ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WILLIAM KEYS
Applicant
– and –
CHRISTOPHER REID
Respondent
Michael W. Carlson, for the Applicant
Harvey J. Ash, for the Respondent
HEARD: January 30, 2018
B.A. ALLEN J.
REASONS FOR DECISION
BACKGROUND
1William Keys, the Applicant, brings this application under Rule 14.05 of the Rules of Civil Procedure for a decision on a claim of adverse possession of land between his backyard at 35 Chisholm Ave., a property owned by him, and the next door backyard at 31 Chisholm Ave., owned by the Respondent, Christopher Reid.
2In support of the Application, affidavits were sworn by Mr. Keys and his father William Keys. The Respondent, Mr. Reid, also swore an affidavit.
3Mr. Keys’ great grandparents purchased 35 Chisholm Ave. in 1923. Successive family members owned and resided on the property up until the present. Mr. Keys’ father, who was born and raised at the home, stated that a fence divided the backyards throughout the years he lived at the property. Mr. Keys’ evidence was also that a fence has divided the properties during the time he has lived at the home. Mr. Keys produced a survey dated in 1966 which demonstrates the uninterrupted use of this fence from at least that point in time.
4The fence had always been a wire mesh fence with wooden posts. The evidence is that Mr. Keys and his father replaced wooden boards and the wooden poles of the fence in 1980. The old wire mesh was affixed to the new posts. The grandfather placed the new wooden posts in the same holes from which the old posts had been removed.
5The father stated that there has never been a discussion with him about the property line and the fence. It is the father’s evidence that the location of the fence was never an issue until Mr. Reid had his contractors demolish the fence and rebuild a new one in 2014. This is the action by Mr. Reid that gives rise to this Application.
6It is Mr. Keys’ evidence that Mr. Reid did not give notice to him that he was going to demolish the fence. Mr. Reid had a survey conducted in 2014 which reveals that the fence built and sustained over the years by Mr. Keys’ family encroaches on Mr. Reid’s property. There is no dispute about that. Mr. Reid did not provide the 2014 survey to Mr. Keys until the demolition was complete which meant Mr. Keys was not able to commission his own survey of the property line before Mr. Reid’s construction.
THE LAW ON ADVERSE POSSESSION AND THE ANALYSIS
7Mr. Keys had a survey done in 2016 in relation to this Application. The survey delineates the area of land that is the subject matter of this dispute identified as PART 1 on Plan 66R-29287 (”PART 1”).
8There is no dispute that by force of s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 the Keys family’s possessory rights by way of adverse possession crystallized before the coming into force of the Land Titles system in 2001. The parties do not disagree that the statutory ten-year period would have crystallized during any of the ten-year periods from at least the time of the 1966 survey and maybe even as far back as 1923 until the date of conversion of the Land Registry System to the Land Titles System.
9For a claim for adverse possession to succeed a claimant must satisfy that, during the statutory period, the claimant satisfied the following tests set down by the Ontario Court of Appeal in Keefer v. Arillotta:
a) actual possession for the statutory period by themselves and through those they claim;
b) that such possession was with the intention of excluding from possession the owner or persons entitled to possession; and
c) discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession
10All three requirements must be satisfied.
11Actual possession is a fact-driven determination. Our court in Mueller and Mueller v. Lee cited an earlier Ontario Court of Appeal decision and its insight on the meaning of actual possession. Possession must be all of: “open, notorious, peaceful, adverse, exclusive, actual, and continuous having regard to the nature of the disputed property”: [Mueller v. Lee 2007 CarswellOnt 4194, at para. 14, (Ont. S.C.J.)].
12As for actual possession the evidence is that the fence extended from the gate at the top of the backyard near the house to the end of the property beyond the garage. The fence enclosed the disputed land in the Keys’ backyard from at least 1966 and perhaps as far back as 1923. There is no evidence to contradict this. This to my mind establishes Mr. Keys’ and his predecessors’ had actual possession of the disputed land.
13Intention to exclude is reflected by the fact the work on the fence done by Mr. Keys and his father in 1980 was done without consultation with or participation by Mr. Reid’s predecessors in title. According to Mr. Keys and his father, there has never been a discussion between the Keys family and Mr. Reid or his predecessors in title about the fence and its place in relation to the property line. I find this shows an evident intention to exclude Mr. Reid and his predecessors in title from the land.
14Fences provide a persuasive indicator of intention to exclude as pointed out by a decision of this court:
There are of course a number of cases involving fence lines in particular. The case of Murdoch v. Kenehan [2003 CarswellOnt 930 (Ont. S.C.J.], 2003 286] is such a case. Heeney J. noted in that case that while there is “no magic in the lack of a fence, the presence of a fence is still regarded as strong evidence of an intent to exclude.” (at para. 43). There, as here, the evidence established that the fence was used as an actual boundary by the parties with both sides using their respective areas on either side of the fence” as a yard to service a single family residence” with “both owners maintain[ing] the property on their side of the fence consistent with that intended use.
