Court File and Parties

COURT FILE NO.: 14-4039-SR DATE: 2019-02-26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Susan Opal McKay Plaintiff – and – Joel Paul Vautour Defendant

Counsel: Gene Chiarello - Counsel for the Plaintiff W. H. Peter Madorin - Counsel for the Defendant

HEARD: January 28, 2019

The Honourable Justice James W. Sloan

Reasons for Judgment

1This action is essentially a boundary dispute where the plaintiff is claiming ownership of a portion of land by adverse possession.

2The plaintiff and Mr. McKay became owners of the property at 15 Tyson Dr. (Lot 11) on July 21, 2005, and the plaintiff became sole owner on October 9, 2012.

3The defendant became owner of 9 Tyson Dr. (Lots 6, 7, 8, 9 and 10) on April 6, 2011. He purchased the property from the Roy Stumph (Roy) estate. In this action we are only concerned with an 8 foot strip on the East side of Lot 10.

4The two properties are contiguous.

5In April 2012, the defendant erected a fence between the two properties. The plaintiff claims that there was already a fence between the properties and the defendant erected the new fence eight feet closer to her house.

6She claims ownership of the 8 foot strip by adverse possession.

7Both parties agree that their respective properties were converted from the registry system to the land titles system on June 16, 2003.

8Both parties agree that to establish a claim of ownership of the 8 foot strip by adverse possession, the plaintiff must establish that for a period of 10 years prior to June 16, 2003, her predecessors in title:

a) had actual possession of the 8 foot strip;

b) that such possession was with the intention of excluding from possession, the owner or persons entitled to possession;

c) that there was discontinuance of possession for the statutory period by the owner and other persons entitled to possession; and

d) that the adverse possession must have been open, notorious, constant, continuous, peaceful and exclusive of the rights of the true owner.

9Everyone agrees that the surveyed lot line between Lot 10 & 11 is accurately set out on the survey of Gunther Rueb, dated January 11, 1980.

10No evidence was adduced at trial to suggest that either party had seen this survey prior to purchasing their respective properties.

11The subject matter of the lawsuit is set out in a marked up copy of Rueb’s survey reproduced at page 45 of the trial record, and is an approximate 8 foot strip running from north to south immediately to the west of Lot 11.

12The eastern boundary of the disputed property is the boundary between lots 10 and 11. The western boundary is marked by a line made up of X’s and elongated dashes. (x ----------- x -------- x etc) During testimony, the line made up of X’s and elongated dashes was described by numerous names including original, cedar, horse or paddock fence.

13The plaintiff testified that since she owned the property she maintained the property between the surveyed lot line and the paddock fence. This would have been after 2005.

14The plaintiff said she had numerous discussions with Roy over the paddock fence near her asphalt driveway, which can be seen at page 56 of the trial record. These discussions would have taken place prior to the new boundary fence erected by the defendant, the construction of which is visible in the picture.

15It appears that there may have been some discussions between the plaintiff’s former husband and the defendant but he was not called to testify. What is clear from the plaintiff’s perspective, is that sometime in April 2012, when they were away for the weekend, the defendant commenced construction of his fence and completed it the following weekend.

Plaintiff’s Property

16The plaintiff understands that her predecessor in title, the Marslands, owned 15 Tyson (Lot 11) since 1999. They were not called to testify.

17It is the plaintiff’s position that during the time she owned the property she maintained the disputed property to the exclusion of the owner of Lot 10. In addition, it was always her understanding that the fence marked on Reub’s survey by a series of X’s and elongated dashes was the defacto lot line.

18There was no evidence that she ever asked where a lot line was, requested a copy of the survey or looked for any survey stakes to assist her in her understanding when she purchased the property.

19Visually, part of the disputed property can be seen in the trial record at page 53. On the left of the picture is the new boundary fence erected by the defendant, and it is the plaintiff’s evidence that the first tree on the right would have been within what she understood to be her property, because of the paddock fence.

Cross Examination of the Plaintiff

20The plaintiff initially stated that the chain-link fence just north of the southern boundary of Lot 11 extended past the western boundary of Lot 11 all the way to the paddock fence. On her examination for discovery, she testified that the structure no longer resembled a fence and that it stopped 15 or 20 feet to the east of the western boundary of Lot 11.

21On the Reub survey at page 45 of the trial record, there is a handwritten notation in the northwest corner of Lot 11 which reads “wood fence built by neighbour”. The depiction of the fence is clearly along the western boundary of Lot 11 between a clearly marked shed and the northwest corner of Lot 11.

22The plaintiff acknowledged that this fence was there when she purchased the property in 2005. The fence is approximately 5 feet high, built of pressure-treated wood and there is no opening in the fence between the shed and the northwest corner of Lot 11.

23The plaintiff did not have any information of what use her predecessors in title might have made of the disputed strip.

