COURT FILE NO.: CV-21-00001676-0000

DATE: 20230104

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ESTATE OF ARNOLD WILLIAM JAMES McCRACKEN BY THE ESTATE TRUSTEES, WAYNE McCRACKEN, CAROL McCRACKEN, DIANNE ABOU FADEL and KAREN ABI-JAOUDE

Applicants

– and –

MICHAEL ANTHONY GATT, DANIELLE MARIE TREACY, PAUL POZGAJ, BRANKA POZGAJ, SHANTY BAY ESTATES LIMITED, JAMES BLAINE PFRIMMER, JOAN MERLE PFRIMMER and JOHN NORMAN WORTLEY

Respondents

Lawrence Hansen, for the Applicants

No one appearing for the Respondents

Robert Michael Bowman, Karen Mortimer, Julie Simmons, Shari Simpson, and Leanne Sporle appeared as interveners

HEARD: December 16, 2022

DAWE J.

[1] This is an application to determine whether the legal doctrine of adverse possession gave Arnold and Patricia McCracken, now both deceased, property rights over certain land located next door to their home in Shanty Bay.

[2] In 1962, the McCrackens purchased a plot of land from other members of Patricia’s family. The property they bought consisted of approximately half of a larger lot that had first been purchased in 1918 by Patricia’s grandfather, Henry Wortley. After his death the land had been passed down to two of his children: Patricia’s late father, Norman Wortley, and Norman’s brother, Charles Wortley.

[3] The McCrackens built a house on their own land and raised their four children there. They also treated the other half of the original lot, which they did not legally own, as if it were an extension of their back and side yards. I will refer to this land as “the disputed property”. As I will discuss, I am satisfied that the evidence shows that up until their deaths some fifty years later the McCrackens used the adjacent land openly, notoriously, and continuously in a variety of ways.

[4] In 1989 a quarrel broke out between the McCrackens and two of Patricia’s siblings over ownership of the disputed property. The siblings maintained that the disputed property belonged to the estates of their mother and their late uncle Charles, and ought to be sold. The McCrackens disagreed, and obtained advice from a lawyer who told them they could make an ownership claim over the disputed land based on the doctrine of adverse possession. The siblings hired their own lawyer who threatened litigation, but neither side did anything more to press their competing claims.

[5] For the next thirty years, until their deaths – Patricia died in 2011, and Arnold passed away in 2019 – the McCrackens continued using the disputed property as they had been doing all along.

[6] The McCrackens’ four children are the joint executors of Arnold’s estate. I will refer to them and the estate collectively as “the Applicants”. They seek an order vesting title in the disputed property in Arnold McCracken’s estate. They maintain that their parents acquired possessory title to the disputed property in the early 1970s, or in the alternative that they acquired this form of title at a later date.

[7] A number of other Wortley family descendants oppose the application. They are not named as respondents, but they filed materials and/or appeared at the hearing. I will refer to them as “the opposing Wortley heirs”. They take the position that they, along with the other heirs of the original Wortley owners, continue to have an unextinguished ownership interest in the disputed property.

[8] As is often the situation in these types of cases, the evidence about what happened many years ago is murky and incomplete. Many key witnesses are dead or no longer able to testify, so the litigants have had to try to reconstruct the history of the family dispute over the property with incomplete and not always reliable documentation.

[9] For their application to succeed, the Applicants must establish that the McCrackens had actual possession of the disputed property for an uninterrupted period of at least ten years before the disputed property was registered under the Land Titles Act, which occurred in December 1999. The Applicants must also demonstrate that during this ten-year period the McCrackens had the intention of displacing the legal owners of the disputed property, and that the legal owners were in fact denied possession.

[10] For reasons I will now explain, I have concluded that the application should succeed. I am satisfied that the McCrackens had actual possession of the disputed property for more than fifty years, starting in the mid-1960s, and that the first requirement of the legal test for adverse possession is therefore established.

[11] However, I am not satisfied that before 1989 the McCrackens ever formed the intention of displacing the legal owners of the disputed property, who were Patricia’s siblings and other relations. I am also not satisfied that these legal owners, who before 1989 seem to have had no interest in using the land themselves, were denied possession of the disputed property during this period. Accordingly, I am not satisfied that the second and third requirements for the McCrackens to claim ownership of the disputed property under the doctrine of adverse possession were satisfied during the 1962-1989 period.

[12] I have concluded that situation then changed significantly in 1989, in two important respects. First, the evidence shows that in or around the fall of 1989, some of the heirs of the original legal owners of the disputed property formed the intention of selling it and distributing the proceeds to themselves and the other heirs. Second, the evidence shows that the McCrackens resisted these efforts. They had by this time obtained legal advice, and apparently now for the first time began taking the position that the disputed property now belonged to them based on their historical occupation of it.

[13] As I will explain, I am satisfied that once the McCrackens and the other Wortley family members began disagreeing in 1989 about who now owned the disputed property, the second and third essential ingredients needed for the McCrackens to assert an adverse possession claim materialized.

[14] From October 1989 onwards, I find that the McCrackens had the requisite intention of displacing the legal owners, and that the legal owners, who threatened litigation but did not follow through on their threat, were in fact denied possession.

[15] I am also satisfied that the McCrackens continued to have uninterrupted, open and notorious possession of the disputed property for the next ten years, such that by October 1999 they had acquired possessory title over the disputed property, and the legal rights of the original owners were extinguished. Since this happened a few weeks before the disputed property came under the provincial Land Titles system, the McCrackens and their heirs can still assert their possessory title claim today.

