Court of Appeal for Ontario
Judges: Sossin, Monahan and Osborne JJ.A.
Between:
Flora Nabrotzky Applicant/Respondent by Counter-Application (Appellant)
and
Trevor Bell and Hazel Bell Respondents/Applicants by Counter-Application (Respondents)
Counsel: Kenneth Peacocke, for the appellant Emerson Wargel, for the respondents
Heard and rendered orally: July 15, 2026
On appeal from the judgment of Justice Renu J. Mandhane of the Superior Court of Justice, dated October 16, 2025.
Reasons for Decision
1This appeal arises from a decision of the application judge dismissing an application claiming that the appellant is the owner of a narrow strip of land behind the respondents’ garage. The application judge held that the appellant failed to prove on a balance of probabilities that the test for adverse possession of the disputed strip was met.
2The appellant raises three errors which she argues were made by the application judge in misapprehending the evidence:
(1) the application judge erred in finding that the appellant had failed to prove that she was in actual possession of the strip of land between 1998 and 2008;
(2) the application judge erred in finding that the appellant had failed to prove that she excluded the owners of the garage from the strip between 1998 and 2008 because, to the extent she occupied the strip, it was based on the permission of the previous owner; and
(3) the application judge erred in finding that the appellant failed to exclude the respondents from use of the strip during the relevant period.
3Turning to the appellant’s first argument, the application judge refused to find that the appellant was in actual possession of the disputed strip between 1998 and 2008. This finding on its own was sufficient to dispose of the adverse possession claim. According to the appellant, the application judge failed to consider evidence of the existence of a fence restricting access to the strip. The appellant argues that the error by the application judge was stating that one of the witnesses, Dave Donaldson, the son of the previous owner of the respondents’ property, did not recall the appellant erecting a fence during the relevant period. The appellant contends there is no reference to a fence in Mr. Donaldson’s affidavit. We do not accept that this constituted an error. Further, the application judge found there was insufficient evidence to establish the existence of a fence based not just on Mr. Donaldson’s lack of recollection, but based on the record as a whole, including the absence of corroborating evidence of the fence.
4The application judge’s findings of fact and mixed fact and law are entitled to deference. The appellant’s arguments seek to relitigate those findings. That is not our role.
5It is not necessary to address the appellant’s other arguments that the application judge misapprehended the record, which fail for similar reasons. The application judge made findings that were open to her on the record.
6For these reasons, the appeal is dismissed.
7The respondents are entitled to costs from the appellant, in the agreed upon amount of $10,000, all-inclusive.
“L. Sossin J.A.”
“P.J. Monahan J.A.”
“Osborne J.A.”