
Garfinkel
.
    It submits that the 1987 incident amounts to an acknowledgment by Mr. Vilhena
    (the dominant owner) that his use was not as of right and, as was stated in
Garfinkel
,
    such an acknowledgment interrupts the running of the prescriptive period.

[69]

In
    my view, the respondent is correct.

[70]

As
    we have seen, use as of right means that the claimant has used the easement as
    if it owned the easement  that is, as if the owner had given the claimant (or
    its predecessor) a grant of the easement.  When a person has a grant, he or she
    is entitled to use the easement as of right.  There is obviously no need to
    seek the true owners permission to use the easement when one has the right to
    use it.  Thus, it can be seen, asking permission to use the lane is simply inconsistent
    with using it as a matter of entitlement (i.e. as of right).

[71]

If
    Mr. Vilhena had the right to use the lane, there would have been no need to
    seek permission as he did when he asked Dr. Sochaniwskyj to sign the 1987
    document.  That was the whole point of the 1987 document: to gain the right to
    use the lane, rather than to remain in the precarious position of relying on
    the Sochaniwskyjs neighbourly forebearance.  Thus, presenting the 1987
    document to Dr. Sochaniwskyj was, in the words of
Garfinkel
, an
    acknowledgment by Mr. Vilhena that his enjoyment of the lane was not as of
    right and that he needed permission to use it.

[72]

In
    fact, the 1987 document contains an express acknowledgment by Mr. Vilhena to
    this effect.  It will be recalled that one of the recitals in the 1987 document
    states there exists no mutual right-of-way in favour of either Vilhena or
    Sochaniwskyj with respect to the use of that portion of the driveway area owned
    by the other.

[73]

The
    point that an acknowledgment of title will stop the clock from running for
    claimants seeking to prove a right based on prescription was well-expressed in
    the letter given to the appellant on the closing of the purchase of 1043 from
    Mr. Vilhena.  The appellants real estate lawyers cautioned the appellant that:

In order to acquire and maintain a prescriptive easement, it is
    important that you do not ever contact the property owner to the west to
    request consent to the use of the Laneway, as a request such as this is
    inconsistent with your prescriptive easement position over the Laneway lands.
    You must always take the position that your prescriptive easement is as of
    right .

[74]

Just
    so.  The 1987 incident was a request for consent (permission) to use the lane
    and, as such, an acknowledgement by Mr. Vilhena that he needed permission to
    use it.  That acknowledgment was inconsistent with use of the lane as of
    right.

[75]

It
    is for these reasons that I accept the respondents submission on this matter.

[76]

A
    word is in order to explain why I reject the appellants submission.  The
    appellants submission hinges on his characterization of Mr. Vilhenas use of
    the lane after the 1987 incident as being without permission.  Such a
    characterization completely misunderstands the legal implications of Dr.
    Sochaniwskyjs refusal to sign the 1987 document.

[77]

By
    refusing to sign the 1987 document, Dr. Sochaniwskyj refused to grant Mr.
    Vilhena an easement over the lane.  The legal effect of his refusal was
    tantamount to saying to Mr. Vilhena I will not give you any legal right to use
    the lane.  I may permit you to use it, as I have in the past, but only so long
    as I wish.  By refusing to give you any legal right to use the lane, I am
    telling you that I can and will withdraw my permission at will.  In other
    words, in law, the refusal to sign the 1987 document (i.e. grant the easement) made
    it clear that any future use by Mr. Vilhena of the lane was solely at the
    discretion of the Sochaniwskyjs.

[78]

This
    understanding of the legal consequences of Dr. Sochaniwskyjs refusal to sign
    the 1987 document is borne out by the events in the two years that followed the
    1987 incident.  During that period, it will be recalled, Dr. Sochaniwskyjs use
    of his own lane was being impeded by Mr. Vilhena (and his tenants and invitees).
    Dr. Sochaniwskyj took steps to preclude their use of the lane (i.e. to withdraw
    his permission at will).  Through his son, he paid for and installed a
    commercially produced sign stating that the lane was private property belonging
    to 1045.  The parking tickets he placed on cars behind 1045 reinforced that
    message.

