Lawen v. Martin, 2023 NSSC 258

SUPREME COURT OF Nova Scotia Citation: Lawen v. Martin , 2023 NSSC 258 Date: 20230831 Docket: Hfx No. 510091 Registry: Halifax Between: Michael Lawen Applicant v. Iri Rony Martin and Emma Martin Respondents DECISION Judge: The Honourable Justice Denise Boudreau Heard: June 26, 27, 29, 2023, in Halifax, Nova Scotia Counsel: Richard W.

Norman, for the Applicant Nancy Rubin, K.C., and Erin McSorley, for the Respondents By the Court: [ 1 ] This is an application in court concerning a laneway that exists between the properties of the litigants on Cunard Street in Halifax. [ 2 ] The applicant is the present owner of 6050-6052 Cunard Street (“the Lawen property”). It was originally purchased by his father Jack Lawen, and subsequently transferred to the applicant. [ 3 ] The respondents are the owners of the neighbouring property, 6054-6056 Cunard Street (“the Martin property”).

They purchased it from Gordon Dickie and Erin Brown in May 2010. [ 4 ] There is a narrow laneway (the “laneway”) between the Lawen property and the Martin property. I am advised that the laneway is 109 inches in width (just over 9 feet) and approximately 60 feet long. The parties’ joint property line runs down the length of this laneway.

According to site plans filed with the Court, the part of this laneway belonging to the Martin property is about three or three and a half feet in width; the remainder of the laneway width is on the Lawen property. [ 5 ] The applicant seeks a declaration that he has a prescriptive easement over the part of this laneway belonging to the respondents, either through use over the past 20 or 25 years, or by application of the doctrine of lost modern grant. He seeks the ability to pass over and park in this laneway, without restriction by the respondents. [ 6 ] The respondents oppose this application.

They are of the view that the circumstances here do not meet the requirements of a prescriptive easement or of a lost modern grant. [ 7 ] The applicant has provided evidence from himself, in the form of two affidavits. In those affidavits he provided, inter alia , the following evidence: • His father Jack Lawen purchased the Lawen property in 1976.

• The applicant recalled his father parking in the laneway as early as 1978 (at which time the applicant would have been 6 years old). • In particular, his father parked in the laneway during the winters (November to March) starting in 1984 until approximately 1999. • During the 1990s, the applicant would also park in the laneway during the winters. • From 1984 to 1999 the applicant would shovel the driveway during the winters; after 1999, tenants were asked to do so. • From the 1980s until 1999, the Lawen property was a rooming house. There was no parking available for tenants.

In 1999 the Lawen property was converted to two rental units. At that point parking spaces were offered to tenants, at the back; however, their access was not through the laneway, but through the laneway on the other side of the Lawen property (between it and 6048 Cunard).

Jack Lawen also owned 6048 Cunard and created an easement through that adjoining driveway, for Lawen property tenants to access parking at the back. • At some point the owners of the Martin property built a gate across the laneway between it and 6060 Cunard, approximately halfway down the length of the lane, blocking vehicular access to the back of the Martin property.

Vehicle access remains impeded to this day; however, the fence has a doorway for pedestrian access. • Both the applicant and his father attended the Lawen property often to deal with tenants and maintenance issues and parked in the laneway when doing so. The applicant estimates himself doing so twice a month from 2003 to 2016, and his father visiting there two to four times a month or more. • Sometime prior to 2004, the then-owner of the Martin property (George Dockendorff) built a fence at the back of the laneway.

While it did not entirely prevent a vehicle using the laneway to park at the back of the Lawen property, it made it difficult. • The applicant parked in the laneway for several days in a row in 2004 while painting. • He estimated also parking there every year on a regular basis, at least twice a month at a minimum. • In 2004 the Martin property was sold to Gordon Dickie. The applicant recalled Mr. Dickie asking Jack Lawen's permission to leave construction equipment in the laneway. Mr. Dickie also removed the Dockendorff fence.

Jack Lawen then built his own fence at the back of the laneway, which still exists. • The applicant has never seen any of the past or present owners of the Martin property park in the laneway. • The applicant stated that he and his father made open use of the laneway to park during the Dockendorff/Dickie ownership of the Martin property, and that both Mr. Dockendorff and Mr. Dickie were well aware of that use. • The applicant noted that the laneway was the only spot that he and his father could use when dealing with the property, as the parking spots in the back were reserved for tenants.

