Court File and Parties

COURT FILE NO.: CV-22-120 DATE: 2023/03/20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Corporation of the Town of Renfrew, Applicant AND Callum Scott and Zenaida Raboy, Respondents

BEFORE: Justice A. Doyle

COUNSEL: J.F. Lalonde, Counsel for the Applicant Self-represented for the Respondents

HEARD: March 1, 2023, at Pembroke

Endorsement

[1] The applicant, the corporation of the town of Renfrew (“Renfrew”) moves for, among other things:

• a declaration that Renfrew is the owner of the subject properties, specifically 200 Stewart Street and the Ready Street road allowance as set out in the application (“subject properties”);
• a declaration that the respondents are enjoined from trespassing on the subject properties;
• an order requiring the respondents to remove everything they placed on the subject properties;
• an order that the respondents restore the subject properties to their previous condition; and
• an order that the respondents remove the scaffolding on their property because it violates Zoning By-law 46-2010.

[2] The respondents argue, among other things, that Renfrew has failed to prove that it is the owner of the subject properties, that a 2015 by-law enacted by Renfrew granted the respondents ownership of portions of the subject properties and that Renfrew has no authority to dictate how the respondents use their property. Although they are not claiming adverse possession, they have used the subject properties for 20 years. The respondents indicate that the scaffolding is safe and will be used in the future, but they are waiting for retroactive realty taxes that Renfrew owes them to allow them to complete the construction. In addition, people access their property to enter 200 Stewart Street.

[3] For the reasons that follow, the court grants the relief sought by Renfrew in their application.

Background

[4] The subject properties are set out below.

[5] 200 Stewart Street which Renfrew indicates is their property has the following characteristics:

• It is legally described as PIN #57614-0012 (LT): LTS 1-3, PT LTS 4 & 5, BLK A, PL 8 as in R362339, Town of Renfrew, subject to execution 98-00227, if enforceable;
• It is a 0.75 acre of vacant land;
• It was occupied by the Hanson Mohawk Woolen Mill until 2003 when Renfrew acquired it through a Notice of Vesting after an unsuccessful tax sales process;
• It is subject to a lease agreement with Renfrew Power Generator (“RPG”) for the purpose of facilitating construction activities in support of the Thomas Low Generating Station and this was approved by a by-law;
• It serves as an access point to the upper dam and bridge infrastructure;
• There have been major capital works completed by RPG on the upper dam; and
• To the north is the respondents’ property, to the west is the Ready Street municipal road allowance, to the east is Stewart Street and to the south is the Bonnechere River.

[6] On the 200 Stewart property, the respondents have:

• Installed a rail fence through the property behind a stand of cedar trees;
• Stored wood, scrap metal, blue and black plastic barrels, rocks, stones, sand, and other material;
• Built a treehouse by first cutting and removing several mature tree limbs from the tree;
• Installed fieldstone walkways;
• Placed decorative items such as old metal wheels; and
• Created a fenced area used as a garden and/or patio.

[7] The Ready Street municipal road allowance (“road allowance”) is the second subject property which Renfrew indicates is their property. It has the following characteristics:

• It is legally described as PIN #57614-0072 (LT): PT Ready AV W, PL 8 lying Btn Stewart St, PL 8 & Baldwin St. PL 8, Town of Renfrew; and
• It is on the south side of Ready Street, adjacent to the north property line of the respondents’ property.

[8] On the road allowance, the respondents have:

• Built three dog houses and eight planter boxes; and
• Installed a rail fence.

[9] 220 Stewart Street (“respondents’ property”) is:

• Legally described as PIN #57614-0013 (LT): PT LTS 4 & 5; BLK A, PL 8, as in R376771; Town of Renfrew; and
• Registered in the names of the respondents.

[10] The scaffolding on the respondents’ property has been there since approximately May 2018. Currently no construction work is being conducted using this scaffolding.

[11] Photos show that the scaffolding is near a public sidewalk with ladders on each end and no barriers around it to prevent individuals from using it.

[12] On June 26, 2019, James McBain, the municipal law enforcement officer, wrote to the respondent, Callum Scott, advising him that the scaffolding was a threat to public safety and requesting that it be removed. The respondents called the By-law Complaint Line disputing the contents of the letter and refusing to take the scaffolding down.

