COURT FILE NO.: CV- 20-73932/ CV- 19-71047

DATE: 2021-08-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Claudio Lombardo and Renato Lombardo, Applicants/Respondents

A N D:

2672140 Ontario Inc., Respondent/Applicant

BEFORE: The Honourable Justice A.J. Goodman

COUNSEL: Stuart Reddington, for the Applicants

Barry Yellin, for the Respondents

HEARD: August 9, 2021

E N D O R S E M E N T

A.J. GOODMAN J.

[1] The respondent, 2672140 Ontario Inc. (“267”) owns real property at 84 Highway 5 West in Flamborough, Ontario.

[2] The applicants, Claudio Lombardo and his brother Renato Lombardo (“the Lombardos”) own a neighbouring property at 76 Highway 5 West in Flamborough.

[3] In Court File number CV-20-73932, Claudio Lombardo and Renato Lombardo (“the Lombardos”) seek a declaration that they have come to own certain disputed lands that are titled-owned by 267 by way of adverse possession. 267 opposes the relief sought.

[4] Prior to the Lombardos commencing their Application, 267 had already commenced an action under file CV-19-71047, in which it seeks a declaration that the Lombardos are trespassing because they have built a fence on 267’s property and also seeks an order to remove that fence.

[5] What is clear from the documentary evidence and cross-examinations is that the Lombardos’ threshold Application must fail. They have not acquired the impugned lands, being Parts 2 and 3 of 62R-9277 (“the Disputed Lands”), by way of adverse possession.

[6] Moreover, since the Lombardos’ threshold question must fail, they are deemed to be trespassing and are ordered to remove the fence that is situated on the Disputed Lands.

Discussion:

[7] Sections 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c.L.15, s. 15 state:

Limitation where the subject interested

4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

Extinguishment of right at the end of the period of limitation

15. At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.

[8] In order to be successful in a claim for adverse possession, the Lombardos must meet the test of adverse possession for a ten-year period. However, that ten-year period cannot run past the date on which a piece of land is registered in the land titles system. As s. 51 of the Land Titles Act, R.S.O. 1990, c. L.5, s. 51; 2002, c. 24, Sched. B, s. 40 (2) states:

Despite any provision of this Act, the Real Property Limitations Act or any other Act, no title to and no right or interest in land registered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or be deemed to have been acquired heretofore by any length of possession or by prescription.

This section does not prejudice, as against any person registered as first owner of land with a possessory title only, any adverse claim in respect of length of possession of any other person who was in possession of the land at the time when the registration of the first owner took place.

[9] Given that the parties’ properties were converted from the Registry System to the Land Titles system on December 23, 1996, the Lombardos have the onerous burden to show that all the elements necessary to their adverse possession claim were present for at least ten years, ending on December 23, 1996.

[10] As Reid J. noted in Fazzari v. Pynn, 2013 ONSC 7743, at paras. 40-43:

Applicable Law

[40] The test for extinguishment of title by adverse possession is an onerous one since the law generally protects the titled owner of property. The claimant bears the onus of proof.

[41] The statutory period for establishing possession is set out in the Real Property Limitations Act, R.S.O 1990, c. L. 15, where, by virtue of sections 4, 5(1) and 15, one can acquire possessory title to a property and extinguish the registered owner's title after a period of ten years. The Act imposes an obligation on the holders of legal title to enforce their rights within 10 years after the possession of the property by the non-titled party begins, failing which the titleholders are prevented from asserting a claim or defending against an adverse possessor.

[42] It is acknowledged that in most cases, there are three elements which a claimant must prove to establish possessory title:

a. actual possession of a specific parcel of property by the claimant or his/or predecessor in title for the statutory period of 10 years;

b. that such possession was with the intention of excluding the true owner from possession; and

c. that the true owner was in fact effectively excluded from possession for the statutory period.

If the claimant fails in any one of those respects, the claim fails.

[11] In Pepper v. Brooker, 2017 ONCA 532, the Court of Appeal stated at para. 32:

All issues raised on this appeal turn on the correctness of the trial judge’s application of the law of adverse possession. The elements of adverse possession were recently stated in McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 333 O.A.C. 381, in which Rouleau J.A. said at paras. 9-11:

...To establish adverse possession of certain lands, a claimant must demonstrate that throughout the ten-year adverse possession period, he or she: a) had actual possession of the lands in question; b) had the intention of excluding the true owner from possession; and c) effectively excluded the true owner from possession: Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (Ont. C.A.), at p. 567.

An adverse possession claim will fail unless the claimant meets each of the three criteria, and time will begin to run against the true owner of the lands only from the last date when all three are satisfied: Masidon, at p. 567.

