COURT FILE NO.: C-1344-11 OT
DATE: 20120612
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Clarice Williamson and Marjorie Anne Mihalyfi
Plaintiffs
– and –
Perry R. Williamson
Defendant
M.J. Huberman, for the Plaintiffs
G. McAndrew, for the Defendant
HEARD: March 29, 2012
RULING ON MOTION for SUMMARY JUDGMENT
R.D. Gordon j.:
Overview
[1] Marjorie Anne Mihalyfi (“Marjorie”) and Perry R. Williamson (“Perry”) are siblings. Their mother is Clarice Williamson (“Clarice”).
[2] A long time ago, Perry built a cottage on property which was then owned by his father and which has subsequently been transferred to his mother and his sister.
[3] The parties were unable to reach agreement on the issue of ownership of the cottage property used by Perry and eventually he registered a transfer of certain lands to reflect his claim to adverse possession. When Marjorie and Clarice became aware of this, they began this court action seeking a declaration that the transfer was invalid, a finding that Perry was trespassing, and damages. Perry countered alleging that his title had been established by way of adverse possession and claiming an order vesting title to the property in his name and damages for having been denied access to his property.
[4] Perry has brought a motion for summary judgment to dismiss the claims of Marjorie and Clarice. Marjorie and Clarice ask that Perry’s motion be dismissed and that judgment be entered in their favour.
Background Facts
[5] On July 8, 1946, Henry R. Williamson, the wife of Clarice and father of Marjorie and Perry, acquired lakefront property on Lake Manitou on Manitoulin Island. The property is described in the original transfer as part of lot 9 concession 6 in the Township of Assiginack and included a right of way for purposes of ingress and egress. In 1989, this property was laid out on reference plan 31R-2249 as parts 1 and 3.
[6] Perry says that in 1962 he and his father discussed the idea of Perry building a cottage on what would now be part 3 and the lands lying immediately to the northwest of part 3. Perry says that his father gave him these lands.
[7] Over the course of 1967 and 1968, Perry began and completed construction of his cottage.
[8] Unfortunately, Henry R. Williamson died on December 10, 1969. His Will left everything to his wife Clarice but appointed Perry executor. On June 29, 1980, the property was conveyed to Clarice. Shortly thereafter, the property was conveyed to Clarice and Marjorie as Joint Tenants.
[9] In September of 1980, Clarice signed an application for consent to sever and transfer to Perry and his brother Douglas, a part of the property which coincides roughly with part 3, along with a 17 foot strip of along the eastern boundary of part 1, extending from part 3 to the road allowance in front of Lake Manitou. That application was declined by the Planning Board, and no conveyance of the land to Perry and his brother was completed.
[10] In 1991 Perry spoke to a lawyer and was advised that he was entitled to a transfer of certain property by virtue of adverse possession. The lawyer suggested that a reference plan be prepared to properly describe the land and that a transfer then be registered. This resulted in the preparation of reference plan 31R-2249 and the subsequent registration of a transfer from Perry, to himself, of part 3 on that plan.
[11] In 1958, Perry and his brother Douglas had acquired a piece of land which abuts part 3 and which is now described as Part 2 on reference plan 31R-2249. Their transfer of the property included a right of way over a travelled road which would give them access to their property, and which crossed what is now known as parts 1 and 3 on 31R-2249. When title to Part 2 was converted from the Registry system to the Land Titles System, the right of way was not carried forward because it had been registered in excess of 40 years prior. Reference Plan 31R-3733 has now been registered and part 1 thereon represents the right of way in question. In March of 2011, Perry acquired his brother’s interest in part 2, 31R-2249 and is now the sole owner thereof.
[12] The cottages owned by the Plaintiffs and Defendant are summer cottages. Perry contends that since 1968 he has had open, notorious, constant, continuous, peaceful and exclusive adverse possession of part 3 on 31R-2249, that part of part 1 on 31R-2249 laying immediately to the northwest of part 3, and the right of way over part 1, plan 31R-3733.
