KINGSTON COURT FILE NO.: CV-11-522-00

DATE: 2012/07/04

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MARK CHIAPING CHEN, MARTHA ANN SHAW, RAYMOND STANLEY WLASICHUK and NAN PIARINA FRASSON
Applicants

– and –

JEFFREY ARTHUR STAFFORD
Respondent

John R. Crouchman, for the Applicants

Kenneth M. Wright, for the Respondent

HEARD: May 14 and 16, 2012

REASONS FOR decision

M. Linhares de Sousa J.

ORDERS SOUGHT BY THE PARTIES

[ 1 ] The Applicants seek the following orders:

(1) A Declaration that they are the owners in fee simple of a parcel of land identified as that Part of lot 75, Plan 1139, in the City of Kingston (Geographic Township of Pittsburgh), County of Frontenac, designated as Part 1, Reference Plan 13R-20250, being part of PIN 36332-0138;

(2) An Order vesting, the above identified parcel of land in the names of the Applicants, Mark Chiaping Chen, Martha Ann Shaw, Raymond Stanley Wlasichuk and Nan Piarina Frasson as Joint Tenants; and

(3) An Order that the above identified parcel of land be split from PIN 36332-0138 and be consolidated with PIN 36332-0115 and PIN 36332-0131.

[ 2 ] The Applicants base their claim on the law of adverse possession.

[ 3 ] The Respondent, who is the titled owner of the disputed property, contests the claim of the Applicants. He seeks the following orders:

(1) An Order dismissing the Application with costs on a substantial indemnity basis; and

(2) An Order directing the Land Registrar to amend the Parcel Register of PIN 36332-0138 by deleting Reference Plan deposited on October 7, 2011 as Plan 13R-20250.

THE PARTIES AND THE DISPUTED LANDS

[ 4 ] The Applicants and Respondents are the titled owners of abutting parcels of land at a location known as Cartwright Point. Each of their respective parcels of land fronts on the St. Lawrence River.

[ 5 ] The parcel of land owned by the Applicants is undeveloped parkland which shall be referred to in this decision as Lot 58 Block AA. The Applicants received title to Lot 58 Block AA by deed registered on July 28, 2011 as Joint Tenants. The Deed was conveyed to them by the heirs in law of Henry L. Cartwright, who was the owner of Lot 58 Block AA when he passed away in 1989. Henry L. Cartwright held title to Lot 58 Block AA since before its plan development in 1962 and dating back to the 1940’s. (See tab F of the Application Record).

[ 6 ] The heirs in law of Henry L. Cartwright and identified as the transferors on the deed to the Applicants were Katherine Elizabeth Beverley Cartwright, John Robinson Cartwright, Diana Beth Cartwright and Anne Manon Cartwright.

[ 7 ] On receiving title to Lot 58 Block AA on July 28, 2011, the Applicants were bound by a Declaration of Trust that they had entered into together with two of the transferors, John Robinson Cartwright and Katherine Elizabeth Beverley Cartwright on March 30, 2011, in relation to the purpose of the holding of Lot 58 Block AA. (Tab G of the Application Record). In the Declaration of Trust, the Applicants agreed “to hold the said lands for the benefit of all those residents of Cartwright Point residing on interior lots, or whose waterfront is not suitable for the launching of small watercraft.” These residents referred to in the Declaration of Trust, as will be explained later, were locally known as the Cartwright Point Beach Group.

[ 8 ] In August, 2010, the Respondent purchased his land, referred to in this decision as Lot 75, Plan 1139, which abuts the Applicants’ land to the west. This lot has a house in which the Respondent resides. The land was transferred to the Respondent by the owners, Anne Manon Cartwright and Diana Beth Cartwright, earlier identified as two of the heirs in law (his granddaughters) of Henry L. Cartwright (see Application Record tab 2 H). Anne Manon Cartwright and Diana Beth Cartwright were two of the four transferors who conveyed to the Applicants Lot 58 Block AA in July of 2011.

[ 9 ] Upon the purchase of his property, the Respondent commissioned a survey of Lot 75, Plan 1139, which he received shortly after the closing of his purchase. A copy of the survey can be found at tab 2 I of the Application Record. While the methodology used for the survey was at one time in dispute between the parties, it no longer is and this was acknowledged by the Applicants at the commencement of the hearing.

[ 10 ] The survey commissioned by the Respondent of Lot 75, Plan 1139 revealed that land on which was built a dock and an area of land used by the Cartwright Point Beach Group for the storage of boats and access to the water of the St. Lawrence River formed part of Lot 75, Plan 1139. This is the disputed land in this matter and will be referred to as such in this decision.

[ 11 ] The disputed land is a triangle of approximately 13 metres water frontage. A visual aid of the disputed land can be found at tab 3 A of the Application Record and at tab 2 G of the Respondent’s Application Record. Photographs of the dock and shoreline and boat storage area of the disputed land can be found at tab 3 B of the Application Record.

[ 12 ] That the Respondent is the titled owner of the disputed land is not in issue. The Applicants base their claim on the fact that they and their predecessors have had notorious, adverse and exclusive use and possession of the disputed land since the late 1950’s.

FACTUAL BACKGROUND

[ 13 ] As will be discussed later, the law of adverse possession and the test which must be met, if a party is to succeed on such a claim, has been firmly established by the jurisprudence. The success of the claim is always dependent on the particular facts of the case and the application of the legal test to the facts. The facts of how the parties came to be abutting neighbours and the history and use of their respective lands, both by themselves and by their predecessors, are therefore relevant.

[ 14 ] For the most part the parties do not dispute the facts relating to the history of the development and the use of their respective lands. The history is clearly laid out in the Affidavit of Katherine Elizabeth Beverley Cartwright, dated October 17, 2011 (see tab 2 of the Application Record).

[ 15 ] Cartwright Point is an approximate 60 acre area between CFB Kingston and the St. Lawrence River. Ms. Katherine Elizabeth Beverley Cartwright has been a resident of Cartwright Point since 1942. Her parents, Henry L. Cartwright and Vera A. Cartwright owned the property as joint tenants. The Cartwright family began to subdivide the property and enter into leases, some long term, with various families who occupied and built homes on the property over time.

