What is the test for open and continuous use of the easement by the owner of the dominant tenement?
Ontario, Canada
The following excerpt is from Stoddart v. Kubiak, 2009 CanLII 12124 (ON SC):
The purpose of the requirement of open and continuous use of the easement by the owner of the dominant tenement is so that the use would be apparent to an ordinary owner of the servient tenement, diligent in the protection of his or her interests. Thus the use must be such that the owner of the servient tenement must be taken to have had knowledge or the means of knowledge of the use made by the owner of the dominant tenement: see Brass Rail Tavern (Toronto) Limited v. Dinunzio, [1979] O.J. No. 1063 (at para. 53).
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