Court File and Parties

COURT FILE NO.: CV-18-00600661 DATE: 20180821 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Luciano Sammut Applicant – and – Heather McGhee Peggs Respondent

Counsel: Gregory Sidlofsky and Peter Askew, for the Applicant Kelly Hayden and Eli Lederman, for the Respondent

HEARD: August 3, 2018

Nishikawa J.

Overview

1The Applicant, Luciano Sammut, brings this Application seeking a declaration that he is entitled to ownership and exclusive use of a strip of land along the southern boundary of his property at 300 Pacific Avenue, Toronto (“300 Pacific”). The Respondent, Heather McGhee Peggs, owns the neighbouring property to the south of 300 Pacific at 298 Pacific Avenue (“298 Pacific”).

2In June 2018, Ms. McGhee Peggs entered into an agreement of purchase and sale for 298 Pacific, which is scheduled to close on August 30, 2018. Mr. Sammut commenced this Application on June 28, 2018, after he became aware of the sale. Because of the imminent closing date, the Application was heard on an expedited basis.

Issues

3The issue in this Application is whether Mr. Sammut is entitled to legal title over a strip of land located immediately to the south of the property line between 298 and 300 Pacific (the “Disputed Land”) through adverse possession. The Disputed Land is described in more detail below.

Factual Background

300 Pacific Avenue

4Mr. Sammut purchased 300 Pacific on April 29, 2005 and resided there with his wife and children until vacating the premises in 2014 for an extensive property renovation. The renovation is ongoing and the property remains vacant.

5From 1995 to 2005, 300 Pacific was owned by different owners. From 1995 to 2003, Kenneth Martindale owned the property. From April 2003 to April 2005, Angela and John Charlton owned 300 Pacific. The parcel register for 300 Pacific does not indicate who owned the property before 1995. Before Mr. Sammut purchased the property in 2005, it had been used as a rental property.

298 Pacific Avenue

6Ms. McGhee Peggs purchased 298 Pacific on August 15, 2011 and has resided there with her husband and children since that time. The property was purchased from Janis Cube, Ruta Cube, and Vita Mazpolis (the “Cubes”). The property passed to the Cubes in 2009 upon the death of Mirzda Cube, who owned the property from 1964 to 2009.

The Property Lines and Fence Location

7The boundary, or lot line, between 298 Pacific and 300 Pacific is indicated on a legal survey dated June 12, 1986 (the “1986 Survey”). A copy of the 1986 Survey is attached to these Reasons as Schedule ‘A’. The survey shows the width of 298 Pacific as 25 feet, at both the front and the rear of the property. The width of 300 Pacific is shown as 24.92 feet at the front near Pacific Avenue and 25 feet near the laneway at the rear of the property.

8The 1986 Survey also shows the location of an “Irregular Picket Fence” that existed at the time, as 0.5 feet south of the lot line between the houses and 0.69 feet south of the lot line near the laneway (the “1986 Fence”). The 1986 Fence was thus on the property of 298 Pacific.

9A survey conducted in 1995 (the “1995 Survey”) shows the width of 298 Pacific to be 7.62 metres, or 25 feet, by the laneway at the rear of the property. The same survey shows the width of 300 Pacific Avenue to be 7.61 metres, or 24.97 feet at the laneway. The width of the properties at the front near Pacific Avenue is unclear. No fence is depicted on the 1995 Survey.

10Mr. Sammut’s evidence is that when he purchased 300 Pacific in 2005, there was a four-foot high fence that he understood to be on the boundary line between the two properties. In 2007, Ruta Cube replaced the fence with a higher privacy fence (the “2007 Fence”).

11The site plans submitted by Mr. Sammut in 2010 for an application for a minor variance in connection with his renovation show the width of 300 Pacific as 24.92 feet at the front near Pacific Avenue and 25 feet near the laneway at the rear. The site plans are consistent with the 1986 Survey.