[ 16 ] When the subdivision and leasing of Cartwright Point commenced in the late 1940’s, the owner, Mr. Henry L. Cartwright, set aside several small parcels at the water’s edge as reserves to enable those individuals who leased interior lots to have access to the waters of the St. Lawrence River (see tab 2 A of the Application Record). Subsequent subdivisions of the land occurred in the late 1950’s and early 1960’s which created Lot 58 Block AA as such a reserve strip of land fronting on the St. Lawrence River (see tabs 2 B, 2 C, and 2 D of the Application Record).

[ 17 ] The titled owners of Lot 58 Block AA remained Henry L. Cartwright and his wife Vera Alexandra Cartwright who by Declaration of Trust dated August 15, 1958 declared that they held Lot 58 Black AA as Joint Tenants and not as Tenants in Common, “for life with remainder to John Robinson Cartwright and Katherine Elizabeth Beverley Cartwright as tenants in common” (see tab 4 of exhibit #1).

[ 18 ] Starting in the late 1950’s several of the residents of Cartwright Point formed a group that became known locally as the Cartwright Point Beach Group. The Cartwright Point Beach Group was essentially a community Association of Cartwright Point residents that worked cooperatively and communally to take care of the roads and beach area used by the residents of Cartwright Point to access the water.

[ 19 ] With the full consent of the titled owners Henry L. Cartwright and Vera A. Cartwright, the Cartwright Point Beach Group began to use Lot 58 Block AA as a park lot. The Cartwright Point Beach Group built a large dock out from the shore in that area. Several resident families also began to keep small boats, canoes and sailboats on the grassy area on the north side of Lot 58 Block AA.

[ 20 ] As revealed by the Respondent’s survey which he commissioned upon the purchase of Lot 75, Plan 1139, the dock was built on and extended from what, through the land development which subsequently occurred, eventually became the Respondent’s land, which is the disputed land. The boats, canoes and sailboats were also left on the disputed land.

[ 21 ] At the end of the subdivisions of Cartwright Point which took place in the early 1960’s Henry L. Cartwright and Vera A. Cartwright remained the titled owners of both Lot 75, Plan 1139 and Lot 58 Block AA. Mr. and Mrs. Cartwright began to lease the two properties in the early 1960’s. Mr. Cartwright was essentially the one making the decisions with respect to these two lots.

[ 22 ] With respect to Lot 75, Plan 1139, Mr. and Mrs. Cartwright began leasing the entire lot which includes the disputed land in 1961 and collecting the rent for the property. The evidence before the Court indicates that from 1962 until 1997 the land was leased to the Taylor family. The Taylor family built the house on the land and were active users of the beach area around the dock and the dock when it was built and maintained over the years. In fact, the Taylor family was part of the Cartwright Point Beach Group and made use of the disputed land as did the other members of the Cartwright Point Beach Group. (See exhibit #1 tab 1 A and cross-examination of Katherine Cartwright).

[ 23 ] In 1997, the Taylor family assigned the lease to the Flower family. Like the Taylor family before them, the Flower family were also active users of the beach area and the dock over the years. The Flower family, too, was part of the Cartwright Point Beach Group and made use of the disputed land as did the other members of the Cartwright Point Beach Group (see exhibit #1 tab 1 A and cross-examination of Katherine Cartwright). According to the affidavit of Mr. Raymond Wlasichuk, the Flower family used the dock and the disputed land on a regular basis although they did not store their big boat on it. They also participated in the clean up and maintenance of the beach area. They also supplied the Cartwright Point Beach Group with electrical power for community purposes to use on the beach. Mrs. Flower, at one time was the secretary/treasurer of the Cartwright Point Beach Group.

[ 24 ] One or other member of the Flower family retained a lease to Lot 75, Plan 1139 until the Respondent purchased the property in August of 2011.

[ 25 ] Mrs. Vera A. Cartwright passed away in 1979. In the cross-examination of Katherine Cartwright a question was raised as to whether Ms. Katherine Cartwright and her brother John Cartwright inherited an interest in Lot 75, Plan 1139 by virtue of their mother’s will. Nonetheless, it was the belief of Ms. Katherine Cartwright that her father, Mr. Henry L. Cartwright, was the sole owner of Lot 75, Plan 1139, subject to the leases already referred to, as well as the sole owner of the Applicants’ land, Lot 58 Block AA and remained so until his death.

[ 26 ] Mr. Henry L. Cartwright passed away in 1989. His wife at the time, Mrs. Moira Cartwright, retained a life interest in Lot 75, Plan 1139 and collected the rent from the Flower family. When she died, Mr Henry L. Cartwright’s two granddaughters, Diana Beth Cartwright and Anne Manon Cartwright, as heirs in law, became the owners of Lot 75, Plan 1139. Title to the land was transferred to them as Tenants in Common in 2007 with both Katherine Cartwright and John Cartwright, among others, signing off on that transfer to them. (See exhibit #1 tab 1 D and cross-examination of Katherine Cartwright).

[ 27 ] According to the cross-examination of Katherine Cartwright neither Diana Beth Cartwright nor Anne Manon Cartwright ever came to the property but became the recipients of the rent money paid by the Flower family for their lease of the property. Three years later Diana Beth Cartwright and Anne Manon Cartwright sold Lot 75, Plan 1139 to the Respondent.

[ 28 ] Ms. Katherine Cartwright from time to time was an active user of the disputed land. The property on which her home is located has its own waterfront. While she has not been a paying member of the Cartwright Point Beach Group, she thought she might be considered an honorary one, being invited and participating in the social events of the Group. Her brother, John Cartwright, lived away from the area during his working life and hence, was not an active member of the Cartwright Point Beach Group.

