COURT OF APPEAL FOR ONTARIO
Rosenberg, Feldman and Simmons JJ.A.
BETWEEN:
Marjorie Lynn Tucker and Max Julien Guy Cordon
Plaintiffs (Respondents)
and
Roger Moffatt
Defendant (Appellant)
Robert A. Konduros for the appellant
David J. Thrasher for the respondents
Heard and endorsed: November 19, 2008
On appeal from the judgment of Justice C.S. Glithero of the Superior Court of Justice dated December 27, 2007.
APPEAL BOOK ENDORSEMENT
1The respondents concede that the trial judge erred in treating this as a case of mistake. As a result of this error the trial judge applied the wrong test and in particular failed to consider whether there was an intention to exclude the owners from such uses as the owners wanted to make of their property. The respondents failed to establish intention to exclude and on that basis the claim for adverse possession failed.
2Accordingly, the appeal is allowed, the judgment is set aside and the action dismissed. The appellant is entitled to his costs of the trial and the appeal fixed in total at $10,000 inclusive of GST and disbursements.