12In 2011, prior to the closing of Ms. McGhee Peggs’ purchase of 298 Pacific, Mr. Sammut and the Cubes applied to have title to both properties amended to reflect a mutual right of way between the two houses to the laneway at the rear of the properties. The right of way is indicated on the parcel register for each property.

13In 2013, Ms. McGhee Peggs obtained an additional survey (the “2013 Survey”). A copy of the 2013 Survey is attached to these reasons as Schedule ‘B’. The 2013 Survey reflects the width of 298 Pacific as measuring 7.62 metres, or 25 feet, at both ends. The 2013 Survey also depicts a fence 0.13 metres (0.42 feet) south of the lot line near the house at 298 Pacific and 0.5 metres (1.64 feet) south of the lot line near the laneway (the “2013 Fence”). Mr. Sammut disputes the location of the 2013 Fence. According to Mr. Sammut, Ms. McGhee Peggs extended the 2007 Fence and that is what appears as the 2013 Fence. Since, aside from the extension, it does not appear that any other fence was constructed since Ms. Cube rebuilt the fence in 2007, I understand the 2013 Fence to be the 2007 Fence, with the extension constructed by Ms. McGhee Peggs.

14Mr. Sammut claims that the fence has always been located in the same place, where it is indicated on the 1986 Survey. His evidence is that this was the location of the fence when he purchased the property in 2005. Ruta Cube deposes that when she replaced the pre-existing fence with the 2007 Fence, it was built in the same location as the previous fence, which would have been the 1986 Fence. The 1986 Survey and the 2013 Survey, however, do not show that the fence remained in the same place. In the 1986 Survey, the fence is 0.5 feet south of the lot line near the house, whereas in the 2013 Survey, it is 0.42 feet south of the lot line near the house. Similarly, the fence was 0.69 feet south of the lot line near the laneway in the 1986 Survey but 1.64 feet south of the lot line near the laneway in the 2013 Survey. At the front portion of the properties between the houses, the 2013 Fence is 0.08 feet closer to the lot line than the 1986 Fence. At the rear of the properties near the laneway, the 2013 Fence is 0.95 feet further from the lot line than the 1986 Fence.

15Mr. Sammut claims adverse possession over the narrow strip of land between the original location of the fence and the property line. Since Mr. Sammut does not dispute the 1986 Fence location, I will use this reference. In any event, the location of the 2007 Fence and 2013 Fence is not relevant because, as further discussed below, this would be outside the time period for establishing adverse possession. Based on the 1986 Survey, the Disputed Land measures approximately 0.5 feet at its narrowest point, at the front of the properties, and 0.69 feet at its widest point by the laneway at the rear of the properties.

The Dispute

16The parties’ dispute appears to have begun or intensified when construction commenced on the Applicant’s renovation project. When Ms. McGhee Peggs purchased 298 Pacific in 2011, Mr. Sammut had already sought approval for his home renovation, but the work had not yet commenced. The previous owners of 298 Pacific, the Cubes, initially opposed Mr. Sammut’s renovation project. In order to obtain the Cubes’ approval, Mr. Sammut agreed to limit the extension of the addition to his house to allow for a three-foot setback from the fence that divided the two properties. While Ms. McGhee Peggs argues that the area of land over which Mr. Sammut claims adverse possession is de minimus, it is clearly significant to Mr. Sammut and impacts his renovation project.

17After Ms. McGhee Peggs obtained the 2013 Survey, she provided a copy to Mr. Sammut’s contractor. In May 2015, Michael Peggs, Ms. Peggs’ husband, notified Mr. Sammut that they intended to move the existing fence. In 2015 and 2016, Ms. McGhee Peggs removed the 2007 Fence and rebuilt the fence to align with the boundary line between 298 and 300 Pacific. The new fence is on the property of 298 Pacific, immediately to the south of the boundary line (the “2016 Fence”) and closer to the boundary line than the 1986 Fence or the 2013 Fence.

