CITATION: Beffort v. Zuchelkovski, 2016 ONSC 583
COURT FILE NO.: CV-09-2745
DATE: 20160125
AMENDED DATE: 20161007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Scott Beffort and Heather Beffort
Plaintiffs
– and –
Zygmunt Zuchelkowski and Jolanta Zuchelkowski
Defendants
James Macdonald, for the Plaintiffs
Marek Tufman and Eleonora Izmaylov, for the Defendants
HEARD: In Milton January 12, 13, 14 & 18, 2016
REASONS FOR JUDGMENT
Trimble J.
[1] In “Mending Wall”[^1], poet Robert Frost and his neighbour are engaged in their annual spring ritual of repairing the stacked stone wall that divides their properties. Frost asks the neighbour why they do it every year. He asks why they need the wall. There is nothing on either property that needs containing except pine trees on the neighbour’s and apple trees on the writer’s, neither of which will wander. The neighbour merely answers “Good fences make good neighbours.” For every reason Frost puts forward for not having the wall, the neighbour repeats “Good fences make good neighbours.” Frost, convinced that his neighbour will never change, resigns himself to mending the wall.
[2] This case shows us that, sometimes, the neighbour is correct. Good fences do make good neighbours – provided they are placed on the property line.
[3] In this action, the Plaintiffs claim that through adverse possession they own a strip of the Defendant’s land.
The Properties:
[4] The Plaintiffs bought 8 Fraser Avenue in Brampton on 26 November, 2008. Shortly after that the owners of 84 Mill Street South, which abutted the Plaintiffs’ land, told the owners of 8 Fraser that they had to move their fence and air conditioner because it was on their land and because they wanted to put up a new fence on the boundary.
[5] According to the City of Brampton’s aerial photograph (Ex A, Tab 1), Fraser runs north-south, more or less. Number 8 is the first house on the west side of Fraser, north of Fraser’s intersection with Mill St. South. Number 8 faces east onto Fraser, and runs west. Eight Fraser’s southern boundary forms the rear boundary of 82, 84 and 86 Mill St. South. The parties estimate that the southern boundary of Fraser, where it abuts the three Mill St. properties, is approximately one meter south of the south wall of the existing house on 8 Fraser. Various surveys entered into evidence suggest it is about .75 meters.
[6] The Defendants own 84 Mill Street South, having purchased it in the summer of 2008. According to the City of Brampton’s aerial photograph (Ex. A, Tab 1), Mill St. South runs east-west, more or less. Number 84 is the second house west of Fraser on the north side of Mill. The lot faces south and runs north. Its rear boundary is the southerly boundary of 8 Fraser.
The Disputed Lands:
[7] 84 Mill Street and 8 Fraser form a “T”. The Mill Street property is the stem of the “T”. The disputed land is located at the top of the stem of the “T” where 84 Mill Street abuts the southern boundary of 8 Fraser in its middle. At the time the Befforts bought 8 Fraser, there was a chain link fence located on 84 Mill Street approximately one meter south of the boundary between the two properties. That chain link fence runs from the east side of 84 Mill Street South to the west side, more or less. The disputed land is that between the chain link fence on 84 Mill Street South, and the lot line between the properties, as shown in hatch marks in the figure, below.
The Issue:
[8] Have the title holders of 8 Fraser acquired the disputed lands by adverse possession?
[9] I conclude that they have.
An Evidentiary Issue:
[10] The parties submitted a book of documents marked “Exhibit A”. The parties agreed that the documents were true copies of the originals, and that the originals were authentic. They did not agree that I could receive the documents for the truth of their contents. The documents included various surveys of the two properties, photographs taken by various owners of the properties, and a field sketch prepared by one surveyor of Fraser which included observations on Mill Street which were not put on the formal survey.
[11] The surveys (to which witnesses were directed), like any other document, are not admissible unless proved by the surveyor who prepared them. They are useful in assessing credibility, where, as in this case, many witnesses commented that the surveys and field drawing represented the state of the property at a certain time. Therefore, where all witnesses agreed that a survey was accurate, I accept it as proved. Where there was not agreement, I did not accept the survey as accurate but did consider it in evaluating the credibility of witnesses and their conflicting evidence.
[12] With the remainder of the documents in Exhibit A, I accepted them for the truth of their contents if a witness identified them and they were proved through a witness. Tabs 6, 11, 23 and 24 were never properly proved by a witness.
