COURT FILE NO.: CV-22-00000008-0000
DATE: 2023-02-09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Francine Boileau, Christine Carle, Pauline Cadieux, Nathalie Béland, Mairi Watson, Jeffrey Dawson, Doreen Meyer, Colin Lambert, Philippe Beauchamp and Kelly Beauchamp
Applicants
– and –
Dean Sinnott, Holly Sinnott, Shakeel Ahman and Asma Asma
Respondents
COUNSEL:
Sophie C. Reitano, for the Applicants
Gordon S. Campbell, for the Respondents Dean Sinnot and Holly Sinnott Shakeel Ahmad, In person
HEARD: November 30, 2022
reasons for decision
HURLEY, J
Introduction
[1] The applicants own cottages that abut the Ottawa River. They believe that the boundary of each of their properties extends to the high-water mark of the river.
[2] In 2020, the respondents Shakeel Ahmad and Asma Asma bought a parcel of land which lay between the applicants’ properties and the Ottawa River. The property was sold for tax arrears by the City of Clarence-Rockland. For the purposes of this decision, I will refer to Mr. Ahmad and Ms. Asma as the “Ahmads”
[3] According to the applicants, they did not know of the existence of this parcel. I will call it, as the parties did, the “Disputed Land.” Once they learned of the sale, they took the position that they had acquired ownership of the Disputed Land through the doctrine of adverse possession prior to the Ahmads’ purchase of it.
[4] The Ahmads offered to sell the Disputed Land to them for the same price they had paid to the municipality. The applicants declined the offer.
[5] The respondents Dean and Holly Sinnott, who own land adjacent to the applicants’ properties, purchased the Disputed Land from the Ahmads.
[6] The applicants seek a declaration that the Disputed Land be vested in their names as tenants-in-common, each to receive a 1/7 share. The legal consequence of such a declaration would be to extinguish the Sinnotts’ ownership of it and deprive them of any river frontage.
The issues
[7] The record before me included 19 affidavits and exceeded 1,000 pages. The parties chose to forgo cross-examinations. The applicants submit that I can decide this case on a paper record. I disagree. There are material facts in dispute which, in the ordinary course, would result in the application being converted to an action.
[8] However, that is not the appropriate order in this case because I have concluded that the applicants are seeking a legal remedy which is not available to them. I accept the Sinnotts’ position that there is no basis in Ontario law for this type of communal claim for adverse possession.
[9] The applicants assert as well that they are the legal owners of the Disputed Land. This is distinct from their adverse possession claim and depends on the opinion of François Guertin, a paralegal who conducted a title search. While the underlying title documents may be admissible in this proceeding, Mr. Guertin’s opinion is not. The interpretation of the various documents that have been registered on title (deeds, a flooding easement, an expropriation plan and survey plans) raise complicated factual and legal questions. I could not justly and fairly adjudicate this issue without the assistance of a properly qualified expert and, in all likelihood, viva voce evidence.
Issue one: The communal adverse possession claim
[10] The legal principles are well known.
[11] The land at issue was transferred to the land titles system on July 15, 2002. Section 51 of the Land Titles Act, R. S. O. 1990, c. L. 5 prevents the creation of any new possessory title through adverse possession once land has been placed under the land titles system, but preserves any rights to adverse possession acquired before this date: McKay v. Vautour, 2020 ONCA 16 at para. 6.
[12] The party claiming adverse possession has the burden of establishing that their use of the property was “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner” for a 10-year period prior to the placement of the land under the land titles system: McClatchie v. Rideau Lakes (Township), 2015 ONCA 233 at para. 11. They must show that they had actual possession of the property in issue; intended to exclude the true owner from possession; and effectively excluded the true owner: McKay at para. 7; McClatchie at para.9.
[13] What is sufficient to establish actual possession will vary depending upon the nature of the property and the natural uses to which it can be put. This is a fact-driven inquiry. As stated by Gale, C. J. in Walker v. Russell, 1965 250 (ON SC):
The sufficiency and character of the possession necessary to pass title must be considered and tested in the light of the circumstances, which surround each particular case. Acts which amount to possession in one case may be wholly inadequate to establish it in another. Matters such as the nature of the property, the appropriate and natural uses to which it can be put, the course of conduct which the owner might reasonably be expected to adopt with a due regard to his own interests, are all matters to be considered in evaluating the adverse possession which has been proved to have been exercised by a trespasser or successive trespassers.
