ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV 21-68 / CV 21-72

DATE: 2022-12-19

BETWEEN:

Norma Jane MacQuarrie & Mala Beharry

Applicants (Respondents by cross- application)

– and –

Robert Shane Proulx

Respondent (Applicant by cross- application)

Michael Lerner, for the Applicants

Mervin Riddell, for the Respondent

HEARD: March 28, 2022

REASONS FOR JUDGMENT

S. CAMPBELL J.

Introduction

1This matter involves a dispute over the boundary between property in Port Stanley owned by the applicants Norma Jean MacQuarrie (“MacQuarrie”) and Mala Beharry (“Beharry”) who I will refer to as the applicants, and Robert Shane Proulx who I will refer to as the respondent. The applicants own property known municipally as 173 Norma Place. The respondent owns property known municipally as 171 Norma Place in Port Stanley.

2The disputed property is triangular in shape. It is illustrated in sketches marked as Exhibits 1 and 2 of the factum filed by the respondent. That sketch appears to have been originally prepared by engineers hired by the applicants for the purpose of locating a proposed dwelling. A copy of that sketch was provided to the respondent. That began a dispute

between the parties. That dispute led to both the applicants and the respondent bringing their respective applications.

Hearing of Applications

3The applications were initially heard by Carrington J. on March 28, 2022. Justice Carrington resigned before rendering a decision in the application. Thomas R.S.J. directed, with the concurrence of the parties, that I deliver a decision in this matter.

4In preparing these reasons, I reviewed the applications filed by both parties and their affidavits in support. With respect to the MacQuarrie application (File No. 21-68), I have reviewed the affidavit of Norma Jean MacQuarrie sworn August 6, 2021, the responding affidavit of the respondent sworn August 26, 2021, and a reply affidavit sworn by Norma Jean MacQuarrie dated September 27, 2021. I was directed to treat the latter as a reply affidavit in the MacQuarrie application.

5With respect to the respondent’s application (File No. 21-72), I reviewed the affidavit of the respondent sworn August 26, 2021, the responding affidavit of Norma Jean MacQuarrie sworn September 27, 2021, and the reply affidavits by the respondent and John Rowe both sworn October 20, 2021.

6In addition, I had the benefit of reviewing the factums filed by both parties and a transcript of submissions made before Carrington J. on March 28, 2022.

7I convened a case conference on June 23, 2022. At that time, I requested paper copies of all exhibits filed by each of the parties. On June 27, 2022, I received a binder of material from counsel for the respondent. That binder includes copies of all exhibits included with the affidavits to which I have referred. On July 12, 2022, I received from counsel for the applicants a bound volume of exhibits to the affidavit of Norma Jean MacQuarrie sworn August 6, 2021, and September 27, 2021.

8I also received from counsel for the applicants additional photographs and plans. At a case conference held August 9, 2022, it was determined that these documents were sent inadvertently and were to be disregarded by the court.

History of the Litigation

9The MacQuarrie application is dated August 4, 2021 and was filed first in time. In the application, the applicants claimed:

a. A declaration that their right, title, and interest to a “strip of land” running along the southerly boundary of the property known as 130 Norma Place Port Stanley and highlighted in red on the attached Schedule A “are good and the applicants have a marketable possessory title to the disputed lands.”

b. A declaration that they are entitled as against the respondent to the ownership of the disputed land.

c. Interim, interlocutory, and permanent mandatory injunction requiring the respondent to remove at his own expense any fence that had been placed on the disputed land and restraining him from trespassing on the disputed land and erecting or extending any fence or in any way changing the nature, character or appearance of the disputed land or in any way interfering with the applicant’s use and enjoyment of the disputed land.

d. A declaration that the applicant’s entitlement to the disputed land be registered on title to two properties.

10I have attached to these reasons a copy of Schedule A to the MacQuarrie application. That sketch provides a visual illustration of the disputed lands. The triangular area within the blue shaded oval represents an area within a picket fence to which the respondent claims possessory title. He also claims possessory title to the area outlined in red using his projected boundary line from the end of the fence to the street.

11The respondent application was served second in time and is dated August 20, 2021. In that application, the respondent seeks:

a. An order declaring and adjudging that the registered title and any interest of MacQuarrie had been extinguished and barred by adverse possession and possessory title in favour of the respondent and his predecessors in title or alternatively by proprietary estoppel, all respecting the “strip of land” at the southerly point of Part 11 on plan 11R32810 as depicted a crosshatch on Schedule 1 annexed to the application.

b. An order vesting in the respondent all right, title and interest respecting the said “strip of land.”

c. An order authorizing the aforesaid vesting and releasing the aforesaid “strip of land” from any application part 2 of the Family Law Act.

d. An order rectifying the parcel register for PIN 3525-10175 by deleting the applicants as registered owners of the “strip of land” and to substitute the respondent (DOB August 24, 1963).

e. An order reserving the right to give further directions as to the amendment of the partial register.

f. An order directing preparation of the registration of a reference plan.

g. An order relieving the respondent respecting any requirement for the joinder of CIBC Mortgages Inc. and directing CIBC Mortgages Inc. shall not be a party to the proceeding.

12Attached to the respondent’s application was a non-colourized version of this sketch referred to in the MacQuarrie application. Cross-hatching was drawn in the area outlined

in red on the sketch attached to these reasons and the triangular area within the blue shaded oval.

13In some documents, the title of the proceeding showed MacQuarrie and Beharry as the applicants and the respondent as the responding party. In other documents, the title of the proceeding indicated the respondent as the applicant and moving party and MacQuarrie and Beharry as the responding party. Notwithstanding how the parties styled their respective factums, the matter proceeded before Carrington J. with counsel for the applicants arguing first and counsel for the respondent responding. It is for that reason that I have titled these reasons in the manner that I have. It is for that reason I refer to MacQuarrie and Beharry throughout as the applicants and to Proulx as the respondent.

Background

14The applicant’s property is legally described as part of Lot 25 registered plan 117 Village of Port Stanley, County of Elgin being part of Lot 11 on 11R-3280. The legal description of the respondent’s property is also part of lot 25 plan 117 Village of Port Stanley and is part 10 on plan 11R-3280. Both properties have been assigned a Property Identifying Number (PIN). The applicant’s PIN is 35251-0175. The respondent’s PIN is 35251-0176.

15In their factum, the applicants described the eastern half of the southerly boundary of Part 11 on plan 11R-3280 as being “lined” by a picket fence situated further onto their property than the registered property line. The applicants conceded that the respondent had acquired possessory title to a “strip of land” bounded by the fence. However, in oral submission the applicants appeared to resile from that position.

16There is no other identifiable boundary or demarcation of the southwesterly limit of the applicant’s property other than the existing picket fence. This fence is also seen in some of the photographs filed as exhibits by the parties. See for example Exhibit F to the affidavit of Norma Jean MacQuarrie, sworn August 6, 2021, and photograph 4 of Exhibit F attached to the affidavit of the respondent sworn August 26, 2021. The lands to the west of the picket fence appear to be open lawn such that the properties appear to be contiguous.

17The applicants’ acquired their property December 1, 2006. The respondent’s mother, Eva Proulx and her spouse, obtained title to the respondent’s property July 28, 1995. She held title to the property either with her former spouse or the respondent until September 9, 2011, when the respondent acquired title in his name alone.

