COURT FILE NO.: CV-20-00000008
DATE: 20210921
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gerald Peter Anthony
Applicant
– and –
John Cundari
Respondent
Fabian Otto, for the Applicant
Rahul Gandotra, for the Respondent
HEARD: June 18, 2021
REASONS FOR DECISION
DE SA J.:
Overview
[1] The Applicant seeks a declaration that he is fee simple owner by adverse possession of part of an existing parcel of land on the northeast corner of 130 St. John’s Sideroad.
[2] He also seeks a mandatory order for the removal of the metal chain fence and the removal of 12 spruce trees between 130 St. John’s Sideroad and 202 St. John’s Sideroad, which is in the area the Applicant claims to be his property by way of adverse possession.
[3] The Respondent opposes the application. The Respondent takes the position that the Applicant is simply trying to re-litigate the exact same issue as was raised in an action he brought in 2017. While the subject area has been decreased to some degree, the Respondent submits the same issues have been disposed of in the 2017 Action.
[4] I agree with the Respondent. In my view, the Applicant is seeking to re-litigate issues that have been already determined in the 2017 Action. The application is dismissed.
[5] The reasons for my decision are below.
Background to the claim of adverse possession
[6] The properties at issue are 130 St. John’s Sideroad, Aurora, Ontario (“130 St. John’s”) and 202 St. John’s Sideroad, Aurora, Ontario (“202 St. John’s”). 130 St. John’s and 202 St. John’s are neighboring properties.
[7] The Applicant, Gerald Anthony (“Anthony”), is the successor owner of 202 St. John’s. Anthony acquired 202 St. John’s on December 12, 1997 from the previous owners, Eric and Stella Fulton (the “Fultons”).
[8] The Respondent, John Cundari (“Cundari”) is the successor owner of 130 St. John’s. Cundari acquired 130 St. John’s on May 14, 2014 from Gary Gordon McKenzie and Jennifer McKenzie (the “McKenzies”).
[9] In or about 1973, the McKenzies in conjunction with Environment Canada, sought to create a marshland and wetlands on part of their property. In doing so, they created an isolated area of land to the west of the marshlands (the “Subject Lands”).
[10] The Subject Lands were separated from the McKenzie property by the marshlands and were adjacent to and naturally flowed into the Fultons’ backyard.
[11] Since purchasing the property from the Fultons in 1997, the Applicant has always treated the Subject Lands as part of his property. The Applicant has maintained the Subject Lands by mowing the lawn of the area, trimming the trees and taking care of the yard.
[12] On or about May of 2018 the Respondent put up a metal chain fence six feet high with ‘no trespassing’ signs on it within the Subject Lands. The Respondent has also planted 12 spruce trees, which obstruct the Applicant’s view of the pond/marsh.
The 2017 Action by Gerald Anthony
[13] In 2017, the Applicant commenced an action against the McKenzies, who at the time were the owners of 130 St. John’s (the “2017 Action”).
[14] In the 2017 Action, the Applicant sought a declaration that he was the owner, by adverse possession, of an approximately 6-acre parcel of land, located on the northeast portion of 130 St. John’s (the “Disputed Lands”), in the alterative, a declaration that he held an easement over the Disputed Lands, and in the further alternative, leave to register a certificate of pending litigation (“CPL”) against the Disputed Lands/130 St. John’s at-large.
[15] A summary judgment motion was heard by Justice Sutherland with respect to the 2017 Action.
[16] Justice Sutherland found that the Applicant was required to show, on a balance of probabilities, that the adverse possession, or easement, had matured and was established from the time that title to 130 St. John’s was converted to Land Titles Conversion Qualified – being September 27, 1999. In other words, the claimants’ open and exclusive use to the Disputed Lands would have to be established by evidence from the 10 years preceding September 27, 1999 (the conversion to Land Titles Conversion Qualified).
[17] Ultimately, Justice Sutherland concluded that the Applicant failed to establish that there was a genuine issue for trial regarding the claim for adverse possession as he found that the Fultons’ evidence failed to show an intention to exclude the McKenzies, being the predecessor owner(s) of the Disputed Lands.
