COURT FILE NO.: 57658/17 (St. Catharines) DATE: 20210105 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

FERNANDO SILVA CARDOSO and MARIA ILDEBERTA DO COUTO BOTELHO CARDOSO Applicants – and – DIANE BENJAMIN Respondent

Andrea M. Mannell, for the Applicants Andrea L. Parliament, for the Respondent

HEARD: November 26, 2020

R. A. Lococo J.

REASONS FOR JUDGMENT

I. Introduction

[1] The parties to this application are the registered owners of adjoining residential properties on Mountain Street in Grimsby. The residences are at the front (north end) of the properties, facing the street. The back portions of the properties ascend the Niagara Escarpment, up a steep incline.

[2] The applicants (or members of their family) have owned and occupied 46 Mountain for 55 years. The applicants claim ownership by adverse possession of a triangular parcel of land on their property’s eastern border, facing the street (referred to as the “Disputed Lands”). The respondent, the registered owner of 48 Mountain, holds legal title to the Disputed Lands. The northeast corner of the 46 Mountain residence encroaches on the Disputed Lands. The Disputed Lands also include additional property extending to the south and east of the 46 Mountain residence.

[3] The applicants say that their family had (and continues to have) actual possession of the whole of the Disputed Lands, to the exclusion of the registered owners, for the required ten-year period prior to the property’s transfer to the Land Titles system in March 2003. On that basis, the applicants say they are the rightful owners of the Disputed Lands by adverse possession.

[4] The respondent agrees in part. She concedes that the applicants have a lawful possessory claim to the following property (referred to in the respondent’s submissions and these Reasons as the “Common Grounds”): (i) the street-facing land on which the 46 Mountain residence encroaches, and (ii) a 10 foot side-yard to the east of the residence, running parallel to the residence from the street and meeting the (paper title) property line just beyond the end of the residence. The respondent is also prepared to provide the applicants an easement to and over stone steps providing access to the elevated back portion of the applicants’ property. However, the respondent disputes that the applicants have established continuous use of the balance of the Disputed Lands.

[5] For the reasons below, I have concluded that the applicants have established adverse possession of the Common Grounds (as the respondent concedes) but not the balance of the Disputed Lands.

II. Factual background

[6] The applicants Fernando Cardoso and Maria Cardoso have lived in the same residence on Mountain Street in Grimsby since 1971. Prior to their marriage, Maria lived with her parents immediately across the street, at the property known municipally as 46 Mountain. Her father acquired 46 Mountain in 1965. The property includes a one-storey residence believed to be constructed in the 1920s. Maria (at age 16) began living at 46 Mountain in 1966, when her family moved to Canada from Portugal to join her father.

[7] Maria’s parents continued to reside at 46 Mountain until the death of her father in 1994 and her mother in 1995. After her father’s death, the Cardosos’ children moved to the 46 Mountain residence, to accompany and care for Maria’s mother. The Cardosos’ son continues to reside at 46 Mountain to the present time. After the death of Maria’s mother, the Cardosos became the registered owners of 46 Mountain.

[8] Maria understands that prior to her moving to 46 Mountain in 1966, her father constructed rock stairs on the Disputed Lands southeast of the 46 Mountain residence, on steep and rocky land ascending the escarpment. Those steps provide access to the elevated portion of the property (south of the 46 Mountain residence), overlooking Lake Ontario.

[9] Immediately to the east of 46 Mountain is the property known municipally as 48 Mountain. The property includes a small one-storey residence, which is currently unoccupied and not connected to municipal services. The respondent Diane Benjamin is the registered owner. Her husband’s company, Property Partners & Associates Inc., acquired 48 Mountain in 2013 and transferred the property to the respondent in 2016.

[10] At the time Maria’s father purchased 46 Mountain in 1965, the owners and residents of 48 Mountain were Cora Robinson and Cecil Robinson. Mr. Robinson died in 2002, outliving his wife. Legal title to 48 Mountain converted to the Land Titles system on March 24, 2003. The following month, 48 Mountain was purchased by Christine Dwyer and Maria Oliveira, who used the property as a cottage. In 2008, they sold the property to Fernando Venitelli and Diane Venitelli, who planned to build a new home on the property. The Venitellis subsequently abandoned their plans and sold the property to Property Partners in May 2013.

