CITATION: Maas v. Oakes, 2017 ONSC 5568

COURT FILE NO.: 131/14 Guelph

DATE: 2017 09 28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOHANNES ANTONIUS GERARDUS MAAS and SANDRA LYNN MAAS

Richard Campbell for the Applicants

Applicants

• and -

LAWRENCE CECIL OAKES and JASON OAKES

W. Gerald Punnett, for the Respondents

Respondents

HEARD: August 8, 2016, and January 30, 2017, at Guelph, Ontario

Price J.

Reasons For Order

OVERVIEW

[1] The applicants, Johannes and Sandra Maas, and the respondents, Lawrence and Jason Oakes, are next-door neighbours in the town of Mount Forest, Ontario, which is home to about 14,500 residents. They live on different parts of Lot 11, situated on the west side of Main Street, in Mount Forest. Mr. and Ms. Maas own the southeasterly parcel of Lot 11; Lawrence Oakes and his son, Jason Oakes, (whom I will refer to collectively as “Mr. Oakes”) own the north half of Lot 11; Terry and Brenda Tubman, who are not parties to this proceeding, own the south-centre and southwesterly parcels of Lot 11, as well as a portion of Lot 12, to the south.

[2] The Maas’ predecessor in title of the southeasterly parcel of Lot 11 shared the use of a right of way over a laneway running along the northern edge of that parcel, which was 170’ from east to west. Mr. and Ms. Maas continue to own this parcel.

[3] Mr. Oakes’ company, Carpet Clear-Out Corp., acquired the north half of Lot 11 in two parcels, a garage that is situated at the rear of the north half of the Lot in 1982, and the rest of the north half of the Lot in 1984. Carpet Clear-Out conveyed both parcels to Mr. Oakes in August 1988. The present dispute arose in 2013, when Mr. Oakes installed a marine storage container against the south wall of his garage, on a patch of land that, for reasons set out below, I find are owned by Mr. and Ms. Tubman.

[4] The disputed patch of land, which comprises the northwesterly 37.5’ of the south half of Lot 11, lies just beyond Mr. Oakes’ right of way, which ends immediately south of the entrance to his garage. The patch of land lies 64.76’ beyond the westerly limit of Mr. and Ms. Maas’ property, and of the right of way they share with Mr. Oakes and Mr. and Ms. Tubman.

[5] Mr. and Ms. Maas, who acquired their property in 2003, later included it in a deed by which they conveyed their own southeasterly parcel of Lot 11 from themselves, as tenants in common, to themselves, as joint tenants, in 2009. In November 2013, when Mr. Oakes installed his storage container on the disputed patch of land, Mr. and Ms. Maas asked him to remove it, as it interfered with their ability to continue shoveling snow from the shared laneway onto the patch of land and limited access to parking by them and their tenants. He refused to do so.

[6] Mr. and Ms. Maas applied to the court in 2014 for an injunction requiring Mr. Oakes to remove his storage container from the land south of his garage. Mr. Oakes opposed the application, and made a cross-application for a declaration that he had acquired ownership of the patch of land by adverse possession during the period since his company had acquired the garage in 1982 and conveyed it to him in 1988.

[7] Mr. and Ms. Maas rely on their conveyance of the patch of land to themselves in 2009 to support their claim for an injunction to require Mr. Oakes to permanently remove his storage container. Mr. Oakes disputes the Maas’ right to acquire ownership of the patch of land by conveying it to themselves, when they did not own it in the first place.

[8] For the reasons that follow, I find that the patch of land does not belong to either Mr. Oakes or the Maas, but to Mr. and Ms. Tubman. While Mr. Oakes owns a right of way over the laneway, his right of way ends 37.5’ from the western limit of Lot 11, and while Mr. and Ms. Maas own the easterly 170’ of the laneway, their property ends 64.76’ from the westerly limit of Lot 11. Mr. and Ms. Tubman own the remainder of the laneway, and are the sole owners of the disputed patch of land. Neither of the Oakes nor the Maas own a right of way over it. Mr. Oakes’ right of way ends 37.5’ east of the patch, and Mr. and Ms. Maas’ right of way ends 64.76’ east of it.

[9] The Maas’ conveyance of the patch does not confer ownership on them, as they never owned it in the first place and could not convey land to themselves that they did not own.

[10] Mr. Oakes also did not acquire ownership of the patch of land by adverse possession, as he did not exclude others from entering upon it. Mr. Oakes acknowledges that neighbourhood children entered a storage shed that stood on the patch until Jason Oakes tore the shed down in 2011. He also acknowledges that after the shed was removed, Mr. and Ms. Maas plowed snow onto the patch of land where the shed had stood until Mr. Oakes installed his storage container there in 2013.

BACKGROUND FACTS

The dispute between the Oakes and Mr. and Ms. Maas

[11] The appendix to these reasons traces the transactions by which each of the parties came to own their respective properties, and describes how their properties relate to the disputed patch of land.

[12] When Marjorie and Robert McPherson sold the north half of Lot 11 to the predecessor-in-title of the Oakes, they included the garage that stands at the rear of that half, but retained the right to use the south side of the south wall of the garage for their own use. That wall also served as the north wall of a storage shed that stood on property in which the McPhersons had an interest. Seven months after the McPhersons reserved their right to the south side of the south wall of the garage, they acquired the land immediately south of the garage, on which the storage shed stood, consisting of the southwesterly and south-centre parcels of Lot 11. Their successors in title to those parcels are Mr. and Ms. Tubman, who acquired them in December 1998, and currently operate the Ramoth Life Centre on them and on Lot 12, which fronts onto 118 Wellington Street, to the south.

[13] When the shed at the rear of the southwesterly and south-centre parcels of Lot 11 fell into disrepair, Jason Oakes removed it in about 2011, at the request of the Town, who apparently thought that Mr. Oakes owned it. From that time until 2013, when Mr. Oakes installed his storage container on the land the shed had previously occupied, Mr. Oakes used the land as a place to store carpets from his business. Additionally, both Mr. Oakes and Mr. and Ms. Maas used the land during the winter as a place to deposit snow that had been shoveled from the laneway which leads from Main Street westward to the patch of land.

[14] When Mr. Oakes installed the storage container on the patch of land in 2013, Mr. and Ms. Maas asked him to remove it. He refused, precipitating the Maas’ application for an injunction. Mr. Oakes responded with a cross-application for a declaration that he had acquired ownership of the patch of land by adverse possession.

[15] Mr. and Ms. Maas apply for a declaration that they own the patch of land. When they made their application in 2014, Justice André granted them a temporary injunction requiring the Oakes to remove the container, which was on wheels, from behind the disputed land. The container was subsequently removed.

ISSUES

[16] The court must determine three issues in this motion0:

a) Have the Maas ever owned the disputed patch of land?

b) Did the Oakes acquire title to it by adverse possession?

c) Are the Maas entitled to a permanent injunction prohibiting Mr. Oakes from restoring his storage container to the patch of land?

POSITIONS OF THE PARTIES

[17] When the McPhersons sold the garage on the north side of Lot 11 to the predecessor-in-title of the Oakes in 1945, they retained the right to use the south side of the south wall of the garage, which served as the north wall of a storage shed in which they had an interest. Mr. Oakes says that he removed the shed in 2011, at the request of the Town.

[18] Mr. Oakes say that after the shed was removed, he used the patch of land where it had stood to store carpets from his business. He says that over the years that ensued from when his company acquired the garage in 1982, and conveyed it to him in 1988, he acquired title to the land by adverse possession, and was therefore entitled to install his storage container on the land in 2013.

[19] Mr. and Ms. Maas acquired the southeasterly parcel of Lot 11 from Ms. McPherson in 2003. Mr. and Ms. Maas say that their Agreement of Purchase and Sale referred to an earlier deed by which Ms. McPherson acquired the patch of land, but that the land was inadvertently omitted from the description contained in the deed of the southeasterly parcel from Ms. McPherson to them.

[20] In 2009, Mr. and Ms. Maas, without giving notice to either the Oakes or the Tubmans, transferred the property they had acquired from Ms. McPherson six years earlier from themselves, as tenants in common, to themselves, as joint tenants, and included the disputed patch of land. When they registered the conveyance in the Land Titles Office, their property, being the southeasterly parcel of Lot 11, and the patch of land at the southwesterly limit of Lot 11 were given the same “PIN” number. Mr. and Ms. Maas rely on this conveyance to support their claim to ownership of the patch of land, and their right to an injunction requiring Mr. Oakes to remove his storage container from it.

