COURT FILE NO.: CV-17-572977

COURT FILE NO.: CV-17-574683

DATE: 20180802

ONTARIO

SUPERIOR COURT OF JUSTICE

Application brought pursuant to Rules 14.02(3), 14.05(3)(d), 14.05(3)(e), 14.05(3)(g) and

14.05(3)(h) of the Rules of Civil Procedure and Section 51 (2) of the Land Titles Act.

BETWEEN:

Aragon (Wellesley) Development (Ontario) Corporation

Applicant

– and –

Piller Investments Limited, Glad Day Bookshop Inc., Toronto General Trusts Corporation or its successor, Eleanor Jane Stevenson, David William Robert Stevenson, Ruth Clare Stevenson, also known as Ruth Clare Lodge, Catherine Elizabeth Stevenson, Robert William Stevenson, William Alexander Young, Donald Gordon Young, Katherine Anne Lodge, David Arthur Lodge, John Steven Lodge, Margaret Jean (Peggy) Williams, John Douglas Williams, Elizabeth Jane Williams, Adrienne Jane Stevenson, Faith Elaine Dinsdale, John David Dinsdale, Brendan Scott McCallum, Kaitlin Sarah McCallum, Celina Egialak Hogaluk, Troy Justin Kakapak Oakoak, David Alexander Young, Duncan Alexander Young, Alicia Meagan Young, Robin Leigh Reid, Tobin James Reid, Samantha Celotto Lodge, and Travis Celotto Lodge

Respondents

Sanj Sood and Patrick Copeland for the Applicant

Melvyn L. Solmon and Cameron Wetmore for the Respondent Piller Investments Limited

Joseph Pignatelli for IMH 77 Wellesley Ltd.

William Alexander Young, self-represented

John David Dinsdale, self-represented

AND BETWEEN:

Piller Investments Limited

Applicant

• and –

Aragon (Wellesley) Development (Ontario) Corporation, First Elnor Holdings Limited, Pusateri International Group Inc., 9775056 Canada Inc., IMH 77 Wellesley Ltd., Toronto General Trusts Corporation, Eleanor Jane Stevenson, David William Robert Stevenson, Ruth Clare Stevenson, also known as Ruth Clare Lodge, Catherine Elizabeth Stevenson, Robert William Stevenson, William Alexander Young, Donald Gordon Young, Katherine Anne Lodge, David Arthur Lodge, John Steven Lodge, Margaret Jean (Peggy) Williams, John Douglas Williams, Elizabeth Jane Williams, Adrienne Jane Stevenson, Faith Elaine Dinsdale, John David Dinsdale, Brendan Scott McCallum, Kaitlin Sarah McCallum, Celina Egialak Hogaluk, Troy Justin Kakapak Oakoak, David Alexander Young, Duncan Alexander young, Alicia Meagan Young, Robin Leigh Reid, Tobin James Reid, Samantha Celotto Lodge, and Travis Celotto Lodge

Respondents

Melvyn L. Solmon and Cameron Wetmore for the Applicant

Sanj Sood and Patrick Copeland for the Respondent Aragon (Wellesley Development (Ontario) Corporation

Joseph Pignatelli for IMH 77 Wellesley Ltd.

William Alexander Young, self-represented

John David Dinsdale, self-represented

HEARD: April 4-6, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] There are two competing applications before the court brought by neighbouring property owners in the City of Toronto. The first application is brought by Aragon (Wellesley) Development (Ontario) Corporation (“Aragon”), which is the owner of 81 Wellesley St. East (the “Aragon Property”). The second application is brought by Piller Investments Limited (“Piller”), which is the owner of 495-501 Church St. (“the Piller Property”).

[2] The competing applications concern a dispute about the L-shaped Land noted as “EASEMENT” on the survey sketch below. The L-shaped Land is between the western boundary of the Aragon Property and the eastern boundary of the Piller Property. The L-shaped Land connects to the Wellspring Lane noted on the survey sketch.

[3] As depicted in the survey sketch, Aragon and Piller and IMH 77 Wellesley Ltd. (“IMH”) own properties near the intersection of Church Street and Wellesley Street East in Toronto.

[4] The Piller Property fronts on the east side of Church Street, which is a north-south street that is not depicted on the above sketch. Also, not depicted on the survey is Maitland Street, the next to the south street that runs parallel to Wellesley Street East. The Wellspring Lane noted on the survey connects to Maitland Street.

[5] IMH’s Property fronts on the east side of Church Street and its southern property line is contiguous with the northern property line of the Piller Property.

[6] Aragon's Property fronts on the south side of Wellesley Street East, which is the east-west street depicted on the sketch. Beginning at its northern property line and moving southward, Aragon’s western property line is contiguous with the eastern property line of IMH’s property as far at the norther terminus of a right of way that is perpendicular to IMH’s eastern property line. Continuing southward Aragon’s western property line then is contiguous with the eastern property line of the right of way.

[7] The right of way, which comprises the L-shaped Land noted as EASEMENT in the survey sketch, is between the eastern property line of the Piller Property and the western property line of the Aragon Property.

[8] Pursuant to the Land Titles Act,[^1] the registered owner of the L-shaped Land is Robert Malcolm (1832-1908), who died in 1908.

[9] Pursuant to the Land Titles Act, the owner of the Aragon Property, the owner of the Piller Property, and the owner of the IMH Property respectively own a right of way over the L-shaped Land. In other words, under the Land Titles Act, Mr. Malcolm’s property is the servient tenement to three rights of way where the dominant tenement is owned by Aragon, Piller, and IMH respectively.

[10] Piller’s tenants, Glad Day Bookshop Inc. and Pusateri Fruit Market Inc., whose premises are noted on the sketch, have built structures that obstruct or cordon off the L-shaped Land. Because of the obstructions, Aragon, in its application, seeks a declaration that Piller is encroaching on Aragon’s right of way. Aragon seeks the removal of the encroachments and the removal of the obstructions and the restoration of the right of way.

[11] For its part, Piller, in its application and as respondent to Aragon’s application, seeks declarations that: (a) Aragon and IMH have abandoned the L-shaped land; i.e., abandoned their respective rights of way; and (b) Piller has obtained a possessory title over the L-shaped Land owned by Mr. Malcolm and also over a small trapezoid-shaped portion of Aragon’s lands, known as the Part 4 Land.

[12] As respondent to Piller’s application, Aragon denies that it has abandoned its right of way, and it disputes that Piller has obtained any possessory title by adverse possession.

[13] IMH takes no position on the applications.

[14] The descendants of Mr. Malcolm support Aragon, and they resist Piller’s claims to adverse possession over the L-shaped Land.

[15] In the competing applications, there is no doubt that Piller’s tenants are encroaching and have encroached on the L-shaped Land for many years before all the subject lands were transferred from the Registry System under the Registry Act,[^2] to the Land Titles System. There is, however, a vigorously-contested dispute about whether Piller’s possession and use of the L-shaped Land is sufficient to have established a possessory title over the L-shaped Land. There is also a vigorously contested dispute about whether Aragon has abandoned its right of way.

B. Overview

[16] For the reasons that follow, I grant Aragon’s application and I dismiss Piller’s application.

[17] The competing applications are extraordinarily complex. The outcome of granting Aragon’s application and of dismissing Piller’s application, however, can be relatively easily explained by comparing and contrasting the evidentiary burden that the law imposes on Aragon to prove its case with the very much more onerous evidentiary burden imposed on Piller.

[18] In other words, the outcome of the competing applications can be explained by the circumstance that Aragon had a very easy case to prove, but Piller had a very, very difficult case to prove. Although Piller overcame some of the arguments advanced by Aragon, ultimately, it could not prove both that: (a) Aragon’s predecessors have abandoned the right of way; and also that (b) Piller’s tenants had acquired a possessory title to the L-shaped Land and to the Part 4 Land.

[19] Aragon’s case was the far easier case to prove. Under the Land Titles Act, Aragon is the registered owner of a right of way over the L-shaped Land. Piller’s tenants have built structures that obstruct Aragon’s right of way. Aragon’s case for a removal of the obstructions was uncontestable, unless Piller could mount a defence. For success on its application, Aragon could simply rely on the registered instruments of title under the Land Titles Act, but, in contrast, Piller had to prove two extraordinary fact-intensive legal propositions. For success on its application, Piller had the onerous task of proving both a possessory title and an abandonment.

[20] What was very difficult and contestable was Piller’s competing case that before all the properties were transferred from the Registry System under the Registry Act to the Land Titles System of the Land Titles Act, Piller’s tenants had acquired a possessory title for Piller’s benefit and that Aragon’s predecessors had abandoned the right of way.

[21] Moreover, in a vicious circle of legal entanglements, Piller absolutely needed to prove that it had acquired a possessory title to the L-shaped Land, because only the owner of the servient property, which in this case was Mr. Malcolm, has the legal standing to assert that a right of way has been abandoned. In other words, Piller had to displace Mr. Malcolm as the title holder of the L-shaped Land before Piller had the legal standing to assert an abandonment of the right of way. And Piller had the added difficulty of proving adverse possession through the activities of its tenants because Piller itself, as a landlord, did not have a right of possession.

[22] Moreover, the law is such that it is very difficult to prove abandonment, and Piller absolutely needed to prove abandonment, because even if Piller overcame the difficulties of proving that its tenants’ use of the L-shaped Land had established adverse possession or a prescriptive right to use the L-shaped Land, Piller’s possessory title would remain subject to the right of way. I will return to this last difficult point below, but it is important to keep in mind that a successful adverse possession claim, which is also very difficult to prove, does not erase a right of way encumbering the possessory title.

[23] Although Aragon was wrong in its legal argument that the tenants’ use of the L-shaped Land and of the Part 4 land could not enure to the benefit of Piller, Aragon was correct in its argument of mixed fact and law that the tenants’ use of the right of way and of the Part 4 Land did not as a matter of fact establish adverse possession or a prescriptive possessory claim over those lands. Piller’s claim for a possessory title failed as a matter of factual proof. Because Piller’s claim for a possessory title failed, it did not have the standing to assert that Aragon or its predecessors in title had abandoned the right of way.

[24] But to repeat the difficult point noted above, even if Piller had have been successful in its claim for a possessory title - which it was not – its possessory title would still have been subject to the right of way, unless Piller proved that the right of way had been abandoned, a factually and legally daunting task, which in my opinion, it also failed to do.

[25] Thus, the extraordinarily difficult problem for Piller was that for it to succeed in obtaining the declarations it sought, it absolutely had to prove two very difficult propositions of mixed fact and law. In my opinion, it did not do so, and, therefore, Aragon’s application should be granted and Piller’s application should be dismissed.

C. Procedural Background

[26] On April 12, 2017, Aragon commenced an application against Piller and Glad Day Bookshop Inc. seeking a declaration that they were obstructing the right of way on the L-shaped Land.

[27] On May 5, 2017, Piller commenced an application against Aragon, First Elnor Holdings Limited, Pusateri International Group Inc., and 9775056 Canada Inc. Piller sought declarations that it had obtained a possessory title to the L-shaped Land and to the Part 4 Land.

[28] First Elnor Holdings Limited is the former owner of the IMH Property and was mistakenly included as a party. First Elnor takes no position and is not affected by the competing applications.

[29] The competing applications were scheduled to be heard on September 1, 2017. That day, Aragon delivered an amended Notice of Application. I adjourned the applications to November 30, 2017.

[30] On November 7, 2017, I ordered that a view be taken and I granted several other requests for procedural relief.

[31] On November 30, 2017, the applications were not argued. By order dated November 30, 2017, I ordered that the Toronto General Trusts Corporation and Mr. Malcolm’s apparent heirs be added as respondents to both applications and that the applications be adjourned to March 27 and 28, 2018. I made the following endorsement:

In this application, Aragon seeks to assert its rights over an easement or right of way and seeks an order that Piller Investments remove its encroaching structures. In a cross-application, Piller seeks a prescriptive title over the easement lands, which are registered in the name of the late Robert Malcolm and which lands may have devolved to his descendants or to his executor, the Toronto General Trusts Corp.

It appears that the descendants and or the executor should be parties to both applications, and it may be necessary to make one of the descendants or the executor a representative for those who may have an unascertained interest or future interest in the easement lands pursuant to Rule 10.

In these circumstances, I am adjourning both applications on terms as follows:

1. The Toronto General Trust Company or its successor, Eleanor Jane Stevenson …. shall be added as respondents to both applications. (The style of cause should be amended accordingly.

