Reasons for Judgment
Court File No.: 09-430/11-502SR Date: 2018/11/27 Superior Court of Justice - Ontario
Re: WILLIAM JOHN ARMSTRONG and TERESA JESUS ARMSTRONG, Plaintiffs And: HOWARD MOORE, LAUREEN MARGARET MOORE, LARRY JOSEPH EDWARDS, COLLEEN ELIZABETH EDWARDS, WAYNE CARTWRIGHT, JANET CARTWRIGHT, JULIE EDWARDS, LAWRENCE HENRY HIERLIHY, JEANNETTE THEODORA HIERLIHY, GLORIA MAE EDMUNDS, CAROLEE STACEY HOFMAN, DONALD DEMERS and ROBERT WILLIAM MOORE, Defendants
Before: Mr. Justice Calum MacLeod
Counsel: Norman A. Pizzale, for the Plaintiffs Joseph W.L. Griffiths for Howard Moore and Laureen Margaret Moore Sean Van Helden for Robert William Moore Lisa Coutu, Self-Represented, added party No one appearing for the remaining defendants
Heard: August 20th – 24th and August 27 – 28, 2018
Introduction
1This was a dispute between landowners which came on for trial in Pembroke in August. It involves a cottage purchased by the plaintiffs in Westmeath Township on Lower Allumette Lake in 2003. [1] The dispute had its genesis in 2007 when landscaping work by a neighbour interfered with the Armstrong cottage and it resulted in the two court actions which were tried together.
2The central issue in the litigation is the extent of the plaintiffs’ rights over the cottage and a right of way, and whether those rights have been breached by the defendants. The answer depends on historical evidence as well as current circumstances and involves considerable legal complexity.
3This is the kind of dispute that occasionally flares up in cottage country. Boundaries, registered title, road access, and other legal rights may be at odds with years of use and occupation. Changes in ownership and use may strain relations between neighbours. Primitive cottages originally designed for seasonal use are frequently upgraded and replaced by year round residences. Government standards such as building codes, sanitation standards and land registration have also changed.
4Seldom do matters deteriorate to the extent they have here. The tranquility sought by the plaintiffs and long enjoyed in the community has been shattered by what appears to be disproportionate conflict, multiple lawsuits, family feuds and a decade of litigation, property damage and extra-judicial self-help. Two weeks were spent in this trial alone.
5I must now determine what to make of it. In the course of the trial I encountered a number of issues that appear to require resolution but they do not fall within the ambit of these lawsuits. Judges are not empowered to fashion solutions to issues that are not before the court nor to conduct their own inquiries as to what would be best for the community. The issues for trial are only those that are framed by the pleadings and addressed by the evidence.
6There are only two issues before this court. They are intertwined but separable. Firstly, have the plaintiffs established a claim for damages against the individuals they have sued? Secondly, do the plaintiffs have ownership of a triangle of land on what was previously the non-travelled portion of the right of way by reason of “adverse possession”?
7The answer to the first question is a qualified “yes”. I find that the plaintiffs are entitled to modest damages against Robert Moore and Howard Moore. Those damages are orders of magnitude smaller than the amounts the plaintiffs claimed.
8The answer to the second question is “no”. The plaintiffs have failed to establish all of the elements necessary to establish adverse possession. There is no doubt the plaintiffs and their predecessors in title have a long history of uninterrupted use of the disputed lands. It is possible the plaintiffs may have other rights in that area but they are not entitled to be registered as owners.
Background to the Litigation
9By way of overview, the Armstrongs purchased a cottage that had no indoor plumbing. It was probably little changed since it was originally acquired by Sevare Vaudry in 1951. [2] To arrive at the cottage it is necessary to follow the access road along the right of way. The road runs northwest from Moore’s Beach Road over the top of a ridge and then descends a hill towards the water. At that point the roadway turns sharply to the left and runs parallel to the water. The right of way services the Armstrong cottage and other properties further along the shore and runs over land owned by Howard and Laureen Moore. [3]
10The Armstrongs took possession of their cottage in 2003 and used it without incident in 2004, 2005 and 2006. The only sanitation facility was an outhouse which turns out not to be located on their land but on the non-travelled portion of the right of way. Attached to the outhouse was a storage shed. The Armstrongs believed the outhouse and shed went with the cottage. They treated the outhouse, the shed and the area between the roadway and the cottage as part of the cottage property. The land in question was delineated in part by mature cedar trees around the outhouse and along the edge of the roadway.
11In 2006, Robert Moore, who is Howard & Laureen’s son, acquired the land to the east of the Armstrong property and adjoining the access road where it descends the hill. He began to renovate the home, build a large garage and otherwise improve the property. In 2007, he placed a large amount of fill on his lands and despite protests voiced by the Armstrongs he took no steps to prevent incursions of mud or water onto their land.
12In August of 2007 there was a washout on Robert’s property which resulted in mud and water surrounding and entering the outhouse. The Armstrongs state that this rendered their property unusable because the outhouse was the only sewage system for the cottage. [4] They also believed it unlikely they could get permission to build a replacement or to upgrade the system. They claim that the damage from the mud flow along with increased water runoff from Robert Moore’s property and the continuing risk of further damage made their property unusable. In 2009, they sued Robert Moore for damages.
13Related to this issue is the question of what rights the Armstrongs had acquired over the lands occupied by the outhouse. Although Howard and Laureen Moore are the registered owners, the strip of land containing the access road is also subject to the rights of the other landowners who are the beneficiaries of the right of way. [5] The access road was not occupying all of the land designated for the right of way and neither the Moores nor the other owners were making active use of the portion of land appurtenant to the Armstrong cottage. The outhouse had been there for at least 40 years.
