Citation: FRIDAY HARBOUR RESORTS v. 2138746 ONTARIO INC. 2017 ONSC 7444
COURT FILE NO.: CV-13-0321-000 AND CV-12-1306-0000
DATE: 2017-12-15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Friday Harbour Resort Inc. Plaintiff
– and –
2138746 Ontario Inc Defendant
Counsel: David Outerbridge, Alex Shelley, Jeffery Shankman, for the Plaintiff Sean Foran, Aisling Flarity, for the Defendant
AND BETWEEN:
2138746 Ontario Inc Appellant
– and –
Kimvar Enterprises Inc Respondent
Counsel: Sean Foran, Aisling Flarity, for the Appellant David Outerbridge, Alex Shelley, Jeffery Shankman, for the Respondent
AND BETWEEN:
Friday Harbour Village Inc. Plaintiff
– and –
2138746 Ontario Inc. Defendant
Counsel: David Outerbridge, Alex Shelley, Jeffery Shankman, for the Plaintiff Sean Foran, Aisling Flarity, for the Defendant
AND BETWEEN:
2138746 Ontario Inc. Appellant
– and –
Friday Harbour Village Inc. Respondent
Counsel: Sean Foran, Aisling Flarity, for the Appellant David Outerbridge, Alex Shelley, Jeffery Shankman, for the Respondent
BEFORE: M. P. EBERHARD
Introduction
[1] Using a 1959 aerial photo we can recall a stretch of Lake Simcoe waterfront land on the east shore of Big Bay Point described as just south of the second bump.
[2] In 1936 numerous lots of similar lake frontage on this east shore were conveyed with a right of way, described as Block C, to access lots 1 to 5.
[3] Cottages sprang up on lots 3 to 6 and south along the shoreline but not on lot 1 and 2. By 1941 the owners of the huge parcel of land, surrounding lots1 and 2 to the north and west and around the west side of Block C, also owned lot 1 and 2 in common ownership.
[4] Using aerial photos from 1965 and 1975 we can see how the eastern shoreline of Big Bay Point was sliced apart by an entrance channel to a Marina dredged into the land of common ownership, and submerging parts of Lot 1 and Block C.
[5] Dan Williams spent his summers from 1963 when aged 11-27 at his parent’s cottage on Lot 3 until his father sold it in 1979. Even before that the family rented a cottage a mile away. He liked it so much that as an adult in 1991 he became manager of the Marina for a group of owners including his wife’s father.
[6] James Puhky born in 1964, spent his boyhood at his parent’s cottage on Lot 4. He liked it so much that after he inherited Lot 4 he purchased lot 3 in 1992 and in 1995 began the process to take down the 2 cottages on lots 3 and 4 to construct a permanent home where he lived year round until he sold it to Kerry Adler’s corporation (2138746 Ontario Inc.) in 2007.
[7] To these boys, now long time men, the Marina was always there. So too was an old overgrown gate on stone pillars never opened and a combination of fences which completely blocked off the roadway that went along lots 6 to 3 to their driveways. So too were there always fences, trees and overgrowth on the boundary of lots 2 and 3. The only way to get to Marina lands from lot 3 was a path on the lakeshore in a gap between the fence and lake.
[8] Of course, as children they had no interest or insight about title to the roadway they used to access their cottages.
[9] Dan Williams stated he didn't even know Block C existed. He “thought it was just a public road up to our place.” Beyond the dead end, Dan Williams just thought it was Marina land. When he participated in the power of sale purchase of Marina lands and in managing the Marina, no distinction of Block C arose. There were no complaints, restrictions or permissions. The Marina and its patrons used it, maintained it and changed it in like manner to the property on each side of it to which the Marina had title.
[10] James Puhky thought he owned the road into his cottage driveway when he bought Lot 3. Only when he prepared to build his new cottage straddling lots 3 and 4 in 1995 did he learn of the Block C right of way. Title to that right of way still belonged to Murray Axsmith who owned no cottage lot in 1995. He had sold his cottage to Dan William’s parents in 1963. By 1995 Murray Axsmith suffered from Alzheimer’s so his memory was unavailable. James Puhky purchased Block C for $2500. From then he was aware that the Marina had benefit of the right of way. He testified that in1995 when bought Block C he understood it extended into waters saying “I had a survey that showed it”. He made no complaint or demand of the Marina. Asked if he was concerned, he responded: “It had no bearing on me.” He was then aware of the part of Block C on the Marina side of the fence. He didn't exercise rights over Block C or ask for money because, as he said, “I had to give them the right of way”. He did not participate or object when public consultation was conspicuously invited during the approval process for the Friday Harbour Village project. In contrast to that absence of concern, he and neighbours in lot 5 posted signs on the road behind their lots because would be Marina patrons turning around in their driveways were an unwanted irritation.
[11] Superimposed on these memories, literally and figuratively, are the numerous surveys, opinions on historical significance and practice, and legal characterizations of what happened.
[12] As the evidence unfolded before me the juxtaposition and clash of legal principles also emerged: adverse possession of the Marina strip; abandonment of the right of way or parts of it by the dominant tenement; overburdening of the right of way; trespass; prescriptive easement;
[13] There is very little dispute as to the facts. Credibility of witnesses is not challenged except that the memories of neighbours were formed when they were children and therefore they may not have had interest or opportunity to observe relevant facts. Adults who held title to lot 1 and 2, lots 3 and 4, Block C and the Marina lands between the 1960s and 90s are unavailable to provide information going to intentions and permissions. Experts disagree whether the words of grant of right of way limit the purpose to ingress and egress to lots only to be used for a cottage. In these reasons, my recitation of the story should be read as “the evidence is, and I find”. Counsel for the Defendant assisted me in identifying the facts for adjudication that will bear on the issues from their perspective. It may be useful to respond directly (IN CAPITAL LETTERS) to focus my reasons that follow:
213 submits that the following findings of fact be made:
(i) The predecessors in title to the Friday Harbour Lands built an alternate road to access Lots 1 and 2 which ran approximately parallel to Block C. This is the “asphalt driveway” marked on the 2007 orthophoto that is Exhibit “C” to Mr. Swift’s first report (Exhibit 7 at the trial); I MAKE THAT FINDING OF FACT.
(ii) The right of way over the portion of Block C to the west of the boundary between Lots 2 and 3 has not been used to access Lots 1 and 2 since at least 1963; I MAKE THAT FINDING OF FACT. FOR A TIME, IN A LINE THAT WOULD BE A STRAIGHT PROJECTION OF BLOCK D AT THE WESTERN MOST END OF THE WESTERN STRIP, THE ROAD CROSSED BLOCK C AND WAS USED TO ALLOW ACCESS TO THE MARINA LANDS FOR THE NEIGHBOURING COTTAGERS.
(iii) The predecessors in title to the Friday Harbour Lands intended to abandon the right of way over Block C. Alternatively, the predecessors in title to the Friday Harbour Lands intended to abandon the right of way over Block C west of the obstructions across Block C at the approximate extension of the boundary between Lots 2 and 3; THESE FINDINGS AS STATED ARE NOT AVAILABLE ON DIRECT EVIDENCE. AN INFERENCE MUST BE MADE FROM WHAT WAS DONE.
(iv) There is no evidence that Friday Harbour’s predecessors in title intended to exclude the rightful owner of Block C from the Marina Strip of Block C; AN INFERENCE MUST BE MADE FROM WHAT WAS DONE SINCE EVIDENCE OF CONSCIOUS INTENTION OR PERMISSIONS IS UNAVAILABLE.
(v) Friday Harbour’s predecessors in title did not effectively exclude the rightful owner of Block C from the Marina Strip of Block C. I REJECT THIS FINDING AS INCONSISTENT WITH THE EVIDENCE.