[14] In summary, the applicants’ evidence supports the conclusion that each owner believed the northern boundary of their property extended to the Ottawa River. This makes sense; after all, most are seasonal homes which abut a body of water. They do not assert that the Disputed Land was used in common. Rather, each refers to portions of the Disputed Land directly in front of their respective properties as the “Claimed Land”.
[15] A sketch of the area prepared by the applicants which depicts the properties owned by them, the Disputed Land and the Claimed Land is reproduced below. The Sinnotts originally bought their property in 2019. It is between the lands identified in the diagram as “Meyer & Lambert” and “Beauchamp”. The sketch is not to scale and I include it solely for illustrative purposes:
[16] The applicants have owned their respective properties for many years and, in addition to their affidavits, there are others from people who have knowledge of the use and occupation of the waterfront in the past. The Sinnotts are relative newcomers and do not have the same historical familiarity with the area.
[17] The parties, as I earlier stated, rely on competing affidavits. The Sinnotts have not adduced any evidence which directly contradicts the assertions made by the applicants about their use and occupation of the Disputed Land but they do challenge portions of their evidence. They have also pointed out some of the frailties in the record that they say raise serious issues about the nature and extent of the applicants’ use and occupation of the Disputed Land. The major challenges are:
i. The applicants would have been aware of an expropriation of land by the Hydro-Electric Power Commission of Ontario (“HEPCO”) registered on title in 1963 that affected each property.[^1] They may not have all known the exact legal consequence of the expropriation (i.e. whether it was a flooding easement or the actual taking of land) but they knew that the expropriation affected the use and occupation of their property in proximity to the river.
ii. The applicants assert that their deeds indicated that the northern boundary of their properties was the “high water line” of the Ottawa River. However, a riparian boundary may be ambulatory: Herold Estate v. Canada (Attorney General), 2021 ONCA 579 at para. 61. Many of the applicants referred to the water levels changing; that there was flooding of what had previously been dry land; and leftover debris from the flooding affected the use and occupation of the waterfront.
iii. The evidence of past use and occupation of the Disputed Land is not entirely consistent among the applicants. Some may have believed that HEPCO owned the land over which they are claiming adverse possession. Surveys to establish the boundaries of each applicant’s property would be necessary.
[18] If each applicant was seeking relief restricted to their property alone, I would likely be able to determine the parties’ rights on the existing paper record supplemented by cross-examinations or by directing a summary trial. However, the applicants are asking for possessory title to land which they have not used or occupied in any manner.
[19] The evidence for each applicant is limited to their use and occupation of that portion of the land directly to the north of their particular parcel and which borders the river. None have alleged any use or occupation of land which fronts their neighbours’ properties. Yet, what they are seeking is a joint or common legal interest in the Disputed Land.
[20] The applicants cited decisions which outlined the general principles with respect to adverse possession but none in which a court granted a declaratory judgment to a group of property owners. This is not surprising: A fundamental requirement of adverse possession is that the claimant actually possessed the property in question for the requisite period of time.
[21] Theoretically, a communal or collective claim is possible. Multiple neighbouring landowners could use and occupy the same parcel of property but that is not what the applicants allege here. Their use and occupation is restricted to a discrete area but they seek possessory title to a much larger parcel of land which they have never used or occupied.
[22] The requested remedy also carries with it significant practical consequences. If the Disputed Land is vested in the applicants’ names in equal shares, they will have all the legal rights of an owner to the whole of the Disputed Land. Although they seem united now, that may not remain the case in the future. And, if that happens, there is bound to be further litigation.
[23] For example, what if one applicant decides to install a dock not in front of their property but in a location in front of another applicant’s property? What if an applicant decides to build a structure, such as a boathouse, in the same place? What if an applicant decides that the waterfront in front of another applicant’s property is their preferred place for leisure activities like swimming, boating and social get-togethers? These are not, in my view, speculative possibilities. The case law amply demonstrates how litigious people can become over recreational property.
[24] I considered whether the application could be converted to an action if the applicants amended the notice of application to request, in the alternative, a declaration of possessory title in respect of the land that directly abuts each of their properties. However, any such amended application would require surveys to establish the proper boundaries. Based on the record before me, the applicants are not interested in obtaining those surveys or paying the costs associated with them.
[25] The claim for adverse possession fails.
