COURT FILE NO.: CV-20-637391
DATE: 20210528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MEGAN MACQUARRIE and GARNER QUAIN
Applicants
– and –
PRABHJYOT SINGH and THE BANK OF NOVA SCOTIA
Respondents
Craig Colraine and Debbie Jorgensen, for the Applicants
Nicholas Reinkeluers, for the Respondent Prabhjyot Singh
HEARD: May 26, 2021
FL Myers J
REASONS FOR JUDGMENT
The Applications
[1] These reasons apply as well to a counter-application commenced by Dr. Singh against Ms. Macquarrie and Mr. Quain under Court File No. CV-21-00658199-0000.
[2] The competing cross-applications are mirror images. Each side seeks a determination of whether the encroachment onto Dr. Singh’s side of the registered boundary line by the Macquarrie/Quain front veranda and nine inches of the common wall at the rear of the Macquarrie/Quain house are lawful.
[3] Ms. Macquarrie and Mr. Quain say that the encroachments are lawful because they have acquired title to slivers of Dr. Singh’s property by reason of adverse possession. Dr. Singh submits that the encroachments are unlawful and he wants the trespassing structures removed.
[4] For the reasons that follow I find that Ms. Macquarrie and Mr. Quain acquired title to the front porch and rear wall encroachments by reason of adverse possession by predecessors in title. Before ruling on the dryer vent, the downspout, and the eaves trough on the rear wall, I direct the parties to attempt to resolve the issues in light of my principal findings.
The Facts
[5] Ms. Macquarrie and Mr. Quain own and live in 163 Pape Avenue in Toronto. It is the northmost of three connected rowhouses.
[6] Mr. Singh owns and lives in 161 Pape Avenue. He is the next door neighbour living immediately to the south of Ms. Macquarrie and Mr. Quain. Their houses are connected by a common wall that is the northern boundary of Dr. Singh’s house and the southern boundary of Ms. Macquarrie and Mr. Quain’s house.
[7] For as long as anyone knows, four feet of the front veranda of 163 Pape have encroached upon 161 Pape. The veranda leads only to the front door to 163 Pape. It is not accessible from Dr. Singh’s house.
[8] The veranda abuts Dr. Singh’s outer wall. The veranda is physically attached to Dr. Singh’s house on the roof, on the deck, and by concrete steps. Below is a picture of the veranda with a red line running along the legal boundary line.
[9] One looking at the houses without seeing the boundary line super-imposed can be forgiven for thinking that the veranda belongs to 163 Pape alone. That is what Dr. Singh thought when he bought his house next door in 2016.
[10] The north-facing bay window from Dr. Singh’s house looks right out onto the veranda encroachment as can be seen in this picture. Dr. Singh’s window looks out onto the back of Ms. Macquarrie’s deck chair and through the veranda toward the street.
[11] In addition, at the back of the property, there is a small alcove that runs east and west immediately to the south of the common wall. The picture below shows the little indented alcove with the Macquarrie/Quain house, 163 Pape, on the right and Dr. Singh’s house, 161 Pape, straight ahead and on the left. The wall on the right (163 Pape) was built nine inches over the boundary line. The Macquarrie/Quain dryer vent can be seen protruding over Dr. Singh’s property. There is an eaves trough overhanging above the pictured scene. The picture also shows the downpipe that Dr. Singh affixed the outer wall of 163 Pape in the back-right corner of the alcove.
[12] Dr. Singh bought his house from Sylvia Hegge in 2016. The market was booming at the time; so, Dr. Singh bought his house with no due diligence and without knowing that the neighbour’s veranda and the common wall in the rear alcove encroached over the lot line onto 161 Pape.
[13] Ms. Hegge swore a statutory declaration about the encroachments 26 years before she sold the property to Dr Singh.
[14] In her declaration sworn August 31, 1990, Ms. Hegge said that she had owned 161 Pape (Dr. Singh’s house) with her husband since September 12, 1975. She wrote,
…from 1975 until the present time, I have been in actual possession of the whole of the said lands save and except for a 9 inch portion of the rear two-storey section of the building municipally known as 163 Pape Avenue, Toronto, and four feet of the front veranda and concrete steps of the building municipally known as 163 Pape Avenue, Toronto, which encroach approximately four feet onto my property.[^1] [Emphasis added.]
