Court of Appeal for Ontario
Date: 2018-05-30 Docket: C64606
Judges: Pepall, van Rensburg and Paciocco JJ.A.
Between
Johanne Mainville Loken Applicant (Appellant)
and
St. Peter's Court Apartments Respondent (Respondent in Appeal)
Counsel
James Morton, for the appellant
Jason Schmidt, for the respondent
Hearing and Release
Heard and released orally: May 25, 2018
On appeal from: the judgment of Justice M. Lack of the Superior Court of Justice, dated October 27, 2017.
Reasons for Decision
[1] This is an appeal of the dismissal of a claim for adverse possession.
[2] The appellant says that the application judge erred when she departed from the agreed facts in concluding that adverse possession had not been made out, and in making findings of fact that were contrary to the agreed facts.
[3] The appellant says that the application judge's finding that the respondent had not been excluded from the disputed property is inconsistent with the agreed fact that the hedge did not allow access to the respondent's property and effectively excluded uninvited persons and trespassers.
[4] We disagree. The question here was whether the respondent was excluded from its intended or ordinary use of the property in dispute. The admitted fact relied on by the appellant simply states that the area enclosed by the hedge effectively excluded uninvited persons and trespassers. This is not inconsistent with the application judge's finding. In this regard, she found that the respondent had not been excluded from the disputed property because its use as a hedge was consistent with the use the registered owner intended.
[5] The findings made by the application judge, which were based on the agreed facts, affidavits and the transcript of the cross-examination of the appellant, fully supported the conclusion that the claim for adverse possession had not been established.
[6] The appeal is therefore dismissed. Costs to the respondent fixed at $9,000, inclusive of disbursements and HST.
S.E. Pepall J.A.
K. van Rensburg J.A.
David M. Paciocco J.A.