2. The applications shall be heard on March 27 & 28, 2018.

[32] Thus, in November 2017, the following descendants of Mr. Malcolm were added as parties to both applications: Toronto General Trusts Corporation, Eleanor Jane Stevenson, David William Robert Stevenson, Ruth Clare Stevenson, also known as Ruth Clare Lodge, Catherine Elizabeth Stevenson, Robert William Stevenson, William Alexander Young, Donald Gordon Young, Katherine Anne Lodge, David Arthur Lodge, John Steven Lodge, Margaret Jean (Peggy) Williams, John Douglas Williams, Elizabeth Jane Williams, Adrienne Jane Stevenson, Faith Elaine Dinsdale, John David Dinsdale, Brendan Scott McCallum, Kaitlin Sarah McCallum, Celina Egialak Hogaluk, Troy Justin Kakapak Oakoak, David Alexander Young, Duncan Alexander Young, Alicia Meagan Young, Robin Leigh Reid, Tobin James Reid, Samantha Celotto Lodge, and Travis Celotto Lodge.

[33] By the new year, William Alexander Young and John David Dinsdale appeared as self-represented litigants to respond to the competing applications. They were spokesman for the late Mr. Malcolm and for his five or six generations of descendants.

[34] On a bitterly cold March 16, 2018, I met the parties at a coffee shop on Church Street, and then we went for a view of the L-shaped Land and Aragon’s and Piller’s properties.

[35] For reasons that I need not describe, the applications were not heard in March, 2018. There was a brief adjournment, and the motions were heard on April 4-6, 2018.

[36] On April 6, 2018, I reserved judgment and made the following endorsement:

I am reserving judgment. I direct Aragon and, or Piller to provide me with a certified copy, if available, of the original deeds granting rights of way to Aragon, IMH, and Piller within 10 days. I reserve the rights of the parties when delivering the certified copies to make a joint submission in writing or to request an attendance for further argument or to request further evidence and argument.

[37] On April 14, 2018, I received historical material from Mr. Young about Mr. Malcolm.

[38] On April 23, 2018, I received correspondence jointly from the parties’ lawyers. I was advised that historic records were missing from the Land Registry Office but that some additional records had been retrieved that were relevant to the title history of the L-shaped Land. I was provided with information about these documents.

[39] On May 15, 2018, I received additional information from Piller’s lawyers about the title history for the L-shaped Land.

[40] On May 16, 2018, I received responding submissions from Aragon’s lawyers and from Mr. Young.

[41] On May 19, 2018, I received Piller’s reply submissions and a letter from Piller’s lawyers. I was advised that on May 17, 2018, the Operations Supervisor for the Land Registry Office had located the missing microfiche of the abstract for the subject properties. The letter provided more information about the title history of the L-shaped Land and about the related properties. More information was promised to follow.

[42] On May 25, 2018, Aragon’s and Piller’s lawyers send an email message attaching two more instruments and counsel for the parties advised that the search for more documents was continuing.

[43] On June 7, 2018, Aragon’s and Piller’s lawyers send me copies of two more registered instruments and I was advised the more documents were being reviewed.

[44] On June 18, 2018, I received a letter from Piller’s lawyers. I was advised that the original grants of the rights of way had been located. The letter enclosed several hundred pages of copies of registered instruments and case law and analyzed the documents in chronological order.

[45] On June 22, 2018, I received a letter from Aragon’s lawyers along with a 19-tab Brief of Instruments. The letter and the brief were Aragon’s further submissions responding to Piller’s letters of May 19, 2018 and June 18, 2018.

D. The Evidentiary Background

[46] In addition to the bulk of material provided after the applications were argued, Aragon’s application was supported by:

• David Page’s affidavits dated July 5, 2017, August 9, 2017, and August 18, 2017. Mr. Page, of Mississauga, Ontario, has 30-years’ experience in the real estate industry and is Aragon’s Vice-president. He is the manager of the development project for the Aragon Property, described below. Mr. Page was cross-examined.

[47] In addition to the bulk of material provided after the applications were argued, Piller’s application was supported by:

• Scott Dagostino’s affidavit dated August, 9, 2017. Mr. Dagostino is the manager of Glad Day Bookshop (9775056 Canada Inc.), a tenant of the Piller Property. Mr. Dagostino was cross-examined.

• Lan He’s affidavit dated August 11, 2017. Ms. He, of Aurora, Ontario, is the current owner of Pusateri International Group Inc. (“Pusateri”), a tenant of the Piller Property. Ms. He was cross-examined.

• Haim Klien’s affidavits dated June 27, 2017 and August 18, 2017. Mr. Klien, of Toronto, Ontario, has 40 years’ experience in the real estate industry. He is the President and a Director of Piller. He has been Piller’s President since the 1970's. Mr. Klein was cross-examined.

• Tim Quinn’s affidavit of August 11, 2017. Mr. Quinn, of Lindsay, Ontario, is an arborist who provided testimony about the trees on the L-shaped Land.

• Les Rudnicki’s affidavits dated June 26, 2017 and August 18, 2017. Mr. Rudnicki, of Halton Hills, Ontario, is an Ontario Land Survey at the firm of Speight Van Nostrum & Gibson Ltd. Speight Van Nostrand & Gibson Ltd. is an Ontario surveying company with roots dating back to the mid-1820's. Mr. Rudnicki was cross-examined.

• Rong Ying Su’s affidavits dated August 11, 2017 and August 29, 2017. Mr. Su, of Toronto, Ontario, has been employed as a manager of Pusateri's since 1989, with the exception of 2015 and 2016. Mr. Su was cross-examined.

[48] William Alexander Young, of Ottawa, Ontario, one of Mr. Malcolm’s descendants, swore an affidavit dated January 22, 2018, and, as noted above, he provided the court with a variety of documents and with historical information about Mr. Malcolm.

E. Facts

1. The Parties and their Interests in Land

The Aragon Property, the Piller Property, the IMF Property, and L-shaped Land were registered under the Registry Act until 2003 at which time all the subject properties were transferred and registered under the Land Titles Act. Section 78 (4) of the Land Titles Act deems an instrument to create the land or interest in land embodied in the registration. Subject to the possibility of rectification, section 78(4) confirms the effectiveness of registered instruments in the land titles system;[^3] it states 78 (4) states:

78.(4) When registered, an instrument shall be deemed to be embodied in the register and to be effective according to its nature and intent, to create, transfer, charge or discharge, as the case requires, the land or estate or interest therein mentioned in the register.

[49] The history of the subject lands begins under the Registry Act. Between 1879 and 1881, Robert Malcolm became the owner of lands near the intersection of Church and Wellesley Streets in the City of Toronto. Upon these lands a right of way would eventually be granted; i.e., Mr. Malcolm became the owner of the servient tenement lands. The right of way would comprise the L-shaped Land. The legal description in Land Titles for the right of way lands owned by Mr. Malcolm, is:

LT 7A, 8 PL D191 TORONTO EXCEPT CT837534 & CA517097; S/T [“subject to”] CT837534 [IMH’s right of way], CT504529 [Piller’s right of way] & CA517097 [Aragon’s right of way]; CITY OF TORONTO.

[50] The family history provided to me by Mr. Young reveals that Mr. Malcolm was born in Scotland. When he was three years’ old, his family immigrated to Upper Canada. By 1853, Mr. Malcolm lived in Toronto, where he established a business as a tanner and saddle-and-bridle maker. Mr. Malcolm was a decorated officer of the Queen’s Own Rifles during the Fenian Raids of 1866. He was a founder of the Ontario Branch of the Royal Caledonian Club, which was the predecessor of the Ontario Curling Club. Mr. Malcolm was world renowned in his saddle-making craft, and among other honours, he won a gold medal at the Paris World Fair in 1878. He had an appointment from H.R.H. the Prince of Wales. Mr. Malcolm had offices for his tannery business at 100-102 Bay Street. His Last Will and Testament reveals that he owned property and operated his tannery business at the Village of Norway in the County of York, which would place his workshop property near what is now the intersection of Kingston Road and Woodbine Avenue in the Beaches area of Toronto. Mr. Malcolm also owned property in the Township of Otto, near the Town of New Liskeard.

[51] Under Mr. Malcolm’s will, his properties were bequeathed to the Toronto General Trust Company for sale and for disposition of the proceeds to Mr. Malcolm’s heirs. The lands, however, may not have been conveyed, and according to the Land Titles’ records, Mr. Malcolm remains the registered owner of the right of way that comprises the L-shaped Land. TD Canada Trust is the successor of the Toronto General Trusts Corporation, and it did not appear to oppose the applications.

[52] Mr. Young and Mr. Dinsdale are descendants of Mr. Malcolm.

[53] Aragon is an Ontario corporation. It owns part Lots 7A, 8-9, on Plan D191, The property is known municipally as 81 Wellesley Street East, Toronto. The legal description of the Aragon Property is:

PT LT 8-9, 7A PL D191 TORONTO as in CA517097 T/W [together with] CA517097; CITY OF TORONTO.

[54] Aragon acquired its property together with a right of way on June 6, 2013.[^4] Aragon’s right of way, which includes rights over the L-shaped Land, is described in Instrument CA517097 as follows:

TOGETHER with a right of way at all times, in common with all others now or hereafter entitled thereto, over along and upon the hereinbefore described irregular part of said Lots Numbers 7A and 8.

[55] At the time when the applications were argued, the Aragon Property was vacant being prepared for a high-rise condominium project. Previously, the Aragon Property was improved by two buildings, a brick residence and a brick garage, described in more detail below.

[56] Piller is an Ontario corporation. It owns Lots 1-2 and part of Lot 3 on Plan D191. The property is known municipally as 495-501 Church Street, Toronto. Piller assembled its property by 1977. The legal description of the Piller Property which includes the Piller Property together with a right of way is:

LT 1-2 PL D191 TORONTO; LT 6 PL D50 TORONTO; PT LT 3 PL D191 AS IN CT504529 T/W [together with] CT504529 T/W CT5044529; CITY OF TORONTO.

[57] The Piller’s right of way, which includes rights over the L-shaped Land is described in Instrument CT504529 as follows:

TOGETHER WITH A RIGHT OF WAY over Part of Lot 7A and 8 on Plan D-191 (formerly a lane) for ingress, egress and regress in, over, or upon same to and from the premises hereby conveyed, in common with others who may now or hereafter have the right to use such right of way [...]

[58] The Piller Property is improved by a two-storey commercial building that has been leased to commercial tenants. Lot 1 on the Piller Property (495-497 Church St.) is currently leased to Pusateri, which operates a grocery store. Lot 2 on the Piller Property (499-501 Church St.) is currently leased to The Glad Day Bookshop.

[59] IMH is an Ontario corporation. It owns Lots 4, 5, 6 and 7 and Part of Lots 3 and 71, on Registered Plan D-191. The property is municipally known as 501A, 501B, 503A, and 503B Church Street and 71 and 77 Wellesley Street East, Toronto. The legal description of the IMH Property is:

LT 4-7 PL D191 TORONTO; PT LT 3, 7A PL D191 TORONTO AS IN CT837534 T/W CT837534; CITY OF TORONTO.

[60] The IMH Property has a right of way that includes rights over the L-shaped Land. The right of way is described in Instrument CT837534 as follows:

TOGETHER with a right of way in common with all persons entitled thereto, in, over, along and upon parts of Lots 7A and 8 according to the said plan D-191 […]

2. Title History of the Properties

[61] Up until July 28, 2003, when the Aragon Property, the Piller Property, the IMH Property, and the L-shaped Land were converted to the Land Titles System under the Land Titles Act, the lands were registered under the Registry Act.

[62] On August 6, 1874, Plan D-191 was filed in the registry system office.

The Plan bears the title “Mr. [Alexander] Manning’s Property”. Plan D-191 includes the Aragon Property, the Piller Property, the IMH Property, and L-shaped Land. A Wikipedia search reveals that Mr. Manning was a businessman and builder and the 20th mayor of Toronto, and its last unelected one. His construction company worked on the Welland Canal, the Library of Parliament, and railway projects in Canada and in the United States.

[63] On October 25, 1879, by Instrument No. 2956-NE, Mary Falconbridge and William G. Falconbridge, later Chief Justice of the King's Bench, High Court of Justice of the Province of Ontario,[^5] conveyed a portion of what is now Aragon’s Property to Mr. Malcolm. The deed was prepared by the law firm of Mr. Falconbridge, as he then was.