[79]

This
    understanding also explains why the reasoning in
Kaminskas
is fully
    congruent with that in both
Henderson
and
Garfinkel
.  In
Kaminskas
,
    the issue was whether the granting of permission by the owner of the servient
    tenement defeated a prescriptive easement.  It was within that context that
    Blair J.A. defined the term as of right and held that permission granted did
    defeat the prescriptive easement.  Here, as I have explained, the refusal to
    sign the 1987 document made it clear that Mr. Vilhenas use was with the
    Sochaniwskyjs permission, and not as of right.  Therefore, Mr. Vilhenas use
    did not meet the definition of as of right in
Kaminiskas
.

[80]

Furthermore,
    the policy considerations that underpin the doctrine of lost modern grant are
    fully at play in this proceeding.  Should the doctrine be found to apply, the
    owner of 1045 will be subject to the burden of a right of way without compensation.
    Despite being the legal owner of the lane, it will be limited in its own use of
    the lane.  For example, the respondent could not park on the lane in such a way
    as to preclude the appellant from using it as a right of way to gain access to
    the parking behind 1043.  And, despite being the legal owner of 1045, the
    respondent would lose the right to extend its building to the lot line, even
    though that is permitted by the municipal by-laws.  Such an encroachment on the
    respondents ownership rights would be particularly unsettling in light of the
    fact that Mr. Vilhena took the full benefit of such a right when he was the
    owner of 1043.

[81]

As
    the evidence makes plain, the Sochaniwskyjs acted throughout as considerate, thoughtful
    neighbours.  They were content to permit the owners of 1043 and their tenants,
    employees and invitees to use the lane, so long as that use did not interfere
    with their own use of the lane.  Dr. Sochaniwskyj is a non-confrontational man,
    with a personal history that well explains why he may have been more
    acquiescent than others might be in similar circumstances.  Even when he
    asserted his ownership rights after the 1987 incident, he did so in a
    non-confrontational manner.  Rather than confronting would-be users of the
    lane, as we have seen, he had his son post a sign on his building next to the
    lane, advising that the lane was private property belonging to 1045.

[82]

Were
    there any ambiguity in my mind about whether the 1987 incident interrupted the
    prescriptive period, I would resort to this courts exhortation in
Temma
    Realty
to lean against applying the doctrine in a fashion that would
    permit a neighbourly accommodation from ripening into a legal right as against
    the true owner.

[83]

The
    policy of the law in this area is clear:  the law ought not to discourage
    considerate neighbourly behaviour by creating the fear that those acts will
    later be construed as acquiescence sufficient to give your neighbour rights
    over your land.  To use the language of
Henderson
, the doctrine of lost
    grant ought not to punish Dr. Sochaniwskyj for being a kind and good neighbour nor
    ought it to reward the aggressor, Mr. Vilhena.

Conclusion

[84]

The
    trial judge was in the best position to determine whether the 1987 incident
    demonstrated that Mr. Vilhena sought permission to use the lane and, hence, was
    an acknowledgment that he was not using it as of right.  There is no basis for
    appellate interference with those findings.  Further, in my view, the trial
    judge correctly applied the relevant legal principles in concluding that the 1987
    incident interrupted the prescriptive period.

DISPOSITION

[85]

Accordingly,
    I would dismiss the appeal with costs in the agreed-on amount of $16,000, all
    inclusive.

E.E. Gillese J.A.

Laskin
    J.A. (Concurring):

A.

introduction

[86]

I
    have read the judgment of my colleague Gillese J.A.  Although I reach the same
    result as she does, I do so for different reasons.

[87]

Both
    the application judge and my colleague rely on the document Vilhena proffered
    to Sochaniwskyj in February 1987, which Sochaniwskyj refused to sign.
    According to the application judge and Gillese J.A., that document amounted to
    an acknowledgment by Vilhena that he was not using the lane as of right.  And
    further, in my colleagues words, at para. 79 of her reasons, the refusal to
    sign the 1987 document made it clear that Mr. Vilhenas use was with the
    Sochaniwskyjs permission, and not as of right.

[88]

I
    do not agree.  If Sochaniwskyj had signed the document, he would have granted
    permission to Vilhena to use the lane and Vilhena would have acknowledged that
    going forward he was using the lane with Sochaniwskyjs consent or permission.
    Permission would have broken the running of the prescriptive period.  However,
    Sochaniwskyj did not sign the document.  In my view, if any inference can be
    drawn from Sochaniwskyjs refusal to sign the document, it is that Vilhenas
    later use of the lane was
not
with permission.

