ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NOS.: CV-24-034 and CV-25-054

DATE: 20260327

BETWEEN:

GREG SWRJESKI, MATHEW NEVILLE, SHAWN BULGER, CHRISTOPHER STOTT, AVARHAM VAN MEIJERENKARP, STEPHEN VANDER MEULEN and MANNIX VELHO

Applicants

– and –

JOSEPH KEVIN MICHAEL LEGRIS, CRYSTAL-LEE LEGRIS and MARGARET SHEAN

Respondents

Jonathan Constable for the Applicants

Gordon Campbell for the Respondents Joseph Kevin Michael Legris and Crystal-Lee Legris

Ms. Shean did not participate in this hearing

AND BETWEEN:

JOSEPH KEVIN MICHAEL LEGRIS and CRYSTAL-LEE LEGRIS

Applicants by Cross-Application

-and-

GREG SWRJESKI, MATHEW NEVILLE, SHAWN BULGER, CHRISTOPHER STOTT, AVARHAM VAN MEIJERENKARP, STEPHEN VANDER MEULEN and MANNIX VELHO

Respondents by Cross-Application

Gordon Campbell for the Applicants by Cross-Application

Jonathan Constable for the Respondents by Cross-Application

HEARD: October 20, 2025

Hooper J.

REASONS FOR DECISION

Overview

[1] The parties own adjoining pieces of land. They are disputing the ownership of a section of land between their respective properties (the “Disputed Lands”). Both sides of this litigation purchased their land from historical owners. The Respondents, Joseph Kevin Michael Legris, Crystal-Lee Legris, and Margaret Shean (the Respondents), purchased their property in 2006 from the O’Gorman family. The Applicants, Greg Swrjeski, Mathew Neville, Shawn Bulger, Christopher Stott, Avarham Van Meijerenkarp, Stephen Vander Meulen and Mannix Velho (the Applicants) purchased their property in 2019 from the McAdam family[^1].

[2] The Disputed Lands lie within the boundaries of the Respondents’ property; however, the Applicants take the position that they are the rightful owners of this property through adverse possession. As a result, the Applicants seek the following orders:

(a) A Declaration that by virtue of adverse possession, the Applicants are the owners in fee simple of the Disputed Lands, being that part of PT LT 9, CON 9 ADMASTON AS IN R311781; TWP OF ADMASTON/BROMLEY (part of PIN 57259-0031); and

(b) A Declaration that the Applicants' property, legally described as PT LT 11, CON 9; PT LT 10, CON 9 AS IN R60931; ADMASTON; ADMASTON/BROMLEY ("the McAdam Property"), along with the Disputed Lands, enjoys an easement over a gravel trail/gravel driveway for pedestrian and vehicular ingress/egress that connects the Disputed Lands with Highway 132.

[3] The Disputed Lands are an uninhabited portion of the Respondents’ property. Neither side intends to develop the land. The only use of this land since 1987 has been for two weeks per year during hunting season when hunting groups, including Mr. Swrjeski, used the land to hunt deer. When the Respondents purchased the property, they initially allowed hunting to continue on this land but withdrew that permission in 2008.

[4] In the Notice of Application, the Applicants sought the alternative relief of an easement over both the Disputed Lands and the gravel road presumably to be used for hunting season. During oral argument, the Applicants’ counsel confirmed that an easement is no longer being requested for the Disputed Lands. The Applicants are only seeking an easement over the gravel road for access.

[5] In their cross-application, the Respondents seek a declaration confirming their legal title over the Disputed Lands without restriction. They further seek an injunction against the Applicants, barring them from the property and requiring the Applicants to remove any chattels from the Disputed Lands.

The Disputed Lands

[6] The parties agree that the shaded box depicts the Disputed Lands.[^2] The Disputed Lands are approximately 16 acres in size. The Applicants take the position that the red line named “McAdam-O’Gorman Fence” is the true property line. That name, “McAdam-O’Gorman”, referencing the fence at issue, was inserted by the Applicants. It has no legal meaning. I have decided to use it to refer to this fence for consistency; however, if I decline to find adverse possession, that fence will be wholly on the Respondents’ property.