ANALYSIS AND EVIDENCE

Legislative framework

[21] Rule 14.05(3)(d) of the Rules of Civil Procedure permits a party to apply to the court for “the determination of rights that depend on the interpretation of a deed…”. Sub-rule (3) permits an application where the relief is “…the declaration of an interest in or a charge on land, including the nature and extent of the charge or the boundaries of the land…”.[^1]

[22] Rule 14.05(3)(g) allows an applicant to obtain an injunction, mandatory order, or declaration when they are ancillary to relief claimed in an application otherwise properly commenced.[^2] The relief claimed by Mr. and Ms. Maas is authorized by Rule 14, which gives the court jurisdiction to determine the issues raised and to grant the relief sought.

a) Do Mr. and Ms. Maas own the disputed patch of land?

The right of way

[23] Ms. McPherson’s Transfer of the southeasterly parcel of Lot 11 to Mr. and Ms. Maas was assigned a PIN of 71064. It describes the property as follows:

PT LT 11 W/S MAIN ST PL TOWN OF MOUNT FOREST MOUNT FOREST AS IN RO730135; WELLINGTON NORTH

[24] The deed for the Maas’ purchase was not produced in evidence. Mr. and Ms. Maas seek to rely, instead, on their Agreement of Purchase and Sale for the property. It describes the property being purchased in the following terms:

All and singular the premises situate on the west side of Main Street, in the Township of Wellington North (torn of Mount Forest), in the County of Wellington known as 121-129 Main Street North, Mount Forest, ON, N0G 2L0 having a frontage of about 34 feet more or less, by a depth of about 170 feet more or less, and being part of Lot 11, West side of Main Street, according to Plan for the Town of Mount forest Registered in the Land Registry Office for the registry division of Wellington No. 61 at Guelph, Ontario and assigned PIN 71064-0099 (LT) as in Deed No. 730135. [Emphasis added]

[25] Mr. and Ms. Maas rely on the reference to “Deed No. 730135” in their Agreement of Purchase and Sale. That deed conveyed the southeasterly parcel of Lot 11 from Marjorie McPherson to Marjorie and Robert McPherson as joint tenants. It describes the property as follows:

In the Town of Mount Forest, in the County of Wellington and Province of Ontario, and being composed of a part or portion of Lot Number 11, west of Main Street, containing by admeasurement 7704.675 square feet be the same more or less, which is more particularly described as follows:

COMMENCING on the West limit of Main Street at the distance of 60.06 feet from the limit between said Lot 11 and Lot 10 on the west side of Main Street and measured along said limit of Main Street on a course South 43 degrees East;

THENCE South 44 degrees, 10 minutes west parallel with the limit between said Lots 10 and 11, 170 feet;

THENCE South 43 degrees east parallel with said west limit of Main Street, 34 feet more or less to the limit between said Lot 11 and Lot 12, on the west side of Main Street;

THENCE along said limit North 44 degrees, 10 minutes East, 170 feet more of less to said West limit of Main Street;

THENCE along said limit North 43 degrees West, 34 feet more or less to the place of beginning.

As previously described in registered Instrument No. 8940. [Emphasis added]

[26] The Transfer of the southeasterly parcel of Lot 11 into Land Titles does not refer to the right of way. The Agreement of Purchase and Sale also does not refer to it. The Agreement refers to deed 730135, being the last deed which dealt with the southeasterly parcel of Lot 11. That earlier deed also did not describe the right of way. Its description of the easterly parcel concludes, “As previously described in registered Instrument No. 8940.”

[27] Instrument No. 8940 was a deed dated February 4, 1946, by which William Smith conveyed the southeasterly parcel of Lot 11 to Marjorie McPherson. It refers to the 12’ right of way that runs along the north edge of the south half of Lot 11, from Main Street to the westerly limit of the 170’ x 34’ parcel that Ms. McPherson was acquiring. It states:

All and singular that certain parcel or tract of land and premises situate lying and being in the Town of Mount Forest in the County of Wellington and Province of Ontario and being composed of a part or portion of Lot number eleven (11) west of Main Street, containing by admeasurement 28 and 3/10^th perches be the same more or less which is more particularly described as follows:

COMMENCING on the west limit of Main Street at the distance of ninety-one links from the limit between said lot eleven and lot ten on the west side of Main Street and measured along said limit of Main Street on a course south forty-three degrees east; thence south forty-four degrees, ten minutes west parallel with the limit between said lots ten and eleven one hundred and seventy feet; thence south forty-three degrees east parallel with said west limit of Main Street fifty-one and one-half links more or less to the limit between said lot eleven and lot twelve on the west side of Main Street; thence along said limit north forty-four degrees ten minutes east one hundred and seventy feet more or less to said west limit of Main Street; thence along said limit north forty-three degrees west fifty-one and one half links more or less to the place of beginning;

Together with the use of a right-of-way twelve feet wide on the north side of said parcel of land and adjacent thereto and extending from Main Street to the rear of the said parcel of land. [Emphasis added]

[28] The deed from Mr. Smith to Ms. McPherson does not convey a right of way to the westerly limit of Lot 11, but only to the westerly limit of the parcel that was being conveyed. I am therefore not prepared to import a 12’ wide right of way over the disputed patch of land, which lies 64.76’ to the west of 0Mr. and Ms. Maas’s property and their right of way, based on the description and reference in their Agreement of Purchase and Sale.

[29] It is evident, from a close reading of the deed from Mr. Smith to Ms. McPherson that there was an error made in the description of the property. The deed states that the parcel comprises 28.3 perches. A perch is a square rod, which comprises 272.25 square feet. The description therefore states that the parcel comprises 7,709.675 square feet “more or less”. The linear measurements of the parcel, as given in the description, are 170 feet by 33.9616223 feet (51.5 links x 0.659449 feet per link), which equals 5,773.48 square feet. I find that the discrepancy of 1,936.195 square feet is most likely the result of a double counting of the northerly 12’ band of the parcel. It may have been counted once as part of the parcel itself, and again as the right of way over the north edge of the parcel. The right of way measured 170 feet by 12 feet, or 2,040 square feet. This was 103.80 square feet, or only 8.65 feet longer, than the actual right of way, and well short of the disputed patch of land, which lies 64.76 to the west of the 170 foot southeasterly parcel.

[30] The right of way was apparently designed to give access to the owner of the garage that stands on the north half of Lot 11, and to the owner of the centre and westerly parcels of the south half of Lot 11, to Main Street. Mr. and Ms. Maas already have access to Main Street from their easterly parcel, which fronts onto Main Street. They own 170 feet of the laneway, as it lies on their parcel, although the laneway is subject to the right of way held by Mr. Oakes, as owner of the garage, to the north, and the right of way held by Mr. and Ms. Tubman, as owners of the southwesterly and south-centre parcels of Lot 11, to the west.

[31] The southwesterly and south-centre parcels of Lot 11, now owned by Mr. and Ms. Tubman, were owned by Henry Argue until 1945. He conveyed them to the McPhersons in September 1945, with a right of way over the northern edge of the parcels. I find that Mr. Argue conveyed a right of way to the McPhersons over the land that he was conveying to them at that time in order to give them a right of way over the south-easterly parcel of Lot 11, which Georgina Clarke had conveyed to William Smith on January 19, 1938, and which Mr. Smith did not convey to Ms. McPherson until February 4, 1946, five months after Mr. Argue conveyed the southwesterly and south-centre parcels to Ms. McPherson in September 1945.

[32] The laneway over which Mr. Argue conveyed a right of way to Ms. McPherson in 1945 comprised 185.04 feet, being the total 235.04 feet depth of Lot 11, east to west, less the westerly 50 feet, which Mr. Argue excepted from the right of way. After deducting the 170 feet that was the length of the southeasterly parcel of Lot 11, there remained only 15.04 feet in the right of way which Mr. Argue was granting to Ms. McPherson. The 50 feet that Mr. Argue excepted from the right of way comprised the northern edge of the eight foot southwesterly parcel of Lot 11, and the westerly 42 feet of the 56.76 feet south-centre parcel of Lot 11, which he was already conveying to Ms. McPherson. The McPhersons required 14.76 feet north of their own south-centre parcel of Lot 11, and a further 170 feet over the southeasterly parcel, to have access from their property to Main Street. I conclude that Mr. Argue was conveying to Ms. McPherson his right of way along the north edge of the south half of Lot 11, comprising approximately 185 feet, pending the McPherson’s acquisition of the easterly parcel from Mr. Smith five months later.