[11] The respondent’s spouse deposed that after Property Partners acquired 48 Mountain in 2013, their intention was to build a new home on the property after demolishing the existing structure. He came to understand that only one building footprint would be acceptable to obtain required municipal approvals for the development plan, given environmental requirements, the property’s terrain, and the angle necessary for driveway access to the street. He also understood that in order to obtain required approvals, it would be necessary to build a retaining wall on the Disputed Lands. He was also aware of the neighbouring residence’s encroachment on the land over which Property Partners had legal title as well as the practical need to resolve the Cardosos’ property claim before proceeding with construction. After initial resolution attempts through counsel, Property Partners brought an application in August 2015 to determine the ownership issue. In October 2017, the Cardosos brought the current application, claiming ownership of the Disputed Lands by adverse possession. The original application was subsequently discontinued on consent, with costs to be determined by the outcome of the current application.

III. Legal principles – adverse possession

[12] Land ownership carries with it the right to occupy and make lawful use of the land. The legal owner is in constructive possession of the land even if not in actual possession of the whole of the land: see Fletcher v. Storoschuk (1981), 35 O.R. (2d) 722 (C.A.), at p. 725. However, the legal owner may be deprived of title by someone occupying the land who is able to establish adverse possession for the required statutory period.

[13] The statutory period to establish title by adverse possession is determined by ss. 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, and s. 51 of the Land Titles Act, R.S.O. 1990, c. L.5.

[14] Under s. 4 of the Real Property Limitations Act, a landowner’s ability to bring an action to recover land from someone occupying it (and able to establish adverse possession) expires ten years after the date when the landowner’s right to bring the action first arose. At the expiry of that period, the legal owner’s title to the property is extinguished: Real Property Limitations Act, s. 15. However, an occupier’s ability to claim adverse possession is significantly restricted for property in the Land Titles system. Property in Land Titles cannot be acquired by adverse possession unless the right arose from a valid adverse claim that existed at the time of first registration of the property in the system: see Land Titles Act, s. 51.

[15] In this case, the property at 48 Mountain was first registered in the Land Titles system on March 24, 2003. Therefore, in order to succeed, the applicants must establish that their right to possessory title existed as of that date.

[16] The ten-year period to establish adverse possession need not be the ten years immediately preceding the property’s first registration in the Land Titles system. Any ten-year period ended by that date is sufficient, since the registered owner’s right to recover the property is extinguished once the requirements for adverse possession are met for the statutory period: see Real Property Limitations Act, s. 15; Skraba v. Crisafi, 2014 ONSC 6780, 49 R.P.R (5th) 248, paras. 22-23.

[17] To constitute adverse possession, the possession must be “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner" throughout the statutory period: see Fletcher, at p. 725; Masidon Investments Ltd. v. Hamm (1984), 45 O.R. (2d) 563 (C.A.), at p. 567, leave to appeal refused, [1984] S.C.C.A. No. 232; and Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 18.

[18] To succeed, the claimant must establish, on a balance of probabilities:

a. Actual possession throughout the statutory period; b. The claimant’s intention to exclude the true (paper title) owner from possession or use to which the true owner intended to put the land during that period (referred to as the “inconsistent use” criterion), unless there is mutual mistake about the true ownership of the property (as discussed further later in these Reasons); and c. Effective exclusion of the true owner throughout the statutory period: see Shennan v. Szewczyk, 2010 ONCA 679, 96 R.P.R. (4th) 190, at para. 18; Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd., 2007 ONCA 413, 225 O.A.C. 375, at para 32.

[19] The claimant must meet each of these criteria, and time will begin to run against the true owner from the last date when all three are satisfied: see Masidon, at p. 567.