14“Adverse possession” is a legal principle by which a landowner who is excluded from his or her lands by an occupier can lose the right to dispossess that person at the end of ten years. [6] The accrual of possessory rights in this area ended in August of 1998 because at that time all of the subject lands were converted from the land registry system to the land titles system. [7] This took place as part of the modernization and digitization of title registration in Ontario. After 1998 no additional rights of this nature could be created but any rights that had accrued to owners of lands prior to that date were preserved. [8] The question of possessory titled depends on whether previous owners of the Armstrong property had acquired such rights before 1998. More specifically the question is whether or not the Moores and the other residents had lost the right to prevent the owners of the Armstrong cottage from occupying the land before August of 1998.
15Although he disputes that this was the motive for his subsequent actions, Howard Moore became aware that claims for adverse possession might erode his property rights and impede the access rights of the other property owners in 2009. In that year he cut down all of the trees surrounding the outhouse and lining the edge of the road and he removed the tree stumps. Subsequently, he took other steps to demonstrate ownership of the area and he posted signs warning residents that they might lose their right of way due to claims by the Armstrongs and the Demers who were making similar claims. [9] The Armstrongs commenced the second action in which they asserted ownership over the disputed lands and sought damages for the destruction of their property and loss of use of the cottage. They also seek to hold Howard responsible for promoting animosity against them and for permitting others to exercise self-help.
16As matters unfolded, first the shed and then the outhouse was destroyed and the roadway was moved so that it is no longer practical to restore the land to its previous state. By the time of the trial the Armstrongs had not used the cottage for over a decade and it no longer had any sanitation facility. There were no trees left between the roadway and the cottage. Howard Moore had purchased the land opposite the Armstrongs, moved the travelled portion of the roadway off those lands and constructed an enormous fence.
17These are the basic facts and the shape of the dispute giving rise to the litigation. Most of the defendants were property owners whose property was accessed by the right of way. Most of them did not defend the action or lost interest by the time of the trial. There have also been changes in ownership. By the time of the trial only the Moores and the Coutus were active defendants. The Coutus were added as parties at their request because they had purchased the property previously owned by the Edwards. The Moores were represented by counsel while Lisa Coutu ably represented herself. Her sole concern was to ensure her continued right to access her property. She states that the corner is now very difficult to navigate and delivery vehicles such as her oil supplier will not do so. If the right of way is narrowed, it will be impossible.
18Before examining the evidence and outlining my findings, it is useful to say a few words about the nature of the trial and the manner in which evidence was tendered.
The trial
19It will be apparent that by the time of the trial it was 11 years since the inundation of mud, 9 years since the first action was launched and 7 years since the initiation of the second action. In addition to delay on the part of the parties themselves [10], the trial had been adjourned twice. [11]
20By order of Justice Ray, the trial took place as a modified summary trial. That is to say that most of the evidence in chief was introduced by affidavit. [12] While an admirable tool for improving trial efficiency in theory, this was not as successful as might have been envisioned. In part this was because events had continued to unfold and in part it represented a failure to eliminate peripheral issues. In addition, drafting effective trial affidavits can be tricky. It requires a different approach from drafting affidavits for motions and is quite different from posing oral questions in traditional examination in chief. In any event, almost all of the witnesses who swore affidavits also gave oral testimony. [13]
21In addition to the affidavits, the oral testimony and documents introduced through one or other of these means, there was also discovery testimony (including discovery of parties that were not present in court) filed as “read ins”. In addition, I took a brief view of the property.
22Although the procedure of taking a view is not routinely utilized, it is by no means rare. It is provided for in Rule 52.05 and may be utilized at the discretion of the trial judge. Under Ontario law, the view is not evidence but an aid to interpretation. In this case, it was of assistance to properly understand questions of geography and scale. All parties and their counsel participated in the view.
23The trial took seven days of court time which was within the time allocated. With the benefit of hindsight a much tighter focus would have been helpful. Much time was spent over facts that could have been admitted and issues were explored that turned out to be distracting and unnecessary.
The need for focus
24It would be very easy to spend pages describing the evidence in minute detail or explaining the “back story”. For example, it is interesting that Robert Moore is the 5th generation of his family to live on the land or that Howard Moore’s farmhouse is on the lot originally occupied by the first Moore homestead. The interrelationship between the parties is also interesting and testimony to the close knit community that existed in the 20th century. Robert Moore’s wife is the daughter of the Edward defendants who built a permanent home on their lot and subsequently sold it to the Coutus. Jeannette Hierlihy is Donald Demers’ sister. The plaintiffs are also interesting. They are both politicians whose home is in London, Ontario. They testified about the peace, tranquility and simplicity which attracted them to the cottage in Westmeath.
25The history of the cottage development is also interesting and confusing. It is unclear why John B. Moore and William P. Moore created a right of way with a 90 degree bend in 1951 or why they then decided to define a second parallel right of way in 1957 [14]. It is intriguing that the Moores granted additional lands to most of the original cottage owners in order to accommodate garages and septic beds but no additional land was acquired by Sevare Vaudry. I learned rich detail about the relationship between the various cottagers, when and who first began to live there year round, when permanent homes were built, interesting anecdotes about how the cottagers and their children used to repair the hill after heavy rains and the fact that the Moores own the local Home Hardware.
26Very little of this detail is germane to the issues I have to decide. It is not my task to write the story of Moore’s Beach. It is my task to decide the issues.
