Gibb v. Pereira, 2017 ONSC 4762

CITATION: Gibb v. Pereira, 2017 ONSC 4762

COURT FILE NO.: 1324-13

DATE: 2017/08/08

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: GILLEAN GIBB[^1] (Plaintiff)

And:

LILIANA MARIA PEREIRA (Defendant)

BEFORE: Justice I. F. Leach

COUNSEL: William Dewar, for the plaintiff

Jeremy Forrest, for the defendant HEARD: September 16, 2016

ENDORSEMENT

Introduction

[1] Before me is a motion for partial summary judgment brought by the plaintiff, seeking declaratory relief, as well as associated injunctions and mandatory orders, relating to a narrow strip of land (“the strip” or “disputed property”)[^2] that lies between the plaintiff’s house, (known by its municipal address as 569 Grosvenor Street in the city of London, and henceforth referred to as “569”), and the defendant’s house, (known by its municipal address as 573 Grosvenor Street in the city of London, and henceforth referred to as “573”).

[2] In that regard, the plaintiff relies principally on an assertion that any possible right of the defendant to title and possession in relation to the strip was extinguished many years ago by extended adverse possession, (i.e., by her predecessors in title vis-à-vis the predecessors in title of the defendant), and provisions of the Real Property Limitations Act, R.S.O. 1990, c.L.15.

[3] The plaintiff submits that there is no genuine issue requiring a trial in that regard, or in relation to her claims for ancillary relief that would:

• confirm her possessory title to the relevant strip of property;
• facilitate formal registrations reflecting that title; and
• restrain various forms of past and anticipated interference with her enjoyment of the relevant property by the defendant.

[4] She accordingly seeks partial summary judgment, along with costs of the motion and partial costs of the action on a substantial indemnity basis, with an order directing a trial or reference to determine and quantify damages possibly owed to the plaintiff as a result of the defendant’s conduct.

[5] In response, the defendant denies the plaintiff’s entitlement to any form of relief based on alleged adverse possession, submitting that the evidence tendered by the plaintiff is problematic and insufficient to support timely and sufficient adverse possession in the sense required.

[6] The defendant accordingly says there is no proper basis for the plaintiff’s claims, (including the imposition of any restrictions on the defendant’s use of property that is truly hers), let alone summary judgment. The defendant therefore seeks an order dismissing not only the plaintiff’s summary judgment motion but the plaintiff’s action as well, together costs of the motion and action on a substantial indemnity basis.[^3]

[7] Before turning to a consideration of the evidence filed by the parties in support of their respective positions, and an analysis of which party should prevail, I think it helpful to outline, at the outset, legislation and principles relating to the law of adverse possession and summary judgment.

Adverse possession

[8] In relation to the law of adverse possession, relevant legislation and principles include the following:

• In Ontario, adverse possession claims are based on sections 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c.L.15. Section 4 of that legislation establishes a ten-year limitation period in which a dispossessed legal owner must bring an action to recover possession of land. By section 15 of that legislation, when a legal owner has not attempted to recover his or her land within ten years after the right to bring an action or make entry accrued, the right and title of that owner of the land is extinguished.[^4] At that point, not only is a formal action to recover the land barred by statute, but recovery of possession through self-help is not valid. Once adverse possession has endured for the requisite minimum period of ten years, the party asserting adverse possession has superior title to the property. The previous owner thereafter cannot become revested with any right of property or title except by conveyance. In particular, the extinguished title is not revested by re-entry or by subsequent acknowledgment of title. Indeed, re-entry by the previous owner at that point would be a trespass.[^5] The rule protects the settled expectations of an adverse possessor who has acted on the assumption that his or her occupation will not be disturbed, as “long dormant claims have often more of cruelty than of justice in them”.[^6]
• A person claiming a possessory title as against the legal owner of land generally must establish each of the following for such a claim to succeed: that the claimant and/or those through whom he or she claims had actual possession of the relevant land for the required minimum statutory period of ten years; that such possession was effected with the intention of excluding from possession the true owner or persons entitled to possession; and that possession of the relevant land by the true owner and any others entitled to possession effectively was excluded for that minimum statutory period.[^7] In that regard:
  • The “actual possession” required over the minimum 10-year period must be open, notorious, constant, continuous, adverse and exclusive of the right of the true owner. In particular, “open and notorious” possession is that which shows that the claimant is using the property as an owner might, effectively putting the true owner on notice that the relevant statutory period has started to run such that delay may fairly be held against the true owner.[^8] Enclosure of the relevant land, (e.g., by a fence, chain, retaining wall or hedge), may provide useful evidence of the requisite possession, but is neither a necessary nor sufficient act.[^9] The element of continuity means that, as a general rule, occupation will not suffice if it is merely occasional or for a limited, special or temporary purpose.[^10] The element of “adversity” means that the claimant is in possession of the property without the permission of the owner. For example, if a claimant acknowledges the right of the true owner, or the claimant is in possession with the consent of the true owner, then the relevant possession will not be “adverse” in the sense required.[^11]
  • An “intention of excluding the true owner”, (referred to in some of the authorities as animus possidendi), involves an intention to exclude the owner from such use as the owner wants to make of the property. It is reflected in use of the property by the claimant that is inconsistent with the use of the true owner; i.e., “inconsistent use” whereby the claimant’s possession effectively excludes the true owner and the entitled use which the true owner intended for the disputed land.[^12]
  • However, the second of the three criteria noted above, (i.e., an intention to exclude the true owner and “inconsistent use” in the sense required), does not apply to cases of honest mutual mistake, (where the true owner and person in possession both operate under a mistaken belief as to title or boundaries), or to cases of honest unilateral mistake, (where the person in possession operates under the honestly held belief that he or she is the rightful owner of the relevant property), as opposed to cases involving an intentional trespasser who occupies property knowing it is legally owned by someone else. The law should protect good faith reliance on bona fide boundary errors. In such cases of mutual or unilateral mistake, an inference therefore may be drawn that the occupier was in possession of the land with the intention of excluding all others including the legal owners. Put another way, in such cases the second criteria or aspect of the test generally applied to claims of adverse possession may be presumed to have been met, in the absence of evidence to the contrary.[^13]
  • In determining whether there has been “actual exclusion of the true owners”, the court considers the conduct of the owners and possessory claimants in relation to the land.[^14] It does not take much by the paper title owner to interrupt another party’s exclusive possession. For example, the requisite 10 year minimum period of adverse possession effectively may be interrupted, and have to start anew, by accepted evidence of an isolated instance of the titled owner setting foot on the relevant land.[^15] However, absence of objection to the use or occupation of the disputed lands may be evidence that the true owner has been dispossessed.[^16]
• Whether a prescriptive title has been acquired through adverse possession is a question of fact which must be determined in the light of the particular circumstances of each case. Acts which amount to sufficient possession in one case may be wholly inadequate to establish it in another. Matters such as the nature of the property, the appropriate and natural uses to which it can be put, and the course of conduct which the owner might reasonably be expected to adopt with due regard to his own interests, are all matters to be considered.[^17]
• Once land is registered under the Land Titles Act, R.S.O. 1990, c.L.5, no new rights of adverse possession may be acquired.[^18]
• However, existing rights of adverse possession survive conversion of a property into the Land Titles system. In particular, the Land Titles Act does protect a “crystallized”, “matured” or “fully ripened” possessory title, provided the requisite ten year period of adverse possession has elapsed as of the relevant date of a property’s conversion into the Land Titles system. A right based on adverse possession, perfected prior to that date, can be asserted even many years after that date.[^19]
• Claims to possessory title in relation to property, based on adverse possession arising prior to registration of the property in the Land Titles system, accordingly may be advanced pursuant to the Land Titles Act, supra. The claimant nevertheless must establish, on a balance of probabilities, that the requirements of adverse possession were satisfied over a requisite minimum 10 year period, prior to the date on which the property was converted into the Land Titles system.[^20]
• The combined effect of sections 4 and 15 of the Real Property Limitations Act is merely negative, in the sense that it extinguishes the right and title of the dispossessed owner, without then positively transferring or conveying the right or title of the dispossessed owner to the “usurper” who has demonstrated the requisite adverse possession. However, it leaves parties who have established such adverse possession with an effective possessory title gained by the fact of possession and the absence of the right of others to eject them, (as those having the sole right to eject them have lost title).[^21] In the discretion of the court, such parties nevertheless may be entitled to a declaration of possessory title to the lands[^22], and/or a declaration that the titled owner’s right to possession of and title to the lands in question is extinguished.[^23] Moreover, such parties may be registered as owners of land with a possessory title, pursuant to section 36(1) of the Land Titles Act, supra.

Summary judgment

[9] As for summary judgment, the relevant legislative provisions are found in Rule 20 of Ontario’s Rules of Civil Procedure.

[10] Pursuant to Rule 20.01(1), a plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in a statement of claim.

[11] Numerous additional “sub-rules” outline the manner in which the court must approach such a motion, and the powers the court has in that regard. They include the following:

• Pursuant to Rule 20.02(1), an affidavit for use on a motion for summary judgment may be made on information and belief, if the source of the information and the fact of the belief are specified in the affidavit, as required by subrule 39.01(4). However, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.
• Pursuant to Rule 20.02(2), a defendant responding to a plaintiff’s motion for summary judgment may not rest solely on the allegations or denials in his or her pleadings, but “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. This has been supplemented by repeated judicial admonitions emphasizing, in various ways, that a respondent to a such a motion is not permitted “to sit back and rely on the possibility that more favourable facts may develop at trial”, and is instead required to “lead trump or risk losing” and “put its best foot forward”, as “the court is entitled to assume that the record contains all the evidence the parties would present at trial”. See, for example: Pizza Pizza Ltd v. Gillespie (1990), 1990 4023 (ON SC), 75 O.R. (2d) 225 (Gen.Div.); 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 (C.A.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen.Div.); and Toronto-Dominion Bank v. Hylton, 2012 ONCA 614, [2012] O.J. No. 4309 (C.A.).
• Pursuant to Rule 20.04(2), the court is obliged to grant summary judgment if it satisfied “that there is no genuine issue requiring a trial with respect to a claim”.
• In making that determination, the court is to consider the evidence submitted by the parties, and pursuant to Rule 20.04(2.1), may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, “unless it is in the interest of justice for such powers to be exercise only at trial”. In the exercise of those powers, the court also has the ability, pursuant to Rule 20.04(2.2), to order presentation of oral evidence by one or more of the parties; i.e., to direct a “mini-trial”.
• Where the only genuine issue is the amount of the plaintiff’s entitlement, the court has the ability, pursuant to Rule 20.04(3), to order a trial of that issue, or grant judgment with a reference to determine the amount. Similarly, pursuant to Rule 20.04(4), where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly.
• Where summary judgment is refused or granted only in part, the court nevertheless has additional powers, pursuant to Rules 20.05(1) and (2), to specify what material facts are not in dispute, define the issues to be tried, order that the action proceed to trial expeditiously, and make numerous further orders and directions that may be just in the circumstances.

[12] In Hyrniak v. Mauldin, supra, the Supreme Court of Canada encouraged the use of Ontario’s summary judgment rule to resolve cases in an expeditious manner provided that can achieve a fair and just adjudication.

[13] Speaking for the court, the comments of Justice Karakatsanis in that regard included the following, (at paragraphs 1, 2 and 27 of the Hyrniak decision):

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. …

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect the modern reality and recognize that new models of adjudication can be fair and just. …

There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

[14] Consistent with that general approach and philosophy, Justice Karakatsanis indicated, at paragraph 22 of Bruno Appliance and Furniture, Inc. v. Hyrniak, 2014 SCC 7, [2014] 1 S.C.R. 87, (a companion action to Hyrniak v. Mauldin, supra), that summary judgment would be appropriate where a matter “can be resolved in a fair and just manner”, which will be the case when the process:

i. allows the judge to make the necessary findings of fact;

ii. allows the judge to apply the law to the facts; and

iii. is a proportionate, more expeditious and less expensive means to achieve a just result.

[15] Justice Karakatsanis went on to say, in the same paragraph, that if there appeared to be a genuine issue requiring a trial, based only on the record before a judge hearing a summary judgment motion, that judge must then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. If so, those powers may then be used at the judge’s discretion, “provided that their use is not against the interest of justice”.

Drawing of inferences on summary judgment motions relating to adverse possession

[16] Before moving on to a consideration of the evidence filed in relation to the plaintiff’s summary judgment motion, and whether the matter is amenable to partial or full summary judgment being granted in favour of one party or the other, I pause to address the defendant’s considerable reliance on the following passage found at paragraph 14 of Justice Morgan’s decision in Maras v. Milianis, supra:

It should be noted that section 34 of the Limitations Act, 2002, S.O. 2002, c.24, Sched. B, stipulates that any claim of adverse possession requires “strict proof”. The Respondent cannot establish possessory title by inference; rather, he must bring specific evidence of 10 year exclusive possession.

