ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 039/11
DATE: October 18, 2013
BETWEEN:
SARAH GRAY and MARK GRAY
JOSEPH OBAGI, for the Applicants
Applicants
- and -
KEVIN GUERARD and CYNTHIA GUERARD and MAGENTA MORTGAGE INVESTMENT CORPORATION
ALEX FERGUSON, for the Respondents
Respondents
HEARD: April 22, 23 and 24, 2013
Abrams J.
REASONS FOR DECISION
Overview
[1] This dispute between the parties relates to a strip of land measuring 2.03 metres wide and 13.75 metres in length between their respective properties (the “disputed property”).
[2] The Applicants, Sarah Gray and Mark Gray, are the owners of the property known municipally as 285 Hope Street, Almonte, Ontario (the “Gray property”).
[3] The Grays purchased their property on June 28, 2002, and have resided there continuously with their three children ever since.
[4] The Respondents, Kevin Guerard and Cynthia Guerard, are the owners of the property known municipally as 293 Hope Street, Almonte, Ontario (the “Guerard property”).
[5] The Guerards purchased their property in 2007. The Guerards are in the real estate business. They have been buying, renovating, and selling properties in the area since 1992.
Nature of the relief requested
[6] The Grays seek the following relief:
i. A declaration that they are the owners in fee simple of real property, free from any encumbrances or executions, being legally described as:
Pt Lt 84 Sec Cameron P1 6262 Lanark N Ramsey; Pt Lt 85 Sec Cameron P1 6262 Lanark N Ramsey being Pt 3, 27R9667; Town Mississippi Mills; PIN 05101-0085 (LT) (previously 05101-011) being Part 1 of Plan 4R-xxxx (yet to be registered) (the disputed property);
ii. An Order vesting title to the disputed property in them, by reason of their adverse possession; and
iii. A declaration that the Guerard’s interest in the disputed property is extinguished.
[7] By Order of Pedlar J., dated June 29, 2012, the Application was converted to an Action, the trial of which took place before me in Perth on April 22, 23 and 24, 2013.
The Gray Property
[8] On June 28, 1956, the Gray property was transferred from Murray Lawrence Comba and Doris Comba to Dorothy Allen Giles. Thereafter, the property was referred to as the “Giles’ Property” or the “Wib Giles’ Property”.
[9] On July 26, 1985, the property was transferred to Wilbert Hanley Giles (“Wib”) by operation of Mrs. Giles’ Will on her passing.
[10] On February 26, 1996, the property was transferred from the Estate of Wib Giles to Derrick and Kelly Killeen.
[11] On October 2, 1998, the property was transferred from the Killeens to Suzette Sim (Forester).
[12] The Grays purchased the property from Ms. Forester on June 28, 2002.
The Guerard Property
[13] Looking retrospectively with respect to the Guerard property, for purposes of this trial it is only necessary to consider that Declan Blake was the previous owner and that he lived at 293 Hope Street from 1995 to 2007 when he sold to the Guerards. Notably, the residence was divided and numbered 293 and 295 Hope Street during Mr. Blake’s tenure. The left side of the building, 293 Hope Street, sits next to 285 Hope Street.
[14] Mr. Blake has lived in the town of Almonte since 1980 and confirmed that 285 Hope Street was known locally as “Wib Giles’ house”. By the time that Mr. Blake had moved into 293 Hope Street Mr. Giles had passed away. Initially his neighbours were the Killeens, followed by the Grays.
Use of the Gray Property
[15] Marilyn Moore testified that she moved in across the street from the Giles in 1970 into the same residence that she occupies today. From 1970 forward, she witnessed the use of the Gray Property, and in particular the manner in which Mr. Giles used the driveway that was located to the right of the house, when viewing the property from her perspective. To that end, there is no quarrel that the existing driveway is on the same side as the disputed property.
[16] With reference to Exhibit #2 (Book of photographs), specifically Tabs 1, 7 and 10, Ms. Moore testified that the driveway has been in the same location since 1970. She has always believed that the hedge to the right of the driveway marks the boundary between the two properties. Moreover, the driveway has consistently and continuously been put to the same use by the Giles, the Killeens, Ms. Sims (Forester), and now the Grays[^1].