[15] Ms. Hegge also swore that during the entire period from 1975 to 1990 neither she nor her husband has asked for the nine inch piece of wall at the rear or the four foot section of the veranda to be removed or altered and that neither had been altered of changed in any way.
[16] This was Ms. Hegge’s second declaration. Six years earlier, in 1984, she swore a first declaration that was only about the wall that encroached at the rear of the property. After stating the obvious – that neither she nor her husband had ever possessed the land under the wall – and that neither she nor her husband has requested that the wall be removed or altered, Ms. Hegge swore:
…and we are satisfied that we have no claim to the land situate under the 9 inch portion or the rear two-storey section of the building municipally known as 163 Pape Avenue, Toronto…
[17] The land was provisionally registered in the Land Titles system on May 26, 2003. It is common ground that under s. 51 of the Land Titles Act, RSO 1990, c L.5, no claim for adverse possession can arise after that time. However, if the owners of 163 Pape had already acquired possessory title before May 26, 2003, that title will be recognized in the Land Titles system.
[18] For the purposes of this proceeding then, for a claim of adverse possession to lie, Ms. Macquarrie and Mr. Quain need to establish a ten year period of adverse possession starting no later than May 26, 1993.
[19] They rely on the period of September 12, 1975 to August 31, 1990 as more than sufficient to establish their claim.
The Law
[20] The parties agree on the basic legal principles applicable to the acquisition of possessory title by adverse possession. In Barbour v. Bailey, 2016 ONCA 98, the Court of Appeal accepted the well-established three part test:
[35] The trial judge correctly stated that to establish adverse possession, a claimant to possessory title throughout a ten-year period pursuant to s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, must establish that he or she:
i. Had actual possession of the property in issue;
ii. Had the intention of excluding the true owner from possession of his property; and
iii. Effectively excluded the true owner from possession of his property. See Masidon Investments Ltd. v. Ham (1984), 1984 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 567, leave to appeal refused, [1984] S.C.C.A. No. 232.
[36] The claimant's possession must be "open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner" for the full term of the ten- year statutory period: Fletcher v. Storoschuk (1981), 1981 1724 (ON CA), 35 O.R. (2d) 722 (C.A.), at p. 724…. [Emphasis in original.]
[21] On the plain words of the two statutory declarations, Ms. Hegge said that she did not possess the four foot section of veranda nor the nine inches under the rear wall for the entire period Sept. 12, 1975 to August 31, 1984. The wall and veranda had not changed at all during the period and she had not asked for them to be removed or altered.
[22] It is apparent that at the rear of the premises, the wall openly, notoriously, continuously, and effectively excludes any use by the true owner. It is a wall.
[23] Dr. Singh submits that for the veranda, there is no evidence that Ms. Hegge did not access the veranda every so often to clean her window or to maintain the sill. Neither is there evidence that she ever did so.
[24] Moreover, Dr. Singh submits that the wording of the 1990 statutory declaration amounts to a license or a grant of permission by Ms. Hegge allowing her neighbours to use her land for their veranda.
[25] These arguments raise the question of the burden of proof. There is no question that the legal or persuasive burden lies on Ms. Macquarrie and Mr. Quain to prove all of the elements of the three-part test on a balance of probabilities. But that burden of proof does not mean they must exclude every hypothetical possibility.
[26] In Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, the Court of Appeal discussed the nature of the burden in considering whether acquiescence by an owner is actually a positive grant of permission:
[17]…Once the appellant had proven facts that support the inference of acquiesce in 20 years of use, the evidentiary burden passed to the appellant to lead evidence to rebut the inference by proving the use was by permission.
[18] The following facts are sufficient to shift the evidentiary burden in this case:
• the longstanding physical layout of the area by which 842 King Street West abuts the laneway Mr. Chan turned into a registered right-of-way;
• the existence of a garage accessible only over the right-of-way was located at the rear of 842 King Street West for many years until it was torn down by Ms. Pelech;
• the plain and obvious vehicular use of the right-of-way by the occupants of 842 King Street West, as described by witnesses who were present at the time;
• the absence of any evidence of objection or exercise of control by 2015 ONCA 466 Mr. Chan; and
• the documentary evidence that the owners of 842 King Street West considered that they enjoyed the right-of-way as noted in listing agreements over the years.