IV. Parties’ positions

A. Disputed Lands vs. Common Grounds

[20] As framed during counsel’s oral submissions, there is no dispute between the parties that the applicants are entitled by adverse possession to property forming part of 48 Mountain’s paper title. The applicants claim possessory title to the whole of the Disputed Lands. The respondent concedes the applicants’ entitlement to the Common Grounds, forming part of the Disputed Lands. As explained further below, set out in the Appendix attached to these Reasons (entitled “Respondent’s Offer to Settle”) is a visual depiction of the Common Grounds and the balance of the Disputed Lands, the balance being identified in the Appendix as the Contested Lands.

[21] The boundaries of the Disputed Lands are delineated as Part 1 on Reference Plan 30R-14860, which is attached as an exhibit to Maria’s affidavit. The Disputed Lands are approximately triangular in shape. The north end extends along Mountain Street, with a frontage of 8.063 metres. The western boundary extends southward from the street 24.514 metres along the (paper title) lot line between 46 Mountain and 48 Mountain, running through the northeast corner of the 46 Mountain residence. The western boundary ends well beyond the southeast corner of the residence, indicated on the reference plan as ending near a rock wall adjacent to the lot line. The Disputed Lands’ southeastern boundary extends southwesterly from Mountain Street approximately diagonally, also ending near the lot line in proximity to the rock wall.

[22] The Common Grounds constitute a triangular parcel of land forming part of the Disputed Lands. The Common Grounds are depicted on a property plot outline drawn on a portion of Reference Plan 30R-14860, which the respondent and her counsel prepared as part of an offer to settle (see attached Appendix). The Common Grounds’ northern boundary is the same as that of the Disputed Lands, with a frontage of 8.063 metres along Mountain Street. The western boundary extends southward from the street along the lot line, running through the northeast corner of the 46 Mountain residence and ending a short distance beyond the southeast corner of the residence. The Common Grounds’ southeastern boundary extends southwesterly from Mountain Street diagonally at a more acute angle, meeting the (paper title) lot line a short distance beyond the southwest corner of the residence.

[23] As previously noted, conveyance of the Common Grounds to the applicants would regularize the encroachment of the 46 Mountain residence on the paper title to 48 Mountain and provide the applicants with legal title to a side yard for the residence with a width of approximately 10 feet (3+ metres), ending a short distance beyond the residence’s southwest corner. As well, the respondent has previously indicated her willingness to provide the applicants with an easement to and over stone steps ascending the escarpment, providing access to the elevated back portion of the applicants’ property.

B. Applicants’ position

[24] The Cardosos say that at some point prior to the date of 48 Mountain’s first registration in the Land Titles system on March 24, 2003, their right to adverse possession of the whole of the Disputed Lands had crystallized and the right of the holders of property’s paper title extinguished. They say that prior to the first registration date, the Robinsons (the true owners of the Disputed Lands’ paper title) and the Cardoso family (the persons occupying the property) mutually misapprehended the Disputed Lands’ true ownership, believing it to form part of 46 Mountain’s legal title. As a result, the Cardosos and their family occupied the Disputed Lands as if the property were their own, without permission from the Robinsons. Maria deposes that the Robinsons did not object to their occupation of the Disputed Lands. She recalls having discussions with Mr. Robinson and waiving to him while using the Disputed Lands. Maria says that the Cardosos discovered the mutual mistake only years later, learning that the 46 Mountain residence encroached on the Disputed Lands, forming part of 48 Mountain’s paper title.