[ 29 ] With respect to Lot 58 Block AA, Mr. Henry L. Cartwright also began to lease this land in the 1960’s at the request of a number of residents of “inland” lots at Cartwright Point (see exhibit #1 tab 6). As can be seen from the lease agreements that followed this request, and consented to by Mr. and Mrs. Cartwright, the leases were granted to individuals as Trustees for what had essentially become known locally as the Cartwright Point Beach Group. The last paragraph of the lease reads:

THE lessee agrees to hold this land as trustee for all the residents of the property known as Cartwright Point who desire to use this land and reserve AA as a park and picnic place provided such persons share in the expenses in connection with the upkeep of the lands hereby demised. (See exhibit #1 tab 7)

[ 30 ] From 1963 to 1975 Mr. Kenneth Gordon held the lease to Lot 58 Block AA as Trustee and Commodore of the Cartwright Point Beach Group. When Mr. Kenneth Gordon moved away, Mr. G. Kenyon Rutherford assumed the lease to Lot 58 Block AA and position of Commodore of the Cartwright Point Beach Group in 1976. There may have been other leases for Lot 58 Block AA after 1976 but there was no documentary evidence to support this conclusion. These Lessees in Trust, considering the trust conditions of their leases to Lot 58 Block AA, as described above, in certain respects, although in a different form, may be considered the predecessors of the Applicants.

[ 31 ] On June 28, 2011, the Applicants received legal title to Lot 58 Block AA as joint tenants from the transferors, Katherine Cartwright, John Cartwright, Diana Beth Cartwright and Anne Manon Cartwright. At this point in time the dispute with the Respondent had already surfaced. The Applicants hold the property in Trust, “for the benefit of all those residents of Cartwright Point residing on interior lots, or whose waterfront is not suitable for the launching of small watercraft.” (See Application Record tab 2 F and G).

[ 32 ] According to the evidence of Ms. Katherine Cartwright, the participants of the Cartwright Point Beach Group, dating back to the 1960’s and possibly earlier, contributed to the payment of taxes on Lot 58 Block AA. It was also the belief of Ms. Katherine Cartwright that subsequent to 1985, as a result of an agreement reached between her parents, Mr. and Mrs. Cartwright, and the Township of Pittsburgh, that Lot 58 Block AA came to be considered park land and not subject to municipal taxes.

[ 33 ] It was the evidence of Ms. Katherine Cartwright that since the formation of the Cartwright Point Beach Group in the late 1950’s, various members of the Group, encompassing some fifteen to twenty families, have continued to use the disputed lands in the manner described earlier to the present day. The dock was built, kept up and gradually extended into a very substantial structure. Several families continued to keep small boats, canoes and sailboats on the land.

[ 34 ] Not all of the families who had ever used the disputed lands over those years as members of the Cartwright Point Beach Group provided evidence. However, some of them did. Mr. Donald Coulter has been a resident of Cartwright Point and also a member of the Cartwright Point Beach Group since 1970. Mr. Coulter and his family have been using the dock and the beach area of the disputed lands. He kept various boats on the land. Mr. Coulter has held the position of Commodore for the Cartwright Point Beach Group. Mr. Coulter, has also acted as “dock master”, since 1988, for the Cartwright Point Beach Group which includes maintaining and looking after the dock. Mr. Coulter’s evidence was that starting in 1990 the members of the Cartwright Point Beach Group carried out considerable work in rebuilding the dock cribs and decking. He provided some evidence of the construction costs incurred by the Cartwright Point Beach Group over the years in the construction and maintenance of the dock (see Application Record tab #4 and exhibit #1 tab 3).

[ 35 ] Mr. Wlasichuk also provided evidence as a long time resident of Cartwright Point since 1997. He has held the position of vice-chair of the Cartwright Point Beach Group and is currently the Cartwright Point Beach Group’s chair (“chair”, “president” and “commodore”, all interchangeable names for the same position). Mr. Wlasichuk described his responsibilities as being that of authorizing and allocating the storage and launching areas for the various boats belonging to the Cartwright Point Beach Group’s families, ensuring that the lands in use by the Cartwright Point Beach Group were maintained, groomed and kept clear of hazards. He, himself stored over the years and continues to store his own boats on the disputed land. He constructed a movable deck for the purpose of community boat storage and launching on the disputed land. He also installed a boat launching winch for the Cartwright Point Beach Group’s use.

[ 36 ] Clearly, evidence concerning every user of the disputed land since the 1950’s, or even for 10 years prior to Mr. Stafford’s purchase of the disputed land in August of 2010, has not been presented on the Application. Nonetheless, from all of the evidence which has been provided, it is fair to conclude, and I so find, the following facts. That since the 1950’s up to the time of Mr. Stafford’s purchase of the disputed land, various and numerous members of the Cartwright Point Beach Group, at times inclusive of the owners and those in legal possession of the disputed land, have been using the disputed land as described by the three affiants for the Applicants. It is as owners of the land set aside for the use of the Cartwright Point Beach Group and as Trustees for the Cartwright Point Beach Group that the Applicants are making their claim.

[ 37 ] Furthermore, from the evidence of the numerous affiants in this case and their cross-examination, I also find that, when Mr. and Mrs Cartwright began to carry out the subdivisions of their land and so generously set aside reserve lands for the use of the land locked residents on Cartwright Point and when the Cartwright Point Beach Group members began to use the disputed land, no one knew the location of the property line between Lot 75, Plan 1139 and Lot 58 Block AA. As Mr. Wlasichuk described it, “… there were no survey marks… It’s a brush area and beach area and one piece of land sort of blends into the other.” (See exhibit #1, tab 3, page 13). Choice of location and usage seemed almost to be dictated by the terrain of the land (see Application Record tab 3 B).

[ 38 ] According to Ms. Katherine Cartwright, no one really cared where the boundaries were. The disputed land was openly used by the members of the Cartwright Point Beach Group as described. The dock was built, expanded and maintained by the Cartwright Point Beach Group as described. There was no discussion of where this took place and no one’s permission or consent was sought by the Cartwright Point Beach Group for the usage of the disputed land. No one ever objected to the usage of the disputed land by the Cartwright Point Beach Group.

[ 39 ] The evidence further revealed that it was expected members of the Cartwright Point Beach Group would pay annual dues ($50.00) per year as their required dues for being a member. Mrs. Flower, for instance, paid her dues according to Mr. Wlasichuk. Nonetheless, none of the affiants could recall anyone ever being refused membership to the Cartwright Point Beach Group, payment or no payment of dues. Nor could they recall anyone ever being excluded from using the disputed land, even visitors.

