Court of Appeal for Ontario

Date: 2020-01-10 Docket: C66724

Judges: Roberts, Paciocco and Harvison Young JJ.A.

Between:

Susan Opal McKay Plaintiff (Appellant)

and

Joel Paul Vautour Defendant (Respondent)

Counsel: J. Sebastian Winny, for the appellant W. H. Peter Madorin, Q.C., for the respondent

Heard: January 6, 2020

On appeal from the judgment of Justice James W. Sloan of the Superior Court of Justice, dated February 26, 2019, with reasons reported at 2019 ONSC 1312.

Reasons for Decision

A. Overview

[1] The appellant appeals from the dismissal of her claim for adverse possession. She claims possessory title over an approximately eight-foot wide strip of land running between her property and that of her next-door neighbour, the respondent.

[2] For the following reasons, we dismiss the appeal.

B. Background

[3] In 2005, the appellant purchased her property, shown as Lot 11 in the 1980 Reference Plan attached as Exhibit 4 to her trial affidavit. In 2011, the respondent purchased Lots 6, 7, 8, 9 and 10, which had been owned by the same person, Roy Stumpf, for several decades. Lots 10 and 11 are adjacent to each other, Lot 10 being west of Lot 11.

[4] The present dispute arose in 2012 when the respondent removed part of what has been referred to as a paddock or horse fence that was situated about 8 feet to the west of the actual boundary line between Lots 10 and 11, as shown in the 1980 survey produced at trial. The respondent replaced it with a fence located on the surveyed boundary line. It is agreed that the surveyed boundary line between the properties is accurately set out in the 1980 survey. There is no evidence either party saw the 1980 survey before purchasing their respective properties.

[5] The appellant claims that the existence and location of the paddock fence establishes the true boundary line between the properties. There is no dispute that the paddock fence has been in place for several decades.

[6] The parties’ properties were transferred into the land titles system on June 16, 2003. Section 51 of the Land Titles Act, R.S.O. 1990, c. L.5, prevents the creation of any new possessory titles through adverse possession once land has been placed under the land titles system, but preserves any rights to adverse possession acquired prior to the placement of the land under the land titles system: Cantera v. Eller (2007), 56 R.P.R. (4th) 39 (Ont. S.C.), at para. 40, aff’d 2008 ONCA 876, 74 R.P.R. (4th) 162.

[7] As a result, to succeed in her claim for adverse possession, the appellant had the burden to establish that the use of the disputed strip by her predecessors in title was “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner”, namely, the respondent’s predecessors in title, for any ten-year period prior to June 16, 2003, and that this use met the following well-established criteria:

i. Actual possession for the statutory period by the appellant’s predecessors in title through whom she claims;

ii. Such possession was with the intention of excluding from possession the respondent’s predecessor in title;

iii. Discontinuance of possession for the statutory period by the respondent’s predecessor in title.

See: Pepper v. Brooker, 2017 ONCA 532, 139 O.R. (3d) 67, at para. 32; Cantera, at paras. 38, 39.

[8] The trial judge concluded that the appellant failed to prove her claim for adverse possession. There was no evidence from her predecessors in title to establish the requisite use during the statutory period. Evidence was given by Shannon Deckers, the daughter of the respondent’s predecessor in title, Roy Stumpf, now deceased, but it was insufficient to establish such use. Moreover, evidence gleaned from the survey, and given by Ms. Deckers and the appellant, supported the existence of a wooden fence on the upper portion of the disputed strip on the actual, titled property line between the properties. The trial judge concluded that this “trumped” any inference that the paddock fence on the lower portion of the disputed strip established the true boundary between the parties’ properties.

C. Analysis

[9] The appellant submits that the trial judge made the following reversible errors:

i. The trial judge incorrectly made an adverse inference against possession by the appellant because of the absence of evidence from her predecessors in title.

ii. Inconsistent with r. 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the trial judge failed to consider the affidavit evidence filed at the trial conducted under the Simplified Rules.

iii. The trial judge erroneously excluded as hearsay evidence, the appellant’s testimony about the state of mind or belief of Mr. Stumpf, the respondent’s predecessor in title, concerning the location of the property boundary;

iv. The trial judge incorrectly applied the law of adverse possession.

[10] We do not give effect to these submissions.

[11] First, we do not agree that the trial judge erred by making an adverse inference against the appellant because of the absence of evidence from her predecessors in title. The trial judge made no such inference. Rather, he determined that the appellant had not met her onus of establishing adverse possession because of the absence of cogent evidence supporting her claim.

[12] Second, we see no basis for concluding that the trial judge failed to consider the affidavit evidence that was filed. He was obliged to consider the whole of the evidence. His reasons demonstrate that he considered the points raised in the affidavits in conjunction with the cross-examination, as he was required to do, and that he specifically referenced exhibits to those affidavits.