He notes that such remains the case for himself today. • The applicant noted that in 2011, disputes arose with the respondents (who bought the Martin property in 2010) over the laneway. He noted that in 2011 or 2012, the respondents had installed a gas meter, a protective pole, and window wells in the laneway. The applicant further acknowledged that he was quite angry about all these installations, as they impeded the lane. He acknowledged having a discussion with Mr. Martin about them, but he denied having threatened Mr. Martin in any way during those discussions.

• In his original affidavit, the applicant noted: When I parked there, the window wells were likely to be damaged. In his rebuttal affidavit (and in his cross-examination), the applicant acknowledged having removed (on two separate occasions) two protective bollards (poles) installed for the gas meters. He denied having damaged any of the respondents’ window wells. • The applicant’s affidavit went on to note: 39. Around this time, I parked an old Honda Accord in the Driveway and left it there for around six or seven months. The Respondents complained and called the police in 2011. The vehicle was towed.

I was very upset because I felt the vehicle was parked appropriately. • The applicant noted that his father Jack Lawen died in 2016. The Lawen property was transferred to the applicant before his father’s death. • The applicant noted that he has never stopped parking in the laneway and has continued to do so throughout the Martin's ownership (from 2010 onward), even to the date of his sworn evidence in April of 2022. His parking has continued to be once or twice a month on average. [ 8 ] At the beginning of his cross-examination, the applicant requested to make changes to his sworn affidavit.

The applicant was somewhat less than clear in that exercise. Quite frankly, it has been challenging to determine exactly what the applicant was purporting to change, and to what. [ 9 ] I have had that part of the applicant’s testimony transcribed. His evidence was as follows: June 26, 2023 09:52:11 Witness #1 – Michael Karam Lawen, affirmed 09:52:16 Direct Exam by Richard Norman, for the Applicant Q. Good morning. Could you please take a look at the affidavits in front of you there. And I’m … I’m looking in particular at the larger of the two. A. Okay. Q. It should be stamped April 28, 2022. A. Yeah. Q.

If you turn in a few pages, I just would like you to look at the signature page which is before the index, about 7- or 8-pages in. A. Yeah. Q. Okay. Is that your signature on that … A. Yes. Q. … affidavit? And have you had an opportunity to look through the affidavit recently in preparation for today? A. I, uh, this morning I looked at it. There’s an error, I believe. Q. Okay. If there’s anything that’s inaccurate in there that you’ve identified, maybe you can tell us … maybe you can tell us now, please. A. Uh, I think paragraph #19. 1980, okay. It says, “around 1999”.

The actual … the correction is, I think, late ‘80s early ‘90s that that happened. Constructed a … it says, “constructed a parking spot”. The Court : Sorry, Mr. Lawen. You’re going to have to be more clear. A. Okay.

The Court : You’re sort of speaking downward and I can’t understand what you’re saying. A. My apology, okay, sorry. The Court : Can you tell us what sentence and paragraph? A. Paragraph #19, I think it’s the last sentence, I believe. It’s “November to March of 1984 to around 1999.” It should be … it’s related to the parking. My dad had to make a parking spot on Windsor Street and that was late ‘80s, early ‘90s. Q. Okay, so just so we’re clear, you’re looking at paragraph 19. A. That’s correct, yeah. Q. And are you looking at the last sentence in that paragraph? A. Yes, sir. Q.

And that sentence, just for the record, says, “In 1999, he constructed a parking spot at the Windsor Street property and stopped parking at Cunard Street every day during the winter.” So, what … what is inaccurate about … A. It’s from 1989, like, it’s late ‘80s, early ‘90s. That’s when I first bought my own vehicle, so we needed a second spot. So, he had to do a … he had to … he had to construct a parking spot on Windsor Street. Q. Okay. So instead … A. And I think for the first year, we were back-to-back parking. Q. So instead of 1999, it should say … A. 1989. Q. Late ‘80s. A. Late ‘80s, early ‘90s. Q.

Okay, thank you. Anything else that you think is inaccurate in your affidavit? A. No, I think that’s … that’s … that’s the only thing I remember. Q. Okay. Did you want to take another look through it for a second? A. I think paragraph number maybe 21. “Almost every time it snowed during the winter months from 1984 through 1999, I would go over and shovel the driveway to (clean up) to allow us to park in the Driveway.” That was from 1992, ’93, that was not … I was not in the country. But anything after that when I came back in ’93, that was the way I helped my dad. Q. Okay. What about paragraph 20?