The Law:
[13] The most recent statement of the law of adverse possession is from the Court of Appeal in McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, in which Rouleau J.A., on behalf of the Court, says at para 9 to para. 11 that in order to establish adverse possession of land, the claimant must:
- Establish that throughout the ten year adverse possession period he or she:
a. Had actual possession of the land,
b. Had the intention of excluding the true owner from possession, and
c. Effectively excluded the true owner from possession.
The ten year adverse possession period only begins to run from the time at which the claimant can prove all three elements.
The acts of possession necessary to establish actual possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. The claimant must prove all these elements of possession. A failure to prove any one of these elements is fatal to the claim.
The following additional principles also apply:
If the claimant acknowledges to the owner, during the adverse possession period, the right of the true owner, then adverse possession fails as the possession is no longer adverse. Acknowledgement stops the clock running. S. 13 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 says written and signed acknowledgment resets the clock. Acknowledgement may be oral: see Teis v. Ancaster (1997), 35 O.R. (2d) 216 at pg. 221 (C.A.).
Where the property, part of which is said to be adversely possessed, is brought into Land Titles, the ten year adverse possession period is the ten years immediately preceding the conversion of the property to Land Titles: see Skrba v. Crisafi et al., 2014 ONSC 6780.
Enclosure by a fence, while not conclusive, is the strongest evidence of open, notorious, peaceful, adverse, exclusive, actual and continuous possession of land, the intent to use the land as an owner, and the intent to exclude the owner from use: see Beaudoin v. Aubin (1981), 1981 1758 (ON SC), 33 O.R. (2d) 604 (H.C.J.) at p. 4, Bacher v. Wang, [2000] O.J. No. 3146, at para. 23, Raso v. Lonergan, 1996 CarswellOnt 3005 (Gen. Div.).
A mutual mistaken belief of the owner and claimant that the disputed land belongs to the claimant, while not conclusive, may imply the intention to exclude the owner: See Bacher, supra at para 26, Raso, supra, at para. 3, Beaudoin, supra, at page 617, Carrozzi v. Guo, 2002 42513 (Ont. S.C.) at para. 35 to 39, and Mueller v. Lee, 2007 23914 (Ont. S.C.) at para26.
The test of inconsistent use does not apply in cases of mutual mistake as to ownership of the disputed lands: see Wood v. Gateway of Uxbridge Properties Inc. (1990), 75 O.R. (3d) 769 (Gen. Div.), and Teis, supra at page 224.
In cases of mutual mistake, it is easier to establish adverse possession. If the owner thinks the property is the claimant’s, the owner cannot intend to possess it, and therefore is out of possession of it and is not exercising control over it. It negates the argument that the claimant had permission to use the land: see Mueller, supra, at para 26-27.
What is the Relevant Time Frame for Adverse Possession?
[14] The Mill Street property was brought into Land Titles on September 21, 1998. Therefore the ten year period for adverse possession runs from September 21, 1988 to September 21, 1998.
[15] During the ten year period for adverse possession, the Fraser Street property was owned by Jerry and Mary Kepka (30 June, 1988 to 28 April, 1989) and Geraldine Merkley (28 April, 1989 to 29 August, 2003). The owner of the Mill Street property for the whole of the ten years was Michael Clarke (14 July, 1986 to 2 August, 2001).
Have the Plaintiffs Adversely Possessed the Disputed Land?
1. The Positions of the Parties:
The Befforts:
[16] The Befforts say that for the ten years ending September 21, 1998 the owners of 8 Fraser Avenue had continuous, uninterrupted possession of the disputed lands that was open, notorious, peaceful, adverse, exclusive, and actual. The disputed lands were fenced by a chain link fence long before the ten year period, and used and occupied solely by the owners of 8 Fraser.
[17] They say that this is a case of mutual mistake. Every owner of 8 Fraser since 1988, except the Kepkas, verified that the chain link fence was present during their ownership, and that the chain link fence was the boundary between their property and 84 Mill Street. Mr. Clarke, who owned 84 Mill Street at all relevant times, also said that the chain link fence was there when he moved in and he thought that it was the boundary between his property and 8 Fraser.