I. Facts and evidence

A. The Mills Property

[16] In October 1918, Henry Wortley bought some land in Shanty Bay from Elizabeth Mills for $300. I will refer to this land as “the Mills Property”.

[17] Henry died intestate in 1924, and title over the Mills Property seems to have passed to his widow, Mary Jane (nee Brigham), who then died the following year. In her will, Mary Jane Wortley left the Mills Property to two of her and her late husband’s ten children, Charles Irving and Norman Edward Wortley. The relevant paragraph of her will stated:

I give, devise and bequeath the two properties which I purchased from Elizabeth Mills to my two sons, Norman Edward Wortley and Charles I. Wortley, as tenants in common.

[18] Norman Edward Wortley and his wife Cora had six children together, one of whom was Patricia McCracken. Patricia had two sisters, Louise (Bowman) and Betty (Simmons), and three brothers: William, Gordon, and John. In addition, another relative named Jo-Anne Wortley was raised with Norman and Cora’s six children as a de facto seventh sibling.

[19] Charles Wortley, who owned the other half-share of the Mills Property, had four children of his own, and they went on to have numerous children and grandchildren.

B. The acquisition of part of the Mills Property by the McCrackens

[20] Norman Edward Wortley died intestate in 1956, and his half-share of the Mills Property came under the control of his widow Cora as the trustee of his estate. Under the laws of intestate succession as they existed at the time – s. 29 of the Devolution of Estates Act, R.S.O. 1950, c. 103 – Cora stood to inherit one-third of her late husband’s property, with the remaining two-thirds being divided between their children.

[21] The other half-owner of the Mills Property, Charles Wortley, lived until 1973.

[22] In 1962, Patricia and her husband Arnold McCracken purchased approximately half of the Mills property from Charles Wortley and the estate of Norman Edward Wortley. Norman’s widow Cora and her six children all signed the papers conveying the land to the McCrackens on the basis that they were:

…the heirs at law and next of kin of the said Norman Edward Wortley, deceased, and the only persons entitled to his share of the lands hereinafter described, and have agreed to transfer all their right, title and interest in the said lands to [the McCrackens].

[23] This document, an indenture dated July 25, 1962, indicates that the McCrackens paid a nominal price of $2.00 for the land, although a solicitor’s affidavit dated October 30, 1962 states that they paid $600 cash.

[24] The portion of the Mills Property that was conveyed to the McCrackens is the south-west quadrant of the original lot. The transferred portion is roughly rectangular in shape and fronts onto Ridge Road West. I will refer to this land as “the McCracken property”.

[25] The remaining portion of the Mills Property that was not sold to the McCrackens lies to the north and east of the McCracken property, and has an irregular shape. This is the land I have been calling “the disputed property”.

[26] Both portions are shown in the Property Index Map that is reproduced below. The part of the Mills Property that was legally transferred to the McCrackens, which I am calling “the McCracken property” is labelled “AL”, for “Applicant’s Lands”. The remaining part of the Mills Property is labelled “PL”, for “Possessory Lands”. This is the property that is now in dispute.

C. The McCrackens’ use of the disputed “Possessory Lands”

[27] The McCrackens built a house on the land they had purchased, raised their four children there, and lived there for the rest of their lives.

[28] The four McCracken children have each filed affidavits in which they explain that for as long as they can remember the McCracken family also treated the adjacent disputed property – the land marked as PL on the Property Index Map – as if it belonged to them.

[29] Wayne McCracken, who filed an extensive affidavit that his three siblings each adopt, was born in June 1953, so he was nine years old when his parents bought their share of the Mills Property in 1962. He explains that throughout his childhood, and up to the times of his parents deaths, they treated and used the disputed property if they owned it. He states:

Since the 1960s, my parents maintained the Possessory Lands by, among other things, cutting brush as well as hedges, planting shrubs and flowers, by mowing the lawn, and have used these lands for storage, recreation, for family events, and used part of them as an unpaved driveway.

[30] The other three McCracken siblings – Carol McCracken, Dianne Abou Fadel, and Karen Abi-Jaoude – all adopt Wayne’s affidavit. Dianne Abou Fadel has also filed a supplemental affidavit in which she adds that her mother also grew vegetables on the disputed property. She also recalls her parents storing vehicles and boats on it, and remembers that for some years in the late 1960s and early 1970s they gave a neighbour permission to park a school bus on the property.

[31] Conversely, there is no evidence that the disputed property was ever used by any of the other heirs of Norman Wortley, or by the other half-owner, Charles Wortley, or his heirs. I should note that none of Charles Wortley’s descendants have responded to this application by claiming an ownership interest in the disputed property. The people who I am referring to as “the opposing Wortley heirs” are all descendants of the other half-owners, Norman and Cora Wortley.

[32] The McCracken children’s uncontradicted evidence is that there were never any fences or other barriers separating the McCracken’s own property from the disputed property. This is confirmed by a number of contemporaneous photographs they have filed as exhibits. However, their evidence is that the two properties were separated from most of the surrounding lands, which were owned by other neighbours, by a wire fence and/or a stand of trees and hedge. This is supported, although not conclusively, by recent photographs taken by Wayne McCracken.

[33] Norman Edward Wortley’s widow Cora died in 1970, and two of her children – her daughter Louise and her son Gordon – were appointed as the trustees of her estate.

[34] There is extensive documentary evidence indicating that after Cora Wortley and Charles Wortley’s deaths the disputed property was listed on the Township of Oro-Medonte’s tax rolls as being co-owned by their respective estates. However, as I will discuss, there is conflicting evidence about who paid the property tax from 1962 to 1990. It is undisputed that Arnold McCracken paid the property tax at least from March 1991 until his death in 2019, and there is also evidence that he paid the taxes for some years during the 1970s.

