COURT OF APPEAL FOR ONTARIO

CITATION: Corsi v. Skanes, 2018 ONCA 661

DATE: 20180724

DOCKET: C64935

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Frankie Paul Corsi

Plaintiff (Appellant)

and

Sean J. Skanes (Badge #1130), York Regional Police
    and
Her Majesty the Queen in Right of Ontario

Defendants (Respondents)

Frankie Paul Corsi, acting in person

Suhaib Ibrahim, for the respondent

Heard and released orally: July 17, 2018

On appeal from the decision
    of Justice J. Di Luca of the Superior Court of Justice, dated September 25,
    2017.

REASONS FOR DECISION

[1]

The appellant, Frankie Paul Corsi, appeals the
    motion judges order, dismissing his action under r. 2.1.01 of the
Rules
    of Civil Procedure
as being frivolous and vexatious.

[2]

The appellant was charged under ss. 172 and 128 of the
Highway
    Traffic Act
,

R.S.O. 1990, c. H.8

(the Act)
. In accordance
    with the Act, his licence and vehicle were seized for seven days.

[3]

The appellant
    subsequently issued a statement of claim seeking $75,000 in punitive damages
    and $2,100 in travel expenses against the respondents, Police Constable Skanes,
    the York Regional Police, and her Majesty the Queen in Right of Ontario.  He
    alleged that the seizure of the vehicle he was driving amounted to theft
    because it was done without his consent or court order.

[4]

The motion judge held
    that the Act authorizes officers to seize vehicles when they have reasonable
    and probable grounds to believe that certain offences including stunt
    driving contrary to s. 172(1) of the Act  had been committed. He concluded
    that there was no legal merit to the appellants claim and dismissed it.

[5]

The appellant essentially argues
that the motion judge erred in concluding
    there was no legal merit to his claim. He submits that the seizure of the
    vehicle violated his rights under s. 8 of the
Charter
, and what he says was his right to be
    heard and to an appeal, before seizure. He says that because he did not own the
    vehicle, the seizure violated the property rights of the owner.

[6]

We reject these arguments. It was
    open to the motion judge to conclude that his claim, on its face, was incapable
    of success and, as such, the action should not continue. Further, the appellant
    did not challenge the constitutionality of s. 172 of the Act in his statement
    of claim. In any event, this court has concluded that s. 172 is constitutional:
    see
R. v. Raham
(2010)
, 99 O.R. (3d) 241.

[7]

Accordingly, the appeal is
    dismissed. The respondents shall be entitled to their costs of the appeal,
    fixed in the amount of $1,000, inclusive of disbursements and H.S.T.

Alexandra Hoy
    A.C.J.O.

K.M. van Rensburg
    J.A.

G. Pardu J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Da Silva v. Gomes, 2018 ONCA 610

DATE: 20180704

DOCKET: C64476

Epstein, Lauwers and van Rensburg JJ.A.

BETWEEN

Michael
    Da Silva, Daniela Da Silva, Daniel Da Silva and

Michelle Da Silva

Plaintiffs (Appellants)

and

Brandon
    Gomes,
Hamilton Sparta Sports Club
,

The Ontario Soccer Association Incorporated
,
Peter Gesse
,

Jack
    Myslin
and
Hildeberto Leal

Defendants (
Respondents
)

Daniel DUrzo, for the appellants

Kayla Kwinter, for the respondents other than Brandon
    Gomes

Heard: June 29, 2018

On appeal from the judgment of Justice M.J.L. Shaw of the
    Superior Court of Justice, dated September 29, 2017 and reported at 2017 ONSC
    5841.

REASONS FOR DECISION

[1]

In the course of
    a soccer game, Brandon Gomes punched Michael Da Silva. Mr. Gomes was criminally
    convicted for the assault.  Mr. Da Silva was injured.  He and his family, who
    bring their claims under the
Family Law Act
, R. S. O. 1990, c. F.3, sued Mr. Gomes, the Hamilton Sparta
    Sports Club for which Mr. Gomes played, the Ontario Soccer Association
    Incorporated, under whose auspices the game was played, and several other
    associated individuals.

[2]

The motion judge
    granted summary judgment dismissing the action against the respondents other
    than Mr. Gomes. Although he was represented before the motion judge, Mr. Gomes
    did not participate in the appeal

[3]

We dismiss the
    appeal for the following reasons.

The Facts

[4]

Mr. Da Silva and
    his team were playing in a soccer match with Mr. Gomes team. Mr. Da Silva was
    in an altercation with one of Mr. Gomes teammates, when Mr. Gomes ran over and
    punched Mr. Da Silva in the face, injuring him. The motion judge noted, at para.
    10, that, on discovery Mr. Gomes testified that he did not know why he punched
    Mr. Da Silva. It was an impulsive act; he knew he was not to punch other
    players and did it anyways.

The Issues

[5]

The appellants
    make three arguments:

1.    The respondents were negligent in their supervision of
    the game, and breached several standards of care, including the standard for
    coaches, for on-field supervision and for player conduct;

2.    The respondents were liable under the
Occupiers
    Liability Act
R.S.O. 1990, c. 0.2. for failing to ensure that the playing
    field was safe; and

3.    The motion judge erred in finding that these arguments on
    the evidence did not raise genuine issues requiring a trial.

The Analysis

[6]

We address each
    issue.

(1)

Negligence

[7]

The motion judge
    listed the particulars of the negligence claimed by the appellants at para. 64:

·

The [respondents] ought to have known of Gomes violent behaviour
    given the two prior incidents and should have anticipated his conduct and not
    allowed him to play in the game or taken other action to prevent the assault;

·

The [respondents] ought to have known of Gomes' violent behaviour
    and ran on the field to stop him before he attacked Da Silva;

·

The coach was not properly trained;

·

Proper policies and procedures were not in place with respect to
    training of coaches and player safety;

·

Proper policies were not in place to ensure that Gomes' prior
    conduct was reported by [the respondent] Leal which could have led to Gomes'
    suspension prior to this soccer game.

[8]

The appellants
    case rests on proving the claim that Mr. Gomes previous conduct showed a risk that
    he would commit violence against an opposing player, and that accordingly, his
    coach, his team and the Association were negligent in permitting him to play.

[9]

The motion judge
    rejected this claim. She found, at para. 30: Based on the material before the
    court, there is no evidence that Gomes acted in a physically aggressive or
    violent manner during a soccer game prior to September 9, 2010. She noted, at
    para. 73, that Mr. Gomes had twice been disciplined before the game in question,
    not for violence, but for being verbally inappropriate with referees. She found,
    at para 73:

In my view, the two prior incidents were not predictive or
    demonstrative of the type of violent behaviour demonstrated by Gomes when he
    assaulted Da Silva. Gomes' prior two incidents of making inappropriate
    comments to the referees was not the type of behaviour that should have led
    Leal, acting as a reasonable coach, to conclude that there was a risk regarding
    Gomes' behaviour.

[10]

The motion judge
    added, at para. 96:

Gomes admitted that he knew he was not to punch another player
    but did so anyways. There is no evidence that had he been disciplined in some
    fashion following the two prior incidents that he would not have assaulted Da
    Silva on September 9, 2010.

[11]

On the issue of
    the standard of care, the motion judge noted that the appellants had not proven
    their case:

·

The appellants rely upon a code of conduct but did not file such
    a document for the motion. (para. 59)

·

The appellants did not file any other documentation purporting to
    be any written standards governing the respondents. They have not filed any
    written policies or procedures or standards which they allege have been
    breached. (para. 61)

·

The appellants submitted no evidence about written policies or
    procedures from [the respondents] Hamilton Sparta or the OSA regarding the
    training of coaches. (para. 90)

·

The coach was properly qualified (para. 75)

·

The appellants took the position that the court cannot make a
    determination of the standard of care required of a coach without an expert
    opinion, but failed to file such a report for this motion. (para. 55)

·

There was ample time for the appellants to assemble the necessary
    evidence.

[12]

The motion judge
    returned to the core point, at para 78:

Gomes' evidence was that he knew he was not to punch other
    players. His evidence was that he assaulted Da Silva impulsively. Based on
    Gomes' evidence, even if there was a code of conduct and even if he was made
    aware of it, it would not have prevented him from engaging in behaviour that
    was so beyond the realm of what is reasonable. He assaulted Da Silva and was
    convicted of an offence which resulted in a suspension from the league.

[13]

With respect to
    the issue of causation, the motion judge found, at para 94:

Based on the evidence, I am unable to conclude that the lack of
    or improper discipline would have deterred Gomes such that the assault upon Da
    Silva would not have occurred. Gomes' evidence was that he knew he could not
    punch another player but did so anyways. His evidence was that the assault was
    not premeditated and, in fact, was an unprovoked and impulsive act.

[14]

All of these
    finding were open to the motion judge on the evidence, and the appellant has
    not shown that she made any palpable and overriding errors.