Issue two: The challenge to the Sinnots’ legal title to the Disputed Land
[26] Gordon Dalrymple purchased property legally described as the whole of the West 1/2 of Lot 5, Concession 1(OS), Township of Clarence, in January 1939. He created the parcels of land that were eventually purchased by the applicants. Before his death in 1964, he conveyed other property to Robert Dalrymple.[^2] One of the parcels was the Disputed Land.
[27] Robert Dalrymple died in 1983. A tax arrears certificate was registered against the Disputed Land in 2001 and again in 2018. The Ahmads purchased it for $15,000 from the City of Clarence-Rockland in January, 2020.
[28] The evidence in the record before me about this transaction is sparse. The applicants do not allege that the sale did not comply with the requirements of the Municipal Act, 2001, S.O. 2001, c.25. The Ahmads were bona fide purchasers for value without notice of the applicants’ adverse possession claim.
[29] The applicants learned about the purchase and sale of the Disputed Land in the early spring, 2020. They and the Sinnotts jointly retained a lawyer, Marc Simard, who wrote to the Ahmads on April 1, 2020 stating that his clients had acquired possessory title to the Disputed Land before the municipal tax sale and that they were considering an application to obtain a vesting order.
[30] Negotiations followed. The Ahmads eventually offered to sell the Disputed Land to the applicants for the same price they had paid for it. The applicants rejected this proposal. The reasons for doing so are not entirely clear other than it seems the group decided that litigation was a preferable route for obtaining title to the property.
[31] The Sinnotts parted company with the applicants and decided it was in their best interest to purchase the Disputed Land from the Ahmads. The applicants describe the Sinnots’ conduct as deceptive and underhanded. I reject that characterization of their actions. Their decision was an objectively reasonable one given the potential costs and inherent risks in litigating an adverse possession claim of this nature.
[32] In addition to a declaration and order vesting the Disputed Land in the names of the applicants as tenants-in-common, the applicants seek an order against the respondents extinguishing any right or title they may have to the Disputed Land. They also seek an order “that the Land Registry Office of Ontario give effect to these orders”. They are not seeking to set aside the municipal tax sale.
[33] In his affidavit, Mr. Guertin deposed that he has 45 years’ experience in title searching and paralegal services related to real property issues and that he was retained to “perform a verification of back title documentation pertaining to the title and occupation of the Disputed Land” and “provide a detailed report with the historical picture as to access thereto in the title contradictions and issues between the Disputed Land and adjoining waterfront conveyances”.
[34] In this affidavit, he concludes:
Therefore, I suspect that the Land Registry Office created a separate parcel for the Disputed Land by relying on the above-mentioned expropriation rather than an easement interest, contrary to the intentions of the previous transfers which appear to have intended that the Disputed Land be disposed of along with all of the lands owned by Mr. Dalrymple at the time. Ultimately, this caused the inadvertently created parcel now known as the Disputed Land to remain unclaimed, accumulate tax arrears and ultimately result in a sale by the city of Clarence-Rockland.[^3]
[35] This is clearly an opinion. The applicants did not comply with rule 39.01(7). Mr. Guertin’s qualifications and expertise to give an opinion about title to property are not admitted by the Sinnotts. His affidavit is rife with speculation and subjective conclusions about the documents registered on title.[^4]
[36] In view of these shortcomings, I find the affidavit is inadmissible and I disregard it along with a letter prepared by Mr. Guertin dated July 2, 2020 which contains essentially the same information.
[37] The documents registered on title would be admissible but I do not have the expertise to interpret them in order to reach an opinion on the legal validity of the Sinnotts’ ownership of the Disputed Land. They acquired title in the ordinary way – the exchange of money for a deed to the property which was accepted by the Land Registry Office for registration. The Ahmads acquired title in the same way. Any challenge to the validity of their ownership in these circumstances requires the evidence of a properly qualified expert. And if the experts retained by the parties do not agree, a hearing with viva voce evidence.
[38] I find it puzzling that none of the applicants were informed of the existence of the Disputed Land by the lawyers who acted for them in the purchase of their properties. The parcel was registered on title. Although some applicants referred to advice they received from their real estate lawyer about the boundaries of their property, there were no reporting letters contained in the application record. I recognize that people may not retain a reporting letter from many years ago but it is odd that no lawyer apparently identified a potential issue with the boundaries of the applicants’ properties other than a flooding easement.
