Court of Appeal for Ontario

Date: 2017-10-05 Docket: C61764

Judges: Sharpe, Blair and Epstein JJ.A.

Parties

Between

Scott Beffort and Heather Beffort Plaintiffs (Respondents)

and

Zygmunt Zuchelkowski and Jolanta Zuchelkowski Defendants (Appellants)

Counsel

For the Appellants: Marek Z. Tufman and Geoffrey A.P. Tufman

For the Respondents: James S.G. MacDonald

Heard and Released Orally: October 5, 2017

On Appeal From: The judgment of Justice Jamie K. Trimble of the Superior Court of Justice, dated January 25, 2016.

Reasons for Decision

[1] This appeal involves a disputed strip of land between the abutting properties of the appellants and the respondents. The trial judge gave careful and detailed reasons for judgment explaining why he accepted the evidence pled by the respondents, that for the relevant 10-year period prior to the land being governed by land titles, their predecessors in title had adversely possessed the disputed strip. He gave judgment finding the respondents had established title by adverse possession. There is no issue as to the applicable legal test and the appeal turns solely on disputed issues of fact.

[2] The appellants' case rested almost entirely on the evidence of the Kepkas who had owned the respondents' lands for a 10-month period between 1988 and 1989. The evidence of all other predecessors entitled to both the appellants' and the respondents' lands was that during the relevant 10-year period (which began to run on September 21, 1988), a chain link fence divided the strip of land from that of the appellants' and incorporated into the lands of the respondents. That evidence was supported by photographs taken during the relevant period showing that there was a chain linked fence. Only the Kepkas disputed that fact and testified that the property line was defined by a board fence that they erected. The trial judge carefully explained why he found that the recollection of the Kepkas was unreliable.

[3] The trial judge's findings of fact attract deference in this court. He was entitled to find on the evidence that while the Kepkas had erected a board fence on part of the property, the chain link fence was present and defined the rear boundary of the property during the entire time they owned it. The trial judge did not err in finding that a statutory declaration relied upon by the appellants simply reflected the mutual mistake of all parties at the time that the chain link fence was the boundary.

[4] We see no error, much less one that rises to the level of a palpable and overriding error, that would justify this court in interfering with the trial judge's decision.

[5] The appellants also moved to introduce fresh evidence, namely an opinion from the president of a photogrammetric mapping company based on aerial photographs of the properties taken in the period 1988 to 1989. In our view, this evidence does not meet the test for admissibility.

[6] First, the motion to adduce fresh evidence was filed on the eve of the appeal and the appellants have failed to provide an adequate explanation for either the late filing or for why the evidence could not have been made available earlier through the exercise of due diligence.

[7] Second, we are not persuaded that the evidence is sufficiently reliable or credible to overcome the direct evidence of the various witnesses and the contemporary photographs taken on the ground indicating the presence of the chain link fence in the relevant period.

[8] Accordingly, both the motion to adduce fresh evidence and the appeal are dismissed.

[9] Costs to the respondents fixed at $16,224.45, inclusive of taxes and disbursements.

Robert J. Sharpe J.A.

Robert A. Blair J.A.

Gloria Epstein J.A.