[15]

As for the
    applicable law, the motion judge relied on the school board cases, which
    provide useful analogues. The law is clear that supervising authorities are not
    legally responsible for a sudden unexpected event in the midst of an
    acceptable, safe activity:
Patrick v. St. Clair Catholic District School Board
[2013] O.J. No. 6216, at para. 266.
    See
Lee (Litigation
    Guardian of) v. Toronto District School Board
[2013] O.J. No. 1157 at paras.
    104-05;
Rollins
    (Litigation Guardian of) v. English Language Separate District School Board No.
    39
, [2009] O.J. No.
    6193 at para. 170, and cases cited in it, appeal dismissed 2012 ONCA 104,
    [2012] O.J. No. 646. The motion judge did not err in accepting and applying
    this law.

(2)

The
Occupier's Liability Act

[16]

The appellants
    argue that the respondents were liable under the
Occupier's Liability Act
for failing to ensure that the
    playing field was safe. The motion judge dismissed this argument: there was no
    evidence that there were any site safety issues or that the playing field was
    not safe, and no evidence that the respondents were in breach of any
    obligation owed under the Act (para. 65). This finding was also open to the
    motion judge and she made no palpable and overriding error in reaching it.

(3)

The Appropriateness of Summary
    Judgment

[17]

The motion
    judges self-instruction on the test for summary judgment was correct (paras.
    46-48). She found that the case was not complex and the key facts were not in
    dispute (para. 52). There were no credibility issues to resolve (paras. 53-54).
    Her comments on the absence of critical evidence are noted above. We find no
    error in her consideration and application of the test for summary judgment.

[18]

The appellants
    case foundered on the absence of evidence. The motion judge rightly noted, at
    para. 49: The responding party must "lead trump or risk losing,"
    citing
1061590
    Ontario Limited v. Ontario Jockey Club
[1995] O.J. No. 132, 21 O.R. (3d) 547 (C.A.). In a motion
    for summary judgment, the court can reasonably assume that
the parties
    have placed before it, in some form, all of the evidence that will be available
    for trial
, as Corbett J. noted
    in
Sweda v. Egg
    Farmers of Ontario
,
2014 ONSC 1200 at para. 27, affirmed
    2014 ONCA 878.
This is trite
    law.

Disposition

[19]

The appeal is dismissed,
    with costs fixed at $7,500 all-inclusive, payable by the appellants to the
    respondents.

Gloria Epstein J.A.

P. Lauwers J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Di Gregorio v. Sunwing Vacations Inc., 2018 ONCA
    655

DATE: 20180720

DOCKET: C64960, C64961, C64962 and C64963

Feldman, Hourigan and Brown JJ.A.

DOCKET: C64960

BETWEEN

Daniel Di Gregorio, Mary Di Gregorio

and Raymond Di Gregorio

Plaintiffs/Appellants

and

Sunwing
    Vacations Inc. and
AM Resorts, LLC

Defendants/
Respondent

DOCKET: C64961

BETWEEN

Natalie Di Gregorio, Finaldo Di Gregorio, Leonarda Di Gregorio,

Norelle Di Gregorio, Sara Di Gregorio, Monica Di Gregorio,

Carmen
    Pugliese, Marisa Pugliese, Warren Pitton, Eduarda Pitton,

Olivia
    Pitton, Carla Pitton and Robert J. Dagostino

Plaintiffs/Appellants

and

Sunwing
    Vacations Inc.,
AM Resorts, LLC. and

AMR
    Resort Management, LLC.

Defendants/
Respondents

DOCKET: C64962

BETWEEN

Daniel Di Gregorio, Mary Jane Di Gregorio, Raymond Di
    Gregorio,

Johnny Pitton, Armand Pitton and Candida Pitton

Plaintiffs/Appellants

and

AMR
    Resort Management, LLC

Defendant/Respondent

DOCKET: C64963

BETWEEN

Johnny Pitton, Armand Pitton and Candida Pitton

Plaintiffs/Appellants

and

Sunwing
    Vacations Inc. and
AM Resorts, LLC

Defendants/
Respondent

William G. Scott, for the appellants

Theresa Hartley and Irina Sfranciog, for the respondents

Heard: July 5, 2018

On appeal from the orders of Justice Kim A. Carpenter-Gunn
    of the Superior Court of Justice, dated January 10, 2018.

REASONS FOR
    DECISION

A.

introduction

[1]

This is an appeal from the orders of the motion judge dismissing the
    appellants claims based upon a foreign limitation period. For the reasons that
    follow, the appeal is allowed.

B.

Facts

[2]

The motion judge dismissed four actions commenced by the appellants as
    they relate to the respondents, AMR Resort Management, LLC (AMR) and AM
    Resorts, LLC (AM).

[3]

In September 2010, the appellants purchased a vacation package to attend
    the Dreams Punta Cana Resort and Spa (Dreams Resort) over the winter
    holidays. In their statements of claim, the appellants allege that on January
    1, 2011, Daniel Di Gregorio and Johnny Pitton were standing on a hotel room
    balcony at the Dreams Resort when the balcony railing gave way, causing the two
    men to fall to the ground and sustain injuries.

[4]

The appellants purchased their vacation package through their travel
    agent, from Sunwing Vacations Inc. (Sunwing). Sunwing had a contract with
    Perfect Tours NV (Perfect Tours) with respect to bookings at the Dreams
    Resort. Perfect Tours was party to a hotel management agreement between AMR and
    Inversiones Vilazel, a Dominican company that owned the Dreams Resort. In their
    statements of claim, the appellants allege that at all material times, AMR and
    AM operated the Dreams Resort hotel.

[5]

As noted above, the appellants commenced four separate actions in
    relation to this incident, all in Ontario. In two of those actions, the
    statements of claim were issued on December 28, 2011. In the other two, the
    statements of claim were issued on December 18, 2012. The respondents AMR and
    AM, or one of the two, are parties to each of the four actions.

C.

The decision below

[6]

AMR and AM moved to stay or dismiss the actions against them.
    Collectively, they argued that the Ontario courts do not have jurisdiction over
    the dispute and are not a convenient forum for the action. Alternatively, if
    the Ontario courts do have jurisdiction, they submitted that the laws of the
    Dominican Republic govern the action, and as the limitation period to claim in
    tort in the Dominican Republic is six months, the actions were statute-barred.

[7]

Without addressing the jurisdictional argument, the motion judge first
    dealt with the limitation issue, calling this a threshold issue. She
    determined that the laws of the Dominican Republic applied, that the actions
    could only be in tort as the appellants had no contractual relationship with
    AMR or AM, and thus that the actions were statute-barred.

[8]

The motion judge dismissed the appellants four actions as against AMR
    and AM.

D.

Analysis

[9]

On the motion, the respondents raised the issue of whether the Ontario
    courts have jurisdiction. The motion judge declined to consider that issue and
    inexplicably jumped to an analysis of the law of the Dominican Republic. That
    was an error in law. The motion judge was obliged to conduct a jurisdictional
    analysis pursuant to
Club Resorts v. Van Breda
, 2012 SCC 17,
[2012] 1 S.C.R. 572. In
    the absence of jurisdiction, courts should not be offering their views on cases
    that may not be properly before them.

[10]

Had
    the motion judge conducted the jurisdictional analysis, she would have
    recognized that AM attorned to the Ontario courts because it filed a defence.
    AMR did not file a defence; it simply joined the motion for the stay. The
    motion judge should have identified the basis for jurisdiction over AMR.

[11]

In
    our view, the relevant jurisdictional connecting factor is the claim pleaded
    based on an Ontario contract. As will be discussed below, there is a dispute
    about whether the respondents were parties to that contract. For jurisdictional
    purposes, however, a contractual connection does not require that an alleged
    tortfeasor be a party to the contract or that its liability flows immediately
    from its contractual obligations. All that is required is that a defendants
    conduct brings it within the scope of the contractual relationship and that the
    events that give rise to the claim flow from the contractual relationship:
Lapointe
    Rosenstein Marchand Melanç
on LLP. v. Cassels Brock & Blackwell LLP
,
    2016 SCC 30, [2016] 1 S.C.R. 851, at paras. 32 and 44. We conclude that there
    is a contractual connecting factor to Ontario and our courts have jurisdiction
simpliciter
over AMR. On appeal, the respondents do not challenge jurisdiction on the basis
    of
forum non conveniens
, so we need not consider that issue.

[12]

Turning
    to the motion judges analysis of the limitation period, there was no issue
    that the law of the Dominican Republic would apply. There was also no dispute
    that under the laws of that country, negligence claims are subject to a six-month
    limitation period and that contract claims are subject to a two-year limitation
    period. The difficulty lies in the motion judges analysis of the issue of
    whether the claim was in tort or in contract.

[13]

The
    first problem is that it is unclear on what basis she was determining the
    limitation period issue. The parties advised in oral argument that the issue
    was argued as a summary judgment motion. However, there is no reference to rule
    20 in the notice of motion or in the reasons. The test for granting summary
    judgment is also not referred to in the reasons and there is no analysis of
    whether it had been met. As noted, however, counsel before the motion judge
    appear to have treated the motion as one for summary judgment. The moving parties
    ought to have made the rule they were relying on explicit in their materials.