THE JURISPRUDENCE

[ 40 ] Lot 75, Plan 1139 was converted from Registry to Land Titles on June 21, 2010. While section 51 of the Land Titles Act, prohibits claims of adverse possession arising after the registration of a property in Land Titles, any claims to adverse possession arising prior to its registration may, of course, be advanced (s. 44(1) 3 of the Land Titles Act, R.S.O. 1990, c. L.5). I agree with counsel for the Respondent when he states in his Factum that in order for the Applicants to succeed in their claim they must establish on the balance of probabilities that the law of adverse possession applies to the disputed land, at a minimum for the period of time running from June 20, 2000 to June 20, 2010. The position of the Applicants is that the usage of the disputed land by the Cartwright Point Beach Group, which establishes their adverse possession, dates back to the 1950’s.

[ 41 ] On the whole counsel agreed as to the governing legal test concerning adverse possession, both as it is now codified in ss. 4 and 15 of the Real Property Limitations Act, R.S.O 1990, c. L 15 and as repeatedly established in the case law. The Ontario Court of Appeal in Teis v. Ancaster (Town) (1997), 1997 1688 (ON CA), 35 O.R. (3d) 216 confirmed that the legal test for adverse possession was very early in time set out by Wells J. in Pflug v. Collins, 1951 80 (ON SC), [1952] O.R. 519 (H.C.) and confirmed by Wilson J. A. in her majority judgment in Keefer v. Arillotta (1976), 1976 571 (ON CA), 13 O.R. (2d) 680 (C.A.).

[ 42 ] In Teis v. Ancaster (Town), supra, the Ontario Court of Appeal once again reiterated the test as follows. A party claiming a possessory title must establish all three of the following requirements, failing which its claim cannot succeed:

(a) Actual possession for the statutory period by himself and those through whom he claims;

(b) That such possession was with the intention of excluding from possession the owner or persons entitled to possession; and

(c) Discontinuance of possession for the statutory period by the owner and all other, if any entitled to possession.

[ 43 ] In Teis v. Ancaster (Town), supra, the Ontario Court of Appeal proceeded, in its decision, to examine the meaning of the three requirements and based on the facts before it provided some clarity and precision to the meaning of the second requirement in the case of mistaken belief as to title to a disputed land.

[ 44 ] With respect to the first requirement, namely, actual possession for the statutory period, the Ontario Court of Appeal examined the question of the nature of the requisite “actual possession” at paragraph 13. The Court declared that the acts of possession, found as a fact, must be “open, notorious, peaceful, adverse, exclusive, actual and continuous”.

[ 45 ] The words, “open, notorious, peaceful” imply the ordinary and usual meaning of those words as do the words “exclusive, actual and continuous”. The Ontario Court of Appeal explains the reason for this at para. 14 of its decision in the following words:

Possession must be open and notorious, not clandestine, for two reasons. First, open possession shows that the claimant is using the property as an owner might. Second, open possession puts the true owner on notice that the statutory period has begun to run. Because the doctrine of adverse possession is based on the true owner’s failure to take action within the limitation period, time should not run unless the delay can fairly be held against the owner.

[ 46 ] The next element, that of adversity, is described by the Ontario Court of Appeal at para.16 as meaning that the claimant is in possession without the permission of the owner. This is because if the claimant acknowledges the right of the true owner then the possession is not adverse.

[ 47 ] With respect to the second requirement, possession with the intention of excluding from possession the owner of the disputed land or inconsistent use, as the Ontario Court of Appeal points out in Teis v. Ancaster (Town), supra, this part of the test appears to have originated with the English case of Leigh v. Jack (1879), 5 Ex. D. 264 (Eng. C. A.) and imported into Ontario case law by Wilson J. A. in her judgment in Keefer v. Arillotta, supra, by the following words:

The use an owner wants to make of his property may be a limited use and an intermittent or sporadic use. A possessory title cannot, however, be acquired against him by depriving him of uses of his property that he never intended or desired to make of it. The animus possidendi which a person claiming a possessory title must have is an intention to exclude the owner from such uses as the owner wants to make of his property. (Para. 21 of Teis v. Ancaster (Town), supra.

[ 48 ] Wilson J. A. reiterated this principle in her subsequent decision of Fletcher v. Storoschuk (1981), 1981 1724 (ON CA), 35 O.R. (2d) 722 (C.A.). Blair J. A., in his decision of Masidon Investments Ltd. v. Ham (1984), 1984 1877 (ON CA), 45 O.R. (2d) 563 (C.A.) connected the notion of “adversity” in the phrase adverse possession with the second requirement or test of inconsistent use with the following words:

… adverse possession is established where the claimant’s use of the land is inconsistent with the owner’s enjoyment of the soil for the purposes for which he intended to use it… (Para. 22 of Teis v. Ancaster (Town), supra).

[ 49 ] The facts of the case Teis v. Ancaster (Town), supra, revealed that Mr. Teis had farmed a piece of land for about 20 years before the Town discovered that the land belonged to the Town. Between the years 1969 and 1989 both the Town and Mr. Teis mistakenly believed that Mr. Teis owned the disputed land which he was actively farming.

[ 50 ] In coming to its final decision in this case, the Ontario Court of Appeal concluded that there was justification in law, to not apply the second requirement of the test of adverse possession, namely, the test of inconsistent use, to cases of mutual mistake. At paras. 23, 24 and 25 of its judgment, it found, firstly, that on the facts of all of the cases which applied the test of inconsistent use, the person claiming a possessory title had knowingly trespassed on the owner’s land and used the land knowing that it belonged to someone else. Secondly, it found that the test of inconsistent use focuses on the intention of the owner or paper title holder and not the intention of the claimant which could cause evidentiary difficulties. Thirdly, it found that if an owner of property genuinely believed that the claimant owned the land then every possession claim would necessarily fail because such an owner could not have had an intended use for property which he believed belonged to someone else. The Court concluded at paras. 25, and 27:

Therefore, if a claimant were required to show inconsistent use when both parties were honestly mistaken about the true boundary line, the claimant could never make out a case of adverse possession. Such a result would offend established jurisprudence, logic and sound policy…

It makes no sense to apply the test of inconsistent use when both the paper title holder and the claimant are mistaken about their respective rights. The application of the test would defeat adverse possession claims in case of mutual mistake, yet permit such claims to succeed in cases of knowing trespass. Thus applied, the test would reward the deliberate squatter and punish the innocent trespasser. Policy considerations support a contrary conclusion. The law should protect good faith reliance on boundary errors or at least the settled expectations of innocent adverse possessors who have acted on the assumption that their occupation will not be disturbed. Conversely, the law has always been less generous when a knowing trespasser seeks its aid to dispossess the rightful owner. …

[ 51 ] Finally, at para. 29 the Court of Appeal found with respect to the part of the test requiring the need to show “adversity” of possession, in cases like the one before it, a case of mutual mistaken belief as to ownership, “adversity simply means being in possession without the authorization of the paper title holder.” The Court of Appeal in Teis v. Ancaster (Town), supra, found that the test of inconsistent use did not apply to the facts of the case and upheld the trial judge’s decision granting Mr. Teis adverse possession to the disputed land.