18On February 19, 2007, the lands were converted to Land Titles Qualified. This barred any further acquisitions of title by adverse possession. However, any rights to title by previous possession were preserved: see section 46(1) of the Land Titles Act, R.S.O. 1990, c. L.5 (“Land Titles Act”).

19A survey grading plan dated July 25, 2019 was completed by Archibald, Grey and McKay Ltd. (“AGM”) with respect to the applicants’ property. That survey sketch outlined the property lines in a manner that I find to be consistent with the registered legal descriptions.

20It appears that the respondent obtained a copy of this sketch and communicated by text message to the applicants his view that the plan was flawed and in error. The text asserted there should be no changes to the pre-existing features and landmarks along the southerly boundary of the applicants’ property. Further text messages were exchanged between the parties. Eventually there was correspondence between counsel for both parties and ultimately the issuances of each parties’ application.

21I would note that in May 2022, a tenant of the respondent constructed what is described by the applicants as a low rock boundary and a temporary section of picket fence. This created an extension of the existing picket fence. It is the land extending south westerly from the pre-existing picket fence to the point where the projection of the fence intersects with the limit of the street (Norma Place) for which the respondent made a claim of title by possession. The applicants take the position that they have title to the disputed property and that title is not subjected to any valid claim by the respondent for possessory title.

Use of the Property

Evidence of MacQuarrie

22The parties disagree on how the disputed area was used.

23In her affidavits, MacQuarrie states that she resided at the property between 2006 and 2008. During that time, she regularly maintained the lawn of her property which included the disputed area. She also regularly walked across the disputed lands from her driveway while bringing groceries into the house. She deposes that her use was open and visible and never resisted by the respondent, his predecessors in title, or his tenant.

24MacQuarrie acknowledges that from 2008 to 2018, a tenant occupied the property owned by the applicants. She stated during that time she was not made aware of any discussion as to the boundary beyond the existing fence with anyone including the respondent, his predecessors in title, or tenants. In addition, she states that her tenant and her tenant’s father walked back and forth between the properties and that the tenant regularly socialized with the respondent’s tenant. She does not identify her source of belief.

25She further states, again without identifying the source of her belief, that during the last few years of her tenant’s tenancy the respondent’s tenant maintained the lawn for both properties. This apparently was done in appreciation of kindness her tenants had towards the respondent’s tenant. She states that the lawnmower used to maintain the “collective lawns” was provided by her tenant’s father.

26The applicant’s home was demolished in August 2019 to allow construction of a new home. In September 2019, the parties exchanged a series of text messages where the dispute between the boundary of the properties was raised. In May of 2020 that the respondent’s tenant erected a rock barrier in a straight line as an extension of the existing fence. In 2021, he added lawn furniture and plants. The tenant refused to remove what he had placed on the property despite demands from MacQuarrie and her counsel.

27MacQuarrie states it was her intention at the time the dispute arose to replace the existing fence and to erect a new fence along the entire length of the lot line between the two properties. However, as a result of the dispute between herself and the respondent, that was never accomplished.

28In her affidavit, sworn August 6, 2021 MacQuarrie deposes at para. 35 “The temporary section of the picket fence and rock border are recent and arbitrary and do not reflect the respondent’s entitlement. I am prepared to concede the 35 square feet on the respondent’s side of the original fence and no more.” She cites the respondent’s lack of cooperation for her apparently changed position.

29At para. 24 of her affidavit, sworn September 27, 2021, she states, “I continue to be willing to accept the position of the existing fence as the established boundary between my property and that of the applicant but only to the extent of the current length of the fence.” She refers to an email from her counsel to the respondent’s counsel dated November 16, 2020.

30It is MacQuarrie’s evidence that in the survey work done by AGM there was no deviation from the original property line. AGM advised that they were in possession of a 1995 real property report prepared for the respondent or his predecessor in title. This confirms the lot lines as monumented by the stakes placed during AGM’s survey of November 18, 2020. A copy of the November 18, 2020 survey was attached as Exhibit P to her affidavit.

31MacQuarrie states that the respondent and his predecessor’s title did not exclude her or her tenants from using the disputed property, nor did they attempt to do so until the respondent’s tenant erected the rock boundary in May 2020. It is her evidence that the respondent and his predecessors in title never performed any maintenance or improvements on the land beyond the occasional grass cutting. That action was a reciprocal responsibility taken on by residents of both properties from time to time.

32MacQuarrie states that she believes the respondent and his late mother were aware of the true boundary, and that it was reflected in a plan of survey prepared May 9, 1995, by Donald Houghton. A copy of the plan of survey was produced. However, that plan of survey includes the following statement, “This plan must be read in conjunction with the survey report dated May 9, 1995.” That surveyor’s report was not produced to the court, and later in these reasons I will refer to efforts made to obtain a copy of that document.

33Attached as Exhibit A to the affidavit of MacQuarrie of August 6, 2021 is a copy of the reporting letter from the solicitor who acted for the applicants when they purchased the property. Included with that report is a deed dated December 1, 2006 as instrument number 458672 for part of lot 25 plan 17 being part 11 of plan 11R3280 in the Municipality of Central Elgin, formerly the Village of Port Stanley.

34Also included is a declaration by Lyn Patricia Buckland, sworn November 3, 2006. In that declaration, Ms. Buckland deposes that she has been the absolute owner of the property since November 28, 2000, and that she is not aware of any easement or encumbrance

affecting the title except as disclosed by the registered title. She further deposes that her possession and occupation has been undisturbed throughout any action, suit, or other proceeding or “adverse possession or otherwise in the part of any person whomsoever.” To the best of her knowledge and belief, the buildings used in connection with the premises are fully within the limits of the lot and “there is no dispute as to the boundaries of the said lands.”

35Buckland further deposes that the buildings and fences shown on the sketch prepared by Donald Houghton and dated 1987 have not been changed or altered in any way during her period of ownership except for a shed, a side addition, some fencing, and a doghouse. A copy of that sketch is attached to the declaration. It does not show the fence along the southwest border of part 11 on plan 11R-3280. That is, it does not show the fence within the blue oval in the copy of the sketch attached to these reasons. It does show a shed close to the boundary between part 11 and part 10 on plan 11R-3280.

36Attached as Exhibits F-J of MacQuarrie’s August 6, 2021 affidavit are a series of photographs. They appear to be an attempt to provide visual illustration of the disputed area. What the photographs appear to depict is open lawn from the last fence post to the edge of the road.

37Attached as Exhibit P to the affidavit of MacQuarrie sworn September 27, 2021 is a letter from Robert Woods OLS to her dated November 30, 2020. The letter states, “The location of the limit between parts 10 and 11 as surveyed and described above is in agreement with the location of the same limit as shown on Plan 11R-3280 and on the May 9, 1995 surveyor’s real property report.”

38The letter described an iron bar set as part of a survey for a surveyor’s real property report, dated May 9, 1995, and found 23.165 Meters (76’) easterly along the limit between parts 9 and 10. It notes “these survey monuments were determined to be undisturbed and in their original location.”

39Two additional iron bars were set along the limit between parts 10 and 11 easterly from the limit intersection with the easterly limit of Norma Place. Those monuments were further marked by a wooden stake. The letter further notes there is a picket fence along a portion of lot 9 and 10 on plan 11R-3280. The last post of the eastern end of the picket fence before its intersection with a north-south running board fence is approximately 0.55 meters north of the surveyed limit. This information is illustrated in the sketch attached to these reasons.

