Court of Appeal for Ontario

Date: 2003-05-02

Docket: C38428

Re: John William Van Straaten and Anna Maria Van Straaten (Plaintiffs (Appellants)) - and - Leo Jerome Nicholson, Julie Ann Nicholson and Terry Wasman, Estate Trustee of the Estate of Edwin Harold Krueger (Defendants (Respondents))

Before: Carthy, Rosenberg and Cronk JJ.A.

Counsel: G. Edward Oldfied for the appellants Ross R. Nicholson for the Respondents Leo and Julie Nicholson John M. Skinner Q.C. for the respondent Terry Wasman

Heard: May 2, 2003

On appeal from the judgment of Justice James Donnelly of the Superior Court of Justice dated May 27, 2002.

Appeal Book Endorsement

[1] This case is largely fact-driven. The finding of fact by the trial judge that he accepted Mr. Wasman’s evidence is fatal to the claim as it applies to the area south of Tree Line One. It was open to the trial judge to accept that evidence. We do not view the minutes of the Land Division Committee as undermining that finding in view of Mr. Krueger’s later conduct. As to the area to the west, the appellant has now abandoned the claims as it relates to the property between Tree Lines two and three.

[2] Thus, what remains in dispute is a buffer zone of about four to six feet. Without necessarily accepting all of the trial judge’s reasons, especially his view about the effect of the seasonal nature of the occupation, we are satisfied that it was open to the trial judge to find that the use was not intended to and did not exclude Mr. Krueger’s proprietary use of the land, including the buffer zone. That finding is sufficient to dispose of the claim to the west.

[3] Accordingly, the appeal is dismissed with costs fixed at $9,900 for the Nicholsons and $5,000 for the estate both on a partial indemnity basis.