[17] With respect, for numerous reasons I do not think that passage has the significance defence counsel thinks it does.

[18] First, there is no section 34 to Schedule B of the Limitations Act, 2002, supra. The Act itself has provisions divided into 25 sections, and the Act’s “Schedule B” sets forth a table, containing no section numbers at all. It seems likely that Justice Morgan’s comment instead was an intended reference to section 34 of the Real Property Limitations Act, supra. However, the citation error also suggests that Justice Morgan was not referred to the actual underlying legislation.

[19] Second, if the passage was an intended reference to section 34 of the Real Property Limitations Act, supra, the actual text of those provisions does not correspond to the paraphrased summary or interpretation set forth in Justice Morgan’s comment, (which reinforces my impression that Justice Morgan was not referred to the actual text of the underlying legislation), and I respectfully think the meaning and scope attributed to section 34, (if that was the intention), is simply incorrect. In particular:

• Section 34 does not say that it applies to “any claim of adverse possession”, or to claims seeking to “establish possessory title”. Indeed, section 34 contains no mention whatsoever of “adverse possession” or “possessory title”.
• Section 34 instead specifically states that it applies “in the cases mentioned in and provided for by this Act, of claims to ways, water courses or other easements”.[^24] [Emphasis added.] In my view, that is clearly a reference to the specific limitation period set forth in section 31 of the Real Property Limitations Act, supra, which expressly deals with claims “by custom, prescription or grant, to any way or other easement, or to any water course”.[^25] [Emphasis added.]
• In my view, the text of section 34 contains no wording to suggest that the scope of its intended application was to extend beyond claims governed by section 31, (i.e., claims to rights of way, water courses or other easements), to also encompass claims of a fundamentally different nature governed by sections 4 and 15 of the Act, (e.g., entry or actions to recover land). As emphasized by the authorities set out above, claims for possessory title based on sections 4 and 15 of the Real Property Limitations Act extinguish the title of a previous owner and give rise to a possessory title in favour of the possessor. That clearly is a very different thing from claims to ways, easements and watercourse, wherein a claimant seeks certain limited rights of passage or waterflow over land in respect of which the original owner retains title.

[20] Third, in my view, the suggestion that no inferences may be made in relation to “any claim of adverse possession”, or to any claim to “establish possessory title”, is entirely at odds with the numerous authorities outlined above, including decisions of our Court of Appeal, emphasizing the inferences are possible and appropriate in relation to deciding certain claims based on adverse possession.[^26]

[21] With great respect to Justice Morgan, and contrary to the submission of defence counsel, I accordingly do not think there are any applicable legislative constraints, created by section 34 of the Real Property Limitations Act, supra, on my ability to draw otherwise permissible and reasonable inferences in accordance with the authorities dealing with adverse possession; and the provisions of Rule 20, including Rule 20.04(2.1)3, if I think resort to that additional power is necessary and appropriate in the circumstances.

Evidence – Party filings

[22] I turn next to an overview of the material filed by the parties in support of their respective positions.

[23] In doing so, I note at the outset that neither party apparently thought it necessary to conduct cross-examinations on affidavit material pursuant to Rule 39.02, or examine other witnesses pursuant to Rule 39.03, prior to hearing of the motion.[^27] The evidence relied upon by the parties therefore was limited to their respective documentary filings.

[24] In that regard, the plaintiff filed material that included the following:

a. An affidavit sworn by the plaintiff, (who apparently purchased 569 on January 14, 2008, and has since resided there with her husband and family), included in the plaintiff’s motion record.

b. A “stand alone” brief titled “Book of Plaintiff’s Exhibits”, (but alternatively referred to by the plaintiff, in her affidavit, as the “Plaintiff’s Exhibit Book” or “Exhibit Book”), not included in the plaintiff’s motion record or attached to an affidavit, which contains eight numbered and tabbed documents:

i. a copy of the plaintiff’s statement of claim;

ii. a copy of the defendant’s statement of defence;

iii. the agreement of purchase of sale whereby the defendant acquired title to 573 on August 31, 2009;

iv. a letter before action dated October 23, 2012, sent by courier from plaintiff counsel to the defendant, asserting and outlining the plaintiff’s claim of adverse possession;

v. a letter dated September 9, 2012, sent by plaintiff counsel to defence counsel, requesting production of any survey in the defendant’s possession;

vi. a letter dated December 18, 2014, (albeit without its indicated attachment), sent by defence counsel to plaintiff counsel, forwarding a copy of the requested survey;

vii. a chart suggesting accumulated years of claimed ownership through adverse possession, from January of 1954 to October 12, 2012; and

viii. a chart summarizing the respective ownership of 569 and 573 from February 27, 1947, to the present.

c. A “stand alone” brief of photographs, (not included in the plaintiff’s motion record or otherwise attached to an affidavit), apparently marked as Exhibit #1 during the oral examination for discovery of the plaintiff which took place on May 14, 2015.

d. A “stand alone” brief of certified title documents, (not included in the plaintiff’s motion record or otherwise attached to an affidavit), filed in the public registers maintained pursuant to the Registry Act, R.S.O. 1990, c.R.20, and Land Titles Act, R.S.O. 1990, c.L.5, outlining and confirming the chain of those holding title to 569 from January 21, 1954, to date.

e. A “stand alone” brief of certified title documents, (not included in the plaintiff’s motion record or otherwise attached to an affidavit), filed in the same public registers, outlining and confirming the chain of those holding title to the defendant’s neighbouring residential property, 573, from February 18, 1947, to date.

f. A typed “will say” statement sworn by Caroline and Therese Quigley, (two surviving members of a family that apparently owned and lived at 569 from January 21, 1954, until August 15, 1983), included in the plaintiff’s motion record.

g. An email ostensibly sent to plaintiff counsel by Libby McCallum, (formerly Elizabeth Bryan), who apparently grew up at 565 Grosvenor Street in the City of London; i.e., the second residential property immediately to the west of 569. Ms McCallum then apparently married and lived at 573 with her husband Barry McCallum, as joint owners of that property, from July 12, 1979, to November 10, 1987. The relevant email is included in the plaintiff’s motion record, (at a separate tab entry), but is not otherwise attached to any affidavit.

h. An affidavit sworn by Constance McDonald, formerly Constance Kenwell, (who owned and lived at 569 from June 29, 1990, to April 2, 1998),[^28] included in the plaintiff’s motion record along with a number of photographs attached to Ms McDonald’s affidavit as exhibits.

i. An affidavit sworn by Paul Brock, (who lived at 569 with his wife Jocelyn Brock, as joint owners of the property, from May 2, 2003, to February 15, 2006), included in the plaintiff’s motion record.

j. An affidavit sworn by Antonio Soares, (who lived at 569 with his wife Kyrsta Hesketh, as joint owners, from February 15, 2006, to January 14, 2008), included in the plaintiff’s motion record.

k. The affidavit sworn by Bruce Baker, (a licenced Ontario land surveyor), noted and described above.

[25] During the course of oral submissions, plaintiff counsel also provided the court with additional documents, not tendered as evidence in support of the motion but as material offered to assist the court in summarizing the plaintiff’s view of evidence already filed. In particular, plaintiff counsel tendered a suggested chronology of relevant events from 1954 to 1992, and a corresponding table presenting a suggested summary of 569 and 573 ownership from 1954 to 1992. Both documents were marked as exhibits for identification. I accepted and had regard to those documents as partial written submissions from plaintiff counsel, and not as evidence.

[26] Before proceeding further, I think it appropriate to note my view that there were a number of irregularities and concerns, of varying significance, in relation to the material tendered by the plaintiff as evidence.

[27] For example, in relation to the sworn evidence provided by the Quigley sisters:

• That evidence is provided by a document that deviates from the format requirements for affidavits set forth in Rule 4.06(1)(a) and Form 4D; e.g., it is styled as a “Will Say Statement” rather than an “affidavit”, and employs the words “state as follows” rather than the prescribed words “MAKE OATH AND SAY (or AFFIRM)”, although the jurat indicates that the document was indeed sworn by the two sisters.
• For such reasons, defence counsel briefly questioned in passing, during the course of oral submissions, whether the document providing evidence from the Quigley sisters therefore should be treated as an affidavit, or given the same weight as a sworn affidavit.
• I also note that the document, somewhat unusually, was sworn by two persons rather than one, (even though some portions of the affidavit are described therein as being the evidence of Therese Quigley alone, while other portions are described therein as being the evidence of Caroline Quigley alone), without employing a separate jurat for each deponent.
• In my view, however, these identified irregularities should not undermine the admissibility or weight to be given to the evidence thus provided by the Quigley sisters.
• Despite the nomenclature employed, and minor deviations from prescribed form, there appears to have been general compliance with most of the requirements of Rules 4.06(1), and in my view, the document effectively is a sworn affidavit in all but self-appellation.
• Moreover, I note that the Rule 4.06(1)(b) requirement of expressing affidavits “in the first person” does not rule out use of the “first person plural”, and Rule 4.06(4) expressly contemplates an affidavit made by two or more deponents, with a single jurat, if all the deponents make the affidavit before the same person at the same time. In that respect, there is a further deviation from the rules, in that Rule 4.06(4) then requires the single jurat to read “Sworn (or affirmed) by the above-named deponents”, whereas the single jurat on the sworn “Will Say Statement” reads “Severally sworn before me at the city of London, County of Middlesex, this 29th day of December, 2014”. However, I think the jurat employed accomplishes the underlying intent of the applicable Rule provisions, in effectively documenting that both deponents swore the document before the same commissioner on the same occasion. There was no suggestion to the contrary.

[28] In relation to the “stand alone” briefs or other documents not attached to an affidavit, including the email ostensibly sent to plaintiff counsel by Ms McCallum:

• Rule 39.01(1) of the Rules of Civil Procedure, generally applicable to all motions, indicates that evidence on a motion may be given by affidavit, unless a statute or other provisions of the Rules provide otherwise. In the past, some courts accordingly have emphasized that documents cannot simply be filed with the court in a motion record without being proved by affidavit or oral evidence.[^29]
• However, Rule 4.06(3) expressly contemplates the possibility of exhibits being filed with and without their being physically attached to and filed with an affidavit. In the former case, Rule 4.06(3)(a) contemplates that the deponent’s affidavit will refer to an exhibit being attached to the affidavit, with the attachment then being made. In the latter case, Rule 4.06(3)(b) contemplates that the deponent’s affidavit will refer to an exhibit being produced and shown to the deponent, in which case it is not to be attached to the affidavit or filed with it, but filed (“left with the registrar for use of the court”) after being served with the relevant affidavit (in the case of documents). When either route has been taken, an exhibit effectively will have been introduced or “proven” by an affidavit sworn by a deponent, who can then be cross-examined about the exhibit, if necessary, pursuant to Rule 39.02.
• The material filed by the plaintiff arguably deviates from those Rule 4.06(3) requirements. In particular, the plaintiff’s sworn affidavit clearly and repeatedly makes express and often detailed reference to documents in the “Book of Plaintiff’s Exhibits”, to the “Brief of Certified Title Documents” relating to 569, to the “Brief of Certified Title Documents” relating to 573, to the “Plaintiff’s Book of Photographs”, and to the email ostensibly sent to plaintiff counsel by Ms McCallum; i.e., to what “Mrs McCallum herself says…in her email dated April 14, 2013”.[^30] The plaintiff nevertheless does not refer to such documents as attachments to her affidavit, and they are not attached to that affidavit. Nor does the plaintiff’s affidavit expressly refer to such documents being produced and shown to her.[^31]
• In my view, however, the significance of such deviations is inconsequential or relatively modest in the particular circumstances of this case, for reasons that include the following:
  • In her affidavit, the plaintiff may not have used wording expressly indicating that a particular document was being “produced and shown” to her. However, use of that specific wording is not expressly required by Rule 4.06(3), and it seems to me that the underlying reality of that having been done is quite clear from the content of the plaintiff’s affidavit. For example, in her affidavit, the plaintiff makes detailed references to particular tab and photograph numbers within those briefs, to specific historical date entries and information that seem inherently unmemorable without reference to the indicated records, and to extended quotations from the email specifically dated and attributed to Ms McCallum. In the circumstances, it seems to me that excluding the non-attached material which the plaintiff clearly seems to have seen and to which she repeatedly makes reference, because of a failure to use particular wording in the plaintiff’s affidavit, would represent a triumph of form over substance.
  • In the course of his written and oral submissions, defence counsel expressed no objection or concerns regarding the plaintiff’s filing or reliance upon the “Book of Plaintiff’s Exhibits”, “Plaintiff’s Book of Photographs”, “Brief of Certified Title Documents” relating to 569, or “Brief of Certified Title Documents” relating to 573, and such documents essentially were admitted into evidence on consent. Indeed, defence counsel expressly made reference to some of that material, (e.g., the “Brief of Title Documents” relating to 573), during the course of his submissions. Moreover, it seems to me that the briefs of certified title documents, at least, are admissible evidence in any event by virtue of section 32 of the Ontario Evidence Act, R.S.O. 1990, c.E.23.
  • Defence counsel did raise specific concerns about the email from Ms McCallum being admitted as evidence, without being formally produced as an exhibit to a sworn affidavit. However, it seemed to me that his concern in that regard actually focused on the hearsay aspects of that evidence, (insofar as the evidence was not provided in a sworn format by Ms McCallum herself), rather than failure to present the email properly as an exhibit, through a sworn affidavit.[^32] Indeed, during the course of his oral submissions, defence counsel sought to rely on certain content of the relevant email, (e.g., references by Ms McCallum to the possibility of ladders being placed on or near the strip to clean eavestroughs, and to her husband believing the relevant property line was further to the west than the 573 house itself), as evidence supporting his opposition to a finding of exclusive possession by the owners of 569, or “honest mistake” as to boundaries. Such reliance runs counter to the email being ruled completely inadmissible as evidence.
  • On the whole, for the reasons outlined above, I am not inclined to exclude the aforesaid documents, filed by the plaintiff but not affidavits themselves or identified documents attached to exhibits, owing to any failure to comply with the requirements of Rule 4.06.[^33]