40Exhibit S to the affidavit of MacQuarrie sworn September 27, 2021 is a letter from the same surveyor to her dated December 16, 2020. The letter states that the author has reviewed a letter from Douglas G. Gunn, Q.C. (apparently former counsel to the respondent) dated December 9, 2020. A colour photograph and copy of plan 11R-3280 are attached to the letter. The letter states that the copy of the coloured photograph is marked with numbers 1 through 3, corresponding to the same location marked on the enclosed copy of plan 11R-3280.

41The letter states that, in summary, the author agrees with the limits between parts 10 and 11 on plan 11R-3280. That is confirmed by AGM’s field survey and a “surveyor’s real property report” dated May 9, 1995. He adds the short standard iron bar at point 3 represents the intersection of the limit between parts 10 and 11 on plan 11R-3280 with the easterly limit of the Norma Place road allowance.

42I was not provided any information with respect to the age of the photograph, but it appears a child is standing at a red survey stake. Therefore, I assume it was a photograph taken recent to this proceeding. The photograph would seem to illustrate open lawn between the two properties.

Evidence of the Respondent

43In the respondent’s affidavit sworn August 26, 2021 in support of his application, he distinguishes between “paper title” and “possessory title”. He acknowledges that the applicants hold paper title to part 11 on plan 11R-3280 since December 2006. He took paper title to part 10 on Plan 11R-3280 on September 9, 2011 from his mother’s estate. His mother took title to the property on July 29, 1985. However, he further deposes that he believes that he holds possessory title to what he describes as a “strip of land” situated in part of the southerly portion of part 11 on plan 11R-3280 abutting the north limit of part 10.

44I would note that throughout his affidavits the respondent makes references to law. The first instance of that is in para. 7 of his affidavit sworn August 26, 2021. There, he refers to s. 46(1) of the Land Titles Act and the fact that the lands were administratively converted to lands titles qualified on February 19, 2007. He deposes that his possessory title was acquired or matured prior to February 19, 2007. Therefore, any remedy of the registered title holder respecting this “strip of land” was barred prior to February 19, 2007.

45In his affidavit sworn August 26, 2021, the respondent deposes the “complete” parcel of lands owned by him consist of part 10 on plan 11R-3280 and also a “strip of land” which is part of part 11 on plan 11R-3280. He deposes that he has acquired title to part 11 by adverse possession by his predecessors in title. He describes the easterly portion of the “strip of land” as a triangle shown on Exhibit A to his affidavit. This is the cross-hatched area within the dark shaded oval as shown on Schedule 2 to his application. The westerly portion of the “strip of land” that he claims possessory title for is disputed area described in the applicants’ application. In his affidavit, he refers to the “’neighbours’ projected” boundary line to the street. The respondent also deposes that in the affidavit that it is his understanding that the picket fence area is acknowledged to delineate, in part, the boundary of their properties.

46He deposes that at the time he obtained title that he believed the northerly limit or boundary of his property was “delineated” in part by the picket fence. From there, the northerly boundary is a straight line projected to the street. Therefore, he believes he has title to the entire “strip of land” shown as the cross-hatched area on Exhibit A.

47Attached as Exhibit C to the respondent’s affidavit sworn August 26, 2021 is a copy of the title searcher’s notes for the property. There do not appear to be any disputes as to the accuracy of those notes. Similarly, Exhibits D and E do not appear to be disputed.

48The respondent deposes at para. 20 of his affidavit sworn August 26, 2021 that to his personal knowledge, the

[A]ctual open notorious adverse continuous exclusive peaceful and visible use of the occupation of the said “strip of land” by my predecessors in title prior to February 9, 2017 has been to the full level of use and control reasonably possible for an owner based on the type of property. The type of property is (lawn vegetation and residential usage) and that that such use and occupation would be readily apparent or discernable putting any paper title claimant on notice beginning within about a month of July 28, 1995.

The latter date is the date on which his mother first took title.

49He further deposes that use and occupation of the lands by his predecessors in title, and prior to administrative conversation on February 19, 2007, was at all times “adverse”. That is, at no time did his mother occupy the “strip of land” with anyone’s permission. Nor did she ever acknowledge any other person having any title or interest in the land. He states that it is his personal knowledge and belief that his predecessors in title intended to use and occupy the land as absolute owners to the exclusions of others. Such occupation was open, notorious, peaceful, adverse, exclusive, actual, and continuous. He does not provide any specific basis for this belief or disclose any specific source for his belief.

50The respondent deposes that it was not until mid 2019 that this “strip of land” came into dispute. He is certain that his predecessors in title intended to exclude all owners including the owners of part 11 on plan 11R-3280. Indeed, the persons holding the registered title to that property were out of possession for 10 years prior to February 19, 2007. He reiterates that he is personally aware the prior owner’s possession because he knew his predecessors in title and was personally acquainted with the “strip of land” and the circumstances with respect to it for at least 10 years prior to February 19, 2007. In that regard he deposes that after his mother acquired title to the property, he frequently visited her. He noticed the presence of a picket fence within approximately one month after July 28, 1995.

51The respondent states that attached to his affidavit are three family photographs taken by him and described in his affidavit. In fact, there are five photographs. He states in photograph number 1 and 2 the picket fence is circled and can be seen in the background. Photograph 3 taken in summer 1997 shows a guest on a hammock on the deck of 171 Norma Place. The photograph shows the westerly portion of the “strip of land” but no portion of the fence.

52He states photograph 4 was taken in June 2021. It depicts a view looking easterly from Norma Place. The lawn area, vegetation and occupation lines are on part of the westerly

section of the “strip of land”. The yellow caution tape shown on the photograph is from the location of a survey bar planted near the street and runs to the westerly area of the picket fence. He states the yellow caution tape marks the boundary as claimed by the applicant.

53Exhibit 5 is a photograph also taken in June 2021. It shows a view to the west of the deck of 171 Norma Place and shows the same area as the preceding photograph.

54Also included with Exhibit F to the same affidavit, is an email dated August 24, 2021 from Dave Kuus to the respondent. The parties agreed this would be admitted without further proof. That email states that he visited the respondent property several times in 1995 and 1997. He recalls there was a white fence on the north side of the property where he (the respondent) had a shed and a fire pit. I would note that the survey sketch purported to be dated from 1987 and attached to the affidavit of Ms. Buckland shows a shed wholly on lot

11. A more recent survey completed by Kim Husted Surveying Limited dated May 17, 2021, shows a shed wholly on lot 10.

55In his affidavit, the respondent deposes that his mother possessed the property by lawn cutting, general maintenance, planting of vegetation, weed control, snow removal and “otherwise to the time of her death on May 11, 2011.” If anyone challenged her possessory title, he would have been aware of that and he was not. The boundary was visibly designated by the white picket fence and then by the projection of the mid point of the picket fence to the street along the same bearing. Grass cutting and lawn maintenance was done to the fence line as projected. All other enjoyment and use occurred, treating the boundary line as the projected fence line.

56The respondent states that he believes that the applicants and their predecessors in title ought to have been aware of his mother’s occupation of the property. Specifically, they should have been aware of her expenditures on the property including yard work, lawn cutting, maintenance, and improvement. By failing to object to this activity, the applicants impliedly encouraged he and his predecessors in title to believe that there was possession by the owners of 171 Norma Place, as they were preforming work on property owned by them.

57He further deposes that he believes, in the alternative, by virtue of the doctrine of proprietary estoppel, it would be conscionable and unjust for the registered owners of the adjoining lands to now attempt to take advantage by advancing any alleged rights or claims to the disputed property. He deposes that the applicants ought not to expect to receive the benefit of his labours.