[17] Ms. Moore testified that the grass area situated between the hedge and the edge of the driveway (encompassing the disputed property), was always maintained by Mr. Giles. She did not, however, see Mr. Giles maintain the hedge.
[18] Allison Bazil is the granddaughter of Mr. and Mrs. Giles. She has had a close association with the Gray property dating back to 1972 when she began attending her grandparent’s home following her birth. She testified that her parents divorced when she was very young and that 285 Hope Street became her second home. She spent nearly every weekend and every holiday with her grandparents. Her visits continued even after her grandmother died. She visited her grandfather several times a year until he passed away in 1995. Moreover, being from the area, she has also driven past the home in the years since.
[19] Ms. Bazil explained that her grandfather was well-known locally as a taxi driver. She specifically recalled that he always drove larger vehicles, either General Motors or Ford products, with 4 doors.
[20] Her grandfather always parked his vehicle in the driveway on the right hand side of the house, as described by Ms. Moore. She identified the driveway with reference to Exhibit #2, Tab 1. With reference to Tab 7 of the same exhibit, she confirmed that the location of the driveway, its use and the path leading from the front door to the driveway are the same today as when she was a little girl in the 1970’s.
[21] She recalled that her grandfather exclusively maintained both the hedge and the grass beside the hedge, on the disputed property. Her recollection of these details date back to in or about 1976.
[22] She described her grandfather as being meticulous when it came to maintaining the hedge and grass area, as he was in respect of the balance of the yard and the home in general. With reference to Exhibit #7, she pointed to the unmanicured part of the Guerard property to the right of the hedge as not representing the manner in which her grandfather would have maintained the grass on the disputed property.
[23] She identified in the photos found behind Tab 10 in Exhibit #2 the manner in which her grandfather parked his vehicle in the driveway, which to her understanding was never disputed by the owner(s) of 293 Hope Street.
[24] In cross-examination, Ms. Bazil was challenged but not shaken in her recollection of how her grandfather maintained the grass on the disputed property. Moreover, she confirmed that her grandfather never parked his car in the street for fear of it being hit or damaged by the many neighbourhood children who often played on the street. Finally, the property line to the right hand side of the house was always assumed to be the hedge. On this point there was never any dispute with the neighbour(s).
[25] Kelley Killeen testified that she grew up in Almonte, Ontario. She married Derrick Killeen. Thereafter, they purchased and moved into their first home as a couple at 285 Hope Street in 1996. They purchased the property from the Estate of Wib Giles. With reference to Exhibit #2, Tab 1 and Tab 7, she identified her first home and the driveway. Further, she identified the hedge that she and her husband believed marked the boundary line between their property and the neighbour at 293 Hope Street, Declan Blake. In response to questions on this point, Ms. Killeen said: “That [hedge] was where our land began”. She further testified that she and her husband maintained the strip of grass on the disputed property, while her husband was entirely responsible for the maintenance of the hedge.
[26] There was never any discussion or dispute with Mr. Blake regarding what was believed to be the boundary or line of demarcation: the hedge.
[27] With reference to Exhibit #4, Ms. Killeen identified her full-sized SUV, a Ford Explorer, in a photograph that appears to have been taken on or about May 29, 1997. The photograph shows a full-sized, 4 door SUV parked in the driveway to the right of the house, with the grass strip and hedge situated to the right of the vehicle. The grass strip appears to be maintained in a manner consistent with the balance of the lawn at 285 Hope Street. Exhibit #4, therefore, corroborates the witnesses’ testimony regarding use of the driveway, as well as the maintenance and use of the disputed property.
[28] Again with reference to Exhibit #4, Ms. Killeen testified that no problems were encountered opening the passenger side doors of her vehicle relative to the proximity of the hedge.
[29] Ms. Killeen acknowledged the “pin”[^2] that was evident in her driveway, which she noticed within a month of living there. However, she did not know what the pin represented. She testified that she “probably” drove over it. She testified that she never met Suzette Forester (Sim) and, therefore, never brought the location of the pin to Ms. Forester’s attention upon the sale of the property.
