SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-458713 &
CV-13-471302

DATE: 20130924

RE: Morgan Reiner and Leslie Reiner (Applicants and Respondents by Counter-Application) and Leslie Paul Truxa and Lydia Lilianne Sani (Respondents and Applicants by Counter-Application)

BEFORE: Frank J.

COUNSEL: Pavel Neschadim, for the Applicants and Respondents by Counter-Application

Ron Craigen, for the Respondents and Applicants by Counter-Application

HEARD: September 9, 2013

ENDORSEMENT

[1] The issue in these applications is the location of the boundary separating the properties of two Toronto neighbours.[1] The owners of 148 Humbercrest Boulevard, Morgan and Leslie Reiner, maintain that the boundary is as shown on the survey. The owners of 146 Humbercrest Boulevard, Leslie Truxa and Lydia Sani, submit the property line follows the northern edge of their driveway. Although the driveway encroaches on the Reiners’ property based on the survey, according to the Truxa-Sanis, the piece of land in issue became their property through adverse possession.

[2] For the reasons that follow, I find that the Truxa-Sanis have obtained possessory title of the strip of land that encroaches on the land to which the Reiners had paper title.

Facts

[3] The Truxa-Sanis were first to move into the neighbourhood. They bought their house in 1989. The house is in a neighbourhood of similar homes. It is the uncontested evidence that it is typical of the properties on the street to have driveways between them that are the full width of the space between the houses. That was the case on both sides of the Truxa-Sani house.

[4] The Reiners’ property is to the north of the Truxa-Sanis’. Like the Truxa-Sanis, the Reiners had a driveway on either side of their house that was the full width of the space between the houses.

[5] The Reiners purchased their property from the Griffins in December 2005 and soon after began renovations of the house. Those renovations undermined the foundation of the house and resulted in the Reiners having to demolish it and rebuild. The footprint of the new house did not match that of its predecessor. The relevant changes are that the south wall of the house is now to the north of where it had been and there is now a side door in that wall whereas the only side door on the Griffin house had been on the north wall.

[6] The driveway between the Truxa-Sanis’ house and the Reiners’ property was the Truxa-Sanis’ driveway. Their side door opened onto that driveway. The Griffin’s driveway was the driveway to the north of their house.

[7] When the Truxa-Sanis purchased their house, the driveway extended from the road to the garage that was beyond the house towards the back of the property. Where it ran between their house and the Griffin house, the driveway took up the entire space from the wall of one house to the wall of the other. The Truxa-Sanis maintain that they always had exclusive possession of the entire driveway, subject to the chimney that extended a few inches beyond the south wall of the Griffin house and the overhang of the eaves on the Griffin house. They believed that their property extended to the north edge of their driveway.

[8] In 1983, the Truxa-Sanis’ predecessor in title, Alex Bilyk, built a fence and gate across the full width of his driveway. It extended from the front corner of his house to the front corner of the Griffin house. The undisputed evidence is that the fence abutted the Griffin house and that it remained in place continuously until portions of it had to be removed to accommodate the demolition of the Reiners’ house. It was subsequently restored as it had been; however, because the Reiners’ house was north of where the Griffin house had been, there is now a gap between the north end of the fence and the Reiners’ house.

[9] Mr. Bilyk’s evidence is that his driveway extended straight out from between the houses so that the north edge of the driveway extended to the road from the south-east corner of the Griffin house in a straight line with the south wall of that house.

[10] Mr. Bilyk believed the driveway between his house and the Griffins to be his private driveway and that he had exclusive possession of the entire driveway the entire time he lived there. Similarly, he believed the driveway that extended from the south side of his house to the north of the house to the south to belong to the neighbours to the south.

[11] There was never any dispute between Mr. Bilyk and the Griffins regarding the boundary between their properties.

[12] In 1989 the Truxa-Sanis replaced a fence that ran in a straight line from the back corner (the south-west corner) of the Griffin house to the front of the Truxa-Sanis’ garage with cedars. Photographs show that the stone bed built for the cedars starts at the corner of the Griffin house and extends west from there in line with the south side of that house. This evidence is not disputed. The Reiners cut down the cedars. They have acknowledged that they had no right to do so.

[13] In 2001, the Truxa-Sanis resurfaced the portion of the driveway that extended from the gate to the road with paving stones. Their evidence is that the resurfacing followed the line of the existing driveway. Consistent with this is the unsworn evidence of Mrs. Griffin who passed away after providing her recollections by way of a letter. She stated that the northern boundary of the driveway did not change when it was resurfaced. Her letter is before the court on the agreement of both parties.

[14] Today the north edge of the driveway can be seen to meet the north end of the fence that has been restored to its original location.

[15] Mrs. Griffin’s son, Shawn Griffin, provided sworn evidence by way of an affidavit. He lived in his parents’ house until the early 80’s after which he continued to visit until his parents sold the property to the Reiners. His evidence is that knowing his parents as he did, he would expect them to have treated issues of boundary lines with a proper degree of care and he believes that the new driveway surface was in the same location as the surface it replaced. Mr. Griffin confirmed the Truxa-Sanis’ evidence that they had a good neighbourly relationship with the Griffins.