[13] The town attempted to work with the respondents to remove the scaffolding, but the respondents rejected Renfrew’s offer of assistance.

[14] Renfrew requested that the respondents remove items from the road allowance and 200 Stewart. Renfrew provided deadlines and the respondents did not comply.

Renfrew’s Position

[15] Renfrew submits that as the owner of the described lands, it is entitled to the relief it is seeking because the respondents are encroaching on its properties.

[16] Despite numerous efforts requesting the respondents to comply, the respondents have refused using spurious reasons.

[17] Renfrew was prepared to consider an offer from the respondents that they purchase part of the described properties to own them legally. Renfrew raised the possibility of the respondents buying an interest in the described lands.

[18] Renfrew did not receive an offer to purchase from the respondents.

[19] Renfrew also suggested that the respondents could enter into an encroachment agreement so that they could use the road allowance. The respondents were not willing to do so.

Respondents’ Position

[20] The respondents state that they have maintained the subject properties for 20 years, completed considerable work on the properties and they object to Renfrew’s attempt to “fence them in”. Renfrew has not maintained the property; the respondents have cut grass, pulled weeds and cleared snow from the fire hydrant.

[21] The respondents have not made a claim in their pleadings for adverse possession and at the hearing, confirmed that there is no claim before the court.

[22] They submit the following:

• Renfrew has not proven that it is the owner of the subject properties;
• The Corporation of the Town of Renfrew By-law No. 66-2015 gives them the right of way from services to the foundation of their building. Therefore, they own part of the described land as that by-law states they are responsible for the maintenance of the sewer system to their property. This supersedes anything registered in the registry office.
• Although they are not seeking ownership by adverse possession, they submit that they have maintained the described properties including gardening, weeding, snow removal around the fire hydrant and beautifying the property.
• The scaffolding is monitored, locked and secure and not a danger to anyone. Renfrew has no authority to pass by-laws dealing with private property.
• The planters and dog houses act as barriers to prevent people from coming near their building.
• Other neighbours are encroaching on the properties and Renfrew is not making claims against them.

[23] They responded to Renfrew’s request to remove the materials by alleging the following:

• Improper conduct by the by-law officer because his truck does not carry the municipal logo which he is required to show, he drives with an obscured license plate and the parking of his vehicle interferes with the flow of traffic;
• The respondents were successful in court when Renfrew insisted that they needed a permit to put in new windows;
• Improper water, sewer and property taxes and charges resulting in the respondents overpaying these fees;
• Discrimination and harassment by municipal officials;
• Renfrew’s snow removal caused flooding in to the respondents’ basement;
• Abuse by Renfrew political officials has resulted in the respondents deciding not to have children;
• Mr. McBain was improperly ticketing vehicles when he was in an unmarked red Ford truck; and
• During the pandemic, Mr. McBain’s behaviour during attendances at their property was “unsettling and mean spirited and unprofessional during a global pandemic and provincial lockdown”.

[24] The respondents indicate that Renfrew has been aware of their occupation of the “so called” municipal lands and of their personal use of these lands since January 15, 2003.

[25] In July 2003, after a car drove through their building and they sought help from Renfrew, the respondents were verbally told to do what was necessary for their safety.

[26] The respondents installed planters and barriers to stop vehicles from hitting their building. Ongoing construction on Ready Street (road allowance) and Stewart Street necessitates using barriers to shield the respondents’ property.

[27] The respondents indicate that they have kept the property well-maintained and removed garbage such as crack cocaine paraphernalia, condoms, pornographic tapes and other types of garbage from the property. Further, Renfrew has flooded their basement due to snowplows and drainage issues on the road allowance.

[28] The respondents have placed many loads of topsoil on the lawn, maintained grass, cut weeds and kept the road allowance clean at all times for Renfrew Power Generation which leases the land.

[29] They have processed 100,000 wood pallets that were destined for the dump, and they have maintained trees. They have incurred $9,000 in costs for asphalt used to fill or seal cracks.

[30] The respondents have cleared the snow for the past 17 years near the fire hydrant except on two occasions.

[31] Kim Bulmer, the Town Clerk of Renfrew, and Mike Asselin, Director of the Department of Development and Works, were aware of the respondents’ intention to purchase the parts of the properties that Renfrew claims it owns.

[32] Renfrew has been overcharging the respondents for water usage. Renfrew did not honour the water metre agreement.

