Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on property rights involving a driveway and adjacent gravel/lawn area.

• Applicants claimed both adverse possession and a prescriptive easement over portions of the respondents’ land.

• Easement was granted, but the adverse possession claim was dismissed due to insufficient evidence.

• Respondents argued for divided success to avoid a costs award.

• Court evaluated conduct, proportionality, and necessity of legal work in determining costs.

• Partial indemnity costs of $36,000 were awarded to the applicants based on substantial success and reasonable expectations.

Facts of the case

Louise and Leslie Murray-Leung brought an application seeking rights over parts of land owned by their neighbours, Brian Dyck and Jodi Eastwood. The disputed areas included a shared driveway and a gravel parking and lawn space located just beyond the applicants’ property line, used historically by them and previous owners. The Murray-Leungs asked the court to recognize their ownership of the areas through adverse possession or, alternatively, grant a prescriptive easement allowing continued use.

The applicants relied on a 2021 survey to establish the layout and history of use. They asserted that they and their predecessors had continuously used the driveway and surrounding land for decades without interruption, believing it to be part of their property. Conflict arose when the respondents attempted to restrict access by placing items such as armour stones and compost piles along the property line and eventually erecting a fence, actions viewed by the applicants as antagonistic and unjustified.

Court findings and outcome

The court ruled in favour of the applicants on their primary claim, granting them an easement of vehicular ingress and egress over the shared driveway. This was based on the historical, continuous use that had not been legally challenged for many years. However, the court dismissed the adverse possession claim regarding the gravel parking and lawn area. It held that the applicants failed to meet the strict legal threshold for adverse possession, which includes proving exclusive, open, notorious, and uninterrupted possession for a statutory period.

Despite not succeeding on all aspects of the claim, the court deemed the applicants to have achieved substantial success. The key relief—the driveway easement—was the central issue of the application. The respondents’ actions, while technically on their own property, were considered unnecessarily hostile and escalatory, particularly given the unresolved nature of the property line dispute at the time.

In assessing costs, the court declined to award costs on a substantial indemnity basis, finding that the respondents’ conduct did not rise to the level of reprehensible behavior. Nonetheless, the applicants were awarded partial indemnity costs of $36,000. This amount was deemed fair and proportionate, taking into account the importance of the issues, the moderate complexity of the proceeding, the reasonableness of the legal work done, and the fact that some duplication among the applicants’ legal team could have been avoided. Costs were made payable within 30 days.