[13] Clarice denies the validity of Perry’s claims to title and says that the transfer he purported to register in 1991 is not valid. She denies that he has been in actual, constant or visible occupation to the exclusion of her and Clarice for the full statutory period of time, or at all.
Procedural Issues
[14] Perry’s motion is for summary judgment seeking:
(a) Dismissal of the claims of Clarice and Marjorie;
(b) an Order vesting title to part 3 on plan 31R-2249 and the lands lying immediately northwest of part 3 in his name;
(c) an Order amending the Amended Statement of Defence and Counterclaim to seek registration of the vesting order granted by Del Frate J. with respect to a right of way over part 1 on plan 31R-3733;
(d) registration of the vesting order of Del Frate J.,
(e) an Order that the Plaintiffs remove the chain barricade which blocks his access over part 1 on plan 31R-3733; and
(f) costs.
[15] His request for summary judgment on these terms presupposes his position that there is no genuine issue that requires a trial relative to them.
[16] Clarice and Marjorie have not brought their own motion for summary judgment but have asked that Perry’s motion be converted to a motion for judgment in their favour under Rule 37.13(2)(a), that Perry’s motion be dismissed, and that judgment be granted in their favour with a hearing to be scheduled to assess damages.
[17] Although there is no formal agreement between the parties to have their claims determined by way of summary judgment, all are in agreement that with respect to Perry’s claim of adverse possession there is no genuine issue requiring a trial. Both ask for a determination of that issue.
[18] Having reviewed the evidentiary record, I find it is sufficient to provide me with a full appreciation of the evidence and issues such that a positive finding of the rights and entitlements arising out of Perry’s claim to adverse possession can be made by way of summary judgment. With that determination made, the residual claims of the parties may proceed to trial, if necessary.
[19] No argument was directed towards Perry’s claim to further amend the Statement of Defence and Counterclaim. I suspect this is because Rule 26.01 provides for amendment at any stage of an action unless prejudice would result that could not be compensated for by costs or an adjournment. There has been no suggestion that prejudice would result from the requested amendment. In the circumstances, the amendment is granted.
[20] A further issue arose concerning the failure of Clarice to provide any evidence to the court. Perry’s counsel argued that an adverse inference should be drawn from this shortcoming. Counsel to Clarice and Marjorie argued that Perry had the option of conducting an examination for discovery of Clarice and, having chosen not to examine her, should not now be entitled to ask the court to assume that her evidence would be contrary to her position. Although an unfavourable inference can be drawn where a litigant fails to provide evidence on a motion, this is not so if there is an acceptable explanation for the failure. I understand that Clarice is 105 years of age and that she has resided in a nursing home for some time. The evidence of Marjorie is that although she is quite alert she is easily confused and becomes upset when this matter is discussed. Although she is a required party because her name is on title, as she said in her conversation with Perry: “I’m not up there. What do I care?” In these circumstances I find it difficult to fault either of Marjorie or Perry for not involving their mother further in this dispute. In my view there is good reason to doubt the benefit any contribution she might make to the evidence. In addition, she should not be required to take sides between her children particularly when she finds it upsetting to do so.
[21] What follows is my determination of the claims of adverse possession made by Perry.
Applicable Substantive Law
[22] Under section 4 of the Real Property Limitations Act R.S.O. 1990, Chapter L.15, a person’s right to bring an action to recover land expires 10 years after the date when the right to take such action first arose. This section effectively provides a defence to someone who has been in possession of real property for a period in excess of 10 years, and if the defence is proved, entitles such a person to ownership of the property by what has come to be known as “adverse possession”.
