CITATION: Tucker v. Moffatt, 2008 ONCA 783

DATE: 20081121

DOCKET: C48280

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Simmons JJ.A.

BETWEEN:

Marjorie Lynn Tucker and Max Julien Guy Cordon

Plaintiffs (Respondents)

and

Roger Moffatt

Defendant (Appellant)

Robert A. Konduros for the appellant

David J. Thrasher for the respondents

Heard and endorsed: November 19, 2008

On appeal from the judgment of Justice C.S. Glithero of the Superior Court of Justice dated December 27, 2007.

APPEAL BOOK ENDORSEMENT

[1] The respondents concede that the trial judge erred in treating this as a case of mistake. As a result of this error the trial judge applied the wrong test and in particular failed to consider whether there was an intention to exclude the owners from such uses as the owners wanted to make of their property. The respondents failed to establish intention to exclude and on that basis the claim for adverse possession failed.

[2] Accordingly, the appeal is allowed, the judgment is set aside and the action dismissed. The appellant is entitled to his costs of the trial and the appeal fixed in total at $10,000 inclusive of GST and disbursements.