Court of Appeal for Ontario

Date: 2023-03-15 Docket: C70192

Fairburn A.C.J.O., Brown and Sossin JJ.A.

Between:

Scott Brian Palmer, by his Litigation Guardian, Stefanie Lyn Palmer and Stefanie Lyn Palmer Plaintiffs (Respondents)

and

John Ioannidis Defendant (Appellant)

Counsel: Izaak de Rijcke and Robert Fenn, for the appellant Patrick G. Morris, for the respondents

Heard: March 13, 2023

On appeal from the order of Justice Nancy M. Mossip of the Superior Court of Justice, dated December 13, 2021, with reasons at 2021 ONSC 8198.

Reasons for Decision

[1] This is an appeal from an order granting possessory title by reason of adverse possession of about a quarter of an acre to the respondents. We dismissed the appeal with reasons to follow.

[2] Scott Palmer’s father severed part of his farmland and gifted it to his son for the purpose of building a home in 1972. With the consent of his father, Scott Palmer also occupied and used an additional strip of land (the “disputed land”) beyond what had been officially severed from the father’s original 41-acre parcel. Scott Palmer’s father leased the land he retained and one of the tenants erected a fence along the boundary of the disputed land. Scott Palmer also did his own work: he landscaped and planted trees along the boundary of the disputed land. Over the years, he maintained the disputed land as part of his residential lawn.

[3] In 1988, Scott Palmer’s father sold the appurtenant field to A. Brombal Home Builder Limited (the “Brombals”). For the following ten years, Scott Palmer continued to occupy and maintain the disputed land. The Brombals never contested this occupation.

[4] In 2017, the Brombals sold the appurtenant field to the appellant who then, all within a single day, after handing Scott Palmer a survey of the titled lands, removed the fence and bushes and cut down the mature trees. The appellant then erected a new fence in accordance with the title boundary. The respondents then brought an action asserting adverse possession and trespass.

[5] The trial judge found that the 10-year period for the claim of adverse possession ran from the date that the father sold his land (the remaining 40 acres), to the Brombals because, prior to that date, Scott Palmer was occupying the disputed land with the consent of his father. The trial judge found as a fact that, after the Brombals took possession of their land, the respondents continued to maintain the disputed land in an open, visible, notorious and continuous way, leaving the Brombals with actual and constructive notice that their property was encroached upon. Not only did the trial judge find that the respondents had an intention to exclude the Brombals, the trial judge found that the Brombals were in fact excluded from the disputed land. Indeed, the Brombals acknowledged that they knew where the actual title boundary of the property lay, but that they accepted the situation so as to be “neighbourly”.

[6] The trial judge found that the respondents’ use of the disputed land, maintained as part of their residential property, was inconsistent with the Brombals’ use of their occupied land for commercial farming. While the Brombals may have wanted to eventually develop all of the land for commercial purposes, what was relevant was their actual and intended use of that land during the 10-year time the adverse possession was claimed. That use was as farmland.

[7] The trial judge also concluded that the Brombals never did anything to stop the 10-year clock from ticking. Accordingly, the trial judge determined that a valid legal adverse possession claim already existed when the appellant bought the appurtenant land.

[8] The appellant raises a number of issues, which in our view can be distilled into the following central question: did the trial judge err in her application of the inconsistent use test, which requires the adverse possessor’s use of the land to be inconsistent with the actual or intended use of the title holder. The appellant says that the Brombals’ long-term intended use of their property was to hold the disputed land for future development. Despite the rest of the Brombals’ land being used as farmland during the relevant period of time, this did not create an inconsistent use because the “intended” use of the disputed land was otherwise. The appellant says that the disputed land, the small strip of land between the parties’ titled properties, was intended to be no more than a “buffer” zone. This was part of the Brombals’ efforts to be “neighbourly” during the period that they observed the respondents openly and notoriously occupying what both parties knew to be the property of the Brombals.

[9] The trouble with this argument is that the trial judge rejected it. The trial judge found that the intended use of the Brombals’ land at the time of the trespass, as evidenced by their actual use of the land to which they had access, was as commercial farmland.

[10] We see no error in the trial judge’s conclusion that the relevant title holder’s use with which the respondents had to be inconsistent was commercial farming. Whatever other, long-term intentions they may have had in mind, the Brombals intended to and actually did farm the land adjacent to the respondents’ property. While they did not actually farm the disputed land, it was open to the trial judge to determine that this was because they were effectively excluded from that land by the inconsistent use made of it by the respondents. This was a finding available to the trial judge on the facts of this case.

[11] The appellant also claimed damages with respect to the registration of a certificate of pending litigation, involving slander of title, on the entire 41.5 acres of property when the respondents were, in fact, only claiming ownership of approximately one-quarter of an acre abutting their land. The trial judge dismissed that claim on the basis that, among other things, there was no evidence that the appellant suffered any loss as a result of the certificate being registered, the precise nature of the claim was entirely discoverable to interested parties, and there was no separate PIN number for the disputed land, which prevented the respondents from registering the certificate only on the disputed land area.

[12] While the appellant suggests that it would have been possible to register the certificate in a way that suggested only “part” of the larger property was in dispute, there is no evidence to support this claim. We see no error in the trial judge’s conclusions regarding the certificate of pending litigation.

[13] Finally, the appellant takes issue with the punitive damages awarded by the trial judge in the amount of $10,000. He says that award was inappropriate. We see no basis upon which to interfere with that amount. After all, in a single day and without warning or even a chance to pursue a peaceable, legal resolution to the dispute, the respondent Scott Palmer was handed a survey and then the fence, bushes, mature trees and lawn he had been maintaining since the early 1970’s were destroyed. In our view, this was a case for punitive damages.

[14] The appeal is dismissed. Costs to the respondents in the amount of $15,000 all inclusive.

“Fairburn A.C.J.O.”

“David Brown J.A.”

“L. Sossin J.A.”