[30] Suzette Forester testified that the pin was not as noticeable during her tenure because of the nature of the hedge, which she believed was somehow closer to the pin. While she admitted that she did not know who maintained the hedge, she conceded that her daughter maintained the grass strip on the disputed property from time-to-time.
[31] With reference to Exhibit #14, the coloured photo taken for purposes of the Listing Agreement, Ms. Forester identified the vehicle in the foreground as belonging to her husband and the vehicle ahead of it as being hers. She believed that the pin was in the grass to the right of her husband’s vehicle, as opposed to being located on the gravel driveway. She acknowledged that the grass strip seen next to her husband’s vehicle appears to be cut, which is consistent with the balance of the lawn. Accordingly, I find as a fact that during Ms. Forester’s tenure the grass on the disputed property was maintained in the same manner as it had been going back to the time of Wib Giles.
[32] When questioned about the possibility of a passenger being able to exit the passenger’s side of her husband’s vehicle, she responded: “I’m not sure” ... “So I’m not going to say”. That said, she agreed that the driveway had not been changed from when Ms. Killeen lived there and, therefore, she could not contest Ms. Killeen’s evidence that passengers could indeed exit from the passenger’s side of her vehicle. I find as a fact that the apparent size of Ms. Killeen’s full-sized SUV Ford Explorer, as depicted in Exhibit #4, is larger than the more compact car driven by Ms. Forester’s husband, as depicted in Exhibit #14.
[33] Further, Ms. Forester conceded that during winter conditions they would have shovelled the snow as close to the hedge as possible to accommodate parking both of their cars in the driveway. Accordingly, I find as a fact that during the winter months she and/or her family members maintained the driveway with respect to snow removal on the disputed property.
[34] Michael Griffen was qualified to give opinion evidence with respect to the partial photograph of a vehicle shown in Exhibit #2, Tab 10 (top of the page). Ms. Bazil indentified this photo as Exhibit “B” to her affidavit sworn November 15, 2010. She obtained this photo and others from a collection kept by her mother, who was Wib Giles’ daughter. Ms. Bazil identified the vehicle as belonging to her grandfather, Wib Giles. To recall, she testified that her grandfather, in his role as a taxi driver, always drove full-sized, 4 door vehicles manufactured by either General Motors or Ford.
[35] Mr. Griffen is a recognized expert in the area of classic automobiles. With reference to the paint colour, the front bumper, the shape of the front quarter panel, the wheel covering and other aspects of the vehicle seen in the photograph, Mr. Griffen concluded that the vehicle was a 1968 Chevrolet, most likely an Impala. He could not say, however, whether it was a 2 door or a 4 door sedan. I find as a fact that the vehicle was more likely than not a 4 door model, in keeping with the uncontroverted evidence that Wib Giles was a taxi driver. Moreover, my finding is supported by Ms. Bazil’s evidence that her grandfather always owned 4 door vehicles. Accordingly, I find, based on the dimensions provided by Mr. Griffen in respect of a 1968 Chevrolet 4 door sedan, that the parking and use of this vehicle in the driveway, as depicted, would have encroached on the disputed property.
[36] Sarah Gray testified that she and her husband, Mark, purchased 285 Hope Street on June 28, 2002, from Ms. Forester.
[37] With reference to Exhibit #1, Tab 9, she recalled seeing the real estate listing showing two cars parked in the driveway. Ms. Gray testified that she and her husband parked their vehicles in the same manner. To be more specific, Ms. Gray said: We parked somewhere near the kitchen window ... Probably a couple of feet away from the corner where the addition starts.
[38] Ms. Gray confirmed that there was never any issue or dispute with Mr. Blake regarding their use of the driveway, which is consistent with Mr. Blake’s evidence.