[14]

There
    is also scant analysis on the issue of whether the appellants have a claim in
    contract. Instead, the trial judge simply asserts a bald conclusion that there
    is no contract claim in relation to the respondents. To the extent that any
    analysis can be discerned it is flawed. For example, the motion judge states
    that, the only contractual breach pleaded by the plaintiffs is that between
    the plaintiffs and the vendor hotel accommodation, the Sunwing defendant That
    is incorrect. The statements of claim include the following plea:

As the vendor of the hotel accommodation which the plaintiffs
    purchased through Sunwing Vacations Inc., AMR Resort had a contractual
    obligation to ensure that the purchasers of the hotel accommodation were not
    exposed to dangers or hazards while exercising their contractual rights to
    utilize accommodations.

The same plea appears in the actions involving AM,
    simply with AM Resorts substituted for AMR Resort.

[15]

It
    is plain that a breach of contract claim was being asserted against the
    respondents.

[16]

In
    addition to this factual error, the motion judge did not address in any
    meaningful way the appellants key argument. The appellants relied on the fact
    that they had a contract with Sunwing, who had a contract with Perfect Tours,
    who in turn had a contract with the respondents. The appellants counsel argues
    that his clients had a contract with respondents via agency or as an implied contract.
    The motion judge dismissed that submission without analysis. She did not, for
    example, avert to the contract between the appellants and Sunwing, which
    provided in part:

HOTELS RESPONSIBILITY

The accommodation voucher, or electronic confirmation
    number, furnished by Sunwing shall constitute the sole contract between the
    hotels/resorts and you, the passenger. The hotels and resorts depicted in this
    brochure will not be held liable for any act, omission or event during the time
    passenger(s) are not staying at their establishments. Neither Sunwing nor these
    properties are responsible for payment of any refund for unused accommodations
    or meals as a result of late arrival or non-arrival by passenger(s), regardless
    of the cause.

[17]

At
    first blush, this provision suggests that there is a contract between the
    appellants and the hotel. This is inconsistent with the position taken by the respondents.
    We make these comments to underscore the difficulty we are having in
    understanding the motion judges chain of reasoning. We do not suggest that on
    a proper analysis the contractual arguments made by the appellants cannot be
    rejected. But legal analysis must be rigorous; a series of conclusory
    statements is not sufficient.

[18]

As
    a court of error correction, we require reasons that reveal, at a minimum, the
    decision made, the authority for the decision, the rationale for the decision,
    and the factual basis for the decision. Where that basic information is not
    provided or is not readily apparent from the record, the reasons do not permit
    appellate review.

[19]

We
    conclude that in addition to the palpable and overriding error of fact made by
    the motion judge, the reasons are inadequate, as they are not amenable to
    appellate review. They do not enlighten the parties or this court regarding the
    basis for the decision.

E.

Disposition

[20]

The
    appeal is allowed. The orders of the motion judge are set aside. The matters
    may proceed to trial or for a summary judgment motion as the parties see fit.

[21]

The
    appellants are entitled to their costs below. If there is any issue about the
    quantum of those costs, the parties shall make submissions to the motion judge.

[22]

The
    appellants are entitled to their costs of the appeal in the agreed upon amount
    of $7,500, all-inclusive.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ellis (Re), 2018 ONCA 616

DATE: 20180709

DOCKET: C64598

Watt, Pepall and Fairburn JJ.A.

IN THE MATTER OF: Robert Ellis

AN APPEAL UNDER PART XX.1 OF THE
CODE

Frank Bernhardt, for the appellant, Robert Ellis

Luke Schwalm, for the respondent, the Attorney General
    of Ontario

Janice E. Blackburn, for the respondent, the Person in
    Charge of Waypoint Centre for Mental Health Care

Heard: June 15, 2018

On appeal from the disposition of the Ontario Review
    Board, dated September 19, 2017, with reasons dated October 26, 2017.

REASONS FOR DECISION

Overview

[1]

On March 11, 2009, the appellant was found not
    criminally responsible on account of mental disorder (NCRMD). He is currently
    detained at Waypoint Centre for Mental Health Care  Provincial Forensic
    Programs Division (Waypoint or the Hospital). The appellant wishes to transfer
    from Waypoint to a less secure hospital closer to the Guelph area where his
    parents reside. Although the parties agreed at the annual review hearing that a
    transfer to a less secure hospital was appropriate, a majority of the Board
    disagreed, ordering that the appellant remain detained at Waypoint.

[2]

The appellant claims that the Board erred in two
    ways: (1) in holding a procedurally unfair hearing by failing to give notice that
    it was considering rejecting a joint submission; and (2) by failing to grant
    the least onerous and least restrictive disposition available.
[1]
The appellant urges this court
    to set aside the disposition and order that he be transferred to the Centre for
    Addiction and Mental Health (CAMH) in Toronto or St. Josephs Healthcare (St.
    Josephs) in Hamilton, or order a new hearing.

[3]

The respondents maintain that the review hearing
    was procedurally fair. The respondent Attorney General for Ontario also contends
    that the Board imposed the least onerous and least restrictive disposition.
    Accordingly, the Attorney General says that the appeal should be dismissed.

[4]

In contrast to the Attorney General, although
    for different reasons than the appellant, the respondent Hospital contends that
    the Board failed to apply the least onerous and least restrictive disposition.
    In light of the uncertainty surrounding the appellants current diagnosis, the Hospital
    maintains that the Board erred by failing to address in its reasons whether an
    independent psychiatric assessment should be ordered.

[5]

For the reasons that follow, we agree with the Hospital.

Index Offence

[6]

On October 18, 2008, the appellant forced his
    way into his parents bedroom. He had a club in one hand and a sword in the
    other. He called his parents Satanists and yelled at them to leave the children
    alone (the appellant seems to have been referring to his parents grandchildren).
    The appellant then attacked his parents. Although his mother was able to escape
    the residence, the appellant came after her and continued the attack in the
    driveway. Both parents incurred injuries.

General History of Detention

[7]

Since March 2009 the appellant has been detained
    at several different hospitals. While detained at the Southwest Centre for
    Forensic Mental Health Care (Southwest) he threatened staff members and was found
    in possession of two knives. That behaviour resulted in a transfer to Oak Ridge
    Division of the Mental Health Centre in 2010. He was later transferred to
    Ontario Shores Centre for Mental Health Sciences (Ontario Shores). While at
    Ontario Shores, the appellant made various threats to hospital staff and was
    transferred to Waypoint in February 2014. In March 2015 the appellant stabbed
    one of his treating doctors with a pen. As of the date of his hearing, he had
    not engaged in any further physical violence.

[8]

As a result of his past conduct, the appellant
    is prohibited from contacting or communicating, directly or indirectly, with
    numerous health care professionals and all staff at Southwest and Ontario
    Shores. He has remained at Waypoint since February 2014.

[9]

There is general agreement that the appellants
    previous violent and verbally aggressive outbursts have resulted from
    situations where he feels challenged, including when it is suggested to him
    that he is suffering from a psychotic condition or that he is in need of
    medication.

The Appellants Changing Diagnosis

[10]

Dr. Bergstrome became the appellants treating
    psychiatrist a few months before his yearly review that resulted in the
    disposition appealed from. Dr. Bergstromes opinion is based upon his own
    observations, as well as those of the treatment team and the appellants
    previous psychiatrist, Dr. Bradford.

[11]

Dr. Bergstrome testified about the fact that the
    appellant is currently doing well. He is involved in programs, ongoing
    education and off-unit activities. Although the appellants past diagnoses have
    included paranoid schizophrenia, requiring antipsychotic medication, at the
    time of the hearing, Dr. Bergstrome testified that he has doubts about whether
    the appellant has or has ever had a psychotic disorder. In his limited time
    dealing with the appellant, and based upon his review of Dr. Bradfords notes,
    Dr. Bergstrome testified that he has seen no evidence to support a diagnosis of
    schizophrenia, no bizarre delusions or hallucinations, no social withdrawal or
    lack of motivation.

[12]

Dr. Bergstrome testified that paranoid
    schizophrenia does not tend to resolve on its own. If the appellant suffered
    from this condition, he should have decompensated without antipsychotic
    medication. Instead, the appellants condition appears to have improved without
    any medication. This progress left Dr. Bergstrome somewhat skeptical about
    the previous diagnoses related to psychotic disorders.

The Decision Appealed From

[13]

Everyone agreed that the appellant was an
    ongoing significant threat to the safety of the public. The question was
    whether the appellant should be transferred to a less secure facility. The
    Board split on the answer to that question, with the majority refusing to grant
    the transfer.

[14]

Although the majority found that the appellant
    had not demonstrated any signs of a psychotic disorder for over a year, it was
    certain that in the past he had demonstrated signs of that type of disorder.
    Indeed, the Board emphasized that as recently as August 2016, the appellants
    then treating psychiatrist (Dr. Danyluk) was certain that there was some form
    of psychotic process at play in Mr. Ellis presentation, specifically,
    schizophrenia.  Dr. Bradford agreed with that diagnosis when he first dealt
    with the appellant, only later changing his diagnosis to a non-psychotic
    condition.