[7] There is no question that when the Respondents purchased their property, they paid for acreage including the Disputed Lands. It is also not disputed that the Applicants purchased 200 acres and received 200 acres of land. The Applicants are now claiming that, given the historic usage between the properties, their 200 acre property is really 216 acres because their property lines should be extended by the Disputed Lands.

[8] Neither party conducted a survey of their property before they purchased it.

Evidentiary Record before the Court

[9] The evidentiary record is extensive, consisting of nearly 2,000 pages of documents, affidavits and expert reports.

[10] The three individuals with direct knowledge of the historic dealings between the properties—James McAdam, Mary Clare McAdam, and James O’Gorman—are now deceased. The court is therefore required to piece together the history of the lands through affidavit evidence, expert reports, and historical documentation.

[11] I have reviewed the affidavits before me with extreme caution as there is considerable hearsay evidence contained therein. While I recognize that some hearsay evidence may be receivable, meeting the test of necessity and reliability, the vast majority of the hearsay evidence before me is not.

[12] By way of example, the parties’ neighbour, Michael Quilty swore an affidavit setting out his recollections of being on the Disputed Lands as a young boy as well as his knowledge of these lands when he became an owner of his neighbouring property in 2014. He then makes statements within that affidavit as to hunting in this area over the years. The affidavit contains statements such as:

(c) These hunting parties similarly knew the McAdam-O’Gorman Fence to mark the property boundary… those with permission to hunt McAdam property knew that the McAdam-O’Gorman Fence marked their permissible boundary. (para. 18)

This is inadmissible as Mr. Quilty cannot testify to the knowledge of others.

(d) All abutting property owners acknowledged this boundary and helped to maintain it. (para. 19)

This is inadmissible as Mr. Quilty does not set out from whom he attached this knowledge or how he could know of any “acknowledgement” of a boundary by others.

[13] Further examples are contained in Greg Swrjeski’s affidavit wherein he makes statements such as:

(a) “At no time did the Legris Respondents take any issue with the property boundaries, nor the route crossing their lands by which the McAdam Property is accessed, until 2020, shortly after the Applicants purchased the McAdam Property…” (para. 3)

Mr. Swrjeski has not set out the source of this information. As he was not the owner of the property during this time period, he has no capacity to make this statement.

(b) Mr. Swrjeski also states in his affidavit at paragraph 8 that aside from his direct knowledge of these properties (which again, is limited to hunting on them two weeks per year), his understanding of the history of the property is based on discussions with witnesses Dorothy Moore, Michael Quilty and Deija McAdam. These three individuals swore their own affidavits in this proceeding. It would be inappropriate to rely on Mr. Swrjeski’s evidence on the history of the property when that history comes from other witnesses with affidavits before the court. Therefore, I have not relied upon Mr. Swrjeski’s historical account of the usage of this property or the recognition of boundaries.

[14] In addition to the issues with hearsay, the Applicants have also filed an affidavit of Debbie Bellinger, partner in the law firm of Nelligan Law, the same law firm representing the Applicants, to provide substantive evidence, including her opinion. For example, at paragraph 32 of her affidavit, Ms. Bellinger states the following:

Evidence of possession was registered in 1963 and crystalized the possessory title acquired by the McAdam family, whereafter the Legris Respondents took title subject to this possessory interest.

[15] This is stated as a fact. It is not. It is opinion evidence as Ms. Bellinger suggests that Mary Clare McAdam’s declaration describing fencing must be in reference the McAdam-O’Gorman Fence.

[16] During her cross-examination, Ms. Bellinger conceded that portions of her affidavit may be “lay opinion,” but it is not expert opinion. Whatever the categorization, it is inappropriate for a party to rely upon the opinion evidence of one of their lawyers as substantive evidence. I have therefore limited my use of Ms. Bellinger’s affidavit to the admission of historical documents only and have not considered Ms. Bellinger’s commentary and opinions.