[64] On January 25, 1881, by Instrument No. 272-CW, Alexander Manning and Susan Manning, his wife, conveyed to Mr. Malcolm the lane portion of Plan D-191, which is subsequently closed by Order of Judge K. Mackenzie of the County Court of York on October 7, 1880. The closed lane becomes a part of Lot 7A, which is to a portion of what is now Aragon’s Property. (The closure of the lane meant that persons using the Wellspring Lane to and from Maitland Avenue no longer had a route to Wellesley Street.)

[65] These conveyances explain how Mr. Malcolm was the predecessor in title to most of the Aragon Property, but it was not disclosed to me how Mr. Malcolm acquired title to the Piller Property, the IMH Property and the L-Shaped Land. Presumably, the lands were acquired from Mr. Manning who created Plan-191, which bears the title “Mr. Manning’s Property.”

[66] In any event, on April 27, 1883, by Instrument 8443-NE, Mr. Malcolm and his wife Ann conveyed Lots 1, 2, 3, 7A, and the westerly 36 feet of Lot 8 on Plan D-191 to James Bickell and Samuel Wickett, who are described as leather merchants of Toronto. The page numbered 2 of this deed, which would have contained the habendum, is missing from the deed in the possession of the land registry office.

[67] My Internet search revealed to me that James Benjamin Bickell was a miller in Bowmanville, Ontario and Brooklin, Ontario where he was an elected township official, including township reeve. He was a municipal politician from 1862 to 1881. In 1882, the Bickell Mill was destroyed by fire, and Mr. Bickell moved to Toronto to form a partnership in the tannery business with Samuel Robert Wickett, another Brooklin industrialist, whose tannery in Brooklin also burned down in 1881.

[68] Pausing here, it would appear that Messrs. Bickell and Wickett were the predecessor owners of the Piller Property and the IMH Property and the L-Shaped Lands. Thus, the Land Titles officials may have errored in registering Mr. Malcolm as the owner of the L-shaped Land. I say may have errored because using the Registry Act principles of a forty-year search, the Land Titles officials may have been correct to conclude that Mr. Malcolm was the owner of the L-shaped Land.

[69] For present purposes, however, I shall ignore the possible error for five reasons. First, the Land Titles officials may not have erred and, in any event, Mr. Malcolm is at present the registered owner of the L-shaped Land under the Land Titles Act and entitled to the protections of the Act. Second, I have doubts about Piller’s standing to challenge who is the registered owner of the L-shaped Land. Third, whatever interest Messrs. Bickell and Wickett and their five or six generations of heirs may have in the L-shaped Land is currently being protected by Mr. Malcolm’s descendants, and it would serve no immediate purpose to correct the Land Title’s register and adjourn the competing applications to serve Messrs. Bickell’s and Wickett’s descendants. In other words, Mr. Malcolm’s descendants on behalf of whomever is the owner of the L-shaped Land take the position that ownership of the land has not been lost by adverse possession. Fourth, no party asked for an adjournment to locate the descendants of Bicknell and Wickett. Fifth, having regard to the outcome, which I have foreshadowed above, the descendants of Messrs. Bickell and Wickett are not prejudiced by not being officially joined as parties to the two applications. If there is a dispute about who is the genuine owner of the L-shapes Land, then that dispute is a matter between Messrs. Bickell’s and Wickett’s descendants, and Mr. Malcolm’s descendants and that dispute can be resolved, if necessary, at some other time. Piller’s claim for adverse possession does not get better if Messrs. Bickell’s and Wickett’s are the genuine owners.

[70] Moving on in the title history, on December 6, 1883, by Instrument No. 9715-NE, Messrs. Bickell and Wickett and their wives Johanna Bickell and Mary Bickell conveyed what is now the Aragon Property along with a right of way over the L-shaped Land (the Aragon right of way) to Nicholas Maughan. My internet search revealed that Mr. Maughan was a carpenter and a builder and that he was appointed Toronto’s Assessment Commissioner in 1877.

[71] The wording of the conveyance in Instrument No. 9715-NE is awkward and confusing and Piller submits that if a right of way was conveyed in it to Aragon, then that right of way was granted in favour of Messrs. Bickel’s and Wicket’s wives or the right of way was a failed conveyance. In other words, Piller submits that Aragon is not the predecessor owner of any right of way. I disagree, and that I find as a fact that as of December 6, 1883, what is now the Aragon Property was the dominant tenement and the beneficiary of the right of way that it is seeking to maintain in the applications now before the court.

[72] Both parties agree that there are clerical errors in Instrument 9715-NE and there is no doubt that it is infelicitously drafted, but it makes no sense to interpret the Instrument in a way that makes no commercial sense and as a failed conveyance of a right of way to Bicknell and Wickett’s spouses. It is clear enough that Messrs. Bicknell and Wickett intended to grant a right of way to Mr. Maughan and this intent is confirmed by the circumstance that Mr. Maughan and his daughter included the Aragon right of way in the subsequent conveyances of the Aragon Property.

[73] On July 7, 1884, by Instrument No. 10937-NE, Messrs. Bickell and Wickett along with their wives conveyed what is now the Piller Property (Lots 1 and 2 Plan D-191 and some adjoining (Lot 3 Plan D-191 lands) to Frederick Phillips, builder. They also conveyed a right of way (the Piller right of way) over the L-shaped Land to Mr. Phillips. This conveyance is the source of Piller’s right of way over the L-shaped Land.

[74] Also, on July 7, 1884, by Instrument No. 10937­­⅟2-NE, Messrs. Bickell and Wickett conveyed what is now the IMH Property to Mr. Phillips. They also conveyed a right of way over the L-shaped Land (IMH’s right of way). This conveyance and or the next one is the source of IMH’s right of way over the L-shaped Land.

[75] Further still, on July 7, 1884, by Instrument No. 10938-NE, Mr. Phillips and Mary Phillips conveyed Lot 3, Plan D-191, what is now part of the IMH Property, to Amanda Mary Ann Somerville. The conveyance included what is now the IMH right of way.

[76] Thus, it appears that between 1883 and 1884, rights of way were created for what are now the Aragon Property, the Piller Property, and the IMH Property. The rights of way were over the L-shaped Land. When the competing applications were originally argued, it was assumed that Mr. Malcolm granted the rights of way. It now appears that it was Messrs. Bickell and Wickett were the grantors, but for the above reasons, nothing turns on who was the grantor.

[77] On February 10, 1885, by Instrument No. 12276-NE, Mr. Phillips and Mary Phillips conveyed Lot 1, Plan D-191, a part of the Piller Property, to Robert Fairburn. The conveyance included the right of way conveyed to Mr. Phillips in Instrument No. 10937-NE (the Piller right of way).

[78] On December 1, 1892, by Instrument No. 3979-R, Mr. Maughan conveyed Lot 7A and a portion of Lot 8, Plan D-191 (the Aragon Property) to Mary Ellis. My internet search revealed that Ms. Ellis was Mr. Maughan’s daughter. The conveyance included the right of way conveyed to Mr. Maughan in Instrument No. 9715-NE (the Aragon right of way).

[79] On February 20, 1896, by Instrument No. 8483-S, Mary Ellis re-conveyed Lot 7A and a portion of Lot 8, Plan D-191 to Mr. Maughan. The conveyance included the right of way originally conveyed to Mr. Maughan in Instrument No. 9715-NE (the Aragon right of way).

[80] On February 9, 1901, by Instrument No. 16722-R, the Executors of Mr. Maughan’s Estate re-re-conveyed Lot 7A and a portion of Lot 8, Plan D-191(the Aragon Property) to Ms. Ellis. The conveyance included the right of way originally conveyed to Mr. Maughan in Instrument No. 9715-NE (the Aragon right of way).

[81] On November 16, 1926, by Instrument No. 10761-EP, Ms. Ellis conveyed her property (the Aragon Property) to the Toronto Diocesan Board of the Woman’s Auxiliary to Missions. The conveyance included the Aragon right of way.

[82] On April 8, 1960, by Instrument No. 114630-EP, which was a quit claim deed, the Toronto Diocesan Board of the Women's Auxiliary to Missions conveyed their property (the Aragon Property) to the Woman's Auxiliary of the Anglican Church of Canada. The conveyance included the Aragon right of way.

[83] On April 12, 1960, by Instrument, No. 114722-EP, the Woman's Auxiliary of the Anglican Church of Canada conveyed their property (the Aragon Property) to Edmund Odette, Louis Odette, and James Simandl. The conveyance included the Aragon right of way. My internet search revealed that the Odettes, both members of the Order of Canada, and Mr. Simandl were engineers and the owners of Eastern Construction Company Ltd., which company was part of the teams that built Roy Thomson Mall, the Eaton Centre, and Pearson International Airport, among other notable projects.

[84] On July 19, 1977, Durva Realty Limited acquired a part of the Piller Property. Durva Realty held the property in trust for Piller.

[85] Piller leased the building on Lot 2 of its property to Woman’s Food Products, Inc. The lease included the use of the backyard portion of the property.

[86] On July 1, 1978, Lot 1 of the Piller Property was leased to Joe Pusateri and Frank Cosentino (F & J Food Market), now Pusateri’s. The lease has been extended, amended, and renewed and remains in place today. The lease included the use of the Piller Property’s backyard.

[87] On October 28, 1981, Durva Realty, which, as noted above, was holding the property in trust, conveyed the Piller Property to Piller by Deed dated February 14, 1978 and registered on October 28, 1981 as Instrument No. CT504529.

[88] On September 1, 1991, 999457 Ontario Limited, carrying on business as Byzantium Restaurant & Nite Club took an assignment of the lease of Lot 2 of the Piller Property. Byzantium occupied the building on Lot 2 of the Piller Property until 2016.

[89] On December 31, 1997, by Instrument No. CA-517097, the Odette brothers, and James Simandl conveyed their property (the Aragon Property) to Wellspring Cancer Support Foundation. The conveyance included the Aragon right of way.

[90] On July 28, 2003, the Aragon Property, the Piller Property, the IMH Property, and the L-shaped Land were converted to the Land Titles System under the Land Titles Act.

[91] On September 8, 2011, by Instrument No. AT-2808149, Wellspring Cancer Support Foundation conveyed its property (the Aragon Property) to 1843758 Ontario Inc. and 2252393 Ontario Inc. The conveyance included the Aragon right of way.

[92] I was not provided with the details, but it appears that 1843758 Ontario Inc. and 2252393 Ontario Inc. mortgaged the Aragon lands to Atrium Mortgage Investment Corporation.

[93] On June 6, 2013, after 1843758 Ontario Inc. and 2252393 Ontario Inc. had defaulted on the mortgage securing the Aragon Property, the mortgagee, Atrium Mortgage Investment Corporation, conveyed the Aragon Property to Aragon. The Aragon right of way was included in the conveyance.

[94] For present purposes, it is not necessary to chart out the details of the chain of title of IMH 77 to its property.

3. The History of the Use of the L-shaped Land and the Neighbouring Properties

[95] As appears from the title history above, Messrs. Bickell and Wickett conveyed the Aragon right of way to Aragon’s predecessors in title, the Piller right of way to Piller’s predecessors in title, and the IMH right of way to IMH’s predecessors in title. The respective rights of way were subsequently included in the successive conveyances of the respective properties.

[96] Piller acquired the Piller Property in the 1970’s and it acquired the Piller right of way. At the time when Piller acquired the Piller Property, and up until the end of 1997, the Aragon Property was owned by Edmund Odette, Louis Odette, and James Simandl. I was given little evidence about what the Odettes and Mr. Simandl did with the land. Some idea, however, of the uses being of the property can be gathered by reviewing plans showing the improvements that existed on the Aragon land during the time it was owned by the Odettes and Mr. Simandl and their predecessors in title. Below is a plan marked as an exhibit on Mr. Rudnicki’s cross-examination of a sketch prepared in 1926 before the Odettes and Mr. Simandl acquired ownership of what is now the Aragon Property.