[18] The only different evidence was that of the Kepkas. The Plaintiffs say that their evidence, when weighed with all the other evidence, is wrong, and should be discounted.
The Zuchelkowskis:
[19] The Zuchelkowskis say that all they have to do is “poke holes” in the ten year period. They take two positions, either of which, if accepted, results in there being no adverse possession.
[20] First, the Zuchelkowskis say that the Kepkas evidence should be accepted. The Kepkas both say that when they owed 8 Fraser Avenue, there was always a fence on the property which ran along the side property line where the property abutted the 3 Mill Street properties. It defined the southern limit of their property. Therefore, they never had any intention of occupying that part of the Mill Street property between the property line and the chain link fence. They deny that there was a chain link fence on the Mill Street property when they owned the Fraser property. The Zuchelkovskis also say that I should accept the Kepkas' evidence over the evidence of others, as the evidence of other witnesses is tainted or conditioned by the fact that they were all tied to Neil Davis, the principal of Davis, Webb, the Plaintiff’s solicitors.
[21] Second, the Zuchelkowskis say that Mrs. Merkley acknowledged to Mr. Clarke that she possessed the disputed property. That re-set the running of the adverse possession period. The period between the ‘re-set’ and when 8 Fraser was brought into Land Titles was fewer than ten years.
- The Kepkas’ Evidence v. Mr. Clarke’s Evidence: Which to Accept?
Mr. Clarke’s Evidence:
[22] Mr. Clarke said that when he bought 84 Mill Street in 1986, there was a chain link fence across the back of the 84 Mill Street property which he considered was the end of his property. That fence was never moved during his tenure and looked quite old when he moved in. There was also a hedge running from Fraser Street along the back of 86 Mill Street which did not come onto his property. There was also a privacy fence with rust coloured posts and blue coloured panels which began close to the rear corner of the house on 8 Fraser that ran toward the rear of 8 Fraser, parallel to the chain link fence, but did not run very far. He did not know what distance separated these two fences. There was never any other fence between his property and 8 Fraser during his ownership.
[23] Mr. Clarke identified two photos (Ex. A, Tab 4) which depict the yard and the side of the house at 8 Fraser St. The first photo shows a child in a tire swing, the chain link fence, and the privacy fence. The second photo shows Mr. Clarke and his daughter building a picnic table. It shows the chain link fence, the rust coloured posts for the privacy fence (the blue panels shown in the first photo are gone), and the hedge separating 8 Fraser from 86 Mill Street. It does not extend into the yard of 84 Mill Street South.
[24] There was uncertainty about when these photos were taken. Mr. Clarke said that his daughter, born 10 July, 1986, was seven years old in the first photo “I am guessing”, and six or seven years old in the second photo. That evidence indicates that the photos were taken between 10 July 1987 (her sixth birthday) and 9 July, 1989 (the day before her eighth birthday). I find that photograph 1 was likely taken in the summer or early fall of 1987, and the second taken likely in the spring of 1989.
[25] Why do I say this? There are several reasons.
[26] First, Photo 1 is taken earlier than photo 2. The girl in the first photo is younger than the girl in the second. In the first photo, the girl is dressed for warm weather. Every plant in the is in full leaf. There is no garden in the back corner of 84 Mill Street stretching between the basement windows of 8 Fraser.
[27] Second, Photo 2 is taken later. It is taken on a warm spring day. The daughter (identified by Mr. Clarke as the same child in both photos), now older, is wearing a light jacket and short pants. The girl is clearly older. There is a garden at the rear of 84 Mill Street stretching along the chain link fence covering the area from the front-most basement window on the side of 8 Fraser to beyond the rear corner of that house. The photo is taken in early spring, 1989, because the grass is green and the lily of the valley growing in the disputed land is just starting to come up. Aside from the bough of a conifer in the upper right of the photo, none of the other plants are in leaf, bud or flower.
The Kepkas’ Evidence:
[28] Each of Mr. & Mrs. Kepka gave similar evidence to the other. What follows is a summary of their combined evidence unless indicated otherwise.
[29] The Kepkas owned 8 Fraser from 30 June, 1988 to 28 April, 1989. Mrs. Kepka bought the home when Mr. Kepka was away. He never liked the house; it was too small. They were only in it for ten months.
