Easements that are intended to provide utility companies with access to maintain and service the utilities they provide are common features of many properties in Ontario. If the easement is not registered on title, however, the use of the easement lands must be established under the same legal requirements for an easement, and rights may be gained or lost in the same manner.

In Hydro One Networks Inc. v. Amos Allen Shiner, 2022 ONSC 1893 (CanLII), Hydro One Networks sought a declaration that it held a permanent easement over the portion of a road on the respondent's property in Cloyne, Ontario. Hydro One sought the right to use the road without permission in order to access an easement in favour of the Hydro-Electric Power Commission of Ontario, as well as ancillary orders that would permit access and prevent the respondent from preventing access to the road.

In the 1930s, Hydro One's predecessor company built a transmission line and towers that passed through the property now owned by the respondent. In 1948, an easement was granted to Hydro One's predecessor company on the land upon which the transmission towers were built. Hydro One employees must access the hydro easement to service and maintain the transmission towers and trim the vegetation around them.

To reach the hydro easement, Hydro One employees traditionally travelled over the portion of a road on land now owned by the respondent. There was no question that the road was private and that different portions are owned by different property owners, including the respondent.

The respondent bought his property in December 2017. In 2020, he advised Hydro One workers that they were no longer permitted to use his portion of the road. In 2021, Hydro One workers observed a gate at one end of the road and a chain blocking access at the other end.

Hydro One then brought an application for the right to an easement over the road on the respondent's property. Hydro One's position was that they were required by the applicable regulations issued by the Ontario Energy Board to inspect, maintain, repair and construct transmission assets. Therefore, they required reliable access to the transmission line easement.

Hydro One argued that it had used the road over the respondent's property since at least 1966 and that its workers had never asked permission to use the road.

The respondent countered that there were several other access routes that Hydro One could use to get to the easement on which the transmission towers were built. Hydro One claimed that these other routes were either impassible by their equipment or that it would take them several hours out of their way.

In the application, Hydro One argued that it had continuous, uninterrupted, open and peaceful use of the road without the owner's permission for more than 40 years and consequently, the doctrine of lost modern grant applied. Alternatively, Hydro One claimed a prescriptive easement based on section 31 of the Real Property Limitations Act ("RPLA"), which required that Hydro One establish that they used the road for more than 20 years prior to 2008, when the respondent's property was registered under the Land Titles Act.

Courts are hesitant to recognize an easement by prescription because doing so "would permit a landowner's neighbourly accommodation of sufferance to ripen into a legal burden on his or her lands without compensations": Carpenter v. Doull-MacDonald, 2017 ONSC 7560, at para. 51.

The threshold for establishing a prescriptive easement under the RPLA or by lost modern grant is therefore high—the party seeking a right acquired by prescriptive easement or lost modern grant must show, amongst other things, that the use of the easement lands was "as of right" for a continuous period of twenty years. "As of right" generally means without written consent or permission of the owner of the lands upon which the easement is sought.

The respondent disputed Hydro One's claim that it had used the road continuously since 1966. He contended that Hydro One only started using the road relatively recently and then only infrequently.

Significantly, Hydro One conceded in its evidence that its workers only accessed the easement on which the transmission towers were built approximately every one to three years for a foot patrol and every six to eight years for brush clearing.

The application judge concluded that the road was used at most once a year and probably considerably less frequently than that based upon Hydro One's own affidavit evidence. The Court of Appeal has affirmed that continuously does not mean 'infrequently' or 'occasionally': Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266 at para. 6. Hydro One's use of the road was occasional at best rather than daily or with other regularity, which did not meet the threshold for "continuous" use.

Hydro One was also unable to establish that its use of the road was "as of right" for a period of twenty years. While there was some evidence as to the use of the road since 1966, the evidence was contradictory as to whether Hydro One's use was as of right.

Hydro One asserted that it never sought the permission of the owners to use the road. However, there was evidence from one of Hydro One's own employees that Hydro One did  in fact seek the respondent's permission. In an email sent by the employee to the respondent, the employee stated that Hydro One's commitments would be put down in writing or a formal agreement, referring to an attachment outlining the details of Hydro One's commitments to the respondent regarding access to his property. The act of seeking a written agreement was contrary to Hydro One's position that it did not require the respondent's permission to do so.

In the circumstances, the application judge could not conclude that Hydro One's attitude towards the use of the road was 'as of right' for the required continuous period of time.

Consequently, Hydro One failed to demonstrate that its use of the road was such that it created a prescriptive easement and its application was dismissed. Going forward, Hydro One will either have to use an alternate means to access the easement on which the transmission towers are located, or negotiate an agreement with the respondent to use the portion of the road traversing his property. The decision will be of interest to utility companies as well as to land owners, each of whom may wish to assess whether the use of an unregistered roadway over private property has actually been established as a prescriptive right. A PDF version is available to download here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.