[29] In relation to the affidavit evidence tendered by the plaintiff, (including the plaintiff’s own affidavit and the sworn “Will Say Statement” of the Quigley sisters), there are concerns about the admissibility of certain indications contained therein for reasons other than the irregularities already mentioned above. For example:

• I agree with defence counsel that certain portions of that material contain impermissible speculation.[^34] I intend to place no reliance on such evidence. However, that does not render the remaining portions of such material inadmissible.
• In my view, certain portions of the evidentiary material filed by the plaintiff also contain assertions constituting impermissible argument and/or legal conclusions.[^35] I intend to place no reliance on that sort of evidence either. Once again, however, that does not render the remaining portions of such material inadmissible.
• I note that, at paragraph 29 of her affidavit, the plaintiff makes reference to certain material, (i.e., the defendant’s affidavit of documents and certain photographs apparently referenced therein, depicting construction of a new fence between the properties by the defendant and her boyfriend), which do not seem to have been filed as evidence in relation to this motion. For obvious reasons, I therefore place no weight on such evidence, (although building of the relevant fence by the defendant and her boyfriend is not disputed in any event).[^36]
• I agree with defence counsel that there are hearsay aspects to some of the affidavit evidence filed by the plaintiff. In that regard:
  • I nevertheless disagree with particular “hearsay” characterizations suggested by defence counsel in the course of his submissions.[^37]
  • In the context of summary judgment motions, reliance on hearsay evidence is permitted to some extent by the provisions of Rule 39.01(4), which allows an affidavit to contain statements of a deponent’s information and belief “if the source of the information and the fact of the belief are specified in the affidavit”, and Rule 20.02(1), which permits but does not requiring the drawing of an adverse inference “from the failure of a party to provide the evidence of any person having personal knowledge of contested facts”.
  • In many if not most instances of reliance on hearsay by the plaintiff, (e.g., where the plaintiff effectively indicates her belief in assertions of what was said to her by Mr Soares upon the plaintiff’s purchase of the property, or expressly relies upon the content of other sworn affidavits filed in support of her motion), there are efforts made to comply with the requirements of Rule 39.01(4), and the drawing of an adverse inference pursuant to Rule 20.02(1) seems inappropriate; e.g., because the plaintiff has tendered an affidavit sworn by the otherwise “hearsay declarant”, effectively making that person available for cross-examination pursuant to Rule 39.02.
  • In my view, by far the most significant instance of true hearsay evidence relied upon by the plaintiff, and the one underlying the principal hearsay concern and objection of the defendant, relates to the plaintiff’s reliance upon the truth of the substantive assertions set forth in the email ostensibly sent to plaintiff counsel by Ms McCallum on April 14, 2013.
  • In certain respects, there arguably is an aspect of artificiality to the professed hearsay concerns and objections of the defendant in that regard. In particular, the defendant offered no evidence whatsoever to contradict that tendered by the plaintiff, in relation to use or occupation of 569 and 573 prior to the defendant’s purchase of her property. There accordingly is nothing “contentious” about the hearsay assertions of Ms McCallum, in the sense of having to decide whether that evidence or other competing evidence should be preferred. Indeed, as noted above and below, defence counsel sought to rely on the email assertions of Ms McCallum, in certain respects. Moreover, the whereabouts of Ms McCallum seem to be known or knowable, (in the sense that plaintiff counsel apparently has access to both her telephone number and email address), and the defendant accordingly could have employed Rule 39.03 to secure the direct testimony of Ms McCallum, if that was truly thought to be desirable or necessary.
  • However, I am mindful of the reality that the plaintiff has the onus of proving, on the balance of probabilities, the requisite sustained adverse possession for the minimum required 10 year period prior to conversion of the strip into the Land Titles system in 1992. The possible evidence of Ms McCallum has inherent relevance and importance in that regard, as she not only owned and lived at 573 from July 12, 1979 to November 10, 1987, but apparently grew up in a nearby residence and visited 569 regularly in the years before 1979, according to the sworn evidence of the Quigley sisters. Despite plaintiff counsel apparently being in contact with Ms McCallum by telephone and email, there nevertheless was a noticeable failure to obtain and provide direct sworn evidence from Ms McCallum, in stark contrast to the approach taken vis-à-vis past owners and occupants of 569. No explanation was provided for the failure, and the basis for assessing the credibility and reliability of Ms McCallum was provided only indirectly, through the title documentation and the sworn evidence of the Quigley sisters. In the circumstances, even if paragraphs 48-50 can be construed as including specifications as to the plaintiff’s belief in Ms McCallum’s email assertions and the source of that belief, I think it appropriate to draw an adverse inference that Ms McCallum was unwilling to provide sworn evidence confirming the assertions in her email. That in turn has led me to exclude and place no weight on the email in deciding this motion.

[30] The defendant responded to the plaintiff’s material by filing her own affidavit, attaching exhibits that included the following:

• an abstract of title for 573 obtained on August 15, 2016;
• an abstract of title for 569 obtained on August 15, 2016;
• a copy of the electronic registration of power of sale Transfer, dated October 1, 2009, whereby the defendant acquired title to 573;
• a survey dated December 18, 2013, prepared by other licenced surveyors retained by the defendant, (i.e., Holstead & Redmond Limited); and
• an obituary relating to the death of Margaret Jane Fradgley, on July 17, 2004, which makes indirect reference to the prior death of Ms Fradgley’s parents Frank and Lyall Morkin, who were the owners of 573 from February 27, 1947, to July 12, 1979.

[31] There were no irregularities asserted or noted in relation to the evidence tendered by the defendant, and I independently found none.

[32] In my view, there similarly were no material hearsay aspects to the defendant’s evidence, apart from the obvious inferences I was asked to draw from the aforesaid obituary notice, (concerning the deaths of Frank and Lyall Morkin, and their corresponding inability to provide evidence), and the substantive accuracy of the survey commissioned by the defendant, (which was not introduced or supported by any affidavit from the surveyors, including confirmation of their expertise and recognition of an expert’s duties).

Summary judgment

[33] With that extended introduction and overview, and bearing in mind the legislation and principles outlined above, I turn next to consideration of whether the underlying questions raised by this motion, concerning the merit of the plaintiff’s claims to superior title over the strip via adverse possession, and requests for declarations, mandatory orders and permanent injunctive relief to protect such a title, are amenable to adjudication by summary judgment.

[34] Both the plaintiff and the defendant clearly believe that they are, as each party requested summary judgment resolving such issues in her favour. In other words, neither party believes there are any genuine issues requiring a trial in relation to the plaintiff’s “adverse possession” claims, and associated requests for declarations, mandatory orders and injunctive relief.

[35] I agree with the parties, and independently find that there is no genuine issue require a trial with respect to the plaintiff’s claims that are the subject of this motion. Without limiting the generality of the foregoing:

• While disputing that the evidence tendered by the plaintiff is sufficient to establish requisite adverse possession of the strip by the plaintiff’s predecessors in title, prior to the strip’s conversion to the Land Titles system, absolutely no contradictory evidence or indeed evidence of any kind was tendered in that regard by the defendant.
• In effect, the approach taken by the defendant, at least in relation to the plaintiff’s claims asserting a superior possessory title via adverse possession, is that contemplated and prohibited by Rule 20.02. In other words, in relation to those issues, the responding defendant has rested solely on the denials in her pleading, and accordingly has failed to establish a genuine issue requiring a trial, in relation to such issues, because she has not set out, “in affidavit material or other evidence”, specific facts showing that there is a genuine issue requiring a trial in that regard. That does not mean the plaintiff necessarily is entitled to judgment in her favour, in relation to those issues. In particular, the plaintiff still has the onus of proving the requisite adverse possession, on a balance of probabilities. However, it does mean that “no genuine issue requiring trial” has or can be established, according to the rules, and a judgment in relation to those issues should issue.
• In any event, I independently find that the merits of the plaintiff’s claims asserting adverse possession, sufficient to establish a possessory title, “can be resolved in a fair and just manner” by summary judgment. I am entitled to assume that the admissible evidence presented is all that would be available at trial and, with some resort to the additional powers available to me pursuant to Rule 20.04(2.1)[^38], I think I am able to make the necessary findings of fact, and apply the law to the facts, in order to resolve the parties’ dispute in that regard without putting either to the further delay and expense of a trial to resolve such issues.
• Moreover, I independently find that the plaintiff’s claims for declarations, mandatory orders and permanent injunctive relief are similarly capable of being “resolved in a just and fair manner” by summary judgment. In that regard, both parties filed evidence relevant to the need for such orders, to protect any superior possessory title via adverse possession established by the plaintiff. However, for reasons outlined in more detail below, I think there was little or no contradiction in relation to the evidence justifying such relief, and that any relevant contradictions or gaps in that evidence are capable of being addressed by resort to the additional powers available to me pursuant to Rule 20.04(2).[^39]

[36] I accordingly move on to consideration and determination of the plaintiff’s claims on their merits.

Adverse possession

[37] It was not disputed that both 569 and 573, including the relevant strip of property, were converted into the Land Titles system on or about June 8, 1992.

[38] As per the authorities outlined above, the plaintiff accordingly has the onus of proving, on a balance of probabilities, that requisite adverse possession by her predecessors in title occurred, for an uninterrupted period of at least 10 years, prior to that date.

[39] While the plaintiff filed considerable evidence relating to possession and use of the strip from 1954 to the present, (with some intermittent gaps), I frankly think that the sworn evidence of Caroline Quigley and Therese Quigley is sufficient, in the particular circumstances of this case, to satisfy the plaintiff’s onus.

[40] Despite defence counsel’s suggestions to the contrary, I find no reason to doubt the credibility or reliability of the evidence provided by the Quigley sisters. Without limiting the generality of the foregoing:

• There is nothing whatsoever in the evidence to suggest that either sister has any interest in the outcome of this dispute, or any reason to favour one party or the other in giving evidence. The sisters’ familial interest in 569 ended completely in August of 1983, more than 31 years before the swearing of their affidavit. Although they apparently were friends with the Morkins and McCallums, who successively owned and resided at 573 between 1947 and November of 1987, (a period covering the entire period of the corresponding ownership of 569 by the Quigley family), those other families disposed of their interest in 573 more than 27 years before the Quigley sisters swore their affidavit.
• Although defence counsel suggested that the sworn evidence of the sisters should be largely discounted and/or dismissed as unreliable childhood recollection, in my view there really was little or nothing to justify such an approach. To the contrary:
  • While the affidavit sworn by the sisters contains no express indication of their respective birth dates and corresponding ages, in my view there are indirect indications providing satisfactory evidence of sufficient maturity for one or both sisters to recall events during most of the 29-year-and-8-month period of 569 occupation addressed by their affidavit. In particular:
    • The sisters effectively indicate they both were alive and members of the Quigley family when that family moved into 569 Grosvenor Street on January 21, 1954.[^40] In my view, even if both sisters were quite young at the time of the 1954 move, they would have gained sufficient maturity to recall, with accuracy, events from much of the family’s occupation of 569, and certainly for 10 year periods extending well into their respective adult years.
    • The affidavit refers to Therese Quigley attending primary school from 1958 to 1966, suggesting that she was born in or around 1953 or 1954, shortly before the family’s move from Talbot Street to 569, (if one takes judicial notice that children traditionally have started school at the age of 4 or 5 in Ontario). There is no similar indication of the years when Caroline attended primary school. However, if Caroline also was alive by the time of the move, it seems reasonable to infer that she must have been older than Therese.
    • Moreover, the affidavit also speaks to the two sisters being “children and teenagers” at the time of a hedge’s planting “in the mid-sixties”. That suggests Caroline is considerably older than Therese.
  • It seems to me that even young children are likely to be familiar with and able to recall events in and around their home, which obviously serves as the focal point of most childhood experience. Indeed, they are likely to remember details which may very well not have been the focus or notice of a more adult perspective, such as the sisters’ indications of their regular placement of bicycles, and the strip being filled by friends’ bicycles during regular neighbourhood ball games played in the backyard of 569.
• In my view, the reliability of the sisters’ observations concerning the strip also seems heightened by their obvious joint agreement on most matters set forth in their affidavit, and indications that they were assigned responsibility for regular summer and winter maintenance of that area of the family property; e.g., personally trimming a hedge separating 569 and 573, and “chopping up the ice” that fell from both roofs and built up between the houses.

