DATE: 20030217
DOCKET: C36994

COURT OF APPEAL FOR ONTARIO

RE: KHALID JAVAID (Applicant (Respondent by Appeal)) - and - STAMATOULA VALMAS (Respondent (Appellant)) STAMATOULA VALMAS (Applicant by Counter-Application (Appellant)) - and KHALID JAVAID (Respondent by Counter-Application (Respondent by Appeal))

BEFORE: DOHERTY, ROSENBERG and FELDMAN JJ.A.

COUNSEL:
Vernon I. Balaban
For the appellant

Charles Wagman
For the respondent

HEARD: FEBRUARY 12, 2003

On appeal from the judgment of Justice W. Brian Trafford of the Superior Court of Justice dated August 31, 2001.

ENDORSEMENT

[1] The appellant and respondent are neighbours. The appellant’s property is burdened with a three-foot strip right of way extending from the front yard to approximately three-quarters of the back yard, in favour of the respondent’s property. The right of way is described in the respective deeds to each property. Some time prior to 1986, before the parties owned their respective properties, a low post and wire fence had been constructed through the right of way at the back, dividing the back yards. Also, the respondent’s front yard, which is higher than the appellant’s adjacent driveway, was configured to include the three-foot right of way and enclosed with a low brick retaining wall.

[2] On an application and cross-application record, the application judge found that by 1996, the respondent had obtained title by adverse possession to all of the right of way at the front of his house, and the portion of the right of way on his side of the fence at the back. The application judge made no findings of fact in his reasons, nor did he refer to the case of *Keefer v. Arillota* (1976), 13 O.R. (2d) 680 (C.A.), which articulates the law of adverse possession as it particularly relates to rights of way. The finding of the trial judge appeared to be based on the ten-year existence of the fence and the inclusion of the three-foot strip within the respondent’s front yard area.

[3] In our view, the application judge erred in his conclusion of adverse possession. The evidence did not establish that the respondent’s use of the right of way was for any purpose other than as a right of way. It was not exclusive, nor did it exclude the appellant. Further, there was no evidence of the circumstances of the construction of the fence or front yard and of their use up to 1991 and 1992 when the parties acquired their properties, for example, as to whether the fence and yard enclosure were constructed on consent, consistent with the right of way. In Keefer, supra, this court confirmed at p. 691 the common law position that: “Possession is not adverse to the extent it is referable to a lawful title.” The court also stated that the onus on the claimant is harder to discharge “when he is on the property pursuant to a grant from the owner.” Based on the record, the respondent could not satisfy that onus.

[4] The appeal is therefore allowed and the order below is set aside. As the respondent had some effective success on the application in connection with removal of a new fence constructed by the appellant and received costs below and the appellant was successful on the appeal, a fair costs disposition is for the parties to each bear their own costs here and below.

[5] As discussed with counsel, the parties shall have two weeks from the date of the appeal to discuss and agree on the terms of an order to embody their ongoing arrangements with respect to operation of the right of way including fencing of the back and landscaping of the front, failing which, the order of the court will simply confirm the existence of the right of way as described in the parties’ respective deeds # TB816309 and #TB756707.

Signed:
“Doherty J.A.”
“M. Rosenberg J.A.”
“K. Feldman J.A.”