[25] To support the Cardosos’ possessory claim to the whole of the Disputed Lands, Maria provided an affidavit describing the Cardoso family’s use of the Disputed Lands from 1965 to the present time, which included (to a limited extent) photographs of the property over the years. Maria was not cross-examined on her affidavit. Based on her evidence, the Cardosos say that since 1965, the Disputed Lands have been used by them and their family in the ways set out below.

a. The 46 Mountain residence has existed on the Disputed Lands in its current footprint, without any additions. b. From 1966 to the mid-1970s, the Cardosos’ picnic table occupied the grassy area of the Disputed Lands adjacent to the dwelling and the area was used for socializing during weekly family dinners. c. From the mid-1970s to the early 1980s, a children’s playset occupied the grassy area of the Disputed Lands adjacent to the dwelling, which was used by the Cardosos’ children. d. From 1993 to 2003, a picnic table again occupied the grassy area of the Disputed Lands adjacent to the dwelling. The Cardoso family used the Disputed Lands as a play area while maintaining the grass and gardens throughout the Disputed Lands. e. From 1966 to 2005, the Cardosos maintained a clothesline on the Disputed Lands. f. During the time Maria’s father lived at 46 Mountain (1965 to 1994), he performed landscaping on the Disputed Lands, including planting and maintaining a row of cedar trees along the easterly edge of the Disputed Lands (demarcating what they understood to be the lot line between 46 Mountain and 48 Mountain), maintaining a flower garden within the Disputed Lands, and regularly maintaining the grass within the Disputed Lands. g. Prior to Maria’s arrival in Canada in 1966, her father constructed rock stairs on the Disputed Lands, providing the Cardoso family with access to an elevated plateau, with a view of Lake Ontario. The plateau also contained a vegetable garden, which was planted and maintained by the Cardosos and their family. The rock stairs remain in existence and continue to be used and maintained by the Cardosos and their family, providing access to the elevated area.

[26] The Cardosos say that their use of the Disputed Lands as described above clearly establishes their actual possession of the whole of the Disputed Lands for the required ten-year statutory period ending as early as 1976, well prior to 48 Mountain’s first registration in the Land Titles system in March 2003. The Cardosos also say that where (as here) there was a the mutual mistake between the occupier (the Cardoso family) and the legal owners (the Robinsons) as to the ownership of the occupied property, there is a relaxed evidentiary standard to establish the second “inconsistent use” element of adverse possession (the Cardosos’ intention to exclude the Robinsons from their possession or intended use of the Disputed Lands) and the third “effective exclusion” element (the Robinsons’ effective exclusion from the Disputed Lands). The Cardosos say that the evidentiary standard has been met in this case, with the result that adverse possession for the statutory period has been established.

C. Respondent’s position

[27] The respondent concedes that the applicants have a lawful possessory claim to part of the Disputed Lands only, being the Common Grounds. According to the respondent, the Cardosos have failed to provide sufficient evidence to establish their open, continuous and exclusive possession of the balance of the Disputed Lands for the required statutory period.

[28] The respondent says that the statutory period for determining adverse possession in this case is the ten years ended March 24, 2003, the date of first registration of 48 Mountain in the Land Titles system. The Cardosos have failed to establish the elements of adverse possession for that period or any ten-year period ended prior to March 24, 2003, according to the respondent.

[29] The respondent says that the Cardosos have not provided sufficient evidence to establish the continuous, exclusive use and maintenance throughout the statutory period of a picnic and play area (or a flower garden, a row of cedars, or a clothesline) in the grassy lower part of the Disputed Lands that extended beyond the ten-foot side-yard included in the Common Grounds. In addition, the Cardosos have not established their continuous use and maintenance of the rock stairs providing access to the elevated rear portion of the property. As well, the respondent says that the Cardosos have not provided any evidence that they took exclusory steps (such as fences or locks) to prevent others from using the Disputed Lands or evidence that the Robinsons did not use the Disputed Lands during the statutory period.

[30] The respondent has provided more recent photographs (taken within the last few years) indicating the overgrown nature of the Disputed Lands (including the rock stairs ascending the escarpment), which she says indicates the lack of maintenance or apparent use of the Disputed Lands beyond areas immediately contiguous to the 46 Mountain residence. She also says that the photographs show the remains of cedars east of the residence (said to delineate the Disputed Lands’ eastern border), which the respondent says were no more than three metres from the residence. While acknowledging that those photographs do not otherwise indicate the state of the property during the relevant statutory period, the respondent says the photographs call into question the credibility of Maria‘s evidence relating to the Cardosos’ exclusive and continuous use of the Disputed Lands for over 50 years. The respondent also notes the absence of an affidavit from the Cardosos’ son (who has occupied 46 Mountain since 1994, after his grandfather’s death) to support Maria’s evidence.