[23] In the relatively recent case of Shennan v. Szewczyk, 2010 ONCA 679, our Court of Appeal provided a succinct summary of the law on adverse possession when it stated as follows:
Generally, to establish adverse possession, the claimant must show:
(a) actual possession through the statutory period (here, 10 years by virtue of s. 4 of the Real Property Limitations Act, R.S.O., c. L. 15, s.4);
(b) the intention to exclude the true owner from possession or use to which the true owner intended to put the land during that period; and
(c) effective exclusion of the true owner throughout the statutory period: Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd., 2007 ONCA 413, at para 32.
[24] The element of actual possession requires acts of possession which must be open, notorious, peaceful, adverse, exclusive and continuous. If any one of these elements is missing at any time during the statutory period, the claim for possessory title will fail. Possession must be open and notorious for two reasons. First, such possession shows the claimant is using the property as an owner might, and second, it puts the true owner on notice that the statutory period has begun to run. The element of adversity means that the claimant is in possession without the permission of the owner. If the claimant acknowledges the right of the true owner then the possession is not adverse [See Teis v. Ancaster (Town of), 1997 ONCA 1688].
Analysis
[25] Perry asserts his claim of possessory title against three pieces of property. The first is part 3 on 31R-2249, the second is the land lying immediately to the northwest of part 3, and the third is the right of way now described as part 1 on 31R-3733. The evidence with respect to each piece of land differs.
Part 3 on Reference Plan 31R-2249
Actual Possession
[26] Perry states that since the construction of his cottage in 1967/68, he has had actual possession of the property now described as part 3 on plan 31R-2249. Marjorie and Clarice make two objections to this position: first, that his possession has not been adverse or exclusive and secondly, that the dimensions of part 3 do not reflect the property actually occupied by Perry.
[27] Marjorie and Clarice rely upon the Teis case as establishing that where a person’s possession of the disputed lands has always been with the consent of the lawful owner of the land, the possession does not qualify as adverse because the very nature of adverse possession is that it is without the permission of the owner. They contend that since Perry built his cottage on his father’s land with the consent of his father and without there ever having been a legal transfer of the property to him, his occupation of the property has always been with the consent of the owners and has not been adverse.
[28] In my view, a distinction must be drawn between a situation in which the owner permits possession of the property and the claimant thereafter occupies as a term of that permission, and one in which the owner purports to give the property to the claimant and the claimant thereafter occupies under the mistaken belief that the property is his. Just as the court held in Teis that the requirement for inconsistent use does not apply to a case of mutual mistake about title, the requirement of “adversity” in the sense of not having permission of the owner, cannot apply in the case of mutual mistake about title. Using the same analysis employed by the Court of Appeal in Teis, “adverse” in such circumstances would require that the claimant’s use of the land be without the permission of the true owner. If the true owner mistakenly believed the claimant owned the disputed land, there would be no requirement for his permission and consequently no permission granted.
[29] In the case before me, it is clear on the evidence that Perry’s father intended to gift property to him. Both parties thereafter conducted themselves as though the gift had been made complete. Both were under the mistaken impression that Perry became the owner of at least some property. Following the death of Perry’s father, Clarice and Marjorie behaved in a like fashion. In the circumstances, the requirement that Perry’s possession be adverse, that is, without the permission of the true owners is not required, given the mutual mistake as to his ownership.
[30] Marjorie and Clarice have also taken the position that Perry’s possession of the property has not been exclusive. In support of this position, they point to excerpts from the cross-examination of Perry in which he admitted that for the past five to seven years, Marjorie has gone from her cottage to Perry’s cottage, and he has not asked her not to do so. In response, Perry takes the position that even if this were sufficient to defeat the claim of exclusive use, it took place long after the required period of possessory title was established and is therefore of no consequence.
[31] In the Examination for Discovery of Marjorie, at page 72, the following exchange took place:
Q: Would you agree with me on this, that since he’s had his cottage in 1967 that your brother Perry had had constant and visible occupation of his cottage property?
A: Yes. Excuse me, define his cottage property.
Q: Well, where his –
A: Part 3 or part 2?
Q: Yes, part 3.