[15]

The majority found that the appellants history
    demonstrated that there is more at play than what his current condition
    presents as and that it is difficult to attribute all of Mr. Ellis
    behaviour over the years to grandiosity or narcissism. The majority viewed the
    appellants fear of treatment and medication as a potential symptom of
    paranoia. The majority found that Waypoints approach to managing the appellant
    has been to avoid confrontation by not discussing his mental health issues with
    him. The majority reasoned that these kinds of avoidance strategy may not be
    available in a less secure environment.

[16]

The majority concluded that it is almost
    inconceivable that the appellant would not be confronted in a less secure
    hospital setting and react with intimidating behaviour. Returning him to a less
    secure environment would be a serious mistake as such institutions are less
    equipped to manage the appellants risk factors. Accordingly, the majority
    found that the appellant should remain at Waypoint until his risk factors and
    behaviour are addressed.

[17]

The minority noted that over the course of the
    two years preceding the hearing, and despite not receiving any antipsychotic
    medication, the appellant had not displayed any clear evidence of psychosis or
    decompensation, thus putting the diagnosis of schizophrenia in question. In the
    minoritys opinion, the appellant could be adequately and appropriately managed
    in a less secure facility than Waypoint.

Analysis

Joint Position and Procedural Fairness

[18]

The appellant maintains that he was denied
    procedural fairness when the Board rejected a joint submission without giving
    advance notice to the parties. We disagree.

[19]

Board hearings must be procedurally fair. Where
    the Board is considering rejecting a joint position, it must provide notice to
    the parties so that they are in a position to address the relevant concerns:
Osawe
    (Re)
,
2015 ONCA 280, 323 C.C.C. (3d) 405, at para. 71.

[20]

Notice can be achieved in a variety of ways,
    including by the Board making the parties aware of the operative concerns.
    Notice may also be given on a more informal basis, such as where the Boards
    questions or comments make it clear that at least some of the Board members are
    having difficulty with the joint submission. Ultimately, the question is
    whether the NCR accused had a meaningful opportunity to present the evidence
    and argument relevant to the Boards disposition:
Osawe (Re)
,
at para. 74.

[21]

The appellants procedural fairness argument fails
    for two reasons: (1) this matter did not proceed on the basis of a joint
    position; and (2) the parties were squarely on notice that at least some
    members of the Board were having trouble with the suggestion that the appellant
    be transferred to a less secure environment.

[22]

This matter did not proceed on the basis of a
    joint submission. It commenced with Crown counsel specifically stating that he
    was reserving his position until after he had heard Dr. Bergstromes evidence
    and formed a view about the appellants level of risk. It was only at the conclusion
    of Dr. Bergstromes evidence that Crown counsel expressed his view that the
    appellant was capable of being managed in a less secure environment: I would
    suggest that the evidence, as presented, supports a transfer notwithstanding
    some very serious concerns about Mr. Elliss risk to others around him. Accordingly,
    the hearing itself was not conducted on the basis of a joint submission and the
    parties proceeded with full knowledge of that fact.

[23]

The record also demonstrates that many of the
    Board members had a strong discomfort with the proposal to transfer the
    appellant. The majority reasons for disposition specifically refer to the fact
    that at the hearing, Dr. Bergstrome was challenged with respect to his opinion
    that Mr. Ellis does not suffer from schizophrenia or a major mental disorder. One
    Board member expressed the view that it was almost mind boggling that a
    diagnosis of schizophrenia wasnt contemplated. Accordingly, the parties were
    squarely on notice that at least some members of the Board were having
    difficulty with the idea of transferring the appellant to a less secure
    environment.

[24]

In these circumstances, the appellant was
    afforded procedural fairness.

Least Onerous and Least Restrictive Disposition

[25]

The appellant maintains that the majority erred
    by preferring historical findings about the appellants diagnosis to his
    present one. He argues that the emphasis on the historical diagnosis led to an
    unreasonable decision to keep him at Waypoint. We do not agree with the
    appellants characterization of the majoritys decision.

[26]

The majority reasons do not prefer a historical
    diagnosis over a present one. Rather, the reasons demonstrate the majoritys
    concern about what diagnosis should be attributed to the appellant. There was
    evidence upon which the majority could find that the inability to pin down the
    appellants diagnosis meant that it was too risky to transfer him to a less
    secure environment. This was a decision that was open to the Board to make. It
    fell within the range of reasonable outcomes. We see no error in the Boards
    approach in that regard.

[27]

This leaves for consideration the Hospitals
    position that the Board erred by failing to order an independent psychiatric
    assessment.

[28]

The issue of an independent assessment was
    raised at the hearing. The presiding chair stated that a main issue for him
    was the possibility that the appellants good behaviour in the past year was a
    result of the treatment staff skirt[ing] discussions with the appellant about
    whether he had a major mental disorder. The presiding chair specifically asked
    Dr. Bergstrome about whether an outside assessment might be of some assistance.
    Dr. Bergstrome stated that he would find it [r]efreshing to have a new
    opinion.

[29]

Although the majority concluded that the
    appellants adverse reaction to discussions about his potential condition and
    medication should be explored as a symptom of paranoia, it did not follow up
    and order as part of the disposition that an independent assessment occur. Nor
    did it mention the possibility of ordering one. The Hospital argues that, in
    the circumstances of this case, by failing to order an independent psychiatric
    assessment, the Board failed to impose the least onerous and least restrictive
    disposition.

[30]

The appellant contends that there is no need to
    consider the appellants actual diagnosis, as only his current behaviour should
    govern where he is detained. We do not agree. It was open to the majority to
    conclude that pinning down his current diagnosis is an essential first step
    toward better predicting any reaction he may or may not have in a less secure
    environment, particularly when confronted with conversations about diagnosis
    and treatment.

[31]

Accordingly, we agree with the Hospital that, in
    the unusual circumstances of this case, the Board should have considered
    ordering an independent psychiatric review. In fairness to the Board, closing submissions
    were very brief and no one made submissions on this particular point. Even so,
    the matter was raised by the Board; Dr. Bergstrome expressed his view that it
    would be refreshing to have another opinion; and the majority found that more
    exploration of the appellants psychiatric condition is required, particularly
    his condition that appears to be triggered by discussions about diagnosis and
    medication.

[32]

Right now the appellants condition lacks a
    clear diagnosis. Without a diagnosis, his risk in a less secure environment
    remains elusive. The lack of diagnosis is a serious impediment toward advancing
    the appellant closer to the ultimate goal of reintegration into the community:
R.
    v. Conway
,
2010 SCC 22, [2010] 1 S.C.R. 765, at paras.
    89.

Conclusion

[33]

The appeal is allowed and the matter is remitted
    to the Board for a hearing as soon as practicable so that the issue regarding
    an independent assessment may be addressed prior to the next annual review,
    scheduled for September 10, 2018.

David
    Watt J.A.

S.E.
    Pepall J.A.

Fairburn
    J.A.

[1]
Although the wording of s. 672.54 has been modified to use a
necessary
    and appropriate test, this court has interpreted that test as requiring that
    the Board impose the least onerous and least restrictive disposition available:
Osawe (Re)
,

2015 ONCA 280, 125 O.R. (3d) 428, at para. 45; and
Ranieri
    (Re)
, 2015 ONCA 444, 336 O.A.C. 88, at paras. 19-21. As the parties use
    least onerous and lease restrictive language, these reasons will do the same.


COURT OF APPEAL FOR ONTARIO

CITATION: English v. Perras, 2018 ONCA 649

DATE: 20180718

DOCKET: C64729

Hoy A.C.J.O., Brown and Trotter JJ.A.

BETWEEN:

James English and Jill Perry

Respondents (Applicants)

and

David Perras and Brenda Perras

Appellants (Respondents)

Roxie Graystone, for the appellants

Roberto D. Aburto and Jacob Polowin, for the respondents

Heard: May 17, 2018

On appeal from the judgment of Justice Sally A. Gomery of
    the Superior Court of Justice, dated December 8, 2017, with reasons reported at
    2017 ONSC 7365.

Trotter J.A.:

A.

introduction

[1]

This appeal involves a dispute between neighbouring homeowners over a
    14-foot wide strip of land between their houses. There are garages at the rear
    of the lots, accessed exclusively via this strip of land. The property line
    runs down the middle of this strip, leaving enough space for cars to pass on
    each side.

[2]

In these proceedings, this strip of land has been casually referred to as
    the Shared Driveway. However, the land consists of two abutting driveways.
    The issue to be determined on this appeal is the legal significance of historical
    incursions by one neighbour on the property of the other.

[3]

In recent years, there have been ongoing disputes about the use and
    maintenance of this land. The rancour worsened when Mr. and Mrs. Perras (the
    Perrases) erected a fence down the centre of this strip of land, just inside their
    property line. The fence leaves enough room for the Perrases to drive vehicles from
    the road to their garage.