[31] The respondent also challenges the Cardosos’ position that there was a mutual mistake with respect to the true ownership of the Disputed Lands as between the Cardosos and the Robinsons. Among other things, the respondent says that the Cardosos have not established that the Robinsons were mistaken as to the ownership of the Disputed Lands. The respondent says in the absence of mutual mistake, the Cardosos are required to establish the Robinsons’ intended use of the Disputed Lands (and the Cardoso’s intention to exclude them from that use), being the second (inconsistent use) element of adverse possession: see Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), at p. 224; Key v. Latsky (2006), 206 O.A.C. 116 (C.A.), at para. 18. The respondent argues that the Cardosos have not provided evidence to establish that necessary element of adverse possession for the area beyond the Common Grounds.

V. Analysis and conclusion

[32] On the evidence before me, taking into account the respondent’s concession relating to title to the Common Grounds, I have concluded that the applicants have established their claim to adverse possession of the Common Grounds. However, I also find that they have not established possessory title to the balance of the Disputed Lands.

[33] Addressing initially the issue of mutual mistake, I am satisfied that the evidence establishes mutual mistake on the part of the Cardosos and the Robinsons as to the true (paper) ownership of land that the Cardoso family occupied and used beyond the (paper) border of 46 Mountain. Maria’s evidence was that neither the Cardosos nor the Robinsons (now long deceased) were aware that the Robinsons were the true (paper) owners. She also deposes that the Robinsons never objected to their use of that area. There is no evidence to the contrary. In these circumstances, consistent with Teis, at p. 224, and Key, at para. 18, it is not necessary for the Cardosos to establish the second “inconsistent use” element of adverse possession, which would require proof of the Robinsons’ intended use of the area and the Cardosos’ intention to exclude them from that use. Put another way with the same result, the Cardosos’ “inadvertent conduct” (in making use of property which they and the true paper owners mistakenly believed was the Cardosos’ property) was sufficient to establish by inference the “inconsistent use” element of adverse possession: see Cantera v. Eller (2007), 56 R.P.R. (4th) 39 (Ont. S.C.), at paras. 44-45, aff’d 2008 ONCA 876, 74 R.P.R(4th) 162. However, contrary to the submissions of applicants’ counsel, mutual mistake does not affect the requirement to establish the other elements of adverse possession: see Shennan, at para. 20, referring specifically to the third “effective exclusion” element.

[34] Turning to the first element of the cause of action, based on Maria’s undisputed evidence (including the photographs and other documentary evidence attached to her affidavit) and given the respondent’s concession relating to title to the Common Grounds, I am satisfied that the Cardosos have established actual possession of the Common Grounds for a period of at least ten years ending prior to March 24, 2003. That finding is based on their use of the area adjacent to the east side of the 46 Mountain residence as an “amenity area” (in Maria’s words), which included use for a family outdoor eating area, a children’s play area, a clothesline and a flower garden. I am also satisfied that by reason of the Cardosos’ use of that area, the Robinsons (being the true owners of the paper title) were effectively excluded from possession or use of the Common Grounds, satisfying the third element of adverse possession.

[35] As well, consistent with the respondent’s submissions, I have also concluded that the evidence does not establish continuous, exclusive use of those parts of the Disputed Grounds that are further afield from the 46 Mountain residence. I took into account the following considerations (among others) in reaching that conclusion:

