Court File and Parties

Court File No.: SR-17-005 Date: 2019-04-08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Egons Znotins, Plaintiff Ross Thomson, for the Plaintiff

- and -

Luigino Evangelisti and Luisa Evangelisti, Defendants George Florea and Barry Reese, for the Defendants

HEARD: April 1 and 3, 2019

REASONS FOR JUDGMENT

Sproat J.

I. Introduction

[1] The Plaintiff claims to be entitled to certain lands by adverse possession.

[2] The parties are each the registered owner of rectangular lots, of approximately 60 acres each, which are beside each other. The plaintiff owns what was referred to as the Part 2 land located east of the defendants’ Part 1 land. Part 2 is largely pasture with some wooded areas. The plaintiff’s daughter Rosemary Bennett acquired the Part 2 land in 2001 and immediately erected a barn to house horses which grazed in the pasture on Part 2. She seeded the land and took off hay every year to feed the horses. In 2007 she sold Part 2 to the plaintiff who continued to use the land as before.

[3] The defendants purchased Lot 1 in 2014. A survey they obtained in 2016 revealed that two westerly “fingers’” of the Part 2 pasture extended into Part 1. This is referred to as the Disputed Area.

II. Chronology

July 8, 1993 - Maciags purchased Parts 1 and 2 for investment purposes.

July 14, 1997 - Part 2 conveyed to Malfara who purchased for investment purposes.

• Maciag and wife continue to jointly own Part 1.

March – April, 1998 - Ertl O.L.S. does survey showing straight line boundary between Parts 1 and 2.

May 18, 2001 - Plaintiff’s daughter Rosemary purchased Part 2 from Malfara. She received a copy of the survey.

September 7, 2001 - Maciag conveyed Part 1 to Williams and Lawrence.

May 7, 2007 - Plaintiff purchased Part 2 from his daughter.

June 22, 2009 - Parts 1 and 2 converted into Land Titles.

September 15, 2014 - Evangelistis purchase Part 1 from Williams and Lawrence.

November, 2015 - Evangelistis’ son notices the plaintiff in the Disputed Area and in speaking to him realizes that there is a boundary dispute.

2016 - Evangelistis obtain survey showing the Disputed Area is part of Part 1.

III. Evidence at Summary Trial

[4] This was a summary trial and all witnesses filed an affidavit setting out their evidence in chief. The witnesses were asked a few supplemental questions in chief and were subject to cross-examination and re-examination.

[5] The plaintiff, and his daughter Rosemary who had originally purchased Part 2 in 2001, both gave evidence that:

a) Part 2 was purchased and put to its intended use of providing an area for horses to graze and to grow hay for the horses to eat. Upon purchasing Part 2 a barn was erected and at some point a house trailer was brought on to the land.

b) When Part 2 was purchased they had a survey but did not know where on the land the actual westerly boundary of Part 2 was located. Soon after the purchase they discovered an old wire fence running through a forested area and assumed that was the westerly boundary.

c) Rosemary Bennett’s evidence was that Mr. Boynton, the real estate agent for the seller, told her that Part 2 extended “as far as you can see” in the direction of the forest, meaning all of the pasture land. In other words she was told that Part 2 included the Disputed Area.

d) The plaintiffs testified they seeded different parts of the pasture including the Disputed Area, every few years, focusing on areas not producing good quality hay. They took hay off the land, including the Disputed Area, every year to feed the horses.

e) They found corn husks on Part 2 and the Disputed Area, and “ancient” rusted farm equipment which suggested that a prior owner had made productive use of the Disputed Area for farming.

[6] The defendants’ son Giuseppe Evangelisti provided evidence that he was involved in the purchase of Part 1 by his parents. Prior to the purchase they were unaware of the exact boundaries. No one had pointed them out. Following the purchase, however, he went out with the listing agent Mr. Boynton and measured the frontage so that he had a good idea as to where the boundary was located.

[7] Mr. Evangelisti’s evidence was that he had driven on the public road that fronts Parts 1 and 2 on numerous occasions and it was not apparent to him that the plaintiff was using the Disputed Area. In November of 2015, however, he noticed Mr. Znotins in the Disputed Area. He had a brief conversation with him in which Mr. Znotins suggested that he owned the Disputed Area.