[4]

It is a different story for Mr. English and Ms. Perry. There is a retaining
    wall at the front of their house that narrows their driveway. Without the
    retaining wall, they would be able to use their driveway; with it, they cannot.

[5]

Despite the conflict between the current owners, their legal rights fall
    to be determined largely by the conduct of their predecessors in title, in more
    peaceful times. The application judge found that, as a result of the historical
    use of the disputed land, Mr. English and Ms. Perry are entitled to a
    prescriptive easement over the Perrases driveway. She ordered the Perrases to
    remove their fence.

[6]

The Perrases appeal, contending that the requirements for a prescriptive
    easement have not been established. For the reasons that follow, I would allow
    the appeal and set aside the order of the application judge.

B.

summary of the facts

(1)

The parties and the houses

[7]

The two houses were built in Ottawa sometime prior to 1928. The Perrases
    acquired title to 373 Third Avenue (373) on March 28, 2003. Mr. English and
    Suzanne English (the Englishs) bought 371 Third Avenue (371) as joint
    tenants in 1980. Title was transferred solely to Mr. English in 1994. Jill
    Perry moved into the home in 2006, and they married in 2014.

[8]

Leading up to the purchase of 371 in 1980, the Englishs lawyer obtained
    a land survey from Fred H. Gooch (the Gooch survey). In his letter
    instructing Mr. Gooch, dated December 29, 1979, the lawyer wrote:

I draw your attention [to] one unusual matter. There appears to
    be a common driveway used by the present owner of 371 Third Avenue along with
    his immediate westerly neighbour at 373 Third Avenue.
There is nothing
    contained in the titles or in any deeds suggesting a common driveway
.
    [Emphasis added.]

[9]

In a survey dated January 22, 1980, Mr. Gooch described a mutual
    right-of-way over the strip of land between the houses. On the application,
    there was no explanation of why Mr. Gooch came to legally characterize this land
    as he did.

(2)

The Agreement

[10]

A
    few weeks after the survey was prepared, on February 26, 1980, the predecessors
    in title to 371 and 373 entered into an agreement concerning the abutting
    driveways. The Perrases refer to this document as the Easement Agreement; Mr.
    English and Ms. Perry prefer the Driveway Agreement. What is important is the
    substance of the document, not the parties attempts to label it in a manner
    that suits their own purposes. The document describes itself as this
    Agreement and contains no reference to a driveway or an easement. I will
    refer to it as the Agreement.

[11]

First
    and foremost, the Agreement recorded mutual grants of a right-of-way over
    portions of the strip of land between 371 and 373. It then provided that the
    said laneway would be used to access the rear of both lots and that the
    parties agreed not to block the said common laneway with cars or other
    objects. The parties also agreed to split the cost of necessary repairs or
    maintenance. Significantly, the Agreement was limited to 21 years, less a day.

[12]

The
    Agreement was registered on the title of 371 on February 29, 1980. This was the
    very same day that the Englishs acquired title to this property. The Agreement
    expired in February of 2001, just over two years before the Perrases acquired
    373.

(3)

Prior use

[13]

There
    was little evidence as to the use of the property between the houses over the
    years. The application record included historical maps, as well as aerial
    photos taken at various times, mostly of poor quality. The photos show the
    space between the two houses, and garages at the back of the lots.

[14]

In
    one of his affidavits filed on the application, Mr. English interpreted the
    photos and maps and asserted that there has been continuous use of the Shared
    Driveway by the owners of 371 for the purposes of, at the very least, ingress
    and egress dating back to at least 1928. Mr. English referred to the Gooch
    Survey, as well as the Agreement (both of which were attached to his first
    affidavit). Mr. English made no reference to the 21-year limitation in the
    Agreement, nor did he mention the retaining wall, which is discussed in more
    detail below.

[15]

Mr.
    English and Ms. Perry also relied upon the affidavit of Brian MacNamara. His
    parents purchased 373 in 1957, and his mother sold the property to the Perrases
    in 2003.

[16]

Mr.
    MacNamara lived at 373 continuously between 1957 and 1976, and then visited
    about once a month from 1976 to 1979, while he was in school. He swore that,
    during this time, the residents of 371 and 373 passed over a portion of each
    others driveway as they drove their cars to and from the parking spaces to the
    rear of the properties.

[17]

Mr.
    MacNamaras affidavit is lacking in certain respects. It is silent about his
    age at the relevant times. The Perrases assert that he may have been a child
    when he made some of his observations. The application judge dismissed this
    concern, at para. 16, noting that Mr. MacNamara could have been cross-examined.
    Mr. MacNamaras affidavit sheds no light on any arrangement his parents may
    have had with their neighbours about the use of the land. Significantly, the
    affidavit is silent on the Agreement, entered into just before the Englishs
    bought the neighbouring property in 1980. The Agreement remained in force until
    2001, shortly before Mr. MacNamaras mother sold 373 to the Perrases.

(4)

The fence and the retaining wall

[18]

According
    to Mr. Englishs first affidavit, by 2015, the driveways were in serious need
    of repair. A dispute arose about the costs of the repair. On November 16, 2016,
    the Perrases began construction on their fence, which was completed two days
    later.

[19]

In
    his first affidavit, Mr. English asserted that he and Ms. Perry have been
    denied full enjoyment of the property because they can no longer access the two
    parking spots at the rear of their property. They have been forced to park on
    the street, resulting in numerous parking tickets.

[20]

As
    noted above, there is a retaining wall on the front lawn of 371, narrowing its
    driveway. Recent photographs show that it is quite prominent. The wall juts out
    such that, for the walls entire length, the 371 driveway is not flush with the
    house. Mr. Englishs affidavit is silent about the retaining wall. It is not
    mentioned in Mr. MacNamaras affidavit. Thus, there is no evidence about when
    it was built, nor for what purpose.

[21]

The
    single reference to this structure in the record is found in the affidavit of
    Brian Webster, a land surveyor retained by the Perrases. He conducted a survey
    on June 9, 2017. Mr. Webster referred to it as a rock retaining wall and
    indicated that it reduces the width of the 371 driveway by almost two feet. On
    appeal, counsel for Mr. English and Ms. Perry assert that there is no evidence
    that the use of the driveway is impeded by the retaining wall. However, this is
    obvious from Mr. Websters affidavit, his survey, and the photographs filed on
    the application. Moreover, the application judge found this as a fact (at para.
    4).

[22]

Mr.
    English swore a second affidavit, this time in response to Mr. Websters
    affidavit. In this affidavit, Mr. English recounted what his lawyer had told
    him in 1980 about the shared use of the disputed land in the absence of any
    shared use agreement. He also said that, during his time at 371 (since 1980),
    he passed over the property line in accessing and leaving his parking spots at
    the back of the house. His neighbours did the same. Significantly, in this
    second affidavit, which is meant to be in response to Mr. Websters, Mr.
    English again makes no reference to the retaining wall.

C.

reasons of the application judge

[23]

The
    application judge concluded that Mr. English and Ms. Perry should succeed,
    finding that they acquired a prescriptive easement based on the doctrine of
    lost modern grant.

[24]

The
    application judge found that the predecessors in title had used a portion of
    each others property over the years, as of right, and not by permission. She
    disagreed that the Agreement, signed in early 1980, undermined the claim; instead,
    she found that it clarified the mutual rights of the owners at the time.

[25]

The
    application judge also found that the use of the disputed land was reasonably necessary
    to the enjoyment of 371. The retaining wall was critical to this aspect of her
    decision. The application judge recognized, at para. 4, that there is not
    enough space to drive a car between the fence and a retaining wall that runs
    along the outer side of the driveway on 371Mr. and Mrs. Perras still have the
    use of the driveway,
because there is no similar retaining wall on 373
 (emphasis
    added). However, she ultimately held, at para. 31, that there was no reason to
    assume that the retaining wall was not practically necessary; nor was she
    prepared to conclude that the wall could be removed (para. 32).

D.

issues on appeal

[26]

The
    Perrases argue that the application judge erred in her application of the
    doctrine of lost modern grant by: (1) finding that the use of the driveway had
    been as of right, as opposed to by permission, and (2) finding that the
    easement was reasonably necessary to the enjoyment of 371. The latter argument
    turns on the significance of the retaining wall.

E.

analysis

(1)

Introduction

[27]

The
    Perrases challenge the application judges conclusion that an easement had been
    acquired through the doctrine of lost modern grant. The essential features of
    an easement are set out in
Barbour v. Bailey
, 2016 ONCA 98, 345 O.A.C.
    311, in which Roberts J.A. wrote, at para. 56:

To make out an easement, a claimant must satisfy the following
    four essential characteristics of an easement or right-of-way:

i. There must be a dominant and servient tenement;

ii. The dominant and servient owners must be different persons;

iii. The easement must be capable of forming the subject matter
    of a grant; and

iv. The easement must accommodate  that is, be reasonably
    necessary to the better enjoyment of  the dominant tenement.