(vi) Alternatively, Friday Harbour’s predecessors in title did not effectively exclude the owner of Block C from that part of the Marina Strip of Block C that was not submerged; I REJECT THIS FINDING AS THE ROAD BLOCK AND FENCING EFFECTIVELY CUT OFF USE OF THE ENTIRE MARINA STRIP.
(vii) There is no evidence that the predecessors in title to the Friday Harbour Lands mistakenly believed that they held title in fee simple to the Marina Strip of Block C; IT IS AN INFERENCE AVAILABLE ON THE EVIDENCE BUT NOT NECESSARY TO THE RESULT.
(viii) There is no evidence that Murray Axmith, who owned Block C from 1960 to 1995, mistakenly believed that Block C ended at the boundary between Lots 2 and 3; DIRECT EVIDENCE IS UNAVAILABLE BUT THE INFERENCE IS AVAILABLE ON THE EVIDENCE BUT NOT NECESSARY TO THE RESULT.
(ix) Mr. Puhky, who owned Block C from 1995 to 2008, knew Block C extended beyond the boundary of Lots 2 and 3 after he bought it in 1995; I MAKE THAT FINDING OF FACT.
(x) The use of the Marina Strip of Block C by the former owners of the Friday Harbour Lands was not inconsistent with the intended use of these lands by the former rightful owners of Block C; I REJECT THAT FINDING OF FACT
(xi) The language “for all necessary purposes” contained in the 1936 grant of right of way over Block C was not intended to grant an unrestricted right of access over Block C for all purposes; I FIND THE STARK CONTRAST OF ALL PURPOSES OR FOR PURPOSES NECESSARY TO INGRESS AND EGRESS TO COTTAGE PROPERTY TOO RIGID. I FIND THE WORDING IS NEITHER “CARTE BLANCHE” NOR LIMITED TO MERE ACCESS TO A COTTAGE. ABSENT RESTRITIVE COVENENTS OR ANY FORM OF ZONING MODEST LIMITATIONS OF EXPECTATION MUST ARISE FROM THE CIRCUMSTANCES OF THE 1936 RANGE OF USAGE OF LAKE FRONT PROPERTIES.
(xii) Lots 1 and 2 were intended to be used as residential cottage properties at the time of the grant of right of way in 1936; I REJECT THAT FINDING OF FACT.
(xiii) The improvements made to Block C by Friday Harbour during the course of its construction exceeded the permitted use of the right of way; and. I MAKE THAT FINDING OF FACT.
(xiv) Allowing Lots 1 and 2 to be accessed by the general public across Block C would constitute an overburdening of the right of way. I MAKE THAT FINDING OF FACT.
The Litigation
[14] The history of the litigation is, as precised by the Defendant in argument is:
D. History of Proceedings
(a) In December, 2011, Friday Harbour submitted an application to the Land Registrar under s. 46(2) of the Land Titles Act seeking absolute title to the Friday Harbour Lands, including the benefit of a right of way over Block C, Plan 1021. 213 objected to Friday Harbour’s application for absolute title on the grounds that the right of way over Block C in favour of the owners of Lots 1 and 2 had been abandoned.
(b) The objection was heard by the Deputy Director of Titles on August 20, 2012 and the decision of Deputy Director Rosenstein was released on October 30, 2012 (the “Land Titles Decision”).[^1] The Land Titles Decision held that the right of way over Block C had not been abandoned. 213 appealed this decision to the Ontario Superior Court of Justice, which requires that the issues raised in the objection be dealt with by way of a trial de novo (the “Abandonment Appeal”).[^2]
(c) Following the issuance of 213’s Notice of Appeal, Friday Harbour issued a statement of claim against 213 (the “Adverse Possession Claim”)[^3] seeking a declaration that Friday Harbour has acquired legal and beneficial ownership through adverse possession of the portion of Block C abutting Lots 1 and 2. Friday Harbour also seeks a declaration that it has a valid and subsisting right of way over the remaining portion of Block C “for all necessary purposes, in common with others entitled thereto” and that a gate erected by 213 across the width of Block C constitutes an unlawful obstruction and interference with this right of way. Friday Harbour seeks a mandatory order requiring the removal of this gate as well as $20,000.00 in damages and or punitive damages.
(d) 213 has defended and counterclaimed in the Adverse Possession Claim. The counterclaim seeks a declaration that the Friday Harbour Lands no longer have the benefit of a right of way over Block C on the ground that the right of way was abandoned. In the alternative, 213 seeks a declaration that the right of way only provides access to the Friday Harbour Lands for ingress and egress to and from these lands for their use as single family cottage properties and not the type of large-scale residential-commercial development being built by Friday Harbour.
(e) 213 also seeks a declaration that the activities of Friday Harbour to date amount to trespass on Block C and seeks damages. 213 requests that a permanent injunction be granted prohibiting Friday Harbour from using Block C for the construction of, and in conjunction with, the development of the Friday Harbour Resort.
(f) The Abandonment Appeal and Adverse Possession Claim were ordered to be heard together or one after another on the consent of both parties.[^4]
[15] The Friday Harbour interests have been ordered continued under the name FRIDAY HARBOUR VILLAGE INC. The Plaintiff, Defendant by counterclaim , Respondent to the appeal, in final argument seeks:
(a) Adverse Possession:
(1) a declaration that Friday Harbour, by virtue of adverse possession, is the owner of the Marina Strip of Block C (and requiring the applicable Land Registrar to make corresponding amendments to the ownerships and land descriptions);2
(b) Deeded Right of Way:
(2) Ongoing Entitlement: a declaration that Friday Harbour has not abandoned, and continues to be entitled to exercise, its deeded right of way over the Western strip of Block C in order to access Lots 1 & 2, in accordance with the original 1936 grant;
(3) Scope of Permitted Use: a declaration that the deeded right of way may be used for all purposes permitted thereon by municipal by-laws and any government regulations (and is not limited to being used solely to access a single family residential detached cottage as alleged by Mr. Adler);
(4) Unlawful Interference: a declaration that Mr. Adler must, if requested by Friday Harbour in future, remove or (in the case of the gate at the Lot 4/5 boundary) render passable any objects on Block C that unlawfully interfere with Friday Harbour’s exercise of the deeded right of way;
(c) Gate Encroachment:
(5) a declaration that the north gate post of Mr. Adler’s stone and iron gate, on Block C at the Lot 4/5 boundary, is located upon and is an unlawful encroachment upon Friday Harbour’s lands;
(d) Dismissal of Adler Claims:
(6) dismissal of Mr. Adler’s counterclaim in the Adverse Possession Action (Court File No. 13-0321), and dismissal of Mr. Adler’s Easement Appeal (Court File No. 12-1306);
If adverse possession is not found:
(e) (7) Deeded Right of Way: A declaration that Friday Harbour continues to be entitled to exercise its deeded right of way over the entirety of Block C (not only the Western strip) in order to access Lots 1 & 2;
(f) (8) Prescriptive Easement:
A declaration that Friday Harbour has a prescriptive easement over the Marina Strip portion of Block C as the serviant tenement, in favour of the MNR Lands as the dominant tenement;8
(g) (9) Costs:
Costs of the Adverse Possession Action and of the Easement Appeal.
[16] The Plaintiff no longer seeks a mandatory order for removal of Mr. Adler’s gate nor damages against Kerry Adler.
[17] 2138749 ONTARIO INC., (Mr. Adler) the Defendant, Plaintiff by counterclaim, Appellant in final argument seeks: 213 request that the following relief be granted:
(A) A declaration that Friday Harbour’s title to Lots 1 and 2 does not include an easement in the nature of a right of way over Block C, Plan 1021, being Part 5 of the draft reference plan dated December 21, 2011 prepared by Raidy Pentak & Edward Surveying Ltd.;
(B) A declaration that Friday Harbour’s entitlement to a right of way over Block C, Plan 1021, Township of Innisfil, County of Simcoe has been abandoned and such right of way has no force and effect;
(C) A declaration that Friday Harbour’s construction activities to date on Block C amount to a trespass and breach of the terms of the easement;
(D) In the alternative, an interim, interlocutory and permanent injunction prohibiting Friday Harbour, its representatives, agents or employees from breaching the terms of the right of way over Block C or using Block C for the construction of, and in conjunction with, the proposed residential development; and
(E) Judgement for damages
[18] The Defendant specifies that (a) and (b) related to the appeal and (c), (d), and (e) relate to the counterclaim. Of course dismissal of the Plaintiff’s claim is also sought and costs.