[97] As may be gathered from the sketch above and confirmed by other surveys and one 2009 photograph of the Aragon Property, taken from the perspective of Wellesley Street, that the Aragon Property was improved by two buildings. One building was a two-and-a-half-storey brick residence with a porch and a one-storey sun room. This building appears to have built on the closed land from Mr. Manning’s Plan D-191. There was direct access to the Aragon property from the Wellesley Street frontage. There was a fenced backyard and outside of the fence was a two-storey brick garage with stairs to the second storey. The door to the garage was on the public lane to the south of the Aragon Property. The Aragon Property had access to Maitland Avenue along Wellspring Lane.

[98] Here, it may be noted that the chain of owners of the Aragon lands had no apparent need to use the right of way that they owned but each of them were granted a conveyance that included the right of way. Here, it may be foreshadowed, as discussed in more detail below, that a right of way cannot be lost by adverse possession, and while a right of way may be lost by abandonment, on its own, non-use may be insufficient to prove abandonment.

[99] The chain of owners of the Aragon Property made no change to the two buildings on what is now the Aragon Property and the buildings remained on the Aragon Property until the buildings were demolished by those planning to redevelop the property, events that occurred after all the properties had been transferred from the Registry System to the Land Titles System.

[100] Turning to Piller, when it acquired its property in 1977, there was already in place a wire-metal fence with a gate around portions of the L-shaped Land. The survey, set out below, dated March 7, 1977, by D.H. Black Ltd., Ontario Land Surveyor, shows the wire fence and the steel gate at the rear of the Piller Property. When the gate was closed, the fence enclosed most of the L-shaped Land but not the small portion of Aragon’s Property; i.e. the Part 4 Land, a small trapezoid-shaped portion of Aragon’s lands.

[101] Inside the gated fence, there were trees growing on the north portion of the L-shaped Land at its northern terminus contiguous with the IMH Property. An Arborist, Tim Quinn, observed the trees on July 6, 2017, and he identified six mature elm trees with estimated ages of 22 to 50 years.

[102] A survey dated March 31, 1983 prepared by Donald E. Roberts Ltd., Ontario Land Surveyor, shows the fence.

[103] In the summer of 1983, Piller expanded the building on Lots 1 and 2 of the Piller Property. As depicted in the drawing below, part of the concrete block expansion of the building reached the western boundary of the rights of way on the L-shaped Land.

[104] On September 21, 1983, Mr. Klein sent a letter on behalf of Piller to John Winton, an inspector with the Building Department of the City of Toronto. Mr. Klein advised the inspector that the L-shaped Land had been fenced off for twenty years.

[105] After the expansion of its premises, Pusateri’s requested that for security and safety purposes, the old wire fence be replaced by a new fence. The location of the gate of the existing fence was changed in 1983, and Piller built a new chain link fence encompassing the L-shaped Land and the Part 4 Land, a small trapezoid-shaped portion of Aragon’s lands. Part of the old fence remained, and all this fencing continues to exist.

[106] There was a dispute between the parties about whether the evidence established that the gates of the old fence and of the new fence were locked by Piller’s tenants. The problem with the evidence was that some of the witnesses were speculating from the surveys and others like Ms. Lee were describing recent practices of locking the gate and then they extrapolated back in time. My own assessment is that the gates were open and unlocked during the business days and the gates were closed during the night and usually but not continuously locked during the night. There were sporadic episodes when the gates were closed but not locked at night.

[107] During his cross-examination, for the first time, Mr. Klein testified that he recalled that the tenant of Lot 2, the premises now occupied by Glad Day Bookshop, built a deck in 1983 that extended into the L-shaped land. Aragon submitted that Mr. Klein’s testimony was not credible. I, however, accept that Mr. Klein was being truthful, and I find that there was a deck on Lot 2 that may have partially intruded into the L-shaped land. There was no evidence to establish the dimensions of the deck.

[108] Throughout the term of the lease, Pusateri's used the backyard and the L-shaped Land and the Part 4 Lands for vehicle parking, storage, supply deliveries, and for a garbage dumpster.

[109] Mr. Su testified that only Pusateri's used the L-shaped Land and the Part 4 Land. He said that the gate to the L-shaped Land was closed at night during the time that he worked at Pusateri's, except when the lock was broken.

[110] Ms. He testified that she and Pusateri's employees continued the practice of closing the gate at night in the same way as the former owner of Pusateri’s. She testified that she was told by the former owner of Pusateri’s that Ms. He could use all of the land behind her store within the fence for parking, deliveries, and waste disposal. Ms. He testified that this use was essential to her business and that she would not have purchased the grocery store business without the use of this land exclusively for the business.

[111] In 1991, Piller leased Lot 2 to Byzantium. Byzantium continued as a tenant until 2016. It operated a restaurant and nightclub. The Premises on Lot 2 are now occupied by Glad Day Bookshop.

[112] In 1998, Piller permitted Byzantium to constructed a wooden deck patio for use by its customers. The deck was constructed on a portion of the L-shaped Land. The perimeter of the deck patio is a wooden fence. Two of the mature elm trees are within the wood fence. Access to the deck patio was from the Byzanitum premises through a locked door. There is no record of a building permit having been issued by the City to permit the construction of the deck patio.

[113] Up until at least 2016, there was no dispute about the use being made by Piller’s tenants of the L-shaped Land. There is no evidence that the Piller tenant’s use of the L-Shaped Land was a matter of concern to the succession of owners of the neighbouring Aragon Property; namely: Edmund Odette, Louis Odette, James Simandl, and Wellspring Cancer Support Foundation.

[114] As noted above, in September 2011, 1843758 Ontario Inc. and 2252393 Ontario Inc. acquired the Aragon Property. They retained Core Architects Inc. to prepare architectural plans for a condominium project. The construction project plans envisioned using the Aragon right of way. Thus, the use being made by Piller’s tenants of the L-shaped Land should have been a matter of concern to 1843758 Ontario Inc. and 2252393 Ontario Inc., because they intended to develop the Aragon Property for a residential condominium high rise building and their plans required unimpeded and unobstructed use of the Aragon right of way. There was, however, no evidence that 1843758 Ontario Inc. and 2252393 Ontario Inc. voiced any concern to Piller and its tenants.

[115] The situation changed however in June 6, 2013 when Aragon acquired the Aragon Property with very similar development plans. Aragon planned to develop the property for a 28-storey residential condominium. The property was purchased “as is” without any representations or warranties from the mortgagee. Aragon relied on the registered documents and believed that it was purchasing the Aragon Property along with the Aragon right of way

[116] On August 23, 2013, about two months after purchasing the Aragon Property, Aragon submitted a development application seeking amendments to the City's Official Plan and zoning By-Laws for the Project. On September 26, 2013, the City notified Aragon that the Development Application was complete. Over the next few years, the development application wound through the City's planning process, which included a hearing before the Ontario Municipal Board.

[117] After Aragon’s project received its approval, Aragon demolished the buildings on the site and started to shore the property. It has pre-sold approximately 180 condominium units. The scene was set for a dispute about the Aragon right of way.

4. The Dispute over the Right of Way

[118] As already noted, on August 23, 2013, Aragon submitted a development application to the City of Toronto seeking amendments to the City's Official Plan and to the zoning by-laws to permit its condominium project. As was the case with the prior owners’ plans to develop what is now the Aragon Property, the L-shaped Land was incorporated into the project as a mean of access. Motor vehicles will access the Aragon Property entering from Wellesley Street. The vehicles will travel south until they reach the L-shaped Land and then the vehicles pass through the L-shaped Land to enter a parking garage with an elevator to the parking level of the building. Vehicles leaving the condominium building will exit onto Wellspring Lane. The Aragon right of way is crucial to Aragon’s condominium project.

[119] In the summer of 2016, Aragon advised Piller that the deck patio was outside the boundaries of the Piller Property, encroaching on the Aragon right of way and should be removed.

[120] Piller did not agree and responded by asserting that it had acquired ownership of the L-shaped Land by adverse possession and by the abandonment by Aragon’s predecessors and IMH’s predecessors of their respective rights of way.

[121] Up until the summer of 2016 and Aragon’s demand, Piller had received no complaints about the use its tenants were making of the L-shaped Land and the Part 4 Land.

F. Law

1. The Effect of the Land Titles Act on Possessory and Prescriptive Rights

[122] Before discussing the law about how a person acquires a possessory title to lands; i.e., before discussing the law of adverse possession and before discussing the law associated with the abandonment of easements, it is necessary to describe the effect of the Land Titles Act on the acquisition of possessory and prescriptive rights.

[123] Where lands under the Registry Act become registered under the Land Titles Act, they will be subject to matured claims of possessory title, matured claims of a prescriptive title to an easement or matured claims under the doctrine of lost modern grant. However, once lands are registered under the Land Titles Act, they become immune to unmatured claims of possessory title or prescriptive rights.[^6]

[124] In other words, once lands are registered under the Land Titles Act, a ripened claim for a prescriptive or possessory title survives, but an unripe claim for adverse possession or for prescriptive rights will never ripen.[^7]

[125] Pursuant to s. 51(1) of the Land Titles Act, for lands under the Act, a prescriptive easement or possessory title can arise from usage before, but not after the lands are transferred into the Land Titles System; however, a matured prescriptive easement or possessory title may be lost if the owner does not contest the registration of the servient lands under the Land Titles System when he or she has been given notice of the registration and no objection was filed with the land registrar within the time allowed by the notice.[^8]

[126] The registration of lands under the Land Titles Act will interrupt the running of the 20-year period immediately preceding any action and will prevent the prescriptive right from crystallizing under the Real Property Limitations Act.[^9] However, a pre-existing prescriptive right established pursuant to the doctrine of lost modern grant will survive the registration of title under the Land Titles Act;[^10] in the case of the doctrine of lost modern grant, the 20-year period does not have to be immediately preceding the bringing of an action.[^11]

2. Possessory Title

[127] For lands that were registered under the Registry Act, the ownership interest of the registered titleholder may be extinguished and lost to a person who has been in possession of that land for ten years. Pursuant to the operation of ss. 4 and 15 of the Real Property Limitations Act,[^12] a person in legal possession of another’s land may obtain what is known as a possessory title.

[128] The claimant for a possessory title must satisfy all of three requirements set out in Pflug v. Collins, 1951 CanLII 80 (ON SC),[^13] and approved by the Court of Appeal for Ontario in Keefer v. Arillotta, 1976 CanLII 571 (ON CA)[^14] and in Teis v. Ancaster, 1997 CanLII 1688 (ON CA),[^15] and in many other cases.[^16] The three requirements of an adverse possession claim are: (1) the claimant and or his or her predecessors in title must have actual possession for the statutory period; (2) the claimant’s possession must be with the intention of excluding the owner or persons entitled to possession; i.e. the claimant must have an animus possidendi; and (3) the owners and any others entitled to possession must be out of possession (discontinuance of possession) for the statutory period.

[129] The continuous possession of the claimant, together with the possession of his or her predecessors in title, may together make up the requisite period of adverse possession.[^17]

[130] The first requirement to establish a possessory title is that the claimant must have had actual possession. The acts of possession must be all of: open, notorious, peaceful, adverse, exclusive, actual, and continuous having regard to the nature of the disputed property.[^18] What is sufficient to establish actual possession will vary depending upon the nature of the property and the natural uses to which it can be put.[^19]

[131] The aspect of adversity in the requirement of actual possession means that the possession is without the permission of the owner. If the claimant acknowledges the right of the true owner, then the possession is not adverse.[^20] Adversity means that the claimant is in possession without the authorization or permission of the titleholder.[^21]

[132] Actual possession can be established by use, and it is not necessary to build improvements or to enclose lands by a fence or barrier.[^22] This point is demonstrated by Laing v. Moran, 1951 CanLII 74 (ON CA),[^23] where using land for a driveway to a garage was held to be sufficient to establish actual possession. Actual possession of land has been established by, for example: (a) farming the land;[^24] and (b) establishing a laneway to move farm equipment even if the use of the laneway is shared by the public.[^25] Enclosure is the strongest possible evidence of possession, but, by itself, enclosure is neither necessary nor sufficient to establish adverse possession.[^26]

[133] The second element to establish a possessory title is that the claimant must have the intention to exclude the true owner. This is the animus possidendi element of the requirements for legal possession. In addressing intention, the law of adverse possession draws a distinction between claims that arise from inadvertent and advertent conduct. An adverse possession claim arises from inadvertent conduct where the claimant takes possession of lands that the claimant mistaken believes that he or she already owns.[^27] The claim arises from advertent conduct where the claimant is a trespasser whose acts of possession have the purpose of acquiring ownership of lands that that the trespasser knows that he or she does not own.