a. The photographs attached to Maria’ affidavit support her evidence as to the use the Cardoso family made of grassy area extending south from Mountain Street to the east of the 46 Mountain residence. However, they provide no real indication as to how far that area extended to the east and south of the residence. b. Maria’s affidavit states that her father “planted and regularly maintained a row of cedars along what we thought was the lot line, which is the easterly edge of the Disputed Lands.” However, the respondent’s affidavit calls into question the location of that row of cedars, stating that the remains of those cedars in photographs taken in recent years indicate that the cedars were no more than three metres from the residence. That demarcation would be consistent with the easterly border of the Common Grounds, rather than that of the Disputed Lands. c. I also considered Maria’s evidence relating to the rock stairs ascending the escarpment within the Disputed Lands, which were constructed and maintained by her father. As set out in Maria’s affidavit, the rock stairs provided access to a plateau area “further up the escarpment with a view of Lake Ontario”, which included “a vegetable garden we planted over the years.” However, her evidence does not indicate a specific time period relating to use of the plateau area, nor does it indicate with any precision the location of the plateau. As well, it does not specifically state that the plateau is within the Disputed Lands (as opposed to nearby elevated land within 46 Mountain’s paper title – see the attached Appendix). d. If the plateau area was within 46 Mountain’s paper title, it may have been open to the Cardosos to argue they are entitled to an easement by prescription to and over the rock stairs to provide access to the elevated area of their property south of the residence: see Teis, at p. 228. That position was not advanced on this application. However, as previously noted, the respondent has expressed her willingness to provide such an easement to the Cardosos.

[36] In reaching the conclusions I have, I took into account the fact that Maria’s evidence was not challenged on cross-examination. As well, from the affidavits of the respondent and her husband (and the cross-examinations on those affidavits), I am aware that the respondent’s proposed conveyance of the Common Grounds to Cardosos was intended as a fair compromise to settle the Cardosos’ property claim, rather than being based on any knowledge as to the Cardosos’ historical use of the property.

[37] Nonetheless, the Cardosos had the onus of providing sufficient evidence to establish, on a balance of probabilities, the necessary criteria to extinguish the rights of the legal owners, who had constructive possession of the whole property: Fletcher, at p. 725. The remedy of extinguishing title by adverse possession “is not lightly granted”: see Carrozzi v. Guo (2002), 3 R.P.R. (4th) 203 (Ont. S.C.), at para. 21. Convincing evidence is required to deprive the legal holders of their property rights. The respondent concedes the Cardosos’ entitlement to possessory title to the Common Grounds. The evidence supports the Cardosos’ claim to adverse possession to that extent. However, the evidence is not sufficient to justify a finding of possessory title to the balance of the Disputed Lands.

VI. Disposition

[38] Accordingly, judgment will issue granting the following:

1. A declaration that the applicants are the lawful owners of the lands identified as the “Common Grounds” in the attached Appendix, being part of Part 1 on Plan 30-R14860;
2. An order vesting ownership of the Common Grounds to the applicants;
3. An order directing the Land Registrar of Niagara North, Registry Office #30, to amend the legal description of the property municipally known as 48 Mountain Street, Grimsby, to exclude the Common Grounds and make any other change necessary to give effect to this judgment; and
4. An order directing the Land Registrar of Niagara North, Registry Office #30, to amend the legal description of the property municipally known as 46 Mountain Street, Grimsby, to add the Common Grounds and make any other change necessary to give effect to this judgment; and
5. If not settled between the parties, costs will be determined following written submissions.

[39] As well, if the parties consent, I am also prepared to include in the judgment a declaration and directions to the Land Registrar relating to an easement in the Cardosos’ favour to and over the rock stairs, to provide access to the elevated portion of land forming part of 46 Mountain’s legal title. If necessary, I would be prepared upon motion to provide the parties with any required directions.

[40] If the parties are unable agree on costs, each of the parties may serve and file brief written costs submissions (not to exceed three pages) together with a bill of costs within 21 days. Each of the parties may respond by brief written submissions within a further seven days. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.

The Honourable Mr. Justice R. A. Lococo

Released: January 5, 2021

COURT FILE NO.: 57658/17 (St. Catharines) DATE: 20210105 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: FERNANDO SILVA CARDOSO and MARIA ILDEBERTA DO COUTO BOTELHO CARDOSO Applicants – and – DIANE BENJAMIN Respondent REASONS FOR JUDGMENT R.A. LOCOCO J. Released: January 5, 2021