[30] For the whole time that they lived there the hedge that separated 8 Fraser from the Mill Street South properties ran from the sidewalk at Fraser along the side lot line to approximately the back corner of the Fraser house. From the end of the hedge, toward the back, across the back of his lot, then down to the garage there was a “fence” comprising metal posts of two to four feet in height with wire running between the tops of each post. Since they had a dog, the Kepkas required a proper fence. Mr. Kepka commissioned Derry Fencing to install a board fence from the corner of the house next to 84 Mill Street, around the yard to the garage on the other side. He instructed Derry Fencing to install the board fence just inside where the posts and wire ran. Derry Fence required a survey so it commissioned one (the Papa survey of July, 2008, Ex. A, Tab 12). Mr. Kepka did not remember seeing the survey.
[31] The Kepkas say that their property limit with the Mill Street properties was the hedge and post and wire “fence”. The board fence that they installed in July, 1988 was six feet tall, with lattice on the top.
[32] The Kepkas both said, repeatedly, that there was no fence running between their house and 84 Mill’s yard. It was a hedge. They deny that there was a privacy screen during their occupation as shown on Mr. Clarke’s photos (Ex. A, Tab 4). Mr. Kepka said that the Skranda survey, done on May 27, 1988 (Ex. A Tabl 5), two months before he moved in, is wrong. It showed a “board fence” on the property line between his house and 84 Mill Street, at the same location as the privacy fence in Mr. Clarke’s photos. The privacy fence was never there during his ownership.
[33] Mr. Kepka does not remember the chain link fence being just inside the yard of 84 Mill Street running parallel to the hedge that ran next to the house on 8 Fraser. Mr. Kepka, when asked again, said that the chain link fence was not present. Mrs. Kepka was certain there was no chain link fence just inside the rear of 84 Mill Street.
[34] Both Kepkas said that at the time they sold the house to Ms. Merkley, the hedge till ran between 8 Fraser and the Mill Street properties to a point near the back corner of the house at 8 Fraser, and the six foot tall board fence with lattice still ran from the back corner of the house along the property line with the Mill Street properties, and around the yard.
[35] For her examination in this action or the predecessor application, Mrs. Kepka drew a sketch of the property showing the Kepkas’ joint view of the layout of the property (Ex. 4).
[36] The only real point of departure between the Kepkas’ evidence is that Mrs. Kepka confirmed that the board fence that they installed ended at a large tree which is some feet from the rear of the house on 8 Fraser on the lot line with 84 Mill Street South. She identified the tree as the one seen in Ex. 4, Tab 8, page 1. She also said that she did not know where the post and wire fence was located, when compared to the hedge.
[37] I do not accept the Kepkas’ evidence. It must be mistaken. I say this for the following reasons:
The Kepkas said that there was no chain link fence running parallel to the lot line, about a meter inside 84 Mill Street’s property. All other owners of 8 Fraser confirmed that the chain link fence was there throughout the ten year adverse possession period. All others said that they considered the chain link fence to be the dividing line between properties 8 Fraser and 84 Mill Street. All others commented on how old the chain link fence was. Mr. Hermalyn (who owned 8 Fraser from 29 August, 2003 to 26 November, 2008) said that the bark on the trunk of the large tree on the line between 8 Fraser and 84 Mill Street had grown through the chain link fence. He identified this tree as the same tree Mrs. Kepka said their new board fence ended. Mr. Clarke, who owned 84 Mill Street at all relevant times, said that the chain link fence was there during the whole of his ownership.
The Kepkas said that there was no privacy fence along a short piece of the boundary between Fraser and 84 Mill Street until they erected one in July, 1988. Mr. Clarke said it was there for most of his ownership. It was there from July 1987 to July 1989 (see Ex. A, Tab 4). This evidence is consistent with the Skranda survey done on May 27, 1988 which shows a “board fence on line” approximately where, and the approximate length of the privacy fence in Mr. Clarke’s photos. That the privacy fence was partially disassembled in the spring, 1988 (Ex. A, Tab 4, photo 2) suggests that Mr. Kepka’s fence contractor may have started to remove it.