27Much time was spent at the trial over what ultimately proved to be irrelevant title mysteries. I refer to the question of whether or not Donald Demers owned a “double lot” and whether the mysterious PIN no. 57191-0050 shown on the Terraview maps and on some of the surveys cast doubt on the land which the Armstrongs had purchased.
28The PIN problem appears to exist because the Registry Office made a correcting entry for an old deed misdescribed in the original abstract book. When this was done the RO created a parcel register for that land and it appears on the Terraview map as lying between the Armstrong cottage and the land owned by Robert Moore. This stray PIN had confused the surveyor when he prepared a draft survey for Howard Moore but in reality neither the Moores nor the surveyor or anyone else believe this is a genuine issue.
29The abstract book shows a clear chain of title from Sevare Vaudry who was the first purchaser to Kevin & Diane Holden who owned the land when it was brought into land titles. There is no doubt what parcel of land the Armstrongs purchased, where it is located or the fact that it adjoins Robert Moore’s land. [15] The extra property identifier and its location on the Terraview map is confusing and no doubt it should be rectified but this seems to be an issue for Robert Moore to resolve. It was irrelevant to the dispute.
30Similarly there was confusion as to whether or not Mr. Demers owned a “double lot”. Again this is not a real issue. The confusion may have been caused by the extra PIN number and it is reflected in Mr. Demers’ own affidavit which erroneously identifies his land as only Lot A and the original Demers cottage as Lot B. Precisely what land Mr. Demers owns and how large his lot is has no real bearing on the issues before me but it created a mystery in the middle of the trial. It is a false mystery caused by misreading the documents.
31The abstract book shows conveyances of two properties to Florence Hutchison or Hutchinson in 1951. [16] In 1997, Mr. Demers acquired both of those lots along with two rights of way. This is clear when all of the pages of his deed are viewed in proper order and is also apparent from the abstract entries. [17] At the time he acquired lots A & B, he also conveyed the original Demers cottage (Lot C on the original sketch) to his daughter, Carolee Hofman. [18] These are the three properties to the west of the Armstrong property. Mr. Demers gave evidence that he bought a double lot that used to contain two cottages and he took one of them down.
32These title anomalies should not have been allowed to intrude upon the trial. They should have been resolved in advance, eliminated as issues or been referred to experts. It should not have been necessary for counsel to be retrieving title information in the middle of the trial or for the court to be reviewing a miniature illegible copy of the handwritten abstract book. [19]
33It would be equally easy to spend time detailing the luxuriant nuances of real estate law. For example there may be different duties between neighbouring landowners in relation to water rights and the burden of increased waterflow depending on whether the water in question is surface water, ground water or water flowing in a channel. [20] Strict liability may be imposed on an adjoining land owner for the escape of mud or other substances in nuisance or trespass without proving negligence. There is also a wealth of fact specific jurisprudence on adverse possession. Treatises have been written on the history and justification of the doctrine. [21]
34On the view I take of the evidence and the applicable legal principles, this is not a case for adding to the literature on real estate law. My analysis can be stated briefly.
Negligence Claim against Robert Moore
35As noted above, there various obligations and duties that exist between adjoining occupiers of land. In some cases the law imposes strict liability. There is clearly a duty of care between occupiers of land and those who may be affected by their activities even if there can be debate about what that duty entails.
36The plaintiffs have not relied upon “nuisance” or “trespass” but have pleaded their case in negligence. There can be no doubt that Robert Moore was negligent. The evidence shows that Mr. Armstrong specifically brought the risk of adverse effects on the drainage to his attention and questioned Mr. Moore about what remedial measures he intended to take to ensure the stability of the large amount of earth he had placed on his property. The landfill placed on the Moore property sloped steeply down towards the property occupied by the Armstrongs and was mounded against cedar trees forming the boundary between the two lots.
37When raising the level of his land or doing construction on his property, Robert Moore had a duty not to unreasonably interfere with the rights of his neighbours. He was put on notice of potential problems when Mr. Armstrong tried to speak to him about his concerns. He knew or ought to have known that the earth mounded up on his property might disrupt the drainage patterns or collapse onto the adjoining property. He took no steps whatsoever to avoid those consequences and in fact he dismissed Mr. Armstrong’s concerns rather rudely.
38According to Mr. Armstrong, when he tried to discuss the matter, with Robert and Howard Moore, Robert Moore responded that it “sucks to be at the bottom of the hill”, suggested he get “sandbags” and offered to provide some. Howard Moore suggested he get a lawyer if he didn’t like it. Neither of the Moores denied this version of the discussion. Robert’s only explanation for the rudeness was that he and his dad were busy and didn’t think it would be a problem. Rudeness is not a tort but failure to take reasonable measures to avoid foreseeable risk is.
39In August of 2007 the washout was precisely what Mr. Armstrong had warned about and it confirmed his worst fears. The engineer he retained the following year gave him the opinion that the fill would continue to be unstable and further incursion of water and mud was to be expected. He recommended installing a retaining wall.
40The problem for the Armstrongs is twofold. Firstly, they have not proven the quantum of damages. Secondly, they did nothing to mitigate their loss.
41The plaintiff’s theory of damages is flawed. It is their thesis that the work done on the Moore property rendered the cottage permanently unusable or usable only if a new septic system could be installed. The evidence led on damages concerned the cost of installing a well or a septic system and why those solutions might be impractical. They did not lead evidence on the cost of cleaning up, repairing or rebuilding the outhouse. They did not lead evidence on the cost of building a retaining wall. They did not lead evidence on the diminution in value, if any, of their land. [22] In fact, the Armstrongs did not clean up the mud, repair the outhouse or take any other remedial steps. They did not seek approval for a chemical toilet or other options which might have been an alternative to either the outhouse or a full septic system.