To establish actual possession, the acts of possession must be "open, notorious, peaceful, adverse, exclusive, actual and continuous": Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (Ont. C.A.), at p. 221. If any one of these elements is missing at any time during the statutory ten-year period, the claim for possessory title will fail.

[12] The applicants have admitted that the relevant 10-year period in which adverse possession could be claimed pursuant to the Real Property Limitations Act was between 1986 through to and including, December 1996.

[13] To establish adverse possession, the Lombardos or their predecessors in title, must establish that they were in possession in an open, notorious, peaceful, adverse, exclusive, and continuous manner for a certain period. Those elements are conjunctive and all must necessarily be proven. See Bellini Custom Cabinets v. Delight Textiles Limited, 2007 ONCA 413.

[14] It is common ground between the parties’ that their respective properties were converted from the Registry System to the Land Titles system on December 23, 1996.

[15] Again, there is no dispute that 267 owns 84 Highway 5 West, Flamborough and is the titled owner of the Disputed Lands. There is also no dispute that the Lombardos own the neighbouring property at 76 Highway 5 West. They have done so since February 3, 2010. It is a motel that used to be owned by Catherine, who lived there with her children, Frank Logan (“Frank”) and Christine Sogan (“Sogan”).

[16] The Lombardos own witnesses conceded on cross-examination that during the relevant statutory 10-year period prior to the properties being converted from the Registry System to the Land Titles System, being 1986 to 1996, the parties’ predecessors in title – that is, the prior owners of each of 84 and 76 Highway 5 West -- had actually negotiated the sale of the Disputed Lands in 1993, and that such a sale had fallen through.

[17] Moreover, the dispute as between the parties’ predecessors in title had escalated to the point where 267’s predecessor in title, Robert Sherwin (“Sherwin”), engaged in a self-help remedy, by having removed a fence on the Disputed Lands and re- asserting his ownership rights away from the Lombardo’s predecessor in title, Catherine Logan (“Catherine”).

[18] Specifically, in 1986, Sherwin, crossed over the Disputed Lands and physically moved a fence that had been erected on his lands by Catherine to where the true property line was. That fence had initially trespassed onto the respondent’s predecessor in title’s land. According to Catherine’s son, Frank Logan (“Frank”), Sherwin moved the fence to the property line where it should have been erected in the first place. The stated reason he did so, according to Frank, was because his mother – Catherine – had agreed to purchase the impugned lands from the Respondent’s predecessor in title, Sherwin, but she backed out of the deal.

[19] Thus, in moving the fence to the property line, Sherwin removed the trespassing fence rather than have it remain on his lands.

[20] Frank also stated on cross-examination that his mother had even agreed to pay $10,000.00 to Sherwin for the Disputed Lands. However, since his mother backed out of the deal, Sherwin “pulled the fence down” and moved it to the property line. Sogan, stated on cross-examination that the fence had been moved back onto the Disputed Lands by Frank and a friend “within 10 days” after Sherwin had removed the fence that had been trespassing on his lands.

[21] Claudio Lombardo only learned of the earlier dispute between Sherwin and Catherine during his cross-examination on his affidavits sworn in these proceedings. Notably, Renata Lombardo did not tender any evidence in these proceedings.

[22] Still, in his removal of the fence onto the property line, Sherwin broke the chain of possession of his lands that had been surrounded by the offending fence. Thus, Catherine’s possession of the Disputed Lands was neither peaceful, nor continuous in the relevant period. Her own children who gave evidence in this proceeding confirmed that notion.

[23] The Lombardos do not have any independent knowledge as to whether anyone – including 267’s predecessor in title was actually ever excluded from going onto the Disputed Lands during the relevant period. By Sherwin having forcibly moved the fence after an argument with Catherine, he engaged in an act that belies the claim that Catherine’s possession of the Disputed Lands was continuous. On this basis, the onerous test for adverse possession is not met by the Lombardos in this case.

[24] Catherine’s state of mind during the relevant 10-year period also ought not be ignored, as she was the applicants’ predecessor in title. By having negotiated, and at least having initially agreed to purchase the impugned lands for $10,000.00, it is obvious she knew and understood that the disputed lands were not hers.

[25] Of utmost significance in this matter is that as late as May 11, 1993 - and within the relevant ten-year statutory period- Catherine had even hired a lawyer to deal with the dispute concerning the impugned lands.

[26] Mr. Litwiller, a solicitor, had been hired by Catherine to negotiate a draft plan to indicate where “a dispute as to the location of the boundaries between the adjoining properties,” had arisen. 267’s had a lawyer who confirmed to Mr. Litwiller that the draft plan to outline the disputed lands was agreeable.

[27] Given that it was the Lombardos that tendered Mr. Litwiller’s letter, they are well aware of the dispute between Sherwin and Catherine during the relevant period and that they had agreed to deposit a plan on title to the properties confirming the Disputed Lands. This was conceded on cross-examination.

