Marostica v. Dickson, 2024 ONSC 3437

Court File and Parties

COURT FILE NO.: CV-23-0237-00 DATE: 2024-06-14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Janis Marostica Applicant

Ms. C. Bryson, for the Applicant

• and -

Bob Dickson and Judy Dickson Respondents

Mr. R. Bodnar, for the Respondents

HEARD: via Zoom on January 23, 2024, at Thunder Bay, Ontario

Madam Justice H.M. Pierce

Reasons on Application

Introduction

[1] Janis Marostica (“the Applicant”), and Bob and Judy Dickson (“the Respondents”), are neighbours on Fisherman’s Road in Shuniah, Ontario. They possess their parcels of land in the form of share certificates issued by the Green Point Campers’ Association (“GPCA”), a not-for-profit corporation. Currently, GPCA owns the freehold as a single registered parcel; however, it has not been named as a party in this dispute. The parties do not own their properties outright and there are no title documents, such as a lease, which identifies the parcels of land or establishes ownership.

[2] In these reasons, I have used the term, “camp” as it is commonly used in northern Ontario to refer to a “cottage”. I have also used the terms, “feet” and “inches” in these reasons as those were the units of measurement in use in the documents filed as evidence in this application.

[3] The parties do not agree on the property line between their respective properties. The Applicant contends that the lot line was established by GPCA’s survey in 2001, and which was reconfirmed by the Applicant’s survey in 2023. She maintains that the Respondents moved a fence onto her land contrary to these surveys. She argues that the fence encroaches on her land, interfering with the maintenance of her guest cabin, and that the Respondents refuse to move it. The Applicant submits that the tree line marks the property line.

[4] The Respondents submit that the fence is on the historically agreed upon boundary between the two properties and that the trees are planted on their land, approximately two feet (24 inches) inside the fence/boundary.

[5] The amount of land that is in dispute is 18 inches, according to the Applicant, and two feet, according to the Respondents.

[6] The Applicant contends that this dispute prevents GPCA from converting its landholding into a vacant condominium corporation, so that the holders of share certificates can obtain freehold ownership of the lots in registrable form, leaving roads and other common elements within GPCA’s corporate control.

[7] The Applicant seeks a declaration, pursuant to Rule 14.05(3)(e) of the Rules of Civil Procedure (“the Rules”), determining her property line and an order requiring the Respondents to remove the fence from her property and to refrain from further encroachments. She does not seek removal of the trees the Respondents have planted inside the fence.

[8] The Respondents submit that the application is unsupported by any evidence establishing the boundary, and that the survey and reference plan relied on by the Applicant do not establish the boundary.

[9] The Respondents counter that their longstanding residence on the land, and three previous building permits in which the Applicant’s predecessor agreed to the lot line are evidence of the boundary.

[10] The Respondents submit that an order establishing the lot line between the parties will affect GPCA, who is the owner of the land and not a party to the proceedings. They also submit that an order of the court may have implications stemming from the Planning Act, R.S.O. 1990, c. P. 13.

[11] Finally, the Respondents argue that the application is beyond the ultimate limitation period.

The History of the Dispute

[12] Ms. Dickson’s parents occupied a property as members of GPCA since 1962. In 1975 when the Respondents began using the property as a summer camp, they took over the parents’ membership in GPCA, occupying the same piece of property (“the Dickson property”). By 2000, the Respondents became summer-time residents.

[13] Mr. Jim Thompson occupied the adjacent property (“the Marostica property”) from about 1975-1980. Subsequently, the Applicant’s parents, the Mathesons, purchased Mr. Thompson’s share certificate in 1986. Mr. Thompson is now deceased. The Applicant’s parents occupied the Marostica property from the 1980’s until about 2021. The Applicant was added as a joint owner with her mother to the share certificate in 2001 and held it jointly until Ms. Matheson’s death in 2020, at which time the Applicant acquired sole ownership of the share.

[14] GPCA is governed by By-Law #1 which provides for the governance of the Association. This by-law dates from 1968. The corporation promulgated Rules and By-Laws for members. Article #2 specifies that Association members jointly own the property specified by the legal description encompassing the entire GPCA parcel.

[15] Under Article #4 of GPCA’s articles of incorporation, specifying “Shareholders’ Rights and Duties,” it states:

Every share shall be transferable, and shall have one (1) vote, and is valued at one portion of the number of existing shares.

It is generally understood and agreed that all the camps located on the property shall remain as they were at the time of the purchase of the property. However, should any camp owner desire to expand or remove his or her camp, he or she must first obtain permission from the Board of Directors, and then obtain a permit from the Municipality of Shuniah. Should there not be enough property in that location to meet the requirements of the Municipality of Shuniah, then the shareholder will have the right to obtain one unoccupied lot in an area which has not been developed and move his or her camp at his or her expense to the new location, and the Association shall build and maintain a road to the rear of the property.