D. The dispute between the McCrackens and Cora Wortley’s estate trustees

[35] The documentary evidence shows that conflict over ownership of the disputed property eventually broke out between the McCrackens and Patricia’s sister Louise Bowman and brother Gordon, who were the executors of their late mother Cora Wortley’s estate.

[36] Jo-Anne Wortley, who had been raised by Cora Wortley as a daughter, took the McCrackens’ side in the dispute. She is still alive but suffers from dementia and can no longer provide first-hand evidence. However, in April 2012 Jo-Anne wrote a letter to a lawyer, Alfred Dick, in which she summarized her recollection of the conflict between the siblings over the disputed property.

[37] Jo-Anne’s letter is hearsay, and much of its contents are double hearsay insofar as they repeat things Jo-Anne said she was told by Patricia and Arnold McCracken. However, some aspects of Jo-Anne’s account are confirmed by contemporaneous documents, although her recollection of the timing of events seems to have been off by nearly 20 years.

[38] In her April 2012 letter to Mr. Dick, Jo-Anne gave the following explanation of how the disagreement over the disputed property started:

When my Mother passed away in 1970 this property was not part of her estate – but my oldest sister Louise Bowman had the tax bill for the eastern section of land (outlined in pink on the attached photocopy[^1]) transferred to her name and then she and my brother Gordon Wortley (co-executors of our Mother’s estate) contacted a real estate agent to go to the property and determine its value. On the day the agent went to the property my sister Pat was at home, and seeing him walking around went outside to ask what he was doing. He informed her that he had been hired by Louise Bowman and Gordon Wortley to determine the value of the land so it could be sold.

My sister informed the agent that her brother and sister were the executors of our mothers estate – but the property was not part of her estate – so they had no legal right to try to dispose of the property.

I visited my sister Pat and her family shortly after this had occurred and she explained to me what had happened. It would not occur to my sister or brother-in-law to go to a lawyer – so I did it for them. I met with Mr. Wildman in Barrie and gave him as many details as I could.

[39] Jo-Anne continued her letter by describing the legal advice that she and the McCrackens then received from Mr. Wildman.

[40] This aspect of Jo-Anne’s account is partially confirmed by a letter Jo-Anne received from a lawyer named Edward C. Wildman, which was copied to the McCrackens. However, this letter is dated September 12, 1989, which was nineteen years after Cora Wortley’s death in 1970.

[41] In his letter, Mr. Wildman summarized recent discussions he had had with Jo-Anne and the McCrackens about the McCrackens’ legal rights in relation to the disputed property. He then stated:

I understand from [the McCrackens], that while they have paid taxes on these lands for many years in the fairly recent past another of your sisters, Louise Bowman, has arranged to pay taxes on the lands and I suggested to the McCrackens that if they did wish to assert a claim against these lands as I believe they are entitled to do, they should indicate to Mrs. Bowman that they, the McCrackens, should be paying the taxes in the future.

[42] In her April 2012 letter to Mr. Dick, Jo-Anne continued her narrative by explaining:

When Pat contacted the Oro Township office to have the tax bill put into her and her husband’s name, the office contacted my other sister Louise Bowman, who then telephoned Pat and had what could only be described as a “MAJOR” fight.

For the sake of familial harmony my sister Pat refused to move forward with this plan, even though my only surviving brother John, my other surviving sister Betty Simmons and I all agreed that she should have the land.

[43] Louise Bowman’s son, R. Michael Bowman, has filed an affidavit in which he appends three letters written by a lawyer named C. Stanton Stevenson, who was retained by Louise Bowman and Gordon Wortley, as the trustees of Cora Wortley’s estate, to pursue the estate’s claim over the disputed property.

[44] In the first of these letters, written to the McCrackens and dated October 27, 1989, Mr. Stevenson noted that the McCrackens had recently suggested to Louise that “all Wortley family claims to the lands around your home are now barred”. He went on to dispute this suggestion, stating:

We have reviewed the background circumstances with our clients. They include that our clients have to date been assessed for the real property taxes and have paid them to the municipality. The lands are not fenced. Your involvement has been limited to the front parcel and has amounted to entering such lands periodically for purposes of mowing the grass. Our clients have continuously pointed out to you the rights of the other family members to the entire parcel. And, as provided by the Limitations Act (Ontario), no person is deemed to have been in possession of any land merely by reason of having made an entry thereon.

Finally, on or about June 1, 1985, Mr. McCracken recognized the title claim of other family members when, in writing to Ms. Bowman, he stated that he would cut the subject grass with no charge.

[45] On November 28, 1989, Mr. Stevenson wrote to his clients to report that the McCrackens had not responded to his October 27, 1989 letter, and noted further:

A decision shall have to be made therefore by you and other heirs of Charles Irving Wortley and Norman Edward Wortley as to whether you wish to commence formal action to have the question of entitlement resolved in the courts.

[46] Mr. Stevenson expressed a guarded opinion about the likely success of any such action by the two estates, explaining:

As to the likely outcome, it is clear that members of the family other than the McCrackens, have exercised few of the rights of ownership for many years. Accordingly, a key issue is whether the McCrackens have exercised such exclusive and undisturbed possession as to bar all other claims after the ten year period mentioned in Section 4 of the Limitations Act. From our discussions with you, it appears that the evidence is hazy at best and maybe that the best available evidence is that of the McCrackens themselves. Their story would come out in the process of the litigation.