[33] Mr. Scott attached a 1905 photo which is not clear, but he purports to say that it demonstrates certain structures on the subject property.

[34] The respondents refer to other cases dealing with a historic building dispute, overpayment of realty taxes, overpayment of water bills (unless they paid for a very expensive water meter), other individuals’ distressing interactions with Renfrew, an allegation of inaccurate counting of ballots, and the dismissal of a parking ticket at the No Frills parking lot (as Renfrew had no authority to ticket private property). The respondents also referred to another individual who they believe was not treated fairly by the employees of Renfrew.

[35] The respondents allege that Mr. McBain drives around in a vehicle with no visible logo contrary to Renfrew By-law No. 48-2013, s. 4 (4.1).

[36] On October 11, 2013, the respondent Mr. Scott met with Peter Bold, the foreman of Renfrew Power Generation, and Mr. Asselin who told Mr. Scott of the construction of the new dam behind the respondents’ property and that a temporary fence would be erected. Mr. Scott indicated that Mr. Bold and Mr. Asselin said that he did not need to remove or clear anything.

[37] The October 15, 2021, letter from Mr. Scott demanded the following from Renfrew:

• Proof of the acquisition of the two properties;
• Proof of severance of 220 Stewart;
• Proof of “the lawful authority to imprison” the respondents in their home under the town’s claim of ownership of the land space from Ready Street to their side door;
• Proof of authority to “steal their property; and
• Proof of authority to deny them from walking across the narrow strip of land adjacent to Ready Street and to deny them access to public sidewalks.

[38] Mr. Scott also threatened criminal prosecution if Renfrew took any of their property or confined them to their home.

[39] In their lawyer’s letter dated December 15, 2021, the respondents were advised that Renfrew would be seeking instructions to commence a civil action to remove the respondents’ materials from the respondents’ properties.

[40] Mr. Scott distrusts Renfrew’s counsel and alleges they lack credibility because of how that law firm may presented documents in a claim involving his motorcycle 40 years ago.

[41] Finally, the material filed by the respondents includes a letter requesting “costs from the court for the continuous frivolous actions, 5 at present, spanning 19.5 years by the corporation of the Town of Renfrew and as a deterrent to stop any further frivolous actions”. This letter is not in the form of a statement of claim or application and hence this claim is not properly before the court for consideration.

Discussion

Findings

Renfrew is the titled owner of the subject properties

[42] First, the court finds that Renfrew is the titled owner of the subject properties, i.e., 200 Stewart Street and the road allowance.

[43] Attached to the affidavit of Mr. Bulmer, dated August 15, 2022, are the parcel registers of both properties and the property index maps. The property index map clearly identifies the properties and the PIN numbers relating to the parcel registers (see Exhibits A, B and C of his affidavit).

[44] In addition, Mr. McBain’s inspection report of April 20, 2020, refers to the 2012 survey with modification. The diagram filed is identified as a survey by Mr. McBain. His markings on the survey represent the various items placed on Renfrew’s property by the respondents. The survey is the best evidence before the court because it identifies the properties by PIN number and is referable back to the parcel register.

Trespass

[45] Second, it is clear that the respondents are trespassing on the described properties. The respondents have encroached on the described properties. The encroachments are not minor or transient. Mr. McBain’s reports and photos of the materials show that the respondents have placed many items on the subject properties. Further, the respondents do not deny that they have their materials as set out above.

[46] As stated in Lombardo v. 2672140 Ontario Inc., 2021 ONSC 5523, a trespass to land is the act of entering upon land, in the possession of another or erecting some object without the legal right to do so. The court reviewed the case law on trespass, at paras. 33-40:

Trespass is an unjustifiable interference with possession: Didow v. Alberta Power Ltd., 1988 ABCA 257, [1988] A.J. No. 620. The case also held that a low-level intrusion which impinges upon the actual or potential use and enjoyment of an owner's land amounts to a trespass and that consequently an intrusion by an artificial or permanent structure into the airspace of another is forbidden as a trespass.

In Mann v. Saulnier (1959), 19 D.L.R. (2d) 130, the court stated at paras. 132-133:

Trespass to land is the act of entering upon land, in the possession of another, or placing or throwing or erecting some material object thereon without the legal right to do so.

