COURT OF APPEAL FOR ONTARIO

Page: 83
easement is the period immediately before the commencement of the action: see ss. 31
and 32 of that Act.
[207] The doctrine of the lost modern grant was described by Blair J.A. in Kaminskas v.
Storm, 2009 ONCA 318, 95 O.R. (3d) 387, at para. 22, as follows:
This doctrine was developed in common law jurisprudence to
overcome the inconvenience of the common law rule (where
the right could be defeated if it could be proven that the right
claimed did not exist at any point in time within legal
memory). Under the doctrine of lost modern grant, the courts
will presume that there must have been a grant made
sometime, but that the grant had been lost. Uninterrupted user
as of right at any point in time will create the prescriptive
right under this doctrine, provided it was for at least 20
years. [Emphasis added.]
[208] In addition to considering whether the evidence established the essential
characteristics of an easement articulated in Ellenborough Park, the motion judge also
considered the following criteria for establishing a prescriptive easement. These criteria
apply whether the claim for the easement is based on a limitations statute or the doctrine
of lost modern grant:
(i)
(ii)
(iii)
Use by permission or license is insufficient to establish
a prescriptive easement;
The easement claimant‟s use must be open and not
secret or clandestine;
There must be evidence that the owner of the servient
tenement knew or ought to have known what was
happening on his or her land;