Barbour v. Bailey, 2016 ONCA 98:
[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 Depew v. Wilkes (2002), 60 O.R. (3d) 499 (C.A.), at paras. 18-19.
[57] With respect to the fourth criterion, what is "reasonably necessary" will depend on the nature of the property and the purpose of the easement. In Depew v. Wilkes, at para. 24, this court confirmed that the reasonable necessity requirement for a prescriptive easement is fact-specific and must be applied in a flexible manner, citing with approval the following instructive passage from Anger and 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.
[58] However, 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, as opposed to a personal right belonging to the dominant tenement owner: Depew v. Wilkes, at para. 20. Examples of uses that courts have found to be "reasonably necessary" usually involve a very practical purpose, such as parking spaces or driveways: see e.g. Depew v. Wilkes; and Carlini Estate v. Hammoud, 2011 ONCA 285.
[59] This is reinforced by the fact that in order to be capable of forming the subject matter of a grant (the third criterion listed above), easement rights must not be ones of mere recreation and amusement; the rights in issue must be of utility and benefit to the dominant tenement: see In re Ellenborough Park, [1956] 1 Ch. 131 (Eng. C.A.), at pp. 175-76, cited with approval by this court in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 204.
[60] In addition to the above criteria, a claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years. See Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.), at p. 383; and 1043 Bloor Inc. v. 171404 Ontario Inc., 2013 ONCA 91, 359 D.L.R. (4th) 688, at paras. 57, 59.
[61] Specifically, the use as of right of the person seeking to establish an easement cannot be at the will and pleasure of the owner of the property over which the easement or right-of-way is sought to be established. Instead, the use must be as if the claimant had the right to the easement or right-of-way. See Henderson v. Volk, at p. 383; 1043 Bloor Inc., at para. 59; and Mason v. Morrow (1999), 114 O.A.C. 194, at para. 5.
[62] Acquiescence by the owner of the servient property to the use of the person seeking to establish an easement must be more than good neighbourliness. In those instances where the owner of the servient tenement can readily be taken to know of the notorious use of his property, if he makes no objection, then his acquiescence to that use, sufficient to establish a prescriptive title, can readily be inferred: Henderson v. Volk, at p. 384.
[63] Finally, to acquire a prescriptive easement under the Real Property Limitations Act, a claimant's use must be established to run for 20 years immediately before "some action wherein the claim or matter to which such period relates was or is brought into question": s. 32.[3]
Of the Law Societies of Upper Canada and Nunavut
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