[ 52 ] This appellate development in the law of adverse possession was more recently examined in the case of Cruickshank v. Hutchinson (2009), 79 R.P.R. (4th) 144 (S.C.J.). The facts of that case showed that Cruickshank and Hutchinson were owners of abutting lands. The Cruickshanks had owned their land for some 45 years and had used it for summer seasonal purposes. Hutchinson had purchased his land in 1996 and lived there all year round.

[ 53 ] The disputed land was a strip of land belonging to Hutchinson but whose access to it was virtually impossible because of the growth of weeds and vegetation. At the same time the Cruickshank family for 45 years had gardened and maintained that strip of land and had built an outhouse on it without protest from Hutchinson’s predecessors. The Cruickshanks advanced a claim for adverse possession because of mutually held mistake or ignorance as to who holds rightful ownership over the tract of land.

[ 54 ] Following the test established by the Ontario Court of Appeal in Teis v. Ancaster (Town), supra, Turnbull J. found that the case law described “two scenarios where a claim for adverse possession can be successfully sustained”, one where title is asserted as a result of their trespass, the “inconsistent use” cases, and the other where title is asserted as a result “of mutually held mistake” or ignorance as to who holds rightful ownership” (para. 52).

[ 55 ] Turnbull J. applied the test of adverse possession found in Teis v. Ancaster (Town), supra and at paras. 54 to 57, inclusive Turnbull J. states as follows:

54 On the first branch of the analysis, the nature of the actual possession required to satisfy a claim for adverse possession must be "open, notorious, constant, continuous, adverse, exclusive of the right of the true owner". Masidon Investments Ltd. v. Ham (1984), 1984 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), 563 at p. 564. Furthermore, the use must be as of right, that is, possession without the permission of the owner. See Teis, supra at paras. 13 - 18.

55 On the second branch of the analysis, it has been suggested that in order to establish an intention to exclude the true owner from possession of the disputed property, the claimant must satisfy the Court that his or her use was inconsistent with that of the owner. As will be seen below, this "test" has little if any applicability in cases like the one before this Court.

56 On the third branch of the analysis, the Court will look at the conduct of the true owner to see if he or she has been out of possession. Typically, this may be inferred where the true owner believes that the disputed property belongs to the claimant. See for example Mueller v. Lee, [2007] O.J. No. 2543 at paras. 24-26.

57 From a review of the case law so helpfully provided to me by counsel, it is clear that the circumstances of each case must be carefully analyzed in applying the law to the situation.

[ 56 ] With respect to the second branch of the analysis, the test of inconsistent use, Turnbull J. concluded that the facts before him involved a case of mutually held mistake as to the true boundaries and hence this part of the test had little applicability. Because the Cruickshanks believed they owned the land then it was open to him to infer that they occupied the lands with the intention of excluding all others, including the owners (para. 72). Turnbull J. ordered that title be vested in the Cruickshanks.

[ 57 ] The last case which should be mentioned because the facts, I believe, are relevant to the facts of this case is the Ontario Court of Appeal decision in Shennan v. Szewczyk, 2010 ONCA 679, on appeal from the trial decision of Thompson J. [2009] O.J. No. 2805 (S.C.). The facts of this case can be succinctly recounted as follows. The disputed land in question was a three foot strip of land between two abutting lands belonging to the parties. Both lands had at one time belonged to the Stull family who used both lots as joint vacation property. The Stull family roamed across the two lots without any consideration for or thought given to where the boundary lines between the two lots were.

[ 58 ] The Shennan family ended up acquiring title to one of the lots in 1988. During the time that the Shennans and the Stulls were neighbours, the two families both used and maintained the disputed strip of land without any attempted exclusion by the other family and they had a good relationship.

[ 59 ] As described by the trial judge at para. 7 of the appellate decision:

This situation is about neighbours who knew generally where lot 15 ended and lot 16 started, but none of them were particularly concerned about delineating where that location was. It simply wasn’t important to know where the exact boundary was because no one cared. The boundary didn’t define the relationship between the neighbours.

[ 60 ] The Szewczyk family eventually acquired the other lot from the Stull family in 1997. For some time both the Szewczyk and the Shennan family continued to use the disputed land, upon which was located a three-tiered area of sand and grass topped with a raised flowerbed and a shrubbery structure surrounded by a concrete block retaining wall, as their predecessors had done before them. Relations between the two families became strained. Eventually, the Szewczyk family constructed a new retaining wall and erected an old mail box, planted extensively in the flowerbed and erected a fence over a portion of the disputed land. A survey confirmed that the disputed land was on the Shennan property.

[ 61 ] Mr. Szewczyk advanced a claim for adverse possession based on mutual mistake as to the location of the true boundary. He was refused at trial. On appeal, the Court affirmed the trial judge’s finding that this was not a case of mutual mistake. The finding was that Mr. Szewczyk attempted to “create facts” to support his claim and that he knew where the property line was. As a result the Court of Appeal concluded that the trial judge did not err in applying the test of “inconsistent use” to the facts of the case, which test Mr. Szewczyk could not meet for the requisite time (10 years from 1997 when Mr. Szewczyk acquired the title to his land). There was no evidence that the Shennans or their predecessors in title, the true owners of the paper title had been excluded from the use of the disputed land.

[ 62 ] With respect to the third requirement, the words taken in their ordinary meaning are clear. It must be shown that by the adverse possession of the claimant, as defined in the jurisprudence, the owner and all others, if any, entitled to possession have discontinued their possession of the disputed land for the statutory period of 10 years.

