COURT OF APPEAL FOR ONTARIO

DATE: 2004-11-22

DOCKET: C41615

RE: MINISTER OF NATURAL RESOURCES (Applicant) (Appellant) – and – DONALD JAMES HOLDCROFT JR. and WILLIAM JOSEPH HOLDCROFT (Respondents)

BEFORE: WEILER, ARMSTRONG and BLAIR JJ.A.

COUNSEL: Walter Myrka for the appellant Douglas G. Menzies for the respondents

HEARD & RELEASED ORALLY: November 17, 2004

On appeal from the order of Justice Robert J. Smith of the Superior Court of Justice dated February 24, 2004, reported at [2004] O.J. No. 697.

E N D O R S E M E N T

[1] On February 24, 2004 Justice Smith dismissed the Crown’s application for vacant possession of an island in the Township of Havelock, Belmont‑Methuen as well as the Crown’s request for a declaration that the respondents’ occupation and use of the island was unlawful. Instead, Justice Smith allowed the respondents’ cross‑application and granted them lawful ownership of the land by way of adverse possession. The Crown appeals from these decisions and from the costs award made against it.

[2] At the outset of this appeal, the respondents brought a motion to introduce fresh evidence. The evidence put forward had been rejected by the trial judge and does not meet the test for fresh evidence. Accordingly, we would not admit it here.

[3] The appellant raises two issues:

1. Did the trial judge give undue weight to affidavit evidence filed on behalf of the respondents?

[4] The appellant submits that the application judge gave undue weight to certain affidavit evidence and that it was entitled to only slight weight. The weight to be attached to evidence is a matter for the application judge. It was for him to ascribe the weight he thought appropriate to the affidavit evidence and the fact that the evidence might have been weighed differently does not entitle us to interfere and does not constitute a palpable and overriding error.

2. Did the trial judge err in holding that the respondents had demonstrated valid title to the island through adverse possession?

[5] In order to claim possessory title in respect of Crown land, a person must prove that the Crown’s title to the land was extinguished by adverse possession for a period of 60 years. There is no dispute that the three-pronged test to establish a claim for possessory title, as summarized by Blair J.A. in Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (Ont. C.A.) must be met. A claimant to possessory title must, throughout the statutory period, have: 1) had actual possession; 2) had the intention of excluding the true owner from possession, and; 3) effectively excluded the true owner from possession. The appellant submits that none of these three criteria were met.

[6] We disagree. A finding of adverse possession is primarily a finding of fact. As stated in Walker v. Russell (1965), 1 O.R. 197 (Ont. H.C.J.) at para 54:

Acts which amount to possession in one case may be wholly inadequate to establish it in another. Matters such as the nature of the property, the appropriate and natural uses to which it can be put, the course of conduct which the owner might reasonably be expected to adopt with a due regard to his own interests, are all matters to be considered in evaluating the adverse possession which has been proved to have been exercised by a trespasser or successive trespassers.

[7] It was open to the trial judge to find, as he did, that the respondents’ use of the island was open, notorious, peaceful, adverse, exclusive, actual and continuous, to all persons in the surrounding community for over 60 years, including the local representatives of the Provincial public authorities. The respondents and their predecessors treated the land in question as one property, namely Poplar Island. The application judge was entitled to protect the settled expectations of adverse possessors such as the respondents who acted on the assumption that their occupation would not be disturbed.

[8] The appellant argued that a finding of adverse possession was precluded because the land was vacant or wasteland. The application judge’s determination was a question of mixed fact and law. We can find no palpable and overriding error in the circumstances of this case in his holding that once lands have been occupied and have structures built on them, which are used for 35-40 years, and the lands continue to be used by the same family after the structures are no longer there, the lands can no longer be characterized as vacant lands. Accordingly, the application judge was correct in holding that s. 16 of the Limitations Act, R.S.O. 1990, c. L-15 did not apply.

[9] We would therefore dismiss the appeal. In view of our holding, the appellant has abandoned its appeal from the award of costs made against it at trial. Costs of the appeal are awarded to the respondent and are fixed in the amount of $12,000, all inclusive.

“Karen M. Weiler J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”