Court of Appeal for Ontario

Date: November 9, 2018 Docket: C65227

Justices: Lauwers, Huscroft and Trotter JJ.A.

Between

2279088 Ontario Inc. Applicant/Respondent by Counter-Application (Appellant)

and

Alan Douglas Nisbet Respondent/Applicant by Counter-Application (Respondent)

Counsel

Patrick R. Simon, for the appellant

Colin R. Dubeau, for the respondent

Heard: November 1, 2018

On appeal from: the order of Justice Robert Pelletier of the Superior Court of Justice, dated March 15, 2018.

Reasons for Decision

The Parking Platform and the Land

[1] This appeal involves a dispute over a parking platform that was built on Mr. Nisbet's land and which encroaches on contiguous property owned by 2279088 Ontario Inc. ("227"). The application judge dismissed 227's claim in trespass and allowed Mr. Nisbet's claim for a declaration of title as a result of adverse possession.

[2] 227 owns a piece of land, part of which serves as a private roadway (known as "Chretien Street") in the Township of Alfred-Plantagenet, in the United Counties of Prescott and Russell. Mr. Nisbet is one of 14 landowners who enjoys a right of way over this roadway, and over a grassy drainage area between his land and the home of Joseph Jones, the sole shareholder and director of 227. The roadway is also the subject of various easements (in relation to water, sewage, and other utilities) in favour of the Township.

[3] In 1994, Mr. Nisbet's predecessor in title built the parking platform. The top of the platform is level with the road. Because the land slopes away from the roadway, there are retaining walls on the other three sides of the platform, comprised of interlocking timbers. It is mostly filled in by gravel.

[4] The timbers that support the platform extend to the roadway and encroach by 1.37 meters (54 inches). The encroachment is beneath the ground and only extends as far as a grassy area to the side of the traveled roadway.

[5] The other encroachment is at the rear of the platform, where the timbers meet at one of the corners. At a height of six feet, it encroaches by only .33 meters (13 inches) onto the unmaintained grassy drainage area of 227's land.

[6] When the parking platform was built in 1994, long before Mr. Nisbet and 227 were on the scene, a landowner who was building his own home across the roadway was able to pinpoint when the platform was constructed. He has images of the property taken before and after the platform was built. He also observed that, once completed, the platform was used exclusively by Mr. Nisbet and his predecessors in title to park their respective vehicles, and those of their guests.

The Dispute

[7] 227 acquired the property in 2011. Trouble soon followed. The application judge found that Mr. Jones immediately declared his rights as the owner, claiming that he could do as he wished with the land, including tearing up the asphalt roadway and replacing it with grass. He threatened to sue Mr. Nisbet. This hostile stance resulted in criminal proceedings against Mr. Jones, and then this litigation.

[8] It was not until 2016 that a survey revealed the encroachments at issue in this litigation. As the application judge found, at para. 30, it would appear that the parties had been operating on the basis of a mistake about property lines.

[9] 227 brought an application for a declaration of trespass and for an order that the parking platform be torn down. Mr. Nisbet sought a declaration vesting title in the encroached lands in his name, based on a claim of adverse possession.

[10] The application judge dismissed 227's claim. Applying the governing authorities of this court, including Masidon Investments Ltd. v. Ham (1984), 45 O.R. (3d) 563 (C.A.), leave to appeal refused, [1984] S.C.C.A. No. 232; Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.); and McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, the application judge allowed the adverse possession claim, subject to the existing rights of way.

Analysis

[11] In approaching this case, we accept the parties' invitation to address the two encroachments together, in an "all-or-nothing" fashion. Although each encroachment has a somewhat different impact on 227, they arise from a single structure – the parking platform. The timbers that create the triangular encroachment on the drainage ditch are the same timbers that extend underneath the roadway. To approach the case otherwise would be artificial.

[12] 227 argues that the application judge applied an erroneous test for adverse possession. It submits that Keefer v. Arillott (1976), 13 O.R. (2d) 680 (C.A.) created a "modified test" when "one claims adverse possession to lands subject to others' rights of way." 227 relies on the following passage from the reasons of Wilson J.A. (as she then was), at pp. 691-692:

The onus of establishing title by possession is on the claimant and it is harder for a claimant to discharge this onus when he is on the property pursuant to a grant from the owner. It was held in Littledale v. Liverpool College, [1900] 1 Ch. 19, that acts done on another's land may be attributed to the exercise of an easement, even an excessive exercise of an easement, rather than to adverse possession of the fee.