[47] On March 12, 1990, Mr. Stevenson sent another letter to the McCrackens, which he copied to his clients. He stated in this letter that his clients “would prefer to settle on an amicable basis the issue of your property entitlements”, and added:

It has been drawn two our attention that our clients have many times objected to your mowing the front part of the subject property.

It has also been drawn to our attention that you have not been maintaining or occupying in any respect the northerly and easterly parcel, having dimensions of 153.30 feet and 152.67 feet, and the irregular parcel to the northwest with dimensions approximating 214.43 feet by 78 feet.

[48] His letter concluded by requesting that the McCrackens respond by April 4, 1990. There is no evidence as to whether they ever did so. The correspondence trail ends at that point.

[49] Michael Bowman’s affidavit also appends an undated handwritten document by an unknown author, which he explains he found among his late mother Louise’s papers. This document outlines a potential settlement proposal in which the “other heirs will settle for a two-thirds interest” in the appraised value of the land, to be secured by an interest-free mortgage. However, there is no evidence as to whether Louise Bowman ever made this settlement proposal to the McCrackens.

E. Evidence regarding tax payments

[50] In her supplemental affidavit, Dianne Abou Fadel has appended receipts showing that between 1972-74 and in 1977 her parents made tax payments in relation to the disputed property, which at the time appears to have been registered in the name of “Irwin Wortley”. (Charles Wortley’s middle initial was “I.”, but his middle name appears to have been Irving, not Irwin.)

[51] There is also a “Notice of Uncollected Taxes” for the disputed property, dated April 3, 1979, indicating that $33.48 was owing for unpaid taxes from the 1975 and 1976 taxation years.

[52] Michael Bowman has provided copies of the Oro Township assessments for the disputed property for the 1980 through 1990 taxation years, all of which were addressed to:

Wortley Charles I Estate

Wortley Cora Eleanor Estate

C/O N Louise Bowman

Shanty Bay ONT L0L 2L0

[53] However, he has not provided any receipts showing who paid these tax bills.

[54] Ms. Abou Fadel has also provided copies of receipts for tax payments made by her father in relation to the disputed property from 1991 until his death in 2019. The tax bills for 1991 and 1992, which Mr. McCracken paid, were still addressed to the two estates, “c/o Louise Bowman”, but in 1993 the addressee was changed to the two estates “c/o Arnold W. McCracken”. From 2004 onward the tax bills no longer include the Estate of Cora Wortley as an addressee, but were addressed to “Wortley Charles I Estate c/o Arnold. W. McCracken”.

F. The conversion of the disputed property to the Land Titles system

[55] It is common ground that the disputed property was first registered in the Land Titles system on December 6, 1999. Its legal description is now:

PT LT 27 CON 3 ORO AS IN ORO10313 EXCEPT R0158414, being the lands in PIN 58551-0095 (LT)

II. Procedural history of the Application

[56] In their Application, which was issued on December 24, 2021, the Applicants named the owners of various neighbouring properties as respondents, along with John Norman Wortley, who at the time was the last living biological child of Norman and Cora Wortley.

[57] In December 2020, John Wortley had signed a declaration relinquishing any rights he held over the disputed land and transferring these rights to the estate of Arnold McCracken. He died in January 2022, before this application was heard in December.

[58] None of the other named respondents – the owners of the other neighbouring lands – have participated in these proceedings, and it is clear from the evidence that none of them have any discernible ownership claim over the disputed property, which has been in the Wortley family since 1918.

[59] The Applicant’s counsel took out a newspaper advertisement inviting “[a]nyone with a claim on lands owned by the estate of Henry Wortley and Mary Jane Brigham” to contact him. This ultimately led a number of descendants of Norman and Cora Wortley to participate in the proceedings, and some of them also filed affidavits.

[60] I invited all of the Wortley family members who appeared at the Zoom videoconference hearing to make oral submissions, and two of them took up this invitation.

[61] The following Wortley family members filed materials and/or appeared at the hearing:

i) R. Michael Bowman, who is one of the sons of Louise Bowman, filed an affidavit and appeared at the hearing, and his wife Carol made oral submissions;

ii) Betty Bidwell, who is Louise Bowman’s daughter and Michael Bowman’s brother, also filed an affidavit. I was advised that she was observing the hearing off-camera, but she did not make any oral submissions;

iii) Shari Simpson, who is one of Louise Bowman’s granddaughters, also filed an affidavit and made oral submissions;

iv) Leanne Sporle, who is another of Louise Bowman’s granddaughters, filed an affidavit and appeared at the hearing but did not make oral submissions;

v) Andrea Lynn Macks, who is also one of Louise Bowman’s granddaughters, filed an affidavit but did not appear at the hearing.

vi) Julie Simmons and Karen Mortimer, who are both daughters of Betty Simmons and granddaughters of Norman and Cora Wortley, appeared at the hearing but did not file affidavits or make oral submissions.

[62] These are the people I have been referring to collectively as “the opposing Wortley heirs”.

[63] I should also note that the affidavits filed by Ms. Bidwell, Ms. Sporle and Ms. Macks are very brief. They explain who the affiants are and state that they agree with Mr. Bowman’s more substantial affidavit, but do not provide any additional evidence or supporting documentation.

III. Analysis

A. The legal framework

[64] As Perell J. explained in Mueller v. Lee, 2007 CanLII 23914 (Ont. S.C.J.), at para 10:

The possession and the ownership of land are related but distinct concepts. For lands under the Registry Act, R.S.O. 1990, c. R. 20, the ownership interest of the registered titleholder may be extinguished and lost to a person who has been in possession of that land for ten years. Pursuant to the operation of ss. 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, a person in legal possession of another’s land may obtain what is known as a possessory title.