Title and the Lands in Dispute
[19] On October 13, 1936, Thomas E. Coupe transferred Lots 1 and 2[^5] to Asa Warnica together with the benefit of a right of way over Block C.[^6] This instrument described the right of way as follows:
“Together with a right of way for all necessary purposes, in common with others entitled thereto, over, and along […]” [emphasis added]
[20] The chronology of title to Lots 1, 2, 3, and 4 which contained the express grant of the right of way and the chronology of title to the right of way are attached as schedule B to trial exhibit 1.
[21] For reasons for simplicity in telling the story I am omitting the details of family evolutions and corporate holdings for individuals:
[22] Lot 1 and 2 was transferred on October 30, 1936 to Warnica and thereafter on April 19, 1941 to Leizner. From that 1941 date lots 1 and 2 were in common title with the owner of Part lots 29 and 30, Concession 13, Parts 1 and 2, Plan 51R-1889 and will hereafter be referred to as the Marina Lands which passed through a series of owners. In August 9, 1991, by Power of Sale, title passed to a group[^7] headed by the father in law of Dan Williams who, with his wife managed the Marina. On December 2, 2004 that evolved group transferred title to Kimvar Enterprises Inc. which was originally named as party in this litigation and is now evolved into Friday Harbour Villages Inc. The litigation has been continued with Friday Harbour Village Inc. as party. For simplicity I will refer to this large parcel as “the Marina lands” as it was in the trial.
[23] Block C was transferred January, 13, 1960 from Kempenfeldt Land Company Limited to Murray Axmith, then from Axsmith’s Powers of Attorney to James Puhky on March 25, 1995. The period of 1960 to 1963 was the only time before James Puhky owned it in 1995 that title to Block C was with an owner of any of the cottages it served.
[24] Lot 3 was transferred from Murray Axmith to Dan Williams’ mother July 1, 1963, and sold out of the family October 26, 1979 and to James Puhky on November 10, 1987. Lot 4 was transferred to James Puhky’s family July 11, 1956. James Puhky transferred both lots 3 and 4 and Block C to Kerry Adler’s corporation 2138746 Ontario Inc., the named party, June 12, 2008.
[25] The 1959 aerial photo with survey lines from 51R-38237 superimposed[^8] shows what existed in the earliest memories of Dan Williams (age 11-27 commencing 1963 to 1979 and as Marina manager from 1991 to 2004) and James Puhky (from birth in 1963 to sale in 2007) in the 1960s. Already existing was an old, never opened and overgrown gate on stone pillars across Block C at the top of the boundary between lots 2 and 3 which was itself treed and fenced. I will refer to the segment of Block C to the north east as “the Marina strip” as it was in the trial. I will refer to the segment of Block C to the south and west of the gate as “the Western strip” as it was in the trial. A fence meandered along the west side of the Western strip and a roadway first gravel, then asphalt, paralleled Block C on the west side until it crossed over Block C in the Marina strip at lot 2. Although these fences were improved to high wooden fences by James Puhky in the mid 1990s, and sheds were built in fence corners near the gate, the obstruction constituting what was called a “dead end” of the cottage road was there from beyond memory. No one knows who put these barriers in place, why or precisely when.
[26] As boys and young men in their parents’ cottages on lots 3 and 4, both neighbours thought of the gate as a dead end of the road to their cottage driveways; both thought of the lands beyond the gate and the overgrowth along the boundary between lots 2 and 3 as the Marina lands; neither entered or knew of anyone entering the Marina lands past the gate or overgrowth except at a gate at the highwater edge of the boundary between lots 2 and 3. I find there is was no user of Block C for ingress or egress to lots 1 and 2 along the Western strip from at least the mid 60s but likely much earlier having regard to the state of the gate and overgrowth in living memory of Dan Williams and James Puhky and the 1959 aerial photo.
[27] I find there was user of Block C on the Marina strip to access lots 1 and 2 from the Marina lands in common ownership by crossing Block C. There was a road crossing it and a bulb at the end of that road where vehicles turned around and also parked. Expert evidence of historical real estate practice concurred that ingress and egress by crossing the right of way from land in common ownership to lots 1 and 2 is permitted within the words of the grant “over and along”.
[28] In the living memory of Dan Williams and James Puhky the Marina was always there. Dan Williams moved to Lot 3 in 1963 at age 11 and James Puhky was born in 1963. Aerial photos from 1965 and 1975 demonstrate that the Marina channel had been dredged by 1965 and somewhat expanded by 1975. The soil had been dumped on the east side of both sides of the channel so there was now land to the east of lot 1 that was MNR land until later conveyed to the Marina. I will refer to this added land as the “MNR land”, as it was in the trial.
[29] Before dredging, the corner of Block C had a single point on the water’s edge but expert testimony agreed that did not constitute access to the water as a single point is not frontage. By 1965 when the new Marina channel had been dredged, part of Block C was submerged and new MNR lands were partially formed abutting lot 1.
[30]
[31] By 1975, boat slips on metal piers were constructed in the submerged part of Block C. Utilities, storage boxes and boating accessories were added. And, of course, there were the boaters who used and paid to use Marina facilities. These activities occurred on the Marina strip and the Marina lands without demarcation or distinction.
[32] The issue in this trial is to determine how this should be characterized: adverse possession of the Marina strip; abandonment of the right of way or parts of it by the dominant tenements; overburdening of the right of way; trespass; prescriptive easement?
[33] This is not a case of subtleties: the use of the Marina strip over time has been big and obvious. The passage of time has been long since the uses began.
THE LAW
Adverse Possession
[34] The parties begin with statements of the same test:
- Under Ontario law, outside of the land titles registration system, a party acquires ownership of real property by adverse possession where, for a period of at least 10 years, they have:
(a) actual possession of the land;
(b) the intention of excluding the true owner of the land from possession; and
(c) effectively excluded the true owner of the land from possession for the statutory period.[^9]
Section 4 of the Real Property Limitations Act, R.S.O. 1990 c. L. 15, establishes the ten year limitation period within which a dispossessed owner (i.e., the party whose land is being adversely possessed) must bring an action to recover possession, or else lose title to the land:
No person shall make an entry or distress, or bring an action to recover any land or rent, but within 10 years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within 10 years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.
Section 15 of the Real Property Limitations Act confirms that, following the expiry of the ten year limitation period, the right and title of the original landowner is extinguished:
At the determination of the period limited by this Act, to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.
[35] The juxtaposition of competing legal principles is invoked by the Defendant:
102 The test for exclusion under adverse possession is whether the claimant “precluded the owner from making the use of the property that he wanted to make of it”.[^10] The test is not whether the claimant exceeded its rights under the right of way.
103 In Keefer v Arillotta, the Ontario Court of Appeal held that possessory title cannot be acquired against a serviant tenement by depriving uses of the dominant tenement’s property “that he never intended or desired to make of it. The animus possidendi which a person claiming a possessory title must have is an intention to exclude the owner from such uses as the owner wants to make of his property.”[^11]
104 The onus of establishing adverse possession is significantly harder when the claimant is on the property pursuant to a grant from the owner.[^12] Acts done on another’s land that is subject to a grant of easement “may be attributed to the exercise of an easement, even an excessive exercise of an easement, rather than to adverse possession of the fee.”[^13] Friday Harbour and its predecessors’ use of Block C has always been the result of the deeded right of way granted by 213’s predecessors.