In all such cases, in order to be actionable as a trespass, the injury must be direct, within the meaning of the distinction between direct and consequential injuries…. It is a trespass, and therefore actionable per se, directly to place material objects upon another's land; it is not a trespass, but at the most a nuisance or other wrong actionable only on proof of damage, to do an act which consequentially results in the entry of such objects. To throw stones upon one's neighbour's premises is the wrong of trespass; to allow stones from a ruinous chimney to fall upon those premises is the wrong of nuisance.

The impugned fence on the Disputed Lands is large, not transitory, and is a permanent encroachment. In this case, a wall or fence that was intentionally constructed that prevents unrestricted access to one’s own land constitutes a trespass.

Courts are reluctant to sanction a permanent encroachment by simply awarding damages. Indeed, the applicant has not sought damages in this proceeding. It is seeking mandatory and injunctive relief to have the fence moved off of its lands.

In Kargakos v. Cartier Square Housing Co-Operative Inc., [2004] O.J. No. 1868 (Sup. Ct.), Master Beaudoin quoted John G. Fleming, The Law of Torts, 8th ed. (Sydney: Law Book, 1992) at 42-43:

If a structure or other object is placed on another's land, not only the initial intrusion but also failure to remove it constitutes an actionable wrong. There is a "continuing trespass" as long as the object remains…

Indeed, courts look at mandatory injunctions as the appropriate remedy when the encroachment is not trifling in character because of its permanent and continuing nature, Bellini, at para. 136.

The onus is on the respondent in a claim for trespass to show that it is oppressive or a burden to take a trespassing wall down. The Lombardos presented no evidence in that regard.

If an incursion onto the applicant’s property is a structural encroachment which is neither fleeting nor transitory, and that the impact upon the land diminishes access, damages are not an appropriate remedy and a remedy of a mandatory injunction should follow: Bellini, at paras. 42-44.

[47] The affidavit of Mr. McBain dated August 18, 2022, attached numerous exhibits including correspondence with Mr. Scott, photos of the properties in question and a report dated April 23, 2020.

[48] The affidavit of Mr. Bulmer, dated August 18, 2022, set out the parcel register for the road allowance and 220 Stewart properties, lease agreement, the reports from Mr. McBain and correspondence with the respondents.

[49] In his inspection of April 23, 2020, Mr. McBain photographed the respondents’ materials on the road allowance and 200 Stewart. He noted that the respondents installed a rail fence through the property behind a stand of cedar trees. In doing so they accumulated stored wood, scrap metal, blue and black barrels, rocks, stones, sand and other materials on 200 Stewart. Mr. McBain also noted that the respondents were in the process of building a tree house which involved cutting and removing several mature tree limbs from the trees, installing fieldstone walkways, placing old metal wagon wheels on the property and fencing an area which appeared to be used as a garden or patio.

[50] The respondents’ rail fence, eight planter boxes and three dog houses were on the 200 Stewart Street and extended over the road allowance.

[51] On his July 27, 2020 inspection, Mr. McBain noted the following: Mr. Scott had expanded the use of the property to the western edge of the dirt access road off the road allowance; Mr. Scott was continuing to build a tree house; Mr. Scott had parked two vehicles along the access road. This information was included in Mr. McBain’s July 27, 2020 report.

[52] In conclusion, the court finds that the respondents have trespassed and continue to trespass on the subject properties.

Renfrew’s efforts

[53] I find that Renfrew made numerous efforts to seek the respondents’ cooperation in the removal of their items on the described properties. In a letter dated December 29, 2020 sent to the respondents, Renfrew required the removal of the items from the road allowance by January 15, 2021and from the 200 Stewart Street property by May 31, 2021.

[54] The evidence indicates that Renfrew made numerous efforts to request that the respondents move their materials and dismantle the structures within a reasonable timeline.

[55] The respondents’ letter dated January 14, 2021, addressed other grievances they had with the township. The letter was copied to the Canada Revenue Agency, Royal Canadian Mounted Police, Canadian Broadcasting Corporation Go Public, Eganville Leader, Renfrew Mercury, Pembroke Observer, Ottawa Citizen and other public figures including the premier of Ontario.

[56] In his letter dated January 25, 2021 Mr. McBain extended the deadline to February 17, 2021 to remove the encroachments and offered to assist in bringing the items to another location.