[134] The intention to exclude element has a low threshold in cases where the claimant and the true owner mistakenly believe that the claimant owns the disputed land, and it has a high threshold where the claimant is a mere trespasser with designs of becoming the owner of lands that he or she knows belong to another.

[135] In cases of mutual mistake, the intention to exclude requirement has a low threshold, because where both the claimant and also the true owner mistakenly believe that the claimant owns the disputed land, the law acknowledges the settled expectations of the parties and infers that the claimant occupied the lands with the intention of excluding all others, including the true owners.[^28] As Justice Bora Laskin in the Court of Appeal explained in Teis v. Ancaster, 1997 CanLII 1688 (ON CA), at p. 225:

The law should protect good faith reliance on boundary errors or at least the settled expectations of innocent adverse possessors who have acted on the assumption that their occupation will not be disturbed. Conversely, the law has always been less generous when a knowing trespasser seeks its aid to dispossess the rightful owner.

[136] In Masidon Investments Ltd. v. Ham, 1984 CanLII 1877 (ON CA),[^29] Justice Blair noted the court's historic lack of enthusiasm for claims for adverse possession made by trespassers. He quoted the words of Justice Middelton in Campeau v. May[^30] at p. 752: "It may be said that this makes it very hard to acquire a possessory title. I think the rule would be quite different if the statute was being invoked in aid of a defective title, but I can see nothing in the policy of the law, which demands that it should be made easy to steal land or any hardship which requires an exception to the general rule that the way. of the transgressor is hard."

[137] In Ontario, in cases where a trespasser knowingly seeks to dispossess the rightful owner, the intention to exclude requirement has a high threshold because the law adds an “inconsistent use” requirement to the intention to exclude requirement of the test for a possessory title. The animus possidendi that a person claiming possessory title must have is the intention to exclude the owner from such uses as the owner wants to make of his or her property during the period when the trespasser occupied it.[^31] A possessory title cannot be acquired by depriving the landowner of uses of the property that he or she was not making or had no intention of making.[^32]

[138] The inconsistent use element (that the acts relied on must be inconsistent with the owner's use during the period when the trespasser occupied the land) influences the determination of whether the trespasser has the requisite intent to exclude and the determination of whether the owner has effectively been excluded.

[139] The inconsistent use element was established in the 1879 English case of Leigh v. Jacks.[^33] In 2002, the inconsistent use requirement was overturned by the House of Lords in J.A. Pye (Oxford) Ltd. v. Graham. [^34] Recently, in Nelson (City) v. Mowatt, 2017 SCC 8,[^35] the Supreme Court of Canada held that the inconsistent use doctrine was not part of the law of adverse possession in British Columbia. However, the doctrine is an established feature of the law of Ontario,[^36] which was acknowledged by the Supreme Court in Nelson (City) v. Mowatt, 2017 SCC 8.[^37]

[140] In Fletcher v. Storoschuk, 1981 CanLII 1724 (ON CA),[^38] the plaintiff, a farmer, erected a fence to prevent his cattle from wandering too close to the defendant’s neighbouring residence. The fence left an 18-feet buffer zone that the farmer owned between his property and the defendant. The defendant planted trees along the strip, grew buckwheat to keep down the weeds, and planted a garden. Justice Wilson held that the defendant’s use of the buffer zone was not inconsistent with the farmer's intended use of the buffer zone during the period when the trespasser occupied it. She said at p. 725 of her judgment:

In my view, the acts found by the trial judge to have been performed on the strip of land by the defendants posed no challenge to the use of it intended by the plaintiff. They lacked that quality of inconsistency with the intended use of the owner required to constitute adverse possession for purposes of the statute.

[141] In Leigh v. Jacks[^39] the plaintiff conveyed land to the defendant but retained a strip of land adjacent to the land conveyed intending it to be used as a street. For more than twenty years the defendant used the strip as a refuse dump for his foundry. The court held that the defendant had not obtained a possessory title because the use to which he put the land was not inconsistent with that of the road dedication use of the plaintiff.

[142] The third requirement for a possessory title is that the true owner be out of possession. An adverse possession claimant must succeed in excluding from the property even in cases of mutual mistake; to succeed for adverse possession, there must be effective exclusion.[^40] The third requirement looks at the conduct of the owner of the land. Non-user by the true owner is, by itself, insufficient to end the owner’s possession because the true owner has constructive possession unless disposed.[^41] However, absence of objection to the use or occupation of the disputed lands may be evidence that the true owner has been dispossessed, and may base an inference that the true owner believed that the disputed lands were the property of the claimant.[^42] If the true owner believes that the land belongs to the claimant, then the true owner has been effectively excluded from possession.[^43]

3. Adverse Possession by and against a Tenant and Adverse Possession by and against a Landlord

[143] Because it is a source of confusion in the immediate case, it is necessary to describe the law about adverse possession by and against a tenant and the law of adverse possession by and against a landlord. It is also necessary to describe the difference in the rights of possession to land of a tenant and of a landlord.

[144] When a landowner land leases his or her land, the landowner becomes a landlord and the tenant has the right of exclusive possession of the leased property;[^44] the landowner has a reversionary, non-possessory interest. Thus, when a landowner leases his or her land, it is his tenant who has the possession of the land that can be lost or acquired by adverse possession.

[145] The legal circumstance that the landlord has a reversionary interest presents three scenarios about the operation of the law of adverse possession. The first scenario is where the leased premises are occupied by a third-party who is asserting a claim for a possessory title. The second scenario is where the tenant of the leased premises extends his or her possession and encroaches on the landlord’s adjoining lands. The third scenario is where the tenant of the leased premises extends his or her possession of the leased premises onto a third party’s adjoining land. (The third scenario is the scenario of interest in the immediate case.)

[146] Dealing with the first scenario, during the term of the lease, having no right of possession, the landowner cannot be disposed, and any claim for adverse possession is a claim against the leasehold and not the freehold.[^45] How the doctrine of adverse possession operates when there is a leasehold against which a claim is being made for a possessory title was described by the Ontario Court of Appeal in Giouroukos v. Cadillac Fairview Corp. Ltd., 1983 CanLII 1686 (ON CA),[^46] at pp. 178-80, where Justice Robins stated:

So long as the lease continues in effect, possession is vested in the tenant who, as a normal consequence of the landlord-tenant relationship, has control over and the power to exclude others from the leased property. The landlord's interest is non-possessory and remains so until the lease is terminated and possession reverts to him. Until then, the possessory rights of the tenant continue intact, and the possession of a squatter initiated during the term of the lease, while adverse to the tenant, cannot be adverse to the landlord. It follows, that until the landlord's interest becomes possessory, his right of action does not accrue and the statutory period does not run against him. … 5(11) and (12) of the Act

[147] Thus, if a landowner leases his or her land, the land is insulated from a claim for adverse possession during the term of the tenancy. Using a variation of the circumstances of the immediate case to illustrate the point, if it was Aragon seeking a possessory title against Piller (which it is not actually seeking to do), then the claim would fail because Piller cannot be disposed of a possession it does not have during the course of the lease. (In the case at bar, it is Piller through its tenants seeking adverse possession, which would add to its land holdings; the third scenario above.)

[148] Turning to the second scenario, it is where the tenant of the leased premises extends his or her possession on to the landlord’s adjoining property. How the doctrine of adverse possession operates when there is a leasehold and the tenant makes a claim for a possessory title against his or her landlord was examined in Toronto (City) v. Ward.[^47]

[149] In in Toronto (City) v. Ward, the City of Toronto leased Lots 41, 42, and 43 on the Toronto Islands to William Ward. Mr. Ward built a dwelling house, hotel, and cottage on Lots 41, 42, and 43, and in the mistaken belief that what was Lot 44 was included in his lease, Mr. Ward subleased it to Thomas Flynn, who build a house on the lot. The City discovered the mistaken sub-lease and sued to have Mr. Flynn’s building removed from Lot 44 and for payment of occupation rent by Mr. Flynn. Mr. Ward, however, claimed that he had acquired the city’s Lot 44 by adverse possession and was entitled to lease it to Mr. Flynn. Mr. Ward’s claim, however, was rejected, because it was plain from his own evidence that he was under the belief that Lot 44 was covered by his lease and that he was not occupying the land adversely to the City.

[150] Thus, in Toronto (City) v. Ward, the doctrine of adverse possession was not actually operative. However, the three courts that heard the matter considered how the law of adverse possession operates when a tenant adversely possesses lands outside his or her leasehold that belong to the landlord. In this regard, the trial judge, Justice Britton stated:

This proposition is stated generally in Whitmore v. Humphries (1871), L.R. 7 C.P. 1: "When a tenant takes in and encloses adjoining land during his tenancy, the presumption of law that he does it for his landlord, so that the land gained by such encroachment will have to be given up at the end of the tenancy as part of the original demised premises, is not rebutted by the fact that the landlord expressly assented to the enclosure being made, and when such presumption exists the Statute of Limitations (3 & 4 Wm. IV. ch. 27, sec. 7) does not apply until the original tenancy has ended."

I find as a fact that this Lot 44 was occupied by the defendant as a mere extension of the locus of his tenancy; that the defendant took possession of the land as tenant and not with the object or desire of benefiting himself only, so as to acquire the ownership of this Lot 44.

[151] In the Divisional Court (Chief Justice Muluck, Justices Anglin and Clute), Justice Anglin stated:

It is well established by numerous authorities that in respect of unenclosed land of the landlord adjoining or adjacent to the demised premises upon which the tenant has encroached during the term of his lease, he does not, as against the landlord, acquire title by possession, unless the encroachment is made under circumstances shewing an intention on the part of the tenant to hold the land so encroached upon for his own benefit, and not as part of his holding under the landlord: Kingsmill v. Millard (1855), 11 Ex. 313; Earl of Lisburne v. Davies (1866), L.R. 1 C.P. 259; Whitmore v. Humphries, L.R. 7 C.P. 1; Doe d. Dunraven v. Williams (1836), 7 C. & P. 332. …

[152] The general principle that emerges from the second scenario is that when the tenant occupies lands owned by the landlord not included in the demise, it is a question of fact whether the occupation is adverse to the landlord or just part of the leasehold.

[153] Turning to the third scenario, the general rule for the third scenario, where the tenant of the leased premises extends his or her possession and encroaches on a third party’s adjoining lands, is any encroachments by the tenant on land belonging to third parties will enure for the landlord’s benefit,[^48] unless a different intention is shown by the conduct of the landlord or tenant.[^49]In Whitmore v. Humphries,[^50] Justice Willies stated:[^51]

By the rule of law applicable to this subject the landlord is entitled at the determination of the tenancy to recover from the tenant, not only the land originally demised, but also any land which the tenant may have added to it by encroachment from the waste, such encroachment being deemed to be made by him as tenant as an addition to his holding, and consequently for the benefit of his landlord, unless it is made under circumstances which chew an intention to hold it for his own benefit alone, and not as part of his holding under the landlord.

4. Abandonment of Easements

[154] An easement is an incorporeal hereditament, being an inheritable, non-possessory ownership interest in land. It is a right of usage over a property, which is described as the servient tenement that is annexed to a parcel of land, which is described as the dominant tenement.[^52]

[155] For reasons that will become soon become apparent, it is important to keep in mind that an easement is a non-possessory ownership interest in land.

[156] Owning an easement permits the owner of the dominant tenement to require the owner of the servient tenement to suffer some use on that land.[^53] Easements may be positive or negative. A positive easement grants to the owner of the dominant tenement the right to use the land of the servient tenement in a particular way that would, in the absence of the easement, be a nuisance or trespass.

[157] An easement being a non-possessory interest in land, adverse possession is not sufficient to extinguish a right to an easement.[^54] The Limitations Act does not apply to extinguish the right and title to an easement.[^55] The theory is that one cannot adversely possess a non-possessory interest in land.