[36] I agree that the onus is harder to meet for the reasons stated. It is axiomatic though that harder to meet does not preclude the possibility.
[37] The Defendant cites a recent Court of Appeal summary which emphasizes that if one criteria cannot be met during the statutory 10-year period, the claim for adverse possession fails[^14].
9 Before turning to the trial judge's decision and the issues raised by the appellant, I will briefly review the law of adverse possession. This law 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), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 567.
10 An adverse possession claim will fail unless the claimant meets each of the three criteria, and time will begin to run against the true owner of the lands only from the last date when all three are satisfied: Masidon, at p. 567.
11 To establish actual possession, the acts of possession must be "open, notorious, peaceful, adverse, exclusive, actual and continuous": Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 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.
12 If the claimant acknowledges the right of the true owner, then possession will not be adverse. Acknowledgment of title will thus stop the clock from running: Teis, at p. 221; Goode v. Hudon (2005), 30 R.P.R. (4th) 202 (Ont. S.C.), at para. 184; 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, 114 O.R. (3d) 241, at para. 73.3 Legislation likewise makes this clear. Section 13 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, provides that a written and signed acknowledgment of title to land resets the clock for an adverse possession claim over that land.
[38] The Defendant submits that the Plaintiff cannot prove that Friday Harbour and its predecessors in title exclusively possessed the right of way for the statutory period. I disagree.
ACTUAL POSSESSION AND EXCLUSION
[39] Bearing in mind that I have found as a fact that there was complete blockage of Block C above the boundary of lots 2 and 3 and that cottagers in lots 3-6 used the roadway on the Western strip while the Marina of which lot 1 and 2 formed part used the Marina strip, I consider the evidence précised by the Plaintiff:
- Mr. Swift, Mr. Williams, Mr. Puhky and Ms. Shindruk testified that the various owners of the Marina Lands used the Marina Strip of Block C as an owner would. Their ownership actions included, among other things, that:
they had actual possession;
between 1963 and 1975 they excavated and removed the soil of the Marina Strip, submerging part of it below the waters of the Marina entrance;
between 1963 and 2008 they used the Marina Strip for commercial purposes, earning income from its use. The income was not shared with the owners of Block C;
they installed improvements on the Marina Strip, including:
multiple open sailboat slips that Mr. Williams recalled as early as 1963;
a boardwalk that existed by 1975;
electrical fixturing that predated 1991;
water pipes that predated 1991;
lockboxes on the boardwalk and boat slips that predated 1991;
by 1975, they had installed a gravel driveway and parking area across the Marina Strip;
prior to 1991, they subsequently paved the driveway and parking area with asphalt;
they landscaped the Marina Strip;
they drove and walked on the Marina Strip and allowed Marina patrons to drive, walk and park, for extended periods, on the Marina Strip for purposes other than to access Lots 1 & 2;
they allowed Marina patrons to use the Marina Strip to access picnic and bonfire areas on Lots 1 & 2 and the MNR Lands; and
the Marina Strip was fenced off from the remainder of Block C – the Marina Strip was physically separated from the true owner and the true owner took no action.
- The various Marina owners’ use of the Marina Strip of Block C went extensively beyond the rights granted in the easement.
[40] The Defendant also listed what was characterized as Trespass:
Trespass is a “direct, unjustifiable interference with possession.” Trespass can occur when a party enters upon, remains upon, places or projects any object upon the land in possession of another without lawful justification.[^15]
Trespass is not dependent upon any intention to commit a tort and occurs regardless of the consciousness of the wrongdoing.[^16]
An unlawful or excessive use of a right of way is a trespass on the serviant tenement.[^17]
Friday Harbour’s use of Block C for the purpose of developing Lots 1 and 2 for the benefit of the Friday Harbour Resort is an unjustifiable interference with 213’s ownership of Block C. The right of way granted to Friday Harbour was intended to grant access to Lots 1 and 2 for the purpose of their use as residential cottage properties and for no other uses. By entering upon Block C to access Lots 1 and 2 for the commercial purpose of developing the Friday Harbour Resort, Friday Harbour has trespassed on Block C and there was no lawful justification for doing so.
[41] The parties are in agreement that Friday Harbour has altered the portion of Block C abutting Lots 1 and 2 and that machinery and equipment was brought onto these lands for the purpose of completing these works.
[42] While these assertions relate to recent activities, they pale in comparison to the Marina’s “direct, unjustifiable interference with possession.” between 1965 to 2004 when the Marina entered upon, remained upon, placed or projected objects upon the land in possession of another without lawful justification.
[43] Further, the Defendant has argued abandonment of the Marina strip by Friday Harbour as the Marina did not use Block C for its intended uses as set out in the grant of easement and, as a result, it is a non-user of Block C. The uses beyond the intended use are précised as:
69Friday Harbour and its predecessors have used the Marina Strip of Block C abutting the Friday Harbour Lands for commercial Marina purposes since the mid-1960s. Friday Harbour intends to further use the right of way for Marina and resort development purposes. This cannot be considered proper use of the right of way for the residential cottage purposes that was intended by the corresponding grant of the right of way. Friday Harbour cannot use the Marina Strip on Block C for the benefit of the adjoining Marina properties on Lake Simcoe.
70Based on the terms of the grant of the right of way to Block C and the factual circumstances surrounding the use of Marina Strip of Block C, it is clear that Friday Harbour and its predecessors have not used the right of way over Block C for the purpose for which is was granted around the mid-1960s. There is no evidence of any use of Block C for its intended purpose for residential cottage dwellings described above.
[44] The Defendant’s expert upon whom the Defendant relies for the opinion that use of the right of way was restricted to purposes relating to cottage access, conceded that the use of the Marina strip by the Marina was “an assumption of the appearance of ownership”.
[45] That is simply true: By reason of the barriers between the Marina strip and the Western strip of Block C, the Marina was factually in possession of the Marina strip. The use made by the Marina as précised by the Plaintiff above and complained of by the Defendant above, was "open, notorious, peaceful, adverse, exclusive, actual and continuous": It is hard to imagine an adverse use more obvious than eliminating the land and submerging it underwater.
[46] I find that the submersion of the land and extensive commercial user was inconsistent with any intended use by the titled owner.
[47] Even the Defendant’s evidence of use, irrelevant because it is after 2007 conversion into Land Titles, by Mr. Adler and by his caretaker going through the gate that they put into the fence at the top of the boundary between lots 2 and 3 to fish in water above the submerged strip, is unhelpful to suggest a potential use an owner of Block C might have because prior to the Marina dredging there was no water there to fish in and no lake frontage from Block C.
[48] The titled owner of Block C, only in the period between 1960 and 1963 a cottager in the neighbourhood, was factually effectively excluded. Murray Axmith used Marina services from time to time, as did James Puhky before and after he knew of or owned Block C, but by all available evidence not in any assertion of title over Block C. In his role as manager of the Marina from 1991 to 2004 Dan Williams gave no privileges to these individuals that were not also available to other patrons of the Marina. None were requested.
[49] Intention to exclude is a question of fact that cannot be assessed on direct evidence in historical cases where the memory of persons, living or corporate, is unavailable. Inferences may be drawn from the facts. I have found that the Marina did exclude. This raises several possibilities: either the Marina, knowing it was trespassing on Block C owned by another proceeded with indifference and the owner didn't complain (knowing trespasser); or the Marina didn't know Block C was owned by another and proceeded and the owner didn't complain (unilateral mistake); or neither the Marina nor the owner of Block C knew about Block C or what were their respective rights (mutual mistake).
[50] The Defendant argues that while enclosure is the strongest possible evidence of an intention to exclude the true owner from its property[^18], there is no evidence of who did the enclosing of Block C, its true owners or the Marina’s predecessors in title.