[8] This prompted the defendants to obtain a second survey in the course of which the surveyor staked the boundary line which made it clear that the Disputed Area was part of Part 1 owned by the defendants.

[9] Robert Maciag gave evidence that he and his wife purchased Parts 1 and 2 in 1993. Mr. Maciag testified that he went to the property two or three times prior to purchasing it in 1993. He had no recollection of ever going back to the property after the purchase. Mr. Maciag sold Part 2 to Rocco Malfara in 1997. Mr. Maciag and his wife sold Part 1 in 2001 to Anella Williams and Frank Lawrence.

[10] Rocco Malfara’s evidence was that he purchased Part 2 in 1997 for investment purposes. He was only on the property on two occasions during the approximately four years he owned the property. The first time to meet a surveyor and the second time when he was attempting to obtain a severance. He did not farm the property or put it to any other use. I will provide additional detail regarding his evidence as part of my analysis.

[11] Mr. Boynton, who was the realtor who listed Part 2 for Mr. Malfara, testified that he recalled going to the property with Ms. Bennett and telling her it looked logical that all of the pasture would be part of Lot 2 but that he would measure. He recalled measuring the frontage with his vehicle and then with a 100’ tape which resulted in him finding the surveyor’s stake marking the boundary. He then attached tape to a fence to mark the boundary. Mr. Boynton is an experienced realtor. I think it improbable he would give anyone an assurance as to where a boundary was without measuring it much less make an imprecise statement such as “as far as you can see”. I accept Mr. Boynton’s version of his conversation with Ms. Bennett.

[12] Ms. Bennett testified that Mr. Boynton did not speak to her between the time of their visit and the closing of the transaction. While it is somewhat surprising she would not follow up on the boundary issue her evidence was not contradicted. Understandably Mr. Boynton agreed he had only a vague recollection of these events after 18 years.

IV. The Law

[13] In Mueller v. Lee, [2007] O.J. No. 2543 Perell J. summarized the general principles as follows:

[12] The three requirements of an adverse possession claim are:

(1) the claimant and or his predecessors 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.

[13] Each of the three requirements is qualified or explained by the case law.

[14] 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: Teis v. Ancaster, supra. This is the control or factum part of legal possession.

[15] 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: Walker v. Russell, 1965 250 (ON SC), [1966] 1 O.R. 197 (H.C.J.); Laing v. Moran, 1951 74 (ON CA), [1952] O.R. 215 (C.A.). Professor Bruce Ziff in his text Principles of Property Law (3rd ed.) (Toronto: Carswell, 2000) states at p.126:

In general, the squatter must use the property as the owner might. Looked at another way, the adverse use must be such as to put the paper owner on notice that a cause of action has arisen. After all, the doctrine is based on the failure to take action within the limitation period, and therefore time should not run unless it is fair to hold a delay against the owner. This is reflected in the requirement that the occupation must be open and notorious, and not clandestine. The adverse possessor must send out a clarion call to the owner, who, if listening, should realize that something is awry. If the adverse possession continues, the owner must commence an action within the limitation period to avoid being statute barred.

[16] 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: Teis v. Ancaster, supra; 1636539 Ontario Inc. v. W. Bradfield Ltd. 2007 8013 (Ont. S.C.J.). Adversity means that the claimant is in possession without the authorization or permission of the titleholder: Teis v. Ancaster, supra; Beaudoin v. Aubin (1981), 1981 1758 (ON SC), 33 O.R. (2d) 604 (H.C.J.); Rowe-Wilkinson v. McDougall Wright 2004 48872 (Ont. S.C.J.). The adversity aspect may be problematic because just as giving may be overrun by taking, with the passage of time, permission may be overrun by appropriation.