[57] In April 2021, Mr. McBain met with the respondents and discussed the possibility of them purchasing a 28-foot-wide strip of land that spanned the full length of their property and the value of this strip was discussed. This conversation was confirmed in writing on May 14, 2021, and Mr. McBain instructed that if the respondents were interested in buying the strip of land, they would have to prepare an offer and Mr. Bulmer would prepare the necessary documentation and agree to their encroachment on the road allowance.

[58] A follow up letter was sent on September 27, 2021, by Mr. McBain.

[59] On May 9, 2022, Mr. McBain re-attended the properties and noted that the above-mentioned structures remained on the road allowance and 200 Stewart. Mr. McBain photographed these structures.

[60] Because the properties involved in this application, including the respondents’ properties, are located in the municipality of Renfrew, they are subject to by-laws and building code provisions enacted by the province and Renfrew.

[61] Renfrew had planned to install a chain link fence along the property line between the 200 and 220 Stewart properties after the respondents cleared their materials from the property.

[62] Once Renfrew gained control of the two properties, they had planned to issue a trespass notice under the Trespass to Property Act, R.S.O. 1990, c. T.21, to the respondents prohibiting them from entering 200 Stewart Street.

[63] Despite warnings, the respondents refused to remove their materials. Instead, in July 2020, Mr. McBain observed that Mr. Scott was continuing to build the treehouse and had two parked vehicles along the access road: see the report of Mr. McBain dated July 27, 2020.

[64] Renfrew’s deadlines were extended. Mr. Scott responded with a 25-page letter which focused on issues other than the encroachment.

[65] The respondents raised an additional argument: that somehow the by-law enacted in 2015 by Renfrew granted a portion of Renfrew’s subject properties to the respondents.

[66] The preamble of the by-law states that “Being a by-law to establish a policy on storm and sanitary sewer lines to private property in the Town of Renfrew and repeal By-law No. 5-93.”

[67] Since this is one of the main arguments raised by the respondents as to why they are owners of some of the described properties, it is necessary that the relevant portions of the by-law be reproduced below:

Whereas the Municipal Act, S.O. 2001, c. 25, Section 9, provides that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under the Act; and

Whereas the Municipal Act, S.O. 2001, c. 25, Section 9, provides that Sections 8 and 11 shall be interpreted broadly so as to confer broad authority on municipalities to (a) enable municipalities to govern their affairs as they consider appropriate and (b) enhance their ability to respond to municipal issues; and

Whereas the Municipal Act, S.O. 2001, c. 25, Section 87, enables the Town of Renfrew to enter on land, at reasonable times, to inspect the discharge of any matter into the sewage system and may conduct tests and take samples; and

Whereas the Council is authorized by Section 78 to 93 of the Municipal Act, S.O. 2001, c. 25 to pass by-laws for services that the municipality considers necessary or desirable for the public which includes utility services; and

Whereas the corporation of the Town of Renfrew deems it expedient to establish a policy on the ownership and responsibilities of the sanitary and storm sewer services and any attachments thereto from the mains in the streets to the building to be serviced and located on private property.

Now therefore, the council of the corporation of the town of Renfrew enacts as follows:

That the following is hereby established as Policy for the Corporation of the town of Renfrew concerning all matters pertaining to ownership and responsibility of Sanitary and Storm sewer lines to private properties and the necessary attachments thereto.

B. the portion of the service (s) from the edge of the Road Right of Way (ROW) to the serviced building is considered private property and is entirely the responsibility of the property owner. The property owner will supply ad lay down the storm sewer service line (if available) and sanitary sewer service (if gravity flow and sufficient depth is available), backfill, compact and reinstate lines across the private property. The minimum gradient of 1% is to be maintained on sewer services lines and minimum cover shall be 1.5 m in depth. All costs associated with the installation on private property will be the responsibility of the property owner. A qualified plumber shall make all connections from the storm and sanitary service lines to the municipal service.

[68] The court finds that the plain reading of this by-law describes the responsibility of property owners to maintain sewer systems located on their property. That is, the portion of sanitary storm sewers found on the respondent’s property is deemed their property and their responsibility.

[69] The respondents do not acquire proprietary rights simply because they are responsible for the sewer systems located on their own property. Accordingly, the respondents’ argument cannot succeed.