[65] Section 4 of the Real Property Limitations Act requires actions to recover land to be made “within ten years next after the time at which the right … to bring such action, first accrued”. Section 15 then provides that once this limitation period has expired “the right and title of such person to the land … is extinguished”.

[66] A person who acquires possessory title over land, and in so doing extinguishes the original owner’s legal title, is said to acquire the land through “adverse possession”.

[67] The doctrine of adverse possession only applies to lands governed by the Registry Act. Section 51(1) of the Land Titles Act, R.S.O. c L.5 states that notwithstanding the Real Property Limitations Act:

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

[68] However, s. 51(2) preserves adverse possession claims that crystallized before the land at issue was registered under the Land Titles system. As the Ontario Court of Appeal recently explained in Billimoria v. Mistry, 2022 ONCA 276, at para. 28, “land that is registered in Land Titles cannot be obtained by adverse possession unless the ten-year exclusion period ran before the land was registered.”

[69] In this case, the disputed property was registered in the Land Titles system on December 6, 1999. Accordingly, the Applicants must establish that the McCrackens acquired possessory title over the disputed property before that date.

[70] To claim possessory title under the doctrine of adverse possession, the claimant must satisfy the three requirements established by the case law. In Mueller v. Lee, Perell J. explained at paras. 11-12:

It may be helpful to observe that the three requirements allude to the two factors that determine legal possession; that is: (1) control of the property; and (2) the intention to possess the property.

The three requirements of an adverse possession claim are:

(1) the claimant and or his predecessors must have actual possession for the statutory period;

(2) the claimant’s possession must be with the intention of excluding the owner or persons entitled to possession; i.e. the claimant must have an animus possidendi; and

(3) the owners and any others entitled to possession must be out of possession (discontinuance of possession) for the statutory period.

[71] The jurisprudence also distinguishes cases where the legal owner and the person claiming possessory title both mistakenly believed that the person claiming adverse possession owned the land – for example, cases involving neighbours, where both parties were mistaken about the location of a property line – from situations where the person claiming possessory title knowingly trespassed on the true owner’s land. In the latter situation, the claimant must demonstrate that his or her use of the land was inconsistent with the legal owner’s intended use, both to establish the intention to exclude the legal owner (Keefer v. Arillotta, 1976 CanLII 572 (Ont. C.A.); Fletcher v. Storoschuk, 1981 CanLII 1724 (Ont. C.A.)), and to demonstrate that the legal owner was “out of possession” (Masidon Investments Ltd. v. Ham, 1984 CanLII 1877 (Ont. C.A.)). However, this requirement that the claimant demonstrate “inconsistent use” does not apply in cases of mutual mistake: see Teis v. Ancaster (Town of), 1997 CanLII 1688 (Ont. C.A.).

B. Factual findings on the essential elements of adverse possession

1. Did the McCrackens have actual possession of the disputed property?

[72] As Perell J. explained in Mueller v. Lee, at para. 17 (citations omitted):

Actual possession can be established by use, and it is not necessary to build improvements or to enclose lands by a fence or barrier … Enclosure is the strongest possible evidence of possession, but it is not indispensable.

[73] In Teis v. Ancaster, at paras 13-14, Laskin J.A. explained further:

The first requirement is actual possession for the ten-year period. To succeed, the acts of possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. If any one of these elements is missing at any time during the statutory period, the claim for possessory title will fail. …

Possession must be open and notorious, not clandestine, for two reasons. First, open possession shows that the claimant is using the property as an owner might. Second, open possession puts the true owner on notice that the statutory period has begun to run. Because the doctrine of adverse possession is based on the true owner's failure to take action within the limitation period, time should not run unless the delay can fairly be held against the owner: Ziff, Principles of Property Law, 2nd ed. (Toronto: Carswell, 1996) at pp. 118-26.

[74] I am satisfied on all the evidence in this case that soon after the McCrackens moved onto their half of the Mills Property, they began using the other half of the property, which they did not own, as if it was an extension of their own lands.

[75] It is not clear on the evidential record exactly when this first happened. The McCrackens purchased their part of the property in 1962, but it presumably took them some time to build their house on it and begin using it as their residence. However, I am satisfied on a balance of probabilities that they had probably started using the disputed property at least by 1963.

[76] The only direct evidence about the McCrackens’ use of the disputed property comes from the McCracken children. They all describe how during their childhoods and afterwards, when their parents still lived in the family home, the McCracken family treated the disputed property as if it were an extension of their back and side yards. Wayne McCracken states that:

Since the 1960s, my parents maintained the Possessory Lands by, among other things, cutting brush as well as hedges, planting shrubs and flowers, by mowing the lawn, and have used these lands for storage, recreation, for family events, and used part of them as an unpaved driveway.

[77] His sister Dianne Abou Fadel adds in her supplemental affidavit that her parents kept a vegetable garden on the disputed property, and used it to store vehicles and boats.

[78] The McCracken children were not cross-examined on their affidavits, and their direct evidence about the McCracken family’s historical use of the disputed property is unchallenged. None of the opposing relatives claim to have direct personal knowledge to the contrary.

[79] The only evidence standing against the McCracken children on this issue is the assertions made by C. Stanton Stevenson in his October 27, 1989 and March 12, 1990 letters to Arnold and Patricia McCracken, in which he stated that he had information from his clients that the McCrackens “have not been maintaining or occupying in any respect the northerly and easterly parcel” of the disputed property, and that:

Your involvement has been limited to the front parcel and has amounted to entering such lands periodically for purpose of mowing the grass.