[41] In my view, the Quigley sisters provide emphatic and categorical evidence that their family had actual possession of the land between the two houses, including the strip, throughout the years the family owned and occupied 569. In that regard, the sisters’ sworn evidence included the following indications:

• “For all intensive purposes”, (presumably meaning “for all intents and purposes”), the entire space between the houses at 573 and 569 respectively, including the strip, was “exclusively used” by the Quigley family.[^41]
• Over “all the years” of their residence at 569, the Quigley family maintained the entire walkway space between the two houses, “all the way over to the side (westerly) wall” of the house at 573. As the sisters put it: “we alone managed this space year round”.[^42]
• In the mid-1960s, the Quigley family planted and thereafter exclusively maintained a privet hedge which grew quickly, thickly and densely to meet the southwest corner of the house at 573, thereby physically sealing off and separating the respective backyards of 569 and 573 from each other for the remainder of the Quigleys’ time at 569. The Quigleys did so by watering, trimming and pruning the hedge on both sides, as well as the top.[^43]
• As noted above, the Quigleys assumed responsibility for chopping up fallen and accumulated ice that built up between the houses in winter. Moreover, I think it reasonable to infer, from such maintenance, that the Quigleys were using the strip for transit purposes on a regular basis, such that maintenance was needed in order to have such transit continue during the winter months.
• As mentioned above, the Quigleys also kept their bicycles between the two houses, and “the lane way between the houses was filled with bikes” when the neighbourhood ball games were scheduled for the Quigleys’ backyard.

[42] In my view, the aforesaid uses made of the strip by the Quigleys inherently were open and notorious. In particular, the Quigleys were using the strip as an owner might, and there was no evidence to indicate or even suggest that there was anything clandestine about their activities. Moreover, as emphasized by defence counsel, there is no evidence to suggest that the north entrance to the space between the houses was fenced or gated during the Quigleys’ time at 569.[^44] Their use and maintenance of the strip therefore was capable of being seen by the Morkins and the McCallums, (the successive owners of 573 for 25 and 4 years respectively, during the Quigleys time at 569), had they chosen to look. Furthermore, I think it reasonable to infer that the Morkins and McCallums must have been aware that the Quigleys were maintaining the hedge from both sides, as the Quigleys obviously must have entered the backyard of 573 on a regular basis to do so.

[43] In my view, the aforesaid possession and use of the strip by the Quigleys also was constant and continuous, in the sense required. Again, the sisters emphasize that it was “year round”, and provided specifics of regular summer and winter maintenance. There was no evidence to suggest that the Quigleys’ use of the strip was only for a limited, special or temporary purpose.

[44] I think the sisters’ evidence also makes it clear that the Quigleys’ possession and use of the strip was “adverse”, in the required sense that it was done without the permission of the owner. In that regard, the sisters emphasize that the Quigleys believed they owned the strip, and that the Morkins and McCallums “had absolutely nothing to do with the walkway space between the houses”.[^45] They also swear that the Morkins and McCallums “believed it belonged to the Quigleys”.^46 Even if one discounts and rejects the latter assertion as impermissible speculation as to what the Morkins and McCallums actually may have believed, in my view the sisters’ evidence is completely at odds with any suggestion that the Quigleys secured or felt the need to secure any permission or consent from the Morkins or McCallums to possess and use the strip. Nor is there any evidence whatsoever to suggest that the Quigleys ever acknowledged rights of the Morkins or McCallums in relation to the strip, or that the Morkins or McCallums provided any form of consent or permission to the Quigleys to possess and use the strip.

[45] Although defence counsel questioned the sufficiency of all such evidence to establish actual possession of the strip in the sense required, there is simply no evidence to contradict that of the sisters, and no other relevant evidence to weigh in the balance.

[46] I accordingly find that the plaintiff has established, on a balance of probabilities, satisfaction of the first of the criteria for adverse possession; i.e., that her predecessors in title, (the Quigleys), had actual possession of the relevant land, (the strip), for the minimum statutory period of ten years. Indeed, the completely uncontradicted evidence of the sisters indicates that the Quigleys had actual possession of the strip for a much longer period; i.e., more than 29 years.

[47] As for the second of the three criteria normally required for adverse possession, (i.e., an intention to exclude the true owner and “inconsistent use” in the sense required), in my view that requirement does not apply to present case, according to the authorities outlined above. In that regard:

• As noted above, in their affidavit, the Quigley sisters swear that the Quigleys and the Morkins and McCallums believed the strip belonged to the Quigleys[^47], which would make the case one of honest mutual mistake; i.e., a case where the persons in possession and the true owners were operating under a mistaken belief as to the true title or boundary between their respective properties. Even if one discounts and rejects the sisters’ evidence of what the Morkins and McCallums believed, (i.e., as impermissible speculation), there is still the absence of any evidence of an objection by the titled owners, (i.e., the Morkins or McCallums), to the Quigleys’ use and occupation of the strip. Pursuant to the authorities outlined above, that in itself gives rise to a reasonable inference that the titled owners also believed the strip was the property of the Quigleys.[^48]
• At the very least, the evidence before me clearly establishes that this is a case of honest unilateral mistake, insofar as the Quigleys possessed and used the strip under an honestly held belief that they were the rightful owners of the property. In that regard, there is simply no evidence to undermine or contradict the sworn evidence of the Quigley sisters that their family believed the strip “belonged to the Quigleys”.[^49]
• Pursuant to the authorities outlined above, I accordingly find it permissible and reasonable to infer that the Quigleys were in possession of the strip with the intention of excluding all others, including the legal owners of the strip, (i.e., the Morkins and McCallums), who formally held title to the strip. Put another way, the second criteria is presumed to be met in such cases of honest mistake, in the absence of evidence to the contrary, and there is no evidence to the contrary in this case.

[48] As for the last of the applicable criteria that must be satisfied to establish a valid claim to possessory title based on adverse possession, (i.e., that there was “actual exclusion of the true owners”), I think this too has been established on a balance of probabilities, based on the evidence before me, and the sworn affidavit of the Quigley sisters in particular. In that regard:

• In their affidavit, the sisters repeatedly emphasize that their family’s use, maintenance and accessing of the strip was “exclusive”, and exercised “exclusively”, during the entire period of their residence at 569.[^50]
• The sisters also emphasize that the Morkins and McCallums “had absolutely nothing to do with the walkway space between the houses”.[^51]
• The sisters also swear that they do not recall ever seeing the Morkins or the McCallums using the walkway space between the houses for access purposes, and emphasize that access between the walkway and the backyard of 573 became physically impossible in any event once the privet hedge was planted in the mid-sixties and quickly grew to a point where it made contact with the southwest corner of the house at 573.[^52]
• The sisters also emphasize numerous other considerations, in addition to lack of access between the strip and the backyard to 573, effectively indicating that there was little or no reason for the successive owners of 573 to access the strip while the Quigleys were residing at 569. For example, the sisters swear that the west side the house at 573 had no driveway, no entrances or exits, no electricity stacks or meters mounted, no water hose spool, no lights, nor “any other such installations”, and that such features were located on the eastern side of the house at 573.[^53]
• In their affidavit, the sisters also swear that the hedge was planted by their family to foster and respect privacy between the two properties, as the Morkins living at 573 were elderly, and the Quigleys had seven children living in their residence at 569.[^54] In my view, such evidence gives rise to a reasonable inference, (consistent with the memories and evidence of the sisters of never seeing the Morkins using the strip), that the Morkins generally would not be inclined to access that area during the period of the Quigleys’ residence.
• While there was no fence or other barrier physically obstructing access to the strip from its north end, during the time of the Quigleys’ residence at 569, the authorities noted above confirm that such an enclosure is not required to establish effective exclusion of the true owner, in the sense required.
• Moreover, as noted above, the absence of objection to use or occupation of the strip by the Quigleys, (and there is no evidence of any such objection in this case), provides further evidence that the “true owners” had been dispossessed throughout the period of the Quigleys’ residence at 569.

[49] In the course of oral submissions, defence counsel emphasized, in accordance with the authorities cited above, that it would not take much for the true owners of the strip, (i.e., the Morkins or the McCallums, during the period of the Quigleys residence at 569), to interrupt any period of exclusion by the Quigleys, effectively restarting the statutory period of adverse possession required to establish possessory title.

[50] For example, it was emphasized that even one fleeting occasion of access by the Morkins or McCallums to the strip, to effect repairs or maintenance, at intervals just under 10 years during the course of the Quigleys’ residence at 569, would have sufficed to frustrate any successful claim by the Quigleys of adverse possession giving rise to possessory title.

[51] All of that is true.

[52] However, in my view, the simple reality is that there is absolutely no evidence of any entry onto the strip, by the Morkins or the McCallums, during the 29-year period of the Quigleys residence at 569 and their corresponding exclusive use and occupation of the strip throughout that period. Moreover, the available sworn evidence indicates that the contrary is true.

[53] Defence counsel asked me to assume that there reasonably must have been such access during the course of that period, to effect maintenance or repairs. In my view, however, making such an assumption, contrary to the available evidence, would entail impermissible speculation rather than reasonable inference. In that regard:

• The evidence before me indicates that there was little on the west side of the house at 573, during the period of the Quigleys’ occupation of 569, that would necessitate access or maintenance.
• The evidence also indicates that the Morkins were elderly neighbours, with whom the Quigleys enjoyed a cordial relationship, and that the Quigleys provided considerable voluntary and neighbourly assistance to the Morkins by providing substantial maintenance in relation to 573; e.g., trimming the hedge between the properties on both sides, (including the side facing the backyard of 573), mowing the front and back lawns of 573, and shovelling snow at 573.[^55] In the circumstances, and given the other uncontradicted evidence of the Quigleys exercising exclusive access and maintenance in relation to the entire area between the two houses, I think it would be just as reasonable, if not more reasonable, to assume or infer that the Quigleys voluntarily would have performed any necessary repairs or maintenance to 573 requiring access to or from the strip.[^56]
• As noted above, to counter the plaintiff’s assertion that the actual owners of the strip were excluded for the requisite minimum statutory period, one would have to assume not just one interruption of such exclusion by the true owners during the 29 year period of the Quigleys’ residence at 569, but several such interruptions, occurring not more than 10 years apart. In my view, that simply underscores the inappropriate nature of making such assumptions repeatedly, in favour of the defendant, contrary to the available sworn evidence.

[54] In the result, I find that the plaintiff also has established, on a balance of probabilities, uninterrupted actual exclusion by the true owners of the strip for a period of at least ten years.

[55] The plaintiff accordingly has established each of the applicable requirements necessary to demonstrate a possessory title that matured or crystallized before the strip was converted into the Land Titles system.

[56] Again, I think the uncontradicted sworn evidence of the Quigley sisters alone is sufficient to reach that conclusion.

[57] However, I also think that conclusion is buttressed by the evidence of subsequent owners of 569, who have provided sworn evidence consistent with a sustained belief, conduct and understanding, in the years following the departure of the Quigleys, that the complete space between the houses was owned, and capable of exclusive occupation and use, by those holding title to 569.

