Jamnisek v. The Estate of Gordan A. Wyant, 2021 ONSC 66

PETERBOROUGH COURT FILE NO.: CV-20-226

DATE: 20210219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mary Jamnisek and Frank Raisp

Applicants

– and –

The Estate of Gordan A. Wyant

Respondent

Scott G. Seabrooke, for the Applicants

Unrepresented, for the Respondent

HEARD: November 30 and December 18, 2020

REASONS FOR DECISION

SPEYER J.

A. Introduction

1More than 40 years ago, in 1978, Ms. Jamnisek and Mr. Raisp (“the applicants”), together with Ms. Jamnisek’s late husband, Alois Jamnisek, bought a large parcel of land in the Stayner area as tenants in common. Alois Jamnisek’s interest passed to Ms. Jamnisek following his death. The parcel of land, about 50 acres, was and remains undeveloped. When they bought the land, they believed that it was bounded by Scott Street on the west, and Mowat Street on the east.

2In 2019, the applicants discovered that their understanding of the location of the western boundary of their property was wrong. A strip of land (“the subject property”), 15 metres wide and 149 metres long, or about one-half acre, purchased by Gordon A. Wyant in 1944 as part of a larger parcel of land, separated their land from Scott Street. This came as a surprise to the applicants, who say that they have treated the subject property as their own since 1978.

3At issue is the right of ownership of the subject property, described as Part Lot 26, Concession 2, Nottawasaga As In NOT19776 Lying East of Scott Street, Clearview, and bearing Parcel Identification Number 74028-0114 (LT). The respondent, the estate of Gordan A. Wyant, holds paper title to the subject property. The applicants, Ms. Jamnisek and Mr. Raisp, claim possessory title to it.

4The applicants seek an order that they are the lawful owners of the subject property and an order vesting title to the subject property in their names, as tenants in common, in shares proportionate to their shares of their property. They claim that they have maintained open, exclusive, continuous and peaceful possession of the subject property since 1978. It is their position that their adverse possession of the subject property entitles them to an order granting them legal title to it.

B. Procedural issue

5This application was heard ex parte, after the applicants exhausted all reasonable efforts to serve the estate of Gordon Wyant, and to identify and locate any beneficiaries of the estate. The applicants seek an order dispensing with service of notice of the application upon the respondent.

6Gordan Wyant, and his wife, Dora Wyant, who was the sole beneficiary of his estate, and his brother, Lorne Ambrose Wyant, who was the executor of his estate, are all deceased. Gordan Wyant’s will made no reference to children. It provided that in the event that he and his wife both died as a result of the same accident, then his estate was to be divided between his surviving brothers and sisters and his wife’s surviving brother and sisters. When Gordan Wyant died on or about November 29, 1972, he was survived by Dora Wyant, and his entire estate was left to her.

7Dora Wyant died on or about October 10, 1973. No letters of probate were ever filed for her. According to the inscription on a headstone in the Stayner Union Cemetery, a photograph of which is in evidence, she was buried there together with her late husband. The applicants’ lawyer contacted the law firms in the Stayner area. Neither had any record of a will for Dora Wyant. It is unknown whether she had a will. The applicants have been unable to discover whether she had any heirs.

8The applicants searched for other properties owned by Gordan Wyant at the time of his death, to discern whether any properties passed to an heir other than his wife. The applicants were able to discover one property, other than the subject property, that he owned, about which more will be said later in these reasons. That property was sold by Dora Wyant, before her death in 1973, to unrelated third parties.

9The applicants searched for obituary notices for Lorne Ambrose Wyant, but were unable to find any. Their research suggests that he fought in the first world war. He is described in Gordon Wyant’s 1961 will as a retired merchant who lived at 231 Mill Street in the County of Simcoe. The applicants’ efforts to locate Dora Wyant’s heirs by attempting to track down the heirs of Lorne Wyant were not successful.

10The applicants published a notice in a local online publication, collingwoodtoday.ca, of their intention to apply for title to the subject property. The notice ran for 10 days and requested that any person claiming title or an interest in the subject property notify the applicant’s lawyer. No one notified the applicant’s lawyer.

11I find that the applicants exhausted all reasonable efforts to locate any party with a claim to the subject property. An order dispensing with the requirement of service of the notice of application upon the respondent will be made.

C. The properties and their historical uses

(i) The applicants’ property

12The history and uses of the properties in question are described in affidavits sworn by Ms. Jamnisek, Mr. Raisp, and their solicitor, Joseph Grant.

