COURT OF APPEAL FOR ONTARIO

CITATION: Heng v. Rodriguez, 2016 ONCA 106

DATE: 20160204

DOCKET: C60380

Laskin, Simmons and Huscroft JJ.A.

BETWEEN

Gek Choo Heng and Aik Kim Heng

Applicants (Appellants)

and

Ramos Rodriguez a.k.a. Ramos Agustina Irene Rodriguez and Amador Rodriguez a.k.a. Amador Gustavo Alfredo Rodriguez

Respondents (Respondents on Appeal)

Hashim Syed, for the appellants

Brian Diamond, for the respondents

Heard and released orally: January 27, 2016

On appeal from the order of Justice Sean F. Dunphy of the Superior Court of Justice, dated March 30, 2015.

ENDORSEMENT

[1] The appellants challenge the application judge’s finding of adverse possession. They submit that the application judge did not consider relevant evidence; that he erred in failing to make a finding on the ownership of the fence; and that he erred in finding sufficient usage of the strip of land in question. Overall, the appellants’ appeal is an attack on the application judge’s findings of fact.

[2] We do not accept the appellants’ submissions. The application judge correctly stated the elements of a claim in adverse possession and he made findings of fact reasonably supported by the evidence that satisfy each of these elements. In doing so, he made no palpable and overriding error.

[3] Specifically at para. 25 of his endorsement, the application judge made a finding of fact, fully supported by the evidence and the conduct of the parties, that both sides treated the fence line as a boundary line between them. That he failed expressly to consider some other evidence is not, in this case, a basis for appellate intervention.

[4] At para. 32 of his endorsement the application judge noted that the case law has held the presence of a fence is strong evidence of an intent to exclude. But even apart from this case law, the application judge noted at para. 33 of his endorsement that:

There is no question here but that the possession of the strip of land inside in the old fence line has always been based on the assumption – certainly unilateral (on the part of Mr. Aviles and Mr. Alfaro) but likely bilateral (including the Heng’s) – that the fence described the actual boundary between the properties.

[5] Finally, at para. 34 the application judge dealt with usage and drew the reasonable inference that all the backyard, including the strip in question, was “reasonably manicured”. There was no evidence to displace that inference.

[6] Accordingly the appeal is dismissed. The respondents are entitled to their costs of the appeal, which we fix in the amount of $5,600 inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“Janet Simmons J.A.”

“Grant Huscroft J.A.”