[58] For example, even excluding the evidence of Ms McCallum’s hearsay email assertions, for the reasons outlined above, I think it telling that, according to the sworn affidavit evidence of Ms McDonald:

• When she and her husband purchased 569 in June of 1990, (almost seven years after the departure of the Quigleys), access between the backyard of 573 and the strip was still blocked entirely by the surviving privet hedge, while the northern entrance to the strip was still not enclosed by any fence or other barrier.[^57]
• Like the Quigleys, the situation presenting itself to Ms McDonald and her husband made them honestly believe that they were the true owners of the entire space between the two houses, to the exclusion of all others.[^58]
• Like the Quigleys, Ms McDonald and her husband exclusively used and maintained the entire area between the houses as their own, right over to the west wall of the house at 573, and never asked for any permission in that regard from the owners of 573.[^59]
• Like the Morkins and McCallums, those who owned and occupied 573 while Ms McDonald and her husband owned and occupied 569 never entered the space between the houses, from any direction, and never used or maintained the space at all.[^60]
• Ms McDonald and her husband were able to tear out the privet hedge, replace it with a fence that similarly sealed off the backyard of 573 from the strip, and install and maintain a fence and gate barrier at the northern end of the strip, (thereby increasing the physical exclusivity of the strip), without any interest or objection whatsoever from the owners of 573.[^61]

[59] In my view, all of that evidence, from an additional independent witness who has absolutely no interest in the outcome of these proceedings, serves a number of purposes. In particular:

• It supports the reasonableness and probable accuracy of the sworn evidence provided by the Quigley sisters, in relation to such matters as the absence of any need for the owners of 573 to access the strip to perform repairs and maintenance;[^62]
• From June 29, 1990, until conversion of the strip into the Land Titles system on or about June 8, 1992, it provides direct evidence of a further period during which the requirements of adverse possession seem to be met, for reasons similar to the analysis set forth above in relation to the period of occupation and use by the Quigleys; and
• It provides indirect evidence that an understanding and exercise of exclusive adverse possession of the strip by the owners and occupiers of 569, described by the Quigleys, effectively had been passed on and sustained as between the subsequent owners and occupiers of the two properties, between the time of the Quigleys’ departure and Ms McDonald’s arrival.

[60] On the last point, further evidence of similar conduct and understandings between the owners of 569 and 573, subsequent to the conversion date, arguably might provide further indirect evidence of the practices and situation existing prior to the conversion date; i.e., not because adverse possession after the conversion date can itself create any valid possessory title, (as it most certainly cannot), but because evidence of an “inherited” understanding, consistently passed on and followed by successive owners, might provide further indirect evidence of an effectively accepted and recognized possessory title that matured and crystallized before the conversion date.

[61] However, I think it unnecessary to carry out further examination and review of the additional evidence tendered by the plaintiff, in support of her adverse possession claim.

[62] For the reasons outlined above, (including the sufficiency of the sworn evidence provided by the Quigley sisters), the plaintiff already has proven her claim in that regard, on a balance of probabilities.

Relief

DECLARATORY RELIEF

[63] The plaintiff has sought numerous remedies in her notice of motion, starting with requests, in sub-paragraphs 1(a)(i), 1(a)(ii) and 1(a)(iii) of that notice of motion’s prayer for relief, for declarations:

i. “that the defendant’s right to possession of and title to” the disputed strip of land, specifically described and delineated in the plan of survey prepared by Mr Baker, “is extinguished pursuant to the Real Property Limitations Act”;

ii. “that the plaintiff has a valid possessory title to the said lands”; and

iii. “that the plaintiff may be registered as the owner in fee simple of such lands, with an absolute unqualified title there to pursuant to the Land Titles Act”.

[64] I think it fair to say that the relief sought in sub-paragraphs 1(a)(i) and 1(a)(ii) of the notice of motion’s prayer for relief corresponds, with slight variations in form, to the relief sought in sub-paragraphs 1(a) and 1(b) of the plaintiff’s statement of claim.

[65] As noted above, where a claimant has demonstrated satisfaction by the claimant and/or his or her predecessors in title of the applicable requirements for adverse possession in relation to land, for the minimum period required by statute, prior to conversion of that land into the Land Titles system, (as the plaintiff has done in this case for the reasons outlined above), the court has the discretion to grant such a claimant the sort of relief sought in sub-paragraphs 1(a)(i) and 1(a)(ii) of the notice of motion prayer for relief.[^63]

[66] In the circumstances, I see no reason why the plaintiff should not be granted such relief by way of partial summary judgment, having regard to the considerations set forth in Hyrniak v. Mauldin, supra.

[67] A final order accordingly should go, granting partial summary judgment awarding the relief requested at sub-paragraphs 1(a)(i) and 1(a)(ii) of the notice of motion, except that the wording of the order shall be revised so as to correct and include the proper statutory citation; i.e., the Real Property Limitations Act, R.S.O. 1990, c.L.15.[^64]

[68] As for the declaratory relief sought by sub-paragraph 1(a)(iii) of the prayer for relief in the plaintiff’s notice of motion, the following legislative provisions are found at section 36 of the Land Titles Act, supra:

Possessory title may be registered

36. (1) Where on an application for first registration it appears that the application is so entitled by virtue of length of possession of the land, the applicant may be registered as the owner of the land with a possessory title.

Absolute title based on possession

(2) Subject to the approval of the Director of Titles, an application for first registration whose claim to ownership is based upon length of possession of the land may be registered as the owner in fee simple with an absolute title of the land.

[Emphasis added.]

[69] I find the wording of the relief sought by the plaintiff in that regard problematic.

[70] In particular, the relief seeks a declaration that the plaintiff “may” be registered as the owner in fee simple of the specified strip of land “pursuant to the Land Titles Act”. That quoted wording may suggest not only mere possibility, but also a mere possibility subject to the discretionary approval authority expressly conferred by the Legislature on the Director of Titles. If so, a court declaration would seem to be of little consequence, which in turn may suggest to a reader of such a declaratory order that the court intended something more; i.e., a court sanctioned “override” of the authority conferred by the Legislature on the Director of Titles.

[71] I was provided with no authority or submissions to support the possibility of any such “override”. Nor, to my knowledge, was the plaintiff’s motion record served on the Director of Titles, who might very well have views on the matter and submissions to make in that regard.

[72] In the circumstances, I decline to grant the relief requested at sub-paragraph 1(a)(iii) of the prayer for relief in the plaintiff’s notice of motion. However, I do so without prejudice to the plaintiff’s ability to seek further assistance from the court, on proper notice to the Director of Titles, if attempts to secure her desired registration, (e.g., through reliance on these reasons and the other relief ordered herein), are unsuccessful.

MANDATORY ORDERS AND INJUNCTIVE RELIEF

[73] In sub-paragraphs 1(a)(iv) through 1(a)(vii) inclusive of the prayer for relief in the plaintiff’s notice of motion, the plaintiff seeks a number of mandatory orders and a permanent injunction. Those requests correspond, in large measure, to requests for such permanent relief included within sub-paragraphs 1(e) of the plaintiff’s statement of claim.

[74] Such desired relief seeks to address, in various ways, the plaintiff’s concerns regarding alleged past and threatened interference, by the defendant, with the plaintiff’s now confirmed superior title to the relevant strip of land.

[75] In my view, the evidence before me substantiates such concerns, and warrants partial summary judgment granting of such relief.

[76] In that regard, the plaintiff’s affidavit includes detailed evidence of various and repeated intrusions by the defendant onto the strip, and associated acts of apparently deliberate disturbance and/or destruction. For example, the plaintiff’s sworn evidence includes the following indications:

• On or about August 10-12, 2012, the defendant moved garbage bins the plaintiff had been placing on strip. The defendant also placed many bags of dirt directly on top of well-established ground cover, growing on the strip, that had been planted and maintained by the plaintiff and/or previous owners of 569 Grosvenor Street. Placement of the bags suggested a deliberate attempt to kill the relevant ground cover.
• During the week following August 12, 2012, the defendant placed and rearranged bags of dirt on the strip’s ground cover on three further occasions. On each occasion, the defendant would move bags of dirt back into position over the ground cover, countering repeated efforts by the plaintiff to move the bags off the ground cover, and once again suggesting a deliberate attempt by the defendant to kill the relevant ground cover on the strip.
• On August 26, 2012, (after the plaintiff and her husband had begun locking the gate providing access to the strip from its north end), the defendant removed vertical fence boards from the east-west portion of the fence, erected in 1992 by the plaintiff’s predecessors in title, running along the southern end of the strip.
• On the evening of August 31, 2012, the defendant uprooted and removed two small cedar trees from the strip, and re-planted them in the defendant’s backyard. The defendant also covered the entire length of the strip with dirt, effectively killing the groundcover and plants installed and maintained by the plaintiff and her predecessors in title.
• On October 12, 2012, (approximately 12 or 13 days after the aforesaid vertical fence boards had been restored by the plaintiff’s husband), the defendant once again removed the relevant fence boards. Other actions taken on that occasion by the defendant, in relation to the strip, included placement of more dirt, laying of new fence boards around the ground, placement of stakes in the ground, and the stringing of upper and lower lines along the length of the strip to mark the course for construction of a fence.
• From October 13 to 21, 2012, the defendant and her boyfriend erected a board fence between the two houses; work that included the digging of holes, and placement of fence posts in those holes, before the holes were then filled with concrete. A subsequent survey belatedly obtained by the defendant herself, in December of 2013, would confirm that the fence thus erected by the defendant and her boyfriend actually was located to the west of the strip, on property unquestionably owned by the plaintiff. In any event, the defendant and her boyfriend self-evidently accessed and crossed the strip on a sustained basis to erect the new fence.
• In late November of 2013, the defendant and her boyfriend verbally and physically interfered with efforts by the plaintiff’s husband to dismantle the fence constructed by the defendant and her boyfriend, and related efforts by the plaintiff’s husband to restore the vertical boards of the 1992 fence. (Those actions by the plaintiff’s husband were taken after the provision of written notice exchanged through lawyers retained by the parties.)
• Since November of 2013, the defendant has persisted in placing and re-arranging various items and articles on the strip, including a hose spool or reel, a black garbage bag, an inverted bucket with piled items including long-festering dog feces, as well as other debris and refuse. The defendant has done so deliberately; e.g., by bringing items from her undisputed property to the strip, and by moving such items back onto the strip after temporary efforts by the plaintiff to relocate them onto other nearby areas of property indisputably owned by the defendant. In a similar fashion, the defendant has taken to placing her domestic garbage at the north end of the strip, (despite previously placing it on her front porch facing Grosvenor street), with associated odours, blown garbage and rolling garbage containers.

[77] None of that conduct alleged by the plaintiff and described in the previous paragraph was disputed by the defendant in her responding material, or in the other evidence before me. I accordingly find that such actions occurred, as alleged by the plaintiff.

[78] I also find that all of that conduct by the defendant and/or boyfriend was done without the plaintiff’s direct or indirect permission or consent.

[79] In that regard, the defendant’s responding material contains no suggestion of any such permission or consent in relation to the conduct described above, with the possible exception of removal of the fence boards and removal and replanting of the shrubs.[^65]

[80] In relation to removal of the fence boards, the defendant alleged that she had made express statements to the plaintiff’s husband “in or about mid-August” indicating her intention to remove the fence boards and the shrubs, and the plaintiff’s husband expressed no objections. In my view, however:

• The suggestion of any such statements and implied consent is completely at odds with the undisputed evidence that the plaintiff and her husband began locking the front gate to the strip, during the week of August 10-17, 2012, to prevent the defendant’s further access to and interference with the strip, and its landscaping in particular.
• The suggestion of any such statements and implied consent is also entirely inconsistent with the undisputed and repeated efforts by the plaintiff and her husband to replace the removed fence boards.
• The defendant’s evidence concerning the timing of her alleged statements to the plaintiff’s husband is noticeably vague, compared to the plaintiff’s very specific evidence as to the dates and timing of the defendant’s actions in removing the fence boards and the shrubs, and the details of efforts taken by the plaintiff and her husband in response and opposition.
• I also think it telling that, according to the undisputed evidence of the plaintiff, the defendant chose to remove the relevant fence boards and shrubs at times when the plaintiff and her family were temporarily absent from their residence. That suggests to me that the defendant knew her intended conduct would meet with objections, disapproval and possible intervention by the plaintiff and her husband.
• I also think it abundantly clear, from the defendant’s responding material and position on the motion, that she felt entitled to do as she pleased in relation to the strip, without having to seek any permission in that regard. The suggestion of her having canvassed any of her intentions in that regard with the plaintiff’s husband seems quite inconsistent with that outlook.
• On balance, I therefore think it reasonable to prefer the evidence of the plaintiff as being more credible on this point, and accept her clear indications that such actions by the defendant were taken without discussion, notice or consent.
• In addition, I think it reasonable to infer that there were no such statements or implicit consent, vis-à-vis the plaintiff’s husband, as suggested by the defendant. To the contrary, I think a more reasonable inference is that the defendant resorted to removal of fencing in response to the plaintiff and her husband locking the gate at the north end of the strip; i.e., in response to their efforts to prevent the defendant’s further interference with extant landscaping of the strip. Similarly, in such circumstances, I think it reasonable to infer that the defendant knew or ought to have known that such further access and interference by her, in relation to the strip, was opposed by the plaintiff and her husband.