[39] Ms. Guerard came over and spoke with her shortly after the Guerards began their renovations in 2007. Ms. Guerard initially asked where the boundary pin was, but returned later and said to Ms. Gray: Okay, that’s where the pin is. This statement is inconsistent with Ms. Guerard’s evidence that Mr. Blake showed her where the 4 pins were located just prior to the purchase, which Mr. Blake denies.
[40] In any event, the Guerards did not initially dispute the manner in which the Grays used the driveway. Further, the Guerards did not initially dispute the manner in which the Grays maintained the grass, the hedge or made use of the disputed property. Moreover, the Guerards never complained about the Grays storing building materials between the driveway and the hedge.
[41] When the Guerards arranged for an arborist to clean up their property, Ms. Guerard asked Ms. Gray whether there was anything that she wished removed. Ms. Gray assumed that Ms. Guerard was asking for permission to take down the Gray’s side of the hedge, which she agreed to. Her assumption was not unreasonable given that Ms. Guerard arranged for the same arborist to do some work across the street at Ms. Moore’s house.
[42] From 2002 to 2007 the Grays experienced some wetness in their basement, however, following the start of the renovations at 293 Hope Street they had excessive water on their property. Their basement was considerably wetter and their driveway was covered in places with water, which in turn froze.
[43] The Grays noticed the black sump pump hose pointing down towards their property from the Guerards.[^3] In the circumstances, the Grays considered the value of some of the larger trees along the property line to soak up the excess water when Ms. Guerard called to ask about taking the trees down. It was then that the Grays offered to purchase 20 feet of land stretching along the property line. Ms. Guerard responded that the trees were hers to do with as she pleased and she rejected the offer to purchase.
[44] Following these events the Grays went to the municipality to address the flooding issue. The municipality investigated the matter, resulting in a letter directing the Guerards to mitigate the situation, which resulted in correspondence from the Guerard’s counsel asserting that the Grays were trespassers.
[45] Ms. Gray contended that they had never been accused of trespassing prior to receiving counsel’s letter of October 7, 2010. They were never asked to stop cutting the grass. They never erected flowerbeds, as alleged. Further, there was no opposition to the manner in which they parked in the driveway or to their storage of building materials between the driveway and the hedge, prior to October 7, 2010.
Use of the Guerard’s Property
[46] Declan Blake owned 293 and 295 Hope Street from 1995-2007. He occupied 293 for the same period of time. Initially his neighbours were the Killeens, who he was acquainted with. He never met Ms. Forester during her time there. He was, however, familiar with the Grays following their purchase from Ms. Forester.
[47] Mr. Blake was unequivocal in his testimony that during his 12 year tenure the hedge marked the boundary line between the two properties. More particularly, that is how everyone concerned treated the boundary line. For example, he cut the grass between the end of the hedge and the sidewalk, but he never cut the grass or maintained the area on the other side of the hedge or the hedge itself. The neighbours did. Accordingly, I find as a fact that the maintenance described by Mr. Blake included the period when Ms. Forester and her family owned and occupied 285 Hope Street, which is consistent with Ms. Forester’s evidence that her daughter cut the grass on the disputed property from time-to-time.
[48] To recall, Mr. Blake moved to Almonte in 1980 and although he did not move to 293 Hope Street until 1995, he specifically recalled seeing Wib Giles’ large, taxi cab vehicles parked in the driveway on the right hand side of the house in the years prior to his purchase.
[49] Mr. Blake testified that Mr. Guerard and a Mr. Rentoil[^4] came several times to look at the property prior to the purchase, but that: (1) he never discussed the boundaries with them; and (2) he never took them on a tour around the property to show them the boundaries.
[50] With reference to Exhibit #7, Mr. Blake confirmed that the photograph accurately depicts the manner in which the neighbours maintained the property on the 285 side of the hedge versus the manner in which he maintained the property on his side of the hedge.
[51] In cross-examination he would not concede that anything other than the hedge marked the boundary line. He agreed that he knew where the “property pins” were, however, the “tradition” was that the hedge marked the boundary line. Moreover, he said: “Everybody else considered the hedge to be the property line so I continued with that assumption” ... “Marker pegs can be wrong too”. And to that end he was “not concerned”.