The Kepkas say that there was a six foot tall hedge that ran along the boundary between 8 Fraser and the Mill Street properties that began at the sidewalk on Fraser and extended to the back corner of the house. Mr. Clarke confirmed that the hedge shown in his photo (Ex. A, Tab. 4, photo 2) is the hedge that existed during his tenure at Mill Street. That hedge extended along the lot line with 8 Fraser, only to the limits of 86 Mill Street, which was the house on the corner of Mill and Fraser. The hedge was never six feet tall. The hedge never extended across the lot line of 84 Mill Street. He never had to cut it. All other owners of 8 Fraser confirmed that the hedge stopped at the lot line between 86 and 84 Mill St. They all confirmed that the hedge was situated as set out in surveyor Skranda’s field notes (Ex. A., Tab 5, p. 2). Skranda’s notes indicate the hedge did not (on May 26, 1988) touch the lot line between 8 Fraser and 84 Mill Street.
The Kepkas’ demeanour was aggressive and defensive. Both said that their memory of 28 years ago in a house they occupied for ten months and did not like, was as clear ‘as if it were yesterday’. Their answers tended to be categorical. When he was being cross-examined on an inconsistent statement in a sworn statement made on April 1, 1988, Mr. Kepka became aggressive, saying that the Skranda survey was wrong. He said to counsel “you’re trying to make me look stupid”. When he was questioned about his statement that his memory in the witness box was the same as it was in 1989, he became defensive and aggravated and said “if you don’t believe me that’s your problem.” Mrs. Kepka was aggressive and defensive too. She denied that there was a board fence or privacy fence where the Skranda survey showed one in 1988, and where Mr. Clarke’s photos captured it between 1987 and 1989. She was also aggressive with her statements of the position of the hedge. She agreed that Skranda showed that there was a board fence on the line between 84 Mill and 8 Fraser, but said it was not there when they bought the property “unless it was an invisible board fence.”
[38] The Zuchelkowskis urge me to discount the evidence of witnesses other than the Kepkas because they were all tied to Neil Davis, the principal of Davis, Webb, the Plaintiff’s solicitors.
[39] Mr Davis lived across the street from 8 Fraser. All of the witnesses except the Defendants and the Kepkas knew him as a neighbour. Ms. Merkley, Mr. Clark and Mr. Hermalyn used him as their lawyer at some point. Mrs. Merkley and Mr. Clarke had been at Mr. Davis’ home for his annual Christmas open house. He asked them to “help” the Befforts. The Befforts went to Mr. Davis for advice when the Zuchelkowskis raised the issue of the chain link fence being in the wrong place. Finally, Mrs. Merkley realized, after she sold to the Befforts that she had worked on a charity with one of the Beffort’s mothers.
[40] The Plaintiffs’ solicitor referred to this submission as suggesting a conspiracy or other nefarious undertaking. I accepted the Defendants’ submission to mean simply that because the witnesses and the Befforts had a connection, and because Mr. Webb asked them to help the Befforts, they were more apt to resolve doubts in their minds, subconsciously, in favour of the Befforts. Accepting this latter position, I find no reason in the evidence or the demeanour of the witnesses that suggests that this subconscious re-casting of memory in favour of the Befforts took place. The connection of the witnesses to Mr. Davis is not so close that any of the witnesses is placed in suspicion.
[41] I find that the Kepkas are mistaken, and that there was a chain link fence across the back of 84 Mill Street South’s yard, where Mr. Clarke and Mrs. Merkley said it was.
- What was the Kepkas’ Intention re Occupying the Disputed Lands?
[42] My finding that the chain link fence existed and ran parallel to the 8 Fraser/84 Mill Street property line approximately one meter south of that line, and that the hedge did not run where the Kepkas said it did satisfies the requirement that there was possession for the ten year adverse possession period. The issue of the Kepkas’ intent remains.
[43] Did the Kepkas’ intend to occupy the disputed land, or at least, did they make the same common mistake as Mrs. Merkley and every owner since? I draw the latter inference.
[44] The Kepkas said that the limit of their property on the southern border abutting the Mill Street properties was the hedge and the line of poles with wire along the tops. The pole and wire fence began where the hedge left off. Their position is that they owned up to that line, but nothing on the other side of that line.
[45] I conclude that the Kepkas are mistaken as to where the hedge ran. It ran from the sidewalk, along the lot line separating 8 Fraser from the three Mill Street properties, 86 and 84 Mill Street. It did not extend across the back of 84 Mill Street’s lot.
