Jeffery Shankman

Following a seven-day trial regarding adverse possession and a right of way, the parties appeared to settle the formal judgment and address costs.

The court amended the judgment under Rule 59.06 to include an omitted declaration regarding a gate encroachment and adopted registerable Land Titles descriptions for the disputed lands.

On costs, the court found the plaintiff was the substantially successful party and had beaten its pre-trial offer to settle.

The court fixed costs at $500,000 payable to the plaintiff, reflecting the high quality of advocacy and the application of Rule 49.10.

Friday Harbour and its predecessors operated a marina on Lake Simcoe, which involved dredging a channel that submerged part of a right of way (Block C) and using the remaining 'Marina strip' exclusively since the 1960s.

The defendant, owner of Block C, argued the right of way was abandoned and counterclaimed for trespass.

The court found that Friday Harbour acquired ownership of the Marina strip by adverse possession, as its use was open, notorious, exclusive, and inconsistent with the titled owner's intended use.

However, the court also found that Friday Harbour had abandoned its right of way over the 'Western strip' of Block C, as it had relied on the impassability of the barrier between the strips to establish its adverse possession claim.