[52] When pressed further in cross-examination he would not concede that he ever maintained the hedge, and that he only maintained the grass on his side of the hedge.
[53] Cynthia Guerard testified that she grew up in the Almonte area. She was generally familiar with the property at 285 Hope Street prior to purchasing the property next door. She had taken her 3 children to daycare at Ms. Moore’s residence for a number of years prior to the purchase.
[54] She recalled seeing Wib Giles’ taxi parked beside the house, but the location was random; sometimes the car would be to the left of the house and sometimes to the right.
[55] She could not identify any particular brand of car belonging to Mr. Giles.
[56] She could never recall seeing Mr. Giles maintain the grass on the disputed property, nor the hedge. That said, she never saw anyone maintain the area.
[57] When Mr. Giles passed away she looked at purchasing 285 Hope Street, but decided against it due to a lack of parking.
[58] She confirmed that she had in hand the relevant survey prior to purchasing 293/295 in 2007. Further, she was concerned enough about what she saw on the survey, with respect to the disputed property, that she brought it to the attention of the “girls in the office”, which one assumes was the Registry Office.
[59] She contended that Mr. Blake showed her where the “4 pins” were located during a tour of the property, which Mr. Blake denied.
[60] She asserted that she had a greater knowledge of the property than Mr. Blake did at the time of the purchase.
[61] She explained that she and her husband have a system that they follow prior to purchasing residential property. The first step is to go through the home. The next step is to obtain a copy of the survey to ensure that they know where the boundaries are. They then review the survey relative to the property to determine if there are any “issues” that are not initially apparent. To recall, the Guerards had been self-employed in the real estate business going back to 1992, or about 15 years, at the time of this purchase in 2007. In all of the circumstances, Cynthia Guerard presented as someone who was sophisticated in terms of real estate transactions, at the material time.
[62] The Guerards began renovations shortly after purchasing the property, which included yard work and a general clean-up. Part of the hedge was removed in August of 2007 during the clean-up. While the Guerards contend that they knew where the boundary pins were located and that they unilaterally decided to remove the hedge, I find as a fact that the Grays continued to openly maintain and use[^5] the disputed property from 2007 until 2010 when relations soured between the parties. I further find as a fact that during those 3 years the Guerards never once complained about the Grays’ use of the disputed property.
[63] In September 2010, a representative from the municipality met with Ms. Gray to investigate increasingly wet conditions on their property. Mr. Guerard was interviewed as part of the investigation. The investigation resulted in certain recommendations being made by the municipality. For example, the municipality recommended that the Guerards find an adequate outlet for their sump pump discharge, which was directed down the slope of their property and onto the Gray’s property.[^6]
[64] The report of the Municipal Drainage Superintendent, Glen Gordon, was issued October 1, 2010.[^7]
[65] Shortly thereafter, the Guerards suddenly and without warning caused their Solicitor to send correspondence to the Grays, dated October 7, 2010.[^8] For the first time after approximately 3 years of peaceful co-existence as neighbours, the Guerards asserted that the Grays were trespassing by virtue of the following allegations: parking their car on the Guerard’s property; erecting flowerbeds; piling lumber; and maintaining the grass on the disputed property.
[66] With reference to Exhibit #6, Tab 11, Ms. Guerard conceded in cross-examination that the Grays, in exiting the driver’s side of the car depicted in the photograph, would have stepped out onto the Guerard property. I find as a fact that this occurred without complaint on a regular, routine basis following the Guerards purchase in 2007 up to October 7, 2010, when they instructed their counsel to raise the issue with the Grays for the first time.
[67] By correspondence dated April 19, 2011[^9] and April 27, 2011[^10], the Guerards were again advised by the municipality as to the acceptable manner of mitigating the drainage issue as between their property and the Grays. To that end, there was no evidence that the Guerards at any time implemented the recommendations made by the municipality. Moreover, Ms. Guerard admitted that they only redirected the discharge from their sump pump hose after the Grays complained to the municipality.