[89]

However,
    Sochaniwskyjs later conduct  specifically, asking his son to post signs
    restricting use of the lane to residents or guests of his property  was
    sufficient to defeat Vilhenas claim to a prescriptive easement.  Posting the
    signs was an overt act of protest against Vilhenas use of the lane that
    interrupted the running of the prescriptive period.  For this reason, I do not
    believe the appellant is entitled to an easement.  Therefore, I reach the same
    result as my colleague and would dismiss the appeal.

[90]

Gillese
    J.A. has thoroughly set out the factual background of this litigation, and it
    is unnecessary to repeat it here.  In these reasons, I will deal with the legal
    requirements of a prescriptive easement by lost modern grant, the policy
    considerations underpinning this dispute, and their application to this case.

B.

prescriptive easements by lost modern grant

[91]

As
    my colleague notes, the acquisition of a prescriptive easement by lost modern
    grant rests on a judicial fiction.  The law pretends that an easement was
    granted at some time in the past but that the grant of the easement has gone
    missing.  A prescriptive right emerges from long, uninterrupted, unchallenged
    use for a specified period of time  in Ontario, 20 years: Bruce Ziff,
Principles
    of Property La
w, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at
    p. 386.

[92]

But
    while the right to a prescriptive easement protects the dominant owners
    reliance on long usage, courts are naturally reluctant to find a prescriptive
    right because doing so burdens the servient owners land without compensation.
[5]
And now, in Ontario, the availability of a prescriptive easement is quite
    limited.  We have abolished the acquisition of easements by prescription over
    property in the Land Titles system:
Land Titles Act
, R.S.O. 1990, c.
    L.5, s. 51.
[6]

[93]

However,
    a prescriptive easement by lost modern grant continues to be available in
    Ontario outside the Land Titles system.  The requirements for acquiring one are
    well established.  The use must be continuous for the prescriptive period and
    it must be as of right.  This appeal turns on the as of right requirement.

[94]

As
    of right is a technical, legal phrase that consists of three elements.  First,
    the dominant owners use must be without violence or force.  In this context,
    violence is broadly defined  even use
, for
    example, in
the face of protest by the servient owner may demonstrate
    that the dominant owners use was not without violence.

[95]

Second,
    the dominant owners use must be without secrecy.  The law will not allow a
    prescriptive right to be acquired where the use has not been open.  If a
    dominant owners use has been covert, then it cannot be inferred that the
    servient owner acquiesced in the use.

[96]

Third,
    the dominant owners use must be without the servient owners permission.
    Where use is by permission or on the consent of the servient owner, it cannot
    be said to be as of right.  Permission can be withdrawn at any time; thus use
    by permission is inconsistent with use as of right: see Ziff,
Principles
    of Property Law
, at p. 388; E. H. Burn and J. Cartwright,
Cheshire and
    Burns Modern Law of Real Property
, 17th ed. (Oxford: Oxford University
    Press, 2006), at pp. 614-15.

[97]

Blair
    J.A. summed up these three elements of as of right usage in
Kaminskas v. Storm,
at para. 30:

User as of right means that the use has been uninterrupted,
    open, peaceful and without permission for the relevant period of time.  It is
    often described using the Latin maxim
nec vi, nec clam, nec precario
(i.e., without force, without secrecy, and without precario). Precario in
    this sense is taken to mean [t]hat which depends not on right, but on the will
    of another person
Nec precario
, therefore, means without
    permission. [Internal citations omitted.]

[98]

Two
    points about these elements of as of right usage are important for this
    appeal.  First, what underlies all three elements is the notion of
    acquiescence.  Where a servient owner acquiesces in another persons use of
    land for a long period of time, and does nothing to prevent that use though
    able to do so, the law reasonably concludes that the use has been rightfully
    enjoyed  enjoyed as of right.  The law then protects this usage by granting
    a prescriptive easement.

[99]

In
Dalton v. Angus
(1881), 6 App. Cas. 740 (H.L.), Fry J. emphasized that
    prescriptive rights rest on acquiescence, at pp. 773-74:

But leaving such technical questions aside, I prefer to observe
    that, in my opinion, the whole law of prescription and the whole law which
    governs the presumption or inference of a grant or covenant rest upon
    acquiescence. The Courts and the Judges have had recourse to various expedients
    for quieting the possession of persons in the exercise of rights which have not
    been resisted by the persons against whom they are exercised, but in all cases
    it appears to me that acquiescence and nothing else is the principle upon which
    these expedients rest.