58Exhibit G to the respondent’s affidavit sworn August 26, 2021, is the survey prepared by Kim Husted Surveying Limited. The respondent deposes that this survey reflects paper title, or “registered title,” and that possessory title is a separate consideration.

59In a subsequent affidavit dated October 20, 2021, the respondent reiterates a number of statements in his previous affidavit. Particularly that the pertinent time period to establish possessory title is the 10 years prior to conversion to land titles qualified.

60The respondent states that MacQuarrie incorrectly alleges in her affidavits that there is a lack of an identifiable boundary demarcation. He deposes there is “a common character respecting the ‘strip of land’ and the remainder” of his property. He further states that he believes that the “strip of land” constitutes part of the whole parcel of land occupied. The “existing fence and projection thereof westerly to the easterly limit of Norma Place constitutes the clear, apparent demarcation of the pre-February 19, 2007 and ongoing boundary.”

61The respondent also disputes MacQuarrie’s allegation that she maintained the fence by painting it. Rather, he states that he was informed by his tenant that it was the tenant that had maintained the fence. Specifically, the tenant re-attached the fence with screws on some of the boards.

62Further, the respondent disputes MacQuarrie’s allegation that both owners used the property together. He states he is advised by his tenant that the tenant regularly cut the grass on the projected line and that the applicants did not possess or use the “strip of land” in any manner.

63The respondent does not dispute MacQuarrie’s statement that she enjoyed a good relationship with his mother. The respondent believes this confirms that MacQuarrie did not object to the boundary along the northerly limit of the “strip of land”. He believes that his mother would have mentioned this to him if there was any dispute prior to her death.

64The respondent disputes MacQuarrie’s statement as to her use of the property. He deposes that if she did indeed walk over the land, it was to bring the groceries to her home, not to exercise control or possession over the property. He denies that she did any maintenance or lawn cutting on the property as she alleges. Further, this activity would have occurred after February 19, 2007, and is therefore irrelevant.

65The respondent acknowledges that his tenant did cut the grass for the applicants’ tenant. That was a neighbourly consideration. However, his tenant used his own lawnmower. He emphasizes there was no collective lawn, only the separate lawns. When the applicants’ tenant’s father cut the grass, he observed the northerly limit of the “strip of land” as the boundary. A periodic cutting of both lawns by either was just a friendly, neighbourly gesture and not a challenge to exclusive use or possession by him or his tenant.

66The respondent further deposes that he honestly, but mistakenly believed that he was the registered or paper title owner of the property for which he now claims possessory title. Neither he nor his mother understood that surveys described paper title boundaries based solely on registered documents and that possessory title is a separate consideration.

67Also filed in support of the respondent’s position is an affidavit sworn October 20, 2021, by his tenant John Rowe. Mr. Rowe has occupied the property since about April 2014. He states that the statements made in the respondent’s affidavit attributed to him and his contact as described are true.

Oral Evidence of Ward Houghton

68In addition to receiving the affidavit evidence and the exhibits, the court arranged to hear oral evidence from a surveyor, Ward Houghton. Mr. Houghton was employed by Donald Houghton OLS when the plan of survey for part of lot 25 Plan 117 was prepared in May 1995. He is the person who signed the surveyor’s certificate.

69In examination by me, Mr. Houghton acknowledged that he prepared the plan of survey and a surveyor’s report. He objected to the court using his plan of survey alleging it violated copyright laws. He stated that he had not been paid a fee for the use of this material. In questioning by me he refused to state what was contained in part 2 of the report. Again, his reason for declining to provide that information was that he had not been paid the requested fee.

70I found Mr. Houghton’s refusal to respond to the court’s questions troubling. His licence to work as an Ontario Land Surveyor has been administratively terminated. He obviously holds significantly hard feelings towards the Ontario Land Surveyor’s Association in particular, and the court process in general. His evidence was unhelpful. Given his attitude and demeanour with respect to the court and the court process, I find little weight can be given to his evidence. He was of no assistance to the court in determining the issues which I am charged to determine.

Position of the Parties

Position of MacQuarrie

71MacQuarrie rejects the respondent’s claim for possessory title of this disputed land by way of adverse possession on the following basis:

a. The respondent did not take actual possession of the disputed land until May 2020, at which time his reliance on the laws of adverse possession were barred by registration of the applicants’ property on the Land Titles Act.

b. The respondent never manifested or displayed the intention to exclude, or did actually exclude, the applicants as owners until May 2020.

c. The applicants never discontinued their open, uninterrupted possession, or use of the disputed land.

72The applicants argued that the existing picket fence was in its current location at the time they acquired the property, and that was the only obvious or apparent boundary demarcation. Further, the lack of an identifiable boundary demarcation is verified to at least as far back as 1997. Indeed, the property was used by the applicants’ and the respondent’s predecessors in title together and separately. The respondent’s predecessors in title never disputed that the property belonged to the applicants, nor took any action to indicate that she possessed disputed land or expressed any intention to exclude the applicants from the land.

73MacQuarrie acknowledges that s. 44(1) of the Land Titles Act preserves rights that existed prior to the time the land was registered under the Act. However, any claim for adverse possession by the respondent did not mature into possessory title by the time the applicant property was registered under the Land Titles Act. That registration occurred administratively on February 19, 2007. For the respondent to succeed in his claim, he must prove he acquired possessory title to the disputed land before February 19, 2007. Therefore, the respondent’s mother must have begun establishing adverse possession no later than February 1997, and the evidence does not establish that occurred.

74Counsel argued the test is as stated in Masidon Investments Ltd. v. Hamm 1984 CanLII 1877 (ON CA), 1984, 45 O.R. (2d) 563 (C.A.) (“Masidon Investments”), and restated in McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, at para. 9. The test states that to establish adverse possession of certain lands, a claimant must demonstrate that throughout the 10-year adverse possession period he or she:

a. Had actual possession of the lands in question,

b. Had the intention of excluding the owner from possession,

c. Effectively excluded the true owner from possession.

75The applicants submit that the claimant, the respondent, must meet each of the criteria. The applicants emphasized that the onus is on the respondent to satisfy the court that he has met the test and therefore has acquired possessory title to the property which initially was deeded to the applicants. Further, the 10-year period will begin to run against the titled owner of the property from the last date all three prongs of the test are met. If any element is missing, at any time during the statutory period, the claim for possessory title will fail.

76With respect to actual possession the applicants argues that neither the respondent nor his predecessor in title or tenant took any action that would suggest they had custody and control of the disputed area to establish actual possession. The respondent has failed to prove the acts of possession were open, notorious, peaceful, adverse, exclusive, actual, and continuous. The applicants argue the respondent’s claim that his actual possession through “general maintenance” of the “strip of land” including planting of grass, weed control and snow removal is not sufficient. The applicants dispute that these acts occurred. Simply stated, the alleged acts by the respondent were, even if they did occur, not open, notorious, peaceful, adverse, exclusive, actual, and continuous.

77With respect to the second prong, the applicants argue that the respondent has not established there was an intention to exclude the true owner from possession of the disputed land. The use of the respondent and his predecessors in title, if any, of the disputed land was not inconsistent with their and their predecessors in title’s use.

78The applicants acknowledge that the respondent may claim that his predecessors in title were mistaken as to the property boundary, and as such the inconsistent use test would not apply. However, the respondent’s predecessor in title was aware of the boundary by virtue

of their possession of the 1995 real property report. That report demonstrates the property boundary.