Analysis – Acquiescence v Permission
[27] In my view, like Condos and Castles, the longstanding physical layout of the veranda and rear wall, coupled with the clear evidence of Ms. Hegge, readily support an inference that Mr. and Ms. Hegge acquiesced in their exclusion from both slivers of land for more than the requisite ten year period.
[28] Physically, the veranda belongs to 163 Pape. Its use is to access 163 Pape and as an outdoor sitting area for that property. It is permanently affixed. While it is not a wall with a permanent underground foundation, there is no suggestion that Ms. Hegge used the land under the southern four feet of decking or on top of the roof of the veranda.
[29] The statutory declarations are equally clear. They describe long term exclusion and acquiescence in being excluded. In my view, the permanent physical layout and statutory declarations meet the three parts of the test set out in Barbour.
[30] Mr. Reinkeluers argues that the wording of the 1990 declaration discloses an intention by Ms. Hegge to grant permission or a license to the owners of 163 Pape Avenue to use the two slivers of land on her side of the lot line. If the Hegges granted permission for the owners of 163 Pape to use their slivers of land, then the neighbours’ possession would not be adverse.
[31] The difficulty that I have with the submission is that nothing in the words used by Ms. Hegge says or implies a grant of permission. The declarations are consistent with wording that one would expect to prove the contrary – that adverse possession has been established. It strikes me as particularly unlikely that someone would go to trouble of swearing two declarations to protect her title to land by documenting a license or her grant of permission to the occupation of her land without mentioning that this is what she was doing.
[32] Mr. Reinkeluers submits that words of permission can be implied from the use of the phrase “encroach approximately four feet onto my property” in the 1990 declaration and from the absence in the 1990 declaration of the express statement in the 1984 declaration that Ms. Hegge is satisfied that she has “no claim” to the land encroached upon at the rear of the house.
[33] To make the argument that the absence of a statement that the Hegges have “no claim” to the veranda impactful, Mr. Reinkeluers was forced to concede that the 1984 declaration was sufficient to establish adverse possession of the rear encroachment (although doing so is inconsistent with the claim in Dr. Singh’s notice of application that he owns that sliver of land as well).
[34] I do not think it is correct to compare the wording of the two statutory declarations sworn six years apart as if they were a statute or a single contract. We know nothing of the circumstances or the drafting of either statutory declaration. Both declarations provide evidence of the same physical, observable facts about the rear wall and the later one confirms the same facts appertain to the veranda. The inclusion of a legal conclusion in the earlier declaration has no impact on my application of the law to the facts as sworn. That is, Ms. Hegge’s view that she has no claim to the land on which the wall sits does not tell me anything about whether the facts to which she swears concerning the veranda are sufficient to prove possessory title in the neighbours.
[35] Similarly, I read the words, “encroach approximately four feet onto my property” as defining the encroachment. Mr. Reinkeluers submits that the words “my property” amount to an assertion of continuing rights. To acquiesce in an encroachment, he would have required Ms. Hegge to say something like, “encroach approximately four feet over the registered lot line onto the land that is registered in my name”.
[36] I do not read the words “my property” as anything more than a description of the fact of the encroachment. Encroachments encroach onto another’s property by definition. Mr. Reinkeluers stretches the import of the words beyond their meaning to find an assertion of ongoing ownership in the highlighted phrase.
[37] In my view, if Dr. Singh wished to show that the Hegges granted a license or permission to the neighbours, he bore an evidentiary burden to raise this issue of fact as discussed in Condos and Castles. Dr. Singh could have adduced the evidence of Ms. Hegge to say that her statutory declarations were actually grants or permission or licenses rather than confirmation of the fact of her acquiescence in being excluded as they appear to be.
[38] Mr. Reinkeluers argues that the burden is on Ms. Macquarrie and Mr. Quain to call Ms. Hegge. But, given all parties’ acceptance of the admissibility of the two statutory declarations, there was no point in Ms. Macquarrie and Mr. Quain calling Ms. Hegge just to say that her declarations mean what they say in the context of the obvious inference from the long term physical layout of the property. The burden to adduce evidence to show that Ms. Hegge’s words do not mean what they say or to show that her acquiescence was actually permission lies with Dr. Singh.