24In reply, the plaintiff said that visually the disputed strip just looked like it formed part of her property.

Shannon Deckers

25Ms. Deckers is the daughter of Roy and grew up in a house on Lot 6, which is immediately south of Lot 11.

26She recalls the paddock fence always being there and at one point in time her father having horses there.

27She testified that she personally cut the grass up to the paddock fence and to keep weeds from overtaking the fence she would continue to cut for approximately 18 inches on the east side of the paddock fence.

28Roy died in 2010 and during some periods of time before his death, when Ms. Deckers was out of Canada, she hired a lawn maintenance service to look after his property including Lot 10. They were not instructed to cut grass between the paddock fence and the western boundary of Lot 11.

Cross Examination of Deckers

29She confirmed that the pictures at pages 133 to 135 of the trial record appear to be printed from Google pictures which were taken in April 2009.

30She testified that she intended to sell all of Lot 10 but was unaware that the paddock fence was not the boundary line.

31Curiously, she did not have any recollection of what was described as a substantial wooden fence running from the northwest corner of a shed along the western lot line of Lot 11 to the northwest corner of Lot 11 (wood fence built by neighbor). She recalled, however, that there was a fence before the wooden fence that ran along the same stretch of the western boundary of Lot 11.

32When it was suggested to her that because of this fence she would have known that the paddock fence would be to the west of the lot line, she replied that she used a lawyer to sell the property and depended on him.

33While, as a child of Roy, she helped maintain the grass, any fencing repairs were done by him. She acknowledged that to do fencing repairs Roy would have had to go on both sides of the paddock fence. She never saw any no trespassing signs posted and was not aware of any complaints about Roy being on either side of the paddock fence.

34To the best of her recollection, neither the fence nor the lot line was ever discussed with her during Roy’s lifetime.

35During all the time that she lived on the property, visited the property, or maintained the property, she only saw one person on one occasion with a lawnmower on the disputed part of the land and that was at a time when she was 15, approximately 42 years ago.

36In reply, she confirmed that she thought the paddock fence was the boundary between the two lots

Defendant’s Property

37The previous owner of 9 Tyson was Roy Stumpf (Roy) who passed away in the spring of 2010 and he or his family had owned the property since at least 1960.

Joel Vautour

38He purchased 9 Tyson in April 2011 and has resided there since September 2018.

39Although the paddock fence was there when he bought the property, he indicated that it was in very rough shape and that a person could walk through it in several places, because parts of the fence were missing.

40He testified that prior to purchasing the property he checked out where the property stakes were, and so he knew where the lot lines were. He knew that the paddock fence was not on the deeded boundary line.

41He discussed with the plaintiff’s former husband about building the fence, however, he indicated the former husband was quiet, did not look happy, and said nothing.

42He said it can be readily seen from the photos at pages 133, 134 and 135 of the trial record that there is a gap in the fence to the left behind the shrubs and also to the right. There are both bottom and top rails missing, the fence is in rough shape and there was a lot of wood rot. In addition, he stated that the pictures are from 2009 and the fence was likely in worse shape two years later.

43He agreed that he did not maintain the grass in the disputed strip since he purchased the property.

The Plaintiff’s Position

44The plaintiff relies heavily on the evidence of Deckers, who grew up on the defendant’s property and continued to visit and assist her father, Roy Stumpf, until his death in 2010.

45Deckers testified that she had no recollection of her family using or accessing the disputed strip and in later years when she retained a lawn maintenance company, she instructed them not to cut the grass to the east of the paddock fence.

46It was Deckers’ evidence that she saw a man with a lawnmower on one occasion tending to the grass on the disputed strip and she does not recall the grass on the disputed strip ever being unkempt.

47It was further her evidence that she believed the paddock fence to have been the boundary between Lots 10 and 11.

48The plaintiff relies on the case of Cantera v. Eller 2007 O.J. No. 1899 for the propositions that the existence of a post and wire fence delineating an incorrect boundary can meet the threshold of actual possession even where such fences do not entirely enclose the property.

49The plaintiff also relies on the cases of Teis v. Ancaster (Town) (1997), 35 OR (3rd) 216 (Ont. C.A.) and Brooker v. Pepper for the proposition that in cases of mutual mistake regarding the correctness of a boundary, the court may infer that the claimants intended to exclude all others, including paper titleholders.

50Where there is no mutual mistake as to the proper boundary line, the existence of a fence line stands a strong evidence of the intention to exclude, especially where property owners treat the fence as a boundary. See Heng v. Rodriguez, [2015] O.J. No. 1584.

The Defendant’s Position

51Since purchasing Lot 10, the defendant has paid the realty taxes for it.

