Peter Askew

The appellant appealed a decision dismissing his application for a declaration of ownership and exclusive use of a disputed strip of land based on adverse possession.

The strip had been enclosed by a fence between two properties from December 1992 to December 2002.

The application judge found that while actual possession was established, the appellant failed to prove the requisite intention to exclude the true owner or effective exclusion.

The Court of Appeal upheld the dismissal, finding no errors of law or principle in the application judge's reasoning and confirming that the presumption of intention to exclude arising from a fence is not mandatory and may be rebutted by the absence of corroborating evidence.

The plaintiff, Nam Dek Lee, brought a motion for summary judgment against the defendant, Jin Mo, his former lawyer, alleging negligence in a failed real estate transaction.

The plaintiff claimed Mr. Mo failed to communicate and seek instructions, leading to the termination of an agreement of purchase and sale and loss of deposit.

The court dismissed the motion for summary judgment, finding that the record did not sufficiently establish causation or the quantum of damages, particularly regarding the increase in condominium value.

The court also addressed Mr. Mo's history of delay and misleading conduct regarding an adjournment request.

This costs endorsement follows the dismissal of Luciano Sammut's application for adverse possession.

The respondent, Heather McGhee Peggs, sought substantial indemnity costs, arguing the application was commenced to interfere with her property sale.

The court found no reprehensible conduct by the applicant to warrant substantial indemnity costs and determined that Rule 49.10 did not apply to the respondent's offer to settle as the applicant's claim failed.

Considering the importance of the boundary issue, the complexity, and comparable counsel time, the court fixed costs on a partial indemnity basis at $32,267.53, inclusive of disbursements and HST, to be paid by the applicant.

The applicant sought a declaration of ownership and exclusive use over a strip of land via adverse possession.

The properties were converted to Land Titles in 2002, requiring the applicant to prove adverse possession for the continuous ten-year period from December 1992 to December 2002.

While the court found actual possession of the disputed land by the applicant's predecessors in title, it determined that the applicant failed to demonstrate the requisite intention to exclude the true owner or establish mutual or unilateral mistake, primarily due to a lack of direct evidence from predecessors in title during the relevant period.

Consequently, the application was dismissed.