CITATION: Woolley v. Bianco, 2008 ONCA 232
DATE: 20080402
DOCKET: C47480
COURT OF APPEAL FOR ONTARIO
LASKIN, SHARPE and MACFARLAND JJ.A.
BETWEEN:
BRENDA A. WOOLLEY
Applicant (Appellant)
and
DEBORAH OSLER BIANCO
Respondent (Respondent in Appeal)
DOCKET: C47481
BETWEEN:
DEBORAH OSLER BIANCO
Respondent (Respondent in Appeal)
and
BRENDA A. WOOLLEY
Applicant (Appellant)
Ronald B. Moldaver, Q.C for the appellant
Maxwell M. Steidman, Q.C for the respondent
Heard: April 1, 2008
On appeal from the judgments of Justice Geoffrey B. Morawetz of the Superior Court of Justice, dated June 27, 2007.
APPEAL BOOK ENDORSEMENT
[1] Despite the existence of the curb between the two driveways, the application judge found at para. 14 of his reasons that the Biancos regularly used the disputed strip of land to walk to and to get in and out of their cars. This finding is supported by the record and defeats the appellant’s claim for adverse possession to the one foot strip and curb at the front of the houses.
[2] The application judge focused his reason on the dispute over the driveways. He did not deal with the very different situation at the back of the house. There, the fence does exclude the respondent, the true owner, and establishes exclusive possession in favour of the appellant.
[3] Accordingly, the judgments of the application judge should be amended to reflect this endorsement.
[4] The respondent was substantially successful on the appeal and is entitled to costs in the amount of $10,000, inclusive of disbursements and G.S.T.