42It is important to point out that Robert Moore’s liability to the Armstrongs for negligence does not depend on whether or not they had ownership of the disputed land. They were using that land and it was not land belonging to Robert Moore. They were making peaceable, open and apparently lawful use of the property. It was readily apparent that the outhouse was necessary for the use and enjoyment of the cottage. Robert Moore knew or ought to have known that instability in the bank created by the landfill might damage the plaintiffs property and interfere with the use of their cottage.
43I also find that even if the Armstrongs did not own the land on which the outhouse was located, they did own the outhouse. Howard Moore’s evidence was to the effect that outhouses were moved from time to time and this outhouse had been moved from the other side of the road in the 1960s. It is clear that this was the toilet facility for the Armstrong cottage. It was secured by a lock when the Armstrongs took possession. I do not accept the evidence of the Moores that the outhouse was ever a “community outhouse”. It well may be that neighbours used whatever outhouse was available at a time when all of the cottagers had outhouses at “the bottom of the hill”. It is entirely probable that the outhouse was built by Howard’s father because according to Howard’s evidence, his father also built the Armstrong cottage.
44On the evidence, I find that the outhouse was Sevare Vaudry’s outhouse moved to the location on the right of way at the request of Mr. Hunt who purchased the land where the outhouse formerly stood in 1956. [23] The outhouse then stood in the location behind the cottage next to the roadway for over 40 years. It was as far from the cottage as it could be without being on the road. It was the toilet facility and the only toilet facility for the Armstrong cottage. It is a reasonable inference that the outhouse and shed were purchased along with the cottage.
45It does not follow that the outhouse was destroyed when the mud came down. Certainly the evidence demonstrates that the wet mud looked disgusting. It may have been difficult to tell if the outhouse pit had been filled or had overflowed. I have no doubt this event was discouraging, depressing and a realization of their worst fears about Robert’s landscaping. The fact is the Armstrongs never again used the cottage. I do not accept the characterization of the defendants that the Armstrongs abandoned the cottage as they continued to show an interest in it and to pursue their claims. In reality, however, the plaintiffs took no steps to repair or replace the outhouse or to find an alternative.
46Mrs. Armstrong gave evidence that one reason for not returning to the property was the evident hostility against them by the neighbours which she blamed on the Moores and Howard in particular. Mr. Armstrong testified that he was given information by the previous Chief Building Official which led him to believe he could not get permission to build a new outhouse. This is possible but is unproven. [24] The current Chief Building Official, Mr. Schutlz was called as a witness and he was much more optimistic. It was Mr. Schutlz’s evidence that he knew the cottage had a non-conforming septic system previously. He indicated that if he possibly could do so he would approve an alternative even if it was not identical to the original and was closer to the cottage. He believed he had the authority to approve a replacement that was not identical to the original providing it did was not an expansion of the non-conformity. Of course he could not commit to an approval without having a complete official application and no such application has ever been submitted.
47At its highest, the evidence suggests a risk that a replacement outhouse would not be approved or would be found to violate the building code. There is also a reasonable possibility that approval would be granted. For that matter it appears a permit is not needed to build an outhouse and Mr. Schutlz (who is also the building inspector and by-law enforcement officer) would only become involved if there was a complaint. The matter is uncertain. According to Mr. Schutlz, if the plan is to build on land that the cottager does not own, that approval would have to be obtained from the Ministry of the Environment. The plaintiffs certainly cannot prove it is impossible to build a new “class one septic system”. At best they can establish the probability that it may not be done easily and without additional complication. No one will know for certain unless and until an application is actually made.
48There is no doubt that the loss of the outhouse was significant but the evidence does not persuade me that it could not have been cleaned up, repaired or rebuilt in 2007 or 2008. The eventual destruction and removal of the outhouse occurred years later.
49One of the reasons the Armstrongs did not attempt to remediate the damage was the fear that the mudslide would simply reoccur. They testified that they believed that it would and had obtained engineering advice to that effect. Indeed the engineer who testified was of the opinion that the 45 degree bank created by Robert Moore was inherently unstable when he inspected it.
50The plaintiffs also testified that work done on Mr. Moore’s land had increased the water flow down the right of way. They felt this also threatened the outhouse and made it less practical to continue to use the cottage. There is no doubt about the increased water flow. Donald Demers confirms it. Robert Moore acknowledges it and has only recently taken significant steps to divert water from his yard onto Moore’s Beach Road and off the right of way. The problem is the lack of evidence linking the water flow to inability to use or repair the outhouse. In fact, there was evidence of a sort of gravel berm in front of the outhouse and the video as well as Mr. Demers’ evidence suggested that the water and sand mostly impacted the Demers’ property. I have no way to quantify damages caused only by water on the right of way.
51Even if their fear of reoccurrence was reasonable in 2007 and 2008, there is no persuasive evidence that further washouts have actually affected their property. While they obtained pictures of additional washouts on the Moore property in 2008, those were entirely on Robert Moore’s land. Robert Moore’s earth and fill has now been in place for more than a decade and it is largely covered with established vegetation. The fear of ongoing damage from washouts has not proven to be justified. The fear that their cedar trees along the property line would be damaged or would die appears similarly unjustified. In fact when Mrs. Armstong inspected the property during the trial, she described those trees as flourishing. This was confirmed by photographs and when I took a view. There is simply no evidence of ongoing significant intrusions of mud or sand onto the disputed land or the actual cottage property after the 2007 incident.