[39] The Sinnotts take the position that the applicants should have also named the Director of Land Titles and the Municipality of Clarence-Rockland given the allegations that the Disputed Land was improperly registered and sold. They submit that these are fatal procedural flaws. I think it would have been prudent to give these entities notice, particularly because of the request for rectification of the Registry and the implicit allegation that the municipality wrongfully taxed and sold a ratepayer’s property but the failure to do so would not preclude an order granting the application if the applicants were otherwise entitled to the relief being claimed.
[40] Should the application be converted to an action to permit the applicants to adduce additional evidence through a properly qualified expert? In my view, that would not be appropriate because the applicants were content to proceed with the hearing knowing that the admissibility of Mr. Guertin’s evidence was being challenged. The application should be determined at this time on the admissible evidence before me.
[41] In order to obtain an order extinguishing the Sinnotts’ title to the Disputed Land, the applicants have to prove that the Sinnotts are not the lawful owners of it. They have not done so.
Disposition
[42] For these reasons, the application is dismissed. As the successful parties, the respondents are presumptively entitled to costs. I asked counsel to exchange costs outlines in accordance with rule 57.01(6). If the parties cannot agree on costs, Mr. Campbell shall deliver written submissions not to exceed five pages exclusive of the costs outline and any written offers to settle the application within 30 days of the release of this decision. Ms. Reitano shall deliver her responding submissions of the same length within 15 days of receiving the submissions of Mr. Campbell. Once the submissions are exchanged and filed with the court, Mr. Campbell shall send copies of the written submissions and costs outlines of both sides to my judicial assistant, Tia Phillips, at tia.phillips@ontario.ca.
[43] The Ahmads did not deliver a notice of appearance nor file any responding materials. Mr. Ahmad was present at the hearing but his submissions were quite brief. I expect that any legal costs incurred by the Ahmads were modest. If they are seeking costs, they shall deliver their written submissions and a costs outline within 30 days. If they do, I would ask that Mr. Campbell include their submissions in his email to Ms. Phillips.
[44] The dismissal of the application does not, in my view, preclude the applicants from commencing another one in which each applicant seeks declaratory relief in relation to the specific land which abuts their property. I do not know if such an application would ultimately be successful. It could potentially be very costly because of the prospect of a contested hearing with viva voce evidence and survey expenses. In their responding material, the Sinnotts indicated that they remain interested in a negotiated resolution of the dispute. I think that it would be in the interests of all parties to reach a mutually beneficial agreement before they incur more legal costs.
HURLEY, J
Released: 2023-02-09
COURT FILE NO.: CV-22-00000008-0000
DATE: 2023-02-09
SUPERIOR COURT OF JUSTICE
FRANCINE BOILEAU, CHRISTINE CARLE, PAULINE CADIEUX, NATHALIE BÉLAND, MAIRI WATSON, JEFFREY DAWSON, DOREEN MEYER, COLIN LAMBERT, PHILIPPE BEAUCHAMP AND KELLY BEAUCHAMP
Applicant
– and –
DEAN SINNOTT, HOLLY SINNOTT, SHAKEEL AHMAN AND ASMA ASMA
Respondent
REASONS FOR DECISION
HURLEY, J
Released: 2023-02-09
[^1]: This was due to the construction of a hydroelectric power station on the Ottawa River which included a dam. It is known as the Carillon generating station. [^2]: Their relationship is not explained in the material before me but I assume, based on their common surnames, that they were related. According to the deed, Robert paid $2,000 for the Disputed Land. [^3]: The expropriation referred to in this paragraph refers to the one by HEPCO. [^4]: Some (but by no means all) examples of impermissible or unsupportable comments are: “Robert Gordon Dalrymple unilaterally and self-servingly interpreted Gordon Dalrymple’s past intentions”; “Indeed, according to my observations, the Flooding Easement is what caused great confusion and chaos with respect to the Applicants’ waterfront properties as it identifies the Easement lands as “LANDS EXPROPRIATED BY THE H.E.P.C. OF ONTARIO, on the Payette Plan”; “It is probable, therefore, that these 2 documents were prepared and registered with minimal attention to details and without necessarily ascertaining the validity of all the purported facts."; “I have found no evidence to the effect the Disputed Land description was prepared by a professional surveyor or other professional, and it may simply have been prepared by the layperson who prepared the transfer."; and “Despite having added a Declaration to the Second Transfer, he seemed to remain influenced by the false impression that a Fee Simple interest had been acquired by THE HYDRO ELECTRIC POWER COMMISSION OF ONTARIO.”