[81] In addition to the above incidents of access and interference with the strip described by the plaintiff, the defendant herself indicates, in her responding affidavit, that she repeatedly has entered upon the strip for various reasons since purchasing the property in 2009; e.g., to remove plant growth and rocks, effect occasional repairs and maintenance to windows or vents, to apply mulch and topsoil, and install the new fence opposed by the plaintiff and her husband.[^66]

[82] Based on the evidence before me, I think it reasonable to infer that, with the exception of a described incident wherein the defendant and contractors hired by her accessed the strip to brick in some upper windows of the defendant’s house, such activities described by the defendant also were done without the direct or indirect consent of the plaintiff. In that regard, my considerations include the following:

• In support of her complaints that the defendant has been improperly accessing and using the strip, despite the plaintiff’s right to possessory title over the strip that crystallized and matured before the defendant ever purchased or came to 573 Grosvenor Street, the plaintiff provided a detailed chronology and account of known instances where that had happened. Those details included reference to instances where access occurred with the plaintiff’s knowledge and consent, (i.e., the window-bricking occasion, in respect of which the plaintiff swears that the defendant requested and was granted permission to access the strip), as well as instances where discovered access and use of the strip by the defendant was done without the plaintiff’s prior knowledge or consent from the plaintiff, (e.g., incidents relating to the defendant’s deposits of dirt or topsoil, and the defendant’s installation of the disputed new fence). I think it very unlikely that the plaintiff would have omitted reference to any other known instances of the defendant accessing or the strip. Further references to such incidents inherently would not have undermined the plaintiff’s fundamental assertion of a superior possessory title that crystallized and matured before the plaintiff ever purchased or came to 573 Grosvenor street, and would have bolstered the plaintiff’s position concerning the need for injunctive relief.
• Although defendant claims to “have clearly demonstrated to the plaintiff that title to the side yard vests exclusively with me”, the defendant herself provides little or no evidence that her described instances of access and use of the strip were ever witnessed by the plaintiff, the plaintiff’s husband, or other members of the plaintiff’s family.[^67] On the whole, the defendant’s evidence is consistent with the plaintiff’s repeated and uncontested sworn indications that the defendant repeatedly chose to access the strip when the plaintiff and her family were temporarily absent from their home.
• The position asserted by the defendant on this motion is that she felt entitled to access and use the strip without having to secure any form of direct or indirect permission from the plaintiff. That in itself makes it unlikely that any efforts were made by her to obtain any such permission or consent.

[83] In short, the evidence confirms that the plaintiff has well-founded concerns about the plaintiff accessing and interfering with the strip without the plaintiff’s knowledge or permission.

[84] Even if the defendant had a sincere belief in her right to access and use the strip, she actually had no legal right to do so. As noted above, once a valid claim of possessory title through adverse possession has crystallized or matured, after satisfaction of the necessary conditions for the requisite minimum period of ten years, and before conversion of the property into the Land Titles system, recovery of possession through self-help is not valid, and re-entry by the previous owner, or by his or successors in title, actually constitutes a trespass.[^68]

[85] Now that the plaintiff’s superior possessory title to the strip has been confirmed, one might hope that the defendant and her successors in title would acknowledge and respect that title, voluntarily removing all items deposited or installed on the strip without the plaintiff’s permission, (including the disputed new fence constructed by the defendant and her boyfriend), and voluntarily refraining from any further access or use of the strip without the plaintiff’s permission.

[86] However, the evidence before me contains troubling indications that the defendant and her boyfriend have not approached this unfortunate dispute in a civil or forthright manner. For example, the plaintiff’s sworn evidence includes the following indications, which were not disputed or contradicted by the defendant in her responding evidence:

• Relative harmony and peace between the two neighbours lasted for approximately three years after the defendant’s purchase of 573 Grosvenor Street, with no disputes concerning the strip, until the plaintiff requested reimbursement for the cost of an umbrella that was damaged by a tree falling from the defendant’s backyard onto the property of the plaintiff. Efforts by the defendant to access and interfere with the strip escalated almost immediately thereafter, resulting in the present formal dispute.
• When the plaintiff and her husband objected to interference with the 1992 fence, in August of 2012, the defendant and her boyfriend insisted that the defendant had spent money on a survey that justified her actions. That was untrue. Through formal discovery processes in this litigation, it eventually was revealed and confirmed that the defendant actually did not commission and obtain a survey until December of 2013, (approximately 14 months after building the disputed fence and approximately 5 months after the onset of this litigation), and the relevant survey was not disclosed to plaintiff counsel for a further year after that.
• In a verbal confrontation between the parties in August of 1992, during which the plaintiff and her husband asked the defendant to preserve the status quo, and refrain from further interference with the strip’s existing fence or landscaping “while the matter got sorted out legally”, the defendant was very hostile, rude and dismissive” of the plaintiff and her husband, talking over them in a “taunting, rude and sarcastic manner”.
• During a further confrontation in November of 2013, (when the plaintiff’s husband embarked on efforts to repair the 1992 fence and dismantle the new fence built on the plaintiff’s undisputed property, after the provision of formal notice of such intentions through counsel), the defendant reacted with “screaming and yelling”, and the defendant’s boyfriend reacted with violence and threatened violence; e.g., “violently kicking out the newly replaced vertical boards” on the 1992 fence, and grabbing a hose while threatening to spray the plaintiff’s husband with water.
• The aforesaid confrontation in November of 2013 ended with police involvement, and a police-brokered agreement that the plaintiff’s husband would stop dismantling the new fence and remove the replaced vertical boards of the 1992 fence, while the defendant and her boyfriend would do nothing further to assert ownership of the strip pending a decision by the court. All concerned agreed that, apart from removal of the replacement boards on the 1992 fence, the property was to remain as the police officer had found it. That included an opening in the new disputed fence, which had been partially dismantled by the plaintiff’s husband. The plaintiff and her husband have honoured that agreement, but the defendant has not; e.g., continuing with deliberate efforts to place various items, (including items of an offensive nature such as odorous garbage and festering dog feces), on areas of the strip squarely in the view of the plaintiff and her family via the partial opening in the disputed new fence. During the course of her oral discovery examination, the defendant was asked squarely if there was any reason for such actions apart from an intention on her part to antagonize the plaintiff and her husband, and the defendant responded that she did not know of any.
• During a further confrontation in May of 2014, during which the plaintiff had attempted to move debris from the strip onto the defendant’s undisputed property, the defendant reacted with verbal abuse, violence and threats of violence. In particular, in an aggressive “face to face” manner, the defendant angrily screamed at the plaintiff saying “I hate you” and “I hate looking at your face”, while also calling the plaintiff a “cunt” and a “fucking bitch”. Moreover, the defendant knocked debris out of the plaintiff’s hands twice, repeatedly yelling “Do you want this to get physical?”
• Although the defendant’s own survey confirmed that the fence erected by her and her boyfriend actually encroached on the plaintiff’s undisputed property by approximately 5-6 inches, and the defendant accordingly was made aware of that indisputable trespass in December of 2013, the defendant ignored and/or refused requests by the plaintiff that the fence be removed, and actively opposed efforts by the plaintiff and her husband to dismantle the fence, until the defendant hired contractors to relocate the fence closer to her house in June of 2015.

[87] These repeated indications of petty, vindictive, aggressive, dishonest and uncivil behaviour in turn give rise, I think, to legitimate concerns about how the defendant and her boyfriend may act in the future if the plaintiff’s now-established rights are not bolstered by mandatory orders and injunctive relief such as that sought by the plaintiff.

[88] The defendant opposes the granting of such relief. In particular, it was submitted that a permanent injunction would be inappropriate, as such relief “should be granted only after a final adjudication”, and the parties to this dispute will still need to address quantification of damages claimed by the plaintiff. In that regard, the defendant relied on the Court of Appeal’s decision in 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, [2014] O.J. No. 697 (C.A.).

[89] With respect, the Buckley case involved quite different circumstances. The claimant in that case had sought interim and interlocutory injunctive relief, and the Court of Appeal found that the judge at first instance improperly changed the underlying order from an interlocutory one to a permanent one without explanation, in circumstances where no permanent injunctive relief had even been requested, and apparently without recognizing that the tests for interlocutory and permanent injunctive relief were different. Our Court of appeal emphasized, inter alia, that:

• interim and interlocutory injunctions are forms of “pre-trial” relief, imposed in ongoing cases, whereas permanent injunctions are granted “after a final adjudication of rights”; and
• whereas interlocutory injunctive relief requires satisfaction of the familiar three-part test set forth in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, at paragraph 25, that test does not apply to permanent injunctive relief, where the court decides, after a final adjudication of rights, whether an injunction is an appropriate remedy.

[90] In my view, the defendant’s submission fails to understand the implications of summary judgment, which permits “final adjudication” of disputes in whole or in part without the necessity of a trial.

[91] There accordingly now has been a “final adjudication” of the plaintiff’s claim to superior title over the strip, by virtue of sufficient adverse position that matured and crystallized, for the requisite statutory period, prior to conversion of that property into the Land Titles system.

[92] The court accordingly is entitled to now determine whether or not mandatory orders and permanent injunctive relief are appropriate, in the circumstances, to protect those now-confirmed rights going forward. That the plaintiff may have additional remaining claims for damages for past infringements of the plaintiff’s now-confirmed rights does not change that fundamental reality. The plaintiff’s claim for such damages may be at an interlocutory stage, but the plaintiff’s claims for mandatory orders and permanent injunctive relief, (expressly requested by the plaintiff in this case), are not.

[93] In the circumstances outlined above, (e.g., with demonstrated past violations of the plaintiff’s now confirmed rights in relation to the strip, and conduct by the defendant and her boyfriend giving rise to legitimate concerns about their future approach to use of the strip and relations with the plaintiff and her family), and having regard to the considerations set forth in Hyrniak v. Mauldin, supra, I think it appropriate to grant, by way of further partial summary judgment, and with some modifications, the relief requested in sub-paragraphs 1(a)(iv) through 1(a)(vii) of the prayer for relief in the plaintiff’s notice of motion.

[94] In particular, by way of further partial summary judgment, I make the following additional orders:

a. The defendant shall, within three weeks following release of this decision, take down and remove the board fence erected by the defendant on the strip, failing which the plaintiff may remove the fence at the defendant’s expense; i.e., with the plaintiff initially incurring such charges as may be reasonably necessary in that regard, and the defendant providing prompt reimbursement of such charges upon the provision of corresponding receipts.

b. The defendant shall, within one week following release of this decision, remove all articles and items of personal property belonging to her or other occupants of 573 Grosvenor Street, (including but not limited to debris, pet excrement, garbage and refuse), from the strip, failing which the plaintiff may remove and dispose of any and all such items, without any obligation whatsoever to provide an accounting to the plaintiff in relation to such items, and at the plaintiff’s expense; i.e., with the plaintiff initially incurring such charges as may be reasonably necessary in that regard, and the defendant providing prompt reimbursement of such charges upon the provision of corresponding receipts.

c. The defendant shall, within three weeks following release of this decision, replace any and all missing fence boards in the fence that existed in the area between 569 Grosvenor Street and 573 Grosvenor street when the defendant purchased the property at 573 Grosvenor street, failing which the plaintiff may restore such fence boards at the defendant’s expense; i.e., with the plaintiff initially incurring such charges as may be reasonably necessary in that regard, and the defendant providing prompt reimbursement of such charges upon the provision of corresponding receipts.

d. Following release of this decision, the defendant and her agents may access the strip only for the limited and specific purposes, and only for the limited times, identified in the preceding three paragraphs. The defendant, her successors in title and the agents of either otherwise shall otherwise refrain, (in the absence of written consent obtained in advance from the plaintiff or her successors in title, permitting access to effect specified repairs or maintenance in relation to the property at 573 Grosvenor Street, with such consent not to be withheld unreasonably), from doing any of the following:

i. accessing the strip;

ii. erecting any fence or other structure on the strip;

iii. removing or altering any fence on the strip maintained by the plaintiff or her successors in title;

iv. leaving or depositing any articles of property on the strip; or

v. annoying or harassing the plaintiff or members of her family.

[95] In the formal order to be taken out, to reflect this decision, suitable indications should be included to ensure that what I have referred to herein as the “strip” conforms with the specific description thereof set forth in the “R plan” prepared by Mr Baker.

[96] Although the plaintiff requested further orders or directions concerning the manner in which any breach of the aforesaid mandatory orders and/or permanent injunction might be proven or brought before the court, I think it advisable to leave such matters to the court presiding over any such further disputes and contempt proceedings.

[97] Hopefully, all concerned will recognize the serious and binding nature of court orders, making such proceedings unnecessary. If not, however, contempt proceedings are equally if not more serious matters, in respect of which the court should not be constrained in advance from dealing with situations in whatever manner the court may consider appropriate.