13The applicants purchased their property in 1978 from Erinco Homes Limited. The property transferred from Erinco to the applicants is described in the deed as:

All and singular that certain parcel or tract of land and premises situate lying and being in the Township of Nottawasaga, in the County of Simcoe and being composed of the South-east quarter of Lot Number 26, in the Second Concession of the said Township containing 50 acres more or less.

The property was subject to an easement which does not involve the subject land. The present description of the property is “Part Lot 26, Concession 2, Nottawasaga As In RO641817; Subject to RO3285891; RO462005; Clearview, and bearing Parcel Identification Number 74028-0041”. The municipal address of the property is 270 Mowat Street North, Con 2S Pt Lot 26, Clearview Township.

14It appears that the late Mr. Jamnisek dealt with Erinco Homes and the realtors when the property was purchased. Ms. Jamnisek can provide only hearsay evidence about those communications. Her understanding of what they bought, based on what her husband told her, was that the property was a large lot bounded by Mowat Street on the east and Scott Street on the west. Mr. Raisp shared Ms. Jamnisek’s belief as to the boundaries of the property.

15The applicants did not obtain a survey of their property when they bought it. They were provided with Reference Plan 15R-2243, which sets out the boundaries of the easement. Reference Plan 15R-2243, which was filed in evidence, is a plan of survey of Part of Lot 26, Concession 2. The Plan does not include all of lot 26. It does not include all of the south-east quarter of lot 26. It does clearly display the “line between north and south halves of lot 26”, which is the northern boundary of the applicants’ property. It displays part of what is labelled “line between concessions I and II”, the eastern boundary of the applicants’ property. It also displays a line, which is the western boundary of the applicants’ property, labelled “line between east and west halves”. That is a solid line until it reaches the southern boundary of Locke Avenue. To the south of that point, a broken line continues for a very short distance, to the border of the plan. If the line between the east and west halves is continued, in a straight line, south of the intersection of Locke Avenue and Scott Street, that line demarcates the eastern boundary of the subject property, and the western boundary of the applicants’ property. While Reference Plan 15-2243 may have provided cause for further inquiry as to the western boundary of the applicants’ property, it depicts only part of that property, and I accept that it did not trigger in the applicants any further need for inquiry.

16Efforts by the applicants to obtain or retrieve documents relating to their purchase were unsuccessful. They were unable to obtain copies of their lawyer’s records. This is attributable to the passage of time – more than 40 years have passed since the purchase.

(ii) The subject property

17The subject property is described as “Part Lot 26, Concession 2, Nottawasaga As In NOT19776 Lying East of Scott Street, Clearview”. It bears Parcel Identification Number 74028-0114 (LT). It is identified in a survey deposited in January, 2020, and attached hereto as Appendix A, as Part 1.

18Gordan A. Wyant is the registered owner of the subject property. As previously noted, he died on November 29, 1972. His sole heir, according to his will, was his wife, Dora Edith Wyant. She died in October 1973. The subject property was not transferred into her name prior to her death or into the name of her estate.

19Gordan Wyant bought a large parcel of land, part of Lot 26 that included the subject property, in 1944. In 1960, Gordon Wyant transferred 4.61 acres of his part of Lot 26 to the Municipal Corporation of the Township of Nottawasaga (now the Municipality of Clearwater). A plan of survey attached to the deed illustrates the property transferred to the municipality and limits the use of the transferred property to “road purposes only”. The property on which Scott Street is situated on the western boundary of the subject land was part of that transfer. The effect of this transfer was to permit the creation of Scott Street, owned by the municipality, between the subject property on the east side of Scott Street, and the remainder of the large Wyant property on the west side of Scott Street.

20The Chief Administrator of the Municipality of Clearwater does not assert that the municipality meant to receive the subject property in 1960 and that it inadvertently did not receive the subject property. Clearwater is aware of the present application, and consents to the application.

21The Wyant property situated on the west side of Scott Street was sold by the Estate of Gordon Wyant in 1973, before Dora Wyant died, to unrelated parties for $20,000. There is no evidence before me as to why the subject property was not also transferred to those unrelated parties, but it seems reasonable to infer that either the parties to the 1973 sale were unaware that Gordon Wyant owned the subject property on the east side of Scott Street or that they were uninterested in that narrow strip of land, which was separated by a roadway from the large Wyant property.

(iii) The use of the subject property

22After the applicants purchased their property, which they acquired for future development purposes, they posted “no trespassing” signs around its boundaries, as they believed them to be. As they believed that their property extended to Scott Street on the west, they posted “no trespassing” signs along the subject property’s western boundary, along Scott Street. They occasionally replaced the signs and checked on the property. The signs have been in place continuously since 1978.

