COURT OF APPEAL FOR ONTARIO

Page: 81
pending proceeding under the Land Titles Act. However, he exercised his discretion to
proceed with the motions so as not to prolong the matter. On appeal, no objection was
made to this exercise of the motion judge‟s discretion.
[202] The motion judge held that a trial was not necessary to determine the question
whether the Misek property enjoyed an easement over the respondent‟s property. He
concluded that Purvis had only held a personal license, which was not defined with
sufficient certainty to establish a prescriptive easement. He granted summary judgment
in favour of the respondent and declared that the Misek property did not enjoy a
prescriptive easement over the respondent‟s property. He also granted Purvis‟ Rule 21
motion and dismissed the respondent‟s action against her. The motion judge observed
that there was no basis for naming Purvis as a defendant considering that she no longer
owned the property in favour of which the prescriptive easement was claimed. Finally, he
dismissed Misek‟s Rule 21 motion seeking to stay the respondent‟s action.
[203] In his reasons for these orders, the motion judge gave an exhaustive review of the
law of easements in England and Canada extending back to the mid-19th century. It is
unnecessary to repeat that review in detail here.
[204] The motion judge referred to the four essential characteristics of an easement as
described by the Master of the Rolls in Re Ellenborough Park, [1956] 1 Ch. 131 (Eng.
C.A.):