[17] The Applicants have also put forth an affidavit from Andrew Broxham, an expert land surveyor retained by the Applicants. Land surveyors measure, map and define property boundaries, yet Mr. Broxham goes far beyond this in his affidavit. His affidavit provides opinions on the usage of the property from the 1830’s and 1840’s onward. He comments on Census data and family genealogy. I agree with the Respondents’ submission that this is not within Mr. Broxham’s expertise. I have limited my admission of Mr. Broxham’s evidence to his evidence as a land surveyor.

[18] There are also problems with the Respondents’ evidence:

(a) At paragraph 13 of his affidavit, Mr. Legris recounts a discussion with Margaret Shean, wife of a neighbouring property owner which is hearsay. Ms. Shean decided not to participate in this proceeding. If evidence from Ms. Shean was needed, she could have sworn an affidavit. That evidence is not admissible.

(b) Mr. Legris also recounted an interview he allegedly conducted with the son of Dorothy Moore. That is not admissible evidence.

(c) Mr. Legris attempts to set out his own investigation into the property lines as well the genealogical history of the owners. This is opinion evidence.

(d) Mr. Legris provides critiques of Ms. Bellinger’s affidavit, which is argument, not evidence.

(e) At several parts in his affidavit, Mr. Legris suggests there were conversations with William McAdam in the 1970’s regarding the property lines. Mr. Legris has no capacity to provide this evidence, and it is not admissible.

(f) Mr. Legris recounts discussions with the “O’Gorman descendants”. None of these descendants are identified. None swore affidavits. None of this is admissible evidence.

[19] I have set out these many examples to demonstrate how difficult it has been to determine the historic usage of this property in order to assess the Applicants’ claim for adverse possession.

[20] The Applicants conceded during oral argument that their strongest case for 10 years of open, notorious and continuous use is between 1955 and 1965. Given this concession, the majority of the history provided to the court through the various affidavits and expert evidence is irrelevant. The focus of the court’s inquiry is the evidence from 1955-1965.

[21] If the Applicants fail in their claim, the Respondents’ cross-application succeeds as they would not have absolute title of the Disputed Lands without restriction.

Law and Analysis

[22] The Supreme Court of Canada has recently confirmed the test for adverse possession in Ontario: Kosicki v Toronto (City), 2025 SCC 28 at para. 27:

Where a claim for adverse possession is available, courts apply the relevant statutory provisions to determine if it is made out. The RPLA provides that the limitation period will start running at the time of "dispossession" (s. 5(1)), the elements of which are established in the jurisprudence. For a claim to succeed, the trespasser must establish: (1) actual possession of the land by the trespasser for the required statutory period; (2) an intention to exclude the true owner from their property; and (3) effective exclusion of the true owner from their property (Pflug v. Collins, 1951 80 (ON SC), [1952] O.R. 519 (H.C.J.); Keefer v. Arillotta (1976), 1976 571 (ON CA), 13 O.R. (2d) 680 (C.A.); Teis v. Ancaster (Town) (1997), 1997 1688 (ON CA), 35 O.R. (3d) 216 (C.A.)). Actual possession is established where the act of possession is open and notorious, adverse, exclusive, peaceful, actual and continuous, all of which must be present for the claim to succeed (Mowatt, at para. 18; Masidon Investments Ltd. v. Ham (1984), 1984 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), citing Fletcher v. Storoschuk (1981), 1981 1724 (ON CA), 35 O.R. (2d) 722 (C.A.)).

[23] The parties agree that the required statutory period for actual possession under the Real Property Limitations Act, R.S.O. 1990, c. L.15 is 10 years. The act of possession must be open and notorious and continuous. It must be adverse to the title holder, with the intent and effect of excluding that owner.

