Court File and Parties

Court File No.: CV-23-00000084-0000 Date: October 16, 2025

Superior Court of Justice – Ontario

Re: Flora Nabrotzky, Applicant And: Trevor Bell and Hazel Bell, Respondents

Before: Justice Mandhane

Counsel: Steven Gadbois, for the Applicant Emerson Wargel, for the Respondents

Heard: October 16, 2025

Endorsement

[1] The parties are neighbours in the town of Teeswater, Ontario. The applicant, Flora Nabrotzky ("Flora") owns the properties at 9 and 11 Clinton Street. She lives and operates a flower shop out of 11 Clinton Street, while 9 Clinton Street is a vacant lot. Flora inherited 11 Clinton from her parents, and was registered on title to 9 Clinton in 1997. The deed to 9 Clinton includes a metes and bounds description of the parcel.

[2] The respondents, Trevor and Hazel Bell ("the Bells") bought the garage at 4 James Street ("the garage") in 2012 from the previous owner Doug Donaldson. The Bells arranged to have a survey completed in 2014, which shows that their property abuts 11 Clinton on the westside and 9 Clinton on the northside. This is consistent with the metes and bounds description in the deed to 9 Clinton.

[3] At issue is a narrow strip of land behind the Bell's garage that is part of the 4 James Street parcel according to the 1997 deed and 2014 survey, but which Flora now says she owns prescriptively based on the doctrine of adverse possession. I will call the disputed piece of land "the strip" because it is a strip of land that is approximately 7 feet by 41 feet (or 287 square feet).

[4] It is uncontroversial that property in Teeswater was converted to Ontario's land titles system in 2008 such that Flora has the onus of proving that she adversely possessed the strip in the ten years prior, i.e. between 1998 and 2008: Barbour v. Bailey, 2016 ONCA 98 at para. 37; Land Titles Act, R.S.O. 1990, c. L.5, s. 51.

[5] The parties agree that, to prove adverse possession, Flora must establish on a balance of probabilities that she was in actual possession of the strip from 1998 and 2008; that she intended to exclude the owners of 4 James Street; and that she effectively excluded them: Armstrong v. Moore, 2020 ONCA 49, at para. 18.

[6] Here, Flora has failed to meet her onus. First, I refuse to find that Flora was in actual possession of the strip between 1998 and 2008. From the totality of the evidence, all I know for sure is that Flora sought and received permission from the town to temporarily park her trailer on her property at 9 Clinton during the spring of 1996, 1997 and 1998, and that she received a permit to make the trailer a permanent structure as of 2001. None of the permits speak to the trailer being placed on the strip or anywhere else on the property at 4 James Street. However, even if I were to accept Flora's evidence that the trailer was parked on the strip in the years that she obtained a town permit, it would only establish exclusive possession of a smaller portion of the strip for a period of seven years and not ten, since the trailer was not made permanent until 2001.

[7] Moreover, Flora has also not proven that she excluded the owners of the garage from the strip between 1998 and 2008. I accept Dave Donaldson's evidence that, to the extent that Flora occupied the strip between 1998 and 2008, it was based on permission granted by his father, the previous owner, Doug Donaldson (who died in 2000). Dave Donaldson was unshaken in his testimony that his father gave Flora permission to use the strip temporarily. Flora admitted as much in a letter to the Bells written in December 2020, stating that, after Doug Donaldson confronted her with a survey showing that the strip belonged to the property at 4 James Street, she sought and obtained his permission to park her trailer on it.

[8] Doug Donaldson's permission to use the strip is fatal to Flora's adverse possession claim because it shows that the owner of 4 James Street continued to assert his rights to the strip throughout the relevant period: Armstrong at para. 21, referring to Teis v. Ancaster (Town), at p. 221.

[9] Finally, Flora failed to exclude the true owners of 4 James Street from use of the strip during the relevant period. Flora has not proven on a balance of probabilities that she erected a fence around the strip anytime before 2008. She did not provide any corroborating evidence such as receipts for materials purchased, invoices for work completed, or photographs of the fence that she says was erected.

[10] Moreover, her evidence about the fence is contradicted by the other two witnesses. Dave Donaldson did not recall Flora erecting a fence to enclose the strip. At its highest, he recalled Flora placing detritus on the strip which his father repeatedly asked her to remove. Trevor Bell states that Flora erected the fence in 2023 after the parties had a dispute over his maintenance of some trees on the strip.

[11] Flora has not established that her possession of the strip was open, notorious, constant, continuous, peaceful and exclusive during the 10 year period at issue: Armstrong, para. 18.

[12] I would dismiss the application, and grant the Bell's cross-application for an order requiring Flora to remove her trailer and detritus from the strip and to stop trespassing on it. I refuse to order any damages for trespass because the Bells abandoned that claim in oral argument.

[13] Flora shall pay the Bells $10,000 in partial indemnity costs. There was a serious issue to be tried, both parties conducted themselves professionally, and the quantum sought by both sides was roughly equal.

Mandhane J.

Released: October 16, 2025