79The non-application of the inconsistent use test has been relegated to cases of mutual mistake. That is not the situation here. The applicants were always aware of the location of the property boundary. Further, the non-application of the inconsistent use test in cases of unilateral mistakes has been held not to assist a claimant to establish intention to exclude a respondent from his disputed land.

80The applicants further submit that if the inconsistent use test does not apply, the respondent failed to establish an intention to exclude titled owners from the disputed land. There was no fence or barrier or physical demarcation of the disputed land until May 2020. Lawn cutting and maintenance as alleged by the respondent cannot establish such intention. More is required, particularly where there has been no apparent boundary demarcation.

81With respect to the third prong, the applicants argue that if the inconsistence use test was found to apply, they and their predecessors were never excluded from the disputed land for the required period of 10 years. The applicants state that fact is admitted by the respondent in his reply affidavit, where he acknowledges that the applicants themselves cut the grass on the disputed land after having moved in. It defies logic to conclude that Buckland who owned the property for a period of six years never set foot or tended to the undisputed land. As the court stated in Shennan v. Szewczyk, 2010 ONCA 679 (“Shennan”), quoting the trial judge at para. 7: “It simply was not important to know the exact boundary was because no one cared. The boundary did not define the relationship between the neighbours.”

82Even if the respondent had use of the disputed land there is no issue unless the use by, he and his predecessors in title, prohibited the titled owner from access to and the use of the land. In this matter, there was little evidence from the owners of the respective properties. There is a declaration from Buckland, but nothing from the respondent’s mother. As well, it is established that the respondent’s mother took no steps to assert or prove her possessory claim.

83The applicants submitted that the respondent’s argument that the evidentiary threshold for establishing adverse possession may be lower in cases of mistake does not change the fact that the burden of establishing effective exclusion remains with the respondent. This was confirmed in Barbour v. Bailey, 2016 ONCA 98 (“Barbour”), a decision referred to by the respondent.

84The applicants argued that while the respondent agrees in his factum that demarcation is an important factor where no enclosure exists, he has adduced no evidence at all of demarcation. He relies on an “imaginary line” projected from the rear of the property to the front.

Position of the respondent

85In submissions, counsel for the respondent outlined the chronology of what he argued were significant dates. That chronology focused on a period of time that Eva Proulx, the

respondent’s mother, took title to the property. It was noted that the applicants acknowledged this existing fence, to the extent of the current length of the fence, is the established line between the property of the parties. Further, the applicants in their factum conceded possessory title to the respondent of 35 square feet on the respondent side of the original picket fence.

86It was the respondent’s position that pursuant to s. 46(1) of the Land Titles Act, the registration of land with a “qualified title” does not affect or prejudice the enforcement of any right or interest acquired before conversion. That would include any possessory rights of the respondent and his predecessors in title acquired before February 19, 2007. The provisions of s. 51 of the Land Titles Act were acknowledged but the respondent argued where possessory title matures or crystalized before the conversion date, such possessory rights remain.

87The respondent submitted that adverse possession is a common law devise of long standing. By the right of a prior possessor of land, typically the registered title holder, it may be displaced by another who’s possession of the land goes unchallenged for this prescribed 10-year period. A mistake to boundary location may justify an inference that a claimant of possessory title occupied the disputed land with the intention of excluding the true owner. Further, even a mistaken assumption may nonetheless constitute acts of possession if continued for the requisite period.

88Counsel for the respondent argued that lot lines are most often an imaginary lot line of which no one is aware. In Heng et al. v. Rodriguez et al., 2015 ONSC 1677 (“Heng”), Dunphy J. referred to a mistake as unilateral by the claimant or mutual by abutting owners. The intention of the parties could be inferred from the circumstances. In Heng, there was a long-standing fence that was recognized as a real boundary. In this matter, the intentions of the parties can be inferred from the totality of circumstances.

89In this matter, the mutual mistake of the parties should cause the court to conclude that the registered title based on plan 11R-3280 does not coincide with the boundaries created by the fence. Rather, the boundary is an extension of the existing fence along the same bearing to the road allowance. Eva Proulx began her possession of the disputed property “about one month” after July 28, 1995, the date on which she took registered title to the property.

90Counsel referred and relied on Gibb v. Pereira, 2017 ONSC 4762 (“Gibb”). Counsel submitted that the principles outlined by Leach J. in that decision were particularly cogent for this matter. Counsel also referred to Cantera v. Eller, 2008 ONCA 876, [2008] O.J. No. 5220 (“Cantera”), and later in Barbour. In those cases, the court did not conclude that the inconsistent use test does not apply in cases of honest mistaken belief. Therefore, if the claimant is not aware that he or she is on property held under someone else’s paper title, time will still run as against the paper title owner.

91The respondent argued that reasonable inferences may arise when successive owners are owners in occupation. However, inferences only arise when established by the evidence and not by speculation. The applicants did not provide any evidence for the pre-2007

period. Therefore, there is no basis for any relevant inference. There need not be direct evidence of intent, but such intent may be inferred from the totality of the evidence. Here, the applicants do not have any evidence to offer on the issue of intent.

92Counsel submitted that physical obstruction or enclosure is not required to establish the claimant’s effective exclusion. The absence of any objection or evidence of use by the paper title holder leads to an inference that the paper title holder was out of possession. Further, enclosure is not necessary where a boundary is identified on the ground. The appearance of demarcation is an important factor. However, the extent of the demarcation required depends on the circumstances and nature of the properties.

93The respondent submitted that the law protects “settled intentions of adverse possession.” Possessory title allows the law to do justice for situations between neighbouring landowners that by their words and conduct have, for lengthy periods of time, treated ownership of the lands in a settled way.

94In this matter the applicant has acknowledged a “strip of land” having an established boundary line. That strip is bounded by the fence and the extent of the boundary was a reasonable conclusion. Counsel referenced cases involving buildings and access to the buildings being considered as a continuation of a line of possession. It was submitted that the same concept of fences as boundary lines projected had applied here.

95In that regard, counsel referred to Laing and Laing v. Moran and Moran 1951, 1951 CanLII 74 (ON CA), [1952] O.R. 215-229 (C.A.), and Mueller v. Lee, 2007 CanLii 23914 (ON SC). In those cases, the court referred to the paper title owners being expected to adopt a course of conduct which might reasonably be expected in regard to their own interest. Therefore, the evidentiary onus shifts to the paper title holder to show objections during the pertinent 10-year period. In this matter, that’s between mid-1995 and February 19, 2007.

96Counsel for the respondent also referred to the three-prong test to establish adverse possession. It was submitted that the first prong of the test must be considered in the context of the nature of the disputed property. Adversity means possession without permission. Use can establish actual possession, but use is not necessary for possession. That is, it is not necessary to construct improvements, enclosures, fences, or barriers. Enclosure is strong evidence, but not indispensable. Counsel gave as an example cases involving farmland and referred to Teis v. Ancaster (Town of) 1997 CanLII 1688 (ON CA), 1997, 35 O.R. (3d) 216 (C.A.), 152

D.L.R. (4th) 304.

97With respect to the second requirement of intention, the law protects good faith reliance on boundary errors or settled expectations of innocent adverse possessors. Where there is a mutual mistake, the law acknowledges that the settled expectation of the parties infers the claimant occupied the land with the intent to dispossess all, including the true owner. The second prong can be applied to claims of adverse possession by unilateral or mutual mistake. It may be presumed in the absence of evidence of the contrary.