[author’s emphasis]
[Heng v. Rodriguez 2015 CarswellOnt 4495, at 32, (Ont. S.C.J.)]
15I think the passage from Heng v. Rodriguez aptly describes the circumstances before me.
16The intention to exclude has a low threshold when the true owner and the claimant both have a mistaken belief that the claimant owns the disputed land. There is a high threshold where the claimant is a trespasser with an intention to own property that belongs to someone else: Teis v. Ancaster (City) (1997), 1997 1688 (ON CA), 35 O.R. (3d) 216, at p. 225, (Ont. C.A.).
17I agree with Mr. Keys’ position that this is a case of mutual mistake. There is no evidence that either party was aware of the encroachment of the fence onto the Reid property. Mr. Reid admits there is no evidence that his predecessors knew that the Keys were encroaching on their property. The first time that encroachment came to the attention of Mr. Reid was when he had the 2014 survey done. This was the first time that the fence and the property line became a focus of attention. It was not until after the demolition of the fence that Mr. Keys learned of the encroachment.
18To support an argument that Mr. Keys had knowledge of the encroachment, Mr. Reid advanced the fact that Mr. Keys himself produced the 1966 survey for this motion. However, this to my mind is far from sufficient to prove that point. There is no evidence as to when or from where Mr. Keys obtained that survey. I accept Mr. Keys’ and his father’s sworn evidence that they were mistaken until 2014 as to Mr. Reid’s ownership of the disputed property.
19Mr. Keys therefore benefits from the lower threshold that mutual mistake affords.
20On the factor of discontinuance, otherwise referred to as “effective exclusion”, the true owner has to be out of possession or ousted from the property at issue: [Mueller v. Lee, at para. 24]
21There is no evidence to dispute that Mr. Keys and his family members who previously held title were continuously in possession of the disputed land from at least 1966 or as far back as 1923. There is nothing that contradicts that there was no discontinuance of possession by the Keys over the many years the fence was in place. Discontinuance did not occur until the new fence was erected in 2014. The discontinuance test has therefore been satisfied.
22Contrary to the sworn evidence of Mr. Keys and his father, Mr. Reid asserted that Mr. Keys acquiesced in the demolition of the fence and the erection of a new fence on the property line. He referred to his application in July 2014 before the Committee of Adjustment seeking permission for the demolition of his garage and for the construction of a new garage. In evidence is a consent document addressed to the Committee that Mr. Keys and others signed indicating their lack of objection to the proposed garage at 31 Chisholm Ave.
23This is not evidence of the acquiesce alleged by Mr. Reid. I accept Mr. Keys’ and his father’s evidence that they did not agree to their fence being demolished and a new fence being built along the property line. Mr. Reid’s assertion runs counter to the Keys’ other evidence.
24Mr. Reid also raised an argument about the width of the encroachment onto his land. He pointed out the width of the land in question was at most six inches. He brought figures to court, not disputed by Mr. Keys that were derived from comparing the 1966 survey with the 2014 survey to show that over time the encroachment varied from some 2 inches to 6 inches. This Mr. Reid posited was because the fence’s position in relation to the property line shifted at times by small amounts.
25I am not certain this impacts Mr. Keys’ position that he has adverse possessory right to the property the fence encroached on over many years, unknown to both him and Mr. Reid. The Parcel Register prepared on June 28, 2016 filed by Mr. Keys identifies the area of land that is the subject matter of this dispute as PART 1 on Plan 66R-29287. That is the area of land to which I find Mr. Keys has a crystallized adverse possessory right.
ORDER
26This Court Orders:
a) that the Application is granted;
b) that the Applicant, William Keys, is the lawful owner by virtue of adverse possession of Part 1, PLAN 66R29287 which forms part of the premises municipally identified as 31 Chisholm Avenue, Toronto, Ontario and legally identified as PIN10429-0481, PT LT 60 PL 1368 TORONTO (EAST TORONTO) AS IN CA640380; CITY OF TORONTO; and
c) that the Land Registrar for the City of Toronto amend the Parcel Register for the affected properties to give effect to the Orders granted herein.
COSTS
27I award costs in favour of the Applicant. I have received Cost Outlines from both parties. I suggest the parties attempt to settle costs on their own failing which the parties shall file their Costs Submissions within 20 days of this Order. The parties shall promptly advise of any settlement reached. The submissions should be of a length no greater than 3 pages, double-spaced, Time New Roman, 12 pt.
B.A. ALLEN J.
Released: February 7, 2018
COURT FILE NO.: CV-17-578963
DATE: 20180207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WILLIAM KEYS
Applicant
– and –
CHRISTOPHER REID
Respondent
REASONS FOR DECISION
B.A. ALLEN J.
Released: February 7, 2018