23There is evidence to support the applicants’ evidence that they subjectively believed in 1988 that Scott Street was the western boundary of their property. Ms. Jamnisek, in contemplation of selling their property, filled out a multiple listing agreement in 1988. In that agreement, she represented that the property fronted on Scott Street. A copy of the listing agreement has been filed in evidence. It is evidence of Ms. Jamnisek’s state of mind in 1988.

24The applicants say that they have always treated the subject property as their own and have maintained the subject property in the same fashion as their own. The only use the applicants have made of their property and the subject property has been to walk upon both properties occasionally. Both properties are undeveloped and the only maintenance that has occurred has been the posting of the “no trespassing” signs.

25The applicants believe that they have paid the property taxes for both their property and the subject property since they acquired their property. In support of that assertion, they have filed copies of their tax bills. Those tax bills identify the property to which they relate as “270 Mowat Street”. The tax bills do not identify the boundaries of that municipal address. They do not support the applicants’ assertion that they paid the taxes for the subject property. I accept that they believe that “270 Mowat Street” included the subject property, and that the property taxes they paid related to the subject property as well as their property. But their belief about that is not supported, nor is it contradicted, by the tax bills.

26There is compelling evidence that the municipality has treated the subject property as part of 270 Mowat Street, the applicants’ property. In 2018, the Municipality of Clearview (“Clearview”), where both the applicants’ property and the subject property are located, provided the applicants with a notice regarding a proposed by-law to enable it to recover costs for sewer and water services that it installed to service several properties surrounding the intersection of Scott Street and Locke Avenue, including 270 Mowat Street. The notice included a map showing the properties for which the water and sewer services had been installed. That map, labelled “boundaries of the benefiting land”, includes the subject property as part of 270 Mowat Street.

27No one has ever sought permission from the applicants to enter the subject lands. No one has ever approached the applicants to assert an interest in the subject lands. The applicants have never sought the permission of anyone to post their “no trespassing” signs.

D. The governing principles

28In order to succeed, the applicants must establish that the respondent’s right to recover possession of the property has been extinguished by the operation of sections 4 and 15 of the Limitations Act, R.S.O. 1990, c. L.15.

29The subject property was transferred into the land titles system on November 20, 2000. Section 51 of the Land Titles Act, R.S.O. 1990, c. L.5, prevents the creation of any new possessory titles through adverse possession once land has been placed under the land titles system, but preserves any rights to adverse possession acquired prior to the placement of the land under the land titles system: McKay v. Vautour, 2020 ONCA 16, at para. 6; Sipsas v 1299781 Ontario Inc, 2017 ONCA 265, at para 18; Armstrong v. Moore, 2020 ONCA 49, at para. 18. In order to succeed, any possessory claim by the applicants had to crystallize by November 20, 2000.

30To succeed in their claim for adverse possession, the applicants have the burden to establish that their use of the subject property was "open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner", for any 10-year period prior to November 20, 2000, and that this use met the following well-established criteria:

i. They had actual possession of the property in issue;

ii. They intended to exclude the true owner from possession of his property; and

iii. They effectively excluded the true owner from possession of his property.

See: Pepper v. Brooker, 2017 ONCA 532, 139 O.R. (3d) 67, at para. 32; McKay v. Vautour, at para. 7; Barbour v. Bailey, 2016 ONCA 98 at paras. 35-6; Armstrong v. Moore, at para. 18; McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 333 O.A.C. 381 (Ont. C.A.), at paras. 9-11.

E. Analysis

(i) Have the applicants established their actual possession of the subject property?

31To establish a possessory title, the applicants must demonstrate that they have had actual possession of the subject property for the requisite time. Their acts of possession must have been open, notorious, peaceful, adverse, exclusive, actual, and continuous having regard to the nature of the disputed property: Teis v. Ancaster (Town), 1997 ONCA 1688, at para. 13.

32In the assessment of whether conduct amounts to possession, context is very important. In Mueller v. Lee, 2007 CarswellOnt 4194, [2007] O.J. No. 2543, 158 A.C.W.S. (3d) 827, 59 R.P.R. (4th) 199, at para. 15, Perrell J. noted that possession of property can be asserted in a number of ways:

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), 1965 CanLII 250 (ON SC), [1966] 1 O.R. 197 (Ont. H.C.); Laing v. Moran, 1951 CanLII 74 (ON CA), [1952] O.R. 215 (Ont. 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.

See also: Aragon (Wellesley) Development (Ontario) Corp. v. Piller Investments Ltd., 2018 ONSC 4607, at para. 130.

