COURT FILE NO.: CV-18-1546
DATE: 2023/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN PETER SAWATSKY and CATHY ANN SAWATSKY Applicants
– and –
ANNITA BALDINELLI and SANDRA MCKIBBON
Respondents
The Honourable Justice C.D. Braid
Peter Hertz and Thomas Sanderson, Counsel for the Applicant
Barry Yellin and Kayla Carr, Counsel for the Respondent Sandra McKibbon (Annita Baldinelli not participating in the hearing of the Application)
HEARD: June 29, 2023
REASONS ON APPLICATION
I. OVERVIEW
[1] John and Cathy Sawatsky own a cottage property in Grand Bend, Ontario. They have brought an application to confirm their family’s adverse possession of a rectangular, three-foot wide strip of land (“the Disputed Lands”) that abuts their cottage property, and they seek a declaration of possessory title and a vesting order.
[2] Sandra McKibbon owns an adjoining property and contests this application. Annita Baldinelli owns another adjoining property and has consented to a vesting order. As a result, Ms. Baldinelli did not participate in the hearing.
[3] The following issues arise on this application:
A. What is the test on an application to establish adverse possession?
B. Did the Sawatskys have actual possession of the Disputed Lands?
C. Did the Sawatskys intend to exclude the owners of the McKibbon property?
D. Did the Sawatskys effectively exclude the owners of the McKibbon property?
[4] For the reasons set out below, the application is dismissed.
II. BACKGROUND
[5] The Sawatskys are joint owners of a family cottage located at 21 Warwick Avenue, Grand Bend, Ontario (the “Sawatsky Property”). Ms. McKibbon is the sole registered owner of a neighbouring property at 19 Warwick Avenue, Grand Bend, Ontario (the “McKibbon Property”). Ms. Baldinelli is the sole registered owner of another neighbouring property at 35 Centre Street, Grand Bend, Ontario (the “Baldinelli Property”). The Sawatsky, Baldinelli and McKibbon Properties are cottage properties that are occupied seasonally by the families of the registered owner(s).
[6] The Sawatsky and Baldinelli properties were created in 1924 as lots on a plan of subdivision. The McKibbon Property resulted from the subsequent subdivision of one of the lots on the original plan. In 1952, the northernmost three feet of the Baldinelli Property and the McKibbon Property were transferred to the owner of the Sawatsky Property, by indenture, and changed the relevant legal descriptions.
[7] The Disputed Lands lie immediately to the south of the lands in the 1952 Transfer. The Disputed Lands lie along the southern boundary of the Sawatsky Property, and along the northern boundaries of the McKibbon and Baldinelli Properties. The Disputed Lands are approximately 3 feet wide and 82 feet long, from Warwick Avenue to the western respective boundaries of the Sawatsky and McKibbon properties.
[8] The cottage on the Sawatsky Property was built in the 1940s. The Sawatsky Property has been in the Sawatsky family since December 1977, when John was 19 years old. In June 1994, John became a registered owner of the Sawatsky Property; in May 2014, Cathy also became a registered owner.
[9] Beginning in the late 1970s, Dave Sommers was the owner of the McKibbon Property. It was his principal residence and he lived there year-round. The municipality sold the property when Mr. Sommers fell into arrears of property taxes. Mr. Sommers is now deceased.
[10] Ms. McKibbon and her sister purchased the McKibbon Property in March 2003. It was subsequently transferred to Ms. McKibbon and her now ex-husband. She became the sole registered owner of the property on November 20, 2009.
[11] In May 2017, Ms. McKibbon first made a claim to the Disputed Lands, relying on a survey that she had obtained on January 31, 2017.
III. ANALYSIS
A. What is the Test on an Application to Establish Adverse Possession?
[12] Adverse possession is governed by sections 4 and 15 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 which provide that a dispossessed legal owner will lose right and title in land after ten years. At that point, a party showing adverse possession (including by predecessors in title) is entitled to a vesting order for title to the property. The law prevents adverse possession after the land’s entry in the land titles system (in this case, 2007), but preserves any rights to adverse possession acquired prior to conversion to the land titles system: Pepper v. Brooker, 2017 ONCA 532, 139 O.R. (3d) 67 at para. 42; Jamnisek v. Estate of Gordan A. Wyant, 2021 ONSC 66 at para. 29; Land Titles Act, R.S.O. 1990 c. L.5, s. 51.
[13] The Sawatskys argue that, by December 1987, they met all legal requirements for adverse possession through predecessors in title. Whether the Sawatskys have established adverse possession of the Disputed Lands is a factual question that must be determined in light of the particular circumstances, including the nature of the property, and the appropriate and natural uses of the property.
[14] To establish adverse possession of the Disputed Lands, the Sawatskys must demonstrate that, throughout the ten-year adverse possession period, they:
a. Had actual possession of the Disputed Lands; and
b. Had the intention to exclude the true owner from possession; and
c. Effectively excluded the true owners from possession.