POSITION OF THE PARTIES

[ 63 ] The Applicants take the position that they hold Lot 58 Block AA as Trustee for all the residents of Cartwright Point without access to the St. Lawrence River, so that those residents may enjoy the usage and possession of the land to make up for that lack of access to the St. Lawrence River directly from their own land. The residents are known locally as the Cartwright Point Beach Group.

[ 64 ] The Applicants maintain that the various and sundry members of the Cartwright Point Beach Group began to use and possess the disputed land in the way described earlier which included the building of a dock, the establishment and use of a boat storage area, the grooming of hiking trails, and a picnic, beach and park area. The Cartwright Point Beach Group was somewhat organized, had a Commodore and dock master with certain responsibilities for the maintenance and organization of the land. Furthermore, dues were collected from the members and expenses shared.

[ 65 ] According to the Applicants that usage and possession has gone on, uninterrupted, by the various and sundry members of the Cartwright Point Beach Group since the 1950’s and continues to this day, thereby meeting the 10 year statutory period, until Mr. Stafford put a stop to it once he acquired title to Lot 75, Plan 1139 and received information about the security of the dock and its insurability.

[ 66 ] Unbeknownst to anyone, neither the owners of Lot 75, Plan 1139 nor the owners of Lot 58 Block AA, no one was aware that the usage and possession of the Cartwright Point Beach Group was occurring on Lot 75, Plan 1139 rather than on Lot 58 Block AA. The Applicants take the position that this was as a result of a mutual mistake as to where the property line between the two lots lay.

[ 67 ] The Applicants rely on the current usage and possession made of the disputed land by the Cartwright Point Beach Group, and on the usage and possession of the predecessors of the current members of the Cartwright Point Beach Group, which has been going on continuously since the 1950’s, as sufficiently long time to meet the statutory time period of 10 years, required to make their claim. At a minimum, the Applicants’ claim, their possession of the disputed land has been going on since at least 1962, when Lot 75, Plan 1139 came into being. Consequently, the Applicants claim, the usage and possession, on which they rely, has been occurring continuously for much longer than 10 years, even though their own title, in Trust, to Lot 58 Block AA is a relatively short one. Consequently, the Applicants argue, they have met the mandatory time period of 10 years continuous possession of the disputed land as required by the test.

[ 68 ] The Applicants argue that the usage and possession of the disputed land by the Cartwright Point Beach Group also meets the balance of the first requirement of the test for adverse possession. The Applicants maintain that the usage and possession of the disputed land by the Cartwright Point Beach Group was never clandestine. The nature of the actual possession was “notorious”. The existence of the Cartwright Point Beach Group and its possession of the disputed land were open and known by all in the locale and the community at Cartwright Point including the owners. The Cartwright Point Beach Group’s possession of the disputed land was “peaceful”. There was no evidence of disputes within the Cartwright Point Beach Group nor with other individuals, including the owners, about the possession and use of the land by the Cartwright Point Beach Group.

[ 69 ] According to the Applicants this notoriety was sufficient to put the true owner on notice of the possession of the disputed land by the Cartwright Point Beach Group.

[ 70 ] The Applicants take the position that the Cartwright Point Beach Group possessed the disputed land as a result of a mutual mistake with respect to location of the boundaries between the two lots. While given permission, and eventually title in Trust, from the Cartwright family to use and possess Lot 58 Block AA for the purposes described, through the mutual mistake as to where the property line between Lot 58 Block AA and Lot 75, Plan 1139 lay, the Cartwright Point Beach Group used and possessed the disputed land. Consequently, the Applicants argue, that they also meet the test of “adversity”.

[ 71 ] The Applicants point out that the Ontario Court of Appeal, in its decision in Teis v. Ancaster (Town), supra, found that in cases of mutual mistake as to who is the legal owner of a property, the meaning of “adverse possession” simply means possession without the permission of the paper title holder which is the case here. According to the Applicants there was no evidence of any authorization received by the Cartwright Point Beach Group to use and possess the land for its purposes from any of the Lessees of Lot 75, Plan 1139, namely, the Taylor or Flower families over the years.

[ 72 ] The Applicants also take the position that the element of exclusivity of their possession of the disputed land has also been met. The Applicants argue that the management and members of the Cartwright Point Beach Group essentially took control of the disputed lands. The Cartwright Point Beach Group decided the construction and maintenance of the dock, allotted the boat storage area and collected the dues from the members of the Group for the maintenance and upkeep of the disputed land. They carried out a general surveillance of the users of the land although the evidence indicated that no one, member or non-member, ever appears to have been told they could not use or be on the disputed land.

[ 73 ] With respect to the second requirement, that possession of the claimant must be with the intention of excluding from possession the owner or persons entitled to the possession of the disputed land, otherwise known as “inconsistent use”, the Applicants argue that their possession of the disputed land also meets this test by inference. The Applicants argue that because this is a case of mutual mistake, the threshold of this test is a low and fluid one. As was concluded in the decision of Teis v. Ancaster (Town), supra, the test of “inconsistent use” has no applicability to cases of mutual mistake for the reasons given in the case. In Cruickshank v. Hutchinson, supra, because it was a case of mutual mistake as to the location of boundaries of two abutting land, the Court found that it could infer that the Applicant, based on his mistaken belief as to ownership, occupied the lands with the intention of excluding all others, including the owners.

[ 74 ] Finally, the Applicants argue that their claim also meets the last prong of the legal test of adverse possession, namely, that the legal possession of the owner and all others, if any, entitled to possession, is discontinued for the statutory period. The Applicants claim that by the Cartwright Point Beach Group essentially possessing and controlling the use of the disputed land, since at least 1962 at a minimum, the possession of the owner or anyone else entitled to legal possession was necessarily discontinued. The Applicants acknowledged that the Lessees of Lot 75, Plan 1139, the Taylor and the Flower families used the disputed land but they did so as members of the Cartwright Point Beach Group. The legal titled owners of Lot 75, Plan 1139 after the passing of Mr. Henry Cartwright in 1989 and the subsequent passing of Ms. Moira Cartwright, Anne Manon Cartwright and Diana Beth Cartwright, have not been on the disputed land but received the rent for the Lease on the property until they sold the property to Mr. Stafford.