33The importance of context in the assessment of actual possession was noted by the Privy Council in Kirby v. Cowderoy, 1912 CanLII 366 (UK JCPC), [1912] A.C. 599, 5 D.L.R. 675, 2 W.W.R. 723, cited in Laing v. Moran, 1951 CanLII 74 (ON CA), [1952] O.R. 215, at para. 37:

. . . the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests; all these things, greatly varying as they must under various conditions, are to be taken into account in determining the sufficiency of a possession.

34In Walker v. Russell (1965), 1965 CanLII 250 (ON SC), [1966] 1 O.R. 197 (Ont.H.C.), Gale, C.J. made the same point:

The sufficiency and character of the possession necessary to pass title must be considered and tested in the light of the circumstances, which surround each particular case. Acts which amount to possession in one case may be wholly inadequate to establish it in another. Matters such as the nature of the property, the appropriate and natural uses to which it can be put, the course of conduct which the owner might reasonably be expected to adopt with a due regard to his own interests, are all matters to be considered in evaluating the adverse possession which has been proved to have been exercised by a trespasser or successive trespassers.

35Property can be possessed without being always occupied. Possession does not require continuous occupation. The common law recognizes that a person may possess land even while using it intermittently or sporadically: Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 31; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220 (S.C.C.), at para. 54.

36It is not necessary, in order to establish actual possession, that the land in question be surrounded by a fence or otherwise enclosed. Enclosure is strong evidence of adverse possession, but it is not required in order to establish adverse possession. See: Laing v. Moran, at paras. 31-35.

37The subject land, like the adjacent property owned by the applicants, has never been developed. Both are rural properties that have not been built upon, cultivated, or harvested in any way for over 40 years. Typically, possession of rural land in that state is asserted by fencing, or the posting of “no trespassing” signs, or both. The use made by the applicants of the subject property, to walk upon it from time to time, and to continuously maintain the “no trespassing” signs that they posted, is the appropriate and natural use of the subject property. It is the use the applicants have made of the adjacent property that they own.

38Their acts of possession, while limited due to the nature and natural use of the subject property, have been open, notorious, peaceful, adverse, exclusive, actual, and continuous.

39In 2018, the Municipality of Clearview (“Clearview”), seeking to recover costs for the installation of sewer and water mains to service properties in the area of the intersection of Scott Street and Locke Avenue where the subject property is located, provided the applicants with notice regarding a proposed by-law to enable it to recover costs from them for sewers and water mains that will benefit the subject land as well as their land. The municipality considers the “boundaries of the benefitting land” at 270 Mowat Street, the municipal address of the applicants’ property, to include the subject property. Clearly, the municipality considers the applicants’ use of the subject property to reflect their actual possession of the property. Their use of the subject property in 2018 was not different than it was from 1978 to 2000, before it was converted to the Land Titles system. The municipality’s perception and treatment of the applicants’ acts of possession provides convincing evidence of the nature of those acts of possession.

40There is no evidence that anyone else has made any use of the subject property since 1978. The only use made of the subject property since then is the use made of it by the applicants. They did what the owner of the subject property would reasonably be expected to have done, having regard to the nature of the property and its natural use, in order to assert their possession of it.

41I conclude that the applicants have been in actual possession of the subject property continuously since 1978.

(ii) Intention to exclude the true owner

42In order to succeed, adverse possession claimants generally, but not always, must establish that their use of the claimed property was inconsistent with that of the paper title-holder. An exception to this rule exists in cases of mutual mistake.

43In Wood v. Gateway of Uxbridge Properties Inc.. 1990 CarswellOnt 579 (Ont.Gen.Div.), approved in Teis v. Ancaster (Town), Moldaver J. (as he then was), held:

32 … Evidence of mutual mistake may justify an inference that the party seeking possessory title did in fact intend to exclude all others, including the true owners. This is an inference which may be drawn. It is not a presumption which must be drawn.

33 The trier of fact must look to the whole of the evidence to determine whether the claimant did, in fact, have the requisite intent to dispossess the true owners. However, in the absence of any evidence to the contrary, evidence of mutual mistake could alone justify such a finding.

44As Laskin, J.A. explained in Teis v. Ancaster (Town), at para. 27:

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.

45In Teis, the Court of Appeal concluded that it is not necessary for an adverse possession claimant to demonstrate that her use was inconsistent with that of the paper titleholder. The inconsistent use requirement has no application in cases of mutual mistake, where both the paper title holder and the party in possession mistakenly believe that that the party in possession owns the property at issue. See: 2279088 Ontario Inc. v. Nisbet, 2018 ONCA 897, at para. 19.

46In the circumstances of this case, the applicants intended to exclude all others from the subject property. Their actions in posting and maintaining the “no trespassing” signs are consistent with such an intention, and inconsistent with any other. I accept that they honestly but mistakenly believed that the subject property was part of their large property.