Ownership of the disputed patch of land

[33] As can be seen from the series of transactions described in the Appendix, Irene Gibson owned the entire north half of Lot 11 until 1945. Her property including the garage at the rear of the north half of the Lot, which her husband and father-in-law had used as a workshop for the furniture and casket factory which they operated on Lot 10, to the north.

[34] On July 28, 1943, Ms. Gibson sold the north half of Lot 11 to Robert and Marjorie McPherson, together with the right of way over the twelve foot wide laneway along the north edge of the south half of Lot 11, from Main Street to the westerly limit of Lot 11. On February 19, 1945, Mr. and Ms. McPherson conveyed the land on which the garage stood at the rear of the north half of Lot 11, together with the two rights-of-way that gave access to the garage from Main Street, back to Ms. Gibson for $500, apparently to enable her to include the garage when she sold Lot 10, with the furniture and casket factory, to Mr. Schuett

[35] When the McPhersons sold the garage back to Ms. Gibson in February 1945, they reserved their right to continue using the south side of the south wall of the garage. The Deed stated, in part:

SUBJECT to the Grantor’s right to use the South wall of the cement and steel garage on the said premises, or any garage that may be substituted therefor as the north wall for the Grantor’s their heirs, executors, administrators and assigns’ garage. [Emphasis added]

[36] At this time, the McPhersons continued to own the north half of Lot 11, which they sold to Mr. and Ms. Macdonald in 1974, but Ms. McPherson did not own the southeasterly parcel of Lot 11 until she acquired it from William Smith in February 1946. I find, based on the fact that the McPhersons reserved their right to use the south side of the south wall of their garage as the north side of their shed when they conveyed the garage back to Ms. Gibson in February 1945, that they owned, or anticipated owning, an interest in the land immediately to the south of the garage, on which the storage shed stood, although they did not hold a registered title to that land until seven months later. In their deed of the garage back to Ms. Gibson, they describe the shed as their own garage.

[37] In July 1945, Ms. Gibson sold the north half of Lot 11 to Mr. Schuett, including the garage and accompanying rights of way, subject to the reservation of use of the south side of the south wall of the garage to the McPhersons. The McPhersons were then the owners of the storage shed which stood to the south of the garage they had conveyed back to Ms. Gibson, and which she was now conveying to Mr. Schuett. Ms. Gibson’s deed to Mr. Schuett stated, in part:

SUBJECT to the use by ROBERT HUGH McPHERSON and MARJORIE McPHERSON, their heirs, executors, administrators and assigns, of the south wall of the cement and steel garage on the said premises or any garage that may be substituted therefor as the North wall for the garage of the said ROBERT HUGH McPHERSON and MARJORIE McPHERSON, their heirs, executors, administrators and assigns. [Emphasis added]

[38] On September 27, 1945, Henry Argue, who had owned the land immediately to the south of the garage since 1925, consisting of the southwesterly and south-centre parcels of Lot 11, conveyed the parcels to the McPhersons.

[39] In 1974, John Schuett’s son, Godfrey Schuett, sold the garage that stood on the north half of Lot 11, and it was eventually acquired by Carpet Clear-Out in 1982, subject to the same right to use the south side of the south wall of the garage which the McPhersons had reserved for themselves and their heirs and assigns when they sold the garage back to Ms. Gibson in 1945. Carpet Clear-Out Corp. conveyed the garage, together with the remainder of the north side of Lot 11, to the company’s owner, Lawrence Oakes, in 1988.

[40] On June 1, 1946, the McPhersons conveyed the southwesterly and south-centre parcels of Lot 11 to Hildo and Laura Bolley. Their purchase included the southwesterly 64.76 feet Lot 11, and a right of way over the laneway from Main Street to a point 50 feet from the westerly limit of Lot 11. Mr. and Ms. Tubman, being the successors in title of the Bolleys, are therefore the owners of the disputed patch of land to the south of Mr. Oakes’ garage, where the McPhersons’ shed once stood, and where Mr. Oakes later installed his storage container. Although Mr. Oakes holds a right of way over the laneway, his right of way ends 36’9” from the westerly limit of Lot 11, immediately south of the entrance to his garage.

[41] While Mr. and Ms. Maas acquired the southeasterly parcel of Lot 11 from Ms. McPherson, that conveyance did not include the disputed patch of land, as the southeasterly parcel, and the shared use in the laneway over its northern edge, extended only 170’ west of Main Street, and ended 64.76’ east of the disputed patch of land. The disputed land therefore belongs solely to Mr. and Ms. Tubman, who are the successors in title to Mr. Argue, Ms. McPherson, the Bolleys, and others.

Mr. and Ms. Maas’ conveyance of the patch of land to themselves

[42] Mr. and Ms. Maas seek to rely on their conveyance of the disputed patch of land to themselves as part of their conveyance of the southeasterly parcel of Lot 11 from themselves, as tenants in common, to themselves, as joint tenants, on July 7, 2009, and on their application to consolidate the PIN of the southeasterly parcel of Lot 11 and the PIN of the disputed patch of land.

[43] The Land Titles Act, which protects innocent purchasers for value from prior unregistered claims, does not create an estate in Mr. and Ms. Maas as a result of their transfer of the westerly 36’9” of the laneway, over which they never possessed either title or a right of way. The Supreme Court of Canada dealt with that issue conclusively in relation to Alberta’s counterpart of the Land Titles Act in 1962.

[44] The Supreme Court, in Kaup and Kaup v. Imperial Oil Ltd. et al., (1962) rejected a claim by the purchaser and registered owner of certain land, to mineral rights which the registrar of Land Titles had mistakenly failed to reserve to the vendor. The purchaser, UK, executed a transfer, without consideration, to herself and her husband, which contained no reservation in respect of mines and minerals other than a reservation of coal in favour of the Canadian Pacific Railway. The issue in the appeal was as to the title to the mines and mineral, other than coal, in the land. The trial judge and the majority of the Appellate Division of the Supreme Court of Alberta held that they were the property of the vendor’s estate. In dismissing an appeal to the Supreme Court of Canada, Martland J., speaking for the Court, stated:

The proposition submitted by the appellants is that these sections have the mandatory effect that, upon the registration of any transfer, there is automatically created the estate or interest, defined in such transfer, in favour of the transferee, irrespective of whether or not the transferor had any legal estate or interest which he was entitled to transfer. This result flows, it is said, irrespective of whether the transferee was a bona fide purchaser for value or not.

The sections of the Act dealing with the position of the bona fide purchaser for value, which I have mentioned, support these views as to the purpose and intent of the Act. The fact that these provisions were incorporated in the statute negatives the suggestion that the Act further curtails the old common law rule that no man can convey a better title than he possesses, so as to enable a transferor, having no title at all, to vest in a volunteer a legal title valid as against the true owner. In my opinion, The Land Titles Act altered that rule only to the extent that it established certain special rights for the benefit of the bona fide purchaser for value. Accordingly, the registration of a transfer from Urbanie Kaup, who had no title to any minerals, to herself and her husband, made without consideration, did not confer any title to mines and minerals in the transferees.[^3] [Emphasis added]

[45] When properties were brought into the Land Titles system automatically, as opposed to being brought in by Application, they are “LTA” (“Land Titles Absolute”) or “LTCQ” (“Land Titles Conversion Qualified”). Certain qualifiers to LT Absolute Title are guaranteed against because the Province screens for them when the property is brought into the system.

[46] In the 2003 transfer that conveyed the south side of the McPherson property to Mr. and Ms. Maas, the property, with PIN 71064-0099 LT, is listed as Estate/Qualifier “Fee Simple LT Conversion Qualified”.

[47] As a result of the searching procedures employed during the automation and conversion to the Land Titles system, the Land Registration system does not guarantee title against certain defects in the traditional “Absolute” parcel. The qualifiers stated on parcels listed as Land Titles Converted Qualified (LTCQ) are as follows:

• Subject, on first registration under the Land Titles Act,

• Subsection 44(1) of the Land Titles Act, except paragraph 11, paragraph 14, provincial succession duties and escheats or forfeiture to the Crown.