18Mr. Sammut objected to Ms. McGhee Peggs’ removal and reconstruction of the fence, and considers it an act of vandalism and an incursion onto his property. The related relief sought by the Applicant includes the removal of the 2016 Fence and its relocation to the original location at the Respondent’s expense. Both parties accuse each other of causing damage to each other’s property and interfering with each other’s contractors. I will not examine in any detail the evidence regarding the parties’ acrimonious relationship as it is not relevant to the determination of the issues before me.

Analysis

The Test for Adverse Possession

19The parties do not dispute the test applicable to establish adverse possession. Under s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, a claimant who claims adverse possession must establish the following throughout a continuous ten-year period:

(i) Actual possession of the property in issue;

(ii) The intention of excluding the true owner from possession of his or her property; and

(iii) Effective exclusion of the true owner from possession of his or her property.

See: Barbour v. Bailey, 2016 ONCA 98, 345 O.A.C. 311, at para. 35.

20The claimant’s possession must be “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner” for the full ten-year statutory period: Barbour, at para. 36. Whether the requirements have been made out is a question of fact, but the court will have regard to the nature of the property and its uses: Heng v. Rodriguez, 2015 ONSC 1677, 53 R.P.R. (5th) 153, at para. 30, aff’d, 2016 ONCA 106, 62 R.P.R. (5th) 221.

21Properties that have been converted to Land Titles are not subject to claims for adverse possession based on facts that arise after the conversion date. However, there is an exception under s. 51(2) for title obtained by adverse possession before the conversion: Land Titles Act, R.S.O. 1990, c. L.5, s. 51.

22Both 298 Pacific and 300 Pacific were converted to the Land Titles system on December 16, 2002. Mr. Sammut must thus demonstrate adverse possession for the ten-year period from December 1992 to December 2002 before the properties were converted to Land Titles: Real Property Limitations Act, s. 4; Beffort v. Zuchelkowski, 2016 ONSC 583, 66 R.P.R. (5th) 326, at para. 13.

23In this case, since neither Mr. Sammut nor Ms. McGhee Peggs owned their respective property during the ten-year period from 1992 to 2002, they cannot provide any first-hand evidence relating to the properties’ use during that time period. Moreover, the parties’ evidence with respect to their own understanding about, or use of, the Disputed Land is not relevant to determining the issue of whether adverse possession has been established.

(i) Actual Possession of the Property

24In order to demonstrate actual possession during the relevant time period, Mr. Sammut relies upon Ruta Cube’s six-paragraph affidavit (the “Cube Affidavit”). Ruta Cube resided at 298 Pacific from “the 1950s” and became an owner in 2009. In respect of the fence, Ms. Cube deposes that “in the 1960s, my father, or our neighbour, had a wooden fence built or replaced between 298 Pacific and the neighbouring property abutting our own at 300 Pacific Avenue …. I always believed and understood that the fence marked the property line between 298 and 300 Pacific.” Ms. Cube further states:

During the entire time my family lived at 298 Pacific, we had exclusive possession and use of the property on our side of the fence, being 298 Pacific. Our neighbours at 300 Pacific had exclusive possession and use of the property on their side of the fence. This continued throughout the existence of the original fence and the new fence that I had constructed in 2007 on the same line as the original fence.

25I find that the Applicant has demonstrated actual possession of the Disputed Land during the relevant time period. The 1986 Fence had to have been located on the property of 298 Pacific since at least 1986. Since there is no evidence to suggest that the fence was rebuilt or moved between 1986 and 2007, the 1986 Fence remained in its original location during the relevant time period, from 1992 to 2002. Due to the enclosure of a portion of 298 Pacific by the fence, the owner of 300 Pacific had possession of the Disputed Land for the entire ten-year period before Land Titles conversion. From the existence of the fence, and Ms. Cube’s evidence, it can be inferred that the possession was open, notorious, constant, continuous, peaceful, and exclusive of the true owner.

