DATE: 20040902

DOCKET: C40791

COURT OF APPEAL FOR ONTARIO

RE:

NELSON CHOQUETTE (Plaintiff/Appellant) – and – 995146 ONTARIO LIMITED (Defendant/Respondent)

BEFORE:

MACPHERSON, CRONK JJ.A. and LANE J. (ad hoc)

COUNSEL:

A. Edward Tonello

for the appellant

Matthew G. Moloci and

Todd D. Storms

for the respondent

HEARD:

September 1, 2004

On appeal from the judgment of Justice Kenneth Langdon of the Superior Court of Justice, dated September 22, 2003.

E N D O R S E M E N T

Released Orally: September 1, 2004

[1] The appellant, Nelson Choquette, appeals from the judgment of Justice Kenneth Langdon dated September 22, 2003 in which he dismissed the appellant’s claim for a declaration that he was the owner, by reason of adverse possession, of a narrow strip of commercial land in Burlington. The trial judge also rejected the appellant’s alternative claim that he had a prescriptive easement over the disputed land.

[2] There was no dispute that in 1984 the respondent’s predecessor in title, Triple C Imports, built a fence so that some of its land was located on the appellant’s side of the fence. The trial judge held that the events surrounding the fence, both before and after its erection, were not sufficient to establish the appellant’s claim for adverse possession. The trial judge concluded:

In the result, the Plaintiffs have failed to demonstrate adverse possession for the period of the first ten years [actually 1972‑1984] because such use as they made of their neighbour’s property was either with permission of or because of the indifference of the true owner. Such possession as they exercised was not truly adverse, i.e., exercised with the intent to exclude the rightful owner from possession.

After 1984 Mr. Choquette’s use was initially with permission of Triple C and later, qua Mr. Katsiris [the principal of the respondent], was based upon a mistaken belief, that I find both Mr. Choquette and Mr. Katsiris held, that the new 1984 fence was on the property line. There was no evidence of any intention to exclude the true owner from possession. The true owners were not always excluded from possession.

[3] The appellant does not appeal the trial judge’s conclusion relating to the pre‑1984 period. He does contest the decision relating to the post‑1984 period.

[4] The appellant contends that the trial judge erred in finding as a fact that the appellant used the respondent’s land on the appellant’s side of the fence with the consent of the owner (Triple C) between 1984 (when the fence was erected) and 1992 (when Triple C sold to the respondent).

[5] On this issue, the appellant must establish that the trial judge’s factual finding amounts to a “palpable and overriding error”: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 and Waxman v. Waxman, [2004] O.J. No. 1765 (C.A.). In our view, the trial judge’s conclusion was amply supported by the evidence. He believed, as he was entitled to do, the testimony of Harry Scholtens of Triple C that he constructed the fence in its location as a “neighbourly gesture” because the appellant was “tight for space”. Moreover, the appellant and his daughter made offers to purchase in 1987 and 1992, which clearly included the disputed land, when regard is had to the relevant surveys. This belies the appellant’s adverse possession claim.

[6] The appellant also submits that the trial judge erred by concluding that there can be no adverse possession if the appellant and respondent were mutually mistaken in believing that the fence was the boundary line. We do not read his reasons in this light. The trial judge explicitly limited the mutual mistake period to 1992‑1998 (after the respondent had purchased the property from Triple C). This period falls short of the 10 year period required to establish adverse possession; accordingly, there is no foundation for the appellant’s submission on this issue.

[7] Finally, the appellant contends that the trial judge’s reasons support a perception that the appellant did not receive a fair trial. In our view, there is absolutely no basis for this submission.

[8] The appeal is dismissed with costs fixed at $6,500, inclusive of disbursements and GST.

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”

“D. Lane J. (ad hoc)”