98The third requirement is that the title owner has been effectually excluded from possession of a period of 10 years, and is satisfied if he or she believes the land belongs to the claimant. The claimant’s belief objectively and reasonably held is not displaced by a survey.

99Counsel also referred to proprietary estoppel. By failing to object during the relevant limitation period, the paper title holder can be held in equity to be estopped from denying the claimant’s possessory title. Here, the applicants concede the fence as being a partial boundary line, acknowledging implicitly its obvious impact on a reasonable expectation as to the northerly boundary to the westerly part of the front lawn.

Reply Submissions

100Counsel for the applicants submitted that the respondent was relying on two grounds: the extension of the fence and what he purports to be significant usage. However, there is no evidence of restriction or inability to access the property. It is grass on grass, and the photographs confirm that.

101The evidence of Ms. Buckland confirms there was no dispute between the parties. However, no one suggested to her that the boundary of the property was anything different than that which appeared on paper. Eva Proulx had a survey. There were markers in the ground that delineated the property. Whether the respondent or his predecessors in title noticed them is not the applicants’ problem. The onus is on the respondent and the Shennan case is analogous to the situation now before the court.

Legal Issues

102Notwithstanding how each party framed the issues in their applications, factums, and oral submissions, in my view there are two issues to be resolved:

a. Has the respondent acquired possessory title to the disputed land by adverse possession?

b. Are the applicants stopped from denying the respondent’s claim of possessory title pursuant to the doctrine of proprietary estoppel?

There are other issues of law to be considered in a determination of those issues. However, the crux of all the issues raised by the parties is that which I have simply stated.

Non-Contentious Legal Issues

103Both parties accept that by virtue of s. 51 of the Land Titles Act, adverse possession cannot be obtained against property registered in Land Titles. They further agree that if possessory title matures or crystalizes before land which was registered under the Registry Act, R.S.O. 1990, c. R.20 is converted to Land Titles, those possessory rights survive. The property was converted to Land Titles Qualified February 19, 2007. Therefore, the court must determine whether the respondent or his predecessors in title acquired possessory title prior to that date.

104To be clear, it was the position of the respondent that his mother started her possession prior to February 1997. That is more than ten years before the conversion date. Indeed, his position is that she began to acquire possessory rights shortly after she purchased the property on July 28, 1995.

105The parties both appear to accept the principle that the onus that possessory title has been acquired is on the person seeking a declaration of title: see para. 26 of MacQuarrie’s factum. Counsel for the respondent acknowledges this when he submits the evidentiary threshold of establishing adverse possession may be lower, on an occupier by mistake, than on a deliberate and intentional trespasser. (para. 24 of the respondent’s factum)

Test for Adverse Possession

106In Barbour, Roberts J.A. at para. 35 stated the test to establish adverse possession as requiring a claimant to possessory title throughout a 10-year period pursuant to s. 4 of the Real Property Limitations Act, R.S.O. 1990 c. L.15 is required to establish that he or she:

a. Had actual possession of the property in issue,

b. Had the intention of excluding the true owner from possession of his property, and

c. Effectively excluded the true owner from possession of his property.

107Counsel for the respondent referred the court to Masidon Investments. In that case, the court stated the claimant’s possession must be “open, notorious, constant, continuous, peaceful of the right of the true owner for the full 10-year statutory term”: see also Fletcher

v. Storoschuk et al. 1981 CanLII 1724 (ON CA), 1981, 35 O.R. (2d) 722 (C.A.), 128 D.L.R. (3d) 59. A claim for adverse possession will fail unless a possessory claimant meets all the criteria described above. The time will begin to run against the true owner only from the last date when all criteria are satisfied [emphasis added]: Masidon Investments, at p. 57.

108To establish open, notorious, peaceful, exclusive, adverse, actual and continuous possession requires a sufficient degree of physical custody and control and an intention to exercise such custody and control: see Bradford Investments (1963) Ltd. v. Fama 2005, 77

O.R. (3d) 127 (S.C.), 2005 CanLII 27322 (ON SC), 257 D.L.R. (4th) 347 (“Bradford Investments”), at para. 67. A true owner does not have to exercise the same degree of control over his or her property as a person claiming adverse possession. That is, the holder of paper title is regarded as being in constructive possession of the entire property when in actual possession of merely a part: Barbour, at para. 45. The true owner does not have the burden of proving open, notorious, continuous, peaceful, and exclusive possession of the use of their property for the ten-year period: Barbour, at para. 46.

109The second prong of the test requires an intention to exclude. In Keefer v. Arillotta 1976 CanLII 571 (ON CA), 1976, 13 O.R. (2d) 680 (C.A.) (“Keefer”), the court held that this requires an intention to exclude the owner from such use as the owner wants to make of his or her property. This branch of the test has been referred to the inconsistent use test.

110The respondent claims that the inconsistent use test does not apply in these circumstances. It is his position that the court should give effect to good faith reliance on bona fide boundary errors or the apparent settled expectations of innocent adverse possessors who acted on the assumption that their occupation will not be disturbed.

111The third prong of the test is the effective exclusion of the true owner from possession of the land. Even where the inconsistent use test does not apply, the effective exclusion of the true owner throughout the 10-year period remains a requirement to establish adverse possession: see Barbour, at para. 47; Shennan, at paras. 18 and 19. It is a matter of evidence whether or not this branch of the test has been met.

112The onus is on the party seeking to establish possessory title to satisfy the court that the test has been met.

Application of Legal Principles

113In their factum, the applicants conceded that the respondent had acquired possessory title to the area within the fence. That is the area outlined in blue in the schedule to which I have attached to these reasons. They sought to resile from that position in the course of argument on the matter. Therefore, in my view, the application has to be considered in two parts. The first part is the triangle within the blue shaded oval. The second part is the area outlined in red.

A. Triangular Area in Blue Oval

Actual Possession

114There is no clear evidence as to when the picket fence between the two properties was constructed. Nonetheless, it does not appear contentious that the fence existed for many years and likely before both the applicants’ and the respondent’s predecessors in title acquired property. Similarly, it was not contested that the past owners of the respondent’s property occupied the land. Indeed, there is no evidence that anyone else occupied the land.

115In their factum, the applicants stated at para. 2 that they “concede that the applicant has acquired possessory title to the back/eastern half of the strip ‘lined by a picket fence situated further onto the MacQuarrie property than the registered property line’.” The applicants refer to this area as the “ceded land”. In their factum they took a different position with respect to the balance of the respondent’s claim.

116In their oral submissions, the applicants resiled from this position on the basis that they no longer wanted to be cooperative with the respondent. Notwithstanding the applicants’ apparent change in position, I conclude that the respondent and his predecessors in title have been in actual possession of this area for an extended period of time. Indeed, it would appear that they have been the only ones exercising any control or possession of this area.

117On the totality of the evidence of both parties it would appear to me that such possession was open, notorious, peaceful, exclusive, adverse, actual, and continuous for the full ten-

year statutory term. Further I have no concern that the possession occurred for 10 years preceding February 19, 2007. Therefore, the first branch of the test has been met.