26The Respondent argues that the Applicant cannot establish actual possession during the relevant time period without any evidence from a predecessor in title of 300 Pacific. While evidence from a predecessor in title to the claimant may be necessary to demonstrate intent, I do not think it is necessary to establish actual possession. Ruta Cube’s observations of the location of the fence during the ten-year period and each owner’s use of their property are relevant to the issue of actual possession. Her evidence is unchallenged. There is no evidence to suggest that from 1992 to 2002 300 Pacific’s owners did not have possession of the Disputed Land. In the absence of any evidence to the contrary, I find that Mr. Sammut has demonstrated the first element of actual possession.

(ii) Intention to Exclude

27The Applicant faces greater difficulty, however, in demonstrating the requisite intention to exclude the true owner from possession. Because no evidence has been provided from any predecessor in title of 300 Pacific from 1992 to 2002, there is no basis upon which I can find an intention to exclude during the relevant time period: Fletcher v. Storoschuk (1981), 35 O.R. (2d) 722 (C.A.), at pp. 724-725.

28In respect of the ten-year period before the conversion into the Land Titles system, the only evidence on the record is the Cube Affidavit. Ms. Cube was not the owner of 300 Pacific and cannot provide any evidence as to the 300 Pacific owner’s intent during the relevant time.

29The Applicant argues that an inference can be drawn from the original fence’s existence in and of itself. Enclosure by a fence is strong evidence of an intent to exclude: Beffort, at para. 13. A fence, however, is not conclusive: Ledyard v. Chase, [1925] D.L.R. 794, at p. 795.

30The intent to exclude could be inferred from the existence of a fence if the fence was constructed by the adverse possessor or a predecessor in title. It is more difficult, if not impossible, to draw such an inference if the fence was constructed by the true owner. In this case, there is no evidence as to who constructed the 1986 Fence. Ms. Cube’s affidavit states that it was either her father or the neighbour. The intent that could be inferred from the existence of the fence would be different depending on whether the fence was constructed by the owner of 298 Pacific or the owner of 300 Pacific. If Ruta Cube’s father had built the fence, he could have built it on the Cube property because the owner of 300 Pacific would not agree to a fence on the property line. The fence could not then be evidence of an intent to exclude by 300 Pacific’s owner. If the predecessor in title of 300 Pacific built the fence with Mirzda Cube’s permission, such permission would defeat an adverse possession claim. Without any evidence of the circumstances surrounding the fence’s construction, it is not possible to infer any intent, one way or the other, from the existence of the fence alone: Penwest Development Corp. v. Youthdale Ltd. (2005), 46 R.P.R. (4th) 124 (Ont. S.C.), at para. 7.

31As is the case here, in Sipsas v. 1299781 Ontario Inc., 2016 ONSC 212, 64 R.P.R. (5th) 340, neither of the owners of the neighbouring properties owned their respective property during the relevant time period for adverse possession. The claimant relied upon the evidence of his predecessor in title, Hendricks, who stated that he always believed that the disputed lands, as enclosed by a fence, were part of his property. The fence was not found to be evidence of an intention to exclude, however, since Hendricks never went to see the fence and could not give evidence as to the state of the fence.

32In addition, in Sipsas (SCJ), at para. 19, Hood J. noted that the agreement of purchase and sale between Hendricks and the claimant, and a statutory declaration containing a description of the property, made no mention of the disputed lands. Hood J. found that this contradicted Hendricks’ evidence of an intent to exclude or a mistaken belief that the disputed lands belonged to him.

33Similarly, in this case, documents relating to both properties consistently reflect the boundary lines and lot sizes of 298 and 300 Pacific as described on the 1986 Survey. In 2011, when the Cubes sold 298 Pacific to Ms. McGhee Peggs, they made a statutory declaration, stating that there was “no encumbrance or easement whatsoever affecting the said Lands except as disclosed by the registered title” and that “we are not aware of any person or persons or corporations having any claim or interest in the said Lands or any part thereof adverse to or inconsistent with our title and we are positive that none exists.” The statutory declaration had to include the entirety of the property at 298 Pacific, as described in the Land Titles system and as depicted in the 1986 Survey and the 1995 Survey. This demonstrates that the predecessors in title of 298 Pacific knew and attested that their lot extended to the boundary line and not only to the fence.