[ 75 ] The Respondent takes the position that the Applicants have not met the three pronged test required to succeed on their claim for adverse possession of the disputed land. The Respondent further argues that the Applicants can never meet the test of adverse possession because the ownership to the two abutting lands in question resided in one and the same owner, namely the Cartwright family members. One cannot make a claim to adverse possession of one’s own land.

[ 76 ] Firstly, the Respondent argues that all three parts of the test must be met because this is not a case of mutual mistake as to where the boundaries between the abutting lands lay. Rather it is a case of no one knowing and no one caring where the boundary lay and no one giving any thought to the question of where the boundary lay. Because no one gave any thought to the question of a boundary then it cannot be said that one is mistaken about something to which no thought is given. It was just not important in the context of the Cartwright Point land.

[ 77 ] According to the Respondent, this was as a result of the fact that both lands for the longest time essentially belonged to the same family, namely the Cartwright family, who owned both Lot 58 Block AA and Lot 75, Plan1139 until the latest transfers of those properties. Mr. and Mrs. Cartwright were generous to the residents of Cartwright Point by establishing Lot 58 Block AA as a reserve land for access to the waters of the St. Lawrence. The residents, in return, through the formation of the Cartwright Point Beach Group, worked cooperatively with all of the residents, including the various members of the Cartwright family who dealt with the lands, to maintain and develop and cover the expenses of use and possession the Cartwright Point Beach Group made of the disputed land. In that context nobody was concerned about where exactly the property line was because it was not important until the dispute arose with Mr. Stafford.

[ 78 ] With respect to the first requirement of actual possession for the statutory time period, the Respondent argues that the possession of the disputed land by the Applicants cannot be found, on the evidence, to be “adverse” nor “exclusive”.

[ 79 ] In support of this the Respondent relies on the evidence of Katherine Cartwright, Donald Coulter and Mr. Stanley Wlasichuk. All three of the affiants provided evidence to show that the use and possession of the disputed land by the Cartwright Point Beach Group was with the consent of the owners of the property, firstly by the members of the Cartwright family and secondly, by the various leases of Lot 75, Plan 1139, to the Taylor and the Flower families. In fact from time to time Katherine Cartwright used the disputed land and joined in on the events of the Group as an honorary member. The Taylor and the Flower families also used the disputed land and assisted the Cartwright Point Beach Group in its activities such as providing electrical power to the beach area of the disputed land.

[ 80 ] Nor was the possession and use by the Cartwright Point Beach Group of the disputed land exclusive. Neither Katherine Cartwright, Donald Coulter nor Stanley Wlasichuk could ever recall anyone, including the owners or Lessees, being excluded from the disputed land. Anyone could be a member of the Cartwright Point Beach Group. Even Mr. Stafford was not excluded from being on the disputed land.

[ 81 ] For the same reasons, the Respondent argues, that the Applicants cannot establish on the evidence that the second part of the legal test to adverse possession has been met, namely, that the Applicants possessed the disputed property with the intention of excluding from possession the owners and all others, if any, entitled to possession (“inconsistent use”).

[ 82 ] The Respondent points out that no member of the Cartwright family was ever excluded from being on the disputed land or from exercising their intended enjoyment of the disputed land. The disputed land was part of Lot 75, Plan 1139 which was leased for long terms to the Taylor family and subsequently to the Flower family. Various members of the Cartwright family received the rents for these leases. The leases do not appear to have been interfered with. The Taylor and Flower families continued to use the disputed land.

[ 83 ] The Respondent submits that this same evidence leads to the failure, on the part of the Applicants, to meet the third prong of the legal test for adverse possession which is the discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession. At no time was the possession of the Cartwright family, the Taylor family and the Flower family ever discontinued by the possession and use made of the disputed land by the Cartwright Point Beach Group. In fact, the evidence showed that the opposite was true. All three of those families continued to use the disputed land in the same way the Cartwright Point Beach Group did.

DISPOSITION

[ 84 ] After examining all of the evidence and hearing all of the arguments presented by counsel for the parties, I come to the conclusion that the facts of this case do indeed present a case of mutual mistake as to where the boundary between the two abutting lands lay. While operating on the consent of the owner of one of the lands, namely Lot 58 Block AA, to use that land for the purposes described by the various affiants, the Cartwright Point Beach Group mistakenly began using a part of the other land, namely, Lot 75, Plan 1139, the disputed land, owned by the same owner of Lot 58 Block AA. The mistake was made in good faith and was as a result of the physical terrain adjoining the two lands.

[ 85 ] I also conclude that what further contributed to the mistake was the context and circumstances of how the Cartwright Point Beach Group came to be formed and operate on the disputed lands. The nature of their possession of the disputed land is also relevant. Like in the case of Shennan v. Szewczyk, supra, at para.7, during the era of the Shennan and Stull ownerships, prior to Mr. Szewczyk becoming the owner of one of the lands, people generally knew where one lot ended and the other started “but no one was particularly concerned about delineating where that location was. It simply wasn’t important to know where the exact boundary was because no one cared. The boundary didn’t define the relationship between the neighbours.” This was especially the case when both owners, including the Lessees, and users of the disputed lands were very much a part of the general activities of the Cartwright Point Beach Group over the years.

[ 86 ] There is no question on the evidence that the possession of the disputed land by the Cartwright Point Beach Group and their activities was “open, notorious” and “peaceful”. This is so by the nature of the possession and the activities. The building of the dock, the storage of the boats, the grooming of the trails, the use of the park and beach area, the collection of dues and the general supervision of the area were not clandestine activities. Furthermore, they were community activities, participated in by a number of the various and sundry Cartwright Point residents. Documentary recognition of these activity was also noted in the Leases –Trust Agreements for Lot 58 Block AA between the Cartwright family and the Trustees for the Cartwright Point Beach Group (Mr. Gordon then followed by Mr. Rutherford and more recently the title conveyed to the Applicants).

[ 87 ] In addition, based on the evidence as a whole, I am prepared to find, on the balance of probabilities, that the possession of the disputed lands by the Cartwright Point Beach Group was actual and continuous for the statutory period. It is acknowledged that there are time gaps in the evidence about the activities and possession of the disputed land by the Cartwright Point Beach Group. Nevertheless, from the evidence which has been presented, especially the affidavit of Katherine Cartwright (Application Record tab 2) which provided much of the history of Cartwright Point, it is probable that the Cartwright Point Beach Group has continuously used and possessed the disputed land since Lot 75, Plan 1139 was created in 1962 and even before that time. There was no evidence to indicate that the usage and possession of the Cartwright Point Beach Group of the disputed land was ever interrupted while the Cartwright family members owned both lands.

