COURT OF APPEAL FOR ONTARIO
Cronk, Blair and LaForme JJ.A.
BETWEEN:
Brian Edgar Shennan and Nancy Louise Shennan
Applicants (Respondents on Appeal)
and
Ruth Szewczyk and Joseph Szewczyk
Respondents (Appellants)
G. Edward Oldfield and Allison McAlpine for the appellants
Ross C. McLean for the respondents
Heard: October 7, 2010
On appeal from the judgment of Justice R.M. Thompson of the Superior Court of Justice, dated May 5, 2009.
Overview
1The Szewczyks and the Shennans are the owners of adjoining properties in Sauble Beach, Ontario, fronting onto Lake Huron. For convenience, we shall refer to the properties as Lots 15 (the southerly lot owned by the Shennans) and 16 (the northerly lot owned by the Szewczyks).
2The issues giving rise to this appeal flow from a dispute over the ownership of a 2.6 foot wide strip of land running along the boundary of the two properties, but located entirely on Lot 15. The strip of land consists of a three-tiered area of sand and grass, and a raised flower bed and shrubbery structure surrounded by a concrete block retaining wall that appears to be about knee-high.
3On the appeal, the Szewczyks seek to set aside the order of Justice R.M. Thompson of the Superior Court of Justice dismissing their assertion of adverse possession, holding that they have no interest in the disputed strip, and granting related relief.
Facts
4Lot 15 was acquired by Dr. George Stull in 1947 and Lot 16 by his wife in 1954. The Stull family used both properties as a joint vacation property until Dr. Stull’s death in 1962, making no distinction between the two lots. Dr. Stull liked to putter and to build, and he erected, renovated or moved several structures on the two properties over the years, including the grass/flower bed/shrubbery area and structure which is in dispute here.
5After his death, the Stull estate sold Lot 15 and, ultimately, it ended up in the hands of the Shennans in 1988. Lot 16 remained in Mrs. Stull’s hands until her death and was sold to Mrs. Szewczyk in 1997. The Szewczyks claim to have had exclusive possession of the disputed lands from 1997 to 2005, when the neighbours began to assert their respective rights, and they assert that their predecessors in title, the Stulls, occupied the strip of land to the exclusion of the Shennans and their predecessors in title during the years prior to that (sufficient to establish 10 years of adverse possession). They also allege that the members of the Stull family themselves were mutually mistaken about the location of the boundary between the two properties, believing that it ran along the Lot 15 side of the disputed strip.
6In 2002, Mr. Shennan commissioned a survey of the properties. It confirmed that the disputed lands were on Lot 15. In the meantime, however, the Szewczyks had constructed a new retaining wall, re-erected an old mailbox, planted extensively in the flower bed and erected a fence over a portion of the strip. But the Shennans also made some use of the lands during this time as well. In 2007, the Shennans commenced the present application for a declaration that the Szewcyks had no interest in the disputed strip and an injunction requiring them to remove any structures they had placed there. They succeeded at trial.
The Trial Judge’s Decision and Findings
7The trial judge found that during the period when the Stulls owned both properties they roamed across the two lots without any consideration for or thought given to where the boundary lines were. There was no mistake as to where the boundary line was; nobody cared, he concluded. He also found (i) that during the time in which the Shennans and the Stulls were neighbours, the two families both used and maintained the disputed strip of land and that they had a good relationship; (ii) that neither neighbour took any step to exclude the other from the strip; and (iii) that prior to the Szewczyk acquisition, none of the neighbours occupying either Lot 15 or Lot 16 had taken any steps to exclude the other neighbour’s access to the disputed strip. Again, he found that this was not a case of two parties being mutually mistaken as to the location of a boundary. The trial judge said:
This situation is about neighbours who knew generally where lot 15 ended and lot 16 started, but none of them were particularly concerned about delineating where that location was. It simply wasn’t important to know where the exact boundary was because no one cared. The boundary didn’t define the relationship between the neighbours.
8As for the post-1997 period when the Szewczyks owned Lot 16, the trial judge found that Mr. Szewczyk knew that the strip of land was not on his property and in fact belonged to the Shennans, and that Mr. Szewczyk engaged in an exercise of “creating facts” in support of the Szewczyks’ claim by carrying out the activities recited above.