[158] While an easement cannot be lost by adverse possession, an easement may be extinguished by: (a) operation of a statute; (b) operation of law; or (c) expressed or implied release, the onus of proof being on the party asserting the release.[^56] Whether there is an implied release is a question of fact in all the circumstances of the case.[^57] In a difficult point that is important for the two applications now before the court, an abandonment is a matter as between the servient tenement and the dominant tenement.[^58]

[159] At common law, an easement will be extinguished by operation of law where: (a) the same person comes to own the dominant and servient lands in fee simple (This is known as merger.); (b) the period for which the easement was created comes to an end; (c) the purpose for which the easement was created has come to an end; or (d) the right to the easement is abused.[^59]

[160] Whether the owner of the dominant tenement intends an abandonment is not a subjective question; it is a question of fact to be ascertained from all the circumstances of the particular case.[^60] Abandonment depends on the intention of the person alleged to be abandoning; to establish abandonment of an easement, the conduct of the dominant owner must have been such as to make it clear that he or she had at the relevant time a firm intention that neither he or she nor any successor in title of his or her should thereafter make use of the easement.[^61]

[161] Where there has been an express grant of a right of way, it is extremely difficult to show abandonment because a right of way is not lost by mere non-user.[^62] The non-use of the abandonment must be coupled with the grantee’s intention to abandon the right of way to demonstrate implied release by abandonment. Unless the easement is granted for a term of years, the rights conferred by an easement are valuable rights and it is not lightly to be inferred that the owner released his or her rights for no consideration or advantage.[^63]

[162] Where the owner of the dominant tenement does not use the easement and also does not object nor make any effort to remove obstructions or to stop the servient owner from interfering with the easement, abandonment may be inferred.[^64] In other words, if there is evidence of non-user and also evidence of acquiescence, abandonment may be inferred;[^65] however, on its own, non-use is insufficient to constitute an implied release. Non-use by itself is insufficient because non-use may arise because the dominant owner from time to time may have no need for the easement or he or she may have a more convenient means of use than the easement. Thus, lack of use, even for prolonged periods of time, does not necessarily prove that the owner of the easement intended to abandon it.[^66]

[163] The intent to abandon means that the person entitled to the easement has knowingly, and with full appreciation of his rights, determined to abandon it.[^67] Intention to abandon an easement will be found where the person entitled to it has demonstrated a fixed intention never at any time hereafter to assert the right himself or to attempt to transmit it to anyone else.[^68]

[164] Where the owner of an easement includes the easement in a conveyance of his or her dominant tenement, while not conclusive, the inclusion supports the absence of an intention to abandon.[^69] Where the non-user is explicable by reference to the absence of any need of the owner of the dominant land to use the right of way for the time being, this will fortify a conclusion that there has been no abandonment of the right for all time.[^70]

5. Prescriptive Easements

[165] A prescriptive easement may be established in two ways under the Real Property Limitations Act,[^71] and a third way pursuant to what is known as the doctrine of lost modern grant.

[166] Section 31 of the Real Property Limitations Act sets a 20-year period or a 40-year period for the creation of prescriptive easements. The period is immediately before the commencement of an action.[^72]

[167] At common law, prescription was based on the legal fiction that if there were 20 years of uninterrupted use by the owner of the dominant tenement, it could be presumed that there had been a grant of an easement and that the grant had been lost.[^73] For an easement created by the doctrine of lost modern grant, the period is before, but not necessarily immediately before, the commencement of the action.[^74]

[168] To establish a prescriptive easement, the claimant must demonstrate a continuous, uninterrupted, open and peaceful use of the land, without objection by the owner.[^75] To acquire an easement by prescription under a statute of limitations or under the doctrine of lost modern grant, the claimant’s use of the land must be “as of right” or, as described in the old authorities, “nec vi, nec clam, nec precario”—“without violence, without stealth (secrecy), without permission”.

[169] To say that the use of the easement must be “as of right,” is to say that the enjoyment of the easement is not just permissive (i.e., not just a licence) and the owner of the dominant tenement must actually manifest an ownership right; i.e., an entitlement to use the easement.[^76] A claimant may rely on the use of predecessor owners to make up the requisite period of “as of right” use.[^77]

[170] The theory behind a claim for an easement based on prescription under a limitations statute or under the doctrine of lost grant is that the evidence establishes that the owner of the servient tenement has with knowledge consented or acquiesced to the establishment of an incorporeal ownership interest in land by the owner of the dominant tenement as opposed to licensing the use of the land without conferring an ownership interest in it.[^78] Use by permission or licence is insufficient for establishing a prescriptive easement.[^79]

[171] For the claim to an easement to succeed, the claimant’s use must be “open,” which means that the use is not secret or clandestine and an ordinary owner of the land, diligent in the protection of his or her interests, would have a reasonable opportunity of becoming aware of the use of the land.[^80] For the claim to an easement to succeed, there must be evidence that the owner of the servient tenement knew or ought to have known what was happening on his or her land.[^81] Where the use by the owner of the dominant tenement is notorious and the owner of the servient tenement makes no objection, then his or her acquiescence to the use as a right of the dominant tenement owner can more readily be inferred.[^82]

[172] The onus of proof of the requisite use is on the claimant, the owner of the dominant tenement.[^83] The evidence required to establish title by prescription will vary with the nature of the user.[^84] For a right of way, the requirement for its continuous, uninterrupted use will be satisfied if clear and unambiguous evidence shows that the use was of such a nature, and took place at such intervals, as to indicate to the ordinarily diligent owner of the servient tenement that a right is being claimed.[^85]

[173] The threshold for meeting the criteria for establishing a prescriptive easement under the Limitations Act or by lost modern grant is high, and courts are hesitant to recognize an easement by prescription because doing so would permit a landowner’s neighbourly accommodation of sufferance to ripen into a legal burden on his or her lands without compensations.[^86] Courts proceed with caution before finding that a landowner’s ownership interest has been diminished or lost by prescriptive right or by the doctrine of lost modern grant.[^87]

6. Interference with an Easement

[174] An encroachment of an easement is actionable only if there is substantial interference with the dominant owner’s ability to reasonably use the easement for the purpose or purposes identified in the grant.[^88] Whether the interference is substantial is a fact-based inquiry about the impact on the impact of the interference on the reasonable use of the easement and the question is can the easement by substantially and practically exercised as conveniently as before.[^89]

G. Analysis and Discussion

1. Introduction

[175] Because of the intricate law, described above, that applies to the circumstances of the competing applications, Piller is confronted with the legal equivalent of an ironman triathlon in bad weather. To succeed in its application and to defeat Aragon’s application, Piller had to establish that before 2003, when the subject properties were transferred into Land Titles, that: (1) its tenants, who were trespassers, acquired a possessory title over the L-shaped Land; (2) the tenants’ possessory title inured to Piller’s benefit as the holder of a reversionary, non-possessory ownership interest; and, (3) that Aragon’s predecessors abandoned the Aragon right of way, which is a difficult proposition to prove because non-use by itself, even a very lengthy period of non-use, may not demonstrate abandonment.

[176] If Piller were to fail on the first stage of the legal triathlon, then it would be disqualified from completing the triathlon. If Piller were to succeed on the first stage but fail on the second, then again it would be disqualified from completing the triathlon. If Piller were to succeed on the first two stages, then it must still win the third stage for the prize; there are no consolation prizes for winning the first two stages of the legal triathlon.

[177] In the analysis that follows, I shall allow Piller to complete the legal triathlon by first assuming that Piller succeeded on the first stage of the triathlon and proved that its tenants had acquired possessory title over the L-shaped Land and over the Part 4 Land, and then I shall proceed to the third stage and ask whether Aragon abandoned its right of way.

[178] My conclusion of the first party of the analysis is that there was no abandonment, and, therefore, Aragon’s application succeeds and Piller’s application fails.

[179] Notwithstanding these conclusions, I will repeat the analysis for the first and second stages of the legal triathlon. I shall make no assumption about the first stage.

[180] My conclusion for the second analysis is that Piller did not succeed in proving that its tenants’ had acquired a possessory title to the L-shaped Land and the Part 4 Land. This conclusion provides an alternative basis for the outcome that Aragon’s application succeeds and Piller’s application fails.

2. Did Aragon’s Predecessors in Title Abandon the Right of way?

[181] As noted above, I shall begin the legal analysis by assuming that Piller’s tenants acquired a possessory title to the L-shaped Land and the Part 4 Land. With this assumption, Piller is in a position to assert that Aragon’s predecessors in title abandoned the Aragon right of way and the court is in a position to examine the evidence and determine whether Piller has proven abandonment.

[182] As the discussion of the law above reveals, where there has been an express grant of a right of way, it is extremely difficult to show abandonment of it. The rights conferred by an easement are valuable rights, and it is not lightly to be inferred that the owner released his or her rights for no consideration or advantage.

[183] In the immediate case, the Aragon right of way was conveyed: (a) by express grant from Messrs. Bickell and Wickett, and then right of way was included in the subsequent conveyances (b) from Mr. Maughan to Ms. Ellis, (c) from Ms. Ellis to Mr. Maughan, (d) from Mr. Maughan’s Estate to Ms. Ellis, (e) from Ms. Ellis to Toronto Diocesan Board of the Woman’s Auxiliary to Missions, (f) Toronto Diocesan Board of the Woman’s Auxiliary to Missions to Woman's Auxiliary of the Anglican Church of Canada, (g) from Woman's Auxiliary of the Anglican Church of Canada to Edmund Odette, Louis Odette, and James Simandl (h) from Edmund Odette, Louis Odette, and James Simandl to Wellspring Cancer Support Foundation, (i) from Wellspring Cancer Support Foundation to 1843758 Ontario Inc. and 2252393 Ontario Inc. and (j) from Atrium Mortgage Investment Corporation to Aragon.

[184] Apart from Aragon, there was no evidence from any of the grantee’s of Aragon’s right of way or any evidence from any person who might have a glimmer of an idea of what those grantee’s intentions might have been with respect to the right of way that they purchased and then sold. There was very little evidence upon which to conclude that the right of way had been abandoned. It rather appears that although the successive grantees were not using the right of way, they all regarded it as an important right to be preserved and not to be abandoned. The right of way was sold as a part of each succeeding conveyance.

[185] I do not know when the two brick buildings on the Aragon Property were constructed, but these improvements were likely constructed by Ms. Ellis before she conveyed her property to Toronto Diocesan Board of the Woman’s Auxiliary to Missions in 1926. The buildings are noted on the 1927 survey of the property. That survey reveals that Ms. Ellis and her successors had direct access from Wellesley Street and direct access to Wellspring Lane without resort to the L-shaped Land. Those circumstances explain why no use was being made of the right of way, but those circumstances do not lead to me to the inference that Ms. Ellis and her successors in title had the intention to abandon the right of way.

[186] Based on the evidence that I have reviewed above, there is nothing other than explainable non-use and the evidence is insufficient for me to conclude that there was an abandonment of the right of way. I rather conclude that all of the successive owners, some of whom were savvy business persons, did not abandon the easement.

3. Did Pillers’ Tenants Acquire Adverse Possession of the L-shaped Land?

[187] The above conclusion is sufficient to dispose of the competing applications, but without making any assumptions, I will address the fully argued dispute about whether Piller’s tenants had acquired a possessory title to the L-shaped Land owned by either Mr. Malcolm or Messrs. Bickell and Wickett but registered as owned by Mr. Malcolm.

[188] Aragon argued that Piller could not obtain a possessory title over the Aragon Property because as a landlord, Piller had no possessory interest in its own lands and because Piller itself had done nothing to possess the Aragon Property and was relying only on the actions of its tenants and by its action of leasing the backyards of Lots 1 and 2 to the tenants.

[189] I, however, disagree with that particular argument. I will not repeat the discussion above about the three scenarios where adverse possession problems involve landlords, tenants, and third parties, but from a legal perspective had the facts of the competing applications been sufficient, it would have been possible for Piller’s tenants to obtain a possessory title to the L-shaped Land and to the Part 4 Land. Had they obtained adverse possession, I would have concluded that the adverse possession was for their landlord’s benefit.

[190] The issue then in the competing application becomes whether the facts proven by Piller from the activities of its tenants were sufficient to satisfy the three-part test for adverse possession as described above.

[191] In my opinion, the facts do not support the case that before the subject lands were transferred into Land Titles, Piller’s tenants had acquired a possessory title.

[192] The major problem for Piller is that its tenants were trespassers on the L-shaped Land and the Part 4 Land and there was nothing inadvertent about their conduct. They knew they were trespassing on lands not owned by Piller. However, needy those tenants may have been to use the L-shaped Land, they had no paper title to it, and as Justice Blair noted in Masidon Investments Ltd. v. Ham, 1984 CanLII 1877 (ON CA), supra, courts in Ontario have historically lacked enthusiasm for claims for adverse possession made by trespassers.