34The Respondent also relies upon the Notice of Election signed by Mirzda Cube in 1998 when the City sought to expropriate a strip of land through the backyards of home-owners on Pacific Avenue. The Notice of Election referenced the plan of expropriation as Plan 12137, which was the 1995 Survey, showing the boundary lines for 298 and 300 Pacific. No fence is depicted on the 1995 Survey. Since the only evidence before me is the Notice of Election, which does not attach the 1995 Survey, I draw no conclusion as to whether Mirzda Cube was in fact aware that the location of the fence differed from the boundary line in 1998.

(iii) Effective Exclusion

35In order to determine if the claimant has demonstrated effective exclusion, the court must look at the evidence as a whole to determine whether the claimant had the requisite intent to dispossess the true owner: Penwest, at para. 8.

Inconsistent Use

36The inconsistent use requirement remains an element of the adverse possession test, where adverse possession is through knowing trespass, as opposed to mutual or unilateral mistake. Acts of a claimant to possessory title are not sufficient to demonstrate an intention to exclude the owner from possession unless they are inconsistent with the owner’s intended use of the land: Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563 (C.A.), at p. 568.

37In this case, Ruta Cube was not the owner of 298 Pacific during the relevant time, and is not able to provide evidence as to the intent of Mirzda Cube, the owner at the time. Ruta Cube’s evidence is not sufficient to demonstrate that the owner of 300 Pacific used the property in a manner inconsistent with the owner of 298 Pacific’s intended use. The Cube Affidavit does not, in any event, speak to any intent. The most that Ms. Cube states is that she “always believed and understood that the fence marked the property line between 298 and 300 Pacific” and that each family used the land on their respective side of the fence. As such, there is no evidence before the court as to the intended use of the Disputed Land.

38Moreover, it is not sufficient for the claimant to demonstrate that the true owner did not use the disputed land, since the true owner has a legal right to possession and is not required to demonstrate open, notorious, peaceful, adverse, exclusive, actual, and continuous possession: Barbour, at para. 46.

39The Court of Appeal noted in Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265, 85 R.P.R. (5th) 24, at para. 21, that “there is no question that the “inconsistent use” test makes it more difficult for claimants of adverse possession to establish an intention to exclude, especially where, as in this case, the intentions of the true owner of the disputed lands are unknown.” Mirzda Cube’s intention as to the Disputed Land is not known, and the Applicant cannot demonstrate that the use by his predecessors in title at 300 Pacific was inconsistent with her intended use.

Mutual Mistake

40The Court of Appeal has held that the inconsistent use test does not apply to cases of mutual mistake about ownership: Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), at pp. 224-225:

Even accepting, however, that the test applies to cases of knowing trespass, it cannot apply to cases of mutual mistake. If it did apply, every adverse possession claim in which the parties were mistaken about title would fail. Inconsistent use means that the claimant’s use of the land is inconsistent with the true owner’s intended use. If the true owner mistakenly believes that the claimant owns the disputed land, then the owner can have no intended use for the land and, correspondingly, the claimant’s use cannot be inconsistent with the owner’s intended use.

41In order to prove mutual mistake, the Applicant must provide evidence as to what the property owners at the relevant time believed regarding the property, as well as the property owner’s intended use: Sipsas (SCJ), at para. 35; Penwest, at para. 7. It is therefore irrelevant if Mr. Sammut and Ms. McGhee Peggs mistakenly assumed that the fence was the boundary, or undertook acts that were consistent with such a mistaken belief. The question is whether their predecessors in title from 1992 to 2002 were mutually mistaken.