[24] Any continuous ten-year period can be used to assert a claim for adverse possession. Therefore, if the Applicants meet the test for adverse possession from 1955-1965, they are the owner of the Disputed Lands.

What is the evidence of open, notorious and continuous usage of the Disputed Lands from 1955-1965?

[25] To establish adverse possession during this time period, the Applicants rely on the following:

(a) The 1963 Statutory Declaration of Mary Clare McAdam confirms continuous and open usage of the McAdam property. The Applicants heavily rely on paragraph 14 of this Statutory Declaration as also defining the boundary of the property until 1963:

14. During the whole of the period of possession of the said James McAdam, the said lands they have been and now are completely enclosed, and during the said period there has been no change in the location of the fences or other enclosures defining the boundaries.

(b) The evidence of the McAdam-O’Gorman Fence as a continuous fence along the length of the property.

(c) The evidence of Deija McAdam that her husband used the Disputed Lands to pasture his cattle until approximately 1975.

(d) The evidence of Dorothy Moore (nee O’Gorman) who lived on the Respondents’ property from 1949-1967 and attested to the fact that, as a child, she was prohibited from crossing over the McAdam-O’Gorman Fence as her parents told her that this was not their property.

(e) The evidence of Michael Quilty whose family owned the neighbouring property. Mr. Quilty’s evidence is that he always understood the McAdam-O’Gorman Fence marked the boundary between the properties. He recalls helping the McAdam family and the O’Gorman family work on this fence over the years. He estimates that some of this work was done in the mid-1950’s.

(f) The evidence of their expert, Andrew Broxham, that the available historic evidence and review of the current property suggest that the O’Gorman-McAdam Fence likely reflects the boundary for historic usage.

Is this evidence sufficient to meet the test of open, notorious and continuous usage that is to the exclusion of Mr. O’Gorman?

[26] I find that, on the balance of probabilities, the Applicants have proven open, notorious and continuous usage of the Disputed Lands from 1955-1965. No evidence really challenges the fact that the McAdam family used the Disputed Lands to pasture their cattle during this time frame.

Was the open, notorious and continuous usage of the Dispute Lands adverse to the title holder?

[27] In advancing their claim that the historic usage of these lands by the McAdam family excluded or was adverse to the O’Gormans, the Applicants argue there was a mutual mistake between the two owners of the property.

[28] Mutual mistake refers to a circumstance in which adjoining landowners share the same, but incorrect, belief as to the location of their common boundary. Where both parties proceed on that basis, their respective use of the land may reflect that mistaken understanding rather than an intention to assert rights inconsistent with or adverse to the true owner’s title.

[29] Mutual mistake is not a separate requirement in a claim for adverse possession. It is relevant only insofar as it informs whether the land’s possession was adverse or exclusionary. Where both parties occupy or use land under a shared but mistaken belief as to the boundary, that circumstance may bear on whether the non-title holder’s conduct can properly be characterized as an assertion of ownership inconsistent with the true owner’s title: Teis v. Ancaster (Town of), 1997 1688 (ON CA) (“Teis”).

[30] The Applicants submit that both their predecessors and the Respondents’ predecessors treated the fence line as the true boundary between the properties. On that basis, they argue that this historic use of the Disputed Lands occurred within a shared understanding of ownership that should be given legal effect.

[31] To rely on mutual mistake in this context, the Applicants must establish that both parties operated under the same mistaken belief as to the boundary during the relevant period. While use of land may be consistent with a particular understanding of ownership, in my view, more is required to support a finding that both parties shared a mistaken belief as to the location of the boundary: Teis; Wood v. Gateway of Uxbridge Property (1990), 1990 6786 (ON SC).

[32] The Applicants bear the burden of proving mutual mistake. Further, any such shared mistaken belief must be established during the same continuous ten-year period relied upon by the Applicants. All elements for adverse possession must exist for the same ten-year period. They cannot exist at different times. If any one of the elements for adverse possession is missing at any time during the relevant period, in this case 1955-1965, the claim for possessory title must fail: Teis, supra.