The adverse possession claim will fail unless the Sawatskys meet each of the three criteria. The test is conjunctive: Pepper v. Brooker, at para. 32
B. Did the Sawatskys Have Actual Possession of the Disputed Lands?
[15] Actual possession involves treating the property as an owner might, without the owner’s consent. The acts of possession must be “open, notorious, peaceful, adverse, exclusive, actual and continuous.” Even if use is only limited, intermittent or sporadic, that will satisfy the continuity requirement if suited to the nature of the property: Pepper v. Brooker, at para. 32; Teis v. Ancaster (Town), 1997 CanLII 1688 (ON CA), 1997 ONCA 1688, 35 O.R. (3d) 216 at paras. 9, 17 and 21.
[16] Until 2017, the owners of the Sawatsky, McKibbon and Baldinelli properties were mutually mistaken that the Disputed Lands formed part of the Sawatsky Property. I make this finding based on the following facts:
a. There has been a fence line between the Disputed Lands and the McKibbon and Baldinelli properties. No owner suggested that the fence line did not reflect the property boundaries. An old board fence was in place before the Sawatsky family purchased the property in 1977. The fence rendered the Disputed Lands inaccessible from the McKibbon Property backyard and part of the side yard, although there has never been a fence that ran the entire length of the Disputed Lands. At one point, Mr. Sommers took down the old board fence, which was down for a long time. Mr. Sommers constructed a new fence in its place, although it took two years to complete the work. He also planted a row of shrubs that continued the fence line toward Warwick Avenue.
b. The Sawatsky cottage’s south wall encroaches slightly onto the western part of the Disputed Lands.
[17] Further, I find that the Sawatsky family has used the Disputed Lands as owners since December 1977, including:
i. For regular maintenance of the Sawatsky cottage, such as washing and replacing windows, replacing the siding and replacing roof shingles;
ii. Between December 1977 and the late 1990s, the Sawatsky family landscaped the space between the concrete retaining wall and the Sawatsky cottage;
iii. Between December 1977 and July 2012, the Sawatsky family used the Disputed Lands for barbequing food and for storage;
iv. After 1997, the Sawatsky family used the concrete pad as an extension of the cottage porch, which continued until the Sawatsky family constructed an elevated deck in the same area in July 2012;
v. The Sawatsky family treated the mature oak tree (that formerly stood on the Disputed Lands) as part of the Sawatsky Property. This included their removal of the tree in 2013, at their sole cost, after Ms. McKibbon stated concerns that “your” (i.e. Sawatskys’) oak might fall onto the McKibbon Property;
vi. From December 1977 until July 2018, the Sawatsky family maintained the lawn on the Disputed Lands in the same condition as the rest of the Sawatsky Property; and
vii. Starting in or about 2000, the Sawatsky family began to store its property in a storage box on the Disputed Lands. For example, the Sawatsky family’s storage bin and firewood storage pile sat on the Disputed Lands, in proximity to the Sawatskys’ front lawn fire pit.
[18] The Sawatskys had actual possession of the disputed lands; therefore, the first criteria of the test for adverse possession has been met.
C. Did the Sawatskys Intend to Exclude the Owners of the McKibbon Property?
[19] Prior to May 2017, the Sawatsky family and the owners of the McKibbon property believed that the Disputed Lands belonged to the Sawatskys. In cases of mutual mistake, where the claimant and true owner both believe that the claimant owns the subject land, the law infers that the claimant occupied the lands with the intention of excluding all others: Teis at paras. 24 – 27.
[20] However, the facts in this case are similar to the facts in Pepper v. Brooker, in which the disputed lands were part of a cottage property to which members of the community were permitted access. The Court found that the applicants failed to establish an intention to exclude since no one was excluded from crossing the disputed lands: Pepper v. Brooker at para. 36.
[21] In the same way, it was expected that members of the community would cross the Disputed Lands at issue in this case. The Sawatskys have failed to establish an intention to exclude because the Disputed Lands were open and accessible to the true owners and to the community, as follows:
a. Attendance(s) on the Disputed Lands or the Sawatsky’s front lawn in the course of cottage visits were in keeping with the friendly community tradition on Warwick Avenue; namely, when someone had a bonfire in the neighbourhood, everyone would join in;
b. The Sawatsky woodpile on the Disputed Lands was accessible to everyone in the community; and
c. Prior to 2013, the Sawatsky family kept a clothesline along the middle of the Disputed Lands, between the pine tree and the oak tree. The Sawatsky family, and their permitted guests, used the clothesline to hang bathing suits, clothes and towels. Other community members’ use of the Sawatsky clothesline was with permission of the Sawatskys, which was in keeping with the nature of the community.
[22] For these reasons, I find that the Sawatskys have not established that they intended to exclude the owners of the McKibbon property; therefore, the second criteria of the adverse possession test has not been met.
D. Did the Sawatskys Effectively Exclude the Owners of the McKibbon Property?
[23] The critical issue on this application is whether the Sawatskys effectively excluded the owners of the McKibbon Property from the Disputed Lands. Even if I am incorrect about the Sawatskys’ intention to exclude, there is no evidence that the Sawatskys effectively excluded the owners. This is fatal to their claim for adverse possession.