In Pflug and Pflug v. Collins, [1952] O.R. 519 at p. 527, [1952] 3 D.L.R. 681 at p. 689 [affirmed , [1953] O.W.N. 140, [1953] 1 D.L.R. 841], Mr. Justice Wells (as he then was) made it clear that a person claiming a possessory title must establish (1) actual possession for the statutory period by themselves and those through whom they claim; (2) that such possession was with the intention of excluding from possession the owner or persons entitled to possession; and (3) discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession. If he fails in any one of these respects, his claim fails. [Emphasis added.]

[13] This passage does not bear the interpretation urged upon us by 227. Wilson J.A. did not modify the requirements for adverse possession in cases involving pre-existing easements; she merely observed that it will be more difficult from an evidentiary perspective to establish the pre-conditions in these circumstances. As is clear from this excerpt, a stricter approach prevents easements from maturing into title too easily.

[14] Moreover, we are not persuaded that the application judge misapplied the doctrine of adverse possession. There was a solid evidentiary foundation on which he could find that the construction of the parking platform was not merely the excessive use of the right of way; it involved a completely different use of the land in question, different in purpose and kind from the original grant.

[15] The evidence demonstrated that Mr. Nisbet and his predecessor in title unequivocally excluded the true owners and all others from the use of the encroached spaces. Over two decades of exclusive use of these spaces permitted the application judge to find the intention to exclude all others. In short, Mr. Nisbet proved the three elements necessary to establish title by adverse possession.

[16] 227 further argues that the application judge erred by ignoring the doctrine of inconsistent use, whereby it must be proved that the claimant's use of the land is inconsistent with the true owner's present or future enjoyment of the land: see Keefer; and Masidon. We disagree.

[17] In Teis, Laskin J.A. observed, at para. 24, that inconsistent use is a "controversial element" of an adverse possession claim. This element, which was revived in Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), at p. 273, has in more recent times been denounced by the House of Lords as "heretical and wrong": see J. A. Pye (Oxford) Ltd. v. Graham, [2002] UKHL 30, [2003] 1 A.C. 419, at para. 45. See also the discussion in Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at paras. 17-27. Counsel for Mr. Nisbet argues that this court should dispense with this element of adverse possession once and for all.

[18] Presently constituted as a three-person panel, we are not able to address this argument, which would involve reversing numerous authorities of this court. Only a five-person panel could receive such arguments. See Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265, at para. 30, in which an identical request was rejected for the same reason.

[19] In any event, to the extent that it was necessary to address this issue, we are satisfied that the application judge adequately dealt with inconsistent use in relation to the roadway, at paras. 29-31 of his reasons. Although he did not address inconsistent use as it applied to the drainage ditch, it was not necessary to do so because the dispute (over both pieces of disputed land) arose as a result of a mutual mistake. As this court held in Teis, at para. 25, the doctrine has no application in these circumstances.

[20] 227 also argues that the application judge granted relief not sought by Mr. Nisbet and, in doing so, rendered the proceedings unfair. As 227 submits in its factum: "…when the Learned Application Judge granted Mr. Nisbet possessory title subject to the same encumbrances already on title, the Learned Application Judge caught the Appellant by surprise and did not allow the Appellant to make submissions regarding same relief."

[21] There is no merit in this ground of appeal. Both parties had the opportunity to make submissions to the application judge on this issue, both orally and in writing. Moreover, there was nothing unfair or unusual about the relief granted by the application judge. As Laskin J.A. said in Teis, at para. 34: "A possessory title may be subject to a right of way."

[22] Lastly, 227 submits that, should it be successful on the adverse possession issue, it is entitled to injunctive relief based on its claim of trespass. To the extent that it is necessary to address this issue, this ground has no merit. The encroachments were trifling. One was underground. As the application judge found, at para. 24, the parking platform has not created even the slightest obstruction or risk for those who exercise their rights of way on the roadway. Nor was it established that the miniscule encroachment created by the rear corner of the parking platform has impacted on anyone's enjoyment of the drainage ditch. The fact that the encroachment is a permanent structure is irrelevant: see Weidelich v. de Koning, 2014 ONCA 736, 122 O.R. (3d) 545, at para. 19.

Disposition

[23] The appeal is dismissed.

[24] Counsel agree that the successful party on appeal is entitled to $17,000, inclusive of disbursements and HST. Mr. Nisbet is entitled to costs in this amount.

"P. Lauwers J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."