Anything in that paragraph that … A. “I also parked my car in the Driveway in the 1990s …” So, paragraph 20, in ’93 my dad bought a Honda Accord in 1993. That year a brand-new car. So, he had two vehicles. He had a CRV ’86, sorry, Accord ’86 and a ’93 Accord, so he had two vehicles after I came back from Lebanon. So, the second vehicle he would park on Cunard Street. We didn’t start parking until … the tenants didn’t have parking because it was a rooming house, until after ’99. “The back of the property was not paved …” Yeah.

In the 1990s, in around 1999, when there was a winter parking ban, my father parked … “My father’s car and my car would both be parked in the Driveway at the same time.” That was the early ‘80s. Sorry, late ‘80s, early ‘90s, until 1993, ’92, ’93. Q. Okay. So, that’s paragraph … Ms. Rubin : My Lady, The Court : I’m not sure what paragraph he’s talking about anymore. A. Paragraph 20. The Court : Is that, Ms. Rubin, what you’re concerned about? Ms. Rubin : I am. And these affidavits have been in evidence for a very long time.

There was cross-ex… discovery examination on the affidavits and we’re hearing entirely new evidence today through direct examination. So, I’m just … A. No, but I … Ms. Rubin : And I’m … A. Sorry. The Court : Hang on, sir. Ms. Rubin : … unclear what paragraphs these are and what they purport to be insofar as corrections.

The Court : Well, the discussion started by asking the witness if there was anything that he had noted as being incorrect. Mr. Lawen has taken the opportunity to correct things, but it is not lost on the Court that this document was signed under oath, so ask him, I guess, if he has corrections to make as long as we can identify what the corrections are. If he wishes to correct things, I guess he wishes to correct things. But, you know, as I say, it’s not lost on the Court that this was a sworn document, so I don’t know what more I can say about it than that at this point. Mr. Norman : Yes, I understand, My Lady.

I’m just trying to make sure it’s clear. I’m just trying to give him an opportunity to correct anything he wants to correct and make sure it’s clear as opposed to unclear. The Court : I fully appreciate that. As I say, it’s not lost on the Court that usually the answer to that is no, there’s nothing to change, but, anyway, that’s all I’m going to say at this point. A. Your Honour, I pointed out this morning that was incorrect. The Court : Sir, just wait for a question, alright? A. Sorry. Mr. Norman : So, so Mr. Lawen, you look at paragraph 20. A. Yeah. Q. What … what part of that paragraph is inaccurate? A.

Up to around 1999, ’92 and ’93, I was in Lebanon. And after ’93, I wasn’t parking there. My dad was parking there. Q. Okay. A. Okay? Q. Okay. Thank you, those are … anything else? A. No. Q. Okay. A. That’s it. Q. All right, thank you. …. [ 10 ] As a result of that, as best I can determine the applicant was purporting to make the following changes to his evidence: (

a) At paragraph 19, the applicant’s sworn statement: “He did that every day from November to March of 1994 to around 1999.” was incorrect. He wished to change it to “… from November to March of 1984 until possibly 1989, or the late ‘80s or early ‘90s.” (

b) At paragraph 21, the applicant’s sworn statement: “Almost every time it snowed during the winter months from 1984 through 1999, I would go over and shovel the driveway ...” was also incorrect. The applicant noted that this only started in 1993 when he came back to Canada. (

c) At paragraph 20, the applicant noted that the sworn statement, “I also parked my car in the Driveway in the 1990s …” also appears to be incorrect. As I understood his evidence, his father had two cars in 1993 and would park both at the laneway on Cunard. The applicant later clarified that in 1992 and 1993, he himself was in Lebanon. And that after 1993, the applicant was still not parking at Cunard, as his father parked there. [ 11 ] I should say that, even now, this latter change was never entirely clarified to me.

I also note that this last change was made only when the applicant was prompted to specifically re-read paragraph 20. [ 12 ] In general, as to the changes made by the applicant on the stand, they were undeniably significant changes. His amendments were not simple typos, or small details; the applicant made amendments to his evidence in relation to years of purported use of this laneway. [ 13 ] As I noted during the hearing, it was concerning to the Court that a sworn document could contain that many serious and fundamental errors.

Frankly, this did not inspire confidence that the applicant had carefully prepared his affidavit, nor that he was reliable in his recounting of facts. [ 14 ] In cross-examination it was also pointed out to the applicant that his affidavits had omitted some important details; for example, the fact that he resided in Lebanon from 1992 to 1993 had been omitted. The applicant also acknowledged that for a number of years (2005 and 2007-2014), his father Jack Lawen spent between six to 10 months in Lebanon each year, leaving in May, June, or July.