[68] Ms. Guerard testified that her parents separated in 1978, which coincided with her move to the neighbourhood. She conceded that she has no memories relevant to these proceedings prior to 1978. She agreed that she could not recall there being a driveway on the east side of 285 Hope Street, although she recalled that Wib Giles would sometimes park his car on the east side. That said, she agreed that the only driveway on the property was positioned to the west of the house, as depicted in the photographs entered as exhibits.
[69] Ms. Guerard conceded that she could not say, one way or the other, how Wib Giles maintained his property, including the disputed property.
[70] Ms. Guerard would not agree that the Killeens maintained the hedge during their time at the property. Her recollection was limited to those times when she dropped off and picked up her children from Ms. Moore’s home. When confronted with Ms. Moore’s evidence that the Killeens did indeed maintain the hedge, Ms. Guerard’s response was: Marilyn had a lot going on in her life at that point and I had a better vantage point than she did. Query how Ms. Guerard could have had a better vantage point than the occupant of the home: Ms. Moore? Consider also that Ms. Moore has no interest in the outcome of this litigation. I find as a fact that the Killeens maintained the hedge during their tenure, which is consistent with Ms. Killeen’s evidence, as well as the objective observations of Ms. Moore.
[71] A neighbour, Mr. Elford, was called to testify by the Guerards. He, too, lived in the neighbourhood going back to 1960. He was acquainted with Wib Giles and the taxi service that operated from 285 Hope Street. Mr. Elford recalled that Mr. Giles initially parked on the left or east side of the house, but that he eventually “took that driveway away” and parked on the right or west side of the house. Mr. Elford could not recall the year that this change occurred. Mr. Elford was unequivocal that Wib Giles always drove black cars, which is unsupported by Exhibit #2, Tab 10, that being the photo of the light coloured car owned by Mr. Giles. Mr. Elford was equally unequivocal that Wib Giles always drove Dodge vehicles, which is unsupported again by Exhibit #2, Tab 10, as well as Mr. Griffen’s opinion that the vehicle in the picture is a 1968 Chevrolet, and Ms. Bazil’s evidence that that her grandfather drove either General Motors or Ford products.
The Law
[72] The rights of the parties are to be determined by the application of ss. 4, 5(1) and 15 of the Limitations Act, R.S.O. 1990, c.L.15:
- No person shall make any entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.
5.(1)Where the person claiming such land or rent, or some person through whom that person claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, been dispossessed, or has discontinued such possession or receipt, the right to make such entry or distress or bring an action to recover land or rent shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession, or at the last time at which any such profits or rent were so received.
15.At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.
[73] As Métivier J. pointed out in Carrozzi v. Guo, [2005] O.J. No. 3629 at para. 20:
The statute is one of extinctive, not acquisitive prescription. The Limitations Act imposes an obligation on the holder of legal title to enforce their rights within 10 years after the possession of their property begins, or, in the alternative, prevents the title holders from asserting such a claim, or defending against an adverse possessor, after the 10 years has elapsed.
Test for Adverse Possession
[74] In order to claim title by possession, a claimant must show that:
(a) He/she has been in actual possession for more than 10 years;
(b) He/she had the intention of excluding the true owner from possession;
(c) He/she has effectively excluded the owner; and
(d) His/her possession has been visible, open, notorious, and continuous.
Possession of Claimants for 10 years
[75] In June 1996, the Land Titles Act (R.S.O. 1990, c.L.5) came to apply to these properties. Section 51 of the Land Titles Act prevents the acquisition of any land “adverse to, or in derogation of the title of the registered owner”. On this basis, the Grays would be disentitled to their claim.
[76] However, any rights and interests of adjoining owners in existence at the time of the first registration are protected. Accordingly, for the Grays to succeed, they must prove that through the occupation of their predecessors, their possession is of the same nature and substance as when the lands were registered in Land Titles. To that end, the Court may take into consideration the occupation of previous owners, if their possession was of the same nature and substance.[^11]
[77] The Grays contend that the evidence is clear and unequivocal regarding the manner in which Wib Giles used the driveway located to the right or west of the house from 1970-1995, as well as how he maintained the grass/hedge on the disputed property. Ms. Bazil’s evidence as to the nature and substance of her grandfather’s possession was not seriously challenged. Moreover, her evidence was consistent with the observations of Ms. Moore and Mr. Blake. Ms. Killeen’s evidence was also consistent as to the nature and substance of the possession from 1996 to 1998, which was again corroborated by Ms. Moore and Mr. Blake. Finally, the exhibits (photographs) fairly represent and chronicle the nature and substance of the possession from 1970 until the present, all of which support the Gray’s position.