• The rights of any person who would, but for the Land Titles Act, be entitled to the land or any part of it through length of adverse possession, prescription, mis-description or boundaries settled by convention.

• Any lease to which s. 70(2) of the Registry Act applies.

[48] The only basis upon which the Oakes assert a claim to an interest in the patch of land to the south of their garage is by adverse possession. The deeds by which the garage and the remainder of the north half of Lot 11 were conveyed to the Oakes shows that their right-of-way ends at 36’9” east of the westerly limit of Lot 11, which is to say that it ends at the disputed patch of land where the shed once stood south of the garage.

b) Did the Oakes’ acquire ownership of the disputed patch of land by adverse possession

[49] Lawrence Oakes argues that he, or Carpet Clear-Out Corp., used the shed that was on the patch of land beside his garage from about 1982, when Carpet Clear-Out Corp. acquired the garage and the right of ways associated with it, until 2011, when his son, Jason Oakes, tore it down. However, he acknowledged that others also used the land, including neighbourhood children, who frequented the shed until Jason took it down in 2011, and Mr. and Ms. Maas, who used the land on which the shed had stood, in the two years from when Jason removed it, until November 2013, when Mr. Oakes installed the storage container on the land. At his cross-examination on September 23, 2014, Lawrence Oakes testified as follows:

82. Q. And when you bought the property there was a lean-to on the blue section, correct?

A. Yes. It’s pictured somewhere.

86. Q. And you know that’s not on the store’s property?

A. That’s on the right-of-way.

99. Q. Also at the time that it was built, it was Marjorie McPherson’s lean-to?

A. Correct. Yes. But this was her driveway too, at the time.

131. Q. What did you keep in the shed? In the lean-to?

A. Carpet display, things that I didn’t use too often. A float. One of these pictures has the carpet which isn’t really a roll of carpet, it’s got – I don’t know where it is.

Q. Yeah, it’s one of the exhibits here.

A. Anyway, it has seats in it for the kids to sit in and we used that for parades.

133. Q. Did you ever ask her permission to do that?

A. Did I ask permission to what?

134. Q. To use the lean-to?

A. When the person I bought it from moved away, they moved out of there, they moved all of their stuff out of that.

135. Q. Did you ever see either of the Applicants using the lean-to?

A. No.

136. Q. Did you put a lock on the door?

A. There had been. Not in the more recent years there hasn’t.

137. Q. Did you have a key for it?

A. Yes.

138. Q. Anyone else have a key?

A. There was one hanging in the store for a long time.

139. Q. And when did the lock come off?

A. Oh, heavens, as soon as the product in there got to be that it wasn’t worth saving anymore, we didn’t worry about locking it. As a matter of fact, it got torn down, I think, because kids were going in there.

140. Q. Well, you would know why, you tore it down, right?

A. My son took it down, yes.

141. Q. Did you ask him to?

A. The Town asked me to.

142. Q. How did the Town ask him to do that?

A. They sent somebody into the store.

143. Q. And after the lean-to was torn down, how long was it before you put that marine shipping container there?

A. Well, a carpet roll was always there and a few other things leaning against the building. A couple of years.

144. Q. In those couple of years, you know that the Maas used to plow snow in there?

A. The company plowed snow all over our parking lot.

145. Q. They plowed snow in the section where the lean-to was?

A. The snow gets built up so much back there that we couldn’t get in and out.

146. Q. My question to you is, were you aware that the Maas’ were plowing snow into the section to where the lean-to was, which is the blue section on this diagram?

A. They had snow piled way out here, so I imagine some of it would definitely go in there.

147. Q. You didn’t object to that?

A. In the wintertime there is no places to put it.

148. Q. Did you object to them doing that?

A. My son did.

149. Q. When did he do that?

A. When they piled it over so he couldn’t get trucks in and out there.

150. Q. did he write them a letter?

A. No.

[Emphasis added]

[50] Ms. Maas testified at her cross-examination, also on September 23, 2014, that the shed was on the patch of land when she and her husband purchased their property from Ms. McPherson in May 2003.[^4] She identified a photograph showing the shed and, next to it, a fence that she stated belonged to the Pregnancy Crisis Centre (The Ramoth Life Centre, owned by Mr. and Ms. Tubman).[^5] Ms. Maas testified that Mr. Oakes installed the storage container on the site on November 6, 2013.[^6]

[51] Mr. Oakes’ admission that the shed and, later, the land that the shed had stood on, were used by others during the ten year period of his occupancy that he relies on leading up to 2014, when he asserted his claim to ownership based on adverse possession, is fatal to his claim. In law, occupancy must be exclusive in order to give rise to ownership by adverse possession.

[52] Justice Rouleau, speaking for a unanimous Court of Appeal in McClatchie v. Rideau Lake, in 2015, stated:

[The law of adverse possession] is not in dispute. To establish adverse possession of certain lands, a claimant must demonstrate that throughout the ten-year adverse possession period, he or she: a) had actual possession of the lands in question; b) had the intention of excluding the true owner from possession; and c) effectively excluded the true owner from possession: Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (C.A.), at p. 567.[^7] [Emphasis added]

[53] Justice Hambly, in Sumner v. Sullivan, in 2014, clarified what it means to effectively exclude the true owner:

In Shennan (infra), the Court of Appeal stated in para. 18, the third branch of the test to be “…effective exclusion for the true owner throughout the statutory period…”[^8] (citations omitted) [Emphasis added].

[54] The onus of proving the elements of adverse possession is on the party claiming the benefit of it. The Court of Appeal, in McClatchie, stated that “possession” has the following requirements:

To establish actual possession, the acts of possession must be “open, notorious, peaceful, adverse, exclusive, actual and continuous”: Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.) at p. 221. If any one of these elements is missing at any time during the statutory ten-year period, the claim for possessory title will fail: Teis, at p. 221.[^9] [Emphasis added]

[55] The Oakes do not assert that their possession of the patch of land was exclusive. If that fact is not asserted, a claim of adverse possession must fail.[^10] The party asserting adverse possession must establish that there was no use, however trivial, by others. To establish actual possession, the acts of possession must be "open, notorious, peaceful, adverse, exclusive, actual and continuous."[^11] If any one of these elements is missing at any time during the statutory ten-year period, the claim for possessory title will fail.[^12]

[56] The Oakes have failed to prove that they “dispossessed” the Tubmans or the Ramoth Life Centre, or that they intended to do so. The fact that there was no lock on the shed “in recent years”, that neighbourhood children used the shed, and that after the shed was torn down, and for “a couple years” before the storage container was installed in November 2013, Mr. and Ms. Maas plowed snow onto the patch of land, demonstrates that Mr. Oakes neither intended to exclude others from the land, nor effectively did so.

c) If Mr. and Ms. Maas owned a right of way over the disputed land, would they be entitled to an injunction requiring Mr. Oakes to remove the storage container?

[57] Black’s Law Dictionary defines “right-of-way” as follows:

The right of passage or of way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another.[^13]

[58] Justice Greer recently reviewed the jurisprudence governing the rights and obligations associated with rights of way in Soares v. Café Regional Bar & Grill Inc., (2013). Justice Greer adopted the reasoning of Grant J. in Anthony v. F.W. Woolworth Co., (1962), and held that the owner of a right of way was entitled to an injunction to prevent the owner of the land from creating an unreasonable obstruction of passage. Justice Greer stated:

[56] The case most clearly on point is Anthony v. F.W. Woolworth Co., [1962] 1005, 35 D.L.R. (2d) 82 (H.C.J.), where the plaintiffs were asking for an injunction and damages by the fervent owners against the owner of the dominant tenement for unreasonable obstruction of a common right-of-way. In that case, all litigants were commercial users of their properties in the business centre of the city Peterborough, Ontario. There the issue, described by Mr. Justice Grant on p. 2 of his decision, was the use being made that the defendant permitted the lane to be stopped up or blocked for unreasonable periods of time by motor vehicle, trucks and transports loading and unloading its merchandise to its said premises. There, one of the agreements in question went back to 1888 and it spoke to its use by carriages, horses and cattle, which by the passage of time came to its modern use.