A: Yes.
Q: Okay, Up until the year 2008 you didn’t question that?
A: No. I didn’t question that he use the property, is that what you’re asking me?
Q: His ownership of the property?
A: No, he didn’t own the property. My mother and I owned the property.
Q: All right.
A: But I felt he was trying to get ownership.
Q: All right. He had possession of it all that time and you didn’t –
A: Define it.
Q: Part 3.
A: No, he did not have sole exclusive possession of all of part 3.
Q: What part did he not have possession of?
A: The part behind we used all the time to walk. As you see we parked out boat trailer back there. We drove across the corner of it to get launching boats to the lake.
Q: But other than that, he had exclusive possession of the rest of it?
A: Mm-hmm.
Q: Yes?
A: Yes.
[32] On this evidence, the issue does not appear to be whether he had exclusive possession of some property, but the extent of the property over which he exercised that possession. This ties in with the second objection of the plaintiffs, namely, the extent of the property occupied by Perry.
[33] In my view, it is not enough to simply assert there has been actual possession of real property. The party asserting the claim must set out facts upon which that possession can be determined or prove admissions by the party opposite which establish the claim.
[34] In this case I am satisfied that Perry’s evidence, in combination with Marjorie’s admissions, establishes that he had actual possession of a significant portion, but not all, of part 3 on 31R-2249. Marjorie’s evidence is that she and her family often walked over the land behind Perry’s cottage and parked their boat trailer there. In addition, she indicated that they drove across a portion of the land between the two cottages in order to launch boats.
[35] With respect to the land behind the cottage, Perry provided no evidence of the nature of his possession or the exclusivity of it, and I am left with the uncontradicted evidence of Marjorie.
[36] With respect to the land between the cottages, counsel for Perry pointed out that before the most recent addition to the cottage owned by Clarice and Marjorie there was ample room on their property to launch boats without encroaching onto part 3. He argued that it was only by virtue of the addition that they had to travel over any part of part 3 to launch their boats, and in any event, this had only been since 1991, long after Perry’s possessory claim was established. However, a review of Exhibit “S” to Perry’s affidavit shows a significant growth of trees that would have prohibited the launching of a boat in the vicinity suggested by counsel.
[37] On the evidence before me, actual possession has not been established over that portion of part 3 lying southeast of the northwest boundary of part 1 on plan 31R-3733. In addition, the northwest boundary of part three is to be relocated by 6.7 feet to the southeast, thereby leaving Perry with approximately four feet beyond his deck (a reasonable estimate of the property over which he has had actual possession for the purpose of constructing and maintaining his cottage and deck) and recognizing the continued use of the property between the cottages by Marjorie to launch boats from time to time.
Intention to Exclude the True Owner
[38] As held in Teis, the test of inconsistent use does not apply to cases of mutual mistake about ownership. As I have determined that there was a mutual mistake about ownership in this case, the test does not apply.
Effective Exclusion of the True Owner
[39] As held in Shennan v. Szewczyk, supra, the criterion of effective exclusion of the true owner throughout the 10-year period remains a requirement, even in cases of mutual mistake. In the case before me, Marjorie admitted in her discovery that Perry’s use of most of part 3 was exclusive, which by definition means that others were effectively excluded from its use. In addition, Perry built a cottage and decking on the property thereby excluding the true owners’ use of that land.
[40] Although there is an admission that for the past 5 to 7 years Marjorie had gone from her cottage to Perry’s and he has not asked her to desist, I accept the submission of counsel for Perry that this post-dates Perry’s 10 years of actual possession and is therefore of no consequence.
Conclusion
[41] I therefore conclude that Perry has established his claim of adverse possession with respect to all of part three excepting those areas earlier defined herein.