[193] Courts in Ontario impose a high threshold for adverse possession, and Ontario courts add an inconsistent use requirement to the test for adverse possession. The trespasser’s possession must be adverse to exclude the owner from such uses as the owner wants to make of his or her property during the period when the trespasser occupied the property.

[194] In the immediate case of the competing applications, the inconsistent use requirement imposes an extraordinarily high threshold, because it appears that Mr. Malcolm’s or Messrs. Bickell’s and Wickett’s use of the L-shaped Land was just to hold it as servient tenement for the Aragon, Piller, and IMH rights of way.

[195] The original purpose of the grants of right of way was to support sales of lots on Plan D-191, and once that purpose was spent, Mr. Malcolm or Messrs. Bickell and Wickett, it seems, had no personal use for the L-Shaped Land. They simply held the land to be used by others.

[196] There is no evidence Mr. Malcolm or Messrs. Bickell and Wickett retained other lands near Church and Wellesley Streets to be served by the L-Shaped Land. Mr. Malcolm or Messrs. Bickell and Wickett were simply holding the servient lands for the benefit of the dominant landowners, leaving it to the dominant landowners to protect their own rights to use the servient lands.

[197] In the immediate case of the competing applications, there is a sort of confluence of the law of abandonment with the inconsistent use element of the law of adverse possession, and thus in a kind of vicious legal circle for Pillar, it had to prove abandonment of the right of way by Aragon’s predecessors in order for Pillar’s tenants use of the right of way to be inconsistent with Mr. Malcolm’s intended use, which was to hold the property as the servient property.

[198] Regardless of whether that last observation is correct, the fact remains that the acts of Piller’s tenants are not adverse to the very limited use intended by Mr. Malcolm or by Messrs. Bickell and Wickett. Further, there were discontinuities in the use being made by the tenants, and while the gated fence and deck were undoubtedly obstructions to the right of way, the problem was easily remedial as soon as one of the dominant landowner’s objected, which finally occurred in 2016.

[199] I find, therefore, that the facts of the competing application do not establish a claim for a possessory title by the tenants.

[200] I end the discussion by repeating that the conclusion that Piller does not have a claim to a possessory title to the L-shaped Land entails that it also does not have the legal standing to assert that Aragon has abandoned its right of way.

4. Conclusion

[201] For the above reasons, Aragon’s application should succeed and Piller’s application should fail. The wire fence, chain link fence, wood fences, metal gate, large trees, wood deck, locked door, large garbage bins and parked vehicles that prevent use of L-shaped Land and the Part 4 Land should be removed by Piller.

H. Conclusion

[202] For the above reasons, Aragon’s application is granted and Piller’s application is dismissed.

[203] If the parties cannot agree about the matter of costs, then they make submissions in writing beginning with Aragon’s, Mr. Young’s and Mr. Dinsdale’s submissions within 20 days of the release of these Reasons for Decision, followed by Piller’s submissions within a further 20 days.

Perell, J.

Released: August 2, 2018

COURT FILE NO.: CV-17-572977

COURT FILE NO.: CV-17-574683

DATE: 20180802

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Aragon (Wellesley) Development (Ontario) Corporation

Applicant

– and –

Piller Investments Limited, Glad Day Bookshop Inc., Toronto General Trusts Corporation or its successor, Eleanor Jane Stevenson, David William Robert Stevenson, Ruth Clare Stevenson, also known as Ruth Clare Lodge, Catherine Elizabeth Stevenson, Robert William Stevenson, William Alexander Young, Donald Gordon Young, Katherine Anne Lodge, David Arthur Lodge, John Steven Lodge, Margaret Jean (Peggy) Williams, John Douglas Williams, Elizabeth Jane Williams, Adrienne Jane Stevenson, Faith Elaine Dinsdale, John David Dinsdale, Brendan Scott McCallum, Kaitlin Sarah McCallum, Celina Egialak Hogaluk, Troy Justin Kakapak Oakoak, David Alexander Young, Duncan Alexander Young, Alicia Meagan Young, Robin Leigh Reid, Tobin James Reid, Samantha Celotto Lodge, and Travis Celotto Lodge

Respondents

AND BETWEEN:

Piller Investments Limited

Applicant

• and –

Aragon (Wellesley) Development (Ontario) Corporation, First Elnor Holdings Limited, Pusateri International Group Inc., 9775056 Canada Inc., IMH 77 Wellesley Ltd., Toronto General Trusts Corporation, Eleanor Jane Stevenson, David William Robert Stevenson, Ruth Clare Stevenson, also known as Ruth Clare Lodge, Catherine Elizabeth Stevenson, Robert William Stevenson, William Alexander Young, Donald Gordon Young, Katherine Anne Lodge, David Arthur Lodge, John Steven Lodge, Margaret Jean (Peggy) Williams, John Douglas Williams, Elizabeth Jane Williams, Adrienne Jane Stevenson, Faith Elaine Dinsdale, John David Dinsdale, Brendan Scott McCallum, Kaitlin Sarah McCallum, Celina Egialak Hogaluk, Troy Justin Kakapak Oakoak, David Alexander Young, Duncan Alexander young, Alicia Meagan Young, Robin Leigh Reid, Tobin James Reid, Samantha Celotto Lodge, and Travis Celotto Lodge

Respondents

REASONS FOR DECISION

PERELL J.