[39] I do not need to draw an adverse inference that Dr. Singh’s failure to call Ms. Hegge indicates that her evidence likely would not have supported his theory of the case. Rather, it is enough to say that Dr. Singh bore an evidentiary burden to lead evidence to credibly raise the issue of permission and he failed to do so.
[40] There is no competing evidence to rebut the prima facie proof of the three-part test.
[41] Mr. Reinkeluers invites me to take judicial notice of the fact that someone must have been washing the window on the veranda and maintaining the sill. He agreed that we cannot tell from the pictures whether the painting of the sill matches the exterior of 163 Pape or 161 Pape. Moreover, the pictures are current. There are no pictures from 1975 to 1990. While it would not be a great leap to assume that once in a while the window was cleaned and the sill maintained or painted, the identity of the person who did that from 1975 to 1990 (or, just 1985 actually) is not susceptible of judicial notice.
[42] Once again, Ms. Hegge’s evidence is that she did not have possession of the four feet of veranda. If Dr. Singh wanted to show that Ms. Hegge still used her property to maintain her window or the window sill, he would have had to call her as a witness. This is a very specific fact that could readily have been proven and might well have been determinative. The failure to call Ms. Hegge to provide this evidence does strike me as an indication that she would not likely say what Mr. Reinkeluers asks me to infer or find by judicial notice.
[43] Mr. Reinkeluers argues that the use of the window from inside 161 Pape to look out onto the veranda is a sufficient use of the four feet of veranda to exclude adverse possession. He cites no case law for the principle that looking at land from which an owner is physically excluded is sufficient use to disrupt the continuity of the neighbours’ adverse possession. There would never be possessory title if merely looking over the land was sufficient to interrupt adverse possession.
[44] Ms. Macquarrie and Mr. Quain are not claiming ownership of Dr. Singh’s north-facing window or wall. Even if there was evidence that Ms. Hegge used the wall inside her unit and looked out the window, that would not be relevant to the claim for adverse possession of the four feet of land under the veranda.[^2]
Conclusion
[45] In all, I am satisfied that Ms. Macquarrie and Mr. Quain have proven their entitlement to the declarations that they own possessory title to the slivers of land described in their application ass et out at para. 51 of their factum dated April 9, 2021 at pages A116 and A117 of the CaseLines bundle.
[46] Dr. Singh’s application is dismissed save for the resolution of the ancillary issues referred to in the next paragraph.
[47] I invite the parties to discuss the eaves trough, the vent, and the downspout in the alcove at the rear. They ought to be able to find a modus vivendi for the air rights over the rear alcove. If they cannot agree, they may contact my Judicial Assistant after June 11, 2021 to schedule a case conference to resolve those ancillary issues.
[48] Ms. Macquarrie and Mr. Quain may deliver cost submissions no later than June 4, 2021. The respondent may deliver cost submissions no later than June 11, 2021. In addition, the parties may deliver copies of any offers to settle on which they rely. Submissions shall be no longer than three pages. Both parties shall deliver Costs Outlines if they deliver submissions.
[49] All costs material is to be filed through the Civil Submissions Online portal and uploaded to Caselines although counsel will not have received confirmation of the acceptance of their filings from the registrar.
[50] No case law or statutory material is to be submitted. References to case law and statutory material, if any, shall be embedded in the parties’ submissions as hyperlinks.
FL Myers
Released: May 28, 2021
COURT FILE NO.: CV-20-637391
DATE: 20210527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MEGAN MACQUARRIE and GARNER QUAIN
Applicants
– and –
PRABHJYOT SINGH and THE BANK OF NOVA SCOTIA
Respondents
REASONS FOR JUDGMENT
FL Myers J
Released: May 28, 2021
[^1]: I raised a question as to whether the two copies of statutory declarations apparently sworn by Ms. Hegge were admissible for the truth of their contents. Mr. Colraine advises that Ms. Hegge is alive. Mr. Colraine made brief submissions that the documents were admissible because the originals were sworn and the copies were the best evidence available. Mr. Reinkeluers made no responding submissions. Both counsel relied on the two statutory declarations for the truth of their contents without objection.
[^2]: Whether Dr. Singh would have an easement to protect his right to receive light through the window is not before me.