Most Ontarians fortunate enough to own cottage property, and particularly property fronting on water, will be familiar with the desirability of reasonable cooperation with their neighbours.  After all, cottage owners typically look at their recreational properties as sources of stress relief.  However, sometimes the spirit of neighborliness is misinterpreted and disputes begin.  In my experience, these disputes can often be laden with emotion and, therefore, hard fought.  So much for stress relief!

In the Court of Appeal decision in Kubiniec v. Dy, the Court dealt with an appeal from a judgment after a five-day trial in a case between neighbouring cottage owners on Lake Erie.

The parties owned lands next to each other.  Both parties’ lands included waterfront access, but the plaintiff’s waterfront was rocky and marshy and lacked a sand beach.  For that reason, the plaintiff’s access to the lake from his property was less convenient.

As a result, from about 1970, the plaintiff and his family had accessed the lake using a footpath and other land area on the defendants’ property, for the purpose of swimming and boating and, according to the plaintiff, to enjoy his cottage property generally.  The plaintiff claimed to have done so continuously until 2016 without any specific permission from the defendants.  The plaintiff insisted that this use was necessary for his better enjoyment of his own property and, in fact, the plaintiff tendered an evidence that he had maintained the area on the defendants’ property which he was using. 

In 2016, the defendants put a stop to it and even called the police to try to get the plaintiff charged with trespassing.  This led to the commencement of this lawsuit in 2017 in which the plaintiff asked the Court to order, among other things, that he had a prescriptive easement over that part of the defendants’ property that he and his family had been using for decades.  The plaintiff argued that the defendant had acquiesced to the plaintiff’s use of the lands for a period of at least 20 years, as required by the law on the subject, and that the easements were necessary to the plaintiff for the reasonable use of his own property. 

These arguments were all dismissed by the trial judge. 

To establish a prescriptive easement, the plaintiff must show that for a period of 20 years he has demonstrated use as of right that is open and without permission.  He must establish that the defendant must have known about that use and acquiesced to it. The entire 20-year period must have been completed prior to the conversion of the property in issue into the Land Titles system.

In this case, the trial judge concluded that the plaintiff’s use was with the tacit permission of the defendants’ predecessors-in-title as an act of good neighbourliness consistent with the local community culture and a long-standing tradition.  The trial judge specifically stated “I failed to see how such permissive use in these circumstances can lead to a proprietary right”.  Lack of objection, in other words, will not always amount to acquiescence.

In terms of necessity, whether an easement is reasonably necessary will depend on the nature of the property and the purpose of the easement.  A purpose that consists of recreation or amusement is not going to suffice and convenience is not the test.  In this case, the plaintiff’s property was not landlocked and while his own access to the lake was less convenient, he still had some access.  He could also use another route not involving the defendants’ property that would only add a few minutes to the process.

The Court of Appeal accepted all of these findings of fact, as it inevitably will do. The Court of Appeal has stated, many times, that it will not readily interfere with a judge’s findings of fact except in rare instances.

Accordingly, the appeal was dismissed.

I have been involved a number of cottage property disputes of this nature.  These cases are always completely fact specific but in my experience it is fair to say that if the Court concludes that a party is being a good neighbour, that party is almost certainly not going to be punished for it.