This was not mentioned in his affidavit either. [ 15 ] I was also provided with a transcript of discovery evidence of Mr. George Dockendorff, admitted by consent of the parties. [ 16 ] Mr. Dockendorff stated that he owned the Martin property from July 1998 to December 2003. He lived on the top floor, and

there was another unit on the first floor rented to a tenant. He was actually living at the Martin property for a year before he bought it. In total Mr. Dockendorff lived there six years (1997-2003). [ 17 ] Mr. Dockendorff recalled seeing parked vehicles in the laneway often, every day. He believed the vehicles to belong to the tenants of the Lawen property. [ 18 ] Mr. Dockendorff always understood and believed the laneway to be the Lawen driveway, i.e., meant for their owners/tenants. Mr. Dockendorff’s tenants did not use the laneway. [ 19 ] Mr.

Dockendorff recalls seeing Jack Lawen clean snow from the laneway. [ 20 ] Mr. Dockendorff noted that when he first bought the Martin property, it would have been possible for cars to drive up the laneway and access parking at either the Lawen or Martin properties. [ 21 ] Mr. Dockendorff put up a fence (about a year after he moved in) at the end of the laneway, fencing in the Martin property backyard.

After that, cars could no longer access the back of the Martin property by the laneway; however, there was a gate by which pedestrians could enter the Martin backyard. [ 22 ] I was provided with evidence from the respondents themselves. They provided as follows: • They purchased their property in 2010 as a three-unit rental property, with two upstairs units and a basement unit. The only entrance to the basement unit is at the back.

The Martin's were advised at the time of purchase, and believed, that tenants of that unit were to walk over the laneway to access the unit. • Their basement tenants have done so since the Martins have owned the property. • The Martin tenants park in the lane between their property and 6060 Cunard. This lane only extends halfway down the length of the two homes, due to the fence (mentioned hereinabove). Mr. Martin notes that this fence existed when they bought the property, and they have replaced it once already.

He also noted that there is also an old, very large tree beside this fence, which also would prevent vehicles from passing through this lane and accessing the back of the Martin property. This tree actually grows on the property of 6060 Cunard. • He noted that the (multiple) power meters for the Martin property are installed on the side of the home facing 6060 Cunard; and they also make it impossible for a vehicle to pass on that side. • Mr. Martin notes that in July 2011 he installed window wells at the windows to the basement unit of his property, to try and prevent water ingress into that unit.

Four of those wells were on the laneway side of his home. Also, at that time natural gas lines were installed in the area and a protective bollard (or pole) was installed in the laneway. Although these installations were on the Martin property, they impeded parking in the laneway (given its narrowness). • Mr. Martin was then approached by the applicant, whom he had not yet met. The applicant was angry about these installations because they prevented him from parking in the laneway. The applicant was holding a crowbar during this exchange and Mr.

Martin felt threatened. • That same evening, one of the window wells and the protective pole were damaged/removed. Mr. Martin believed this to have been done by the applicant. He phoned police about this event and is of the belief that the applicant was spoken to by police. • In September 2011, after Mr. Martin had replaced the pole and the window well, the applicant parked a Honda Accord in the laneway, and simply left it there unattended. The pole and window well had been removed/damaged again. The presence of the Honda in the laneway prevented repair/replacement of those items. • Mr.

Martin phoned the police about the Honda. The vehicle was there for approximately two weeks until it was towed from the laneway by police on October 8, 2011 (The applicant has acknowledged that this vehicle was not a “safety’d” vehicle when it was parked, which I understand to mean that it could not lawfully be driven on public streets). Police reports confirm that the first call about the Honda was on September 24, 2011. • Until the appearance of this Honda Accord, Mr. Martin had never seen anyone parked in the laneway.

• Mr. Martin noted that his tenants shovel the snow on his side of the passageway, in order to access their apartment. He has never seen the Lawen side of the laneway shoveled. • Mr. Martin noted that from 2006 until 2016 (before and after his purchase of the Martin property) he was employed as a property manager, and often drove by this area of Cunard Street, even numerous times per day. He noted that he had an interest in the property and would take note of it. He noted that he never once saw a car parked in the laneway. • Mr. Martin noted that he has told his tenants to report any vehicles in the laneway.

