Court of Appeal for Ontario
Date: 20220506 Docket: C69934
Benotto, Miller and Copeland JJ.A.
Between
Gerald Peter Anthony Applicant (Appellant)
and
John Cundari Respondent (Respondent)
Gerald Peter Anthony, appearing in person Rahul Gandotra, for the respondent
Heard: April 29, 2022 by video conference
On appeal from the judgment of Justice Chris de Sa of the Superior Court of Justice, dated September 21, 2021.
Reasons for Decision
1In 2017, the appellant brought an application for adverse possession with respect to a parcel of land. The application was dismissed by Sutherland J. on a motion for summary judgment. This court dismissed the appeal.
2The appellant then brought another application for a smaller portion of the same parcel of land, also based on adverse possession. The application was dismissed on the basis that it was res judicata and issue estopped.
3The appellant appeals, claiming that the subject matter of the current application is not the same because the property at issue here was not specifically addressed in the first application.
4We do not agree.
5It is clear that the earlier action included the smaller portion which is at issue here; they are not distinct parcels of land. As the respondent submits, a claimant who is unsuccessful at establishing adverse possession cannot be allowed to modify the parameters of their claim within the same boundaries to obtain a different result. This is contrary to the objective of res judicata and issue estoppel.
6The appeal is dismissed with costs to the respondent in the amount of $5,000 inclusive of disbursements and HST.
“M.L. Benotto J.A.”
“B. Miller J.A.”
“J. Copeland J.A.”