[51] I agree we cannot know who, why or precisely when the barriers on Block C arose but the evidence before the court is that the barriers were up before living memory and certainly before the Marina began its obvious activities constituting assertions of the appearance of ownership. There is evidence that both the Marina and the cottagers had posted signs and security measures directed it seems at the public who might try to enter the Marina without going through the main gate.
[52] Although there is a strong likelihood, based on common sense experience, that neither the Marina nor Axmith paid attention to or even knew of Block C or the legal consequences of a right of way, the ambiguity does require a consideration of the applicability of the inconsistent use test.
[53] The current state of the law in Ontario is put into question by the observation of Laskin J.A. in Teis v. Ancaster,[^19] that “[t]aken at face value, its application could unduly limit successful adverse possession claims, especially when land is left vacant. A paper title holder could always claim an intention to develop or sell the land, or could maintain that a person in possession cannot hold adversely to someone who does not care what is happening on the land.”
[54] Earlier in 2017 the Supreme Court of Canada in Nelson (City) v. Mowatt,[^20] noted that the requirement for inconsistent use has been eliminated from English law, having been “denounced as ‘heretical and wrong.” The Supreme Court noted that the requirement had never formed part of British Columbia law, but left open the question of whether the requirement should still properly be applicable in other provinces.
[55] Still later in 2017 the Ontario Court of Appeal[^21] commented:
30 In supplemental submissions following the release of Mowatt, the appellants effectively urge this panel to overrule Masidon and eliminate the inconsistent use requirement in Ontario, without regard to whether there is mutual or unilateral mistake. However, this panel is not in a position to overrule Masidon.
[56] Obviously this is an issue for the Court of Appeal to resolve, but whether the Marina was a trespasser or mistaken unilaterally or mutually, the use the Marina put to the Marina strip was inconsistent with intended use by the titled owner. It is unlike the case cited where a private airstrip was found not to be inconsistent with the titled owners use of the land as an investment property. That purpose could continue despite the use put by the occupier.
[57] Here, no proposed use by Axsmith is suggested by the evidence of his activities visiting former neighbours along the Western strip or using the Marina as a boater. James Puhky had none. At the very least, any titled owner of Block C was limited in intended use by the requirement to provide a right of way granted in common to lots 1-6 which the serviant owner could not do if the right of way was underwater.
[58] I find, therefore that both the quality of use and exclusion by the Marina meets the requirements of the test for adverse possession.
Time Period
[59] The possession must be continuous for the statutory 10 years but it need not be by the same person. The possession by predecessors in title can be tacked on to establish the 10 year period.
[60] Acknowledgement of title by the claimant of adverse possession resets the clock.[^22] The Defendant submits
125When Friday Harbour applied to the Director of Land Titles for possessory title, it acknowledged 213’s ownership of all of Block C. It also acknowledged that the extent of its estate in Block C was in the nature of a right-of-way. Similarly, on all known transfers of title of Lots 1 and 2, save for the transfer in 2004 to Kimvar Enterprises Inc., the description of title expressly includes a right of way over Block C.
126Where there is acknowledgement from the claimant of the right of the landowner over the right of way, the claimant’s possession will not be adverse. Acknowledgment also stops the 10-year adverse possession clock from running.[^23]
127Each time any owner or user of Block C accessed it north and east of Lot 3, any use of Block C by Friday Harbour or its predecessors was no longer “open, notorious, adverse, exclusive or continuous”, which reset the 10-year limitation period imposed by the RPLA.[^24]
128 At all material times, Friday Harbour and its predecessors acknowledged that 213 was the owner of Block C in title. Friday Harbour’s reliance upon the deeded right of way on title in these proceedings is demonstrative of an acknowledgment that 213 is the true owner of Block C.
[61] The statutory authority is The Real Property Limitations Act section 13
Effect of acknowledgment in writing
13 Where any acknowledgment in writing of the title of the person entitled to any land or rent has been given to the person or to the person’s agent, signed by the person in possession or in receipt of the profits of the land, or in the receipt of the rent, such possession or receipt of or by the person by whom the acknowledgment was given shall be deemed, according to the meaning of this Act, to have been the possession or receipt of or by the person to whom or to whose agent the acknowledgment was given at the time of giving it, and the right of the last-mentioned person, or of any person claiming through that person, to make an entry or distress or bring an action to recover the land or rent, shall be deemed to have first accrued at and not before the time at which the acknowledgment, or the last of the acknowledgments, if more than one, was given. R.S.O. 1990, c. L.15, s. 13.
[62] Transfers of the Marina lands which included a description of the right of way benefitting lot 1 and 2 may have the transferor’s signature. There were a series of transfers of the Marina lands both arm’s length and to accomplish transfer of title to a related corporate entity or investor grouping which the Defendant argues would interrupt the adversity of the possession by acknowledging there was a right of way.
[63] The Defendant was not able to present authority that continuing to include a right of way in a property description on transfers of title of the dominant tenement constitutes an acknowledgment in writing of title relating to the serviant tenement. Were it so, and remembering that while having the benefit of use of land by right of way may make the onus to establish adverse possession more difficult, that it is not impossible: how could there ever be tacking on of periods of use by predecessors when claiming adverse possession? The transfer of the title to land, with a description that includes enjoyment of a right of way as dominant tenement, is focussed on the transfer of paper title to a property as described and cannot be said to be a discussion of ownership of paper title to the serviant lands over which there is benefit by right of way.
[64] Nor am I persuaded that assertion of a deeded right of way during the period this litigation, nor Friday Harbour’s position before the Deputy Director of Land Titles is an acknowledgement or even relevant since adverse possession must have crystalized before the land was brought into Land Titles.
[65] In sum I find there was no acknowledgment to interrupt the period which began no later than when the Marina channel dredging eliminated a portion on the Marina strip and submerged it in the early 1960s.
[66] Repeating that 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; and that an adverse possession claim will fail unless the claimant meets each of the three criteria, and time will begin to run against the true owner of the lands only from the last date when all three are satisfied: I find that the Plaintiff has satisfied the onus, harder to meet where the claimant has a right of way, establishing adverse possession beginning in the early 1960s, and was open, notorious, adverse, exclusive and continuous for the statutory 10 years, and Friday Harbour acquired legal and beneficial ownership by 1975 at the latest.
[67] That finding is largely determinative for the legal alternatives argued by the Defendant but some direct comment follows:
[68] The Defendant submitted that the right of way over the Marina strip was abandoned by owners of lot 1 and 2 because the use was outside of the purpose for which the right of way was granted.
[69] The battle of the experts and only significant fact dispute in the trial concentrated on whether the words of grant of the right of way limited the use to “necessary purposes” for ingress and egress to single family cottages.
[70] For the discussion of abandonment of the right of way to lot 1 and 2, I do not need this finding because I am not persuaded by the Defendant’s argument that Friday Harbour did not use the Marina strip of Block C for its intended use equates with non-user. Invoking the principles that there can be no abandonment without a preliminary finding of non-user[^25]; and that the grantee of a right of way cannot enlarge the privilege conveyed by the grant[^26], the Defendant’s argument fails because the Marina’s user was open, notorious, adverse, exclusive continuous in which the Marina 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. In other words rather than the use beyond use of a right of way constituting non-user, it constituted adverse possession.
[71] As predicted in my answers to the Defendant’s list of required findings of fact, I find the stark contrast in the experts’ interpretations of the grant of “all purposes” or for “purposes necessary to ingress and egress to cottage property” too rigid. I find the wording is neither “carte blanche” nor limited to mere access to a cottage. Absent restrictive covenants or any form of zoning modest limitations of expectation must arise from the circumstances of the 1936 range of usage of lakefront properties.
