COURT OF APPEAL FOR ONTARIO

Page: 80
[198] When Purvis was cross-examined on her affidavit, she acknowledged that the
claimed easement is narrower than 9.83 metres in certain places.
[199] The respondent issued a summons to a former owner of 394 Lakeshore Road
West, Russell Little. Little testified that Purvis and her family frequently walked over his
lands and across the waterfront of Lake Ontario and that he would wave to them when he
saw them. He also testified that he never objected to their use of the lands. He said that
his understanding was that their use of the lands was derived from a right inherited from
the previous owners of the Misek property and a continuation of a long-established
convention that he respected. He did not know if he had an option to consent to Purvis
walking on his lands but “[he] just assumed it was a right”.
[200] Before the summary judgment motion was argued, the respondent served an
amended statement of claim. In the amended claim, the respondent withdrew its claim
for slander of title, injurious affection and malicious falsehood. The respondent sought
an order deleting the statement of objection filed by Misek, and a permanent injunction
prohibiting Misek and Purvis from registering any document or plan against its title, or
otherwise claiming any interest in its lands.
3. Motion for Summary Judgment
[201] The parties‟ competing motions under Rules 20 and 21 were heard together. The
motion judge observed that the respondent‟s action was unnecessary because of the