52All of this gives rise to the conclusion that Robert Moore should be liable only for reasonable damage to property and short term interruption of use. In my view this might have included the cost of cleanup and repair, rental of a port-a-potty or other alternative, the cost of installing abatement measures such as a retaining wall and if necessary construction of a new outhouse. There would have been a short term interruption of use. There are various ways in which loss of use might be valued but it could not exceed the cost of renting alternative accommodation and certainly could not exceed the value of the land.
53As discussed, the Armstrongs did not lead evidence of the cost of cleanup, repair or replacement because they did not pursue these steps nor is this how they attempted to measure their damages. Had they done so, it is highly unlikely the damages would have exceeded $25,000.00 (the Small Claims Court limit) and it is impossible to imagine that they could ever have approached the $250,000.00 originally claimed by them.
54I am persuaded that the plaintiffs suffered damage that has a measurable cost but I am hampered by the absence of specific evidence. It would not be fair to deny the plaintiffs any compensation and it would be disproportionate to order a further inquiry or to direct a reference. Faced with that situation, I am entitled to make a reasonable estimate based on the evidence I have but such an estimate should be conservative. [25] In the absence of receipts for work actually done or of reasonable and reliable cost estimates, I can at best award nominal damages. I fix those damages at $5,000.00 to cover the cost of cleanup, repair or reconstruction and $2,000.00 to compensate for brief interruption of the use of the cottage.
Damages Against Howard Moore
55A complicating factor is the intervention of Howard Moore who was not a defendant in the original action. Once Howard Moore removed the trees, the outhouse was left in the open at the edge of the roadway. At that point the Armstrongs felt it not only lacked privacy but would have been dangerous to use. That occurred in 2009. The following winter someone dumped snow and gravel on the roof and the shed collapsed. Subsequently, as I have mentioned, the outhouse was removed entirely. Mr. Moore’s actions certainly exacerbated the original damage and his acts of intimidation provide additional reasons why mitigation may have appeared impractical.
56Had I found ownership of the land by reason of adverse possession there would have been damages for trespass and for the removal of the trees. I would not have accepted the full values attributed to the trees by the plaintiffs’ arborist. The evidence was that cedars grow naturally and prolifically in the area. The row of trees could readily be replanted. I have not reached that conclusion, however, and Howard cannot be liable for trespassing on his own land.
57It is otherwise for aiding, abetting and encouraging the destruction of the outhouse. Howard knew that the Armstrongs were seeking compensation. He knew or certainly ought to have known that the owners of the cottage depended on the outhouse and it would be difficult to use the property without it. If he did not actually intend this outcome, his removal of the trees without advising the Armstrongs and his subsequent actions or inactions contributed to the destruction of the shed and the outhouse. He was reckless if not deliberate and negligent if not intentional in inflicting further damage. Howard should be liable for compounding the original damage and for the eventual destruction of the structure.
58As the outhouse was already damaged and decrepit due to Robert’s negligence, as there is no evidence of the value of the tools in the shed and as the Armstrongs themselves had taken no steps to preserve or protect the property other than launching the litigation, the additional damages that flow from this are also nominal. I assess those damages at an additional $3,000.00.
59Howard Moore’s actions were independent of Robert’s. In addition to exposing the outhouse to further damage by removing the trees and encouraging vandalism, Howard engaged in a process of intimidation. He also attempted to obliterate evidence of adverse possession and I have no doubt he understood that this is what he was doing. While Howard gave evidence that the cedars were removed because they were scratching trucks and it had nothing to do with defeating an adverse possession claim, this is not credible. It is quite plain that adverse possession had become a concern. In fact the draft survey showing the outhouse location and the Demers’ hedge as well as the boundaries of the deeded right of way and the travelled portion of the roadway was commissioned precisely because Howard wished to locate the legal boundary of the right of way and to defeat claims of adverse possession.
60When he cut down the trees, he also removed the tree stumps and took them to his property. During his discovery when he was asked to allow inspection in order to verify the age of the trees, he demurred and took it under advisement. The inspection never was allowed. Similarly, the evidence of attempting to use the outhouse, parking on the land and tearing up the grass was an attempt to manufacture evidence after the fact. Howard admitted at the trial that he was aware adverse possession could neither be gained or defeated after 1998. I find that these actions were clear acts of spoliation although they were ultimately ineffective. [26]
61Spoliation of evidence may or may not be tortious in its own right. [27] In my view, it is an independent actionable wrong sufficient to justify punitive damages. [28] Punitive damages were pleaded. These actions by Howard to obliterate markers of adverse possession and conceal evidence along with activities designed to spite the Armstrongs and further exacerbate the conflict are worthy of sanction. I am awarding punitive damages against Howard Moore in the amount of $5,000.00.
62I was not asked to assess damages against any of the defendants who had been noted in default. Although there was a suggestion that Larry Edwards had been the one to damage the outhouse and shed by dumping snow on the roof, he denied it at discovery and no proof was led on this point.
63I turn now to the claim for Adverse Possession.
The Adverse Possession Claim
64I do not intend to spend a great deal of time reviewing the evidence. Donald Demers and Jeannette Hierlihy who are brother and sister both spent their childhood in the area and lived there for many years. Their evidence was very helpful.
65Jeannette Hierlihy testified about Sevare Vaudry moving the outhouse at the request of Mr. Hunt. She also testified that Mr. Vaudry used to keep the cedar trees trimmed along the road. The evidence of these witnesses established that Mr. Vaudry and the Jansens after him used the land for parking and for the outhouse and shed. They cut the grass and they trimmed the trees.
66There seems no doubt at all that previous owners used the land appurtenant to the cottage. They did so openly and without objection by anyone from the 1950s until the lands came into land titles in 1998. These witnesses also testified that they very rarely saw any of the Moores in the area and certainly never saw the Moores or anyone else making use of the land.