[72] There was evidence in this trial of other uses being put to lakefront properties in Ontario in 1936. It is widely known that there were Marinas, inns, snack bars, bait shops and even great hotels. There was no formal zoning but restrictive covenants were available for the grantor of lots to limit the use. Therefore, while I agree with both experts that the lot layout in what became plan 1021 with lake front lots predicted likely cottage use, and while I generally agree with expert Troister that “for all necessary purposes” has some meaning to be derived from the context, I find he has framed the context too narrowly by suggesting that the lots that look like cottage lots could only be for cottage lots. Other uses were within the 1936 contemplation and it would have been a simple matter of drafting if uses other than single family cottage use were prohibited.
[73] I make this finding because it was a dispute between the parties but, as indicated, its significance is lost when the question of user is subsumed within the finding of adverse possession.
[74] So too is the argument subsumed that the benefit of the right of way cannot extend to land abutting lot 1 and 2, namely the new land abutting lot 1 that was created from the soil dredged from the Marina channel and came to be known as the MNR land.
[75] There is no dispute that “the owner of a dominant tenement cannot use a pre-existing right of way over the subserviant tenement to access a subsequently acquired property that is adjacent to the dominant tenement.”[^27] Since I have found that the Marina had acquired legal and beneficial ownership by 1975 and Friday Harbour now owns the MNR land, this is no longer an issue.
[76] However, absent the adverse possession, the Plaintiff acknowledges it would have to establish a prescriptive easement to access the MNR land. In that hypothetical circumstance, I find the easement has been established by prescription.
[77] The Plaintiff relies on prescription by statue under Section 15 of Real Property Limitations Act showing a clear period of continuous use for a period of 20 years.
[78] The Court of Appeal set out the tests:
b) Right-of-way by Prescriptive Easement
9 In order to establish a right-of-way by prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open and peaceful use of the land for a period of 20 years. In addition, if the use of the property is by the permission of the owner, the use cannot create an easement (Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (Ont. C.A.) at 383).
10 A right-of-way by prescription must satisfy the four elements required to establish an easement:
(a) there must be a dominant and serviant tenement;
(b) the easement must accommodate the dominant tenement;
(c) the dominant and serviant owners must be different persons; and
(d) the lands in question must be capable of forming the subject matter of a grant (Ellenborough Park, Re, [1955] 2 All E.R. 667 (Eng. Ch. Div.))
[79] I will not repeat here the history and debate about what the owners of Block C might have known from 1965 when the MNR land appeared or even 1975 when it is shown in aerial photographs as a contiguous part of the Marina’s use. The same findings of fact that give rise to the finding of adverse possession also support the finding that, in the hypothetical that the Marina did not then have ownership of the Marina strip of Block C by adverse possession, then the claim for prescriptive the easement to the MNR land would succeed.
[80] One final issue relates to the Marina strip and requires comment: the Defendant has alleged overburdening of the right of way and trespass by the activities of Friday Harbour since 2007 bringing equipment on the Marina strip to take up the asphalt driveway and turning bulb, and more generally to re-landscape lot 1 and 2 and MNR land to manicured lawn and green space and boulder revetments around the shoreline.
[81] The evidence indicates benevolent intentions from Friday Harbour Village Inc. and current zoning permits Urban Open Space. There are no plans to erect such things as tennis courts that would be permitted by the zoning. If permitted, Friday Harbour would fill in the notch in the shoreline under the submerged part of Block C. Factually this is a comparative de-escalation of the burdening of the use of the Marina strip.
[82] If the goal of this litigation were to enhance the privacy interests of a cottager in the neighbourhood of a very large development, these steps by Friday Harbour might seem to move in a positive direction, but the goal of this litigation remains unstated. I am merely asked to make declarations, not explore solutions. Thus circumscribed, I am reminded of a quote from our late Prime Minister Pierre Trudeau who famously remarked “Living next to you is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt”.
[83] So, although bringing equipment over Block C to service and naturalize lot 1 and 2 and the MNR land is seemingly temporary and small intrusion relative to the very large reality of a grand resort village, I might have found trespass but for the fact that Block C is now in the legal and beneficial ownership of Friday Harbour. In any event, no evidence of damages was led so the award would be nominal as in the cited case.[^28]
The Western strip
[84] Friday Harbour seeks:
(h) Deeded Right of Way:
(7) Ongoing Entitlement: a declaration that Friday Harbour has not abandoned, and continues to be entitled to exercise, its deeded right of way over the Western strip of Block C in order to access Lots 1 & 2, in accordance with the original 1936 grant;
(8) Scope of Permitted Use: a declaration that the deeded right of way may be used for all purposes permitted thereon by municipal by-laws and any government regulations (and is not limited to being used solely to access a single family residential detached cottage as alleged by Mr. Adler);
(9) Unlawful Interference: a declaration that Mr. Adler must, if requested by Friday Harbour in future, remove or (in the case of the gate at the Lot 4/5 boundary) render passable any objects on Block C that unlawfully interfere with Friday Harbour’s exercise of the deeded right of way;
(i) Gate Encroachment:
(10) a declaration that the north gate post of Mr. Adler’s stone and iron gate, on Block C at the Lot 4/5 boundary, is located upon and is an unlawful encroachment upon Friday Harbour’s lands;
The Plaintiff no longer seeks a mandatory order for removal of Mr. Adler’s gate nor damages against Kerry Adler.
[85] 2138749 ONTARIO INC., (Mr. Adler) seeks:
A declaration that Friday Harbour’s title to Lots 1 and 2 does not include an easement in the nature of a right of way over Block C, Plan 1021, being Part 5 of the draft reference plan dated December 21, 2011 prepared by Raidy Pentak & Edward Surveying Ltd.;
A declaration that Friday Harbour’s entitlement to a right of way over Block C, Plan 1021, Township of Innisfil, County of Simcoe has been abandoned and such right of way has no force and effect;
[86] In light of the withdrawal of the request for an order that Mr. Adler remove his gate and noting that Friday Harbour’s request is for a declaration that Mr. Adler must remove obstructions if requested by Friday Harbour in the future, I inquired of counsel what Friday Harbour wants the right of way for. There is no current intention but Friday Harbour cannot predict what future needs may be and wishes to retain their benefit under the right of way.
[87] As indicated early, I agree with the Defendant’s statement of the following facts:
(a) The predecessors in title to the Friday Harbour Lands built an alternate road to access Lots 1 and 2 which ran approximately parallel to Block C. This is the “asphalt driveway” marked on the 2007 orthophoto that is Exhibit “C” to Mr. Swift’s first report (Exhibit 7 at the trial);
(b) The right of way over the portion of Block C to the west of the boundary between Lots 2 and 3 has not been used to access Lots 1 and 2 since at least 1963;
[88] The partitioning of use of the Western strip is a precise parallel to the partitioning of use to the Marina strip. The impassability of the right of way from the dead end at the top of boundary of lots 2 and 3 had the same effect of entirely separating the use from time beyond living memory. The Marina used the Marina strip. The cottagers in lots 3-6 used the Western strip. The cottagers thought of the Western strip as their road. They thought of all the land beyond the barrier as Marina land.
[89] So too, the Marina since at least 1963, contemporary to the dredging of the Marina, built the asphalt road. They had to. Whatever the right of ingress and egress over Block C may have been in law, in fact it provided no access.
[90] At the junction of Block D and Block C there was any entry into the Marina land with a locked gate used by cottagers to get into the Marina to their boats. Although lot 1 and 2 and the remainder of the Marina land were in common ownership I do not find that this use of the westernmost segment of the Western strip constituted use of the right of way to access lot 1 and 2. I find this fact of a gate irrelevant in my assessment of intention to abandon.