See also
Depew v. Wilkes
(2002), 60 O.R. (3d)
    499 (C.A.), at paras. 18-23;
Kaminskas v. Storm
, 2009 ONCA 318, 95
    O.R. (3d) 387, at paras. 26-28; Bruce H. Ziff,
Principles of Property Law
,
    6th ed. (Toronto: Carswell, 2014), at pp. 381-85; Anne Warner La Forest,
Anger
    & Honsberger Law of Real Property
, loose-leaf (2017, Rel. 19), 3rd ed.
    (Toronto: Thomson Reuters), vol. 2, at p. 17-3.

[28]

The
    doctrine of lost modern grant is recognized as a method for acquiring a prescriptive
    easement. It involves requirements in addition to the constituent elements of
    an easement. In
1043 Bloor Inc. v. 1714104 Ontario Inc
.
, 2013
    ONCA 91, 114 O.R. (3d) 241, Laskin J.A. described the doctrine in the following
    way, at para. 91:

[T]he acquisition of a prescriptive easement by lost modern
    grant rests on a judicial fiction. The law pretends that an easement was granted
    at some point in 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

See also Charles Harpum, Stuart Bridge & Martin
    Dixon,
Megarry & Wade: The Law of Real Property
, 8th ed. (London:
    Sweet & Maxwell, 2012), at pp. 1309-11; Ziff, at pp. 392-93.

[29]

In
    Ontario, there are certain restrictions on prescriptive easements; they have
    been abolished with respect to properties registered in the Land Titles system:
Land Titles Act
, R.S.O. 1990, c. L.5, s. 51. Consequently, the 20-year
    period must precede the transfer of property into the Land Titles system. In
    this case, both properties were registered in the Land Titles system in 1996. Accordingly,
    Mr. English and Ms. Perry were required to prove uninterrupted and
    unchallenged use for any 20-year period before 1996: see
Kaminskas v.
    Storm
, at para. 31.

[30]

The
    courts have insisted on a high standard for establishing a prescriptive
    easement by lost modern grant. Numerous policy reasons are offered in support
    of this cautious approach. The recognition of such a claim burdens the servient
    owners property, without any compensation:
1043 Bloor Inc.
, per
    Laskin J.A., at paras. 102-104. See also
Ebare v. Winter
(2005), 193
    O.A.C. 174 (C.A.), at paras. 27-28. Moreover, as Cory J.A. said in
Henderson
    v. Vouks
(1982), 35 O.R. (3d) 379 (C.A.), 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. See also
1043 Bloor Inc
.,
    per Gillese J.A., at para. 83;
Carpenter v. Doull-MacDonald
, 2018 ONCA
    521, at para. 6.

[31]

There
    are countervailing concerns. As Laskin J.A. also points out in
1043 Bloor
    Inc
.
, at para. 105, 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.

[32]

The
    outcome of this case should not be understood as an endorsement of the Perrases
    aggressive conduct in erecting the fence. It is not behaviour that is worthy of
    reward. Quite the contrary. Nevertheless, in this case, it is the conduct of
    the predecessors in title during the putative prescriptive period (1957 to
    1979) that matters, not that of the present-day owners. I turn now to the
    prescriptive period.

(2)

Land not used as of right

[33]

The
    key issue in this case is how to characterize the use of the land during the
    prescriptive period. As Laskin J.A. noted in the above-quoted passage of
1043
    Bloor Inc.
, the use must be uninterrupted and unchallenged throughout the
    20-year period. And the use must be as of right, not by permission.

[34]

This
    element has been emphasized in a number of this courts decisions. In
Henderson
    v. Volk
, Cory J.A. said, at p. 383: the enjoyment must not be permissive.
    That is to say, it cannot be a user of the right-of-way enjoyed from time to
    time at the will and pleasure of the owner of the property over which the
    easement is sought to be established. In
Kaminskas v. Storm
, Blair
    J.A. said, 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. In
Mason v. Morrow

(1998), 114 O.A.C. 194 (C.A.), this court
    said, at para. 5: user permitted through good-neighbourliness, and enjoyed on
    that basis, is not sufficient to acquire an easement by prescription. See also
Garfinkel v. Kleinberg and Kleinberg
, [1955] O.R. 388 (C.A.), at p.
    398;
1043 Bloor Inc
.
at paras. 58-61, per Gillese J.A.; and Ziff,
    at pp. 392-93.

[35]

There
    is sometimes a fine line between acquiescence in anothers exercise of
    easement-like rights and use by permission: see
1043 Bloor Inc
.
at
    para. 100, per Laskin J.A.;
Condos and Castles Realty Inc. v. Janeve Corp
.
,
    2015 ONCA 466, 255 A.C.W.S. (3d) 777, at para. 19; Ziff, at p. 393. As such,
    there must be clear and unambiguous evidence that the use of the land was as of
    right and not by permission:
Carpenter v. Doull-MacDonald
, 2017 ONSC
    7560, 287 A.C.W.S. (3d) 580, at paras. 50-51, affd 2018 ONCA 521. If the
    evidence is equally consistent with both uses, a claim based on lost modern
    grant must fail: see
Mason v. Morrow
, at para. 5.

[36]

In
    this case, the evidence did not establish anything more than permissive use
    during the prescriptive period. At best, the evidence showed that the occupants
    of 371 and 373 permitted each other to cross the property line as they went to
    and from their parking spots. There was no evidence that the occupants of
    either dwelling did so as a matter of right: see
Jaz Management Services
    Ltd. v. VBI Group Inc.
, 2013 ONCA 644, 235 A.C.W.S. (3d) 550, at para. 2.

[37]

The
    application judge placed great reliance on the evidence of Mr. MacNamara. His
    evidence tended to support the respondents claim, but only to a limited
    extent. He described the conduct of the occupants of 371 and 373, but he failed
    to shed any light on how his parents regarded this situation from a legal point
    of view.

[38]

The
    application judge also relied on the Gooch survey. However, it is impossible to
    get beneath the surface of his survey. There is no explanation for his
    conclusion on the issue that is the very subject matter of this litigation.
    Without more, it was worthless.

[39]

Nevertheless,
    having accepted this evidence, the application judge, at para. 21, referred to
Condos
    and Castles
, in which Lauwers J.A. said, at para. 17: Once the appellant
    had proven facts that support the inference of acquiesce[nce] in 20 years of
    use, the evidentiary burden passed to the appellant to lead evidence to rebut
    the inference by proving the use was by way of permission. The application
    judge held that there was no evidence to rebut this inference. I respectfully
    disagree.

[40]

The
    Agreement was compelling evidence that the use during the prescriptive period was
    by way of permission. I do not accept the conclusion that this document merely
    clarified the existing rights of the owners at the time, crystallizing in 1979.
    If this were the case, and there had been a pre-existing right-of-way, it would
    make no sense to enter into an Agreement that limited its operation to 21
    years. The record suggests that both owners were unsure of their respective
    rights. This is all the more significant because one of the signatories to the
    Agreement was Harry MacNamara, who had lived at 373 during the prescriptive period
    that his son purported to describe. The Agreement undermines the value of his
    sons affidavit.

[41]

The
    Agreement must be viewed from a broader perspective. The Englishs were
    interested in buying 371. The letter from their lawyer to the surveyor, referenced
    in para. 8 above, demonstrates concern about his clients ability to use this
    land. Despite having a survey that described an unregistered right-of-way, the
    Englishs took title to 371 knowing that the Agreement, time-limited as it was,
    had been registered on title that very same day.

[42]

The
    application judge discounted the value of Agreement, having found that the
    right-of-way already existed when it was signed. As she said at para. 25 of her
    reasons:

If an easement already existed based on 20 years of
    uninterrupted, continuous and peaceful use,
it did not wink back out of
    existence just because the parties' predecessors in title failed to recognize
    it at the time
. The failure of property owners to formally recognize an
    easement is the whole rationale for the doctrine of the lost modern grant.
    Neglecting to record the easement on title does not defeat it, if the claimant
    can prove that it exists. Similarly, neglecting to recognize the right in a
    private agreement does not defeat the claim, if the court agrees that an
    easement existed prior to its signature. [Emphasis added.]

[43]

The
    question before the application judge was not whether the easement had winked
    out of existence; it was whether it existed in the first place. The fact that
    the Agreement was entered into at all was compelling evidence that the
    predecessors in title had been acting as good neighbours in permitting
    incursions on each others property.

[44]

Respectfully,
    I find that the application judge committed palpable and overriding error in
    finding that the evidence of Mr. MacNamara and the Gooch survey supported the
    inference of acquiescence in 20 years of use. The Agreement made that inference
    untenable. Alternatively, if the MacNamara evidence and Gooch survey did
    support the inference, it was rebutted by the Agreement. Either way, the claim
    for a prescriptive easement must fail.