He heard no complaints or reports until about 2017 to 2018, when his tenants began complaining of cars in the laneway. Mr. Martin posted a No Parking sign facing the laneway. He noted that he has called authorities to report any vehicles in the laneway. • Mrs. Martin agrees with the evidence of her husband as to parking in the laneway since their ownership of the property. She has only noted the applicant to be parked in the laneway on a few occasions, in late August, since 2011. On each occasion she would engage with the applicant and give him permission to park there for a very limited time.

On each occasion the applicant complied and left the laneway when he had promised to do so. • (Note: I have been provided with evidence about parking tickets issued for vehicles in the laneway. It would appear that there have been seven tickets issued from July 2015 to February 2020. According to the applicant, all tickets were issued to either himself or his tenants. According to the respondents, all complaints were made by their tenants.) • Neither of the respondents has received any complaints about cars in the laneway since February 2020.

Neither of them has seen any cars in the laneway since then. [ 23 ] The respondents also filed evidence from others, including Gordon Dickie and Mark Knox. [ 24 ] Mr. Dickie bought the Martin property from Mr. Dockendorff in December 2003. Mr. Dickie tore down the fence that had been put up by Mr. Dockendorff at the back of the property. [ 25 ] Mr. Dickie recalled that, after that, some of his tenants were using the laneway to access parking at back of the Martin property. However, he noted that Jack Lawen then built another fence, at the back of the Lawen property.

He believed this was possibly after the summer of 2006. [ 26 ] This new fence again prevented vehicles from accessing parking at the Martin property by the laneway, but it did not prevent pedestrians from walking through. Mr. Dickie testified that he was not pleased about this, and that he tried to talk to Jack Lawen about it, but Mr. Lawen responded aggressively. Mr. Dickie did not pursue it any further. [ 27 ] Mr. Dickie did not recall anyone using the laneway for parking during the time he owned the Martin property. [ 28 ] Mr. Dickie installed the basement apartment during his ownership of the Martin property.

In relation to the applicant’s evidence that Mr. Dickie had asked the applicant for permission to use the laneway for construction equipment during that time, Mr. Dickie did not recall that but acknowledged it was possible. [ 29 ] Mr. Dickie sold the property to the Martins in May 2010. [ 30 ] Mr. Knox is a lawyer who has owned and occupied an office at 6051 Cunard Street, since 2008. This office is directly across the street from the Martin property, the Lawen property, and the laneway. Mr.

Knox’s personal office has windows from which he can see Cunard Street, the subject properties, and the laneway, while he is at his desk. [ 31 ] Mr. Knox indicated that he has never seen anyone parked in the laneway. The one exception, which he described as occurring some time ago, involved a “dark” vehicle he saw in the laneway. Mr. Knox recalls there being some involvement of authorities with the matter, perhaps a tow truck removing the vehicle. [ 32 ] Mr. Knox acknowledged that he is not in his office at all times every day.

He further acknowledged that even when he is at his desk, he is not constantly watching the street and/or the laneway. [ 33 ] As noted hereinabove, the applicant seeks an easement over that portion of the laneway belonging to the respondents. Specifically, he wishes to be able to park in the laneway. It is his position that he, his father, and/or their tenants have made use of that laneway for parking on a consistent basis, and for many years. [ 34 ] The respondents oppose the applicant's request.

In their view the applicant has not established his claim for prescriptive easement, either through limitations legislation or through the doctrine of lost modern grant. [ 35 ] The respondents note that, since their ownership of the Martin property, there has been very little use of the laneway by either the applicant or his tenants; that on each occasion of use, the respondents have objected; and that they have never acquiesced to the use of the laneway by either the applicant or his tenants.

[ 36 ] The respondents note further concerns with the applicant’s request, specifically due to the laneway being so narrow. The respondents note that when a vehicle is parked in the laneway, this prevents foot passage by the Martins’ tenants to their basement apartment entry. They also note that when a vehicle is in the laneway, this impedes or even prevents maintenance of the side of the Martins’ property facing the laneway. Analysis [ 37 ] It is settled law that there are four essential characteristics to an easement: 1. The existence of a dominant tenement and a servient tenement; 2.

That the easement advantage the dominant land; 3. That both tenements have different owners; and 4. That the easement be capable of forming the subject matter of a grant ( Urban Farm Museum Society of Spryfield v. Auby , 2021 NSSC 136 ). [ 38 ] Furthermore, whether the claim is based on a limitations statute or the doctrine of lost modern grant, the following criteria also apply: 1. Use by permission or license is insufficient; 2. The use must be open, not secret or clandestine; 3. The owner of the servient tenement must know (or ought to have known) what was happening; 4.

