Court of Appeal for Ontario

Date: 20220506 Docket: C69934

Benotto, Miller and Copeland JJ.A.

Between

Gerald Peter Anthony Applicant (Appellant)

and

John Cundari Respondent (Respondent)

Gerald Peter Anthony, appearing in person Rahul Gandotra, for the respondent

Heard: April 29, 2022 by video conference

On appeal from the judgment of Justice Chris de Sa of the Superior Court of Justice, dated September 21, 2021.

Reasons for Decision

[1] In 2017, the appellant brought an application for adverse possession with respect to a parcel of land. The application was dismissed by Sutherland J. on a motion for summary judgment. This court dismissed the appeal.

[2] The appellant then brought another application for a smaller portion of the same parcel of land, also based on adverse possession. The application was dismissed on the basis that it was res judicata and issue estopped.

[3] The appellant appeals, claiming that the subject matter of the current application is not the same because the property at issue here was not specifically addressed in the first application.

[4] We do not agree.

[5] It is clear that the earlier action included the smaller portion which is at issue here; they are not distinct parcels of land. As the respondent submits, a claimant who is unsuccessful at establishing adverse possession cannot be allowed to modify the parameters of their claim within the same boundaries to obtain a different result. This is contrary to the objective of res judicata and issue estoppel.

[6] The appeal is dismissed with costs to the respondent in the amount of $5,000 inclusive of disbursements and HST.

“M.L. Benotto J.A.”

“B. Miller J.A.”

“J. Copeland J.A.”