[80] Mr. Stevenson’s assertions in his letters about the McCrackens’ limited use of the disputed property appear to be double hearsay, since he seems to have merely been repeating what he was told by his clients, Louise Bowman and Gordon Wortley. Moreover, the letter Mr. Stevenson sent to his own clients on November 28, 1989 casts some doubt on the reliability of their claims. In what was plainly meant as a frank assessment of the merits of their legal position, Mr. Stevenson noted that on the issue of the McCrackens’ use of the disputed property:

From our discussions with you, the evidence is hazy at best and it may be that the best available evidence is that of the McCrackens themselves.

[81] At this late date, more than sixty years after the McCrackens bought their part of the Mills Property, the best available evidence regarding the family’s use of the disputed property next door comes from the McCracken children. I accept their unchallenged evidence on this point.

[82] I also prefer the McCracken children’s evidence that the two parts of the Mills Property were at least partially fenced off from the surrounding lands, over Mr. Stevenson’s contrary assertion in his October 27, 1989 letter that “[t]he lands are not fenced”.

[83] Mr. Stevenson’s claim in his letter is very probably double hearsay, since it seems unlikely that he would ever have inspected the disputed property himself.

[84] Conversely, the McCracken children have provided direct evidence about the existence of fencing. Their evidence that there was a fence partially encircling the two properties is also confirmed by the recent photographs taken by Wayne McCracken, which show that there is now a decrepit post-and-wire fence that extends around the western, northern, and much of the eastern edges of the Mills Property. While it is impossible to determine from the photos exactly when this fence was built, its appearance is at least consistent with the McCracken children’s direct evidence that they recall the fence existing “at least since the 1960s”.

[85] On all the evidence, I am satisfied on a balance of probabilities that the McCrackens took actual possession of the neighbouring disputed property at some point in the mid-1960s. Their own property and the disputed property were partially fenced together in a manner that excluded others, and the McCrackens used the disputed property as if it was an extension of their own land.

[86] I am also satisfied that their possession met six of the seven requirements listed by Laskin J.A. in Teis v. Ancaster, supra, in that it was “open”, “notorious”, “peaceful”, “exclusive”, “actual” and “continuous”. There is no evidence that any of the legal owners ever made any use of the disputed property, or that anyone else ever used it other than with the McCrackens’ permission.

[87] The more difficult question, to which I will now turn, is whether the McCrackens’ possession of the disputed property was “adverse” to the interests of the legal owners.

2. Did the McCrackens intend to exclude the legal owners, and were the legal owners excluded?

[88] The second and third prongs of the legal test for adverse possession require me to consider whether the McCrackens intended to exclude the legal owners from the disputed property, and whether the legal owners were in fact excluded from the property in some meaningful way.

[89] While I am satisfied that the McCrackens always meant to keep their neighbours and third party strangers from entering either their own land or the disputed property without their permission, the more difficult question is whether they meant to also exclude the disputed property’s legal owners, who were all close relatives of Patricia McCracken, and if so, when they first formed this intention.

[90] In this regard, I find that the McCrackens knew from the outset that they did not hold legal title to the disputed property. They had purchased their own portion of the Mills Property from Patricia’s relations, and must have known that their purchase did not include the other half of the Mills Property, and that it remained owned by other Wortley family members or their estates. This knowledge would have been later reinforced by their receiving tax bills for the disputed property that named other Wortley family members or their estates as the owners. As I noted earlier, the tax bills for the disputed property in the 1970s named the owner as “Irwin Wortley”, and later tax bills name the owners as the estates of Charles and Cora Wortley.

[91] In cases where the claimant honestly but mistakenly believed that he or she owned the disputed land, the inference that the claimant intended to exclude the true owner is ordinarily not difficult to draw. However, as Perell J. observed in Mueller v. Lee, at paras. 20, 23:

The intention to exclude element has a low threshold in cases where the claimant and the true owner mistakenly believe that the claimant owns the disputed land, and it has a high threshold where the claimant is a mere trespasser with designs of becoming the owner of lands that he or she knows belong to another …

In Ontario, in cases where a trespasser knowingly seeks to dispossess the rightful owner, the intention to exclude requirement has a high threshold because the law adds an “inconsistent use” requirement to the intention to exclude requirement of the test for a possessory title. The animus possidendi that a person claiming possessory title must have is the intention to exclude the owner from such uses as the owner wants to make of his or her property: Keefer v. Arillotta, supra; Fletcher v. Storoschuk, [supra]; Leigh v. Jack (1879), 5 Ex. D. 264. In other words, in trespasser cases, the claimant must show “inconsistent use” having regard to the intentions of the owner or paper titleholder: Masidon Investments Ltd. v. Ham, [supra]. Many commentators have noted that if the owner’s use is just to hold the land for future development, it is extremely difficult for the claimant to show an inconsistent use.

[92] Perell J. noted further in Mueller v. Lee, at para. 16, that:

The aspect of adversity in the requirement of actual possession means that the possession is without the permission of the owner. If the claimant acknowledges the right of the true owner, then the possession is not adverse: Teis v. Ancaster, supra; 1636539 Ontario Inc. v. W. Bradfield Ltd. 2007 CanLII 8013 (Ont. S.C.J.). Adversity means that the claimant is in possession without the authorization or permission of the titleholder: Teis v. Ancaster, supra; Beaudoin v. Aubin (1981), 1981 CanLII 1758 (ON SC), 33 O.R. (2d) 604 (H.C.J.); Rowe-Wilkinson v. McDougall Wright, 2004 CanLII 48872 (Ont. S.C.J.). The adversity aspect may be problematic because just as giving may be overrun by taking, with the passage of time, permission may be overrun by appropriation.

