COURT OF APPEAL FOR ONTARIO

CITATION: Lipischak v. Ross, 2011 ONCA 634

DATE: 20111011

DOCKET: C52464

BEFORE: Feldman, MacPherson and Simmons JJ.A.

BETWEEN

Frank Lipischak and Dolores Lipischak

Plaintiffs (Respondents)

and

Diana DeWolf and Joe Russ

Defendants (Appellants)

COUNSEL:

James K. Ball, for the appellants

Allan Rouben and for the respondents

HEARD AND RELEASED ORALLY: October 3, 2011

On appeal from the judgment of Justice Anthony E. Cusinato of the Superior Court of Justice, dated June 25, 2010, at Windsor.

ENDORSEMENT

[1] The appellants Ms. DeWolf and Mr. Russ appeal from the judgment of Justice Cusinato of the Superior Court of Justice, dated June 25, 2010, determining that Ms. DeWolf’s title to two strips of land between the parties’ adjoining properties was extinguished by the respondents’ adverse possession and ordering general, special, and punitive damages against the appellants on account of trespass.

[2] The trial lasted 11 days, following which the trial judge made his findings of fact and legal conclusions in reasons that included 102 paragraphs. Importantly, he found that both the chain link fence and the sidewalk between the two houses were constructed by the respondents based on a mutual mistake by themselves and their neighbours at the relevant time (predecessors in title of the appellants), as to the exact location of the property line. Based on those findings, he concluded that the doctrine of adverse possession applied. We see no basis to interfere with his findings, or with his decision in relation to damages for trespass.

[3] That said, the finding of adverse possession was made without involving the appellants’ mortgagee as party to the action. The order will also affect the overhang of the roof and eavestrough of the appellants’ property over the sidewalk. In respect of the latter issue, the respondents have agreed to grant the appellants a permanent easement for the current roof and eaves configuration over the sidewalk. That easement will include the right to walk on the sidewalk in order to access the roof and the back of the house.

[4] With respect to the bank mortgagee, that party’s permission will have to be sought before the title can be amended in accordance with para. 2 of the judgment. If there is any difficulty in that regard, a motion may be brought before a judge of the Superior Court in Windsor.

[5] The appellants also seek leave to appeal the order as to costs on the basis that the amount ordered was disproportionate to the claim in issue. Although the amount ordered was high, the trial judge gave careful consideration and full reasons for his order. Leave to appeal costs is denied.

[6] In the result, the appeal is dismissed with costs fixed at $20,000, inclusive of disbursements and H.S.T.

Signed: “K. Feldman J.A.” “J. C. MacPherson J.A.” “Janet Simmons J.A.”