Court File and Parties
COURT FILE NO.: 57930/18 DATE: 2018/12/10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Richard Applicant – and – The Corporation of the City of Niagara Falls Respondent
COUNSEL: C. McGoogan and C. Du Vernet, for the Applicant M. Bordin, for the Respondent
HEARD: November 15, 2018
The Honourable Justice J. R. Henderson
REASONS FOR DECISION
INTRODUCTION
[1] This is an application by Michael Richard (“the applicant”) for a declaration that the applicant is the owner, by adverse possession, of a strip of real property, approximately 9 metres by 25 metres in size, that is more particularly described in the notice of application (“the Disputed Land”).
[2] The applicant is currently the registered legal owner of the residential property known as 6352 Sheldon Street, Niagara Falls, Ontario (“the Applicant Property”). The Disputed Land is immediately to the south of the Applicant Property, and is contiguous to the backyard of the Applicant Property.
[3] The Disputed Land was formerly owned by the N.S. & T. Railway, and is part of the property that had been used as a railway corridor. The N.S. & T. Railway property was transferred to the respondent (“the City”) in approximately 1964, and the City has been the registered owner of the N.S. & T. Railway property, including the Disputed Land, since that time.
[4] As discussed herein, the parties agree that the relevant period for an adverse possession claim is the 10-year period immediately prior to the first registration under the Land Titles system on July 19, 1999.
[5] It is the position of the applicant that the applicant, through his predecessors in title, has had notorious, peaceful, adverse, exclusive, actual, and continuous possession of the Disputed Land since the mid-1970s. Therefore, by operation of s.4 and s.15 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, the applicant claims to be entitled to legal ownership of the Disputed Land by adverse possession.
[6] It is the position of the City that the evidence provided by the applicant does not fulfill the three-part test required to establish ownership by adverse possession. In particular, the City submits that there is little evidence that the applicant’s predecessors intended to exclude the City from possession of the Disputed Land during the relevant period. In addition, the City submits that the possession by the applicant’s predecessors was not inconsistent with the City’s possession of the property. Further, the City submits that a court should be reluctant to permit a private citizen to obtain ownership, by adverse possession, of property held for the benefit of the public.
THE FACTS
[7] I find that at all relevant times the Applicant Property consisted of, inter alia, a residential house that faces north, and a backyard that is in the southern part of the property. The Applicant Property is bordered by Sheldon Street to the north and by the Disputed Land to the south. The Disputed Land adjoins the backyard of the Applicant Property at its south boundary.
[8] The applicant purchased the Applicant Property on March 10, 2017 from Monica Hepburn (“Hepburn”). I accept that in 2017, there were approximately 15 mature evergreen trees located roughly at the south boundary of the Disputed Land. Therefore, in 2017 it appeared as if the applicant’s backyard included the Disputed Land as the backyard of the Applicant Property appeared to extend to this line of evergreen trees.
[9] The Applicant Property and the Disputed Land were first registered in the Land Titles system on July 19, 1999. Section 51(1) of the Land Titles Act, R.S.O. 1990, c. L.5 (the “LTA”) provides that, despite the provisions of the Real Property Limitations Act, no title, right, or interest in land that is registered under the LTA that is adverse to the title of the registered owner shall be acquired. Section 51(2) provides an exception to s.51(1) if the adverse possession occurred prior to the first registration under the LTA. As a result, in the present application, both parties agree that the relevant period for an adverse possession claim is the 10-year period that is immediately prior to July 19, 1999.
[10] I find that the registered owner of the Applicant Property from 1965 to 1995 was Howard Good (“Good”). The applicant produced hearsay evidence from Good in two forms. First, the applicant swore an affidavit that included the applicant’s evidence of oral statements that were made to him by Good. Second, the applicant’s affidavit also included a handwritten statement signed by Good. During oral argument, I ruled that I would admit this hearsay evidence, but that I would in this decision determine what weight, if any, I would give to it.
[11] I understand that Good currently resides in a nursing home, but I have no evidence as to the state of Good’s health. In my view, if he was healthy enough to write and sign a statement, he was probably healthy enough to swear an affidavit. Because an affidavit from Good was not delivered, the City has been deprived of an opportunity to cross-examine Good. This puts the City at a disadvantage and reduces the weight I might otherwise give to Good’s evidence.
[12] That being said, the handwritten statement signed by Good has some degree of reliability as it is written in his own hand and some of the contents of that statement are corroborated by other documentation and by the affidavit of Good’s daughter, Cynthia Janzen (“Janzen”).
[13] Therefore, I am prepared to accept the truth of the facts set out in Good’s handwritten statement, but I will disregard the applicant’s evidence as to Good’s oral statements.
[14] Accordingly, I find that from 1965 to 1995, Good was the owner of what is now the Applicant Property. In the mid-1970s, Good planted several evergreen seedlings at the rear of the property overlooking the former N.S. & T. Railway corridor. I find that these seedlings have now grown into mature trees that currently stand at the south boundary of the Disputed Land. Further, I find that this line of trees has been present since the seedlings were planted in the 1970s.