In case of a dispute arising when it is felt that there is insufficient room and someone must move, it is understood that the camp which was actually built on the property first will be given preference to remain.

[16] The Respondents state that when they became members of GPCA in 1975 and began to occupy the Dickson property, the boundaries of each property were defined by historical use, in other words, by general agreement among the owners; there were no surveys or other similar drawings.

[17] At para. 11 of Ms. Dickson’s affidavit, she explains the basis for the Respondents’ position on the placement of the trees in relation to the boundary:

11. We know the lot line to be historically two feet from the tree line because when we became members of Green Point, Mr. Thompson had a fence marking the lot line. Bob and I wanted to plant boundary trees, and we discussed doing so with Mr. Thompson. Mr. Thompson asked that we plant the trees on our property two feet from the existing fence because then we would be responsible for maintaining the trees and they would not overhang too much on his property. A short while after the trees were planted, Mr. Thompson removed his fence; however, it was always understood that the lot line remained where the fence was located so we were required to maintain the trees. In the 1970’s Mr. Thompson obtained a building permit and drew on a sketch for the permit the fence running from the shoreline to the road between our properties. On the sketch, Mr. Thompson’s dock is at the top of the page, and the fence is on the left side of the sketch, and our property is left of that off the page. The relevance being that the trees which we planted were planted roughly two feet to the left of the fence on our property….

[18] In addition to Mr. Thompson’s sketch, the Respondents rely on building and work permits that contain property dimensions and locations of various landmarks.

[19] In 1994, Ms. Matheson applied to GPCA for a work permit to replace an existing front deck on her camp and to add an additional side deck. This sketch shows the boundary as 24 feet from the side of the camp and the Dicksons’ trees, about two feet beyond the boundary.

[20] The Respondents further rely on their own application for a building permit in 1998, for permission to expand their camp. The application did not show the tree line. The application contained the consent of Ms. Matheson, who indicated that she had been consulted with respect to the proposed plan of expansion and had no objection. The Respondents contend that she consented to the boundary being two feet from the tree line.

[21] Ms. Dickson maintains that there were no boundary disputes between the Dickson and Marostica properties until GPCA decided to survey various lots in 2000. The Respondents contend that the survey process gave rise to a dispute between them and the Applicant’s mother, Ms. Matheson, leading to the present disagreement.

[22] Ms. Matheson and Mr. Dickson signed and sent a memorandum dated July 5, 2000, to the GPCA executive indicated that they had “agreed to disagree” about the property line between their shares and asked that “an unbiased committee be assembled to help us resolve the situation before the official survey takes place.”

[23] On August 3, 2000, the GPCA executive struck a committee to determine the boundary dispute between the Respondents and Ms. Matheson and to stake the line. The GPCA Staking Committee visited the properties on July 16, 2000, but were unable to effect a resolution.

[24] The minutes of the GPCA executive meeting reflect that the conflict resolution committee assigned to the Matheson/Dickson dispute reported and the property would be staked accordingly. The report, dated October 8, 2000, concluded that the dispute “is based primarily on hearsay and implied agreements with the late Mr. Thompson and no real documented facts to support either side…”

[25] The committee also reviewed the frontage dimensions on the lot plan tendered by Mr. Dickson and concluded that it was not accurate. It differed from the committee’s measurement by 7 feet.

[26] The conflict resolution committee decided:

… to establish the tree line as the dividing line between these two lots, and Mr. Dickson will own and maintain the trees to ensure that they will not be removed, a concern of his from the outset. This decision is based on:

1. Past practice with regard to property disputes in which there are no documented facts.
2. The lot plan of Mrs. Matheson’s, given to the committee by Mr. Dickson, which outlines the fence bordering Mr. Dickson’s lot as the property line. There are no such reference points on Mr. Dickson’s lot plan, only dimensions.
3. The trees in the back of Mr. Dickson’s lot were planted long before the fence was up and the trees in the front were planted; however, they are not 2 feet over on Mrs. Matheson’s lot but in line with those in the front and the fence.
4. The retaining wall at the back of Mr. Dickson’s lot ends at the trees and again not 2 feet beyond.

[27] The lots were surveyed by an Ontario Land Surveyor in 2001 and copies were provided to the lot owners.

[28] The Applicant contends that in 2012, the Respondents unilaterally decided to move the historic fence dividing the properties 18 inches onto the Marostica property, with the result that the fence now abuts her guest cabin, interfering with access for maintenance purposes. The Applicant states that the fence is now out of line with the trees used by the GPCA committee to determine the lot line.

[29] In June 2022, GPCA wrote to the Respondents and the Applicant advising that the executive reviewed the property dispute on May 30, 2022, and “continues to recognize the property lines defined by the current registered survey as the definitive property boundary.” This unsigned letter stated that the location of the boundary was verified in July 2021 by location of the five shared survey pins along the property line and a visit by the GPCA Property Manager, who confirmed that the Dickson fence was placed on the Marostica property.