Land Lying Immediately to the Northwest of Part 3
Actual Possession
[42] The lands lying immediately to the northwest of part 3 are the lands lying between Perry’s cottage and the road reserve surrounding Lake Manitou. Although there is a wooden boardwalk linking the cottage to the waterfront, I have no other evidence of acts of possession by Perry relative to this property aside from his conclusory statement to that effect. There is no admission by Clarice or Marjorie that this property was to have been his or that his occupation of it has been exclusive.
[43] In fact, and contrary to Perry’s claim, it is to be noted that the transfer he had prepared to reflect his possessory title did not include this property. It is also to be noted that the application to the Planning Board for consent to sever the property (which, it appears, was prepared by him or at his direction) included a claim to only a 17 foot strip of this property. Perry’s contention that this property was also gifted to him by his father is belied by these two pieces of evidence.
[44] There is no mutual mistake relative to this piece of property. There is no evidence of actual possession. There is no admission by Clarice or Marjorie. Actual possession is not established.
[45] Although my determination that actual possession was not established effectively disposes of Perry’s claim to this piece of property, I will for the sake of completeness, consider Perry’s intention to exclude the true owner and whether there was effective exclusion of the true owner.
Intention to Exclude
[46] There having been no mutual mistake relative to the ownership of this property, it follows that Perry must establish that it was his intention to exclude the true owners from possession or use to which they would have intended to put the land during that period. There is no evidence before me on this point. There was no construction on this property that would exclude the plaintiff’s use of it. The property was not gated or fenced such as would indicate an intention to exclude the plaintiffs. There is no evidence of communications among the parties indicating Perry’s intention to exclude anyone’s use of the property.
[47] In the circumstances, Perry has failed to make out this element of his claim for adverse possession as well.
Effective Exclusion of the Actual Owners
[48] There is no evidence before me to suggest that Mr. Williamson, Clarice or Marjorie were actually excluded from their possession of this property. It is Perry’s obligation to prove this on a balance of probabilities. He has not done so.
Conclusion
[49] Perry has failed to establish his claim to adverse possession of this piece of property.
Part 1 on Plan 31R-3733
[50] The amendment to the Statement of Defence and Counterclaim includes a claim for an easement over part 1 on plan 31R-3733. The claim is based upon minutes of settlement which had been entered into in this action, but which for various reasons did not come to fruition. Although the amendment did not claim a prescriptive right to this easement, argument at the motion proceeded also on the basis of whether Perry had established a claim to the easement based upon prescription.
[51] Because Perry claims an easement over this piece of property, as opposed to outright ownership of it, his claim is governed by a different section of the Real Property Limitations Act, namely section 31. In plain English, that section provides that where an easement has been actually enjoyed over another’s land without interruption for at least 20 years, a claim to that easement cannot be defeated by showing that at some time prior to that 20 year period the easement did not exist. In addition, it provides that where there has been uninterrupted enjoyment for 40 years the easement can be defeated only by proof of express consent by the owner of the servient lands, in a deed or in other writing.
[52] In order to make his claim, Perry must establish the following:
(a) that his use was open, in the sense of being known to the owner;
(b) that his use has been uninterrupted for the required period; and
(c) that although his use was with the acquiescence of the owner, it was not with the consent of the owner.
[53] At paragraphs 59 and 60 of his affidavit, Perry deposed that he has used the right of way to gain access to his cottage and to the property and buildings located on part 2 and that it is his only means of road access to these properties. In addition, the application for severance approval which was signed by Clarice and submitted to the Manitoulin Planning Board acknowledged that the property then owned by Perry and Douglas (and now owned by Perry alone – being part 2 on Plan 31R-2249) and by Clarice and Marjorie, shared a private right of way running from the municipal road. The evidence establishes that the parties used their respective properties each summer of each year. Perry stated in his affidavit that the right of way contained in the original deed to part 2 on 31R-2249 coincides with what is now shown to be part 1 on plan 31R-3733. Neither Marjorie nor Clarice deposed to the contrary and neither of them has made any indication that this piece of property was not used by Perry to access part 2 or his cottage. Certainly, until the recent chaining of the road by Marjorie, it can safely be said that she and Clarice, and Mr. Williamson before them, acquiesced in Perry’s use of the right of way.