[100]

Admittedly, a
    fine line may well exist between acquiescence and implied permission or
    consent.  And, as I discuss next, the policy considerations surrounding a
    prescriptive easement may, in some contexts, argue for taking a generous view
    of implied permission.  Nonetheless, whether a servient owner acquiesces in
    anothers use of the property or impliedly permits or consents to its use turns
    on the facts of each particular case.

[101]

The second
    important point about as of right usage is that it does not depend on a
    dominant owners mistaken view of its rights.  The dominant owner knows that
    the servient owner owns the property in question, but uses it anyway.  As of
    right usage depends only on long, uninterrupted and unchallenged usage, which
    the servient owner could have prevented but did not.

C.

Policy considerations

[102]

The policy
    considerations relating to easements by prescription, and to this case in
    particular, are varied.

[103]

One obvious
    consideration is that awarding an easement by prescription burdens the servient
    owners land without compensation.  This policy consideration suggests that
    courts should tread cautiously before concluding that a dominant owner has
    acquired an easement by prescription.

[104]

A second policy
    consideration is the one referred to by Cory J.A. in
Henderson v. Volk
,
    at p. 384: Its ready invocation may discourage acts of kindness and good
    neighbourliness; it may punish the kind and thoughtful and reward the
    aggressor.  This consideration, too, argues for caution before making a
    finding that a prescriptive easement by lost modern grant has been acquired.

[105]

A third
    consideration, however, is that the courts ought reasonably to protect the
    dominant owners reliance interest where the usage has been open and
    uninterrupted for many years and where the evidence clearly shows that the
    servient owner has acquiesced in that usage.

[106]

A final policy
    consideration applies directly to this case.  The courts should not propound
    rules that reward a dominant owners surreptitious behaviour and that
    discourage neighbours from approaching one another about potentially litigious
    issues.  Instead, the rules should encourage property owners to alert one
    another to concerns about mutual usage and to reach fair and reasoned
    resolutions to these concerns.

[107]

Moreover,
    holding that a dominant owners attempt to secure an agreement to use the
    servient owners property by itself defeats the acquisition of a prescriptive
    easement creates perverse incentives.  This holding encourages dominant owners
    to follow the very advice given by the appellants real estate lawyers: never
    contact the servient owner, never seek the servient owners consent or
    permission, pretend that your use is of right.   A dominant owner would have no
    incentive to try to reach an amicable agreement with the servient owner and
    every incentive not to do so.

[108]

By receiving a
    proposed agreement, a servient owner is also given notice of the dominant
    owners potential claim and, consequently, an opportunity to protect its
    interests.  For instance, a servient owner could always defeat the acquisition
    of a prescriptive easement by granting express permission to the use, or by
    insisting on a modest fee paid periodically.

D.

application to this case

(a)

Use of the lane before 1987

[109]

The application
    judge found  and this finding is not challenged on appeal  that from 1980-86,
    Ms. Orpen used the lane openly and without permission to access her parking at
    the back of 1043 Bloor West.  In other words, Sochaniwskyj acquiesced in her
    use.  Similarly, it would seem that Sochaniwskyj acquiesced in Vilhenas use
    from the time Vilhena purchased the property in 1986 to February 1987.

(b)

The 1987 document

[110]

In February
    1987, Vilhena asked Sochaniwskyj to sign an agreement giving Vilhena the right
    to use the lane to access his parking for five years, at an annual fee of
    $300.  Sochaniwskyj refused to sign the agreement.  What is the effect of
    Vilhenas proffering of the agreement, and of Sochaniwskyjs refusal to sign
    it, on the third element of as of right use  that the dominant owners use
    be without the servient owners permission?  That is the main question on
    appeal.

[111]

Both the
    application judge and my colleague say that the mere proffering of the
    agreement, though it was not signed, amounted to an acknowledgment by Vilhena
    that his use was not as of right: see
Garfinkel v. Kleinberg and
    Kleinberg
, at p. 394.  Gillese J.A. also says that Sochaniwskyjs refusal
    to sign the agreement shows that Vilhenas future use of the lane was only with
    Sochaniwskyjs permission.  Respectfully, I take a different view from that of
    the application judge and Gillese J.A.