[91] As in other aspects of this case, there is no information available as to agreement or intention. Therefore I am not able to find the alternative fact, on direct evidence, that the Defendant proposes:
(c) The predecessors in title to the Friday Harbour Lands intended to abandon the right of way over Block C. Alternatively, the predecessors in title to the Friday Harbour Lands intended to abandon the right of way over Block C west of the obstructions across Block C at the approximate extension of the boundary between Lots 2 and 3;
[92] The Defendant has as good a case regarding the Western strip, if it were a question of adverse possession, as the Plaintiff has for the Marina strip. In addition, the Defendant can show that the Marina created an alternative means of ingress and egress to use instead of Block C to get to lot 1 and 2. By building and improving the asphalt road on Marina property. Fences and forests separated the asphalt road from the Western strip. The evidence of non-user is indisputable. The issue rests entirely on the tests for abandoning the benefit of a deeded right of way which are different than the titled owner resisting a claim for adverse possession to gain title to land.
[93] The Defendant submits:
(a) Friday Harbour and its predecessors in title have acquiesced to the barriers and obstructions built by 213’s predecessors. They intended to abandon Block C by building and using an asphalt road adjacent to Block C in order to access the Marina.
(b) Whether there has been an intention to abandon an easement is always a question of fact.[^29]
(c) In 455645 Ontario Ltd v Rousseau, the Ontario High Court held that where there is “evidence of non-user and evidence, albeit circumstantial, of acquiescence, the trier of fact may infer abandonment.”[^30] In Rousseau, the dominant tenement’s acquiescence of the blockage of a right of way resulting from the serviant tenement’s construction of a shed and fencing resulted in the abandonment of its right of way.
(d) While the jurisprudence does hold that it is difficult to prove abandonment in the situation of a right of way created by an express grant[^31], it can be achieved in light of “very definite evidence of abandonment” in the absence of an express release.[^32] Friday Harbour’s predecessors have very definitely demonstrated that they intended to abandon the right of way over all of Block C based on the non-use for the purpose intended by the express grant.
(e) Intention to abandon is also found where “the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else.”[^33]
(f) Where the origins of the right of way are in an express grant, it must be demonstrated that the person who is entitled to the right of way knowingly, and with full appreciation of its rights, determined to abandon the right of way.[^34]
[94] The Plaintiff expresses the tests this way:
B. Abandonment of right of way
(a) Mr. Adler bears the onus of proving abandonment of Friday Harbour’s deeded right of way over Block C.141 At the application before Deputy Director Rosenstein, Mr. Adler failed to satisfy this onus and Deputy Director Rosenstein denied Adler’s claim of abandonment. The Deputy Director’s reasons for decision142 are well-reasoned and provide a useful framework for analyzing the abandonment issue.
(b) The law relating to abandonment of a deeded right of way is well-settled, and is summarized in the oft-cited decision 455645 Ontario Ltd. v. Rousseau. Abandonment is a 1 - 47 -question of fact.143 Non-user alone is insufficient proof of abandonment. It must be proved that the person having the right of way actually intended to abandon it, that is, that neither the person nor any of his or her successors in title intends thereafter to exercise it.144
(c) Friday Harbour and its predecessors in title had no intention to abandon Block C. Rather, to the contrary, they made extensive use of the Marina Strip of Block C to operate the Marina. For a period of time, the Marina owners also used the portion of Block C at the junction with Maple Grove Road to allow access to the Marina and to Lots 1 & 2. Mr. Swift, Mr. Williams, Mr. Puhky and Ms. Shindruk identified multiple uses made of the Marina Strip of Block C between 1963 and 2006.
(d) 197. The fact that Friday Harbour and its predecessors in title predominantly used the Marina Strip portion of Block C, not the Western strip portion, is irrelevant to the issue of abandonment. To use a right of way does not require that all of it be traversed.145 In Arduini v Gasparin, the British Columbia Court of Appeal held that an easement had not been abandoned, even though the users stopped using a portion of the easement south of a retaining wall built between the two properties. The Court of Appeal concluded that non-user over a portion of the easement cannot lead to a finding of fact that the grantees intended to abandon their rights under the registered easement.146
(e) 198. Friday Harbour and its predecessors in title had little occasion to use the Western strip of Block C, except at the entrance to the Marina at the junction with Maple Grove Road in the period prior to 1995 as attested to by Mr. Puhky. It is immaterial if the Western strip was not used for a long period of time.147 The non-use of the Western strip portion of Block C does not evidence an intention to abandon the deeded right of way over Block C that was otherwise being used extensively and continuously.148
(f) 199. From 1941 to 2004, the deeds for Lots 1 & 2 consistently included reference to the deeded right of way, which evidences an intention not to release the easement.149 In 2004, the easement was dropped from the deed but this issue was discovered and rectified in 2011, which the cases hold is itself a further indication of an intent to preserve the right of way, not abandon it.150 The right of way is currently on title to Lots 1 & 2 and, as noted, the right of way over Block C is included in the Transfer through which Mr. Adler purchased Block C, and was included in the application through which Mr. Adler sought to convert Block C to LTCQ.
(g) 200. The fact that a right of way is obstructed does not prove abandonment. Contrary to what Mr. Adler alleges, the growth of trees, fencing and the construction of sheds is insufficient evidence to prove abandonment.151 Mr. Troister treated the ability to eliminate such minor obstructions as an assumption in his expert analysis, noting that the fencing, plastic sheds and trees on Block C north of the Adler property are not “of such a permanent nature that it would constitute a practical impediment to the actual use of the right of way by the owner of Lots 1 and 2.”152
(h) 201. Courts have recognized that “i[t] is extremely difficult to show abandonment in the situation of a right of way created by an express grant.”[^35] This case does not reach that extremely difficult threshold.
[95] Throughout this judgment I have been persuaded by the evidence of Dan Williams and James Puhky, who provide the human history. I have been impressed by their sincere and disinterested testimony to the effect that on one side of the barriers everyone thought of it as Marina land and on the other as cottager land. There was really no mixing.
[96] I am troubled by the aspect of the test for abandonment that where the origins of the right of way are in an express grant, it must be demonstrated that the person who is entitled to the right of way knowingly, and with full appreciation of its rights, determined to abandon the right of way. Further, I am troubled that in Arduini v Gasparin, the British Columbia Court of Appeal held that an easement had not been abandoned, even though the users stopped using a portion of the easement south of a retaining wall built between the two properties. The Court of Appeal concluded that non-user over a portion of the easement cannot lead to a finding of fact that the grantees intended to abandon their rights under the registered easement.146
[97] Having found that the user at the jusxtapostion of Blocks C and D is irrelevant because it was not use of the right of way to access lot 1 and 2, the dominant tenement, I find that the Marina made no use of the Western strip from 1963.
[98] Although the Marina very clearly used and did not abandon the Marina strip, which would appear to preserve rights to the whole, in the present case my findings relating to adverse possession of the Marina strip show that I find the Marina was never relying on its right under the deeded right of way.
[99] However, the Defendant must show the Marina “knowingly and with full appreciation of its rights, determined to abandon the right of way.” There is no law cited to invoke a doctrine of mistake or mutual mistake to soften this test.
[100] So I am left with a strong inclination to find that the Marina had long ago abandoned the Western strip. I have a sense of imbalance that the Marina strip can be won by adverse possession based on trespass at worst and likely mutual mistake at best, but the Western strip cannot be abandoned without proof of the knowing and with full appreciation of its rights.
[101] Consistent with my earlier findings about the purpose of the right of way, the Western strip right of way is ingress and egress to lot 1 and 2 for all necessary purposes as contemplated for lakefront lots in 1936. Lot 1 and 2 were small lots at the end of a country lane. While their use, as I have found, was not limited to single family cottages, the use is limited to what could be contemplated in 1936 for lots of that size. That would not permit, for instance, a super highway designed for public access to a major resort.
[102] Friday Harbour is not currently seeking an order for impediments to be removed but seeks a declaration which would require Mr. Adler, on request to remove impediments including both the barriers forming the dead end at the top of the boundary between lots 2 and 3 and also Mr. Adler’s recently constructed security gate which is partly on the Western strip. Friday Harbour seeks a declaration that use would be limited only by by-laws and government regulation which may or may not take into account my findings about 1936 contemplations.