67Continuous use is an essential element of an adverse possession claim and it does not matter that the use is intermittent if the property in question is seasonal use property. [29] I am quite prepared on this evidence to find that the predecessors in title made use of the property for at least 10 years as required by the statute. The evidence establishes that the users of the right of way made no use of the disputed triangle during the period of occupation. It was never necessary to pass over those lands in order to exercise the right of way. The travelled portion of the right of way was south of the cedar trees. The outhouse and the disputed land was to the north of the travelled road.
68What we have then is clear evidence of continuous use for at least 30 years prior to 1998 and quite likely longer. The disputed triangle was utilized as if it was a part of the cottage and specifically it was used for sanitation, storage and parking. It was partially separated from the travelled portion of the right of way. It had many of the hallmarks of adverse possession. Anyone looking at the acts of possession would certainly have concluded that the cottage owners were using the land and would also have concluded that the use of the land was necessary for the enjoyment of the cottage.
69The problem is that use alone is not enough. The use may be regular and of long standing but it must exclude the rightful owner. It must do so in a way that should have indicated to the owner that the person in possession intended to supplant him or her. This requirement in the case law is consistent with the principle of discoverability. A limitation statute which runs from a date on which a right of action accrues will not start to run before it should be apparent to the person with the right of action that action on his or her part is required. [30] The occupation of the land must be such as to make it clear that it is founded on the intention to possess the land to the exclusion of the rightful owner. The Court of Appeal has held that in addition to possession of the property the plaintiff must lead evidence of both “intention to exclude” the true owner and of “effective exclusion” of that owner. [31]
70In this case the land designated for the right of way was subject to various ownership rights. The Moores own the land. That is the fee in the “subservient tenement” over which the right of way is granted and they appear to hold this strip of land for no other purpose. The other owners with access rights own the right to pass over that land for the purpose of accessing their properties. Neither the true owner nor individuals with rights of passage would be required to occupy every inch of the land in order to preserve their rights. [32] To prove exclusion, the plaintiffs would have to prove that the actions of their predecessors in title were such as to prevent the owner or the other cottagers from using the property had they chosen to do so.
71Bear in mind that the area occupied by Mr. Vaudry and successive owners was simply the area between the travelled portion of the roadway and the cottage. The owner had created a strip of land over which the cottage owners had a right of passage but just like a road allowance, the road did not occupy the entirety of the designated land. The question is whether locating the outhouse beside the road, allowing trees to grow, and using the land is sufficient. Can these acts be said to exclude the rights of the owner of the land or the rights of those with the right of passage from requiring the outhouse be moved and the trees cut down if it was necessary to widen the road or to relocate it? There is no evidence that the previous owners meant to extinguish the right of way or that it should have been obvious that was their intention. It is neither clear that the owners of the cottage intended this result nor that the Moores or the other cottagers should have assumed this to be the case.
72Intention is critical and permission is fatal. [33] The evidence that Mr. Hunt asked that the outhouse be moved to the other side of the road when the Moores originally sold Mr. Hunt his land raises an inference that the outhouse was originally put in the new location with the consent of the Moores. Obviously Howard Moore and his father before him always knew where the outhouse was located and never saw any reason to demand that it be moved. The plaintiffs have the onus to prove that the occupation of the land was without permission just as the plaintiffs have the onus to prove the intent of their predecessors in title to occupy it as owners. While intent can be inferred and often must be, the failure to call evidence from predecessors in title is troubling. There was no evidence to demonstrate that such evidence would have been difficult or impossible to obtain.
73The use made of the land by the cottage owners was not clearly use intended to permanently exclude the rights of the registered owners of the fee or of the right of way. It was not obviously inconsistent with their rights. In the recent case of Pepper v. Brooker, 2017 ONCA 532 the Court of Appeal stressed the need for the plaintiff to prove effective exclusion of the rightful owner. Failure to meet this burden was fatal to the Peppers and I find that it is also fatal to the Armstrongs.
Rights to an Easement and other issues raised in argument
74Adverse possession is not the only property right that may be established by the passage of time. It is possible that the owners of the cottage established a lesser right than absolute ownership. In Bailey v. Barbour for example, the court found that the plaintiffs had established a right of way for the purpose of walking to an island but not driving. Easements can also arise by prescription (prior to the land coming into land titles). An easement can theoretically be for any purpose so long as it could form the subject matter of a grant.
75Counsel for the plaintiffs argued that the plaintiffs might have established some form of easement. Mr. Griffiths acknowledged this is possible but argued that it was not pleaded and different evidence would have been called if it had been. It is true that easement was not pleaded and that a right to an easement requires different tests than adverse possession. [35] I agree that different evidence would probably have been required in response.
76I was not asked to permit a pleading amendment although it is possible to do so even at trial and in some cases pleadings have been amended on the judge’s own motion. This is to permit justice to be done and to avoid a claim with merit being defeated on a narrow technical basis. [36]
77The power of the court to amend pleadings should not be interpreted to mean that the pleadings are unimportant nor to encourage lack of precision. It is a fundamental principle of justice that all parties should know the case they have to meet. It would be highly prejudicial and unjust for the court to permit parties to be taken by surprize through last minute introduction of new issues, undisclosed evidence or demands for relief for which there has never been notice. [37]
78It would have been inappropriate to allow a pleading amendment at this late date. Not only would that have been prejudicial to the defendants, reopening the pleadings would have required notice to all of the defendants who chose not to defend the action as originally framed.
