COURT FILE NO.: CV-22-860

DATE: 20221103

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Sampago Ltd., Applicant

AND:

John Gurin, Respondent

BEFORE: The Honourable Madam Justice S.E. Fraser

COUNSEL: Emily Quail, Counsel for the Applicant

No one appearing for the Respondent John Gurin

HEARD: August 17, 2022

ENDORSEMENT

Nature of the Application

[1] The Applicant, Sampago Ltd. (“Sampago”), brings this Application for a declaration that Sampago has an interest in a parcel of land, described as landlocked and abandoned (the “Landlocked Property”). Sampago is the legal title holder to an adjacent property (the “Sampago Property”).

[2] John Gurin was the last registered owner of the Landlocked Property, acquiring title of it in 1938. The Landlocked Property was converted to Land Titles Conversion Qualified in 1999. Mr. Gurin’s current location and status is unknown. The Applicant has been unable to determine whether he is dead or alive, or to find any heirs, despite efforts to do so.

[3] The Landlocked Property is farmland and abuts the western perimeter of the Sampago Property. There is no access to a public highway or waterway. To the north and east of the Landlocked Property is a railroad and to the south is separate farming property.

[4] Sampago seeks possessory title of the Landlocked Property arguing first, that there was an error in title, and, alternatively, that it has established adverse possession. Sampago asks me to fix the error and argues that I can do so under ss. 159 and 160 of the Land Titles Act.

Issues

[5] The following issues are raised in this Application:

a. Is this an appropriate case to dispense with service?

b. Does the Applicant have an interest in the Landlocked Property?

c. If so, should the Register be corrected?

Factual Backdrop

[6] The affidavit material establishes that there have been no transfers of the land since Mr. Gurin acquired it in 1938. Prior to that transfer, it appears that what transfers in title were made of what is now the Sampago Property included the Landlocked Property. That stopped when the transfer was made to Mr. Gurin in 1938.

[7] However, since the transfer of the Landlocked Property to Mr. Gurin, the transfers of the Sampago Property have excluded the Landlocked Property.

[8] However, since at least since 1957, the owners of what is now the Sampago Property have treated the Landlocked Property as if it formed part of the Sampago Property. This is true of the previous owners of the Sampago Property, Oscroft Farms Ltd., which possessed and farmed the Landlocked Property since 1957.

[9] On the material before me, at least since 1957, neither John Gurin, nor any heir, has ever entered the Landlocked Property or made any attempt to recover it or make use of it.

[10] Both Oscroft Farms Ltd. and Sampago understood that the Landlocked Property was part of the Sampago Property and that when purchasing the Sampago Property in 2010, that it included the Landlocked Property. Denis Tarsky, who swore an affidavit in support of this Application, states that when Sampago purchased the Sampago Property in 2010, the agent represented that the Landlocked Property formed part of the lands being purchased.

[11] In his affidavit, Mr. Tarsky states that it is his belief that the Landlocked Property was always meant to be included in the Sampago Property and any transfer that excepted the Landlocked Property was done so in error. The source of this belief is unclear. And it is difficult to reconcile with the absence of evidence that John Gurin ever conveyed his interest in the property.

[12] In 2018, Sampago retained counsel to assist it in acquiring possessory title to the Landlocked Property.

[13] Between 2018 and the present, the Applicant has attempted to locate John Gurin by searching databases including genealogy websites, the Archives of Canada, and by publishing a notice in the Liberal, a local newspaper. Counsel has had no success at finding interment records, obituary notices, or contact information for Mr. Gurin. In these searches, the Applicant could not find any heirs.

Issue A: Dispensing with Service

[14] Rule 16.04 of the Rules of Civil Procedure provides, in part, that where it appears to the court that it is impractical for any reason to effect prompt service of a document that is to be served personally or by an alternative to personal service, the court may dispense with service where necessary in the interests of justice.

[15] The Applicant has been unable to locate the Respondent and, for that reason, has been unable to serve the Respondent with this Application in accordance with the Rules.

[16] I accept that the Applicant has exhausted all reasonable efforts to find Mr. Gurin and any person with a claim in the Landlocked Property. As in Jamnisek v. The Estate of Gordan A. Wyant, 2021 ONSC 66, it is necessary and in the interests of justice to dispense with service and I so order accordingly.

Issue B: Does the Applicant have an Interest in the Landlocked Property

(i) Mutual Mistake

[17] The Applicant makes two arguments in support of its interest in the Landlocked Property. First, Sampago submits that it has established possessory title through demonstrating there was a mistake. Second, it claims that it has established adverse possession through the open, continuous, and notorious possession of the property.

[18] The Applicant asserts that where an interest in land has been conveyed under mistake, the mistaken party may be able to have the transfer rescinded, rectified or declared void ab initio under general principles of law. It argues that there was a mutual mistake here. It relies upon the history of the property stating that the Landlocked Property, prior to the transfer to Mr. Gurin, was part of transfers with the property that is now the Sampago Property and that it has been treated as part of the Sampago Property since at least the Oscrofts owned the Sampago Property.