[15] I find that Good sold the Applicant Property in 1995; that Sun Life took possession of the property and sold it in 1999 to Marc Coons (“Coons”); that Coons sold to Hepburn in 2007; and that Hepburn sold to the applicant in 2017.
[16] From the perspective of the City, I find that the City has been the registered owner of the former N.S. & T. Railway property since 1964. This former railway property is now referred to as the N.S. & T. Trail, which is a trail of public land that runs east to west across the city.
[17] The N.S. & T. Trail is not a paved trail, but rather it is a broad swath of open land or grass that is kept generally in a natural state and is available for the use of the public. The City cuts the grass in some areas of the trail, including the area near the Disputed Land.
[18] I also find that the part of the N.S. & T. Trail that is relevant to the current application is primarily on a lower level than the Applicant Property. I find that the backyard of the Applicant Property appears to be flat and level from the house to the line of trees. Thereafter, as one heads south, the land slopes significantly downward to a flat and level corridor of land below. Thus, it would appear to a person located on the N.S. & T. Trail that the trail itself is at the lower level, and that the banks of the trail slope upward to the neighbouring yards.
[19] I find that in or about 1968 the City sold similar strips of former N.S. & T. Railway property to three residential property owners in the vicinity of the Applicant Property. I acknowledge that at this point in time there is an inconsistency as to the extent to which the property of the homeowners in the area extends into the former N.S. & T. Railway property.
[20] Regarding the City’s intended use of the N.S. & T. Trail, I find that the City, through various City councils, has intermittently considered plans for the N.S. & T. Trail, including the Disputed Land. I accept that the City has from time to time considered the possibility of building and maintaining a formal recreation trail along the N.S. & T. Trail. However, at present the City has no specific long-term plan for the Disputed Land.
[21] I find that the City’s intention at all relevant times has been to hold the Disputed Land for a possible future use to be determined, such possible future use to include the Disputed Lands forming part of a formal recreation trail. In addition, while the City has been holding the Disputed Land for future use, I find that the City intended to keep the Disputed Land available for the benefit and use of the public.
[22] It is significant that on September 26, 2017, the City solicitor, Ken Beaman (“Beaman”) prepared a report for the City about the Disputed Land. In that report, Beaman wrote the following:
Generally, Staff will never recommend that parkland be declared surplus to the needs of the municipality. That said, it must be acknowledged that the Subject Lands are not functioning as a part of either Lind Sommerville Park or the NS & T trail. The Subject Lands are separated from the park and trail by the gradation of the area (which slopes upwards to the rear yards of the houses that front on Sheldon Street) with vegetation on the slope and a row of trees. To the uninformed observer, the Subject Lands appear to be a part of the rear yard of 6352 Sheldon Street.
THE LAW
[23] Several decisions, including the decisions in McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 333 O.A.C. 381, at para. 9, and Teis v. Ancaster (Town), 1997 ONCA 1688, 35 O.R. (3d) 216, at para. 9, have set out the three-part test for an adverse possession claim. In order to establish ownership by adverse possession, an applicant must prove the following throughout the relevant statutory period:
(i) that the applicant personally or through his predecessors had actual possession of the disputed land;
(ii) that the applicant’s possession was with the intention of excluding the true owner from possession; and
(iii) that the true owner was effectively excluded from possession.
[24] Regarding the second and third factors above, the courts have applied the inconsistent use test. In the case of Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (ONCA), Blair J.A. stated at para. 18, “Recent decisions in this Court have established that not every use of land will amount to adverse possession excluding that of the owner.” He then adopted the statements made by Wilson J. in Fletcher v. Storoschuk (1982), 35 O.R. (2d) 722, at p. 724 as follows:
[A]cts relied on to constitute adverse possession must be considered relative to the nature of the land and in particular the use and enjoyment of it intended to be made by the owner.... The mere fact that the defendants did various things on the ... land is not enough to show adverse possession. The things they did must be inconsistent with the form of use and enjoyment the plaintiff intended to make of it....
[25] In Elliott v. Woodstock Agricultural Society, 2008 ONCA 648, 92 O.R. (3d) 711, Juriansz J. A. wrote the following at para. 13:
The application judge appreciated that the second and third criteria of the test for adverse possession are not met unless the claimants establish, not only actual possession of the land, but also that the legal owners were in fact effectively excluded from its possession. To do this, the claimants must show that their use of the lands was inconsistent with the use the legal owner intended to make of the lands. The application judge recognized that the test of inconsistent use focuses on the intention of the legal owners and not the intention of the claimants.
[26] I find that the inconsistent use test has particular significance with respect to the third factor in cases in which the disputed land is owned by a municipality and is being held for the use and benefit of the public. In such cases, it has been very difficult for an applicant to prove that the municipality has effectively been excluded from possession. Also, for public policy reasons, the courts have been reluctant to uphold a claim for adverse possession of land that was purchased with public funds for public use. In that respect, see the Teis decision at para. 35, and see Woychyshyn v. Ottawa (City), 2009 ONSC 6200 at para. 13.