Released: August 2, 2018

[^1]: R.S.O. 1990, c. L.15. [^2]: R.S.O. 1990, c. R. 20. [^3]: MacIssac v. Salo, 2013 ONSC 6007. [^4]: The Transfer to Aragon is registered as Instrument Number AT3318518. [^5]: A Wikipedia search reveals that in 1879, William Glenholme Falconbridge was a law partner of Harrison, Osler, and Moss. In 1885, he was made a bencher of the Law Society of Upper Canada. In 1887, he was appointed a judge of the Queen’s Bench Division of the High Court of Justice and in 1900 he was appointed Chief Justice of the King’s Bench, High Court of Justice. [^6]: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91. [^7]: Pepper v. Brooker, 2017 ONCA 532 at para 42; Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265 at para. 18. [^8]: Mills v. Star Quality Homes Ltd. (1978), 1978 CanLII 1389 (ON CA), 21 O.R. (2d) 39 (C.A.); Parrell v. Kurronen [1993] O.J. No. 2755 (Gen. Div.); Morray Investments Ltd. v. Zerwas (2003), 2003 CanLII 12138 (ON SC), 66 O.R. (3d) 521 (S.C.J.); Di Gregoria v. Osborne (2004), 20 R.P.R. (4th) 181 (Ont. S.C.J.); Millstone Consulting Services Inc. v. Cleary, [2008] O.J. No. 3106 (S.C.J), aff’d [2009] O.J. No. 4510 (C.A.); Hanisch v. McKean, 2013 ONSC 2727; Gibb v. Pereira, 2017 ONSC 4762. [^9]: Hanisch v. McKean, 2013 ONSC 2727. [^10]: Morray Investments Ltd. v. Zerwas (2003), 2003 CanLII 12138 (ON SC), 66 O.R. (3d) 521 (S.C.J.); Archdekin v. 2116548 Ontario Inc., 2010 ONSC 3553, aff’d 2011 ONCA 68; Piekarczyk v. Zebrowski, 2010 ONSC 5423. [^11]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.). [^12]: R.S.O. 1990, c. L.15. [^13]: 1951 CanLII 80 (ON SC), [1952] O.R. 519 (H.C.J.). [^14]: (1976), 13 O.R. (2d) (C.A.). [^15]: (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.). [^16]: Beffort v. Zuchelkowski, 2016 ONSC 583, aff’d 2017 ONCA 774, leave to appeal to S.C.C. ref’d [2017] S.C.C.A. No. 494; Pepper v. Brooker, 2017 ONCA 532; Friday Harbour Resorts v. 2138746 Ontario Inc., 2017 ONSC 7444; Barbour v. Bailey, 2016 ONCA 98, leave to appeal ref’d [2016] S.C.C.A. 139; McClatchie v. Rideau Lakes (Township), 2015 ONCA 223; Sumner v. Sullivan, 2014 ONCA 869; Shennan v. Szewczyk, 2010 ONCA 679. [^17]: Gibb v. Pereira, 2017 ONSC 4762 at para. 8. [^18]: Teis v. Ancaster (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.). [^19]: Laing v. Moran, 1951 CanLII 74 (ON CA), [1952] O.R. 215 (C.A.); Walker v. Russell, 1965 CanLII 250 (ON SC), [1966] 1 O.R. 197 (H.C.J.). [^20]: Teis v. Ancaster (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.). [^21]: Beaudoin v. Aubin (1981), 1981 CanLII 1758 (ON SC), 33 O.R. (2d) 604 (H.C.J.); Teis v. Ancaster (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.). [^22]: Clarke v. Babbitt 1927 CanLII 1 (SCC), [1927], 2 D.L.R. 7 (S.C.C.); Laing v. Moran, 1951 CanLII 74 (ON CA), [1952] O.R. 215 (C.A.). [^23]: 1951 CanLII 74 (ON CA), [1952] O.R. 215 (C.A.). [^24]: Teis v. Ancaster (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.). [^25]: Teis v. Ancaster (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.). [^26]: Belfort v. Zuchelkowski, 2016 ONSC 583; Mueller v. Lee, [2007] O.J. No. 2543 at paras. 15-18; (S.C.J.); Murdoch v. Kenehen, [2003] O.J. No. 985 (S.C.J.); Nurklik v. Zimmerman, [2002] O.J. No. 290 (S.C.J.); Raso v. Lonergen, [1996] O.J. No. 2898 (Gen. Div.); Beaudoin v. Aubin (1981), 1981 CanLII 1758 (ON SC), 33 O.R. (2d) 604 (H.C.J.); Laing v. Moran, 1951 CanLII 74 (ON CA), [1952] O.R. 215 (C.A.); Babbitt v. Clarke v., (1925), 1925 CanLII 418 (ON CA), 57 O.LR. 60 (C.A.), aff’d 1927 CanLII 1 (SCC), [1927] S.C.R. 148; Seddon v. Smith (1877), 36 L.T. 168 at p. 169. [^27]: Beaudoin v. Aubin (1981), 1981 CanLII 1758 (ON SC), 33 O.R. (2d) 604 (H.C.J.); Wood v. Gateway of Uxbridge Properties Inc. (1990), 1990 CanLII 6786 (ON SC), 75 O.R. (2d) 769 (Gen. Div.); Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.). [^28]: Teis v. Ancaster (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.); Wood v. Gateway of Uxbridge Properties Inc. (1990), 1990 CanLII 6786 (ON SC), 75 O.R. (2d) 769 (Gen. Div.). [^29]: (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.). [^30]: (1911), 19 O.W.R. 751. [^31]: Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.); Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.); Keefer v. Arillotta, (1976), 13 O.R. (2d) (C.A.); Tasker v. Badgerow, [2007] O.J. No. 2487 (S.C.J.) aff’d 2008 ONCA 202. [^32]: Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.); Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.); Keefer v. Arillotta, (1976), 13 O.R. (2d) (C.A.). [^33]: (1879), 5 Ex. D. 264. [^34]: [2002] 3 W.L.R. 221 (H.L.). [^35]: 2017 SCC 8. [^36]: Keefer v. Arillotta ( 1976), 1976 CanLII 571 (ON CA), 13 O.R.(2d) 680 (C.A.); Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.); John Austin & Sons Ltd. v. Smith (1982), 1982 CanLII 2074 (ON CA), 35 O.R. (2d) 272 (C.A.); Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.); Gorman v. Gorman (1998), 1998 CanLII 17702 (ON CA), 110 O.A.C. 87; Brisebois v. Chamberland (1990), 1990 CanLII 6638 (ON CA), 1 O.R. (3d) 417 (C.A.); Hodkin v. Bigley (1998) 20 R.P.R. (3d) 9 (Ont. C.A.); Elliott v. Woodstock Agricultural Society, 2008 ONCA 648. [^37]: 2017 SCC 8. Justice Brown stated at para. 27: “It follows that the inconsistent use requirement forms no part of the law of British Columbia governing adverse possession. Whether the requirement is properly applicable in other provinces remains an open question subject to examination of their respective legislative histories, the wording of their particular limitations statutes, and the treatment of these matters by the courts of those provinces.” [^38]: (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.). [^39]: (1879), 5 Ex. D. 264. [^40]: Pepper v. Brooker, 2017 ONCA 532; Sumner v. Sullivan, 2014 ONCA 869; Barbour v. Bailey, 2016 ONCA 98, leave to appeal ref’d [2016] S.C.C.A. 139; Shennan v Szewczyk, 2010 ONCA 679. [^41]: Laing v. Moran, 1951 CanLII 74 (ON CA), [1952] O.R. 215 (C.A.). [^42]: Laing v. Moran, 1951 CanLII 74 (ON CA), [1952] O.R. 215 (C.A.); Keil v. 762098 Ontario Inc., [1989] O.J. No. 866 (S.C.J.); affd. (1992), 24 R.P.R. (2d) 244 (Ont. C.A.). [^43]: Wood v. Gateway of Uxbridge Properties Inc. (1990), 1990 CanLII 6786 (ON SC), 75 O.R. (2d) 769 at paras. 56-59 (Gen. Div.). [^44]: MacKinnon Estate v. MacKinnon, 2010 ONCA 170; [Ocean Harvesters Ltd. v. Quinlan Brothers Ltd., 19751 1974 CanLII 149 (SCC), 1 S.C.R. 684. [^45]: Giouroukos v. Cadillac Fairview Corp. Ltd. (1983), 1983 CanLII 1686 (ON CA), 44 O.R. (2d) 166 (C.A.); Arnprior (Town v. Coady), [2001] O.J. No. 1131 (S.C.J.); Laurier Homes (27) Limited (27) Limited v. Brett, [2005] O.J. No. 5169 (S.C.J.). [^46]: Giouroukos v. Cadillac Fairview Corp. Ltd. (1983), 1983 CanLII 1686 (ON CA), 44 O.R. (2d) 166 (C.A.). [^47]: [1909] O.J. No. 190 (C.A.). [^48]: Whitmore v. Humphries, L.R. 7 C.P. 1; Attn-Gen. v. Tomline (1880), 15 Ch. D. 150; East Stonehouse U.D.C. v. Willoughby Bros. Ltd., [1902] 2 K.B. 318; King v. Smith, [1950] 1 All E.R. 553 [^49]: Kingsmill v. Millard (1855), 11 Exch. 313; Arpy-Ara Co. v. A.R. Manufacturers & Distributors Ltd., 2015 ONSC 425 at para. 248. [^50]: L.R. 7 C.P. 1 at p. 4. [^51]: See also: Connors v. Piercey, [1983] N.J. No. 63 (Nfld. C.A.); Kingsmill v. Millard (1855), 11 Exch. 313; R.E. Megarry and H.W.R. Wade, The Law of Real Property (3rd ed.) (London: Stevens & Sons Ltd., 1966) at pp. 1008-1009. [^52]: Weeks v. Rogalski, 1955 CanLII 148 (ON CA), [1956] O.R. 109 (C.A); Bibieffe International Holdings B.V. v. York Region Condominium Corp. No. 838, [2000] O.J. No. 3579 (C.A.); In Re International Pipeline Co., 1951 CanLII 212 (SK CA), [1951] 2 D.L.R. 187 (Sask. C.A); 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007, aff’d Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, aff’d 2014 SCC 7; P.M. Perell, “The Creation of Easements” (2005), 30 Adv. Q. 487. [^53]: Phipps v. Pears, [1965] 1 Q.B. 76; Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293 (C.A.), aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.); Vannini v. Public Utilities Commission of Sault Ste. Marie, 1972 CanLII 413 (ON SC), [1973] 2 O.R. 11 (H.C.J.). [^54]: 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.). [^55]: Lester v. Bond, 2013 ONSC 7888, aff’d 2014 ONSC 749; Midanic v. Gross, [1956] O.J. No. 401 (C.A.); Inde v. Starr (1910), 21 O.L.R. 407 (C.A.); Mykel v. Doyle (1880), 45 U.C.Q.B. 65. [^56]: Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 4431 at para. 46; Liscombe v. Maughan (1927), 1928 CanLII 450 (ON CA), 62 O.L.R. 328 at p. 335 (C.A.). [^57]: Currie v. Chatterton, 2014 ONSC 4571; 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.). [^58]: Currie v. Chatterton, 2014 ONSC 4571. [^59]: Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 4431. [^60]: Clarke v. Kukic, 2017 ONSC 6485; Relaxmuskoka Cottage Inc. v. 205219 Ontario Inc., 2017 ONSC 5131; 2108133 Ontario Inc. v. Kabcan Foods Ltd., [2009] O.J. No. 951 (S.C.J.); 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.); Crossley & Sons Ltd. v. Lightowler (1866) L.R. 3 Eq. 279, aff’d L.R. 2 Ch. 478. [^61]: Dwyer v. The City of Westminster [2014] EWCA Civ. 153. [^62]: Bialkowski v. Cowling, 2015 ONSC 1744 at para. 57; Bison Realty Ltd. v. Athersych, [1998] O.J. No. 2358 (S.C.J.); Laker v. Jackson, [2001] O.J. No. 3815 (S.C.J.); Jakmar Developments Ltd. v. Smith (1973), 1973 CanLII 489 (ON SC), 1 O.R. (2d) 87 (H.C.J.). [^63]: Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 4431 at para. 46; CDC2020 Pic v. Ferreira, [2005] EWCA Civ 611. [^64]: 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.); Swan v. Sinclair, [1924] 1 Ch. 254, aff’d [1925] A.C. 227 (H.L.); Bell v. Golding, [1896] O.J. No. 41 (C.A.). [^65]: Bialkowski v. Cowling, 2015 ONSC 1744; Overs v. ten Kortenaar, [2006] O.J. No. 822 (S.C.J.); 455645 Ontario Ltd. v. Rousseau, [1981] O.J. No. 55 (S.C.J.); Bell v. Golding, [1896] O.J. No. 41 (C.A.). [^66]: Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 4431; Liscombe v. Maughan (1927), 1928 CanLII 450 (ON CA), 62 O.L.R. 328 (C.A.); Crossley and Sons Limited v. Lightowler (1867), L.R. 3 Eq. 279, aff’d L.R. 2 Ch. 478; Ward v. Ward (1852), 155 E.R. 1189; Seaman v. Vawdrey (1810), 33 E.R. 1032. [^67]: Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 4431; 2108133 Ontario Inc. v. Kabcan Foods Ltd. (2009), 80 R.P.R. (4th) 194 at para. 8 (Ont. S.C.J.). [^68]: Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 4431; Almel Inc. v. Halton Condominium Corp. No. 71 (1997), 1997 CanLII 14498 (ON CA), 98 O.A.C. 72 at para. 7 (C.A.); Shklar v. Kwiecien (1972), 1972 CanLII 485 (ON SC), 3 O.R. 245 at p. 247 (H.C.J.); Tehidy Minerals Ltd. v. Norman, [1971] 2 All E.R. 475 at p. 492. [^69]: Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 4431; Currie v. Chatterton, 2014 ONSC 4571; Baker v. Harris (1929), 1929 CanLII 406 (ON CA), 64 O.L.R. 513 (C.A.); Liscombe v. Maughan (1927), 1928 CanLII 450 (ON CA), 62 O.L.R. 328 (C.A.). [^70]: Dwyer v The City of Westminster, [2014] EWCA Civ 153; Benn v Hardinge (1993), 66 P&CR 246 (C.A.). [^71]: R.S.O. 1990, c. L.15. [^72]: Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293, aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.). [^73]: Kaminskas v. Storm, 2009 ONCA 318, [2009] O.J. No. 1547 (C.A.). [^74]: Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff’d 2018 ONCA 521; 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91; Archdekin v. 2116548 Ontario Inc., [2010] O.J. No. 2721 (S.C.J.); Kaminskas v. Storm, 2009 ONCA 318, [2009] O.J. No. 1547 (C.A.); Ebare v. Winter, 2005 CanLII 247 (ON CA), [2005] O.J. No. 14 (C.A.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Watson v. Jackson (1914), 1914 CanLII 541 (ON CA), 31 O.L.R. 481 (C.A.). [^75]: Kaminskas v. Storm, 2009 ONCA 318, [2009] O.J. No. 1547 (C.A.); Millstone Consulting Services Inc. v. Cleary, [2008] O.J. No. 3106 (S.C.J), aff’d [2009] O.J. No. 4510 (C.A.); Rose v. Krieser (in Trust) (2002), 2002 CanLII 44894 (ON CA), 58 O.R. (3d) 641 (C.A.), aff’g (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J.); Block v. Trezzi (2001), 45 R.P.R. (3d) 139 (Ont. S.C.J.); Hodkin v. Bigley (1998), 20 R.P.R. (3d) 9 (C.A.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Temma Realty Co. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293 (C.A.), aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.). [^76]: Rose v. Krieser (in Trust) (2002), 2002 CanLII 44894 (ON CA), 58 O.R. (3d) 641 (C.A.), aff’g (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Garfinkel v. Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388 (C.A.). [^77]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 at p. 384 (C.A.). [^78]: Smith v. Feld Concrete Foundations Ltd., [1999] O.J. No. 910, aff’d (2000) 2000 CanLII 3784 (ON CA), 30 R.P.R. (3d) 314 (C.A.); Monaghan v. Moore (1996), 1996 CanLII 4015 (ON CA), 31 O.R. (3d) 232 (C.A.). [^79]: Rose v. Krieser (in Trust) (2002), 2002 CanLII 44894 (ON CA), 58 O.R. (3d) 641 (C.A.), aff’g (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J.); Mason v. Morrow, [1998] O.J. No. 2679 (C.A.), aff’g 1996 CarswellOnt 2532 (Gen. Div.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.). [^80]: Kucherenko v. Koever (1999), 23 R.P.R. (3d) 310 (Ont. Gen. Div.); Descar Ltd. v. Megaventures Corp. (1990), 1990 CanLII 6722 (ON SC), 72 O.R. (2d) 388 (H.C.J.); Vannini v. Public Utilities Commission of Sault Ste. Marie, 1972 CanLII 413 (ON SC), [1973] 2 O.R. 11 (H.C.J.); Garfinkel v. Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388; Russell Transport Limited v. The Ontario Malleable Iron Company Ltd., 1952 CanLII 117 (ON SC), [1952] O.R. 621 (H.C.J.). [^81]: Choquette v. 995146 Ontario Ltd.¸ [2003] O.J. No. 3693 (S.C.J.), aff’d [2004] O.J. No. 3593 (C.A.); Brass Rail Tavern (Toronto) Ltd. v. DiNunzio (1979), 12 R.P.R. 188 (Ont. H.C.J.); aff’d 16 M.P.L.R. 56 (Ont. C.A.); Garfinkel v. Kleinberg and Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388 (C.A). [^82]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.). [^83]: Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293 (C.A.), aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.); 1636539 Ontario Ltd. v. W. Bradfield Ltd., [2007] O.J. No. 973 (S.C.J.); Somogyi v. Kapasky, [2003] O.J. No. 991 (S.C.J.). [^84]: Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Axler v. Chisholm (1977), 1977 CanLII 1156 (ON SC), 16 O.R. (2d) 665 (H.C.J.). [^85]: Stoddart v. Kubiak, (2009), 82 R.P.R. (4th) 264 at para. 27. [^86]: Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff’d 2018 ONCA 521; Hanisch v. McKean, 2013 ONSC 2727; Ebare v. Winter, 2005 CanLII 247 (ON CA), [2005] O.J. No. 14 (C.A.); Skoropad v. 726950 Ontario Ltd. (1990), 12 R.P.R. (2d) 225 (Ont. S.C.J.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.); Temma Realty Co. Ltd. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293, aff’g 1967 CanLII 310 (ON SC), [1967] 2 O.R. 613 (H.C.J.). [^87]: 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91; Ebare v. Winter, 2005 CanLII 247 (ON CA), [2005] O.J. No. 14 (C.A.); Henderson v. Volk (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 at p. 384 (C.A.). [^88]: Weidelich v. de Koning, 2014 ONCA 736; Lester v. Bond, 2013 ONSC 7888, aff’d 2014 ONCA 749; Donohue v. Robins, 2012 ONSC 2851; Devaney v. McNab (1921), 1921 CanLII 557 (ON CA), 51 O.L.R. 106 (C.A.). [^89]: Weidelich v. de Koning, 2014 ONCA 736; B & Q Pic. v. Liverpool and Lancashire Properties Ltd., [2000] E.W.H.C. 463 (Ch.).