Use permitted by neighbourliness is insufficient; and 5. The use must be interrupted for the required prescription period. ( Urban Farm Museum , supra; 394 Lakeshore Oakville Holdings Inc. v.

Misek , 2010 ONSC 6007 ) By prescription [ 39 ] The Real Property Limitations Act SNS 2014 c. 35 , provides as follows: Prescription 32 No claim which may be lawfully made at the common law by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived upon, over or from any land or water of our Lady the Queen, her heirs or successors, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated and where such way or other matter as herein last before mentioned has been so enjoyed as aforesaid for the full period of twenty-five years, the right thereto shall be deemed absolute and indefeasible, unless it appears that the same was enjoyed by some consent or agreement expressly given, or made for that purpose by deed or writing.

Interruption of prescription period 34 Each of the respective periods of years, mentioned in Sections 32 and 33, shall be deemed and taken to be the period next before some action or proceeding wherein the claim or matter to which such period relates, was, or is, brought into question and no act or other matter shall be deemed an interruption within the meaning of the said two Sections, unless the same has been submitted to or acquiesced in for one year after the party interrupted has had notice thereof, and of the person making or authorizing the same to be made. [ 40 ] It is noted that the difference between these two sections was explained in Roode v.

Johnston , 2018 NSSC 293 :

Section 32 establishes two periods of adverse use, 20 and 25 years. After 20 years use the easement may not be defeated by proving that it had first existed at any time prior to the 20 year period. After 25 years use the easement is deemed to be absolute and indefeasible and cannot be defeated by abandonment, non-use or interruption. 41. Pursuant to

section 34 the relevant period of use must immediately precede the bringing of the action.

Section 33 states that the 20 year period of use must be without interruption. [ 41 ] In the present case the action was brought in October 2021. The relevant period would be 2001-2021 (20 years) or 1996-2021 (25 years). This spans the entire period of the Martin’s ownership of the Martin property, as well as the period Mr. Dickie owned it, and part of the period Mr. Dockendorff owned it. [ 42 ] The applicant’s evidence in support of the application is, to a major extent, his own.

As I have already noted, I found the applicant’s evidence to be problematic. [ 43 ] The respondent submits, and I accept as a correct statement of the law, that the finding of an easement by prescription should not be made lightly: [39] Courts are understandably cautious about finding easements where no direct grant has occurred. In part, this is because the easement

by definition diminishes the servient tenement and enhances the dominant one, but without the exchange of consideration that would normally accompany an express grant. In effect, the dominant tenement is getting something for nothing, and the servient tenement is not compensated for its loss. Similarly, there is a risk of penalizing the servient tenement owner for having allowed a situation to occur where the intention might have been kindness or "good neighbourliness" ( 394 Lakeshore Oakville Holdings Inc. v. Misek , supra, at paras. 95 & 96 ).

As a result, there needs to be clear and unambiguous evidence in support of the prescriptive easement claim. [40] Acquiescence by the owner is the foundation of the prescriptive easement concept. As a result, the Applicants in this case must satisfy the court that they have had open use, such that the owner (in this case, the Crown), would have had a reasonable opportunity to be aware of the situation but did nothing to stop it. Furthermore, the use must be more than permissive, but rather akin to an ownership interest. ( Duncan v.

Beach O'Pines , 2011 ONSC 2349 ) [ 44 ] In the present case, the evidence simply does not support a finding that the applicant has made continuous and open use of the laneway, during the 20 (or 25) years prior to October 2021. [ 45 ] Even if I accept the evidence of Mr. Dockendorff that there was usage of the laneway during his time at the Martin property (by way of Lawen tenants parking), that only covers 1997-2003. It is entirely clear, in my view, that there was not continuous and open usage of the laneway by either the applicant or his tenants during both Mr.

Dickie’s and the respondents’ years of ownership. [ 46 ] In particular, since the respondents have owned the Martin property (2010-present), I find that the applicant and/or his tenants have not made open and continuous use of the laneway. There were, I accept, a few instances of use; none of these instances were acquiesced to by the respondents, other than a few occasions of permission given by Mrs. Martin to the applicant.

Every other occasion was met with objection and ticketing. [ 47 ] The evidence of the respondents, which I accept, is that since their ownership of the property they have been keeping an eye on the laneway for parked vehicles and have asked their tenants to do the same. Tenants of the Martin property basement require the laneway to access their apartment; and so, a parked vehicle could not go unnoticed by them for long.