52The fence shown on page 45 of the trial record and running from the northwest corner of the “shed” to the northwest limit of Lot 11, along the surveyed lot line between Lots 10 and 11 and marked as being “wood fence built by neighbour,” is an important piece of evidence.

53Since the plaintiff does not know who constructed the fence, the overwhelming probability is that it was already in existence when the plaintiff purchased her property in 2005.

54The fence does not appear on the 1980 survey and based on Deckers’ evidence, it was not constructed by the Stumpf family. Therefore, by inference, the fence was erected by a predecessor in title to the plaintiff sometime between 1980 and 2005 and was in existence when the plaintiff purchased the property.

55Therefore, an inference can also be drawn that the plaintiff’s predecessor in title did not view the paddock fence as a boundary between the two properties, otherwise there would have been no point in erecting a fence on the boundary between Lots 10 and 11.

56The very fact that the fence was constructed along the boundary between Lots 10 and 11 leads to the inescapable conclusion that the plaintiff’s predecessor in title knew where the boundary was, since he/she constructed the fence.

57The “paddock” fence has been referred to by various names but never the boundary fence.

58There is no evidence before the court that the plaintiff’s predecessors in title treated or viewed the paddock fence as a boundary line between Lots 10 and 11. Ms. Deckers never discussed the fence or the boundary between Lots 10 and 11 with her father.

59With respect to the Raab case, relied upon by the plaintiff, the statement; “While the existence of the fence is not conclusive evidence of possession under the circumstances here present, it is cogent evidence,” is just one of the indices the court must take into consideration in determining whether there was adverse possession. In the Raab case, the party seeking adverse possession had always proceeded on the basis that the fence was the boundary line and here there is no evidence as to how the plaintiff’s predecessors in title viewed or treated the fence. Specifically, there is no evidence that they thought the fence was the boundary line.

60In this case, there is no evidence of adverse possession as in the Cantera case, where the predecessor in title to the plaintiff had always treated the fence as the boundary line and had cut the grass right up to the fence line or in the Raab case where the person seeking adverse possession had constructed a wall on the adjacent property owner’s land and paved right up to the wall.

Findings

61The plaintiff has a difficult task. To succeed, she must present evidence of how the owners of Lots 10 and 11 treated the disputed strip of land between June 16, 1993 and June 16, 2003.

62Her immediate predecessors in title, the Marslands, who owned the property from 1999 to 2003 were not called to testify, nor were the owners of the property prior to the Marslands called to testify.

63How the plaintiff and defendant have treated the disputed property since they obtained ownership does not assist the court.

64Based on Deckers’ evidence, it appears that someone other than the Stumphs cut the grass on the disputed property, however she can only recall seeing someone cut the grass on one occasion, approximately 42 years ago.

65There is no evidence of anyone constructing anything on the disputed property except for the “wood fence built by neighbour”. There is no evidence of anyone planting a garden on the property or using the property for storage of anything such as a camping trailer or erecting no trespassing signs.

66Although Deckers testified that she did not have a recollection of the “wood fence built by neighbour”, she testified that there was a predecessor fence in the same spot running along the same portion of the lot line between Lots 10 and 11. Surely this would put the plaintiff on notice of where the lot line was/might be, rather than the paddock fence which was described as essentially broke down.

67Based on the evidence before this court I find that the “wood fence built by neighbour” was built by a predecessor in title to the plaintiff. I make this finding, based to a great extent, on Deckers’ evidence or lack of evidence, that her family did not have anything to do with the construction of the fence.

68Unlike in the Cantera case where the predecessor in title testified about the appropriate 10 year period, none of the plaintiff’s predecessors in title were called as witnesses.

69On the facts of this case it appears that neither the owners of Lot 10 or 11 really cared who accessed the disputed property. There is certainly a lack of any evidence of “open, notorious, peaceful, adverse, actual and continuous” acts of actual possession by the plaintiff’s predecessors in title.

70Therefore, the court can come to no other conclusion than the plaintiff’s predecessor in title knew of the lot line and built a wooden fence accordingly. If that predecessor in title had ever thought that the lot line followed the paddock fence, he/she would have built the wooden fence where the paddock fence was and not on the lot line.

71In this case I find that the wooden fence effectively trumps the paddock fence as “cogent evidence” as set out in the Raab case.

72There is no evidence that the plaintiff’s predecessors in title treated or viewed the paddock fence as a boundary line between Lots 10 and 11.

73For the foregoing reasons, I dismiss the plaintiff’s case with costs.

74If I had found for the plaintiff I would not have awarded damages.

75If the parties are unable to agree on costs, Mr. Madorin shall forward his brief submissions on costs to me by March 5, 2019. Mr. Chiarello shall forward his brief response to me by March 12, 2019. Mr Madorin shall then forward his reply, if any, to me by March 15, 2019. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca

James W. Sloan J.

Released: February 26, 2019