[19] A mutual mistake occurs when the “parties misunderstand each other and are at cross purposes”. That is, both parties make a mistake but about different things. (McLean v. McLean, 2013 ONCA 788, at para. 69). A common mistake occurs when the parties are mistaken about the same thing.

[20] I accept that the Oscrofts believed that the Landlocked Property formed part of the lands conveyed to Sampago. However, the focus of our concern regarding a mistake should be the person holding title on paper, that is Mr. Gurin, and the person claiming title, Sampago. In Jamnisek v. The Estate of Gordan A. Wyant, supra, at para. 45, when discussing the application of inconsistent use, Justice Speyer stated:

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.

[21] When we look to the question of mistake in a property owned by Mr. Gurin, I think we need to look to whether Mr. Gurin made a mistake. I cannot find that he did. He simply abandoned the property.

[22] Therefore, I cannot accept that there was a mutual mistake. While Sampago has established that it believed its purchase included the Landlocked Property, that is in the face of a register that said otherwise. It is not clear to me that mutual mistake can be relied upon in a case like this, where the parties believe they own something, but the interest in land is not registered, and where the person with a registered interest in the land cannot be shown to have been mistaken. The cases provided by the Applicant related to mistakes made by a transferor and transferee where the transferor had established title to the property and intended to convey it.

[23] I would not find a possessory interest on this basis.

(ii) Adverse Possession

[24] The question then turns to whether the Applicant can establish an interest in the Landlocked Property based on adverse possession. To establish adverse possession, the Applicant must demonstrate that it has had actual possession of the Landlocked Property for the requisite time and that the possession has been “open, notorious, peaceful, adverse, exclusive, actual, and continuous having regard to the nature of the disputed property” (see Jamnisek, supra, at para. 31, quoting Teis v. Ancaster (Town), 1997 ONCA 1688, at para. 13).

[25] The evidence before me is that both the Oscrofts and Sampago have treated the Landlocked Property as if it were part of the Sampago Property since 1957: well beyond 10 years before it was registered in the Land Titles system in 1997. This establishes actual possession of the property for the requisite period and entitles the Applicant to claim adverse possession pursuant to s. 51 of the Land Titles Act, R.S.O. 1990, c. L.5.

[26] The Landlocked Property was farmed and continues to be farmed both by the Oscrofts and by Sampago. All treated it as if it were part of the now Sampago Property. Their possession has been to Mr. Gurin’s exclusion for at least 65 years. In my view, this establishes adverse possession.

[27] While I did not find a mistake so as to grant an interest in the property, the mistake made by the Oscrofts and Sampago does assist Sampago in establishing a possessory right by adverse possession. Normally, one is required to establish an intent to exclude the owner. However, both the Oscrofts and Sampago believed they were the owner. This mistake relieves them of the obligation to demonstrate that their intention of depriving the true owner of possession. While I did not find mutual mistake above, I do find that the belief about ownership of the Landlocked Property means that they do not have to demonstrate an intent to exclude.

Rectification

[28] The mystery of what happened to John Gurin will not be solved. However, the Land Titles Act sets out conditions for the rectification of the Register.

[29] Section 159 of the Land Titles Act provides:

Subject to any estates or rights acquired by registration under this Act, where a court of competent jurisdiction has decided that a person is entitled to an estate, right or interest in or to registered land or a charge and as a consequence of the decision the court is of opinion that a rectification of the register is required, the court may make an order directing the register to be rectified in such manner as is considered just.

[30] Section 160 of the Land Titles Act, supra, provides:

Subject to any estates or rights acquired by registration under this Act, if a person is aggrieved by an entry made, or by the omission of an entry from the register, or if default is made or unnecessary delay takes place in making an entry in the register, the person aggrieved by the entry, omission, default or delay may apply to the court for an order that the register be rectified, and the court may either refuse the application with or without costs to be paid by the applicant or may, if satisfied of the justice of the case, make an order for the rectification of the register.

[31] I may direct that the Register be rectified under these provisions. I am of the view that rectification is required and is just in the circumstances.

[32] Accordingly, I grant judgment in favour of the Applicant. I declare that the Applicant has an interest in the property legally described in PIN 03194-0295 (LT) more fully described as PT LT 34 CON 2 MARKHAM AS IN MA22255; RICHMOND HILL PIN 03194-0295 (LT).

[33] I order the Land Titles Registrar for the Land Registry Office for the Land Titles Division of York Region (No. 65) (“Register”) to amend the parcel register Property, by changing the registered owner on title from John Gurin to Sampago.

[34] Judgment to go in accordance with the draft order filed, amended to reflect that it is a judgment on this Application. Counsel may send the amended draft judgment to my Judicial Assistant for my signature.

Justice S.E. Fraser

Date: November 3, 2022