Other arguments by the respondents

[70] The respondents have raised several other reasons for objecting to this application including racism in the Renfrew council, improper tax charges, inappropriate and unlawful behaviour of Mr. McBain and dishonesty among various players in this litigation. These arguments are not relevant and have no bearing on the application before the court.

[71] The respondents argue that they are being targeted by Renfrew because other neighbours who are encroaching on Renfrew’s properties have not been brought to court. The court does not have those cases before it. The details of those encroachments and how Renfrew is dealing with those alleged encroachments are also unknown to me. Therefore, I cannot, on the record before me, rule on this submission.

Adverse possession

[72] The respondents submit that they have maintained and beautified the subject properties and Renfrew has not taken any action until recently.

[73] Even though the respondents are not claiming adverse possession, the court will deal with this issue to ensure completeness of this application.

[74] Below, the court will set out the general principles dealing with adverse possession and the unique specific principles when dealing with municipal properties.

[75] As stated in Lombardo, at paras. 7-8:

7. Sections 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c.L.15, s. 15 state:

Limitation where the subject interested

4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

Extinguishment of right at the end of the period of limitation

15. At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.

16. In order to be successful in a claim for adverse possession, the Lombardos must meet the test of adverse possession for a ten-year period. However, that ten-year period cannot run past the date on which a piece of land is registered in the land titles system.

[76] In McKay v. Vautour, 2020 ONCA 16, 10 R.P.R. (6th) 54, the Court of Appeal stated the following, at para. 7:

As a result, to succeed in her claim for adverse possession, the appellant had the burden to establish that the use of the disputed strip by her predecessors in title was “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner”, namely, the respondent’s predecessors in title, for any ten-year period prior to June 16, 2003, and that this use met the following well-established criteria:

i. Actual possession for the statutory period by the appellant’s predecessors in title through whom she claims;

ii. Such possession was with the intention of excluding from possession the respondent’s predecessor in title;

iii. Discontinuance of possession for the statutory period by the respondent’s predecessor in title.

[77] In McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 333 O.A.C. 381, Rouleau J.A. said the following, at para. 11:

To establish actual possession, 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 ten-year period, the claim for possessory title will fail. [Citations omitted.]

[78] Since 200 Stewart Street and the road allowance are municipally-owned properties, the following legal principles apply. In Stager v. Muskoka Lakes (Township) (1989), 71 O.R. (2d) 126 (Div. Ct.), at p. 129.

The general principle "once a highway always a highway" applies and the provisions of s. 4 of the Limitations Act, R.S.O. 1980, c. 240, do not apply. Accordingly, the applicants gained no prescriptive rights to encroach on the respondent's land so dedicated. The public has the right of passage over the whole of the lands dedicated as a public highway and in our view the respondent has the right to act under s. 315, para. 3 of the Municipal Act, R.S.O. 1980, c. 302. [Citations omitted.]

[79] With respect to 200 Stewart Street, the court must consider the “public benefit test” set out in Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, 30 R.P.R. (5th) 44. According to the public benefit test, land found to be held for the general public benefit is immune from claims of adverse possession. Howden J. quoted the following from Thorson J.A. in Household Realty Corp. Ltd. v. Hilltop Mobile Home Sales Ltd. (1982), 37 O.R. (2d) 508 (C.A.), at para. 105:

The property vested in the municipality (assuming that it was the owner) would have been only a "qualified property, to be held and exercised for the benefit of the corporation in accordance with the powers conferred upon it by the legislature and not otherwise" (Re Ogilvie and City of Winnipeg, [1927] 2 D.L.R. 606, [1927] 1 W.W.R. 833 at 845, 36 Man. R. 412).

I agree with this latter statement as it applies to property that is a public street or highway. There is of course the well-established maxim ‘once a highway always a highway' which comprehends essentially the same principle. As Rogers points out in his Law of Canadian Municipal Corporations, 2d ed. (1971) vol. 2 at 1096:

The right of ownership in real property, such as a highway, a market or a public wharf, held by a municipality for the common benefit or use of its inhabitants and of the Queen's subjects in general, is of such a public character that it cannot, as a general rule, be lost by adverse possession over the prescriptive period. [Emphasis added.]

