Court of Appeal for Ontario

Date: 2019-09-05 Docket: C65910

Judges: Paciocco, Harvison Young and Zarnett JJ.A.

Between

Luciano Sammut Applicant (Appellant)

and

Allan James Doheny Respondent

Counsel

Gregory Sidlofsky and Peter Askew, for Luciano Sammut

Gosia Bawolska and Kara Denny, for Allan James Doheny

Heard and released orally: August 15, 2019

On appeal from: The order of Justice Sandra Nishikawa of the Superior Court of Justice, dated August 21, 2018.

Reasons for Decision

[1] It is not contested that between December 1992 and December 2002 a fence ran between 300 Pacific Avenue and 298 Pacific Avenue in the City of Toronto. The fence was not on the lot line. It enclosed a small but now significant strip of land belonging to 298 Pacific Avenue on the 300 Pacific Avenue side of the fence. Ms. Ruta Cube, who grew up at 298 Pacific Avenue, always thought the fence was the lot line. A dispute has now arisen over ownership of this strip of land. Relying on the fence and Ms. Cube's evidence, the current owner of 300 Pacific Avenue, Luciano Sammut, brought an application for a declaration that he is entitled to ownership and exclusive use of the disputed strip of land. His claim is based on the adverse possession that he says existed during the relevant statutory period, December 1992 and December 2002.

[2] Mr. Sammut's application was not successful. The application judge found that Mr. Sammut had not discharged his onus of proving adverse possession. Although the application judge was satisfied that actual possession of the strip of land by Mr. Sammut's predecessors in title was established, their intention to exclude the true owner was not demonstrated, nor had effective exclusion from the disputed strip of land been established. Mr. Sammut now appeals that ruling. We would dismiss his appeal.

[3] We do not agree that the application judge misapplied the test for adverse possession. We accept the clear and indisputable fact that disputed land enclosed behind a fence can be strong evidence of an intention by the possessor to exclude the true owner, and that such evidence may give rise to the presumption that the possessor intended to exclude the true owner. However, as Mr. Sammut concedes, that presumption is not mandatory. It permits, but does not require, a judge to draw the inference of intention. The judge will make the ultimate determination of whether to do so on the whole of the evidence. In our view, the application judge was entitled to refrain from doing so. She was correct in noting that Ms. Cube did not own the land at the relevant time, or even know who put up the fence, and that Ms. Cube did not claim in her affidavit to have knowledge of the intentions of the owners throughout the relevant period. Absent any evidence from the owners at the time, the application judge was not persuaded. That was her decision to make.

[4] In our view, the application judge made this decision without committing any errors of law or principle. We do not read the application judge as having stated inaccurate propositions of law relating to the kind of evidence that is required to succeed in an adverse possession claim. She was not saying, for example, that as a matter of law there must be evidence from predecessors in title to prove intention. Instead, she was observing accurately the difficulty that the absence of such evidence presents in adverse possession claims, and how such evidence may be necessary to prove intention. Nor was she citing Penwest Development Corp. v. Youthdale Ltd., 46 R.P.R. (4th) 124 (Ont. S.C.) as authority for a legal rule that it is not permissible to draw inferences from a fence without evidence of the circumstances surrounding the building of the fence. She cited the Penwest case as an illustration of how uncertainty about such circumstances can undermine the circumstantial force of the evidence on the issue of intention.

[5] Nor do we accept that the application judge engaged in improper speculation by positing scenarios in which a fence would not signal an intention to exclude. It is natural and appropriate in considering whether a fact has been proven to consider alternative factual scenarios that have not been ruled out by the evidence.

[6] Nor did the application judge err in concluding that she could not be satisfied that this was a case of mutual or unilateral mistake. She had no evidence from the parties on which she was compelled to draw that inference, and it was open to her not to.

[7] It is not for us to interfere with the factual decision arrived at by the application judge. The appeal is dismissed. Costs are payable to Mr. Doheny in the amount of $9,876.91, inclusive of disbursements and HST.

David M. Paciocco J.A. Harvison Young J.A. B. Zarnett J.A.