Court of Appeal for Ontario

Date: 2019-06-24 Docket: C66372

Judges: Juriansz, van Rensburg and Paciocco JJ.A.

Between

Michael Richard Applicant (Appellant)

and

The Corporation of the City of Niagara Falls Respondent (Respondent)

Counsel

Christopher Du Vernet and Carlin McGoogan, for the appellant

Michael Bordin, for the respondent

Heard

June 19, 2019

On Appeal

On appeal from the order of Justice Joseph R. Henderson of the Superior Court of Justice, dated December 10, 2018, with reasons reported at 2018 ONSC 7389.

Reasons for Decision

[1] Mr. Richard brought an application seeking a declaration that he is the legal owner by way of adverse possession of certain land belonging to the City of Niagara Falls ("the City"). He also requested a vesting order.

[2] That disputed land was formerly part of a railway corridor contiguous to Mr. Richard's backyard.

[3] The application judge denied the application after finding that Mr. Richard had failed to provide sufficient evidence to meet the third branch of the adverse possession test, which required him to prove that the City had effectively been excluded from possession of the disputed land in the ten years immediately prior to July 19, 1999, when the land was first registered in the Land Titles system.

[4] Mr. Richard appeals that decision. He contends that the application judge erred in law by applying an improper and unduly stringent standard on the third element of the adverse possession test, and that the application judge committed palpable and overriding error by failing to give effect to all of the evidence on that issue. The City disputes both grounds of appeal, and argues that in fact the application judge erred in finding in Mr. Richard's favour on the first two elements of the adverse possession test. The City raises additional arguments about the availability of adverse possession against a municipality.

[5] It is unnecessary to address all of the issues raised to resolve this appeal. Mr. Richard's adverse possession claim cannot succeed unless he establishes all three elements of the adverse possession test, and we find no error in the application judge's conclusion that Mr. Richard had not satisfied the third branch of the test. We therefore dismissed Mr. Richard's appeal at the end of the oral hearing. These are our reasons relating to the application judge's conclusions on this third branch of the test.

[6] We do not agree that the application judge applied the wrong or an unnecessarily onerous standard in considering the third element of the adverse possession test. This third element inquires whether the claimant has "effectively excluded the true owner from possession" of the disputed land: Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (C.A.), at p. 567, leave to appeal refused, [1984] S.C.C.A. No. 232. The application judge's material finding - that "the evidence is insufficient to prove that the City has been effectively excluded from possession of the Disputed Land" – directly addresses the proper inquiry.

[7] When the application judge found that "the tree line does not form an insurmountable obstacle", he was not elevating that standard. Instead, he was making a factual determination that was available on the evidence and that contributed to his finding that the third branch of the test had not been met. Mr. Richard had limited evidence that could advance his contention that members of the public had effectively been excluded from the disputed property from 1989 to 1999. He therefore relied heavily on the tree line. Had that tree line formed an insurmountable obstacle between 1989 and 1999, the necessary factual inference would have been that the public must have effectively been excluded by that barrier. When the application judge found that the tree line was not an insurmountable obstacle, he was simply explaining why he declined to make that inference.

[8] We have considered the other evidence that Mr. Richard points to in support of his alternative position that the application judge committed palpable and overriding error by not finding that the public had been effectively excluded.

[9] Much of that evidence, including the 2017 concession made by a lawyer for the City that the land was not then functioning as a park, describes the current state of affairs and is therefore of limited utility in determining the use that the public could have made of the land between 1989 and 1999.

[10] Nor was the application judge compelled to infer that because the tree line looked like a backyard boundary, the public was effectively excluded.

[11] In our view, the application judge was entitled to conclude that Mr. Richard had not established the third element of the adverse possession test. He made no palpable and overriding error.

[12] For these reasons we dismissed the appeal. As agreed between the parties, the City of Niagara Falls is entitled to costs on the appeal in the amount of $13,000 inclusive of applicable taxes and disbursements.

R.G. Juriansz J.A. K. van Rensburg J.A. David M. Paciocco J.A.