[54] Of slightly more concern is the issue of whether the right of way was with the consent of the owner. If the right of way over part 1 on 31R-3733 was included in the right of way described in the transfer of part 2 to Perry and his brother, the right of way was with the consent of the owner. Based on the evidence before me, it does not appear to have been so included. I say this because when Mr. Williamson acquired what is now known as parts 1 and 3 in 1946 his original deed included a right of way but was not made subject to any right of way or easement. Consequently, when Perry and his brother Douglas obtained their deed in 1952, the right of way acquired with it could not have been effective as to any property that had previously been conveyed to Mr. Williamson.
[55] Accordingly, I accept that Perry has used what is part 1 on 31R-3733 to get to his cottage and to part 2. I am also satisfied that the right of way has been with the acquiescence, but not the specific consent, of Marjorie, Clarice, or Mr. Williamson before them. Even if I am incorrect in this regard, clearly there is no express consent by deed or other writing, and since the use of the right of way was in existence for more than 40 years prior to it being chained, Perry’s entitlement to the continued use of the right of way has been established in any event.
The Minutes of Settlement
[56] As indicated above, the parties reached what they thought was a settlement of this action at an earlier date and minutes of settlement were completed and signed by them. The terms of settlement provided, among other things, that Perry’s cottage would be conveyed to Marjorie and Clarice in return for a cash payment. It also provided for a right of way over part 1 on 31R-3733. There subsequently arose a dispute over what the conveyance to Marjorie and Clarice was to include. The conveyance was never concluded. Although an order was issued vesting in Perry the right of way over part 1, the issuing Justice endorsed that it be held in escrow pending completion of the minutes of settlement.
[57] Neither party has sought enforcement of the Minutes of Settlement. It is apparent from Justice Del Frate’s endorsement that the grant of the right of way was to be part of the larger settlement of the litigation. As the litigation ultimately did not settle, it is not appropriate that the vesting order be used in that context. However, given that Perry has established his entitlement to the right of way, and such right of way is properly and appropriately described in that vesting order, it is appropriate that it be released from escrow and registered against title of the property owned by Clarice and Marjorie.
Conclusion
[58] Perry has established an entitlement to a right of way over part 1 on plan 31R-3733.
Summary of Findings
[59] To summarize, Perry has established his claim to adverse possession of part 3 on plan 31R-2249 excepting:
(a) That portion of part 3 lying southeast of the northwest boundary of part 1 on plan 31R-3733; and
(b) A strip of land 6.7 feet wide along the northwest boundary of part 3.
[60] The claim of Marjorie and Clarice, insofar as it requests a declaration that they are the sole and lawful owners of this property, is dismissed. Transfer #52332, by which Perry asserted ownership of the entirety of part 3 on 31R-2249, shall be removed from title. Perry shall bear the cost of having a new reference plan prepared and registered to reflect the land over which he has successfully made his claim for adverse possession. Once that plan has been prepared and registered, an order vesting title to the property shall issue.
[61] In addition, Perry has established an entitlement to a right of way over part 1 on plan 31R-3733 and the vesting order of Del Frate J., pertaining to the right of way shall be released from escrow and provided to Perry for registration.
[62] Should the parties be unable to resolve the issue of costs, it shall be dealt with by way of written submissions. The submissions of the Defendant are to be provided within 6 weeks and shall not exceed four pages. The submissions of the Plaintiffs are to be provided within 8 weeks and shall similarly be restricted to four pages.
R.D. Gordon, J
Released:
June 12, 2012
Court File No. C-1344-11 OT
Date: 20120612
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Clarice Williamson and Marjorie Anne Mihalyfi
v.
Perry R. Williamson
RULING ON MOTION
R. D. Gordon, J
Released: June 12, 2012