[112]

I begin by
    looking at Vilhenas use up to February 1987, that is, up until the time he
    proffered the agreement.  Certainly, up until then, Vilhena used the lane
    without Sochaniwskyjs permission.  The evidence shows that Sochaniwskyj
    acquiesced in Vilhenas use.  And, nothing in the provisions of the proposed
    agreement suggests otherwise.

[113]

I then turn to
    the proffering of the agreement itself and to Sochaniwskyjs refusal to sign
    it.  Did either alter the basis on which Vilhena used the lane after February
    1987?

(i)

The effect of Vilhenas proffering of the agreement on his future use of
    the lane

[114]

By proffering
    the agreement, Vilhena unquestionably sought Sochaniwskyjs permission to use
    the lane.  But because Sochaniwskyj refused to sign the document, there was no
    agreement  no meeting of the minds  and therefore no acknowledgment of the
    basis of Vilhenas later use of the lane.  His later use could have been with
    Sochaniwskyjs permission, or it could have been with Sochaniwskyjs
    acquiescence, or it could have been in the face of Sochaniwskyjs protests.
    That was a factual question the unsigned agreement does not resolve, and the
    application judge did not determine.

[115]

Gillese J.A.
    suggests that because the proposed agreement was an acknowledgement of Sochaniwskyjs
    title, it stopped the clock from running.  I disagree.  It seems to me that
    Vilhenas acknowledgment that Sochaniwskyj had legal title to the lane is
    irrelevant to the question whether Vilhenas use was as of right.  As I said
    earlier, usage as of right does not mean usage based on a mistaken view of who
    holds legal title.  Vilhena always knew and acknowledged that Sochaniwskyj
    legally owned the lane.  Vilhenas claim to a prescriptive easement was based
    on his uninterrupted usage and Sochaniwskyjs acquiescence to that usage.

[116]

Therefore, I
    conclude that the unsigned February 1987 agreement, standing alone, did not
    amount to an acknowledgement by the dominant owner [Vilhena] that his user is
    not as of right:
Garfinkel
, at p. 394.  Because Sochaniwskyj did not
    sign the agreement, the agreement did not amount to an acknowledgment of
    anything.  Therefore, by itself, the agreement did not interrupt the running of
    the prescriptive period.  The policy considerations that I referred to earlier
    support this conclusion.

(ii)

The effect of Sochaniwskyjs refusal to sign the agreement

[117]

Gillese J.A.
    says that, by refusing to sign the agreement, Sochaniwskyj was, in effect,
    telling Vilhena that any future use of the lane would only be with his
    (Sochaniwskyjs) permission.  She writes at para. 77 of her reasons:

By refusing to sign the 1987 document, Dr. Sochaniwskyj refused
    to grant Mr. Vilhena an easement over the lane. The legal effect of his refusal
    was tantamount to saying to Mr. Vilhena I will not give you any legal right to
    use the lane. I may permit you to use it, as I have in past, but only so long
    as I wish. By refusing to give you any legal right to use the lane, I am
    telling you that I can and will withdraw my permission at will. In other
    words, in law, the refusal to sign the 1987 document (i.e. grant the easement)
    made it clear that any future use by Mr. Vilhena of the lane was solely at the
    discretion of the Sochaniwskyjs.

[118]

And again at
    para. 79:

Here, as I have explained, the refusal to sign the 1987
    document made it clear that Mr. Vilhenas use was with the Sochaniwskyjs
    permission, and not as of right. Therefore, Mr. Vilhenas use did not meet the
    definition of as of right in
Kaminiskas
.

[119]

Respectfully,
    there is no evidence to support the conclusion that Sochaniwskyjs refusal to
    sign the agreement meant that Vilhenas later use, or indeed his previous use,
    was with Sochaniwskyjs permission.  If Vilhena had Sochaniwskyjs permission,
    then presumably Sochaniwskyj would have told him so, or signed the agreement,
    or negotiated another agreement.   But he did none of these things.  If
    anything, Sochaniwskyjs refusal to sign the
agreement
    showed that Vilhenas later use was not with Sochaniwskyjs consent. And,
    indeed, the evidence of Sochaniwskyjs subsequent conduct suggests that
    Vilhenas later use was
without
Sochaniwskyjs permission and against
    his will.