[58] I adopt the reasoning as used by Mr. Justice Grant in that decision.[^14]

[59] Applying the principles stated above to the facts of the present case, I find that the Oakes’ installation of the storage container interfered with the Maas’ use of the disputed patch of land, and would have violated their right to the enjoyment of it if their right of way had included the patch of land. I find, however, for the reasons stated above, that their right of way did not extend that far. The only rights that the storage container interfered with were those of the owner of the land, Mr. and Ms. Tubman.

CONCLUSION AND ORDER

[60] For the foregoing reasons, it is ordered that:

1. Lawrence and Jason Oakes have no right, title, easement, or right-of-way over the most southwesterly 36’9” of Lot 11, described in PIN 71064-097.

2. The said land is owned by Mr. and Ms. Tubman.

3. The claim by Mr. and Ms. Maas for a declaration as to their ownership of the disputed land, and for an injunction, is dismissed.

4. The Registrar of Land Titles shall remove the consolidation of the northwesterly 35’9” of Lot 11 from PIN 71064-097.

5. The claim of Lawrence and Jason Oakes for a declaration as to their ownership of the disputed land by adverse possession is dismissed.

6. There shall be no costs payable.

7. The parties shall forthwith serve a copy of these reasons on Mr. and Ms. Tubman, or their successors-in-title.

Price J.

Released: September 28, 2017

APPENDIX

[61] This appendix traces the transactions by which each of the parties came to own their respective properties, and analyzes how their properties relate to the disputed patch of land.

Ownership of Lot 11

[62] Richard Greet received a Crown Patent for the whole of Lot 11 in 1857. Twenty years later, in 1875, his successor-in-title, Alfred Ecroyd, by, mortgaged the north half of the Lot to the Canada Permanent Bond and Savings Company.[^15] In 1877, Mr. Ecroyd deeded the south half to John McFadyen. After that, the north and south halves of Lot 11 were dealt with as separate properties.[^16]

a) The north half of Lot 11

[63] In 1934, Albert Gibson inherited a furniture and casket store on the south half of Lot 10, immediately to the north of Lot 11, on the west side of Main Street. He also inherited a dwelling on the north half of Lot 11, and a poured concrete and steel garage that his father had used as a workshop for his business, and that lay at the westerly limit of Lot 11, behind the dwelling house.[^17]

[64] On May 9, 1938, after Albert Gibson’s death, his widow, Irene Gibson (“Ms. Gibson”), as executrix of Albert’s estate, conveyed the property that her late husband had owned to herself in her own right.[^18] On July 28, 1943, she sold the north half of Lot 11 to Robert and Marjorie McPherson, together with a right of way over a twelve foot wide laneway along the north edge of the south half of Lot 11, from Main Street.[^19]

(i) The garage and rights of way from Main Street

[65] On February 19, 1945, Mr. and Ms. McPherson conveyed the land on which the garage stood at the rear of the north half of Lot 11, together with the two rights-of-way that gave access to the garage from Main Street, back to Ms. Gibson for $500, subject to their right to use the south side of the south wall of the garage.[^20] The McPherson’s deed of the garage back to Ms. Gibson describes the property conveyed as follows:

All and Singular that certain parcel or tract of land and premises, situate, lying and being in the Town of Mount Forest in the County of Wellington, and being composed of Part of the North Half of Lot 11 on the West side of Main Street in the said Town of Mount Forest, and being more particularly described as follows:

COMMENCING at the South Westerly angle of the North Half of said Lot 11 and running Northerly along the Westerly boundary of the said North Half of Lot 11 a distance of 22’3” more or less to the Northerly limit of the north wall of cement and steel garage erected on those premises; thence Easterly at right angles along the said North wall and parallel to the Southerly boundary a distance of 36’9”; thence Southerly at right angles and parallel to the Westerly boundary of said Lot 11 a distance of 22’3” more or less to the Southerly boundary of the North half of said Lot 11; thence Westerly along the said Southerly boundary of the North Half of said Lot 11 a distance of 36’9” to the place of beginning,

SUBJECT to the Grantor’s right to use the South wall of the cement and steel garage on the said premises, or any garage that may be substituted therefor as the north wall for the Grantor’s their heirs, executors, administrators and assigns’ garage;

TOGETHER with a right of way in common with the Grantors and others in, over, along and upon the Northerly 12’ of the South Half of Lot 11 on the West side of Main Street, excepting the Westerly 37’ of the said 12’ right of way, and

TOGETHER with a further right of way commencing at a point on the Southerly boundary of the North Half of Lot 11 on the West side of Main Street distant 36’9” Easterly from the South Westerly angle of the said North Half of Lot 11; thence in a Northerly direction and parallel to the Westerly boundary of the said North Half of Lot 11 a distance of 22’3”; thence Easterly at right angles and parallel to the Southerly boundary of said North Half of Lot 11 a distance of 20’; thence in a South Easterly direction to a point on the Southerly boundary of said Lot 11 distant 72’ Easterly from the South Westerly angle of the said North Half of Lot 11; thence Westerly and along the southerly boundary of said Lot 11 a distance of 35’3” to the place of beginning. [Emphasis added]

[66] On July 30, 1945, Ms. Gibson, conveyed to John Schuett the south half of Lot 10, where her husband and his father had operated their furniture store and casket factory, together with the garage at the rear of the north side of Lot 11, which they had used as a workshop for their store, which the McPhersons had sold back to her five months earlier.[^21] Ms. Gibson’s deed to Mr. Schuett describes the property conveyed as follows:

All and singular that certain parcel or tract of land and premises, situate, lying and being in the Town of Mount Forest in the County of Wellington and Province of Ontario being composed of parts of Lots Numbers Ten and Eleven (10 & 11) on the West side of Main Street in the said Town of Mount Forest more particularly described as follows:

FIRSTLY: The South half of Lot Number Ten on the West side of Main Street in the said Town together with a right-of-way ten feet (10’) in width along the northerly side of the brick building erected on the said lot extending from Main Street to the rear of the westerly limit of the said lot.

SECONDLY: Part of the North half of the said Lot Number Eleven (11) on the West side of Main Street in the said Town more particularly described as follows:

COMMENCING at the southwesterly angle of the North Half of said Lot Eleven (11) and running Northerly along the Westerly boundary of said North Half of Lot eleven (11) a distance of 22’3” more or less to the Northerly limit of the north wall of cement and steel garage erected on these premises; THENCE Easterly at right angles along the said North wall and parallel to the Southerly boundary a distance of 36’9”; THENCE Southerly at right angles and parallel to the Westerly boundary of said Lot 11 a distance of 22’3” more or less to the Southerly boundary of the North Half of said Lot 11; THENCE Westerly along the said Southerly boundary of the North Half of said Lot 11 a distance of 36’9” to the place of BEGINNING.

SUBJECT to the use by ROBERT HUGH McPHERSON and MARJORIE McPHERSON, their heirs, executors, administrators and assigns, of the south wall of the cement and steel garage on the said premises or any garage that may be substituted therefor as the North wall for the garage of the said ROBERT HUGH McPHERSON and MARJORIE McPHERSON, their heirs, executors, administrators and assigns.

TOGETHER with a right-of-way in common with others entitled thereto in, over, along and upon the Northerly 12’ of the South Half of Lot 11 on the West side of Main Street, excepting the Westerly 37’ of the said 12’ right-of-way, and TOGETHER with a further right-of-way [there follows the description of the right-of-way over the entrance way of the garage, as described in deed dated July 28, 1943, from Irene Gibson to Robert and Marjorie McPherson]. [Emphasis added]

[67] On September 17, 1974, John Schuett’s son, Godfrey Schuett, conveyed the south half of Lot 10, together with the garage at the back of the north half of Lot 11, to Laverne Weber.[^22] As noted above, John Schuett bought those parcels from Ms. Gibson in 1945, subject to the reservation of the south side of the south wall of the garage for the McPhersons and their heirs and assigns. Godfrey Schuett conveyed the parcels to Ms. Weber with the same rights of way that John Schuett had acquired from Ms. Gibson in 1945.

[68] On January 20, 1975, Ms. Weber conveyed the property she had bought from Godfrey Schuett to Allan and Alli Temills.[^23] On October 18, 1982, Victoria & Grey Trust, under Power of Sale, sold the same property (part of Lot 10 and the garage on the north half of Lot 11), to Lawrence Oakes’ company, Carpet Clear-Out Corp.[^24] Carpet Clear-Out conveyed the property to Mr. Oakes on August 25, 1988.