FURTHER DIRECTIONS CONCERNING TRIAL OR REFERENCE

[98] The declaratory relief, mandatory orders and permanent injunctive relief set forth above were granted by “partial summary judgment” because the plaintiff, in her motion, did not ask the court to address and resolve her claims for damages; claims which are set forth in sub-paragraph 1(f) of the plaintiff’s statement of claim.

[99] In sub-paragraph 1(a)(viii) of the prayer for relief in the plaintiff’s notice of motion, the plaintiff instead requested the following:

An order directing a trial, or a reference, to determine the quantum of pecuniary and non-pecuniary damages if any payable by the defendant to the plaintiff as claimed in at (sic) paragraph 1(f)(i) – (viii) of the Statement of Claim herein.

[100] In that regard, I note that the former virtually unlimited general power in a judge to direct a reference of a particular question or issue has been replaced by a more limited power, restricted to circumstances specified in Rule 54.02(2). In accordance with those limitations, an issue concerning assessment of damages therefore normally can be referred only if all parties consent, pursuant to Rule 54.02(1)(a).[^69] There was no evidence of such consent in this case.

[101] Moreover, I think it needs to be emphasized that a ruling in relation to the plaintiff’s possible entitlement to damages was neither sought nor argued on this motion, and I have made no such ruling.

[102] Nor, in the circumstances, would it be fair to make such a ruling; e.g., by granting a judgment that the plaintiff is entitled to damages with a reference to determine the amount, as contemplated by Rule 20.04(3).

[103] I accordingly will not direct a reference in relation to the plaintiff’s remaining claims for damages.

[104] Nor do I think an order directing trial of those remaining claims is required. That is the default method of resolving outstanding claims remaining after the granting of partial summary judgment. The parties generally can move the remaining issues forward to resolution by trial in the usual manner prescribed by the Rules of Civil Procedure.

[105] In my view, consideration nevertheless should be given to the possibility of further orders pursuant to Rule 20.05.

[106] In that regard, when the parties appeared before me, they were entirely focused on whether or not the plaintiff was able to substantiate requisite adverse possession, and on whether or not it was appropriate in the circumstances to grant the further mandatory orders and injunctive relief sought by the plaintiff. I was provided with little or no evidence concerning the state of the parties’ readiness for litigation of the plaintiff’s claims for damages.[^70]

[107] In particular, this is not a case where the parties have demonstrated that all unresolved issues have been thoroughly canvassed and readied for trial, but the court has found that the unresolved issues are not amenable to summary judgment. Owing to the manner in which the plaintiff’s motion for partial summary judgment was framed, questions concerning damages simply were not raised or argued before me.

[108] In the circumstances, I am not inclined to direct that the remaining aspects of the action proceed to trial expeditiously pursuant to Rule 20.05(1), or to impose directions and terms in that regard pursuant to Rule 20.05(2). Such judicial direction may be inappropriate, redundant or complicate matters unnecessarily, depending on the state of the underlying litigation.

[109] However, as I have granted summary judgment in part, Rule 20.05(1) allows me to make an order specifying material facts that are not in dispute and defining the remaining issues to be tried, and I think a further order in that regard may prove helpful. In particular, given the effort and expense the parties have directed towards this motion for partial summary judgment, I do not think they or the court should be obliged to revisit certain factual matters unnecessarily.

[110] In the circumstances, pursuant to Rule 20.05, a further order shall go whereby:

a. the remaining substantive issues to be tried, (i.e., issues apart from those relating to procedure or costs), shall be confined to:

i. entitlement and quantum, if any, in relation to the damages claimed by the plaintiff in sub-paragraphs 1(f), 1(iv) and 1(j) of the statement of claim; and

ii. entitlement and quantum, if any, in relation to interest upon any such damages, claimed by the plaintiff in sub-paragraph 1(k) of the statement of claim; and

b. the court specifies that the material facts found and set forth in paragraphs 76-78, 80-82 and 86 of these reasons are no longer in dispute, unless the trial judge orders otherwise to prevent injustice, pursuant to Rule 20.05(3).

Costs

[111] As noted above, the plaintiff also sought costs of the motion and partial costs of the action on a substantial indemnity basis.

[112] In particular, at sub-paragraphs (b) and (c) of the prayer for relief in her notice of motion, the plaintiff sought the following:

b. The partial costs of this action, payable forthwith in any event of the motion, for the period from the commencement of this action to the date the defendant removed the fence she first constructed in October 2012 from its wrongful trespass upon the plaintiff’s property; and

c. The costs of this action including this motion for summary judgment, on a substantial indemnity basis.

[113] Because my decision was reserved, the parties were unable to make any submissions regarding costs, having regard to the outcome of the motion.

[114] It is always preferable for parties to discuss and agree on cost resolutions acceptable to all concerned.

[115] However, if the parties are unable to reach an agreement on entitlement and/or quantum in relation to outstanding cost issues:

a. the plaintiff may serve and file further written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision;

b. the defendant then may serve and file further responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of the defendant’s written cost submissions; and

c. the plaintiff then may serve and file, within one week of receiving any responding cost submissions from the defendant, reply cost submissions not exceeding two pages in length.

[116] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the motion.

Justice I. F. Leach

Justice I F. Leach

Date: August 8, 2017

[^1]: At the outset of the hearing before me, I made a requested order, on consent, granting the plaintiff leave to amend her statement of claim by replacing all references to “Gillean Dewar” by references to “Gillean Gibb”, including such a reference in the style of cause. Although all material filed in relation to the motion before me bore the former style of cause, this decision employs the “new” style of cause.

[^2]: The precise location and dimensions of the relevant strip of property are identified in an “R Plan” of survey prepared by Bruce Baker, a licenced Ontario land surveyor. Mr Baker was retained by plaintiff counsel to survey the walkway area between the parties’ houses, including the relevant strip of disputed property, and to create a registerable “R Plan” of survey depicting the relevant disputed strip as a specified “Part” therein. Mr Baker did so, completing the survey on or about October 13, 2015. He then prepared and attached the resulting “Plan of Survey”, (of part of Lot 27, east of William Street in the city of London), dated January 29, 2016, to an affidavit sworn by him on August 11, 2016. That affidavit, (which includes evidence concerning Mr Baker’s credentials and experience, as well as the acknowledgment of an expert’s duties required by Rule 53 and Form 53 of the Rules of Civil Procedure), was filed by the plaintiff in support of her motion. In my view, Mr Baker’s affidavit, expertise and “R Plan” of survey were not challenged or disputed in any meaningful way by the defendant, and I therefore find that Mr Baker’s “R Plan” of survey provides and accurate and precise description of the relevant strip or disputed property.

[^3]: In that regard, the defendant did not bring a formal cross-motion of her own, seeking such relief. However, numerous decisions have confirmed, in the wake of Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, that the court does not require a cross-motion for summary judgment when it can decide, in the requesting party’s favour, the issue that was the subject of another party’s motion for summary judgment. See, for example: King Lofts Toronto I Ltd. v. Emmons, [2014] O.J. No. 133 (C.A.); Farmers Oil & Gas Inc. v. Ontario (Ministry of Natural Resources), [2015] O.J. No. 127 (S.C.J.); Brown v. Baum, 2015 ONSC 849, [2015] O.J. No. 1150 (S.C.J.), and Demide v. Attorney General of Canada, 2015 ONSC 3000, [2015] O.J. No. 2611 (S.C.J.).

[^4]: See the Real Property Limitations Act, supra, at ss. 4, 13 and 15, and authorities such as Masidon Investments Ltd. v. Ham, 1984 1877 (ON CA), [1984] O.J. No. 3139 (C.A.), at paragraph 13; and Osman v. Heath, [2016] O.J. No. 4068 (S.C.J.), at paragraph 49.

[^5]: See Ziff, Principles of Property Law (6th ed.), at p.141; and Anger & Honsberger, The Law of Real Property, (3rd ed.), at p.29-8.

[^6]: Ibid., at p. 143.

[^7]: See Keefer v. Ariollotta (1976), 1976 571 (ON CA), 13 O.R. (2d) 680 (C.A.) at p. 692; Fletcher v. Storoschuk (1981), 1981 1724 (ON CA), 35 O.R. (2d) 722 at p.725; Masidon Investments Ltd. v. Ham, supra, at paragraph 14; Teis v. Ancaster (Town), 1997 1688 (ON CA), [1997] O.J. No. 3512 (C.A.), at paragraph 9; Maras v. Milianis, [2014] O.J. No. 2728 (S.C.J.), at paragraph 8; Bialkowski v. Cowling, [2015] O.J. No. 1369 (S.C.J.); and Osman v. Heath, supra, at paragraph 49. For authorities confirming that the interests of adverse possessors are transmissible to successive occupants claiming under each other, and that the possession of an earlier adverse possessor and his or her successors may constitute one continuous possession for the purpose of making up the requisite statutory period of adverse possession, see Anger & Honsberger, supra, at p.29-21.

[^8]: See, for example: Fletcher v. Storoschuk, supra, at p.725; Masidon Investments Ltd. v. Ham, supra, at paragraph 15; Teis v. Ancaster (Town ), supra, at paragraphs 14 and 17; and Osman v. Heath, supra, at paragraph 52.

[^9]: See, for example: Ziff, supra, at p.147; and Maher v. Bussey, 2006 NLCA 28, [2006] N.J. No. 136 (C.A.), at paragraphs 53-54.

[^10]: See, for example: Ziff, supra, at p.146; Sherren v. Pearson (1887) 1887 39 (SCC), 14 S.C.R. 581; Wood v. LeBlanc (1904), 1904 71 (SCC), 34 S.C.R. 627; and Masidon Investments Ltd. v. Ham, supra, at paragraph 15.

[^11]: See, for example: Teis v. Ancaster (Town ), supra, at paragraph 16; Osman v. Heath, supra, at paragraph 52; and Anger & Honsberger, supra, at p.29-12.

[^12]: See, for example: Masidon Investments Ltd. v. Ham (1984), 1984 1877 (ON CA), 45 O.R. (2d) 563 (C.A.); and Osman v. Heath, supra, at paragraph 54.

[^13]: See, for example: Teis v. Ancaster (Town), supra, at paragraphs 23-30; Cunningham v. Zebarth Estate, [1998] O.J. No. 2027 (S.C.J.), at paragraphs 54-57; Laurier Homes (27) Ltd. v. Brett, [2005] O.J. No. 2169 (S.C.J.), at paragraphs 27-28; Bialkowski v. Cowling, supra, at paragraphs 48-51; Osman v. Heath, supra, at paragraph 57; and Ziff, supra, at pp.144 and 149-150. Absence of objection by the titled owner to use or occupation of the disputed lands may form the basis of an inference that the true owner believed the disputed lands to be the property of others in possession of the property. See, for example: Kiel v. 762098 Ontario Inc., [1989] O.J. No. 866 (S.C.J.), affirmed [1992] O.J. No. 1125 (C.A.); and Mueller v. Lee, [2007] O.J. No. 2543 (S.C.J.), at paragraph 25.

[^14]: See, for example: Ziff, supra, at p.148; and Osman v. Heath, supra, at paragraph 59-60.

[^15]: See, for example: Ziff, supra, at p.148; and Maras v. Milianis, supra, at paragraphs 18 and 22-23.

[^16]: See, for example: Kiel v. 762098 Ontario Inc., supra, and Mueller v. Lee, supra, at paragraph 25.

[^17]: See, for example: Masidon Investments Ltd. v. Ham, supra, at paragraph 14; Teis v. Ancaster (Town), supra, at paragraph 17; and Anger & Honsberger, supra, at pp.29-19 to 29-20..

[^18]: See the Land Titles Act, supra, at s.51(1).

[^19]: See the Land Titles Act, supra, at s.51(2), as well as authorities such as Gatz v. Kiziw, 1958 12 (SCC), [1959] S.C.R. 10; Maras v. Milianis, supra, at paragraph 9; Bialkowski v. Cowling, supra, at paragraphs 6 and 34-35; and Ziff, supra, at p.145.

[^20]: See the Land Titles Act, supra, at s.44(1)3, and Chen v. Stafford, 2012 ONSC 3802, [2012] O.J. No. 3043 (S.C.J.), at paragraph 40.

[^21]: See, for example: Gray v. Richford and McConnell (1878), 1878 4 (SCC), 2 S.C.R. 431 at p.454; Gahagan v. Sisson, [1943] O.W.N. 619 (C.A.); Brown v. Philips (1963), 1963 209 (ON CA), 42 D.L.R. (2d) 38 (Ont.C.A.); and Anger & Honsberger, supra, at p.29-18.