[45]

Before
    leaving this ground of appeal, I note that it is possible for an easement to be
    released, expressly by agreement or impliedly through abandonment: see Ziff, at
    pp. 397-98; Jonathan R. Gaunt, Q.C. & Sir Paul Morgan,
Gale on
    Easements
, 20th ed. (London: Sweet & Maxwell, 2017), c. 12; La Forest,
    vol. 2, at pp. 17-27 to 17-28. It would appear that this was not a live issue
    on the application. On appeal, neither counsel wished to pursue this line of
    thought when raised by the panel. This is not meant to be critical of counsel.
    It may be that the record, which was already sparse, was incapable of
    clarifying whether the parties to the Agreement intended to create a
    time-limited right-of-way, or whether they meant to mutually release and/or
    vary a pre-existing easement.

(3)

Necessary to the enjoyment of the property

[46]

The
    Perrases also argue that the application judge erred in finding that a right-of-way
    is reasonably necessary to the enjoyment of 371. I accept that the use of the 371
    driveway is reasonably necessary to the enjoyment of 371. However, the question
    is whether the claimed prescriptive easement is reasonably necessary to the
    enjoyment of 371, including its driveway. As discussed below, the retaining
    wall is critical to this decision. If it were not for the retaining wall, Mr.
    English and Ms. Perry would be able to use their driveway. This raises the
    question of whether there is an alternative solution that would allow Mr.
    English and Ms. Perry to reasonably enjoy their property and its driveway
    without resort to a prescriptive easement (that is, by removing the retaining
    wall).

[47]

In
Depew v. Wilkes
,

at para. 23, Rosenberg J.A. held that reasonable
    necessity for the better enjoyment of the dominant tenement is a requirement
    for a prescriptive easement. As he explained at para. 24:

The reasonable necessity requirement is fact specific and must
    be applied in a flexible manner. As was said in [Oosterhoff, A.H., and W.B.
    Rayner,
Anger & Honsberger: Law of Real Property
, 2nd ed. (Aurora:
    Canada Law Book, 1985)]at p. 927:

What is reasonably necessary must be a flexible criterion
    and have reference to current social conditions and the prevailing patterns and
    trends of conduct. What today might not be regarded to be a reasonable amenity
    for the better enjoyment of a property might be regarded as a reasonable
    amenity tomorrow.

[48]

In
    that case, this court upheld the trial judges conclusion that, even though other
    parking for cottagers was available nearby, the putative easement claimed over
    parking spaces adjacent to the cottages was reasonably necessary. As Rosenberg
    J.A. held at para. 26, the fact that an alternative exists does not preclude a
    finding that the easement is reasonably necessary for the better enjoyment of
    that tenement.

[49]

Depew

was followed in the recent case of
Barbour v. Bailey
. In that case,
    the applicant brought a claim for possessory title by adverse possession, or
    alternatively a prescriptive easement. The applicant owned a cottage on an island
    that was accessible by a footpath that joined the island with a beach. Both the
    footpath and the beach were property of the respondent, who objected to the
    claim. While the footpath provided the more convenient route to the island, the
    claimant and her family could also access the island by boat or by wading
    through the water.

[50]

After
    referring to the passage from
Depew v. Weekes
cited above, Roberts
    J.A. observed, at para. 58, that not every use will be reasonably necessary
    for the purposes of establishing a right to an easement. There must be a
    connection between the easement and the normal enjoyment of the dominant
    tenement... She observed that reasonably necessary usually involves
    practical uses, such as parking spaces and driveways: para. 58, citing
Depew
    v. Wilkes
and
Carlini v. Hammoud
, 2011 ONCA 285, 200 A.C.W.S.
    (3d) 1206. She concluded, at para. 90, that despite there being alternatives to
    the footpath to reach the island, it did not prelude a finding that pedestrian
    use of a footpath was necessary to the reasonable enjoyment of the claimants property.
    As she said, pedestrian access is connected with the normal enjoyment of the cottage
    property.

[51]

As
    I have noted above, the question of whether an easement is reasonably necessary
    for the enjoyment of 371 turns largely on the retaining wall. The application
    judge, at para. 4, accepted that without the retaining wall, Mr. English and
    Ms. Perry would be able to use their driveway. However, she was not persuaded
    that the existence of the retaining wall undermined the contention that the
    right-of-way was reasonably necessary to the enjoyment of 371. As she said at
    paras. 31- 32 of her reasons:

This argument is speculative. Mr. Webster does not say when the
    retaining wall was built or the purpose it serves. There is no reason to assume
    that it is not practically necessary. In fact, Mr. Webster's use of the term
    "rock retaining wall" as opposed to "decorative rock wall"
    or simply "rock wall" suggests the opposite. There is also no
    evidence on when the wall was constructed. It may have been there since the
    house at 371 Third Avenue was built.

In these circumstances, I cannot conclude that Mr. English and
    Ms. Perry could simply get rid of the retaining wall.
Mr. Englishs sworn
    statement that the easement is required for access to the back property is
    uncontradicted. I find that a right-of-way is reasonably necessary to the
    enjoyment of 371
. [Emphasis added.]

[52]

Respectfully,
    the application judge engaged in impermissible speculation to reach her conclusion
    on this issue. In doing so, she reversed the onus of proof, requiring the
    Perrases to establish that the easement was not necessary, and that the wall
    could be taken down. While the onus may shift on the issue of acquiescence and
    permission, in the manner described in
Castles and Condos
, it does not
    shift on this issue. It was up to Mr. English and Ms. Perry to establish that
    the easement was reasonably necessary to the enjoyment of 371. The history of
    the retaining wall was important.

[53]

To
    use a simple example, suppose Mr. English and Ms. Perry were carless when the
    fence went up. Being disinterested in the vehicular use of their driveway, they
    decide to build the retaining wall for aesthetic reasons. Having later decided
    to use cars again, they would be hard-pressed to argue that the fence must come
    down because an easement was reasonably necessary to their enjoyment of 371. In
    these circumstances, they would be the authors of their own misfortune.

[54]

On
    the evidence before the application judge, Mr. English and Ms. Perry stood in a
    similar position, in the sense that they did not prove that the easement was
    reasonably necessary to their enjoyment. In his second affidavit, Mr. English
    decided to remain silent on the provenance of the retaining wall, even after
    the Webster affidavit put the issue squarely in play. He did so at his own
    peril. His assertion that the easement was reasonably necessary to the enjoyment
    of 371 was just that  a factual claim. The application judge erred by
    essentially treating it as a legal conclusion on one of the elemental features
    of an easement.

[55]

I
    would also allow the appeal on this ground.

F.

conclusion

[56]

I
    would allow the appeal and set aside the order of the application judge.

[57]

It
    was agreed between counsel that the successful parties should have costs of
    $20,000, inclusive of HST and disbursements. Accordingly, the appellants shall
    have their costs in this amount for the appeal. The costs order in favour of
    the respondents in the court below is set aside. In its place, and giving
    effect to the agreement of counsel, the appellants are entitled to $10,000, also
    inclusive of HST and disbursements.

Released: AH JUL 18 2018

Gary T. Trotter J.A.

I agree. Alexandra Hoy A.C.J.O.

I agree. David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Derakhshan v. Narula, 2018 ONCA 658

DATE: 20180725

DOCKET: M49026 (M48944)

Hoy A.C.J.O., Rouleau
    and Benotto JJ.A.

BETWEEN

Farhad Derakhshan

Appellant

and

Seema Narula

Respondent

Farhad Derakhshan, acting in person

Ian Vallance, for the respondent

Heard: June 15, 2018

Rouleau J.A.:

[1]

Farhad Derakhshan brings this motion pursuant to
    s. 7(5) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 to set
    aside the order of the chambers judge, dismissing his motion for an order
    extending the time within which to serve and file a notice of appeal from the
    trial judges decision rendered on January 24, 2018.

[2]

As I will explain, I would allow the motion and
    grant the extension.

BACKGROUND

[3]

The applicant represented himself during the 21-day
    trial, which took place in the Family Court Branch of the Superior Court of
    Justice in Ottawa. He claimed retroactive spousal support, and asserted a
    constructive trust interest in the respondents assets on the basis of unjust
    enrichment or a joint family venture. Further, he sought the return of 49 of
    his shares in
Turtle Island Staffing Inc. (formerly 2093030 Ontario
    Inc.)
or payment for the shares, which he alleged had been
    transferred to the respondent by means of forgery. The total value of his
    claims was approximately $4.5 million. At the close of the trial, the trial
    judge reserved her decision.

[4]

Some nine months later, the trial judge issued a
    107-paragraph decision dismissing the applicants action. She found that
    although the parties had been in a romantic relationship, it was not a spousal
    relationship. Consequently, the applicants claims for spousal support and a
    constructive trust interest in the respondents property on the basis of a
    joint family venture failed. As to his unjust enrichment claim, the trial judge
    found that the applicant had been compensated for his services in relation to
    the respondents properties. Finally, the trial judge found that there was no
    evidence to support the applicants claim that the respondent had improperly
    taken his shares in Turtle Island Staffing Inc. Costs were awarded to the
    respondent in the total amount of $251,028.

[5]

When the decision was released on January 24,
    2018, it was emailed to the applicant who was in Australia at the time. He made
    arrangements to rush back to Canada to deal with his proposed appeal. The trial
    transcripts were ordered on February 20, 2018. The applicant prepared a notice
    of appeal and served the respondent within the 30 days provided in the rules,
    on Friday, February 23.