[69] For greater clarity, the following diagram shows the conveyance of the garage, with the rights of way associated with it, and chain of title from 1945 to the present.

DIAGRAM A

Diagram - Garage on North Half of Lot 11

Legend:

Area R – Right of Way

Area D – Disputed Land

Area M – Maas property

Area B – Ramoth Life Centre

Area O – Oakes Property

Chain of Title:

July 30, 1945: Ms. Gibson to John Schuett

September 17, 1974: Godfrey Schuett to Laverne Weber

January 20, 1975: Laverne Weber to Mr. and Ms. Temills

October 18, 1982: Victoria and Grey Trust to Carpet Clear-Out Corp.

August 25, 1988: Carpet Clear-Out Corp. to Lawrence Oakes

(ii) The remainder of the north half of Lot 11, excluding the garage

[70] On April 30, 1974, the McPhersons conveyed the north half of Lot 11, except the land where the garage stood, to Fred and Marie McDonald.[^25] The deed to the McDonalds described the property conveyed as follows:

All and Singular that certain parcel or tract of land and premises situate, lying and being in the Town of Mount Forest, in the County of Wellington and Province of Ontario and being composed of Part of the North half of Lot 11, on the West side of Main Street, in the said Town of Mount Forest, more particularly described as follows:

COMMENCING at the northeast angle of said lot;

THENCE running along the Northerly boundary of the said lot to the Northwest angle;

THENCE Southerly along the Westerly boundary a distance of 24 feet 3 inches more or less to a point distant 22 feet 3 inches Northerly from the centre or dividing line of the said lot into the North half and the South half;

THENCE Easterly at right angles and parallel to the Northerly boundary a distance of 36 feet 9 inches;

THENCE Southerly and parallel to the Westerly boundary a distance of 22 feet 3 inches to the centre line dividing the lot into the north half and the south half;

THENCE Easterly and parallel to the Northerly limit a distance of 198 feet more or less along the centre dividing line to the Easterly boundary of said lot;

THENCE Northerly along the said Easterly boundary a distance of 46 feet 6 inches more or less to the place of beginning;

TOGETHER WITH a right of way, more particularly described as follows:

COMMENCING at the Northeast corner of the South half of Lot 11 and running Westerly along the Northerly boundary of the said south half a distance of 198 feet more or less to a point distant 36 feet 9 inches Easterly from the Westerly boundary;

THENCE Southerly and parallel to the Easterly boundary a distance of 12 feet;

THENCE Easterly and parallel to the Northerly boundary of the said south half a distance of 198 feet more or less to the Easterly boundary of said lot;

THENCE Northerly along the Easterly boundary a distance of 12 feet to the place of beginning. [Emphasis added]

[71] The McPhersons’ deed to the McDonalds included the 12’ wide right of way over the northern edge of the south half of Lot 11, from Main Street, on the east, to the point directly south of the entrance to the garage, being 36’9” from the westerly limit of Lot 11. The right of way gave the McDonalds a driveway from Main Street, immediately to the south of their property. They shared the driveway with Mr. Schuett, who owned the garage behind their building, with the McPhersons, who owned the southeasterly parcel of Lot 11, and with Eva Baker, Shirley Gilstorf and Grant Gilstorf, who then owned the southwesterly and south-centre parcels of Lot 11.

[72] On May 1, 1981, the McDonalds conveyed the property they had acquired from the McPhersons in 1974, comprising the north half of Lot 11, except the garage, to Paul and Donna Martin, together with the 12’ right of way over the northern edge of the south half of Lot 11, from Main Street, on the east, to a point, 36’9” from the westerly limit of Lot 11, directly south of the entrance to the garage, on the west.[^26]

[73] On November 1, 1984, Mr. and Ms. Martin, conveyed the property they had bought from the McDonalds to Carpet Clear-Out Corp.[^27] The deed gave the same description of the property, comprising the north half of Lot 11, with the exception of the garage, and the 12’ wide right of way over the northern edge of the south half of Lot 11, from Main Street, to a point 36’9” from the westerly limit of Lot 11, south of the garage entrance, on the west. On August 25, 1988, Carpet Clear-Out Corp. conveyed the same property to Lawrence Oakes.[^28]

[74] With Mr. Oakes’ acquisition of the garage that Carpet Clear-Out Corp. had acquired in 1982, and of the remainder of the north half of Lot 11, which Carpet Clear-Out Corp. had acquired in 1984, he became the owner, in August 1988, of the entire north half of Lot 11, as well as of the south half of Lot 10.

[75] For greater clarity, the following diagram shows the conveyance of the north half of Lot 11, except the garage, and chain of title from 1974 to the present.

DIAGRAM B

Diagram – North Half of Lot 11, Except Garage

Legend:

Area R – Right of Way

Area D – Disputed Land

Area M – Maas property

Area B – Ramoth Life Centre

Area O – Oakes Property

Chain of Title:

April 30, 1974: McPhersons to McDonalds

May 1, 1981: McDonalds to Mr. and Ms. Martin

November 1, 1984: Mr. and Ms. Martin to Carpet Clear-Out Corp.

August 25, 1988: Carpet Clear Out to Lawrence Oakes

b) The south half of Lot 11

(i) The southeasterly parcel

[76] In 1882, Mr. McFadyen and his wife conveyed their interest in the southeasterly parcel of Lot 11 by Quit Claim deed, or a renunciation of their interest,[^29] to Elijah Robinson. In October 1882, Mr. Robinson conveyed it to Robinson and Robertson. In May 1884, Thomas Robinson and his wife quit claimed their interest in the parcel to Samuel Robertson, who quit claimed to W.A. Harvey in July 1885. In February 1886, W. Harvey and his wife deeded the property to Thomas Clarke.

[77] On January 19, 1938, Mr. Clarke’s executrix, Georgina Clarke conveyed title to herself in her own right.[^30] On September 8, 1939, Ms. Clarke’s executors, conveyed title to William Smith.[^31] The description of the property in the Executors’ deed to Mr. Smith was as follows:

ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the Town of Mount Forest in the County of Wellington and Province of Ontario and being composed of a part or portion of Lot number eleven west of Main Street, containing by admeasurement (illegible) and 3/10 perches be the same more or less which is more particularly described as follows:

COMMENCING on the West limit of Main Street at the distance of ninety-one links [a chain being 66 feet long and consisting of 100 links, a link was .66 of a foot, so ninety-one links = 60.06 feet] from the limit between said lot eleven and lot ten on the west side of Main Street and measured along said limit of Main Street as a source south forty-three degrees east: then south forty-four degrees, ten minutes west parallel with the limit between said lots ten and eleven one hundred and seventy feet, then south forty-three degrees east parallel with said west limit of Main Street fifty-one and one-half links [34 feet] south to the limit between lot eleven and lot twelve. Thence east 170 feet more or less to the said west limit of Main Street; Thence north fifty-one and a half links (34 feet) to the place of beginning.

Together with the use of a right-of-way twelve feet wide on the north side of said parcel of land and adjacent thereto and extending from Main Street to the rear of the said parcel of land. [Emphasis added]

[78] Based on the above description, the conveyance to Mr. Smith in January 1938 comprised a rectangle 170’ east to west, and 34’ north to south, beginning at the demarcation of the north from the south half of Lot 11 (60 feet south of Lot 10). In other words, it conveyed the southeasterly parcel of Lot 11, comprising 170 feet of the 235 feet depth of the lot, east to west, and with the use of the 12’ wide right of way that extended along the north edge of the south half of Lot 11, from Main Street for 170’, which is to say, to a point 65’ east of the westerly limit of Lot 11.

[79] On February 4, 1946, William Smith conveyed the property, described in identical language, to Marjorie L. McPherson.[^32] On April 7, 1995, Ms. McPherson conveyed it to herself and Robert McPherson.[^33] On May 23, 2003, Ms. McPherson conveyed the southeasterly parcel of Lot 11 to Mr. and Ms. Maas.[^34]

[80] On July 7, 2009, Mr. and Ms. Maas conveyed the 12’ right of way, being the whole of PIN 71064-0097(R), to themselves, subject to a right of way in common with others entitled thereto, over and upon the lands, excepting the most westerly 36’9” thereof, as in Instrument RON 88831.[^35] On July 27, 2009, Mr. and Ms. Maas made an Application to the Registrar of Land Titles to consolidate PINS 71064-0099 LT and 71064-0217LT, as in 88831 and 730135.[^36]

[81] For greater clarity, the following diagram show the conveyance of the southeasterly parcel, with the rights of way associated with it, and chain of title from 1939 to the present.