[16] In the course of the building of their new house, the Reiners retained a surveyor. The resulting survey showed the Truxa-Sanis’ driveway to be encroaching on the Reiners’ property by .28 to .33 metres, or just short of or just over a foot. In January 2007, based on the survey, the Reiners asked the Truxa-Sanis to remove the portion of the driveway between the front yards of the houses that encroached from the fence to the street, between the front yards of the houses. The Truxa-Sanis refused this and a subsequent request in 2009 when the Reiners were about to landscape their front yard.

Applicable Law

[17] Any possessory rights over the property of the Reiners obtained by the Truxa-Sanis had to have crystallized by 2001 when the Land Titles registry came into effect. As a result, the adverse possession by the Truxa-Sanis and their predecessor in title must have been continuous for at least 10 years prior to 2001.

[18] The requirements a claimant must satisfy to establish possessory title are confirmed in Keefer v. Arillotta (1976), 1976 571 (ON CA), 13 O.R. (2d) 680 at para. 692 (C.A.) in which the court stated that a person claiming a possessory title must establish:

(a) actual possession for the statutory period - in this case, ten years - by themselves and those through whom they claim;

(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 others, if any, entitled to possession.

[19] Where the possession on which a claim to ownership is based results from mistake, the threshold for establishing a possessory title is substantially lower than where the possession was a result of trespass: Mueller v. Lee, 2007 23914 (ON SC), at paras. 21 and 26. The reason for this is explained in Teis v. Ancaster, (1997), 1997 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), at para. 27:

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.

[20] This lower threshold applies even where the mistake is not mutual: Bradford Investments (1963) Ltd. v. Fama, 2005 27322 (ON SC), [2005] O.J. No. 3258 (S.C.J.), Mueller, supra.

[21] Where the possession of land in issue is the result of mistake, the requirements for possessory title are met where the claimant has continually used the land and the true owner has been out of possession of the land. The requirement of the intention to exclude need only be inferred: Bradford Investments, supra.

Analysis

[22] The direct evidence regarding the strip of land in issue is limited by Mr. and Mrs. Griffin, the title holders of that land prior to the purchase by the Reiners, having passed away. Also unavailable is the evidence of the contractor who resurfaced the Truxa-Sanis’ driveway from their fence across the driveway to the roadway as he too has passed away.

[23] Nonetheless, the existing evidence is sufficient to establish that the Truxa-Sanis and the Bilyks before them shared with the Griffins the mistaken belief that the Truxa-Sani property extended to the south wall of the Griffin house, and in a straight line running east and west from the house. I reach this conclusion based on my acceptance of the evidence of Mr. Bilyk and Shawn Griffin, which is consistent with the evidence of the Truxa-Sanis that they had exclusive use of the entire length of the driveway and believed the strip of land in issue to be their property. From the evidence that there was no dispute between the Bilyks and the Griffins or the Truxa-Sanis and the Griffins regarding the use of the driveway, I infer that the Griffins believed that the south wall of their house established the boundary between theirs and the Truxa-Sani property.

[24] Even if the evidence fell short of supporting the inference that the mistake as to the ownership of the property in issue was a mutual mistake, it would not affect the outcome as the direct evidence establishes that the Truxa-Sanis and the Bilyks before them reasonably believed their property to extend over the full width of their driveway. The evidence is inconsistent with the Griffins doing anything to disabuse their neighbours of this belief and there is no evidence of the Griffins doing anything to assert their ownership.

[25] In disputing the Truxa-Sanis’ application and in seeking a declaration that the Truxa-Sani driveway encroaches on their property, the Reiners rely on the following:

(a) the fact that the Griffin roof eaves overhung the Truxa-Sanis’ driveway and that the chimney of the Griffin house extended beyond the south wall of the house by approximately five inches;

(b) the driveway paving stones adjacent to the Reiners’ house are narrower than the other paving stones in the portion of the driveway that is between the two houses;

(c) the submission that the evidence of the Truxa-Sanis’ witnesses is unreliable; and,

(d) the expert opinion of Paul Francis is that the boundary of the driveway was extended to the north to its current location when the driveway was resurfaced in 2001 and therefore has not encroached for the requisite period of time.

[26] The Reiners’ first two arguments relate to the portion of the driveway between the two houses. With respect to the overhanging eaves and jutting chimney, these do not preclude the obtaining of possessory title. Such title may be subject to a right of way: Teis v. Ancaster, at para. 34 relying on Ziff, Principles of Property Law (2nd ed. Carswell 1996) at pp. 118-126.

[27] There is no evidence that the paving stones adjacent to the south wall of the Griffin house were intended to demarcate the end of the Truxa-Sani property. I cannot infer this fact from the differences between that row of paving stones and the other stones in the driveway. In my view, the differences are simply a result of the size of the other stones used, all of which are a uniform width. There was insufficient space between the last full sized stone and the side of the Griffin house to accommodate another full sized stone.

[28] I do not accept the Reiners’ theory as to the significance of the manner in which the stones were laid. It is inconsistent with the evidence of Mr. Bilyk and of the Truxa-Sanis and with their exclusive use of the area between the houses.