[93] I think that it is likely that when the McCrackens first started using the disputed property as an extension of their own yard, they would have believed that they had at least the tacit permission of its legal owners, none of whom seem to have had any immediate interest in making any use of the land themselves. Indeed, it would have been reasonable for the McCrackens to have viewed the upkeep work they performed on the disputed property – which, according to Dianne Abou Fadel, included maintaining the fence and hedge that separated it and their own land from their neighbours; cutting the grass; and cutting and controlling brush – as inuring to the benefit of the property’s legal owners.

[94] Equally, I am not satisfied that the McCrackens’ initial possession of the disputed property was inconsistent with any intended uses by its legal owners. There is no evidence that any of the legal owners had any immediate plans to use the disputed property in any way. Moreover, the McCrackens did not build any structures on the disputed property or make any permanent changes to it that would have interfered with any future use of the property by the legal owners.

[95] It follows that I am not satisfied that the evidence supports the conclusion that the McCrackens acquired possessory title over the disputed property at any point before 1989. Even though by 1989 the McCrackens had been in actual possession of the disputed lands for more than twenty years, I am not satisfied that during this time period they ever formed the intention to displace the legal owners, or that the legal owners were in fact displaced.

[96] However, I am also satisfied that the situation changed significantly in the fall of 1989, when conflict broke out between the executors of Cora Wortley’s estate and the McCrackens over their continued occupation of the disputed property.

[97] It is not clear on the evidential record what caused the dispute to arise when it did, nineteen years after Cora Wortley’s death in 1970. The only evidence on this point is the account that Jo-Anne Wortley gave in her April 2012 letter to Mr. Dick, which she wrote many years after the fact and is largely based on hearsay. However, I am inclined to accept that her narrative is broadly accurate at least as far as the sequence of events is concerned, since this part of her account is confirmed by the contemporaneous legal correspondence.

[98] On Jo-Anne’s account, the conflict over the disputed property first arose when the executors of Cora Wortley’s estate, Patricia McCracken’s siblings Louise Bowman and Gordon Wortley, sent someone to inspect the disputed property with a view to selling it. Jo-Anne says that this led to her arranging for the McCrackens to obtain legal advice from Edward Wildman. This part of Jo-Anne’s narrative is confirmed by the September 12, 1989 letter that Mr. Wildman wrote to her and copied to the McCrackens, in which he states that he spoke to her about the McCrackens’ situation on August 10, 1989 and then spoke to them directly a month later, on September 11, 1989.

[99] I would note that Jo-Anne’s April 2012 letter to Mr. Dick can be read as at least implying that these events took place shortly after Cora Wortley’s death in 1970. If this is indeed what Jo-Anne meant to suggest, I am satisfied that by the time she wrote her letter in 2012 she had become confused about the timing of these events. I conclude that for unexplained reasons the executors of Cora’s estate probably waited nearly twenty years after Cora’s death before they made any attempt to regain possession of the disputed property from the McCrackens in order to sell it.

[100] In his September 12, 1989 letter to Jo-Anne, which he copied to the McCrackens, Mr. Wildman expressed the opinion that the McCrackens were “entitled” to “assert a claim” against the disputed property. The McCrackens seem to have accepted Mr. Wildman’s advice about this, since in the October 27, 1989 letter that the lawyer for Cora’s estate trustees, C. Stanton Stevenson, wrote to the McCrackens, he began by noting that the McCrackens had made a “recent suggestion to [Louise Bowman] that all Wortley family claims to the lands around your home are now barred”.

[101] The McCrackens seem to have ignored Mr. Stevenson’s October 27, 1989 letter, in which he had asked them to “acknowledge our clients’ claim” over the disputed property. There is also no evidence that they ever responded to his subsequent March 12, 1990 letter in which he suggested to them that “an amicable compromise would avoid expensive litigation”. Finally, there is no evidence that Cora’s estate trustees ever took any further steps to reassert their rights over the disputed property. Rather, I am satisfied on all the evidence that the status quo continued, and that the McCrackens remained in possession of the disputed property until their deaths some thirty years later.

[102] I draw a number of inferences from the 1989 and 1990 legal correspondence.

[103] First, by October 1989, if not sooner, the executors of Cora Wortley’s estate, who had previously at least been tacitly acquiescing to the McCrackens using the disputed property, began voicing objections to this use and sought to reassert their own ownership rights.

[104] Second, the McCrackens, probably emboldened by the advice they had now received from Mr. Wildman, began taking the position in response that they had acquired ownership of the disputed property by adverse possession.

[105] I am satisfied that at least by October 1989 the McCrackens had formed the intention of excluding the legal owners from the disputed property. I am also satisfied that the legal owners now knew that they were being excluded from the property by the McCrackens.

[106] Finally, I am satisfied that the legal owners took no further steps to assert their legal rights over the disputed property. Although Mr. Stevenson’s March 1990 letter to the McCrackens raised the threat of “expensive litigation”, his clients never followed through with this threat. As a result, the McCrackens continued in actual possession of the disputed property until their deaths some thirty years later.

[107] In summary, I am satisfied that at least by October 1989, the adverse possession clock had begun to run against the legal owners. They were now on notice that the McCrackens were claiming ownership over the disputed property, and that they were denying the competing ownership claims of the heirs of the original legal owners. This put the onus on the heirs to take action within the ten year limitation period to preserve their legal rights and regain possession of the disputed property.

[108] They never did so, with the result that by the end of October 1999, the ten-year limitation period under s. 4 of the Real Property Limitations Act had expired. Under s. 15 of the RPLA, the expiration of the limitation period caused the “right and title” of successor of the original legal owners – that is, the heirs of Cora and Charles Wortley – to be “extinguished”.

