Ian Andrew Brisbin

A costs decision following a residential property dispute involving a claim for adverse possession.

The applicant succeeded in establishing adverse possession over a narrow strip of land along a backyard fence line but failed to establish adverse possession over a larger wedge of land in the side and front yard areas of the adjoining properties.

The court characterized the result as divided success but emphasized that the more significant disputed area was decided in favour of the respondents.

Applying the principle of partial indemnity costs and considering proportionality, the court awarded the respondents a portion of their costs.

The applicant was ordered to pay $6,000 inclusive of HST and disbursements.

The applicant sought a declaration of title to a disputed strip of land between neighbouring residential properties, relying on adverse possession arising before the conversion of the properties to the Land Titles system.

The court applied the test for adverse possession under the Real Property Limitations Act and the principles articulated in Ontario appellate jurisprudence requiring proof of actual, open, notorious, exclusive, and continuous possession for the statutory period.

The evidence established that a fence erected decades earlier functioned as a boundary and that the applicant’s predecessors exercised exclusive possession of the narrow strip of land south of the fence for more than ten years prior to the 1995 conversion to Land Titles.

However, the applicant failed to prove exclusive and adverse possession of the unfenced lawn area extending toward the street.

The court declared the boundary to follow the fence line in the rear yard and the registered title boundary east of the fence, vacating a previously issued injunction.