[120]

Therefore, in my
    view, neither Vilhenas proffering of the agreement nor Sochaniwskyjs refusal
    to sign it stopped the running of the prescriptive period.  To determine
    whether the prescriptive period was interrupted, we need to examine what
    actually happened after February 1987.

(c)

Use of the lane after February 1987

[121]

Vilhena said
    that he continued to use the lane after February 1987 as he had in the past.
    Thus, he claims that his usage was open, uninterrupted and as of right.
    Although the application judge made no finding about the basis on which Vilhena
    used the lane after February 1987, the evidence of what Sochaniwskyj did is not
    seriously disputed.  And, in my view, the evidence of Sochaniwskyjs conduct
    after he refused to sign the proposed agreement contradicts Vilhenas claim.

[122]

In 1989,
    Sochaniwskyj asked his son to have two commercial signs made by a sign
    company.  The signs said: Private Driveway Private Parking 1045 Bloor Street
    West.  They cost approximately $250.  At his fathers request, Sochaniwskyjs
    son bolted one sign to the side wall along the lane, angled towards the street
    about ten feet above the ground, and another to a steel post in the parking
    area in the back of the property.  Though Vilhena denied at trial that a sign
    was mounted in the lane, the respondents do not seem to dispute that it was in
    fact posted.

[123]

A couple of
    weeks later, the sign posted in the lane was removed and the other sign was
    knocked down.  It is unclear from the record who removed the signs, though
    Vilhena denied any involvement.  When asked why his father did not replace the
    signs, Sochaniwskyjs son testified that his father had not wanted to spend the
    money when he knew that they would just get taken down again.

[124]

Use as of
    right means use without violence.  Use without violence is broadly defined.
    It means not only that there has been no physical obstruction of the easement,
    but also that the use did not proceed in the face of protests from the servient
    owner that might be seen as challenging the claimed right: Ziff,
Principles
    of Property Law,
at p. 388.

[125]

In the context of
    a dispute between neighbours, where the servient owner is a
    non-confrontational man, the posting of the signs was an overt act of protest
    that demonstrated the use was disputed.  The underlying policy considerations
    militate against the courts taking a narrow view of the meaning of protest in
    cases like this.  We should not require servient owners to take expensive,
    drastic, or aggressive measures to assert their rights, so long as their
    actions clearly signify that the use is contested.  The signs are enough, in my
    view, to show that Vilhenas use of the lane after February 1987 was not
    without violence.

[126]

For these
    reasons, I agree with the result reached by the trial judge and Gillese J.A and
    would dismiss the appeal.

E.

Conclusion

[127]

In my view, the
    1987 document by itself did not defeat the acquisition of a prescriptive
    easement by lost modern grant.  However, Sochaniwskyjs later posting of
    Private Driveway signs along the lane was sufficient to interrupt the running
    of the prescriptive period.  Accordingly, I would dismiss the appeal.

John
    Laskin J.A.

MacPherson (Concurring):

[128]

I agree with
    Gillese J.A. that the 1987 incident interrupted the prescriptive period and
    with her analysis in support of this conclusion.

[129]

I agree with
    Laskin J.A. that Sochaniwskyjs later posting of Private Driveway signs
    along the lane was sufficient to interrupt the running of the prescriptive
    period and with his analysis in support of this conclusion.

[130]

On either basis,
    the prescriptive period did not run for the required 20 years. Accordingly, I
    too would dismiss the appeal.

Released: February 14, 2013 (J.L.)

J.C.
    MacPherson J.A.

[1]
In the proceedings below, the lane is sometimes referred to as a driveway.

[2]
1043 migrated to the Land Titles system on April 28, 2003.  It was undisputed
    at trial that any prescriptive rights had to have accrued prior to that date.

[3]
The rear part of the lane was a garden during this period.  Although claimed at
    first instance as part of the right of way, in oral submissions in this court,
    the appellant stated that no claim was made to that rear part of the lane.

[4]
In these proceedings, the respondent took the position that the Notice was
    fraudulent, void and of no effect as against it.

[5]
A servient owner is the owner of land over which one exercises an easement.  A
    dominant owner is an owner who seeks the right to an easement.

[6]
The lane and adjoining property at issue in this dispute were transferred into
    the Land Titles system in 2003.  Thus, the appellant had to establish the
    requisite use during a 20 year period before 2003.