[27] In the case of Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, 30 R.P.R. (5th) 44, at paras. 117 to 119, Howden J. found that land that was acquired by a municipality and used for a public purpose is held in trust for the benefit of the public and cannot be lost by adverse possession. However, in order to be immune from such a claim for adverse possession, the municipality must show that the land was purchased or dedicated for the use of the public, and that the land has been used by and of benefit to the public.
ANALYSIS
[28] Regarding the first factor in the three-part test, I find that the trees that were planted by Good in the mid-1970s formed a visual barrier at the south boundary of the Disputed Land. In my view, the tree line and the slope to the south of the tree line gave the visual impression that the Applicant Property extended to the tree line.
[29] I infer from the evidence of Good and Janzen that the Good family occupied the backyard as if it extended to the tree line. Accordingly, I find that Good was in actual possession of the Disputed Land from the mid-1970s to 1995 when he sold the Applicant Property.
[30] Thereafter, except for Coon’s affidavit, I have no evidence as to the state of the land between 1995 and 2017, but in my view this is not fatal to the applicant’s claim as the evidence establishes that the line of mature trees at the south boundary of the Disputed Lands has remained in place. Therefore, I find that actual possession of the Disputed Land as established by Good in the mid-1970s continued at least until the relevant date of July 19, 1999.
[31] Regarding the second factor, the City submits that I have no evidence that Good, or anyone, intended to exclude the City from possession of the Disputed Land. I accept that there is no direct evidence on this point; however, it is reasonable to infer that the line of trees that was planted by Good was for the purpose of forming a visual barrier that would deter members of the public from entering onto the Disputed Land. If Good planted the trees to deter the public from using the Disputed Land, then he did so with the intention of preventing the City’s intended use of the property.
[32] Accordingly, I find that Good planted the trees and took actual possession of the Disputed Land with the intention of excluding the public from the Disputed Land. I attribute that intention to all other owners of the Applicant Property during the relevant period.
[33] Regarding the third factor in the three-part test, I find that the evidence is insufficient to prove that the City has been effectively excluded from possession of the Disputed Land. That is, even though the applicant and his predecessors have had actual possession of the Disputed Land and intended to exclude the true owner, I find that the planting of the line of trees on the Disputed Land did not effectively exclude the City from possession of the Disputed Land.
[34] The inconsistent use test is significant with respect to this factor. It must be recognized that the inconsistent use test is to be applied from the perspective of the City, the true owner of the Disputed Land. Therefore, in this case, the court must determine the City’s intended use or plan for the Disputed Land during the relevant period, and then determine whether the applicant has proved that the applicant has effectively excluded the City from using the land in that manner.
[35] I find that the true owner, the City, has been holding the Disputed Land for the benefit of the public since 1964. The eventual future use of the former N.S. & T. Railway property, including the Disputed Land, has not yet been determined. In summary, the City’s intended use of the Disputed Land at all relevant times was to hold the land, make the land available for the benefit and use of the public, leave the land in a natural state, and at some point in the future possibly decide upon a more specific use.
[36] In order to succeed on the third factor, the applicant must show that the planting of the trees on the Disputed Land is inconsistent with this intended use by the City. In my view, the planting of trees in this public space does not effectively eliminate the public use that the City intended for this space. It is not an inconsistent use.
[37] Even though the tree line forms a visual barrier, the tree line does not form an insurmountable obstacle. Members of the public could still gain access to, and use, the Disputed Land. Further, the Disputed Land at all times remained connected to, and formed part of, the public corridor known as the N.S. & T. Trail. I accept the City’s position that the trail is not restricted to the footpath in the lower level of the corridor, but that the trail includes the adjacent public lands, such as the sloping banks and the level areas on top of the banks.
[38] The intention of the City is, and has been, to allow the public to walk, bicycle, and otherwise make use of the N.S. & T. Trail and all of those lands that are part of the former N.S. & T. Railway corridor. Even though the tree line may have deterred some members of the public from using the Disputed Lands, I accept that members of the public were never effectively excluded from entering onto the Disputed Land.
[39] I find that this approach is similar to the approach taken by the courts in the Teis, Woychyshyn, and Warkentin decisions. In each of those cases, the courts commented that it is very difficult for an applicant to obtain ownership by adverse possession of property that is held for a public benefit. The primary reason, in my view, is that it is difficult to prove that any encroachment onto such property by a private citizen is inconsistent with public use.
[40] Finally, I reject the applicant’s submission that the City must formally dedicate the Disputed Land as a public park before the City can claim that it intends to use the land for public benefit. I find that a court must assess the de facto situation, and is not bound by a public designation or the absence of such a designation. In the present case it is clear that the intention of the City was to make the N.S. & T. Trail corridor available for the benefit of the public. In my view, the inconsistent use test should be applied regardless of whether the City has formally passed a bylaw to dedicate the land as a public park.
CONCLUSION
[41] For all of these reasons the application is dismissed.
[42] If the parties cannot resolve the issue of costs, I direct that the party seeking relief shall deliver written submissions to the trial co-ordinator at St. Catharines within 20 days of the release of this decision, with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled the costs issue as between themselves.
J. R. Henderson J.