[13] Third, even if the trial judge had erred in rejecting as hearsay evidence the appellant’s testimony concerning Mr. Stumpf’s state of mind about the boundary, we do not see this error as having any material outcome on the trial. The appellant’s evidence was that Mr. Stumpf had never raised with her any issue about the location of the paddock fence, nor her asphalt driveway that encroached on his property by about six inches. This evidence was equivocal regarding Mr. Stumpf’s state of mind and could equally be construed as a manifestation of neighbourly accommodation.

[14] Finally, we see no error in the trial judge’s application of the doctrine of adverse possession.

[15] We disagree with the appellant’s submission that the trial judge was required to conclude that the paddock fence established the correct boundary and was intended to exclude the true owner. While fences can provide powerful evidence giving rise to such an inference, such a presumption is not mandatory: Sammut v. Doheny, 2019 ONCA 693, at para. 3.

[16] In this case, the evidence concerning the purpose and treatment of the paddock fence was at best ambiguous. While Ms. Deckers testified that the paddock fence had been in place since her childhood and that her father repaired the paddock fence, she did not know who first constructed it or why it was built. She indicated that it served as an enclosure for the animals that roamed freely in the paddock and that it prevented them from going onto Lot 11. There was no clear or direct evidence that the parties’ predecessors in title treated the paddock fence as the boundary line. The appellant did not give evidence that Mr. Stumpf agreed that the paddock fence constituted the boundary line. Ms. Deckers confirmed in cross-examination that she had never discussed property lines with her father. Moreover, the southerly continuation of the paddock fence into Lot 7, as described by Ms. Deckers and as shown on the 1980 Reference Plan, supports the characterization of the paddock fence as an enclosure of a paddock within the entirety of the respondent’s five lot boundaries, rather than simply as a boundary line between the parties’ respective properties, Lots 10 and 11.

[17] Moreover, the evidence supported the existence of two fences – the paddock fence and another wooden fence located at the upper portion of the actual boundary line between Lots 10 and 11 (noted in handwriting on the 1980 survey as “wood fence built by neighbour”). The appellant confirmed the existence of a pressure-treated slat five- or six-foot high wooden fence that has been in place since prior to her purchase. Ms. Deckers had no recollection of the wooden fence described by the appellant but recalled that there was a fence that ran along the same upper stretch of the actual boundary line between Lots 10 and 11. As a result, it was open to the trial judge to conclude that the wooden fence displaced any inference that the paddock fence constituted and was treated as the boundary line between Lots 10 and 11.

[18] Further, the trial judge was entitled to conclude that the absence of evidence from the appellant’s predecessors in title or any other evidence that would prove the requisite use of adverse possession for the statutory period was fatal to the appellant’s claim. Neither party had owned their properties prior to their conversion under the land titles system nor did either party have any personal knowledge of the use of the strip by their respective predecessors in title. It was also open to the trial judge to conclude that Ms. Deckers’ evidence was insufficient to establish the appellant’s claim for adverse possession. She was unable to adequately attest to the regular use that the appellant’s predecessors in title made of the disputed strip, their intentions with respect to the strip, or to her father’s view of such use or where the boundary line was located.

[19] Notably, there was no evidence that the respondent’s predecessors in title were effectively excluded from the disputed strip for any ten-year period. There was no evidence that the appellant or any of her predecessors in title took any such exclusory steps. Rather, as Ms. Deckers confirmed, “in order to repair the [paddock] fence [her father] would have to work on either side of the fence”. It is well established that the true owner of the disputed property need not demonstrate the same continuous use that the adverse claimant must show. The true owner is in constructive possession of the entire property even when in actual possession of only a part of it. As such, “[f]airly trivial acts of dominion”, such as the paddock fence repairs carried out by Mr. Stumpf as described by Ms. Deckers, may demonstrate that the true owner has not been excluded: Barbour v. Bailey, 2016 ONCA 98, 66 R.P.R. (5th) 173, at para. 45; Fletcher v. Storoschuk et al. (1981), 35 O.R. (2d) 722 (C.A.), at p. 725.

[20] Finally, we do not accept that the trial judge’s misstatement of the relevant statutory period as being from 1993 to 2003 was material to the outcome because there was no cogent evidence to establish any of the requisite elements of adverse possession for any ten-year period prior to 2003.

D. Conclusion

[21] For these reasons, we dismiss the appeal.

[22] The respondent is entitled to his partial indemnity costs of the appeal in the agreed upon amount of $11,000, inclusive of disbursements and applicable taxes.

“L.B. Roberts J.A.” “David M. Paciocco J.A.” “A. Harvison Young J.A.”