DIAGRAM C

Diagram – Southeasterly Parcel of Lot 11

Legend:

Area R – Right of Way

Area D – Disputed Land

Area M – Maas property

Area B – Ramoth Life Centre

Area O – Oakes Property

Chain of Title

September 8, 1939: Georgina Clarke’s Executors to William Smith

February 4, 1946: William Smith to Marjorie McPherson

April 7, 1995: Ms. McPherson to herself and Robert McPherson

May 23, 2003: Ms. McPherson to Mr. and Ms. Maas

July 7, 2009: Mr. and Ms. McPherson to themselves as joint tenants

(ii) The south-centre and southwesterly parcels of Lot 11

[82] In 1882, Mr. Robinson deeded the southwesterly and south-centre parcels of Lot 11 to Charles Jones, together with a right of way described as “Part S ½ Right of Way”. In November 1919, he entered into an annuity agreement in favour of Sarah L. Jones. Sarah Jones quit claimed her parcels to Florence Jones (widow) in May 1925, and Florence Jones conveyed them to Henry Argue on May 1, 1925, with a mortgage back to her. Those deeds included the 12’ wide right of way, a portion of which Mr. Argue conveyed to the McPhersons in 1945, with the southwesterly and south-centre parcels of Lot 11, as appears below.

[83] On September 27, 1945, Henry Argue conveyed the westerly part of Lot 12, and the southwesterly and south-centre parcels of Lot 11, and a 12’ wide right of way from Main Street to a point 50’ east of the westerly limit of Lot 11 to Robert and Marjorie McPherson.[^37] The description in the deed is as follows:

All and singular that certain parcel or tract of land and premises, situate, lying and being in the Town of Mount Forest in the County of Wellington and Province of Ontario and being composed of parts of Lots Numbers TWELVE AND ELEVEN on the West side of Main Street in the said Town and more particularly described as follows: that is to say:

FIRSTLY a part or portion of Lot Twelve on the West side of Main Street in said Town; described as follows: that is to say: Commencing at the distance of One hundred and seven feet measured from the South-Easterly Corner of the said Lot; Thence Westerly along the North side of Wellington Street to the rear of said Lot. Thence in a Northerly course and parallel with Main Street to the boundary line between said Lot Twelve and Eleven on said West side of Main Street; Thence Easterly and along said boundary line a distance of One hundred and fifteen feet more or less; thence at right angles and parallel to said Main Street to the place of beginning.

SECONDLY Being composed of a part of the South half of Lot Number ELEVEN, on said West side of said Main Street, in said Town of Mount Forest, containing by admeasurement Seven and one-half perches be the same more or less, commencing at a point on the Southerly limit of said Lot Number eleven distant Three chains [2 x 66 feet = 198 feet] and forty-four links [44 x .66 feet = 29.04 feet] [for a total of 227.04 feet] from the South-easterly Angle of said Lot; Thence North Forty-four degrees West, parallel with the West limit of Main Street Fifty-one and one-half links [34 feet] more or less; Thence North Forty-six degrees East, parallel with the Southerly limit of said Lot, eighty-nine and a half links, [86 x .66 feet = 56.76 feet] more or less; Thence South Forty-four degrees and Fifty-one and on-half links [34 feet] , more or less, to the Southerly limit of said Lot eleven; Thence along said Southerly limit Forty-four degrees West eighty-nine and a half links [56.76 feet] more or less to the place of beginning.

Together with a right of way Twelve feet in width on the North side of the said lands, and adjacent thereto and extending from Main Street to the rear of said parcel of land, save and except the Westerly fifty feet (50’) thereof.

THIRDLY Being composed of the Westerly part of the South half of Lot ELEVEN on the West side of Main Street in said Town, and which said part of said Lot, may be more particularly described as follows, that is to say, Commencing on the Southerly limit of said Lot at the Distance of [227,04 feet] Three chains [3 x 66 feet = 198 feet] and forty-four links [44 x .66 feet = 29.04 feet] from the Westerly limit of Main Street aforesaid; Thence Course South forty-four degrees Ten minutes West along said Limit Eight feet more or less to the Westerly limit of said Lot; Thence in a Northerly course along the rear or Westerly limit of said Lot Fifty-one and one-half links [34 feet], to a post; Thence North Forty-four degrees Ten minutes East, parallel with the Southerly limit of said Lot, Eight feet measured to a Stake at a point Three chains and forty-four links [227.04 feet] from said Westerly side of Main Street; Thence course South Forty-three degrees East parallel with Main Street, Fifty-one and one half links [34 feet] more or less to the place of beginning.

[84] Based on the foregoing description, Mr. Argue conveyed to the McPhersons, by the first part of his deed, the west half of Lot 12, which extended westward from a point 107 feet west of the northwest corner of Main Street North and Wellington Street, to the westerly limit of the Lot, northward to the Lot line between Lot 12, on the south, and Lot 11, on the north, then back, eastward, 115 feet toward, Main Street, and then southward, back to Wellington Street.

[85] Mr. Argue additionally conveyed, by the second and third parts of his deed, the south centre parcel of Lot 11, lying just north of the westerly half of Lot 12, and measuring 34 feet, north to south, and 56.76 feet, east to west, and a parcel at the south-westerly limit of Lot 11, measuring 8 feet east to west, and 34 feet north to south, together with a right of way along the laneway on the north edge of Lot 11, from Main Street, on the east, to a point 50 feet from the westerly limit of Lot 11, on the west. Together, those parcels comprised a total of 64.76 feet east to west, and 34 feet north to south. To its east was the 170.28 feet that comprised the southeasterly parcel of Lot 11.

[86] On June 1, 1946, the McPhersons conveyed the westerly parcel of Lot 12, and the southwesterly and south-centre parcels of Lot 11, which they had acquired from Mr. Argue on September 27, 1945, to Hildo and Laura Bolley.[^38] On June 30, 1952, the Bolleys conveyed them to Dr. Lorne H.J. Mullen, who conveyed them to James A. Smith at about the same time. On November 16, 1961, Mr. Smith conveyed the parcels to his wife, Elizabeth Smith, who conveyed them to Louis and Carmen Yob, who conveyed them to John W. Craig, both on about June 17, 1967. On August 25, 1970, Mr. Craig conveyed the parcels to Eva Baker and Shirley Gilstorf, who conveyed them to Brider Loretta Henry and Roy Washington Henry on October 1, 1981. On November 11, 1988, Mr. and Ms. Henry conveyed the parcels to Donald and Loraine Hunt, who conveyed them in December 1998, to Terry and Brenda Tubman. The Tubmans established the Ramoth Life Centre, which operates on the property today, with the address of 119 Wellington Street West.

[87] Mr. Argue’s conveyance of the southwesterly and south-centre parcels of Lot 11 to the McPhersons on September 27, 1945, left the south-easterly parcel of Lot 11, which was not yet conveyed to the McPhersons. This comprised 170.28 feet westward from Main Street. The length of that parcel roughly corresponds to the 170 foot parcel that Mr. Smith conveyed to Ms. McPherson five months later, on February 4, 1946.

[88] For greater clarity, the following diagram shows the conveyance of the southwesterly and south-centre parcels of Lot 11, and the chain of title from 1945 to the present.

