COURT OF APPEAL FOR ONTARIO

CITATION: Sumner v. Sullivan, 2014 ONCA 869

DATE: 20141203

DOCKET: C58716

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Sean Maxwell Sumner, Scott Patrick Sumner and Jeffery Raymond Sumner

Plaintiffs (Appellants)

and

Barry Ross Sullivan and Elizabeth Anne Sullivan

Defendants (Respondents)

M.D. McArthur and P. Karsten, for the appellants

P.M. Quinlan, for the respondents

Heard: November 26, 2014

On appeal from the judgment of Justice P.B. Hambly of the Superior Court of Justice dated March 19, 2014.

APPEAL BOOK ENDORSEMENT

[1] We are in substantial agreement with reasons of the motion judge.

[2] The three-pronged test for adverse possession is well recognized.

[3] The third requirement, “effective exclusion of the true owner”, applies even in cases of mutual mistake: Shennan v. Szewezyk, 2010 ONCA 679, [2010] O.J. No. 4426.

[4] In this case, there were many facts in dispute. However, on the record, the facts relevant to the third requirement could be determined on the motion. The motion judge did so at paras. 55-58.

[5] The appeal is dismissed.

[6] We agree that the respondents were entitled to substantial indemnity costs. However, the trial judge awarded full indemnity rather than substantial indemnity. We would, therefore, reduce the costs to $50,000.

[7] Costs of the appeal to the respondents fixed at $10,000.