DATE: 2006-03-27
DOCKET: C43931
COURT OF APPEAL FOR ONTARIO
RE:
THE CORPORATION OF THE TOWNSHIP OF LAKE OF BAYS (Applicant/Respondent) – and – 456758 ONTARIO LIMITED (Defendants/Appellant) – and BANK OF MONTREAL (Respondent)
BEFORE:
SHARPE, ARMSTRONG and BLAIR JJ.A.
COUNSEL:
Daniel J. Wyjad
for the 456758 Ontario Limited
Michael E. Fitton
for the Corporation of the Township of Lake of Bays
HEARD & ENDORSED:
March 21, 2006
On appeal from the judgment of Justice Robert N. Weekes of the Superior Court of Justice dated June 28, 2005.
E N D O R S E M E N T
[1] The application judge concluded that there was overwhelming evidence that the lands in dispute had been used by the public for a public purpose since the mid-1940’s and accordingly found that there had been dedication and acceptance of the lands for public uses. It is conceded that this issue was factual in nature. There was evidence to support the application judge’s finding and we do not accept the submission that he made any palpable and overriding error in that regard.
[2] The respondent concedes that the dedication of the lands as a public park would extend only to the use of the lands and would not include ownership. The respondent submits however that title is established by virtue of adverse possession. The test for adverse possession set out in the decision of this court in Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 at para. 14. It must be shown:
that the claimant had actual possession;
that the claimant had the intention of excluding the true owner from possession and,
that the claimant effectively excluded the true owner from possession.
[3] Although the application judge did not deal with adverse possession in his reasons, it was argued before him and we are satisfied that it is made out on this record. There is evidence from the President of the appellant that in 1990, she had a verbal dispute with the Township planner when she asserted ownership over the disputed lands. The Township planner insisted that the appellant had no right of ownership and shortly thereafter, the Township erected a fence that barred the appellant from entry onto the disputed lands. Moreover, since the fence was erected, the Township has maintained the property. In our view it is clear that since the fence was erected,
the respondent has had actual possession of the property;
that the fence was erected with the intention of excluding the appellant from possession and,
that the appellant has been effectively excluded from possession since that time.
Accordingly, all of the requisites for possessory tile have been made out (see Masidon, supra).
[4] For these reasons, we dismiss the appeal. Costs to the respondent fixed at $7,086.61 inclusive of disbursements and GST.
“Robert J. Sharpe J.A.”
“Robert P. Armstrong J.A.”
“R.A. Blair J.A.”