Court and Parties
Court of Appeal for Ontario Date: 2023-09-25 Docket: COA-23-CV-0106
Before: Feldman, Paciocco and Sossin JJ.A.
Between:
Norma Jane MacQuarrie and Mala Beharry Applicants and Respondents by Cross-Application (Respondents)
And:
Robert Shane Proulx Respondent and Applicant by Cross-Application (Appellant)
Counsel: Mervin L. Riddell, for the appellant appearing by video conference Mitchell C. Brown, for the respondents
Heard: September 13, 2023
On appeal from the order of Justice Scott K. Campbell of the Superior Court of Justice, dated December 19, 2022, with reasons reported at 2022 ONSC 4087.
Reasons for Decision
A. Background
[1] The parties are neighbours in the Town of Port Stanley. The appellant, Robert Proulx, owns the property known municipally as 171 Norma Place. The respondents, Norma MacQuarrie and Mala Beharry, own the adjacent property known municipally as 173 Norma Place. Their dispute is over a small triangular strip of the respondents’ land at the boundary of their properties.
[2] The boundaries of the disputed triangular strip are the actual property line between 171 and 173 Norma Place on one side, the road on one side, and a white fence that runs along approximately half of the strip on the third side. The triangular strip was addressed as two separate parcels: a triangular parcel that is bordered by the property line on one side and the white fence on the other, and a roughly rectangular parcel that begins where the white fence stops and runs to the road. The appellant claimed adverse possession over the entire strip consisting of both parcels (attached in Schedule A).
[3] The respondents purchased their property on December 1, 2006. The appellant’s mother and her spouse obtained title to the appellant’s property in July, 1995, and the appellant became the sole owner in September, 2011. On February 19, 2007, all the lands came under the Land Titles system. Therefore, the claim for adverse possession had to be based on open, notorious, continuous, exclusive use without permission for a 10-year period prior to that date.
[4] When the respondents purchased their property, they obtained a declaration of possession from the vendor attesting that there was no adverse possession of any part of the property. However, because of the partial fence, the respondents decided to concede in their written materials that the area enclosed on one side by the fence had been effectively possessed by the appellant’s mother as his predecessor in title, and therefore they conceded possessory title to that portion of the claimed land.
[5] The appellant’s position was that an imaginary projected line from the fence should be drawn to the road and the area enclosed by that imaginary line was also adversely possessed by his predecessor in title, prior to 2007. His evidence was that his mother possessed the property by including it in her lawn cutting, general maintenance, planting of vegetation, weed control and snow removal. Further, the respondents ought to have been aware of his mother’s expenditures, and by failing to object, they encouraged her to believe she was performing work on her own property.
[6] The respondent, Ms. McQuarrie, resided on the property from 2006 to 2008. Her evidence was that she regularly maintained her lawn including the disputed area. She also regularly walked across the disputed land from her driveway when she brought her groceries into the house. There was never any objection from the appellant’s mother, his predecessor in title. After 2008 the respondent had a tenant. Her understanding was that the tenant and his father socialized with the appellant’s tenant, and to that end went back and forth over the disputed property. During the last few years of the tenancy, the appellant’s tenant maintained the lawn for both properties as a thank you for kindness and used the lawnmower that belonged to the respondent’s tenant’s father to do it.
[7] The boundary dispute only arose in 2019 when the respondents demolished their home to build a new one.
B. Decision of the Application Judge
[8] The application judge applied the three-pronged test for determining adverse possession, the onus being on the party asserting the adverse possessory claim: Did the respondent establish: 1) actual possession of the property over a ten-year period prior to February, 2007? 2) the intention to exclude the true owner? 3) effective exclusion of the true owner?: Barbour v. Bailey, 2016 ONCA 98, 345 O.A.C. 311, at para. 35.
[9] Although the respondents had conceded the claim with respect to the area bounded on one side by the fence, they tried to resile from that position at the application hearing because the appellant was non-conciliatory. As a result, the application judge applied the three-pronged test to both disputed areas. With respect to the fenced area, he found that the appellant had met all three prongs of the test. That finding is not under appeal.
[10] With respect to the unfenced area, on the first issue, actual possession, he first observed that the disputed area is open land between the two houses. He concluded that there was use of the disputed property by both sides’ predecessors and by the parties during the relevant period and that the use did “not appear to be problematic”. He also found that the declaration of possession that the respondents obtained from the vendor on closing supported their position that they were not aware of any claim for possession or exclusion when they purchased the property.
[11] On the second prong, intent to exclude, the application judge found that there was little direct evidence from the appellant of any intention to exclude and there was no actual exclusion. Nor was there any mutual mistake regarding the boundary − at best there was “mutual disinterest.”
[12] On the third prong, effective exclusion, the application judge rejected the appellant’s argument that exclusion should be inferred for the area demarcated by the imaginary projected fence line to the road, based on the failure of the respondents to object. He found that the evidence of effective exclusion before 2007 was inconclusive, but that “given the open nature of the property, the inference may well be considered to be to the contrary.”