It was clear to me that the respondents have taken the issue of this laneway very seriously since at least 2011, and they have not allowed any incident of parking to go unnoticed. [ 48 ] On the few occasions of a vehicle parking in the laneway between 2011 – 2020, the respondents responded very quickly by objecting, and by calling for the vehicle to be removed. I accept this evidence and I find it to be reliable and credible. [ 49 ] Moreover, I consider the respondent’s evidence to be supported by the evidence of Mr. Knox. While I accept that Mr.

Knox was not continually watching this laneway 100 percent of the time, it remains that he is directly across the street, and faces the laneway directly. Mr. Knox even recalled noticing the car that was eventually towed. I accept that Mr. Knox was reasonably observant about that laneway and that if a vehicle had been routinely in that location, he would have noticed it. [ 50 ] I do not accept the applicant’s evidence that since the time of the respondent’s ownership of the Martin property, he has been making open and continuous use of the laneway. That is simply not borne out by the evidence before me.

I find that any use the applicant (or his tenants) has made, has been very occasional, and has been immediately met with strong objection by the respondents. [ 51 ] The applicant’s claim for a prescriptive easement is dismissed. Lost modern grant [ 52 ] The elements for establishing a claim for prescriptive easement pursuant to limitations legislation, and pursuant to the doctrine of loss modern grant, are essentially the same. The one difference is that the doctrine of lost modern grant does not require that the 20- year period of use immediately precede the application: [17] Mr.

Mason’s appeal is based on the doctrine of modern lost grant. Charles MacIntosh, Nova Scotia Real Property Practice Manual , at 7-21 described that doctrine as follows: ... The [doctrine of lost modern grant] is a judge-created theory which presumes that if actual enjoyment has been shown for 20 years, and actual grant has been made when the enjoyment began, but the deed granting the easement has since been lost.

However, the presumption may be rebutted. [18] In Henderson , supra the Ontario Court of Appeal set out the requirements for establishing an easement pursuant to either a limitations statute or the doctrine of modern lost grant in the following passage: 14. It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act.

Thus, the 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.

However, in the case of the doctrine of lost modern grant, it does not have to be the 20 year period immediately preceding the bringing of an action. [ 53 ] In the case at bar, were I to accept the evidence of the applicant (after the changes he purported to make), use of the laneway for parking would be during the following times: • Parking in the laneway by Jack Lawen as early as 1978, for unknown periods. • Parking in the laneway by Jack Lawen occurred during the winters (November to March) from 1984, until approximately 1989.

• From 1993 to 1999 the applicant would shovel the driveway during the winters; after 1999 tenants were asked to do so. • Both the applicant and his father attended the Lawen property “often” to deal with tenants and maintenance issues and parked in the laneway when doing so.

The applicant estimates himself doing so twice a month from 2003 to 2016 (save and excepting the period he was out of Canada); and his father visiting there two to four times a month or more (save and excepting the significant periods Jack Lawen was out of Canada, during many of those years). • The applicant parked in the laneway for several days in a row in 2004 while painting. • Mr. Dockendorff gave evidence that he resided at the Martin property from 1997 to 2003 and recalled vehicles in the laneway daily; he believed them to be vehicles of the Lawen tenants. • In 2004 the Martin property was sold to Mr.

Dickie. Sometime in 2004, Mr. Dickie asked the applicant for permission to leave construction equipment in the laneway. • The applicant states that he and his father made open use of the driveway to park as noted, and that both Mr. Dockendorff and Mr.

Dickie were well aware of that use. • The applicant says that he has never stopped parking in the laneway and has continued to do so throughout the respondent's ownership, even to the date of his sworn evidence in April 2022, using it once or twice a month on average. [ 54 ] It was the applicant's submission that, specifically, the 20-year period from 1984 to 2004 meets the criteria for prescriptive easement (lost modern grant). [ 55 ] The applicant acknowledges that his (and his father'

s) use of the laneway for parking during those years was not entirely continuous. However, the applicant argues that their use was consistent enough, in the context of these circumstances, to demonstrate the enjoyment (or claim) of a right of prescriptive easement ( Bower et al v. Etherington , 1965 Carswell NS17 (NSSC-TD) . He notes that tenant’s use could also be counted. [ 56 ] The respondent counters that gaps in use can "break the continuity and defeat the right"; the question is entirely dependent on the context and the circumstances of the factual scenario ( Burgoyne v.