[ 88 ] Finally, the Applicants themselves, received title to Lot 58 Block AA relatively recently, and certainly after this dispute arose. With respect to some of the Applicants, as counsel for the Respondent has pointed out, there is no evidence that they used or possessed the disputed land. Nevertheless, it is evident that their claim is not in their personal capacity but as title holders to Lot 58 Block AA as Trustees for the current members of the Cartwright Point Beach Group and their predecessors. They may rely on the use and possession of their predecessors to make their claim.

[ 89 ] What becomes problematic on the evidence for the Applicants is the requirement of the legal test for adverse possession to prove that their usage and possession of the disputed land was “adverse” and “exclusive”. In fact, the evidence is to the contrary. There was no evidence that the members of the Cartwright Point Beach Group, even the leadership, ever excluded anyone from being or using the disputed land. It was open to the use of all, whether they paid any dues or not, whether they resided on Cartwright Point or were just visiting as some people from the military base did from time to time.

[ 90 ] More importantly, the legal owners of the disputed land, the Cartwright family members, the Lessees of Lot 75, Plan 1139 on which was located the disputed land, the Taylor and Flower families, were also never excluded from the disputed lands. In fact, the evidence indicated that Katherine Cartwright used the disputed land from time to time, as did members of the Taylor and Flower families who actively used the disputed land. To argue that these owners did so as members of the Cartwright Point Beach Group and not as owners of the land, as counsel for the Applicants has argued, is to artificially compartmentalize the dynamics of the relationships and interactions of the Cartwright Point residents in their dealings with the disputed lands. I was not at all persuaded by that argument.

[ 91 ] In cases of mutual mistake, Teis v. Ancaster (Town), supra has ruled that “adverse” simply means that the claimant is in possession without the permission of the owner. The generosity and permission of the Cartwright family extended to the Cartwright Point Beach Group was for the use and possession of Lot 58 Block AA and not any part of Lot 75, Plan 1139. Strictly speaking, therefore, the Cartwright Point Beach Group used and possessed the disputed land without the permission of the owner as a result of the mistake. In the unique circumstances of this case, however, that kind of strict interpretation becomes untenable because the owners of both properties were one and the same, be they members of the Cartwright family or the Lessees of the respective properties who participated in the usage and possession of the Cartwright Point Beach Group. To conclude that they were in possession of the disputed land without the permission of the owners when they themselves were the owners or legal title holders does not make much sense. Can a claimant have possession of a disputed land without permission of the owner, when the claimant has legal title to the disputed land? Can a claimant have adverse possession of a property of which the claimant is already a legal title holder, be they a titled owner or a titled Lessee of the property? I think not. It defies the whole purpose of the law of adverse possession.

[ 92 ] Assuming that this is a case of mutual mistake then the second prong of the test of adverse possession, namely, inconsistent use is not applicable. Put another way, because of the fact of mutual mistake it is open to the Court to reasonably infer from the circumstances that the claimants intended to exclude the owners of the disputed land from possession of the disputed land. This was the conclusion reached by the Court in the cases of Teis v. Ancaster (Town), supra and in the case of Cruickshank v. Hutchinson, supra.

[ 93 ] It is not, however, an inevitable inference to be made by a Court in all cases. In the circumstances of this case, the evidence presented is against making such an inference despite the presence of mutual mistake. As already referred to, the titled owners of the disputed land were not excluded from possession of the property. Nor can it be inferred from any of the evidence concerning the use and possession made of the disputed land by the Cartwright Point Beach Group that the intention of the Cartwright Point Beach Group was to exclude from possession the owner or persons entitled to possession. In fact, members of the Cartwright family and the Lessees of the disputed property participated in the possession and use of the disputed land with other members of the Cartwright Point Beach Group. The Leases granted to the Taylor families and subsequently to the Flower families by members of the Cartwright family, and the collection of the rent, owed on those leases were not interfered with by the use and possession exercised by the Cartwright Point Beach Group to the disputed lands.

[ 94 ] For the same reasons enunciated above, I also find that the Applicants cannot meet the third prong of the legal test of adverse possession, namely, a discontinuance of possession for the statutory period by the owner or all others, if any, entitled to possession. That did not happen on the facts of this case. At the risk of being repetitive, the evidence showed that for the statutory period in question, the owners and the titled Lessees of the disputed property continued to possess and use the property as did the other members of the Cartwright Point Beach Group. I cannot find that their possession was ever discontinued for the statutory period.

[ 95 ] For all of these reasons the Applicants’ claim to adverse possession to the disputed lands must fail. On the evidence, the Applicants have not been able to meet the requirements of the legal test in support of their claim.

ORDER

[ 96 ] There will therefore be an order dismissing the Application. There will also be an order directing the Land Registrar to amend the Parcel Register of PIN 36332-0138 by deleting Reference Plan deposited on October 7, 2011, as Plan 13R-20250.

COSTS

[ 97 ] Both parties have submitted their sealed Bill of Costs which I have now examined. Being the successful party, the Respondent is entitled to his costs. I can find no evidence as to why the Respondent should be deprived of his costs. Both parties in this matter have worked cooperatively in this matter to make it an efficient litigation. The dispute between the parties essentially came down to a question of law and its application to the unique facts of this case. Consequently, this is a case for costs at the partial indemnity level.

[ 98 ] Given Mr. Wright’s experience, his hourly rate is reasonable. However, some items of Mr. Wright’s bill of costs, in my view, cannot be reasonably accepted. Given Mr. Wright’s experience, his consultation with two more senior counsel and one more junior counsel is unwarranted in a case of this kind. It is certainly not an expense which the Applicants could reasonably have anticipated paying for.

[ 99 ] I fix the Respondent’s costs on a partial indemnity basis at $20,000. Disbursements are determined to be $2,394.82. It is ordered that the fixed costs and disbursements are to be paid by the Applicants to the Respondent.

M. Linhares de Sousa J.

Released: July 4, 2012