[13] The application judge concluded his analysis by finding that the appellant had not met his onus to prove any of the three prongs of the test and rejected the claim. The final paragraph of the analysis states:
To be clear, when I apply the test to the evidence in this case, I find there has been no actual possession by the [appellant] nor were the [respondents] and their predecessors in title effectively excluded. The [appellant’s] possession was not open, notorious, constant, continuous, peaceful, and exclusive of the rights of the owner. I would reiterate the titled owner does not need to exercise the same degree of control over the property as someone claiming adverse possession.
[14] The application judge also rejected the appellant’s claim for proprietary estoppel. He found that the respondents did not encourage the appellant to believe the property was his, there was no detrimental reliance by the appellant and no unconscionable advantage taken by the respondents.
C. Analysis
First Issue: Adverse Possession
[15] The appellant’s main submission on the appeal is that the application judge was required to draw the inference that once the appellant had established adverse possession of the area bordered by the fence, that possession extended to the other contiguous area demarcated by the imaginary projection of the fence line to the road. He argues that it was an error for the trial judge to treat the claimed area as two separate areas, one bounded by the fence and the other not.
[16] There is no merit to this submission. The application judge considered this submission and rejected it based on the evidence before him. He carefully applied the three-pronged test and considered the relevant evidence regarding the parties’ use of the disputed, unfenced area over the relevant period, and came to the conclusion that the evidence did not establish adverse possession of that area.
[17] Adverse possession claims frequently require courts to divide disputed areas and conduct distinct analyses: see e.g., Laing v. Moran, [1952] O.R. 215 (C.A.), at paras. 27-40; and Mueller v. Lee (2007), 59 R.P.R. (4th) 199 (Ont. S.C.), at paras. 4-5, 57-61. The cases cited by the appellant in support of the proposition that the two parcels should be considered as a unified whole are readily distinguishable.
[18] In Laing, the Court of Appeal held that a driveway and garage constituted a “single entity” for the purposes of the adverse possession analysis because “the driveway was necessary to the use of the garage” (para. 31). Here, by contrast, the use of one part of the lawn does not depend on the other. The Tramonti v. Lombardi (1997), 12 R.P.R. (3d) 105 (Ont. C.A.) case is also wholly distinguishable on the facts. There, the trial judge found evidence of intent to exclude the true owners from the barbeque and shed but not from the rest of the fenced-in area in dispute. This court explained that the trial judge erred by failing to treat enclosing the entire area with a fence as evidence of intent to exclude. In the present case, the application judge declined to infer an intent to exclude by an imaginary, projected line with no actual fence.
[19] In respect of the appellant’s mother’s use as predecessor in title of his lands, the application judge found that what she did with respect to lawn maintenance was not sufficient to meet the test for adverse possession: open, notorious constant use that excluded the true owner. That finding is subject to deference by this court and is borne out by the evidence.
[20] The appellant also submits that the application judge erred by using evidence of activity after 2007 to determine the issue of adverse possession before that date and that he was confused about the evidence. We also reject that submission. The application judge reiterated a number of times that the relevant 10-year period was before 2007 when the lands were converted to the Land Titles system. What he properly used the later evidence for was as circumstantial evidence of the parties’ understanding of the ownership and entitlement to the property.
[21] In particular, the appellant submits that the application judge failed to recognize that the respondents did not adduce evidence of use and possession during the relevant 10-year time-period, and therefore the appellant’s evidence of use and possession was uncontested. To the contrary, the respondents adduced a sworn declaration from the predecessor title holder regarding her use and possession of the disputed lands, evidence of their use in 2006 after the purchase, as well as post-2007 circumstantial evidence speaking to their understanding of their entitlement to the disputed land. But more to the point, even without the respondents’ evidence, the application judge reasonably concluded that the appellant’s evidence of use during the 10-year period was insufficient to meet his burden of establishing actual possession, intention to exclude, or effective exclusion.
[22] We see no error in the application judge’s approach or his findings.
Second Issue: Proprietary Estoppel
[23] The appellant also says the application judge erred on the proprietary estoppel issue by requiring representations to be express rather than by conduct. We also reject this submission which is not borne out by the reasons. The application judge found no evidence of encouragement of the appellant by the respondents and concluded that the appellant made assumptions and was mistaken regarding his rights. Those assumptions did not constitute encouragement by the respondents. The judge found no conduct by the respondents that could or did amount to a representation. There were no acts of encouragement and no evidence of detrimental reliance. These findings by the application judge demonstrate that he did not err by finding then rejecting representations by conduct.
D. Result
[24] The appeal is therefore dismissed with costs to the respondents in the agreed amount of $15,000 inclusive of disbursements and HST.
“K. Feldman J.A.”
“David M. Paciocco J.A.”
“L. Sossin J.A.”