Hutton , 2016 NSSC 60 ). [ 57 ] The issue of these acknowledged “gaps” could very well have been a crucial aspect of this case. However, upon consideration, I find I do not need to consider that aspect of the law. [ 58 ] That is because, more fundamentally, I simply do not accept the evidence from the applicant as to his and his father’s (and his tenants’) use of the laneway over the years. I have no confidence that the applicant is accurate about the dates and usage he has described. I find the applicant's evidence to be unreliable and lacking in credibility.

It is, in my view, certainly not of sufficient reliability to support the finding of a prescriptive easement. [ 59 ] The applicant's evidence was unreliable within itself, as I have indicated earlier. He had a tendency to guess, particularly by over-estimating (e.g., his evidence that the Honda Accord was in the laneway for six or seven months was clearly inaccurate; the evidence in his affidavit about a number of issues was also inaccurate and over-estimated).

When called to the stand, the applicant purported to correct himself on some very significant aspects of his evidence, which he had previously sworn under oath. Those amendments materially changed the evidence he was giving as to the use of the laneway. [ 60 ] I find the applicant's evidence also lacked credibility. There is, very simply, no doubt in my mind that the applicant was responsible for the damage to the respondent’s window wells in 2011. The applicant was clearly angry about all of the installations in the laneway in 2011.

He acknowledged removing two poles from the laneway on two separate occasions; and on both of those occasions, at the same time, damage to the window wells also occurred. There is simply no one else who would have been inclined to committing that damage, at both of those same times. The applicant’s responsibility for damaging the window wells is, on the civil standard, completely undeniable. [ 61 ] But deny it he did. I surmise that the applicant did not wish to take responsibility for such an outrageous act. In doing so however, he has caused me to question his general credibility.

I am left to doubt all he has put forward. [ 62 ] The applicant suggested that his continued use of the laneway to park is (and always has been) entirely necessary, to effect maintenance of his property and to assist with his tenants. Despite that, he admitted to parking an old car in the space in 2011, and (as he recalled) leaving it for six or seven months. This certainly calls into question his suggestion that he has a continual and on-going need for the space.

[ 63 ] The applicant admits to parking and leaving the “old Honda Accord” at the same time that he and the respondents were engaged in active disputes about his use of the laneway. He suggests that this was a “lawful use” of the laneway. Put simply, in my view, that was a patently absurd statement, entirely lacking in credibility. I do not accept this evidence.

I find the applicant’s actions in parking this Honda Accord vehicle, when and how he did, were retaliatory and childish. [ 64 ] Despite having sworn two affidavits, the applicant omitted aspects of the facts that were clearly very significant (e.g., his absence from Canada during the early 90s; his father's absences from Canada for significant periods, and for many years). Those facts, at least on their face, were not supportive of his claim.

I infer that was the reason for their omission. [ 65 ] The applicant’s evidence is also in dispute with other witnesses, whose evidence I find more reliable and more credible. I accept the evidence of the respondents as to the parking situation in the laneway since their ownership; they were unimpeached in their evidence and clearly were watching the situation very carefully. I accept the evidence of Mr. Knox that he never saw vehicles in the laneway, save the one time that he described. I accept the evidence of Mr.

Dickie, that he never saw vehicles parked in the laneway during his ownership, 2003 to 2010. [ 66 ] In short, I do not accept the applicant’s suggestion that his use of the laneway for any 20-year period meets the criteria for a prescriptive easement. I cannot say with any degree of confidence that his evidence about dates/usage is reliable. I also find some of his evidence to entirely lack credibility which causes me to question all of it; particularly when coupled with the reliability concerns. [ 67 ] Counsel have raised with me the case of Charles v. Xu , 2021 NSSC 295 .

While I acknowledge that there are some similarities between that case and the case at bar, I find it entirely distinguishable. In the Charles case, the applicants’ evidence of prescriptive use for parking was essentially uncontradicted and accepted by the Court; not so here. [ 68 ] I also note that in the Charles case, the Court noted that the applicants had been careful to minimize any interference with the property owners and had been respectful in their use of the easement. That is also distinguishable from the case at bar; the same cannot be said of the applicant.

The incidents with the pole, the window wells, and the Honda Accord (left in the laneway for weeks, unused, until it was towed), are not examples are of respectful, mature use of property rights. [ 69 ] In the final analysis, a finding of a prescriptive easement requires solid and convincing evidence as to its requirements. I find the applicant’s evidence to be neither. I cannot accept with any confidence that the periods of use he has described are either accurate, or worthy of trust. [ 70 ] The application is denied.

If the parties cannot reach agreement on costs within 30 days, I would request that they provide me submissions in writing at that time. Boudreau, J.