[109] Accordingly, by the time the disputed property was registered in the Land Titles system a few weeks later, on December 6, 1999, the McCrackens had already acquired possessory title over the disputed property.

[110] I will conclude by making three final observations.

[111] First, I do not think that it matters that the McCrackens probably did not have a valid legal claim in 1989 that they had already acquired possessory title over the disputed property. By asserting their claim in 1989 to now be the legal owners, rightly or wrongly, they put the actual legal owners’ successors on notice that their ownership rights were at risk, shifting the onus to them to take timely action within the next ten years to preserve their legal rights over the disputed property, which they then failed to do.

[112] Second, while I would not be inclined in any event to place any significant weight on the hearsay factual claims that Mr. Stevenson made in his October 27, 1989 letter to the McCrackens, on my analysis it does not matter whether Arnold McCracken implicitly recognized the estate of Cora Wortley’s rights over the disputed property in June 1985 by offering to cut the grass for free. By October 1989 he was plainly taking a different position. His supposed recognition of the legal owners’ rights in 1985 might have undermined his ability to claim in 1989 that he and his wife had already acquired possessory title over the disputed property. However, it does not affect my conclusion that he and his wife then proceeded to acquire possessory title over the next ten years, after they asserted in 1989 that the disputed property now belonged to them, and the legal owners’ successors then failed to take action to challenge this assertion.

[113] Third, on my analysis it is unnecessary for me to determine who paid the property taxes for the disputed property at different times over the years. The evidence tends to support the conclusion that the McCrackens paid the property taxes through the 1970s and from 1991 onward, but that Louise Bowman may have paid the taxes from 1980 to 1990, during which time the tax bills were addressed to the estates of Charles and Cora Wortley in care of her.

[114] I accept that Ms. Bowman’s apparent payment of the tax bills from 1980 to 1989 would tend to support the inference that the McCrackens’ use of the disputed property during these years was not adverse to the interests of Cora Wortley’s estate.

[115] However, once the conflict between the McCrackens and Cora’s estate trustees crystallized in the fall of 1989, I do not think it matters whether or not Ms. Bowman made one final tax payment in or around February 1990. By this time she knew that the McCrackens were no longer acknowledging that Cora’s estate had any rights in relation to the disputed property. Moreover, Ms. Bowman’s lawyer had taken the position in his October 27, 1989 letter that the McCrackens had never had actual possession of the disputed property, and that their “involvement has been limited to entering the front parcel and has amounted to entering such lands periodically for the purpose of mowing the grass”.

[116] Having staked out this position – which I have found to be factually incorrect, in that it substantially understated the actual use the McCrackens had been making of the disputed property since the mid-1960s – I do not think it would have been open to Ms. Bowman to then claim that any subsequent use of the disputed property by the McCrackens after October 1989 was done with her permission, whether she was paying the property taxes or not.

C. Summary of conclusions

[117] In summary, I find that the McCrackens did not acquire possessory title of the disputed property between 1962 and 1989. Although I find that they were in actual possession of the disputed property for most of this time period, at least from 1963 onwards, I am not satisfied that during this time they formed the requisite intention of excluding the legal owners from the disputed property, nor am I satisfied that the legal owners were denied possession.

[118] However, I find that the situation changed in October 1989, and that from this point onwards the McCrackens, having formed the belief that the disputed property ought to now belong to them, now began occupying it with the intention of displacing the legal owners.

[119] I am also satisfied that by failing over the next ten years to challenge the McCrackens’ claim that the property now belonged to them, the legal owners’ successors permitted the RPLA limitation period to run against themselves and eventually lost the right to challenge the McCrackens’ continued possession of the disputed property, with the result that by October 1999, at the latest, their rights over the property had been extinguished by s. 15 of the RPLA.

IV. Disposition

[120] I am accordingly satisfied that the Applicants are entitled to a declaration that the McCrackens acquired possessory title over the disputed property by adverse possession prior to its registration under the Land Titles system on December 6, 1999, and that an order should go vesting the disputed property in the estate of Arnold McCracken.

[121] On the issue of costs, in their Notice of Application the Applicants sought the costs of their application if it was opposed. While none of the named respondents opposed the application, the non-party opposing Wortley heirs appeared at the hearing and voiced their opposition. One of them, Shari Simpson, also requested that she be compensated for her own expense in retaining a lawyer, even though this lawyer ultimately did not represent her at the hearing.

[122] The Applicants and the non-party opposing Wortley heirs may each file brief written submissions on costs. The Applicants, who have already submitted their bill of costs, should serve and file their submissions within two weeks of the date of the release of these reasons. The opposing Wortley heirs should serve and file responding submissions and any supporting documentation within a further two weeks. All materials may be served electronically and filed by email sent to my judicial assistant.

Dawe J.

Released: January 4, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ESTATE OF ARNOLD WILLIAM JAMES McCRACKEN BY THE ESTATE TRUSTEES, WAYNE McCRACKEN, CAROL McCRACKEN, DIANNE ABOU FADEL and KAREN ABI-JAOUDE

Applicants

– and –

MICHAEL ANTHONY GATT, DANIELLE MARIE TREACY, PAUL POZGAJ, BRANKA POZGAJ, SHANTY BAY ESTATES LIMITED, JAMES BLAINE PFRIMMER, JOAN MERLE PFRIMMER and JOHN NORMAN WORTLEY

Respondents

REASONS FOR JUDGMENT

The Honourable J. Dawe

Released: January 4, 2023

[^1]: This attachment to Jo-Anne Wortley’s letter was not preserved.