Court of Appeal for Ontario

Citation: Guerard v. Gray, 2014 ONCA 790

Date: 2014-11-12

Docket: C57900

Before: Blair, Juriansz & Rouleau JJ.A.

Between

Kevin Guerard et al Appellants (Respondents)

and

Sarah Gray et al Respondents (Applicants)

Counsel: Terrance Green, for the appellants Joseph Y. Obagi, for the respondents

Heard and released orally: October 22, 2014

On appeal from the order of Justice Brian W. Abrams of the Superior Court of Justice, dated October 18, 2013.

ENDORSEMENT

[1] The Grays and the Guerards own adjoining residences on Hope Street in Almonte, Ontario. Their dispute involves a narrow strip of land between the two properties to which the Grays claim title by adverse possession. The strip lies between some point on the Gray’s driveway, and the centre line of a hedge separating the properties.

[2] After a three-day trial, Abrams J. allowed the claim for adverse possession. He granted an order vesting title to the disputed lands in the Grays and extinguishing the interest of the Guerards and their mortgagors. The trial judge conducted a thorough review of the evidence, and made clear findings of fact that were amply supported on the record. He applied the proper principles of law relating to a claim for adverse possession, and there is no basis for interfering with his decision in that regard.

[3] In particular, the trial judge recognised that only the rights and interests of adjoining owners in existence at the time of first registration in the Land Title system are protected. He properly observed that the Grays were required to prove that, through the occupation of their predecessors, their possession was of the same nature and substance as when the lands were first registered in Land Titles. He held they had done so, rejecting the argument of the Guerards that the occupation of Ms. Forster broke the chain of possession. There is no basis for interfering with this finding and conclusion.

[4] On appeal, the appellants raised an argument not made at trial, namely that the finding of adverse possession did not justify the granting of title to the Grays of the full width of the two 2.03 metres vested in them by the trial judge’s order. What the precise dimension should be is not addressed by the appellant other than Mr. Green’s general submission that the Grays only required the width of their driveway plus a small grass strip.

[5] The problem is that this was not the way the case was put to the trial judge. The trial judge was presented with a survey – on consent – showing the disputed lands on two bases: (i) the wingspan that would have been necessary for both a two-door and a four-door vehicle; and (ii) the centre line of the hedge. As it turns out there is virtually no difference between these two boundaries. The dispute at trial was over whether adverse possession had been established in relation to the surveyed lands. No evidence to the contrary as to the appropriate width was led. As we have noted, there was ample support in the record for the finding of adverse possession.

[6] The appeal is therefore dismissed.

[7] Given this disposition, it is unnecessary to address the argument that the appeal was moot.

[8] In accordance with the agreement of the parties, the respondents are entitled to their costs of the appeal fixed at $12,880.15 all-inclusive on a partial indemnity basis.

[9] Mr. Green raised the issue of costs before the trial judge. No amended notice of appeal was filed raising his claim, and the cost order of Abram’s J. is not before us nor is the questions addressed in the factum.

"R.A. Blair J.A."

"R.G. Juriansz J.A."

"Paul Rouleau J.A."