[24] Since the true owner is presumptively in possession of the lands, non-use of lands by the true owner is insufficient to establish effective exclusion of the paper title holder: Pasre Holdings Inc. v. Goodes et al, 2018 ONSC 2168, at para. 28. The burden is on the Sawatskys to prove adverse possession, and there is no onus on Ms. McKibbon to show that an owner of the McKibbon Property objected to the Sawatskys’ use of the Disputed Lands.
[25] An adverse possession claimant must succeed in their intention by achieving effective exclusion from the property, even in cases of mutual mistake. If effective exclusion cannot be demonstrated, the adverse possession claim must fail: Pepper v. Brooker at paras. 34, 37 and 39, citing Shennan v. Szewczyk, 2010 ONCA 679, Sumner v. Sullivan, 2014 ONCA 869, and Barbour v. Bailey, 2016 ONCA 98, leave to appeal refused [2016] SCCA No. 139.
[26] The Sawatskys have not established that the owners of the McKibbon property were excluded from the Disputed Lands. Being good neighbours and members of the friendly community on Warwick Avenue, the Sawatsky family permitted others, including owners of the McKibbon property, to enter onto the Disputed Lands. The Sawatskys did not exclude Mr. Sommers, or any other owner, from the Disputed Lands, nor did they tell them that they could not access those lands.
[27] The facts in this case are similar to those in three recent Ontario Court of Appeal decisions dealing with cottage property and claims for adverse possession on the basis of a mutual mistake concerning property boundaries. In each of those cases, the Court found that the adverse possession claimants failed to establish effective exclusion of the true owner. The disputed lands were open to the community to use, there were no signs restricting access, and the adverse possession claimants never told the true owners to stay off the disputed lands: Pepper v. Brooker; Sumner v. Sullivan, and Barbour v. Bailey.
[28] I have already described how community members were permitted access to the Disputed Lands in this case. In addition, the following evidence demonstrates that the owners of the McKibbon property were not effectively excluded:
a. Between December 1, 1977 and June 25, 2007, the Sawatskys did not construct a fence that ran the length of the Disputed Lands;
b. The Sawatskys did not display signs on the Disputed Lands that said “Private Property,” “Keep Out” or “No Trespassing”;
c. The Sawatskys never told Mr. Sommers or Ms. McKibbon that they could not step on or cross over the Disputed Lands, or use the clothesline, or store and take firewood from the woodpile;
d. Mr. Sommers crossed the Disputed Lands to get to the Sawatsky fire pit and to another neighbour’s cottage. For example, Mr. Sommers would walk from the McKibbon Property over the Disputed Lands to get to the Sawatsky Property and another neighbour’s property for drinks, bonfires and general conversation while he owned the McKibbon Property;
e. Ms. McKibbon crossed the Disputed Lands to get to the Sawatsky Property for gatherings, fires and barbeques;
f. Mr. Sommers stepped onto the Disputed Lands when he removed the old fence and constructed the new one;
g. Ms. McKibbon would hang laundry on the clothesline, which was on the Disputed Lands;
h. Ms. McKibbon crossed onto the Disputed Lands to store and retrieve firewood from the woodpile. While the Sawatskys did not observe Mr. Sommers using the woodpile, it would have been possible for him to do so since it was not blocked off in any way;
i. Ms. McKibbon walked and parked on the Disputed Lands in the early 2000s while they were renovating the cottage on the McKibbon Property;
j. Ms. McKibbon conducted maintenance and repairs to the fence and would use the Sawatskys’ water spigot and hose, which is attached to the south side of the Sawatsky cottage facing the Disputed Lands. To complete these activities, she would cross onto the Disputed Lands; and
k. Other than the old and new fences that enclosed a portion of the backyard of the McKibbon Property, there was nothing blocking access to the Disputed Lands. A fence never ran the entire length of the Disputed Lands, so it was accessible if Mr. Sommers or Ms. McKibbon wanted to cross over it.
[29] There is no evidence that the Sawatsky family effectively excluded Mr. Sommers and/or Ms. McKibbon from the Disputed Lands during any 10-year period of time between 1977 and 2007.
IV. CONCLUSION
[30] For all of these reasons, the application is dismissed.
[31] I am advised that Ms. Baldinelli has consented to orders relating to Part 1 of the Disputed Lands. The Sawatskys may file a written consent, together with an approved order and a draft order for signature. Once these documents are delivered to my chambers, I will sign the order.
V. COSTS
[32] The parties are encouraged to settle the issue of costs. If they are unable to do so, they shall provide written costs submissions, which shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs. Ms. McKibbon shall provide costs submissions by January 19, 2024; and the Sawatskys shall provide costs submissions by February 2, 2024. If submissions are not received by February 2, 2024, costs shall be deemed settled.
Braid, J.
Released: December 27, 2023
COURT FILE NO.: CV-18-1546
DATE: 2023/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN PETER SAWATSKY and CATHY ANN SAWATSKY
Applicants
– and –
ANITA BALDINELLI and SANDRA MCKIBBON
Respondents
Defendants
REASONS ON APPLICATION
Braid, J.
Released: December 27, 2023