[78] The Guerard’s contend that Ms. Forester’s evidence effectively breaks the chain of adverse possession. Accordingly, anything done by the Grays after her tenure is irrelevant.
[79] On this issue the Guerard’s position fails, for the following reasons. Firstly, I find as a fact that from at least 1970 to the Gray’s purchase in 2002, the owners of the land on both sides of the hedge believed that the hedge marked the boundary line between the two properties. This includes Ms. Forester’s tenure. Although she testified that she knew where the pin was located, she admitted that she did not know who maintained the hedge, but conceded that her daughter cut the grass on the disputed land from time-to-time. Secondly, Ms. Forester conceded that she could not say whether a passenger exiting the passenger’s side of the vehicle (when parked nose-in) would not have encroached on the neighbouring property upon stepping out of the vehicle. Thirdly, Ms. Forester conceded that during winter conditions she and members of her family would have shoveled the snow as close to the hedge as possible in order to accommodate parking of both cars in the driveway, which resulted in snow removal and maintenance on the disputed property. Fourthly, Mr. Blake testified that during his 12 year tenure, which included Ms. Forester’s ownership of 285 Hope Street, the hedge marked the boundary line between the two properties. Mr. Blake never cut the grass or maintained the area on the other side of the hedge, nor did he maintain the hedge.
[80] I also find as a fact that following the Gray’s purchase in 2002 to October of 2010, when relations soured between the parties as a result of the drainage issues, the nature and substance of the Gray’s possession remained the same. Indeed, the nature and substance remains the same today. Notwithstanding Ms. Guerard’s contention that she knew where the 4 pins were located, no dispute or complaint was raised regarding the nature and substance of the Gray’s possession until the Guerard’s received Ms. Gordon’s Report on Drainage Complaint, dated October 1, 2010. Thereafter, for the first time on October 7, 2010, by correspondence of the same date, Counsel for the Guerard’s alleged trespass against the Grays by virtue of the nature and substance of their possession. I find as a fact that the Grays used the driveway in the same fashion as the previous owners dating back to at least 1970. Moreover, the Grays maintained the grass and hedge on the disputed property in the same fashion as the previous owners dating back to at least 1970.
[81] In all of the circumstances, I find as a fact that at least 10 years of possession of the property in question had elapsed before the Land Titles registration system applied to these properties. Moreover, I find as a fact that the nature and substance of the possession continues to this day, unbroken by any change in circumstances, as the Guerard’s contend.
[82] Accordingly, the Grays meet the first part of the test.
Intention to Exclude
[83] I find as a fact that there was a mutual mistake as to the commonly held belief that the hedge marked the boundary line between the two properties. Recall that Mr. Blake owned the Guerard property from 1995 to 2007. He was unequivocal in his testimony that during his 12 year tenure the hedge marked the boundary line between the two properties. Moreover, he testified that everyone concerned treated the hedge as the boundary line, which included Ms. Forester and her family. In cross-examination he would not concede that anything other than the hedge marked the boundary line. He agreed that he knew where the “property pins” were, however, the “tradition” was that the hedge marked the boundary line. Moreover he said: “Everybody else considered the hedge to be the property line so I continued with that assumption” … “Marker pegs can be wrong too”. And to that end he was “not concerned”.
[84] As Métivier J. highlighted in Carrozzi v. Guo, supra, at para. 38, our Court of Appeal in Teis et al v. Corporation of the Town of Ancaster”(1997), 1997 1688 (ON CA), 35 O.R. (3d) 216 confirmed that the law should protect good faith reliance on boundary errors or at least the settled expectations of innocent adverse possessors.