79This is unfortunate for all concerned. The Armstrongs are not the owners of the land but rights of some description cannot be ruled out. This is one of the issues I mentioned earlier that was not before the court.
80A similar issue arises in relation to Howard Moore’s fence or actions he took that had the effect of blocking or narrowing the roadway. It was suggested to me that a prescriptive easement had been established over the corner of the Hunt / Hierlihy property in favour of the other properties using the access road. That may well be so but the question is not before me. I do not know if the road “cut the corner” for more than 20 years or whether the other indicia of prescriptive easement were present. [38]
81Similarly, some of Mr. Moore’s actions may have been in breach of the Road Access Act, RSO 1990, c. R.34. [39] Yet none of the other defendants crossclaimed against the Moores. No relief is sought against Howard Moore in this action in relation to obstruction of the road, the lands he acquired from the Hierlihys, his right to build a fence or the rights of the other property owners. Those issues, if they are issues, are not before this court at this time.
82I mention them only because they were mentioned in argument and I am not making any findings or drawing any conclusions. I am not to be taken as encouraging further litigation.
Summary & Conclusion
83In conclusion, there will be judgment against Robert Moore for $7,000.00 and against Howard Moore for $8,000.00. The remaining requests for relief in both actions are dismissed.
84These damages are well within the small claims court limits. I encourage the parties and their counsel to settle costs amongst themselves. If costs cannot be settled, counsel are to notify my office and are to obtain further directions.
85In the event I do not hear from counsel by December 21st, 2018 I will presume that costs have been resolved and there will be no order as to costs.
Mr. Justice C. MacLeod Date: November 27, 2018
Appendix A – Sketch attached to Instrument 15829 conveying land to Sevare Vaudry in 1951.
By way of reference, the Armstrong Cottage is lot “E”, Robert Moore’s land includes the land “supposed to be described in instrument 11009” and Donald Demers’ land is the lots described as Lots “A” and “B”
Appendix B – Sketch attached to deeds creating second right of way in 1957.
The land shown as “Demers”, Lot “C” is the property now owned by Carolee Hoffman. The Hunt land was later owned by the Hierlihys and now by Howard Moore. The Armstrong cottage is Lot “E”
Appendix C – Preliminary sketch prepared for H. Moore by Adam Kasprzak, OLS,
This sketch shows the travelled portion of the right of way (dotted lines), the location of outhouse, the location of Donald Demers’ hedge and boundaries of the deeded right of ways. The sketch also contains the erroneous reference to PIN 57191-0050 (LT).
Appendix D – Updated preliminary sketch prepared by Adam Kasprzak, OLS
This sketch shows the correct PIN numbers, and illustrates Robert Moore’s property as well as the location of the outhouse.
Appendix E – list of witnesses called at trial not including discovery read ins
Armstrong v. Moore – list of witnesses
| Witness Called By: | Name | Affidavit Evidence | Oral Testimony |
|---|---|---|---|
| Plaintiffs | William Armstrong | Yes | Yes |
| Plaintiffs | Teresa Armstrong | Yes | Yes |
| Plaintiffs | Jeannette Hierlihy | Yes | Yes |
| Plaintiffs | Lawrence Hierlihy | Yes | Yes |
| Plaintiffs | Donald Demers | Yes | Yes |
| Plaintiffs | Breck Demers | Yes | No |
| Plaintiffs | Steven Webster, P. Eng. | Yes | Yes |
| Plaintiffs | Robert MacKinnon – well driller | Yes | Yes |
| Plaintiffs | Marty Price – septic installer | No | Yes |
| Plaintiffs | Philip Holmes - bailiff | Yes | Yes |
| Plaintiffs | Ian Johnston - arborist | No | Yes |
| Plaintiffs | Adam Kazperzak, OLS | No | Yes |
| Defendants | Howard Moore | Yes | Yes |
| Defendants | Robert Moore | Yes | Yes |
| Defendants | Lisa Coutu | Yes | Yes |
| Defendants | Douglas Schutlz, CBO | No | Yes |
Appendix F – Summary of Relevant Chains of Title
Moore Lands including what is now the Right of Way – Lot 19
| Date of Transfer or Registration | Transfer To: | Instrument |
|---|---|---|
| Oct 13, 1857 | William Moore Jr. | Crown Patent |
| Dec 22, 1888 | John Bowes Moore | Will |
| March 4, 1948 | William P. Moore | Grant – Inst. No. 15117 |
| January 16, 1969 | Howard Moore | Quit Claim – Inst. No. 98071+ additional QC in 1975 |
| June 12, 1987 | Howard Moore & Laureen Moore | Grant – Inst. No. 278566 |
| October 13, 1998 | Brought into Land Titles |
Armstrong Cottage – “Lot E”
| Date of Transfer or Registration | Transfer To: | Instrument |
|---|---|---|
| July 7, 1953 | Sevare Vaudry | Grant – Inst. No. 15829 |
| June 13, 1978 | Percy Jansen | Grant – Inst. No. 183556 |
| August 8, 1991 | Connie Jansen | Transfer – Inst. No. 334330 |
| July 26, 1996 | Kevin & Dianne Holden | Transfer – Inst. No. 399501 |
| October 13, 1998 | Brought into Land Titles | |
| Feb 28, 2002 | James & Heidi Martell | Transfer – LT36128 |
| May 30, 2003 | Bram Champagne | Transfer – RE4583 |
| Aug 19, 2003 | William & Teresa Armstrong | Transfer – RE6296 |
Donald Demers’ land – “Lot A”
| Date of Transfer or Registration | Transfer To: | Instrument |
|---|---|---|
| July 4, 1951 | Florence Hutchison | Grant - 15699 |
| Aug 29, 1997 | Donald Demers | Transfer - 413298 |
| October 13, 1998 | Brought into Land Titles |
Donald Demers’ Land – “Lot B”
| Date of Transfer or Registration | Transfer To: | Instrument |
|---|---|---|
| July 4, 1951 | Arain Taris & Florence Hutchison | Grant - 15700 |
| Mar 29, 1966 | Florence Hutchinson | Grant 80852 |
| Aug 29, 1997 | Donald Demers | Transfer - 413298 |
| October 13, 1998 | Brought into Land Titles |
Carolee Hoffman’s Land – “Lot C”
| Date of Transfer or Registration | Transfer To: | Instrument |
|---|---|---|
| July 22, 1952 | Napoleon Demers | Grant - 16325 |
| Feb 16, 1995 | Donald Demers | 383109 |
| Aug 29, 1997 | Carolee Hofman | Transfer - 413297 |
| October 13, 1998 | Brought into Land Titles |
Hunt Lands – Now owned by Howard Moore
| Date of Transfer or Registration | Transfer To: | Instrument |
|---|---|---|
| August 15, 1956 | Edgar Hunt | Grant - 16283 |
| May 6, 1970 | Laurence & Jeannette Hierlihy | Grant - 108217 |
| October 13, 1998 | Brought into Land Titles |
Footnotes
1Lower Allumette Lake is the south branch of the Ottawa River where it flows around Allumette Island / Ile aux Allumettes. Westmeath Township is now part of the amalgamated Township of Whitewater Region, Renfrew County, Ontario.