[103] Despite the demonstrated efforts of good will and consideration by Friday Harbour for lot 3 to 6 neighbours in this litigation and in the design of Friday Harbour Village Inc., leaving to its unfettered discretion the option to demand such removals invites future dispute.
[104] I find that Friday Harbour cannot take the position that impediments at the top of the boundary between lots 2 and 3 can be removed at its demand. Friday Harbour’s claim to adverse possession succeeded because of the completeness and long duration of the barrier between the Marina strip and the Western strip. It relied on the enclosure it provided as an important component of the legal test for adverse possession. Its claim to the Marina strip was not based on reliance on its right of way. It was based on acts of possession that were "open, notorious, peaceful, adverse, exclusive, actual and continuous”. The Plaintiff extracted a concession from the Defendant’s expert that the use of the Marina strip by the Marina was “an assumption of the appearance of ownership”.
[105] Having relied on the barriers, I find that Friday Harbour cannot now demand their removal. Practically speaking that means that any continuing right of way over the Western strip could not provide ingress or egress to lots 1 and 2.
[106] Friday Harbour brought a claim for adverse possession, albeit in response to initiation of litigation by Mr. Adler’s objection, with counsel and considerable sophistication of the issue. I find that, in doing so, Friday Harbour knowingly and with full appreciation of its rights, insisted on and relied on the fact that there was an impassable barrier in Block C at the top of the boundary between lots 2 and 3. That position necessarily negates the possibility of ingress and egress to lots 1 and 2 along the Western strip because the impassable barrier on which Friday Harbour’s adverse possession relied, stopped all ingress and egress at a dead end.
[107] I find there is no remnant of potential use of the Western strip that can, in those circumstances, be within the deeded right of way.
[108] I find that the facts upon which the Plaintiff relied to establish adverse possession of the Marina strip, bring me to the jurisprudence that holds that although it is difficult to prove abandonment in the situation of a right of way created by an express grant[^35], it can be achieved in light of “very definite evidence of abandonment” in the absence of an express release.[^36]
[109] The facts on the ground, including non-user and the long use of an alternative asphalt road, may have been insufficient on their own to provide very definite evidence of abandonment. It is a close case. But taken with the position of Friday Harbour that the impassibility of the road from time before memory and the separation of the Marina land from the cottager land from time before memory supported their claim for adverse possession of their side of that separation, I find that very definite evidence of abandonment is proved.
[110] Obviously, since they claimed a declaration that the right of way continues while also advancing a claim in adverse possession for the Marina strip, the Plaintiff did not intend an express release. However you cannot argue two sides of a coin. By relying on the historic permanence of the impassability of the right of way such that the Marina lands, and the Marina strip with them, were effectively enclosed, I find Friday Harbour Village Inc. has abandoned its claim to right of way granted for ingress and egress to lots 1 and 2 “for all necessary purposes, in common with others entitled thereto, over, and along”
[111] For these reasons, in action 13-0321, Friday Harbour Village Inc. v 2138746 Ontario Inc the Plaintiff shall have judgment as follows:
(i) Adverse Possession:
(a) a declaration that Friday Harbour, by virtue of adverse possession, is the owner of the Marina Strip of Block C (and requiring the applicable Land Registrar to make corresponding amendments to the ownerships and land descriptions);2
(ii) Dismissal of Adler Claims:
(b) dismissal of Mr. Adler’s counterclaim in the Adverse Possession Action (Court File No. 13-0321), in
[112] For these reasons the trial de novo appeal 12-1306, 2138746 Ontario Inc v Friday Harbour Village Inc. is allowed in part and the Appellant shall have judgment as follows:
(F) A declaration that Friday Harbour’s entitlement to a right of way over the Western strip of Block C, Plan 1021, Township of Innisfil, County of Simcoe has been abandoned and such right of way has no force and effect;
[113] Counsel may address the issue of costs by fixing an appearance for argument through the trial co-ordinator in Barrie, or on written consent, by filling written argument with the judicial secretary in Barrie directed to my attention, of no more than 5 pages (per respective submission) together with Bills of costs and offers as follows:
Plaintiff/Respondent by Jan 17, 2018 (all issues)
Defendant/Appellant by Feb 7, 2018 (all issue)
Plaintiff/Respondent reply by Feb 21, 2018 (adverse possession);
response (appeal)
Appellant reply by Feb 28, 2018 (appeal)
EBERHARD J.
Released: December 15, 2017
[^1]: Exhibit 11 [^2]: Court File No. 12-1306 [^3]: Court File No. 13-0321 [^4]: Order of Boswell J. dated March 27, 2015. [^5]: As at the date of this transfer, Lots 1 and 2 on Plan 1021 were known as Lots 22 and 23 on Deposit 1522 and Block C was referred to as Block A as Plan 1021 had not yet been created. [^6]: Exhibit 2 at Tab 11 [^7]: 2405 Holdings Limited (30%), Chrislou Investments Limited (30%), Lake Ontario Investment Corporation Limited (20%), Joseph Mares (10%) & 925633 Ontario Inc. (10%) [^8]: Exhibit 8 a-2 [^9]: Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 at para. 14 (Ont. C.A.); Keefer v. Arillotta(1976), 1976 CanLII 571 (ON CA), 13 O.R. (2d) 680 at para. 44 (Ont. C.A.). [^10]: Keefer, supra note 46 at para 42. [^11]: Ibid at paras 40-41. [^12]: Ibid at para 43; BCM International (Canada) Inc v Joannette (2006), 41 RPR (4th) 218 at paras 50, 52. [^13]: Keefer, supra note 46 at para 43. [^14]: McClatchie v Rideau Lakes (Township), 2015 ONCA 233 at paras 8-9 [^15]: Langille v Schwisberg (2010), 4 RPR (5th) 263 at para 93 (ONSC). [^16]: Costello v. Calgary (City), 1997 ABCA 281 at para 33. [^17]: Anger and Honsberger, supra note 22 at para 17:20.30(b), cited by Cooper v Dawe, 2015 NLTD(G) 25 at para 11. [^18]: Raso v Lonergan (1996) 5 RPR (3d)65 at paras 3-4 [^19]: Teis v Ancaster 1997 ONCA 1688 at para 25 [^20]: Nelson (City) v Mowatt 2017 SCC 8 at para 27 [^21]: Sipsas v 1299781 Ontario Inc 2017 ONCA 265 at paras 29-30 [^22]: Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), at p. 221; McClatchie supra at p 12 [^23]: McClatchie, supra note 47 at para 12. [^24]: Spicer, supra note 47 at paras 15, 20. [^25]: 455645 Ontario Ltd. v Rousseau (1981) 8 ACWS (2d) 176 (Ont HC) at para 12 [^26]: Burgoyne v Hutton 2016 NSSC 60 at para 221, citing Anger v Honsberger [^27]: Burgoyne supra at para 240 [^28]: Canterra v Eller (2007) 56 RPR (4th) 39 at para 63-64. [^29]: Rousseau, supra note 17 at para 21. [^30]: Rousseau, supra note 17 at para 32. [^31]: Bison Realty Ltd v Athersych (1998) 19 RPR (3d) 48 at para 82 (Ont Ct J). [^32]: MacNeil v Anban Holdings Ltd, 2005 NSSC 6 at para 14. [^33]: Shklar v Kwiecien, 1972 CanLII 485 (ON SC), [1972] 3 OR 245 at para 11 [Shklar]. [^34]: Peters, supra note 20 at para 21. [^35]: Bison Realty Ltd v Athersych (1998) 19 RPR (3d) 48 at para 82 (Ont Ct J). [^36]: MacNeil v Anban Holdings Ltd, 2005 NSSC 6 at para 14.