42As discussed in respect of demonstrating an intention to exclude, the lack of evidence from the predecessors in title to 300 Pacific renders it impossible to find that there was a mutual mistake. The Cube Affidavit states only that Ruta Cube believed that the fence marked the property line between the two properties, and that each owner used land on their side of the fence. As was the case in Sipsas (SCJ), there was no evidence that the owner of the disputed lands was mistaken about anything. Without evidence from the predecessor in title, the claimant in that case could only suggest that it was possible that the predecessor also believed that the disputed lands were owned by their neighbor. This was insufficient to demonstrate mutual mistake: Sipsas (SCJ), at para. 22. In this case as well, the Applicant has only demonstrated that the predecessors in title to 300 Pacific might have been mistaken as to the boundary’s location. It is equally possible that they knew.

43Mr. Sammut relies upon Heng, to argue that the existence of a fence and its treatment by both property owners as the property line was sufficient. However, in Heng, the claimant provided significant evidence demonstrating adverse possession. This included affidavits from the claimant’s predecessor in title and his tenant, that they treated the fence as a boundary line and believed that the claimant owned the property on his side of the fence (paras. 32-33). The record in this case is devoid of any such evidence.

Unilateral Mistake

44At the hearing of the Application, a question arose as to whether unilateral mistake would be sufficient to establish adverse possession. The Applicant subsequently submitted additional authorities on this point, which I address here.

45The Applicant, relying on Bradford Investments (1963) Ltd. v. Fama, 77 O.R. (3d) 127, asserts that a mistake need not be mutual, and that the honest but mistaken belief of the claimant would be sufficient to establish adverse possession. In Bradford Investments, Cullity J. found that adverse possession could be established where the claimant had a bona fide belief that they owned the disputed lands. In that case, the disputed lands were vacant lots. The claimants, who believed that their lots continued over the vacant lots, had planted trees and vegetable gardens over the land and exercised possessory rights for over 30 years. The true owner made no claim to the disputed lands and had no physical contact with them. The inconsistent use requirement was found not to apply because, in the case of vacant land, the true owner could always argue that they planned to develop the vacant land at some future point in time to defeat a claim of adverse possession.

46In Reiner v. Truxa, 2013 ONSC 6009, [2013] O.J. No. 4351, at paras. 23-24, Frank J. found that the claimants demonstrated adverse possession by mutual mistake, but that they would also have been able to rely upon a unilateral mistake. The claimants, who owned their property for the entire period, provided evidence as to their exclusive use of the disputed land, a driveway, as well as their neighbour’s non-use of the land. The claimants also provided evidence from their predecessor in title as to his belief and use of the driveway, as well as the predecessor in title’s evidence of the disputed land.

47By contrast, in Skraba v. Crisafi, 2014 ONSC 6780, 49 R.P.R. (5th) 248, at paras. 30-31, Gordon J. rejected the claimants’ argument that they had an honest but mistaken belief that they owned the entire driveway between the properties and found that an honest but mistaken belief must also be reasonable. In Gordon J.’s view, it was not reasonable for the claimants to believe that the entire driveway belonged to them for a number of reasons, including the width of the property as described in a surveyor’s certificate provided at the time of purchase.

48In this case, the evidentiary problems that precluded a finding of mutual mistake similarly prevent a finding of unilateral mistake. Since there is no evidence from the predecessors in title to 300 Pacific, there is no basis upon which this court could find that they were mistaken as to the ownership of the Disputed Land. The question is not whether Mr. Sammut had an honest but mistaken belief that the fence marked the boundary line between 298 and 300 Pacific, but whether his predecessors in title did. There is no evidence before me that would enable me to find that the predecessors in title held such a belief.

49Mr. Sammut has not satisfied the test for adverse possession, whether by trespass, mutual mistake or unilateral mistake.

Conclusion

50Based on the foregoing analysis, the Application is dismissed with costs to the Respondent.

51The parties are encouraged to agree on the quantum of costs. If no agreement is reached, Respondent’s counsel shall make cost submissions within ten days of this decision’s release. Responding submissions on costs by Applicant’s counsel shall be made within ten days of receiving the Respondent’s cost submissions. All cost submissions must include a Costs Outline and must be no longer than five pages in length. If no costs submissions are received within this time period, costs will be presumed to have been resolved by the parties.

Nishikawa J.