[80] Howden J. reasoned that there is a second rationale for the special nature of governmental ownership of property in relation to the issue of immunity from adverse possession claims. This second rationale, quoted from Sandra Petersson, Something for Nothing: The Law of Adverse Possession in Alberta, (1992) 30 Alta. L. Rev. 1291, is at para. 114:

The rationale is twofold. Crown and public lands are held for the benefit of all citizens and it would be unjust for one to deprive all of part of this benefit. Secondly, given the vast acreage of such land it is impossible to patrol against adverse possessors. Similar protection is extended to municipal lands in section 437 of the Municipal Government Act, R.S.A. 1980, c. M-26.

[81] At para. 118, Howden J. offered his own opinion:

In my view, land acquired by a municipality and used for public purposes is held in trust for the benefit of the public and cannot be lost, or the municipality’s title extinguished, by reason of ordinary acts or omissions within the meaning of the law of adverse possession. The preservation of municipally owned land has been regarded by the legislature as imbued with special public significance as illustrated by the elaborate processes necessary for a municipal council to undergo in order to sell or convey municipally owned land. In addition, given that property that is owned by a municipality is held by way of a qualified title for public benefit, the interests of fairness and justice require that no one or two individuals should be allowed to deprive others of part of that benefit.

[82] The court in Oro-Medonte appears to have set out “more stringent requirements” for the “Public Benefit Test” as suggested by Laskin J.A. in Teis v. Ancaster (Town of) (1997), 35 O.R. (3d) 216. At para. 119, the court in Oro-Medonte wrote the following:

I find that lands held by a municipality other than as public road allowances which meet the following factors are immune from claims of neighbouring landowners based on prescriptive rights or adverse possession: (ii) the land was purchased by or dedicated to the municipality for the use or benefit of the public, or as here, for the use or benefit of an entire subdivision as well as the public at large; and (iii) since its acquisition by the municipality, the land has been used by and of benefit to the public.

[83] In this case, Renfrew meets the requirements to enjoy the immunity from claims of neighbouring landowners of prescriptive rights or adverse possession because the land was purchased by the municipality for the use or benefit of the public and since its acquisition by Renfrew, the land has been used by and for the benefit of the public. The land has been leased by RPG to complete major capital works on the upper dam, serves as a critical access point to the upper dam and bridge infrastructure and is for the public use.

[84] In Kosicki v. City of Toronto, 2022 ONSC 3473, Donohue J. found that the city of Toronto had failed to meet the criteria of the public benefit test. However, the court also found that it would be against public policy to allow a private landowner to acquire title by encroaching on public lands and fencing off portions for their private use. Practically, municipalities cannot patrol all their land and the court should not demand the same vigilance as required from a private landowner. The court declined to find adverse possession because it would create a “dangerous precedent”.

[85] However, Donohue J. instructed the following discussed at paras. 72-78:

As discussed in Teis, p.221:

[O]pen 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.

In the case of public lands, there is a reasonable explanation why no action was taken.

The City is simply unable to patrol all its lands against such adverse possessors. The courts cannot demand the same vigilance of a private landowner to watch its borders of a public entity.

I find that a private individual must not be able to acquire title by encroaching on public lands and fencing off portions for their private use in the manner of two private property owners.

These lands, as originally acquired, were for a “very high public interest”.

In these circumstances, the private landowner may not proceed to fence off public lands and exclude the public and succeed in a claim for adverse possession.

As a matter of public policy, this would be a dangerous precedent if allowed.

[86] Even if the court found that Renfrew had failed to establish the public benefit test and that it was not contrary to public policy to permit the respondents to adversely possess a portion of 200 Stewart Street, the court finds that the traditional test for adverse possession has not been satisfied.

[87] The properties were registered on the Land Titles system on July 13, 1998, and hence the respondents have failed to establish adverse possession for a continuous period prior to July 13, 1998 because they did not acquire their property until January 15, 2003. The respondents’ predecessors did not encroach upon or use the described lands.

[88] The respondents’ photo of July 5, 1906, shows a small building adjacent to a larger building (which is the respondents’ home). This small building, its owner and its use are not identified. The photo does not establish adverse possession.

Relief

Declaration

[89] The court grants a declaration that the subject properties described in the application are owned by Renfrew, as is permissible under r. 14.05(3)(e) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[90] There are no material facts in dispute that necessitate a trial pursuant to r. 14.05(3)(h) because the parcel registers filed show that Renfrew owns the subject properties including the date that the properties were transferred into the land titles system and when the respondents bought their property in 2003.