[18] On the issue of abandonment, and the Applicant’s claim for adverse possession, Justice Sutherland explained at paras. 35-37:
Concerning the abandonment submission, the evidence, which is uncontroverted, is that the defendants had the Lands dedicated as wilderness land with the assistance of the Canadian Wildlife Service. The Lands were designated as Provincially Significant Wetlands in the 1970’s known as the McKenzie Wetlands. The purpose of the Lands is that of wilderness for people to walk upon and explore and for wildlife to occupy undisturbed and undeveloped by humans. The purpose and designation has not changed as of the date of this hearing. The defendants from their evidence indicate that they and their family did maintain the dam, pond and marsh water level system over the decades. The fact the defendants did not use the Lands personally or regularly, in the circumstances of this case, is immaterial. The Lands are conservation wetlands. They remain conservation wetlands. The Lands are still being used for that purpose, for wildlife to occupy. I do not agree that the defendants have not abandoned the Lands, as suggested by the plaintiff.
Eric Fulton in his evidence indicates that neither he nor his wife intended to exclude the Lands from the defendants or their parents. This statement is supported by the fact that the Fultons applied for conversion to Land Title Absolute in 1991. Notice was provided.
[19] Justice Sutherland also rejected the Applicant’s claim for an easement, and having rejected both of those claims, deemed it unnecessary to deal with the issue of the CPL. The Applicant’s claim was dismissed.
[20] The Applicant’s appeal of Justice Sutherland’s decision was unanimously dismissed by the Ontario Court of Appeal.
[21] On July 25, 2019, the Applicant’s application for leave to appeal the ONCA Appeal was then dismissed by the Supreme Court of Canada.
Analysis
[22] In this application, the Applicant seeks a declaration that he is the owner, by adverse possession, of a reduced portion of the Disputed Lands from the 2017 Action as well as associated relief (removal of the fence) which is contingent on his claims that he owns the Disputed Lands by adverse possession (removal of the fence).
[23] The Respondent takes the position that the issue is res judicata and the Applicant is simply trying to re-litigate the exact same issue that was raised in the 2017 Action. To permit the Applicant to do so is an abuse of the Court’s process.
[24] The doctrine of res judicata is premised on public policy considerations which dictate that there should be a reasonable end to litigation, so as to prevent hardship to individuals from having to respond to the same issues repeatedly: Grandview v. Doering, 1975 CanLII 16 (SCC); Angle v. M.N.R., 1974 CanLII 168 (SCC), at p. 254.
[25] In deciding whether res judicata applies, the courts can look at pleadings in the other matter as well as the reasons for the other judgment to satisfy that the cause of action was actually decided upon.: Maynard v. Maynard, 1950 CanLII 3 (SCC), at p. 354: Norrad v. MacKay, 2005 NBQB 307, at para. 14.
[26] The Applicant argues that the issues raised on this application were left open by Sutherland J. in his decision. More specifically, the Applicant points to paragraphs 39 and 40 where Sutherland J. stated:
Moreover, even if I found that the plaintiff did have an adverse possession claim, the Lands requested by the plaintiff does not support the evidence provided by the plaintiff. There is no evidence provided by the plaintiff that the entire 6 acres of the Lands have been adversely possessed by any of the owners of 202. At best, the evidence shows a portion of the lands that were mowed by the Fultons, and the Fultons walked the rails on the Lands. It is not the full area of 6 acres, the Lands, requested by the plaintiff.
Therefore, I do not agree with the submissions of the plaintiff that he has met the criteria required in law to have a claim of adverse possession of the Lands. [Emphasis added.]
[27] According to the Applicant, the above paragraphs of Sutherland J.’s decision leave open a claim of adverse possession in relation to the smaller area of land which is the subject of this application.
[28] I disagree. In my view, these paragraphs merely emphasize the overbreadth of the Applicant’s original claim. They do not open the door to a subsequent claim in relation to a smaller piece of the Disputed Lands.
[29] In reviewing the decision, the original claim failed specifically because the Fultons’ evidence made clear that there was never any intention to exclude the McKenzies from any portion of the Disputed Lands. This included the smaller portion sought to be claimed in the current application (the Subject Lands).
[30] The Ontario Court of Appeal also specifically referenced this portion of the Disputed Lands on appeal and noted that “[r]egardless of the limited use the Fultons may have made of a small portion of the disputed lands in the immediate vicinity of their home, the evidence was overwhelming that they had no intention to use the land to the exclusion of its true owner”.24
[31] In my view, the issues raised in this application have already been determined in the 2017 Action.
[32] The application is dismissed.
[33] I will receive costs submissions from the Respondent within 2 weeks from the date of this decision. The Applicant will have 1 week thereafter to respond.
Justice C.F. de Sa
Released: September 21, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gerald Peter Anthony
Applicant
– and –
John Cundari
Respondent
REASONS FOR DECISION
Justice C.F. de Sa
Released: September 21, 2021