2By instrument no. 15829. Appendix A is a sketch attached to that deed. The land in question is “Lot E”
3The Moore lands have been in the family for at least four generations. Howard’s great grandfather received the crown patent to lots 19 & 20 in 1857. See Appendix F
4An “earth pit privy” is recognized as a “Class 1 septic system” under the Building Code.
5In law, the owners of the “dominant tenements”
6S. 4 & 15, Real Property Limitations Act, RSO 1990, c L.15
7S. 51 (1). Land Titles Act, R.S.O. 1990, c. L.5 as amended. In contrast to the Registry Act, the Land Titles Act is a system of registration and certification of title often referred to as a “Torrens System”. See Taylor, G., The Law of the Land: The Advent of the Torrens System in Canada, 2008, Osgoode Society for Canadian Legal History.
8See qualifications on title shown on the register for PIN No. 57191-0043, Exhibit 25 and s. 37 (1) and (2) and s. 46 (1) , Land Titles Act.
9Donald Demers’ claim was ultimately successful. See 2015 ONSC 2892 for details
10See reasons for status hearing at 2013 ONSC 2714. The action was to be set down by November 18, 2013
11I believe the first time was because counsel was ill and the second time because of lack of judicial resources.
12Summary trials were first introduced as part of Rule 76 in 2001. More recently Rule 50.07 (1) (c) and Rule 20.05 (2) (f) encourage the use of affidavits in any trial where it appears appropriate.
13See Appendix E
14See Appendices A and B
15See Appendices A & B attached. The Armstrong land is the lot shown as 60’ x 40’ and labelled as Lot E on those sketches. See also Appendix F
16Instruments 15699 & 15700 – these are Lots A & B on Appendix A & B attached
17Instrument 413298, Tab B of Exhibit 9
18Instrument 413297-See Appendix F
19Resolved by consulting the online version at www.onland.ca See Renfrew (49), Westmeath, Book 150, p. 101. Properly speaking the original abstract book should have been requisitioned from the Registry Office.
20La Forest, G.V. in Anger & Honsberger Law of Real Property, third edition, Thomson Reuters, 2017, para. 19.60 “Surface Waters at Common Law”
21Johnson, G.T., Extinguishment of Title, in Anger & Honsberger, ibid
22Bearing in mind that they only paid $38,000.00 for the cottage.
23Instrument 16283
24The previous Chief Building Official was not called. He is available as he is currently the CBO in Arnprior.
25Elder v. Kingston, [1954] O.R. 397 (CA)
26Howard admitted on discovery that some of the trees were 50 years old.
27Spasic Estate v. Imperial Tobacco Ltd., (2000) 49 O.R. (3d) 699 (CA) and see Zahab v. Salvation Army in Canada, [2008] O.J. No. 3250 (Master)
28Zahab, supra, [2008] O.J. No. 3250 (Master)
29See Bailey v. Barbour, 2016 ONCA 98, [2016] O.J. No. 3261 (CA)
30Peixeiro v. Haberman, [1997] 3 S.C.R. 549 @ para 37
31McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 53 R.P.R (5th) 169 at para. 9.
32Bailey v. Barbour, supra, @ para 45 - 50
33See Goode v. Hudon, [2005] O.J. No. 1836 (SCJ)
34Pepper v. Brooker, 2017 ONCA 532, 139 O.R. (3d) 67 (CA)
35See s. 31, Real Property Limitations Act, supra. Whereas “adverse possession” represents a loss of rights by the owner, easement by prescription represents establishment of a positive right against the owner and requires that it be “enjoyed by any person claiming right thereto without interruption for the full period of twenty years”.
36O’Byrne v. Farmers’ Mutual Insurance Co., 2014 ONCA 543; (2014) 121 O.R. (3d) 387 (CA) see paras. 21 - 24
37Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. of Canada, (1998) 41 O.R. (3d) 528 (CA)
38See Barbour v. Bailey, supra and Kaminskas v. Storm, 2009 ONCA 98
39Road Access Act, RSO 1990, c. R.34 as amended