[91] The respondents have not established that their predecessor had a continuous 10-year period use of the property before it was transferred to the land titles system.

Trespass and Removal of items

[92] The court finds that the respondents have trespassed on the town properties by building and placing structures, items and materials on them and landscaping the town properties with fieldstone walkways and decorative items. The respondents’ trespass is continuing.

[93] Therefore, the court orders that the respondents are not entitled to enter or travel upon the subject properties or to direct any other individual to enter or travel upon the subject properties, except to fulfil the requirements of this order.

[94] The respondents are entitled to use the road allowance for temporary vehicular and/or pedestrian purposes, specifically to permit the respondents and those who they invite or have a right to be on their property to egress or ingress the respondents’ properties via the road allowance.

[95] The court orders and grants a declaration that the respondents and anyone directed by them shall be deemed to be trespassing within the meaning of the Trespass to Property Act, and subject to any and all applicable penalties, if they enter onto the subject properties for a purpose other than to fulfill the requirements of this order or to make reasonable and lawful use of the road allowance for temporary vehicular and/or pedestrian purposes.

Injunction

[96] The court grants a mandatory and permanent injunction pursuant to r. 14.05(3)(g) because this relief is ancillary to the declaratory relief granted by this court. A permanent injunction is appropriate in this case. The court can consider a mandatory injunction as an appropriate remedy when there are encroachments on another individual’s land, especially when the encroachment is of a continuing nature: see Lombardo, at paras. 36 and 38.

[97] The encroachments are not trifling in character because the respondents have built structures including a tree house, placed fieldstone walkways, planters, and have used 200 Stewart to store materials. A mandatory injunction is necessary to require the respondents to remove the items and restore the subject properties to their former condition.

[98] The court orders that the respondents are to forthwith, at their own costs, remove all structures, items, equipment and material which have been built, erected or placed by them, or at their direction, on Renfrew’s properties by July 14, 2023. This deadline will permit the respondents to remove the aforementioned items after the spring thaw and during the summer months. The court further orders that the respondents restore the properties to their previous condition by July 14, 2023.

[99] If the respondents fail to remove all items, structures, equipment and material from the properties before such date, Renfrew may take necessary steps to do so and charge the cost, which must be reasonable, to the respondents. This right shall be ongoing so long as such requirements are not satisfied. The respondents shall pay all of Renfrew’s costs for the removal and disposal of all structures, items, equipment and material which have been built, erected or placed on the subject properties and restore them to their previous condition.

[100] The respondents and anyone directed by them are restrained from erecting or placing any structures, items, equipment or material on the properties except in furtherance of the ultimate removal of material from the properties.

[101] In addition, a permanent injunction will issue enjoining the respondents from entering or travelling on the properties except to make reasonable and lawful use of the road allowance for temporary vehicular and/or pedestrian purposes.

[102] The scaffolding has been in place for four years. It is not in use as the respondents admit that they are not building or renovating their property. The respondents are contravening s. 3.29 of Zoning By-law 46-2010, which states the following:

Nothing contained in this By-law shall prevent the erection or location of any sheds, scaffolds, or other structures (including trailers or recreational vehicles) incidental to building construction on the premises for so long as the same is necessary for work in progress which has neither been finalized, nor abandoned.

[103] The respondents have either abandoned the construction or, as they claim, they are waiting for money from Renfrew to finish the project.

[104] Mr. McBain indicates that the photos show that the wooden panels supporting the bottom of the scaffolding are splitting and deteriorating and the stone underneath the panels are not level.

[105] Therefore, the court orders that the respondents, at their own cost, shall remove the scaffolding on their property by July 14, 2023.

[106] Renfrew has not provided the court with the authority which would permit it to enter on the respondents’ property if the respondents fail to remove the scaffolding within the time specified.

[107] If the respondents do not cooperate, then may seek relief from any Superior Court Justice.

[108] Renfrew as the successful party is presumptively entitled to costs. I strongly encourage the parties to agree what costs, if any, are payable.

[109] If the parties cannot agree, Renfrew may file their two-page costs submissions with an dated bill of costs and any offers to settle by March 31, 2023. The respondents may file their two-page costs submissions with their bill of costs and any offers to settle by April 11, 2023, and Renfrew may file a one-page reply by April 18, 2023.

Justice A. Doyle Released: March 20, 2023