[85] In examining the whole of the evidence, I find as a fact that the Grays had the requisite intent to dispossess the true owners, the Guerards. Further, the Grays intent, which was based on good faith reliance on the boundary error or at least their settled expectation, was created by Mr. Blake’s reliance on the commonly held “tradition” that the hedge marked the boundary line. I find as a fact that there is no evidence to the contrary as to the mutual mistake or commonly held tradition. Thus, in all of the circumstances, I make the inference of the requisite intent to exclude on the part of the Grays.
[86] Accordingly, the Grays meet the second part of the test.
Exclusion of the Owner
[87] This issue is intertwined with the above “intention” part of the test.[^12]
[88] It is clear from the evidence that there was no dispute over the boundary from 1970 until October, 2010. During that time neither the Guerards or their predecessor, Mr. Blake, made use of the land on the other side of the hedge.
[89] Further, I find as a fact that the Guerards allowed the Grays to encroach on their property by use of the driveway with respect to parking and stepping out of the vehicle, cutting the grass, maintenance of the hedge and storage of building material, as articulated above.
[90] In all of the circumstances, the Guerards were effectively excluded from the disputed property. Accordingly, the Grays meet the third part of the test.
Possession, visible, open, notorious and continuous
[91] All of the evidence persuades me that neither the Grays or any of their predecessors did anything surreptitious, and that there was nothing equivocal in their occupation. I find as a fact that the Grays have been in exclusive, open, visible, notorious and continuous possession by their own occupation and by that of their predecessors.
[92] Accordingly, the four parts of the test have been met.
Other Considerations
[93] The Guerards had been self-employed in the real estate business for approximately 15 years at the time of the purchase in 2007. In every respect they are sophisticated and well-seasoned real estate investors.
[94] In contrast, the Grays were inexperienced and unsophisticated property owners. They treated the disputed property as their own because they believed that it was theirs for all of the reasons set out above. They were not trespassers seeking to dispossess the true owner(s), whether Mr. Blake or the Guerards. Rather, I find as a fact that they are innocent adverse possessors.
[95] In all of the circumstances, I find as a fact that the equities favour the Grays.
Conclusion
[96] Having found that at least 10 years of occupation had elapsed before the Land Titles registration system came into being and that the Grays have made out their claim for adverse possession by meeting all four heads of the test, there will be judgment for the Grays. The Title of the Guerards to the disputed property is hereby extinguished. An Order shall issue vesting title to the disputed property in the Grays.
[97] In the event that the issue of costs cannot be resolved, counsel may file written submissions within 30 days to a maximum of 2 pages, double-spaced.
October 18, 2013 ______________________________
Abrams J.
COURT FILE NO.: 039/11
DATE: October 18, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SARAH GRAY and MARK GRAY
Applicants
- and -
KEVIN GUERARD and CYNTHIA GUERARD and MAGENTA MORTGAGE INVESTMENT CORPORATION
Respondents
REASONS FOR DECISION
Abrams J.
Released: October 18, 2013
[^1]: Marilyn Moore also referenced exhibits 4, 7 and 8 as being consistent with the continuous use and location of the driveway.
[^2]: Exhibit #6, Tab 14. Note that the pin is located in a pot hole, with the head of the pin being below the surface of the driveway.
[^3]: See Exhibit 3 Tab 4.
[^4]: Mr. Rentoil is Ms. Guerard’s father
[^5]: See Exhibit #2, Tab 4, depicting building material belonging to the Grays being stored on the now disputed area.
[^6]: See Exhibit #3, Tab 4.
[^7]: See Exhibit #3, Tab 1.
[^8]: See Exhibit #1, Tab 10.
[^9]: See Exhibit #3, Tab 3
[^10]: See Exhibit #3, Tab 4
[^11]: See Carrozzi v. Guo, supra at paras 24 and 25 with reference to Beaudoin v. Brown & Eadie, 1961 142 (ON CA), [1961] O.R. 429.
[^12]: See Carozzi v. Guo, supra, at para. 41