[6]

Unfortunately, upon attempting to file the
    notice with proof of service, he discovered that the information he had been
    provided as to the appropriate appellate court was in error. The materials he
    served on the respondent took the form of an appeal under the
Family Law
    Rules
, and were addressed to the Superior Court of Justice rather than to
    the Court of Appeal. As a result his materials were refused by the court office.

[7]

It is understandable that the applicant, who was
    self-represented at the time, was mistaken as to the appropriate forum in which
    to advance his appeal. When he was informed of this error, he acquired the
    requisite forms and began to prepare a new notice of appeal directed to this
    court.

[8]

The following day, Saturday, February 24, the
    applicant served this new notice of appeal on the respondents solicitor by
    email. This was 31 days following the release of the decision. A hard copy of
    the notice of appeal followed on the Monday.

[9]

The applicant sought the respondents consent to
    the late filing of his notice of appeal. That consent was refused and the
    applicant then promptly prepared the motion for an order extending the time in
    which to file the notice of appeal.

[10]

On the proposed appeal, the applicant asserts
    that the trial judge misapprehended or overlooked evidence and interfered with
    the presentation of his case. He submits that a new trial should be ordered
    because the trial judges reasons were inadequate and were not released until
    nine months after the trial.

CHAMBERS DECISION

[11]

On the motion, the chambers judge identified the
    relevant factors on a motion for an extension of time under r. 3.02 of the
Rules
    of Civil Procedure
,
R.R.O. 1990, Reg. 194
. He was
    satisfied that the intention to appeal had been formed within the relevant time
    period and that the very short delay had been explained. He found, however,
    that the three other factors, namely prejudice to the respondent, the merits of
    the appeal and the justice of the case, did not favour granting the extension.

[12]

The chambers judge found that an extension would
    prejudice the respondent because it appeared unlikely that her substantial
    award for costs of the trial would be satisfied. He noted that another
    outstanding costs order against the applicant in a more modest amount had not
    yet been paid.

[13]

As for the merits of the appeal, the chambers
    judge determined that from the material that had been filed he was unable to
    tease out anything of substance to support a claim of palpable and overriding
    error or of any material misapprehension of evidence. He noted that this was a
    fact-based appeal, and that appellate courts do not retry cases.

[14]

The chambers judge concluded that the justice of
    the case did not warrant an extension. He noted again the unlikelihood that the
    respondents cost award would be satisfied.

[15]

The chambers judge therefore dismissed the
    motion for extension and ordered costs to the respondent in the amount of
    $1,500.

ANALYSIS

[16]

As I have noted above, the chambers judge correctly
    identified the relevant factors on a motion for an extension of time.

[17]

However, he erred in finding that there was prejudice
    to the respondent on the basis that her costs award was unlikely to be
    satisfied. This is not prejudice caused by the delay: see
Paulsson v.
    University of Illinois
, 2010 ONCA 21, [2010] O.J. No. 123, at para. 2;
D.G.
    v. A.F.
, 2014 ONCA 436, [2014] O.J. No. 2608, at para. 16. The delay was
    of only one day and, further, the notice of appeal, albeit to the wrong court,
    had been served within the 30 days provided in the rules. The respondent did
    not suffer any prejudice as a consequence of the very short delay.

[18]

The error in the chambers judges analysis of
    prejudice clearly factored into his exercise of discretion. As a result, no
    deference is owed to his decision.

[19]

With respect to the merits of the appeal, I
    acknowledge that fact-based appeals are very difficult and are rarely
    successful. Based on what the self-represented applicant has filed and the
    extensive reasons of the trial judge, it is certainly difficult to discern any
    merit to the appeal.

[20]

The final consideration is the justice of the
    case. At this stage, the court must balance all of the preceding factors and consider
    any others that may be relevant:
Monteith v. Monteith
, 2010 ONCA 78, [2010]
    O.J. No. 346, at para. 20 (In Chambers).

[21]

In my view, it would be unfair to deprive the
    applicant of his right of appeal in the circumstances. The applicant is
    self-represented and the notice of appeal, albeit to the wrong court, was
    served on the respondent within the time provided in the rules. The delay in serving
    the appeal materials addressed to the appropriate court was barely one day.
    There is clearly no prejudice to the respondent and the loss of the right to
    appeal is very significant to the applicant. The trial decision rejected his
    claim for several millions of dollars and ordered him to pay costs in excess of
    $250,000.

[22]

In these circumstances, I am of the view that the
    justice of the case requires granting the extension, despite the applicants
    inability at this stage of the proceeding to demonstrate the merits of his
    proposed appeal. This court has recognized that, in circumstances like the
    present, even where it is difficult to ascertain the merits, a party is
    entitled to appeal and should not be deprived of that entitlement where there
    is no real prejudice to the other side:
Auciello v. Mahadeo
, 2016
    ONCA 414, [2016] O.J. No. 3282, at para. 14 (In Chambers);
Denomme v. McArthur
,
    2013 ONCA 694, 36 R.F.L. (7th) 273, at para. 10 (In Chambers).

[23]

In conclusion, I would allow the motion, set
    aside the chambers judges order dismissing the motion for extension of time and
    ordering costs to the respondent, and substitute an order granting the
    applicant an extension to serve and file his notice of appeal to 14 days
    following the issuance of these reasons. I would make no order as to the costs
    of the motion or the motion to set aside the chambers judges order.

Paul Rouleau J.A.

I agree Alexandra Hoy
    A.C.J.O.

Benotto J.A. (Dissenting):

[24]

I do not agree with my
    colleagues decision to set aside the chambers judges order refusing an
    extension of time to appeal.

[25]

The chambers judge
    applied the well-known test for an extension of time:

(1)  whether the applicant formed an intention to appeal within the
  relevant period;

(2)  the length of, and explanation for the delay;

(3)  any prejudice to respondent;

(4)  the merits of the appeal; and

(5)   whether the justice of the case requires an extension of
  time.

[26]

There was no issue with
    respect to the intention to appeal. The delay was brief and explained. The
    chambers judge addressed the remaining three considerations.
[27]

My colleague concludes
    that the chambers judge erred by considering that the outstanding costs order
    against the applicant constituted prejudice to the respondent. He determines
    that this error factored into the chambers judges exercise of discretion and
    therefore no deference is owed to his decision. I do not agree. While the
    chambers judge referred to the outstanding costs order as some prejudice, he
    did not rely on prejudice as a ground for refusing the extension. Instead, he
    based his decision on the lack of merit to the appeal as factored into the
    justice of the case.
[28]

Once an extension of
    time is sought, the court must consider the merits of the appeal. While the
    threshold for merit is low, it is nonetheless a factor.
[29]

When considering the merits of the
    appeal, it is not with a view to determining whether the appeal will succeed,
    but only with a view to determining whether the appeal has so little merit that
    the court could reasonably deny the important right of appeal:
Duca
    Community Credit Union Limited. v. Giovannoli
(2001), 142 O.A.C. 146
    (C.A.). I agree with the chambers judge that this appeal has so little merit
    that the extension should be denied.
[30]

The applicant asserted
    at trial that he was a spouse of the respondent. He claimed he was entitled
    to spousal support and a constructive trust interest in her property based in
    part on the assertion of a joint family venture. Further, he sought the return
    of 49 of his shares in Turtle Island Staffing Inc. or payment for them. The
    total value of his claims was approximately $4.5 million.
[31]

Following a 21-day
    trial, the trial judge determined that the applicant was not a spouse.
    Consequently, his claims for spousal support and a constructive trust interest
    in the respondents property based on a joint family venture failed. The trial
    judge further found that even if the applicant and the respondent were in a
    spousal relationship, the applicant had failed to establish entitlement to, and
    need for, support.
[32]

As to his unjust
    enrichment claim, the trial judge considered and applied
Kerr v. Baranow
,
    2011 SCC 10, [2011] 1 S.C.R. 269 and concluded that the applicant was well
    compensated for any services provided to the respondent. She also found that
    there was no evidence to support the applicants claim that the respondent had
    improperly taken 49 of his shares in Turtle Island Staffing Inc. or forged his
    signature on the share transfer or corporate resolutions. The applicants
own
    witness
testified that the applicant transferred his shares in Turtle
    Island Staffing Inc. to the respondent at a time when they had no value.
[33]

The trial judge
    provided extensive reasons. She made credibility assessments against the
    applicant and found that he was unable to prove any of his claims.
[34]

In my view a request for an
    extension of time  even after an inconsequential delay  is subject to a
    review of the merits to determine whether the justice of the case requires the
    extension.
This appeal is
    entirely fact based and no legal error is alleged. Given the trial judges
    factual findings on the core basis of the claims asserted, there is no
    possibility of success on appeal.
[35]

Accordingly, I would
    dismiss the applicants motion with costs fixed in the amount of $8,500,
    including costs and disbursements.
M.L. Benotto J.A.
Released: July 25, 2018