Court of Appeal for Ontario

Date: 2019-02-25 Docket: C65491

Judges: Feldman, Brown and Miller JJ.A.

Between

Gerald Anthony Plaintiff (Appellant)

and

Gary Gordon McKenzie and Jennifer McKenzie Defendants (Respondents)

Counsel

Yuce Baykara, for the appellant

Craig Losell, for the respondents

Heard and Released

Heard and released orally: February 21, 2019

On appeal from: the judgment of Justice Phillip Sutherland of the Superior Court of Justice, dated May 8, 2018.

Reasons for Decision

[1] Mr. Anthony appeals from the motion judge's dismissal of his action seeking a declaration of adverse possession over part of the respondents' property.

[2] Mr. Anthony submits the motion judge "failed entirely" to consider whether the evidence of his predecessor in title, Mr. Eric Fulton, disclosed a mistaken understanding as to the location of the boundary of his own property.

[3] We do not agree.

[4] The motion judge expressly dealt with that issue. At para. 26 of his reasons he identified the evidence of Mr. Fulton that demonstrated some inaccuracy in his understanding about the location of the boundary given that he mowed a small part of the disputed lands in the vicinity of his house. However, the motion judge was required to consider that evidence together with the rest of Mr. Fulton's evidence. He did so, noting that the R-Plan filed by the Fultons in support of their application for conversion to the Land Titles Act, R.S.O. 1990, c. L.5 regime was consistent with Mr. Fulton's evidence that he had no claim and made no claim for adverse possession over the disputed lands. Mr. Fulton also testified that he never mowed the area that forms the bulk of the disputed lands – the area outlined in blue on Exhibit 1 to his cross-examination. Based upon the totality of the evidence, the motion judge concluded that the Fultons did not have any intention to exclude as demonstrated "by their actions and by their words."

[5] We see no error in that conclusion. Regardless of the limited use the Fultons may have made of a small portion of the disputed lands in the immediate vicinity of their house, the evidence was overwhelming that they had no intention to use the land to the exclusion of its true owner.

[6] Mr. Anthony advances another fact-based ground of appeal. He contends the motion judge erred in finding that an old fence on the property did not create a boundary and did not indicate an intention to exclude. Key to this submission is the assertion contained in his affidavit, at para. 17, that "either the Hashems or the Fultons erected a fence from the front of the property to the back closely following the top of [the] bank on the east side of the pond". That assertion had no support in the evidence. Mr. Fulton gave no such evidence. As the motion judge observed at para. 21, there was no evidence provided on the conduct or intentions of the Hashems.

[7] Mr. Anthony did not pursue on appeal the motion judge's dismissal of his alternative claim for an easement over some unspecified part of the disputed lands.

[8] The appeal is dismissed.

[9] Mr. Anthony shall pay the respondents their costs of the appeal fixed in the amount of $13,864.20, inclusive of disbursements and H.S.T.

"K. Feldman J.A."

"David Brown J.A."

"B.W. Miller J.A."