Intention to Exclude the True Owner from Possession

118Considering the second branch of the test is somewhat more challenging as we do not have direct evidence of the parties’ intentions. However, I believe that we can conclude from the existence of the fence for a period in excess of 10 years that the respondent and his predecessors intended to occupy the property. Such intention may be inferred: see Masidon Investments. The issues of actual possession and intent are entwined. As stated by Blair

J.A. in Masidon Investments, “In most cases, it is to be expected that the intention to exclude the true owner will be evidenced by acts which effectively exclude the owner’s possession.” In this circumstance, the evidence supports the conclusion that this property was occupied by the respondent and his predecessors in title. There is no evidence of possession by the applicants and therefore, in my view, evidence of intention can be inferred.

Effective Exclusion of the True Owner from Possession

119The final branch of the test is whether the applicants and their predecessors in title were effectively excluded from the property. Again, there is not a great deal of direct evidence on this point. However, it is abundantly clear from the position of the fence on the property that there was effective exclusion. This is a situation where there has been enclosure, and in my view, the circumstances lead to the conclusion that there was effective exclusion.

120I have referred to the limited amount of evidence with respect to this part of the property. That, in my view, is significant as a result of the applicants’ concession that this property was “ceded” to the respondent. The effort to resile from that position during oral submissions appears to me to be a reaction to what the applicants consider the respondent’s unreasonable behaviour. Irrespective of that, I do not believe it is a position that the applicants should be allowed to maintain. Therefore, there will be a declaratory order that the respondent has acquired, by possession, title to the triangular area within the blue oval.

B. Rectangle Outlined in Red

Actual Possession

121The application of the three-prong test in considering the respondent’s claim with respect to this area is more challenging. In their evidence both the applicants and the respondent deposed as to their use of the disputed property. The applicants acknowledge there was some mutual use of the area as one might expect by adjoining owners. The respondent deposes that his mother occupied the property and had anyone challenged that occupation, he would have been aware of it. He notes that if the applicants or their tenants walked over the land, it was to bring groceries to their home and not to exercise control or possession.

122It is important to note that the disputed area is open land between two homes. There is no requirement that the titled owner of the property use their property with any specific intent,

and certainly not for the purpose of excluding a potential adverse possession claimant. Indeed, the respondent referred to this area of land as having a common character. In my view, that common character is open lawn used and maintained by the parties in the same manner.

123The respondent downplays the use of the land by the applicant and their predecessors in title and dismisses evidence of their occupation as being consistent with his rights of possessory title. In contrast, the applicants state that they regularly maintained and walked across the property while bringing groceries to the house. They accept that at times the respondent’s tenant maintained the property in appreciation of kindness of their tenants. However, the applicants state that what occurred was maintaining the “collective lawns”. Exhibits F and J of MacQuarrie’s affidavit sworn August 6, 2021, clearly depict an area of open lawn past the last post in the wooden picket fence. The lawn is open until the edge of the street.

124It was also the applicants’ evidence that prior to May 2020, there was no effort to exclude them or their tenants from the disputed area. In May 2020 the respondent’s tenant placed a low rock boundary and some lawn furniture on the disputed lands. It appears that was the first effort by either party to establish a clear demarcation of the extensions of the picket fence.

125The totality of the evidence supports the conclusion that the monuments placed when Plan 11R-3288 was registered remain intact. It appears that these were not visible above the surface. However, the presence of the iron bars is integral to the understanding of the property limits by any person owning either property. The deed for both properties used a legal description as two parts on a reference plan. These two parts on a reference plan are not simple rectangles as one might find in a newly established subdivision. These are oddly shaped lots. It is reasonable to presume that the parties were aware of the shape of their lots, and therefore the lot boundaries when they acquired title.

126In part, the respondent bases his knowledge of possession on what he believes or what he assumed from visiting his mother. In his affidavit he states that he “believed” the northerly limit or boundary of the property was delineated in part by the picket fence. That is, it was a straight line projected from the end of the fence to the street.

127The respondent’s evidence of what occurred after 2007 is irrelevant unless it can be seen to be consistent with evidence of what occurred before 2007. The respondent describes the use of the property in very general terms. The photographs that he attached to his material do not provide the court with any clear evidence of demarcation of the boundary.

128The type of use described by the respondent appears to be based on assumption. The respondent describes his mother’s possession as lawn cutting, general maintenance, planting of vegetation, weed control and snow removal. It may be that no one paid particular attention to who was using this area and for what purpose. However, that does not enhance the respondent’s position. Possessory title ought not to be found in

circumstances where neither the person claiming or the person disputing the possessory title were diligent in their occupation.

129In my view, the use of the property by both parties, and more particularly their predecessors in title, does not appear to be problematic. Given the characteristics of the property the evidence would lead me to conclude that neither put their mind to the other’s use of the land. In particular, the evidence of the respondent is based on assumptions and conclusions without any substantive references. As stated in Shennan, “possession, exclusive or otherwise, of a property did not matter to either party’s use of it.”

130The applicants provided in their materials a copy of the declaration of possession by the prior owner. In my view, that declaration is pro forma and should carry limited weight. It is clearly not determinative of the issue. Nonetheless, it supports the applicants’ contention that they were not aware of any claim of possession or exclusion by the respondent’s predecessors in title.

Intention to Exclude the True Owner from Possession

131The second prong of the common law test for adverse possession requires an intention to exclude the true owner from the property of the disputed land. In Keefer, Wilson J.A. stated that, “An intention to exclude an owner from such use as the owner wants to make his property” is required. The applicant deposes as to limited use of the property but use consistent with the nature of the property. That is, open lawn between two properties.

132The respondent has provided little direct evidence with respect to his or his predecessor’s intention to exclude. As I stated, that evidence appears to be based on assumptions. Significantly, the claim for possession is for an area of land along a theoretical boundary following an extension of a fence line. It does not seem logical to me to assume that the property owners or casual observers of the property would be necessarily aware of the projected line being a boundary.

133There certainly was no exclusion. Both the applicants and the respondent were able to traverse and did traverse the property. The owner of a property does not need to exercise the same degree of control over that property as that person claiming adverse possession must demonstrate. (see Barbour, at para. 45) A paper title is regarded as, “Being in construct possession of the entire property when in actual possession of merely a part. Trivial acts of domination of an owner will usually suffice”. (see Barbour, at para. 45)

134The respondent argued that the onus in establishing possessory title in cases of mistake is less stringent. In support of that proposition, he refers to Heng. However, at para. 31 of Heng, Dunphy J. stated, “The law will be generous and make allowances in favour of an occupier by mistake but will be less so in the case of deliberate intentional trespasser.” However, Dunphy J. concluded, “Where possession is due to mistake regarding the location of the ‘true lot line’ the requirement for possessory title can be met where the claimant has continually used the land and the true owner has been out of possession of the land for the requisite time.” [Emphasis added].

135The respondent submitted that the inconsistent use test is not applicable if there is a mistake. In support of that proposition, he refers to the Court of Appeal of Ontario’s decision in Cantera. That decision is very brief, essentially adopting the reasons of the trial judge. I have reviewed the trial decision in that matter. At trial, [2007] O.J. No. 1899 (S.C.), Harvison Young J. stated at para. 52:

In summary, the present case is clearly one of mutual mistake that went back at least to the time when the Connollys acquired 96 Johnson in 1962 and probably before. Accordingly, it is clear the doctrine of inconsistent use cannot apply for the reasons set out in Teis. Rather, this is a case where the intention is presumed by the nature of possession. As Anderson J. stated in Beaudoin:

When there is possession with the intention for holding for one’s own benefit, excluding all others, the possession is sufficient and animus is presumed. If it were necessary to say, one could say of such a situation the intention ipso facto included the intention to exclude the true owner if even the rights were unknown to the person in possession.”