[46] I accept that the post and wire fence to which the Kepkas’ referred began where the hedge ended and ran to the back corner of the lot of 8 Fraser, across the back, then down the opposite side where it came into contact with the garage. Notwithstanding the Kepkas poor memory, there is no evidence to the contrary from any other witness about this post and wire fence. The Kepkas said that they thought that this post and wire fence ran along the boundary with the Mill Street properties.
[47] Allowing for the vagaries of memory caused by the passing of 26 years since they last saw the property, I find on a balance of probabilities that the post and wire fence the Kepkas described is, in fact, the chain link fence running parallel to the lot line between the properties, and located one meter into 84 Mill Street’s property. There was only one fence between the two properties until the Kepkas put up the board fence that ended at the big tree – the chain link fence. The description of the post and wire fence the Kepkas gave was remarkably similar to the chain link fence. Mrs. Kepka described the posts as sticking up from the ground two feet “maybe higher”. Mr. Kepka described them as sticking up two to four feet. They both described the wire that ran along the top.
Effect of Registering the Survey:
[48] Mrs. Merkley, by her solicitor, registered a document general on September 20, 1989 (Ex. 9) attaching three Statutory Declarations. Mrs. Merkley’s lawyer, Mr. Capp, testified that he registered these documents to clear up a cloud on title. According to Solicitor Capp, there was an old conditional sales agreement pertaining to the property that had been discharged. The conditional sales agreement bore the registration number 27920. The discharge of it, referred to it as 29720. Ms. West, in her sole declaration, clarified this.
[49] Mr. & Mrs. West, in their joint Declaration, and Mr. & Mrs. Kepka in their joint Declaration, both say that they had looked at the Skranda survey (see Ex. A, Tab 5) and swore in para. 4 of each of their Declarations that they are not aware of any claim that anyone has made against the land or the title. Mr. and Mrs. West say in para. 13 of their Declaration that they have no interest in any land abutting the land that is being conveyed, and in para. 14 that they confirm that there have been no additions or alterations to the premises since the date of the survey. The Kepkas refer to the survey as being accurate only with respect to the buildings.
[50] Further, the Defendants point to para. 4 of Mrs. Merkley’s solemn Declaration of 27 August, 2003, when she sold to Mr. Hermalyn (Ex. A, Tab 10), in which se states “To the best of my knowledge and belief … there is no dispute as to the boundaries of the said lands”, and in para. 5, in which she says she retains no interest in abutting lands.
[51] The Defendants say that by registering these documents, especially the survey, Mrs. Merkley acknowledged to the world that she did not intend to possess any of the land on 84 Mill Street. Therefore, the ten year adverse possession period began to run anew. Mrs. Merkley re-set the clock, and the property migrated into Land Titles before the ten year time period could fully run. The Defendants rely upon McClatchie, supra.
[52] I do not accept this position.
[53] With respect to the deposit made by Solicitor Capp, none of those documents contains a declaration by Mrs. Merkley. I was presented with no authority that says a mere deposit in registry of statements made by others in their Statutory Declarations, become the Statements of the depositor, merely by virtue of the deposit. Logically, this makes no sense.
[54] Second, even if the Wests’ statements become the statements of Mrs. Merkley, those statements only pertain to the property before the beginning of the ten year adverse possession period. They are irrelevant.
[55] Third, if the statements contained in the deposited Statutory Declarations become Mrs. Merkley’s statements, the only statements that might be relevant to this argument are those of the Kepkas, as they fall within the ten year period. I found, above, that the Kepkas made the same mutual mistake as Mrs. Merkley. They thought that the chain link fence was the southerly boundary of their property with 84 Mill Street. Because of this mutual mistake, they did not acknowledge to the owner (through notice to the world via registration) that they possessed any part of 84 Mill Street, thereby eliminating the adversity in the possession (see McClatchie, supra, para. 12).
[56] As for the Solemn Declaration Mrs. Merkley made in 2003 (Ex. A, Tab 10), this is irrelevant as it was after the property migrated into Land Titles.
Finding:
[57] I find that the owners of 8 Fraser Avenue, Brampton, have possessed the disputed lands on 84 Mill Street South, Brampton for a period of at least September 21, 1988 to September 21, 1998. I find that the possession, because of the presence of the chain link fence, was open, notorious, peaceful, adverse, exclusive, actual and continuous possession of the disputed land. The owners of 8 Fraser Avenue’s intent to use the disputed land as an owner, and to exclude the owner from use is also uninterrupted for that period. I find that the owners of both 8 Fraser Avenue. and 84 Mill Street had the same opinion: that each owned the land up to their side chain link fence, and not on the other side of it. This was a common error on the part of all owners.