[17] Actual possession can be established by use, and it is not necessary to build improvements or to enclose lands by a fence or barrier: Laing v. Moran, supra; Clarke v. Babbitt 1927 1 (SCC), [1927], 2 D.L.R. 7 (S.C.C.). This point is demonstrated by Laing v. Moran, supra, 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: farming the land: Teis v. Ancaster, supra; establishing a laneway to move farm equipment even if the use of the laneway is shared by the public: Teis v. Ancaster, supra. Enclosure is the strongest possible evidence of possession, but it is not indispensable: Seddon v. Smith (1877), 36 L.T. 168 at p. 169.

[18] Use is sufficient to establish possession, but use is not necessary to establish possession. This point is also demonstrated by Laing v. Moran, supra, where the Court of Appeal held that the construction of a garage was actual possession of the land covered by the garage and that use or non-use of the garage was irrelevant.

[19] 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.

[20] 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: Teis v. Ancaster, supra. As Laskin, J.A. explained in Teis v. Ancaster, 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.

[21] 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: Teis v. Ancaster, supra; Carrozzi v. Guo 2002 42513 (Ont. S.C.J.).

[22] 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: Keefer v. Arillotta, supra; Fletcher v. Storoschuk (1981), 1981 1724 (ON CA), 35 O.R. (2d) 722 (C.A.); Leigh v. Jack (1879), 5 Ex. D. 264. In other words, in trespasser cases, the claimant must show “inconsistent use” having regard to the intentions of the owner or paper titleholder: Masidon Investments Ltd. v. Ham (1984), 1984 1877 (ON CA), 45 O.R. (2d) 563 (C.A.). Many commentators have noted that if the owner’s use is just to hold the land for future development, it is extremely difficult for the claimant to show an inconsistent use.

[23] In Ontario, the “inconsistent use” aspect is not required in the mutual mistake cases where the claimant and the paper titleholder mistakenly believe that the claimant owns the land in dispute: Teis v. Ancaster, supra; Wood v. Gateway of Uxbridge Properties Inc. (1990), 1990 6786 (ON SC), 75 O.R. (2d) 769 (Gen. Div.), and, as discussed below, inconsistent use may not be required in some cases of unilateral mistake: see Bradford Investments (1963) Ltd. v. Fama, supra.

[24] The third requirement for a possessory title is that the true owner be out of possession. Here it may be noted that the Court of Appeal in Masidon Investments Ltd. v. Ham, supra, rephrased the third element of the test to speak of “effective exclusion” rather than discontinuance of possession. However, phrased, the heart of the third element is that the true owner must be ousted or be out of possession.

[25] Similar to the inconsistent use requirement, 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: Laing v. Moran, supra. However, absence of objection to the use or occupation of the disputed lands may be evidence that the true owner has been dispossessed: Laing v. Moran, supra and may base an inference that the true owner believed that the disputed lands were the property of the claimant: Keil v. 762098 Ontario Inc., [1989] O.J. No. 866 (S.C.J.); affd. (1992), 24 R.P.R. (2d) 244 (Ont. C.A.).

[26] If the true owner believes that the land belongs to the claimant, then the true owner has been effectively excluded from possession: Wood v. Gateway of Uxbridge Properties Inc., supra at paras. 56-59. This is a point worth emphasizing because it highlights that it is substantially easier to establish a possessory title in cases of mutual mistake then in cases of trespass. Since the true owner does not believe that he or she owns the land, it follows that he or she cannot have the intention to possess it, and thus the true owner is out of legal possession because he or she is not exercising control over the property (factum) and he or she lacks the intention to possess (animus possidendi). Further, a finding of a mutual mistake about who owns the land negates not only the added requirement that the claimant show an “inconsistent use,” it also negates the argument that the claimant’s use of the land was permissive and just an act of neighbourliness. Moreover, it negates the arguments that any use of the disputed property ended the exclusivity of possession of the claimant or was a proprietary act by the true owner. Thus, in cases of mutual mistake, it is easier to establish a possessory title, and the focus of attention will be on the classical elements of legal possession and whether the claimant manifested sufficient control of the property.

V. Analysis

[14] Mr. Thomson acknowledges that to succeed the plaintiff must prove that he or his predecessors on title were in continuous and adverse possession of the Disputed Area for the ten year period ending on June 22, 2009 being the date that Parts 1 and 2 were converted to Land Titles.