DIAGRAM D

Diagram – South-Centre and Southwesterly Parcels of Lot 11

Legend:

Area R – Right of Way

Area D – Disputed Land

Area M – Maas property

Area B – Ramoth Life Centre

Area O – Oakes Property

Chain of Title:

September 27, 1945: Henry Argue to Mr. and Ms. McPherson

June 1, 1946: Mr and Ms. McPherson to Mr. and Ms. Bolley

June 30, 1952: Mr. and Ms. Bolley to Dr. Lorne Mullen

June 30, 1952: Dr. Mullen to James A. Smith

November 16, 1961: James Smith to Elizabeth Smith to Louis and Camren Yob

June 17, 1967: Mr. and Ms. Yob to John W. Craig

August 25, 1970: John Craig to Eva Baker and Shirley Gilstorf

October 1, 1981: Mr. Baker and Ms. Gilstorf to Brider Henry and Roy Henry

November 11, 1988: Mr. and Ms. Henry to Donald and Loraine Hunt

December 1998: Mr and Ms. Hunt to Terry and Brenda Tubman, who established the Ramoth Life Center

c) Summary of the ownership of Lot 11

[89] In 1945, the McPhersons sold the garage on the north half of Lot 11 to Ms. Gibson, retaining the right to use the south wall of the garage, which was the north wall of a shed that stood on the patch of land south of the garage. Ms. Gibson then sold the garage to Mr. Schuett, who had also bought the south half of Lot 10, where Mr. Gibson had operated his furniture and casket store. In 1982, Victoria and Grey Trust, the successors-in-title of Mr. Schuett, sold the garage to Carpet Clear-Out Corp., which conveyed it to its owner, Mr. Oakes, in 1988.

[90] The McPhersons, who bought the remainder of the north half of Lot 11 from Ms. Gibson in 1943, sold it in 1974 to Fred and Marie McDonald, who sold it to Paul and Donna Martin in 1981. The Martins sold it to Carpet Clear-Out Corp. in 1984, and Carpet Clear-Out Corp. conveyed it to Mr. Oakes in 1988.

[91] Henry Argue, who bought the southwesterly and south-centre parcels of Lot 11, comprising 64.76 feet, together with the westerly parcel of Lot 12, to the south, from Florence Jones in 1925, sold those parcels to Robert and Marjorie McPherson in September 1945, with the 12’ right of way along the laneway over the north edge of the south half of Lot 11, from Main Street, on the east, to a point 50 feet from the westerly limit of Lot 11, on the west. On June 1, 1946, the McPhersons conveyed those parcels to Mr. and Ms. Bolley, from whom they were conveyed through a succession of transactions to their eventual successors-in title, Terry and Brenda Tubman, who acquired them in December 1998, and established the Ramoth Life Centre, with the address of 119 Wellington Street West.

[92] William Smith, who bought the southeasterly 170 feet of Lot 11 in 1939 from the executors of Georgina Clarke, who had inherited it in 1938 from her husband, Thomas Clarke, who had acquired it in 1886, sold it to Marjorie McPherson in February 1946. In 1995, Ms. McPherson conveyed it to herself and her husband, including the 12’ right of way on the north edge of Lot 11, from Main Street to the east, to the westerly limit of the parcel, to the west. In 2003, Ms. McPherson conveyed the southeasterly parcel to Mr. and Ms. Maas. On July 7, 2009, Mr. and Ms. Maas conveyed it to themselves, as joint tenants, subject to the 12’ right of way in common with others over that parcel, excepting the most southwesterly 36’9”.

d) The Rights of Way

[93] As noted above, in April 1974, the McPhersons granted to the McDonalds, with the north half of Lot 11, a 198’ right of way, ending 36’9” from the westerly limit of Lot 11. This right of way was 13’1” longer than the 185.04 foot long right of way that the McPhersons acquired from Mr. Argue in 1945, when they bought the southwesterly and south-centre parcels of Lot 11, but 13’3” shorter than the 235.04 foot long right of way that Mr. Smith granted to the McPhersons a year later, in 1946, when he sold the southeasterly 170’ of Lot 11.

[94] When Georgina Clarke’s executors sold the southeasterly 170’ of Lot 11 to Mr. Smith in 1939, and Mr. Smith conveyed it to Ms. McPherson in 1946, they included the use of the right of way along the north end of that parcel, from Main Street westward to the limit of that parcel, or 64.76’ east of the westerly limit of Lot 11. Although Mr. and Ms. Maas were unable to produce the deed from Ms. McPherson to them, they produced their Agreement of Purchase and Sale, which refers to the deed from Mr. Smith to Ms. McPherson, which included the right of way. Based on that evidence, I find that Mr. and Ms. Maas continue to share the use of the right of way that extends across the northerly 170’ of their property.

[95] When Mr. Argue, in 1945, conveyed the south-centre and southwesterly parcels of Lot 11, measuring 64.76’ by 34’, to the McPhersons, he included a right of way that ended 50’ east of the westerly limit of Lot 11.

CITATION: Maas v. Oakes, 2017 ONSC 5568

COURT FILE NO.: 131/14 Guelph

DATE: 2017 09 28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOHANNES ANTONIUS GERARDUS MAAS and SANDRA LYNN MAAS

Applicants

– and –

LAWRENCE CECIL OAKES and JASON OAKES

Respondents

REASONS FOR ORDER

Price J.

Released: September 28, 2017

[^1]: Rules of Civil Procedure, R.R.O. 1990, R. 194, as amended; R. 14.05(3)(d) and (e).

[^2]: Rules of Civil Procedure, R.R.O. 1990, R. 194, as amended, R. 14.05(3)(g)

[^3]: Kaup and Kaup v. Imperial Oil Ltd. et al. [1962] SCR 170, 1962 SCC 49

[^4]: Q. 30

[^5]: Q. 60

[^6]: Q. 82 and 83

[^7]: McClatchie v. Rideau Lake (Township), 2015 ONCA 233, at para. 9

[^8]: Sumner v. Sullvan 2014 ONSC 1706, [2014] O.J. No. 1281 (SCJ), at paras. 26, 27

[^9]: McLatchie, supra, para. 11.

[^10]: Barbour v. Bailey [2016] ONCA 98. Para. 35, 44, 45, and 48.

[^11]: Teis v. Ancaster (Town) (1997), 1997 ONCA 1688, 35 O.R. (3d) 216 (Ont. C.A.), at p. 221

[^12]: Teis, at p. 221.

[^13]: H.C. Black, Black’s Law Dictionary, revised fourth edition (St. Paul, Minnesota: West Publishing Company, 1968)

[^14]: Soares v. Café Regional Bar & Grill Inc., 2013 ONSC 7939

[^15]: Registered in the Registry Office for the County of Wellington as Instrument C3-964

[^16]: Registered as Instrument C3-1223,

[^17]: The deed to Mr. Gibson was registered as Instrument C17-7707

[^18]: The deed from Ms. Gibson, Executrix, to herself was registered as Instrument C17-7958

[^19]: The deed from Ms. Gibson to Mr. and Ms. McPherson was registered as Instrument C18-8334

[^20]: The deed from Mr. and Ms. McPherson back to Ms. Gibson was registered as Instrument C18-8796

[^21]: Ms. Gibson’s deed to John Schuett was registered as Instrument C18-8865,

[^22]: Godfrey’s deed to Laverne Weber was registered as Instrument 36349D

[^23]: Ms. Weber’s deed to Mr. and Ms. Temills was registered as Instrument 37559D

[^24]: The deed from Victoria & Grey Trust to Carpet Clear-Out was registered as Instrument 65744

[^25]: The deed from the McPhersons to the McDonalds was registered as Instrument 34541D,

[^26]: The deed from the McDonalds to the Martins was registered as Instrument 61262

[^27]: The deed from the Martins to Carpet Clear-Out was registered as Instrument 72805

[^28]: The deed from Carpet Clear-Out to Mr. Oakes was registered as Instrument 88831

[^29]: Russo Corp. v Deborah Essery, 2016 ONSC 321, para. 37

[^30]: The deed from Georgina Clarke, Executrix, to herself was registered as Instrument C17-7932

[^31]: The deed from Ms. Clarke’s executors to William Smith was registered as Instrument C17-8077

[^32]: The deed from William Smith to Ms. McPherson was registered as Instrument C19-8940,

[^33]: The deed from Ms. McPherson to herself and her husband was registered as Instrument 730135

[^34]: The deed from Ms. McPherson to Mr. and Ms. Maas was registered as Instrument WC27142

[^35]: The deed from Mr. and Ms. Maas, as tenants-in-common, to themselves, as joint tenants, was registered as Instrument RO820739

[^36]: The Application by Mr. and Ms. Maas was registered as Instrument WC251708,

[^37]: The deed from Mr. Argue to Mr. and Ms. McPherson was registered as Instrument C18-8891

[^38]: The McPhersons deed to the Bolleys was registered as Instrument 9022,