[58] I find that by registering the survey, Mrs. Merkley did not give notice to the world that she did not occupy the disputed lands.
Remedy:
[59] The Plaintiffs seek a wide array of relief. I order as follows:
Declaration: The title holders of 8 Fraser Avenue, Brampton, since September 21, 1998 own the disputed lands on 84 Mill Street South, Brampton, by adverse possession.
Direction: None of the surveys filed as exhibits define the exact boundaries of the disputed lands. Within 30 days of these reasons, the Defendants shall retain a surveyor, at their own expense. The surveyor shall determine and survey the location of the chain link fence formerly located on 84 Mill Street South, shown roughly on Surveyor Papa’s survey completed July 25, 2008, and found at Ex. A, Tab 12, running parallel to the surveyed boundary between 84 Mill Street and 8 Fraser. If the Plaintiffs wish, they may also have their own survey done, at their own expense. All parties shall grant these surveyors access to their properties. The line formed by the location of the removed chain link fence shall be extended to each side lot line of 84 Mill Street South, and will be the new boundary between 84 Mill Street South and 8 Fraser. The Defendants’ surveyor shall set permanent markers at the east and west sides of 84 Mill Street South on the new surveyed line to define the new boundary. Within 30 days of receipt of the survey and report from the Defendants’ surveyor, the owners of the two parcels shall instruct their solicitors to take steps as soon as practicable, and at their own expense, to amend the description in the Land Titles register with respect to their parcels, such that the description of the parcels in the Land Titles register conforms to this Judgment. Once the markers are placed, the Defendants shall have 60 days to move the current fence at the rear of 84 Mill Street, to a point not less than six inches south of the new surveyed line. Moving the fence will be at the Defendant’s expense. I remain seized of the matter should counsel and the parties wish to address any matter arising from the directions set out in this paragraph.
Damages: The Plaintiffs have claimed damages. The Plaintiffs failed to lead any evidence as to who owned the fence that was removed. The Plaintiffs are entitled to damages for inconvenience caused by the Defendants depriving them of the use of their land since the Defendants erected their new wooden fence. The Plaintiffs have not proved quantum. I award nominal damages of $500.
Punitive Damages: The Plaintiffs seek punitive damages. They referred to no authority to support their proposition. On the evidence I find no basis to award punitive damages. In order to award them I would have to find that the Defendants acted in a callous, high handed manner deserving of the approbation of the Court. In this case, the Defendants acted only after they had the Papa survey. The issue of adverse possession was a live issue. With two dogs, they acted reasonably in putting up their fence on the lot lines, even with the objection of the Plaintiffs.
Costs:
[60] If the parties cannot agree on costs, each party may make written submissions as to costs, not exceeding five pages (excluding bills of costs or cases). I will determine the issue on the written material, alone. The Plaintiffs’ submissions must be served and filed within three weeks of the release of these reasons, the Defendants within three weeks of that, and any reply within one week of that.
Trimble J.
Released: January 25, 2016
Amended Date: October 10, 2016
CITATION: Beffort v. Zuchelkovski, 2016 ONSC 583
COURT FILE NO.: CV-09-2745
DATE: 20160125
AMENDED DATE: 20161007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Scott Beffort and Heather Beffort
Plaintiffs
– and –
Zygmunt Zuchelkowski and Jolanta Zuchelkowski
Defendants
REASONS FOR JUDGMENT
Trimble J.
Released: January 25, 2016
Amended Date: October 5, 2016
[^1]: From The Poetry of Robert Frost by Robert Frost, edited by Edward Connery Lathem. Copyright 1916, 1923, 1928, 1930, 1934, 1939, 1947, 1949; Copyright 1969 by Holt Rinehart and Winston, Inc.: Copyright 1936, 1942, 1944, 1945, 1947, 1948, 1951, 1953, 1954, 1956, 1958, 1959, 1961, 1962 by Robert Frost: Copyright 1962, 1967, 1970 by Leslie Frost Ballantine. See also https://www.poets.org/poetsorg/poem/mending-wall