[30] The Applicant had the boundary re-surveyed in 2023, by a different surveyor. This survey confirmed the results of the 2001 survey: that the fence is on the Applicant’s lands.

Discussion

[31] Rule 14.05(3)(e) of the Rules provides that the court may determine an application under the rules where the relief claimed is for:

e) the declaration of an interest in or a charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;

[32] The Applicant relies on Jarvis Sameluk v. Wild Goose Bay Cottagers’ Association, 2010 ONSC 3895 (“Sameluk”), arguing that the court determined that the share certificates in a similarly structured cottage association are controlled by the cottage association that held the freehold interest in the land.

[33] At para. 45 of her factum, the Applicant submits that Sameluk establishes that only the cottage association as the corporate owner of the land can determine a dispute between shareholders using its own process. Respectfully, this case is distinguishable; it does not assist the Applicant in the case at bar.

[34] Sameluk dealt with an application brought under Rule 14.05(3)(d) of the Rules for determination of rights that depended upon the interpretation of a contract. The property-owner was a party to the contract in that litigation and the applicant occupied a lot defined by contract.

[35] Mr. Sameluk sought an interpretation of his contract with Wild Goose concerning his son’s entitlement to fish commercially from his property; Wild Goose’s obligation to permit dredging around his dock; and a determination of his property lines in the contract.

[36] In response to Mr. Sameluk’s application to have the court define the boundary line of his lot, pursuant to contract, the cottagers’ association submitted that its by-laws provided a mechanism for resolving boundary disputes: at para. 34.

[37] The court in Sameluk did not determine the property lines. At para. 35, the court determined that the boundary dispute was not governed by contract between the parties, and, in any event, there was insufficient evidence to determine the issue.

[38] In this case, the parties agree that the freehold property-owner is GPCA; they merely occupy their lands by virtue of holding shares in GPCA. Any order setting out the lot lines between the parties would necessarily affect GPCA and its membership.

[39] Implicitly, however, the Applicant submits that she represents the position of GPCA, although there is no evidence of such agency. She advocates, without evidence from GPCA, that the GPCA has adopted the survey. At para. 46 of her factum, the Applicant states:

In the present case, GPCA has been clear and consistent in exercising its corporate freehold ownership rights to determine the process for determination of the land interests of each share certificate owner.

[40] This is not a statement that the applicant is qualified to make. The evidence she filed shows that not every shareholder agreed with the results of the process to identify lot lines. Some shareholders refused to consent to the property lines identified in 2001.

[41] Although the Applicant submits that the survey from 2001 and her re-survey in 2023 establish the lot lines, there is no evidence from either of the surveyors about what reference points were used to establish the lot lines. Absent this information, the placement of the survey lines may simply be arbitrary, adopting a convenient reference point rather than a correct one.

[42] The Applicant also submits that the dispute with the Respondents is delaying GPCA’s conversion from the current shareholding structure to freehold. This too, is not a statement that the Applicant is qualified to make. There is no evidence from GPCA about the status of any application to rationalize property ownership, if indeed this initiative is going forward, and what is yet to be done.

[43] In this case, there are real risks to having the court decide the boundary issue without GPCA’s participation as a party, assuming, but not deciding, that GPCA has the authority to establish boundaries. For instance, Article 4 of GPCA’s articles of incorporation (as outlined at para. 15 above) requires a shareholder to seek permission from the Board of Directors and then obtain a permit from the Municipality of Shuniah before expanding or removing his/her camp. There is no evidence here of such compliance.

[44] The Respondents contend that the Applicant is attempting to circumvent the provisions of sections 50(1) and 53(1) of the Planning Act, effectively obtaining a severance without consent by seeking an order establishing lot lines between the parties.

[45] The Respondents also submit that a conditional consent to sever under the Planning Act would consider the placement of wells, septic fields, buildings, and the like, but that no such evidence is available here. If the respondents are correct in their submission, an order of the court would not bring certainty and closure to this dispute.

Conclusion

[46] For the reasons set out above, I conclude that the application should not be entertained without the participation of Green Point Campers’ Association. It is therefore dismissed, without prejudice to a further application being brought by proper parties on proper evidence. In view of this conclusion, it is not necessary to deal with the respondents’ submission that the application is statute-barred.

[47] If the Applicant’s goal is access to her guest cabin for purposes of maintenance, the parties may wish to consider removing the fence in the area immediately adjacent to the cabin for this purpose, in order to avoid further litigation, while agreeing to disagree about the lot line. However, I make no order in this regard.

Costs

[48] If the parties cannot agree on costs within 30 days, either may ask the trial coordinator to fix a time for hearing costs. Costs submissions are not to exceed five pages, exclusive of offers to settle and bills of costs.

“originally signed by”

The Hon. Madam Justice H.M. Pierce

Released: June 14, 2024