47I also accept that Gordan Wyant, his estate and the beneficiaries of his estate have for decades been mistaken as to the ownership of the subject property. That strip of land was physically separated from the larger portion of Gordan Wyant’s property when he sold the land on which Scott Street was built to the municipality. Since that time neither Gordon Wyant nor his estate dealt with the subject property in any way. I infer that when the larger portion of his property was sold by his estate after his death, the subject property was not also sold because it was assumed that Scott Street marked the eastern boundary of the Wyant property and the western boundary of the property of the applicants’ predecessors in title.

48Therefore, this was a case of mutual mistake where the applicants intended to exclude all persons, including the true owners, from the subject property.

49Even if this was not a case of mutual mistake, I adopt the reasoning of Tulloch J. (as he then was) in Marotta v. Creative Investments Ltd. (2008), 69 R.P.R. (4th) 44 (Ont. S.C.J.). Tulloch J. considered the Superior Court jurisprudence post-Teis and concluded, at para. 74, that the inconsistent use test does not apply "in specific situations involving contiguous land, a bona fide belief on the part of the adverse possessor that he or she owned the disputed lands, and no claim by or physical contact of the owner in relation to the disputed lands". See also: Barbour v. Bailey, at para. 43, where the Ontario Court of Appeal assumed without deciding that the inconsistent use criterion does not apply in cases of honest unilateral mistake.

50Therefore, even if Gordon Wyant and his estate and the beneficiaries of his estate were not mistaken about his ownership of the subject property, I remain convinced that the applicants intended to exclude all others from the subject property, and that the inconsistent use test should not be applied in this case.

51Although the applicants are not required to demonstrate that their use of the subject property was inconsistent with its use by the true owner, they are required to demonstrate that their use was open, notorious and continuous, such that the true owner would have been aware of that use and able to challenge it if he wished to do so. See: Key v. Latsky, 2006 O.A.C. 116, at para. 18.

52I find that the applicants possessed the subject land openly by asserting their interest for all to see by posting the “no trespassing” signs. They possessed the land notoriously, as evidenced by the municipality’s treatment of the subject property for the purposes of the cost recovery initiative in relation to the installation of sewer and water services. While this occurred in 2018, given the longstanding possession of the subject property by the applicants, it is evidence of the community’s perception more generally. Ms. Jamnisek’s 1988 listing agreement also evidences her open and notorious possession of the subject land. The applicants’ possession has been continuous, since they purchased their property in 1978, and since then they have intended to exclude the true owner.

(iii) Did the applicants effectively exclude the true owner?

53The requirement that adverse possession claimants must effectively exclude the true owner from the claimed property applies even in cases of mutual mistake. See: Pepper v. Brooker, 2017 ONCA 532, at paras. 37-39.

54In this case, the true owner has been effectively excluded from the subject property for over 40 years since the applicants purchased their adjoining property in 1978. The “no trespassing” signs posted by the applicants effectively asserted their possession of the subject property and served to exclude others, including the title owner. Since then, no one has challenged the applicants’ entitlement to post “no trespassing” signs erected to prevent anyone from entering the subject property. No one has requested the permission of the applicants to enter the subject property. Everyone, including the true owner, and his estate and its beneficiaries, has been effectively excluded.

F. Conclusion

55Applying the pre-conditions to a successful adverse possession claim to this case, I am satisfied that the applicants have established possessory title by way of adverse possession. Simply put, the possession of the applicants of the subject property has been open, notorious, constant, continuous, peaceful and exclusive of the rights of the true owners for over 40 years, including over 20 years before the property was registered in the Land Titles system.

56It is ordered that service of the application on the respondent, The Estate of Gordan A. Wyant, is hereby dispensed with.

57In result, there will be an order as against the respondent extinguishing all of its rights and title to the subject property, more particularly defined as Part Lot 26, Concession 2, Nottawasaga As In NOT19776 Lying East of Scott Street, Clearview, and bearing Parcel Identification Number 74028-0114 (LT).

58Further, there will be a declaration that the subject property, more particularly defined as Part Lot 26, Concession 2, Nottawasaga As In NOT19776 Lying East of Scott Street, Clearview, and bearing Parcel Identification Number 74028-0114 (LT), is vested in the name of Mary Jamnisek as to a tenant in common interest of 75% and Frank Raisp as to a tenant in common interest of 25%.

59It is further ordered that the Land Registry give effect to these orders.

60There will be no order to as to the costs of this application.

Justice J. Speyer

Released: February 19, 2021

PETERBOROUGH COURT FILE NO.: CV-20-226