[15] As the adverse possession must be continuous for 10 years I will focus on whether Mr. Malfara was in adverse possession of the Disputed Area from June 22, 1999 (the start of the 10 year period) until May 18, 2001 when he sold Part 2 to Rosemary Bennett.

[16] Mr. Malfara was an independent witness and his evidence was not seriously challenged in cross-examination. I accept his evidence and find that he purchased the land for investment purposes and that he did not actually use the land for any purpose.

[17] Mr. Malfara testified in chief that when he purchased the property a real estate agent showed him the boundary line which he recollected was indicated by an orange tag on a fence post. In that event he was aware of the actual boundary. In cross-examination he said the orange tag may have been put on after he purchased when he had the property surveyed for severance purposes. So Mr. Malfara either knew the correct boundary from the outset or was unaware of and indifferent as to the location of the boundary up to the survey. In either case there was no mutual mistake as he either had no opinion as to the location of the boundary or he in fact knew the correct location.

[18] As discussed in Mueller the first requirement for adverse possession is that the claimant or the predecessor be in actual possession of the land. Mueller refers to the necessity that the possession be “open, notorious, peaceful, adverse, exclusive, actual and continuous…”.

[19] Mr. Malfara was only on the Part 2 property two times after he purchased it. There is no evidence to suggest that he ever set foot in the Part 1 Disputed Area. I find that at no time was Mr. Malfara in possession of the Disputed Area so the first essential requirement for adverse possession is not established.

[20] The second requirement is that Mr. Malfara have had an intention to exclude the owners of Part 1. This is not a case of mutual mistake in which there is a low threshold of proof required. If Mr. Malfara knew the true boundary he certainly had no intention of encroaching upon Part 1. If he had no opinion as to where the boundary was the result is the same. He never had any intention to exclude the Part 1 owner from the Disputed Area. As such the second essential requirement for adverse possession is not established.

[21] The third requirement is that the owner of Part 1 be “ousted” or “disposed”. On the evidence nothing transpired that would end the possession of the owner of Part 1. As referred to in Mueller, paragraph 25, “the true owner has constructive possession unless disposed…” There is absolutely nothing that Mr. Malfara did to oust or dispose the owner of Part 1. As such the third essential element for adverse possession has not been established.

VI. Counterclaim

[22] The defendants counterclaimed for damages by reason of the plaintiff’s trespass on Part 1 over a period of approximately two years.

[23] The Disputed Area is not large and there is little indication that not having it available caused any significant loss of enjoyment to the defendants or conferred any significant benefit on the plaintiff. I, therefore, award $500 in damages to the defendants.

[24] The plaintiff also claimed an order requiring the parties to share equally the cost of erecting a standard agricultural fence on the lot line. This claim was not addressed in oral argument and would seem to be properly the subject of a Line Fences Act application. I will, however, remain seized on this issue if Mr. Florea wishes to provide written submissions, within 10 days, addressing my jurisdiction to grant, and the appropriateness of, this order. In the event he does, Mr. Thomson shall have 10 days to respond, and Mr. Florea a further 5 days to reply.

VII. Conclusion

[25] The plaintiff’s claim is dismissed. I make the requested declaration that the defendants are the owners of the Part 2 land free and clear of any interest, right or claim on the part of the plaintiff.

[26] The plaintiff continued to use the Disputed Area after a survey showed it was in Part 1. The plaintiff attempted to justify this by pleading that Mr. Malfara farmed the Disputed Area and that Mr. Malfara advised him that the Disputed Area was part of Part 2. These allegations were false and suggest the plaintiff was not acting in good faith. As such, I have a concern about him respecting the rights of the defendants. Further, the injunction is no hardship to the plaintiff. As such, I also grant a permanent injunction restraining the plaintiff from entering upon, or using in any manner, any of the Part 1 land.

[27] The parties agreed that the successful party in the main action should receive costs in the amount of $15,000. I, therefore, order the plaintiff to pay costs of $15,000 to the defendants.

Sproat J. Released: April 8, 2019