[28] I agree entirely with Mr. Yellin’s submissions on this point. This letter is fatal to the applicants’ claim for adverse possession during this relevant time frame.

[29] The lawyers for the parties’ predecessors in title both admitted in writing in 1993 (and no party in this proceeding is questioning the authenticity of the documents presented) that the impugned lands were disputed lands in their correspondence concerning a draft plan to be registered on title to their clients’ respective properties. The “dispute” was acknowledged during the relevant 10-year period. It was not a continuous peaceable period of possession prior to the lands being converted from the Registry System to the Land Titles System. Thus, the parties’ predecessors in title were aware, at least during 1986 through to, and including, 1996 (the relevant 10-year statutory period), that there was a dispute concerning the Disputed Lands.

[30] Despite that, the Lombardos have a fence on the Disputed Lands, and 267 seeks relief – in its own Application –to end that trespass and an Order enjoining same.

[31] 267 disagrees that there was even a fence on the Disputed Property in 2010. As can be seen from Google Street View images between 2009 and 2014, as appended to the affidavit of 267’s representative, Vikram Singh, sworn November 6, 2020, the authenticity of which was not challenged on cross-examination, no fence was present on the Disputed Lands.

[32] When an action for adverse possession fails, a claim for trespass can follow. A trespass to land is the act of entering upon land, in the possession of another, or erecting some object thereon without the legal right to do so.

[33] Trespass is an unjustifiable interference with possession: Didow v. Alberta Power Ltd., 1988 ABCA 257, [1988] A.J. No. 620. The case also held that a low-level intrusion which impinges upon the actual or potential use and enjoyment of an owner's land amounts to a trespass and that consequently an intrusion by an artificial or permanent structure into the airspace of another is forbidden as a trespass.

[34] In Mann v. Saulnier (1959), 1959 CanLII 360 (N.B. C.A.), 19 D.L.R. (2d) 130, the court stated at paras. 132-133:

Trespass to land is the act of entering upon land, in the possession of another, or placing or throwing or erecting some material object thereon without the legal right to do so.

In all such cases, in order to be actionable as a trespass, the injury must be direct, within the meaning of the distinction between direct and consequential injuries…. It is a trespass, and therefore actionable per se, directly to place material objects upon another's land; it is not a trespass, but at the most a nuisance or other wrong actionable only on proof of damage, to do an act which consequentially results in the entry of such objects. To throw stones upon one's neighbour's premises is the wrong of trespass; to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance.

[35] The impugned fence on the Disputed Lands is large, not transitory, and is a permanent encroachment. In this case, a wall or fence that was intentionally constructed that prevents unrestricted access to one’s own land constitutes a trespass.

[36] Courts are reluctant to sanction a permanent encroachment by simply awarding damages. Indeed, the applicant has not sought damages in this proceeding. It is seeking mandatory and injunctive relief to have the fence moved off of its lands.

[37] In Kargakos v. Cartier Square Housing Co-Operative Inc., [2004] O.J. No. 1868 (Sup. Ct.), Master Beaudoin quoted John G. Fleming, The Law of Torts, 8th ed. (Sydney: Law Book, 1992) at 42-43:

If a structure or other object is placed on another's land, not only the initial intrusion but also failure to remove it constitutes an actionable wrong. There is a "continuing trespass" as long as the object remains…

[38] Indeed, courts look at mandatory injunctions as the appropriate remedy when the encroachment is not trifling in character because of its permanent and continuing nature, Bellini, at para. 136.

[39] The onus is on the respondent in a claim for trespass to show that it is oppressive or a burden to take a trespassing wall down. The Lombardos presented no evidence in that regard.

[40] If an incursion onto the applicant’s property is a structural encroachment which is neither fleeting nor transitory, and that the impact upon the land diminishes access, damages are not an appropriate remedy and a remedy of a mandatory injunction should follow: Bellini, at paras. 42-44.

Conclusion:

[41] The Lombardo’s application for adverse possession is dismissed. As there is a trespass, 267’s request for the removal of the fence from the Disputed Lands is granted. The appropriate remedy in this case is a mandatory injunction requiring the defendants to forthwith take down the fence in issue and refrain from further trespassing onto the Disputed Lands.

Costs:

[42] If the parties cannot agree on the issue of costs, I will consider brief written submissions. These cost memoranda shall not exceed three pages in length, (not including any bill of costs or offers to settle). 267 shall file its costs submissions within 15 days of the date of this endorsement. The Lombardo’s shall file their costs submissions within 15 days of the receipt of the plaintiff’s materials. 267 may file a brief reply within five days thereafter. If submissions are not received by September 13, 2021, the file will be closed and the issue of costs considered settled.

A.J. Goodman J.

Dated: August 16, 2021