Court File and Parties

CITATION: Chaylt v. 1347293 Ontario Limited, 2007 ONCA 265

DATE: 20070412

DOCKET: C45726

COURT OF APPEAL FOR ONTARIO

WEILER, ROSENBERG AND SIMMONS JJ.A.

BETWEEN:

DIANE CLAUDETTE CHAYLT

Plaintiff/Defendant by Counterclaim (Respondent)

And

1347293 ONTARIO LIMITED operating as ACCOUNT ON FULLERTON

Defendant/Plaintiff by Counterclaim (Appellant)

Counsel: William A. Sangster for the appellant 1347293 Ontario Limited William Brunton for the respondent Diane Chaylt

Heard and endorsed: April 11, 2007

On appeal from the judgment of Justice Michael G. Bolan of the Superior Court of Justice dated June 23, 2006.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals from the judgment of Bolan J. extinguishing its title to a triangular parcel of land adjacent to lands owned by the respondent based on adverse possession.

[2] The appellant says that the triangular parcel was surplus land that was not being used in relation to the business previously operated on the appellant's land. The appellant submits that the trial judge erred by failing to consider the nature of the use of the appellant's lands and by failing to adequately consider whether the respondent's actions were sufficiently inconsistent with such use to be capable of constituting adverse possession. We disagree.

[3] The trial judge made an explicit finding that "at the very least, between 1977 and 1991" the respondent (or her predecessor in title) had free and uninterrupted exclusive use of the triangular parcel and that their possession was "open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner".

[4] Concerning whether the respondent's use was sufficient to exclude the appellant's, the trial judge found that the respondent by her actions effectively excluded the appellant. The trial judge adverted to the respondent's actions in placing curb stones, and to constant use and maintenance.

[5] There was evidence at trial indicating that the respondent's predecessor in title paved the triangular parcel in 1977, placed curb stones on it separating it from the remainder of the appellant's lands and used it constantly for parking in relation to a business. There was also some evidence establishing that the appellant's predecessor in title was aware of the respondent's use of the land and that he was not happy about it. In our view, the trial judge's conclusions are findings of mixed fact and law and the appellant has not demonstrated any palpable and overriding error.

[6] The appeal is therefore dismissed.

[7] Costs of the appeal are to the respondent fixed at $3820 at inclusive of disbursements and applicable G.S.T.