[29] The Reiners submit that I should reject the evidence of the Truxa-Sanis and their witnesses on the basis of their evidence being unreliable. The Reiners rely on the fact that the witnesses’ evidence is that the north edge of the driveway runs on a right angle from the fence to the street. But, the driveway runs on an angle, encroaching 11 inches at the gate increasing to 13 inches at the street.

[30] In my view, this discrepancy of roughly 2 inches between where the driveway meets the fence to where it meets the street is of insufficient significance to undermine the witnesses’ evidence.

[31] Finally, the Reiners submit that the opinion evidence of their expert requires that I reject the evidence of Mr. Bilyk and of the Truxa-Sanis. That opinion is that the north edge of the Truxa-Sani driveway was moved to the north within a range of dates that makes the duration of the driveway’s encroachment something less than the 10 years required for adverse possession.

[32] Mr. Francis’ expertise is in photogrammetry and photo interpretation. He arrived at his opinion based on the digitization, analysis and comparison of aerial photographs taken in 1998 and 2009. He concluded that sometime between when these two photographs were taken, the driveway moved to the north a distance in the range of anywhere from 10 cm. - 24 cm. to 46 cm. - 60 cm. (4 in. - 10 in. to 18 in. - 24 in.) taking into account a margin of error of plus or minus 18 cm.

[33] For the following reasons, I find that I cannot rely on Mr. Francis’ opinion:

(a) Mr. Francis’ approach to his retainer was not that of an independent expert with his duty being to the court. As he put it in his affidavit, his retainer was to ascertain changes to the location of the driveway, which the Reiners told him replaced the original driveway some time in 2000- 2002. The Reiners told him, as well, that the north edge of the driveway was altered in the replacement and that they believed that it encroached on their property. These instructions are inconsistent with Mr. Francis having the impartiality necessary for his opinion to be reliable.

(b) Based on Mr. Francis’ opinion, the north edge of the driveway before the resurfacing was located at a point south of the end of the fence between the houses. On that basis, the driveway would have had to make a clearly visible jog to the north at the fence. Not only is this improbable, but it is inconsistent with the unchallenged evidence of Mr. Bilyk, to which I have referred, that the north edge of the driveway followed a straight line along the south wall of the Griffin house, continuing to the road. Meanwhile, Mr. Francis testified on cross- examination that he did not see this jog in the north edge of the driveway on the pre-2003 photograph. Nor did he know of the existence of the fence.

(c) Mr. Francis relies on the location of a utility cover on the Reiners’ front lawn as confirmation of the edge of the driveway having been moved to the north of where it had been in 1998. That utility cover is closer to the driveway in the 2003 photo than in the 1998 photo. However, no significance can be placed on the location of the utility cover as it had been dug up and moved several times between 1998 and 2003, a fact that was unknown to Mr. Francis.

(d) Mr. Francis was unable to reconcile his conclusion with the evidence of the Truxa-Sanis, of Mr. Griffin and of Mr. Bilyk. Their evidence is consistent that before its resurfacing, the north edge of the driveway ran in a straight line from the street through to the other side of the fence. The only meaningful evidence inconsistent with this is Mr. Francis’ opinion. That opinion is based on a process that is, as he put it, only part science, the other part being art and is subject to human error.

(e) The margin of error in Mr. Francis’ opinion is equivalent to roughly half the width of the encroachment and, on the low end results in a relocation of the fence to the north of only 10 centimetres. Mr. Francis conceded that the margin of error may be greater than the industry standard of 18 cm. depending on the operator. On that basis, even if Mr. Francis’ opinion were accepted, it would necessarily support a finding that the Reiners were the owners of all of the land over which the driveway encroached.

[34] Mr. Francis’ opinion does not assist the Reiners in their application.

Conclusion

[35] I find that the northern boundary of the Truxa-Sani driveway was unchanged as a result of its resurfacing in 2001 and that the use of the driveway by the Truxa-Sanis and their predecessor in title was exclusive and continuous for more than ten years along its entire length prior to 2001.

[36] The Truxa-Sanis were in actual possession of the strip of land from the surveyed border of their property on the north to a line established by the south wall of the Griffin house. They have obtained possessory title over that land.

[37] The Reiners’ application is dismissed.

[38] The Truxa-Sanis’ counter-application is granted for what is effectively a declaration that the Reiners have been dispossessed of the strip of land between the line extending along and in both directions from the former location of the south wall of the Griffin house and the surveyed lot line between the properties; that the Reiners’ title to those lands has been extinguished; and, that the Truxa-Sanis are entitled to the exclusive possession of them.

[39] It is in the interests of the parties to resolve the question of costs without further resort to litigation. If they fail to do so, they may make written submissions to me consisting of three pages plus a cost outline and supporting dockets. The Truxa-Sani submissions are to be forwarded to my attention at Judges’ Administration within three weeks to be followed by the Reiners submissions two weeks after.

Frank J.

Date: September 24, 2013

[1] The respondents in the Reiner application have brought a counter application that included a claim for damages. They did not proceed with that claim at the hearing.