136Harvison Young J. also cited at para. 51 Laskin J.A. in Teis, “that the doctrine of inconsistent use does not apply in cases of mutual mistake... to do so would mean that a claimant in such cases could never make out a case in adverse possession.”

137In this matter, I find no evidence of mutual mistake. The applicants submit that the argument for mutual mistake fails for two reasons. Firstly, the respondent and his predecessors in title were aware of the 1995 plan of survey that demonstrates the property boundaries. Respectfully, the evidence on that issue is in doubt. Nonetheless, there is still a requirement to establish mutual mistake. As I have noted, the evidence in this matter does not support a conclusion there was a mutual mistake. At best, the evidence is that there was mutual disinterest.

138I would also find that the inconsistent use test in the case of unilateral mistake such as in Bradford Investments does not support the respondent’s position, as that case is factually distinguishable. The court’s ruling in Bradford Investments came secondary to a finding that the claimant showed an unequivocal intention to exclude based on fences they erected and gardens they grew on the disputed land. I reiterate, the land in this circumstance was open lawn.

Effective Exclusion of the True Owner from Possession

139The final question to be determined is whether the respondent had effective exclusion. In Barbour, the court noted that it had been held even when the inconsistent use test does apply the effective exclusion of the true owner throughout the 10-year period remains a requirement. (see Shennan, at para. 20)

140In this matter, the respondent argues that enclosure is not required, and that exclusion could be inferred because there was no objection by the applicants. In part this argument is based on the notion that there was a demarcation. Indeed, counsel referred to McGugan et al. v.

Turner et al. 1948 CanLII 76 (ON SC), 1948, 76 O.R. 216 (S.C.), [1948] 2 D.L.R. 338, where the court said the appearance of demarcation is an important factor. The court also stated the extent of demarcation required depends on the circumstances and nature of the property.

141In my view, a theoretical line is not demarcation. Demarcation only occurred in 2020 when this dispute began. That demarcation did not constitute enclosure but may have been sufficient if it had occurred for 10 years immediately proceeding conversion to Land Titles. Given the nature of the land and the parties’ use of it, to establish the second prong of the test there must be the required clearer evidence of demarcation than what is presented to the court.

142In considering the third prong of the test, effective exclusion, I find the evidence is inconclusive. The applicants testified that they used the property as did their tenants. Of course, it is the use pre-2007 that is important. However, given the lack of a boundary and the contiguous nature of the property, and its use as lawn, it would be difficult to establish exclusion. The respondent’s evidence does not support a finding that there was exclusion.

143The respondent argues that claims for possessory title can be supported by reasonable inferences. However, the decisions on which he based that argument appeared to have followed the three-prong test referred to above, including effective exclusion. In my view, the evidence here does not raise a reasonable inference of exclusion. Indeed, given the open nature of the property, the inference may well be considered to be the contrary.

144The respondent argues that where there is demarcation, no enclosure is necessary. However, in my view there is no evidence of demarcation. There is only evidence of a projected line. That is not supported by any other evidence.

145Counsel for the respondent referred the court to Gibb. There, Leach J. in considering whether the claimants had established possessory title included that the claimants’ predecessors in title provided “emphatic and categorical evidence that their family had actual possession of the land between the two houses.” At para. 41, Leach J. noted that the evidence included testimony that a hedge had been planted, maintained, and that physically sealed off and separated the back yards. He concluded that the use of the property was inherently open and notorious. Stated simply, Leach J.’s decision in Gibb was based on substantially different evidence than that which was presented to the court in this matter.

Conclusion on Adverse Possession

146In conclusion, when I consider the three-prong test, I find that:

a. There has been no actual possession proven,

b. There is not compelling evidence of intention to exclude, and

c. There has been no effective exclusion.

147To be clear, when I apply the test to the evidence in this case, I find there has been no actual possession by the respondent nor were the applicants and their predecessors in title effectively excluded. The respondent’s possession was not open, notorious, constant, continuous, peaceful, and exclusive of the rights of the owner. I would reiterate the titled owner does not need to exercise the same degree of control over the property as someone claiming adverse possession.

Proprietary Estoppel

148The respondent also asserted a claim of proprietary estoppel. That was not the main thrust of his application, but an alternative pleading. To establish proprietary estoppel the respondent must establish the following criteria:

a. Encouragement of the respondent by the applicants,

b. Detrimental reliance by the applicants to their knowledge, and

c. The applicants seeking to take unconscionable advantage of the respondent.

See Barbour, at para. 116; Schwark Estate v. Cutting, 2010 ONCA 61 (“Schwark Estate”), at paras. 16 and 34.

149There is no evidence of encouragement of the respondent by the applicants. At best, the evidence supports the notion that the respondent was unilaterally mistaken about the extent of his legal rights. No issue arose between the parties until a survey was done for the purpose of locating the applicants’ new home. The respondent’s incorrect assumptions do not constitute encouragement by the applicants and the applicants were ambivalent.

150Presumably, the detrimental reliance is the respondent and his predecessors performing some acts of maintenance on the land. Given the nature of the use of the property by the respondent and his predecessors, it cannot be said that such use constituted a detrimental reliance. Each of the neighbouring property owners cut their respective lawns and possibly some of the adjoining lawns. Some fertilizer may have been spread on both properties by each of them.

151There is no evidence that the applicants encouraged any of the acts by the respondent. Both parties simply acted in a neighbourly fashion. In reality, these acts were done by the respective tenants at some point after the applicants acquired the property. The evidence with respect to detrimental reliance by the respondent’s predecessor in title is non-existent.

152Finally, there is no unconscionable advantage being taken by the applicants of the respondent. As I have stated this was simply a matter of people behaving in a neighbourly fashion. At best, the respondent may have been operating under a unilateral mistake. However, I think the evidence establishes that no one cared enough to make serious inquires about the property or take steps to the determinant of the other.

Conclusion on Proprietary Estoppel

153The respondent did not strenuously pursue his argument of proprietary estoppel. In his factum he devoted one paragraph to the argument. Little time was spent in oral submission on the issue. The respondent’s argument in based primarily on the applicants failing to object during their time of ownership. In my view, it was not up to the applicants to object. In any event, their non-objection cannot be seen as meeting the three-prong test set out in Barbour and Schwark Estate. Therefore, this aspect of his application is dismissed.

Summary

154Therefore, there will be orders as follows:

a. The respondent is found to be the owner of the triangular piece of property within the blue oval.

b. The respondent’s application with respect to the land within the red rectangle is dismissed, and the applicants are found to be the owner of that property.

c. The respondent’s claim based on proprietary estoppel is dismissed.

155The parties will now have to find a way to amend the Land Titles Record. That would likely require the preparation and registration of a reference plan. In my view the costs of the preparation and registration of that plan should be born by the parties equally. If the parties are unable to come to an agreement, the matter may be returned to me for further submissions.

Costs

156If the parties are unable to agree on costs, the respondent may make written submissions to me in writing within 30 days. The applicant shall make submissions to me within 30 days of receipt of the respondent’s submissions. The submissions are limited to three pages in length exclusive of any costs outline.

Justice Scott K. Campbell

Released: December 19, 2022

COURT FILE NO.: CV 21-68 / CV 21-72

DATE: 2022-12-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Norma Jane MacQuarrie & Mala Beharry

Applicants (Respondents by cross-application)

– and –

Robert Shane Proulx

Respondent (Applicant by cross-application)

REASONS FOR JUDGMENT