[^22]: See, for example, Raab v. Caranci (1977), 1979 2131 (ON CA), 97 D.L.R. (3d) 154 (Ont.H.C.), affirmed 1979 2745 (ON CA), 104 D.L.R. (3d) 160n (Ont.C.A.).

[^23]: See, for example: Fraser v. Morrison (1972), 1972 1161 (NS SC), 23 D.L.R. (3d) 346 (N.S.S.C.); and Anger & Honsberger, at p.29-18.

[^24]: The full heading and text of section 34 read as follows:

Necessity for strict proof

34. In the cases mentioned in and provided for by this Act, of claims to ways, water courses or other easements, no presumption shall be allowed or made in favour or support of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this Act as is applicable to the case and to the nature of the claim.

[Emphasis added.]

[^25]: The full heading and text of section 31 read as follows:

Right of way easement, etc.

31. No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

[Emphasis added.]

[^26]: See the authorities cited in footnote 13, supra, and the sub-paragraph of these reasons to which that footnote refers.

[^27]: Certainly, in the material and oral submissions I received, there was no mention of any such cross-examination pursuant to Rule 39.02, or examinations pursuant to Rule 39.03.

[^28]: The certified title documents registered in relation to 569 indicate that Ms McDonald initially owned the property jointly with her then husband, Raymond Kenwell. Following the couple’s separation, title to 569 was transferred to her alone in late 1993.

[^29]: See, for example, Warren Industrial Feldspar Co. v. Union Carbide Canada Ltd. (1986), 1986 2683 (ON SC), 54 O.R. (2d) 213 (H.C.).

[^30]: See, for example, paragraphs 48-50 of the plaintiff’s affidavit.

[^31]: In the course of oral submissions, plaintiff counsel argued, in effect if not expressly, that compliance with such normally applicable provisions of Rule 4.06 was not required in the context of summary judgment motions, as Rules 20.01(1) and 20.02(2) expressly widen the permissible scope of evidence by referring repeatedly to the ability of parties to rely on “affidavit material or other evidence”. I was provided with no authority in that regard, but in my view those provisions of Rule 20 were not intended to open the door to routine filing of documentary evidence not effectively introduced through an affidavit sworn or affirmed by a deponent. I think it much more likely that Rule 20 was making allowance for such possibilities as physical evidence not easily introduced by way of affidavit, and/or oral evidence, which is now an express possibility on a summary judgment motion, by virtue of the powers conferred upon the court by Rule 20.04(2.2).

[^32]: I will return to those separate hearsay concerns shortly.

[^33]: For the reasons outlined below, evidence of that email nevertheless will be excluded for other reasons. In any event, for additional reasons outlined below, reliance on the evidence set forth in the ostensible email from Ms McCallum, (the only document in respect of which such concerns were raised by defence counsel), is not necessary to reach dispositive conclusions in relation to this matter, in favour of the plaintiff.

[^34]: There are numerous instances of this, in my opinion. In particular:

• Towards the end of her affidavit, (in paragraphs 53-57), the plaintiff repeatedly engages in overt speculation as to what “probably” was done by previous owners of 569, and/or what “probably” would have been the effect on previous owners of 573.
• The Quigley sisters’ engage in speculation (at paragraph 5) as to whether their parents would have consulted with the Morkins and Gills about the installation of a hedge; speculation (at paragraphs 12 and 15) as to what other neighbours would know; and speculation as to how the McCallums may have treated the area between 569 and 573 after the Quigleys sold and moved away from 569.
• In her email, (to the extent it effectively constitutes an identified but unattached exhibit to the plaintiff’s affidavit for the reasons outlined above), Ms McCallum makes speculative assumptions as to how all subsequent owners of 573 would have treated the property line between 569 and 573.
• In his affidavit, Mr Brock speculates (at paragraph 6) about what his neighbours at 573 felt, and (at paragraph 11) about what Mr Soares and Ms Hesketh would have thought when they inspected 569 before purchasing the property.

[^35]: In that regard, I have in mind repeated indications and assertions by the plaintiff, (in paragraphs 53, 56, 60 and 62), as to how many years of adverse possession she and her predecessors in title had accumulated at various points of time, as well as assertions by the Quigley sisters (in paragraph 22 of their affidavit) as to conclusions that should be drawn if certain other evidence is accepted.

[^36]: In passing, I note that, in her affidavit, the plaintiff repeatedly made references to the evidence provided by the defendant during an oral discovery examination; i.e., by referring to specific questions and answers of a transcript that was not provided to me, either in whole or in part. However, Rule 39.04 permits a party, on the hearing of a motion, to “use in evidence an adverse party’s examination for discovery”, and the accuracy of the references thus made by the plaintiff was not challenged or disputed by the defendant.

[^37]: For example, defence counsel characterized paragraphs 5, 6, 8 and 9 of the Quigley sisters’ affidavit as hearsay evidence, but it seems to me that such evidence relates direct observations of the sisters as to what was done or not done by the occupants of 569 and 573 while the sisters were living with their family at 569.

[^38]: To the extent necessary, I find that the interest of justice does not require such powers, and the power to draw reasonable inferences in particular, to be exercised only at trial. As noted above, I am entitled to assume that both parties have put their best foot forward, and that all of the evidence presented on this motion, in relation to possible requisite adverse possession, is the only evidence that would be available at a trial. In the circumstances, I do not think a trial judge would be in any better position thant I am to assess the significance of that evidence, and decide whether inferences, including the possible inferences established by the authorities outlined above, should be drawn in the circumstances.

[^39]: Once again, it was my view that the interest of justice did not require such powers to be exercised only at trial, when it came to determining whether the relief sought by the plaintiff on this motion was necessary or appropriate.

[^40]: See paragraph 2 of the sisters’ affidavit, including the following comments: “Our family had lived in a home on Talbot Street, London until 1954. On January 21, 1954, we moved into 569 Grosvenor Street…” [Emphasis added.]

[^41]: See, for example, paragraphs 10 and 15 of the sisters’ affidavit.

[^42]: See, for example, paragraphs 7 and 15 of the sisters’ affidavit.

[^43]: See, for example, paragraphs 4, 5, 6, 7 and 15 of the sisters’ affidavit. The sworn affidavit evidence of Ms McDonald confirms that the relevant privet hedge was still in existence when she and her husband purchased the property in June of 1990, at which time she and her husband replaced it with a fence, in the same location, (i.e., connected to the southwest corner of the house at 573 by a short east-west portion before running south along the remaining length of the backyard), and having the same effect of sealing the two backyards off from each other.

[^44]: Ms McDonald’s affidavit indicates that she and her husband installed a fence and gate at the north end of the space between the houses in August of 1992, during their ownership of 569. In their respective affidavits, Mr Brock, Mr Soares and the plaintiff describe the same fence and gate thereafter remaining in place during their respective successive periods of 569 ownership.

[^45]: See paragraph 17 of the sisters’ affidavit.

[^47]: Ibid. Such assertions arguably are buttressed by the sisters’ direct evidence that the Morkins and McCallums treated the area between the houses as being “exclusive” to the Quigleys. See paragraph 21 of the sisters’ affidavit.

[^48]: As mentioned above, during the course of oral submissions, defence counsel sought to rely on indications in Ms McCallum’s email that, although both she and her husband “always treated the “laneway” between the homes as “belonging to the Quigleys”, her husband also believed that “the property line on the survey may very well have been over farther than the house”. In that regard, the defendant simply cannot have it both ways, in terms of that email’s admissibility. In particular, the defendant cannot argue (successfully) that the email evidence of Ms McCallum should be treated as inadmissible hearsay, therefore incapable of offering any support for the plaintiff’s position, but simultaneously take the position that the defendant should be permitted to rely upon the email as admissible hearsay to support the defendant’s position. I think that is especially true when one considers that the assertions attributed to Ms McCallum’s husband are effectively hearsay upon hearsay. (If the email is admissible at all, as a non-attached exhibit referred to in the plaintiff’s affidavit, it provides only an indication of what the plaintiff says Ms McCallum says of what Ms McCallum’s husband says.)

[^49]: See paragraph 17 of the sisters’ affidavit.

[^50]: See, for example, paragraphs 6, 7, 10 and 15 of the sisters’ affidavit.

[^51]: See Paragraph 17 of the sisters’ affidavit.

[^52]: See, for example, paragraphs 5, 7, 15 and 17 of the sisters’ affidavit.

[^53]: See paragraph 8 of the sisters’ affidavit. The affidavit evidence of Mr Brock effectively confirms that the situation in that regard remained unchanged when he and his wife owned and occupied 569 from May of 2003 to February 15, 2006.

[^54]: See paragraph 5 of the sisters’ affidavit.

[^55]: See paragraphs 5 and 6 of the Quigley sisters’ affidavit.

[^56]: Again, as mentioned above, defence counsel sought to rely on the assertions in Ms McCallum’s email, including its reference to the difficulty of getting a ladder between the houses to “work on the eaves in there”, as evidence suggesting that the McCallums performed such maintenance on 573 during their period of ownership and occupation there. However, that is not what the email says. It simply remarks on the difficulty of anyone doing that at present, given the new fence constructed by the defendant. More fundamentally, as already noted above, in footnote 47, the defendant cannot have it both ways, in terms of the email’s admissibility. Again, the defendant argued (successfully) that the email should be excluded as impermissible hearsay, such that it could not be relied upon by the plaintiff. In fairness, the hearsay evidence in the email therefore cannot be admissible to support the position of the defendant.

[^57]: See the affidavit of Ms McDonald, at paragraphs 2 and 8.

[^58]: Ibid., at paragraph 4.

[^59]: Ibid, at paragraphs 2, 4 and 5.

[^60]: Ibid, at paragraph 5.

[^61]: As noted above, the relevant fence and gate were still in existence when the plaintiff purchased and occupied 569.

[^62]: Similar evidence is provided by the independent witnesses Mr Brock and Mr Soares. In particular, in paragraph 10 of his affidavit, Mr Brock swears that, during his ownership and occupation of 569 between May of 2003 and February of 2016, “there were no signs of any use or enjoyment, or any need for use whatsoever of the walkway space by the occupants of 573”, and “nor did any of them ever do anything in the way of maintaining or beautifying the walkway”. In paragraph 11 of his affidavit, Mr Soares swears that, during his ownership and occupation of 569 between February of 2006 and January of 2008, the owners of 573 “made no use of the space”, were never seen coming into that space “to use it, enjoy or maintain it or even walk on it”, and “never showed any interest in it”.

[^63]: See the final “bullet point” sub-paragraph in paragraph 8 of these reasons, including the authorities cited at footnotes 23 and 22, respectively.

[^64]: Pursuant to the Justice Statute Law Amendment Act, 2002, S.O. 2002, c.24, Schedule B, what previously had been enacted and known as Part 1 of the Limitations Act, R.S.O. 1990, c.L.15, was preserved but renamed as the “Real Property Limitations Act, R.S.O. 1990, c.L.15”, while other portions of the original legislation were repealed. The remaining original legislation therefore bears a new name, but retains its original statutory citation.

[^65]: In her responding material, the defendant claims to have advised the plaintiff’s husband in advance of her intention to install a fence “along the property line of the side yard”. Such claims are completely at odds with the plaintiff’s emphatic assertions that, before erecting that fence, the defendant “did not notify us, warn us or discuss it at all with us”, and that the plaintiff and her husband reacted with disbelief and surprise when they returned to their home on October 12, 2012, to discover further interference with the existing fence and preparatory steps being taken to construct a new fence. In any event, the defendant herself indicates that the claimed notice of her intention to construct such a fence was met with an immediate assertion by the plaintiff’s husband that he and his wife claimed ownership of the strip.

[^66]: See, for example, the defendant’s description of such activities in paragraphs 8-16 of her responding affidavit.

[^67]: The defendant describes an instance in October of 2009, (when she claims to have accessed the strip a few days after purchasing her property, to remove vines, weeds and rocks), and says “no one objected” to that access; however, she does not indicate that anyone was there to notice or observe such access. The defendant mentions speaking to the plaintiff when exercising access with her contractors to brick in upper windows of her house; however, the plaintiff swears such access occurred after the defendant requested and was granted permission, and the plaintiff’s evidence in that regard was not addressed or contradicted by the defendant in her responding affidavit. In relation to installation of the disputed new fence, the defendant says no express objections were made while the fence was being built, but does not challenge or contradict the plaintiff’s evidence that the plaintiff and her husband made their opposition known through counsel and subsequent efforts to dismantle the fence.

[^68]: See the first sub-paragraph of paragraph 8, supra, and the authorities cited therein.

[^69]: See Watson & McGowan, Ontario Civil Practice 2017, at p.1155.

[^70]: There were oblique indications of documentary and oral discovery, but nothing to indicate whether further steps might be required to address and prepare damage-related matters for trial.