9Because there was no evidence, in the trial judge’s view, of acts by the Stulls to exclude the Shennans, or their predecessors in title, from the use of the disputed strip, the Szewczyks’ allegation of exclusive possession for a period of only 8 years – even if accepted – was insufficient to establish a claim for adverse possession. He therefore ruled in favour of the Shennans.
Analysis
10The appellants contest the trial judge’s findings of fact on several grounds and argue that he erred in law by failing to give effect to the test for adverse possession that applies in cases of mutual mistake regarding the disputed boundary line.
11We would not give effect to any of these submissions.
Factual Findings
12With respect to the attack on the judge’s factual findings, we can find no palpable and overriding error on the part of the trial judge. Mr. Oldfield argues that the trial judge failed to address and give effect to the evidence of Cheryl Bailey, the Stull’s daughter who was familiar with the use of the property during her growing-up years and then through regular visits until her mother’s stroke in 1987 and, thereafter, through her experience living on the property and being the person primarily responsible for its upkeep. He also submits that the trial judge erred in failing to consider the pattern of use of the disputed strip and in finding that there were no acts of exclusion by the Stull family.
13We do not agree.
14We are satisfied that the trial judge’s reasons, read as a whole, reflect that he was alive to Ms. Bailey’s testimony, even though he made no specific reference to her evidence. Indeed, when he observed that during the period when the Stull family owned both Lots “they roamed across the two lots without any consideration as to where the actual boundary between lots 15 and 16 was,” and that over the years “none of [the neighbours] were particularly concerned about delineating where [the boundary] was”, he was paraphrasing her evidence very closely, although he made no specific attribution to her.
15Moreover, there is nothing in his findings that is incompatible with what Ms. Bailey said. For example, she conceded on cross-examination that up until the time she sold the property (as executrix of her mother’s estate) nobody was concerned about the property lines at all because it was not important until the dispute arose. She also stated that she was not aware of any occasion on which her neighbours ever wanted to make any use of the boundary area that was denied by the Stulls.
16The reasons also demonstrate that the trial judge was well aware of the pattern of use of the disputed strip from the time of its construction by Dr. Stull to the time the dispute arose between the parties.
17There was ample evidence to support the trial judge’s findings in all these respects, including his adverse credibility finding that Mr. Szewczyk attempted to “create facts” to support the Szewczyks’ claim.
Law
18Nor did the trial judge err applying the law respecting adverse possession, in our view. Generally, to establish adverse possession, the claimant must show (a) actual possession throughout the statutory period (here, 10 years by virtue of s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 4); (b) the intention to exclude the true owner from possession or use to which the true owner intended to put the land during that period; and (c) effective exclusion of the true owner throughout the statutory period: Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd., 2007 ONCA 413, at para 32. Mr. Oldfield argues, however, that the “inconsistent use” criterion – (b) above – does not apply in cases of mutual mistake, and that the trial judge erred in ignoring that law in the circumstances: see Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), at p. 224; Key v. Latsky (2006), 2006 CanLII 271 (ON CA), 206 O.A.C. 116, at para. 18.
19The trial judge did not ignore that law. He met the question of mutual mistake head on and found as a fact that this was not a case of mutual mistake. As we have indicated, he was justified in making that finding.
20In any event, the criterion of effective exclusion of the true owner throughout the 10-year period remains a requirement, even in cases of mutual mistake. We do not read the decisions of this Court in Key and Teis as reading the “effective exclusion of the true owner” criteria out of the adverse possession requirements in cases involving mutual mistake. Neither case dealt with the effective exclusion requirement, and nothing was said in the reasons of the Court in either case to rule it out in cases of mutual mistake.
21Evidence that no one attempted to exclude the Stulls from using the strip does not meet this criterion. On the trial judge’s findings, which were open to him on the record, there was no evidence of the Shennans or their predecessors in title – the true owners of the paper title – having been excluded from the use of the disputed strip. That is what was required.
22Accordingly, the 10-year period of adverse possession could not have begun to run until at least 1997, when the Szewczyks acquired Lot 16. Even accepting their claim to exclusive possession of the disputed strip from that point on – which the trial judge did not accept – it was by then too late.
Disposition
23The appeal is therefore dismissed.
24The respondents are entitled to their costs of the appeal, fixed in the amount of $10,000 inclusive of disbursements and all applicable taxes, as agreed by counsel.
“E.A. Cronk J.a.”
“R.A. Blair J.A.”
“H.S. LaForme J.A.”
RELEASED: October 19, 2010