[33] It is even more difficult for the Applicants to meet their burden in this case because the ownership of their property changed during the relevant period of 1955-1965. James McAdam owned the property from 1928 to 1962. When he died in 1962, his widow, Mary Clare McAdam became the owner. She held the property until 2000.

[34] To succeed in their claim, the Applicants are asking the court to draw an inference that James McAdam was mistaken as to the property line from 1955 until his death in 1962 and Mary Clare McAdam assumed this same mistake from 1962 to 1965. For it to be a mutual mistake, the Applicants must also prove that James O’Gorman (the owner of the Respondents’ property during this relevant time period) held this same mistaken belief.

[35] The evidence of mutual mistake before me for the relevant time period is:

(a) The statutory declaration of Mary Clare McAdam in 1963 refers to a fencing around the perimeter of the property.

(b) Hearsay evidence that William McAdam acknowledged his family was mistaken as to the boundary of the property in 1975 and removed his cattle from the Disputed Lands shortly thereafter.

(c) Evidence from Dorothy Moore that she was told as a child by her father not to cross the McAdam-O’Gorman Fence as the other side was not their property.

[36] In my view, this evidence is insufficient to draw the inferences suggested by the Applicants. I find this for the following reasons.

[37] First, Mary Clare McAdam’s statutory declaration from 1963 refers to a fence that extends around the perimeter of her property. However, I have no comfort that the fence she is referring to is the McAdam-O’Gorman Fence. In addition to the McAdam-O’Gorman Fence, there is another fence that follows the actual property line. While the McAdam-O’Gorman Fence appears to be in better condition than the fence that follows the property line, there is no evidence that either has been maintained for the past fifty years. As a result, the condition of the fences relative to one another does not assist me in deciphering which fence Mary Clare McAdam was referring to in 1963.

[38] Second, there is also the possibility that permission was granted. Mary Clare McAdam was a first cousin of the O’Gormans. By all accounts, the McAdams and O’Gormans were historically good neighbours who helped each other and were very cooperative. We do not know what discussions occurred between James McAdam or Mary Clare McAdam and James O’Gorman with respect to the Disputed Lands. At best, there is hearsay evidence that in 1975, William McAdam (son of James and Mary Clare) indicated he mistakenly thought the Disputed Lands were part of his family’s property. That evidence does not fall within the relevant 10-year period and William was not the property owner.

[39] Third, the fact that there may have been permission granted at some point and not a mutual mistake is consistent with Dorothy Moore’s evidence that, prior to their deaths, her parents raised concerns with her regarding the property line. According to Dorothy Moore, her father (James O’Gorman) was worried that if the property was sold, there may be future disputes as to whether the McAdam-O’Gorman Fence was the true property line. This evidence does not make sense if Mr. O’Gorman was under the mistaken belief of the boundary.

[40] Finally, I have given very little weight to Ms. Moore’s evidence for the following reasons:

(a) During her cross-examination, Ms. Moore expanded her knowledge of the property lines from one incident as a five-year-old child when she was told not to cross the McAdam-O’Gorman Fence, to yearly discussions with her parents about the property’s boundaries. I do not accept this new assertion of annual discussions as truthful. This negatively impacted her overall credibility.

(b) When Ms. Moore sold the property to the Respondents in 2006, William McAdam was still alive (he died in 2018). If Ms. Moore was so concerned with the preservation of the easement and property rights, this could have been easily handled through a real estate transfer before she listed her property for sale.

(c) Ms. Moore’s evidence is that she wanted to ensure there was no confusion in the boundaries of the property at the McAdam-O’Gorman property, yet she still advertised and sold the full 142 acres.

(d) Ms. Moore did not discuss this matter directly with the purchasers to ensure they understood the boundaries. Her evidence is that her husband had these discussions with the Respondents. Her husband did not provide an affidavit.

(e) The difference in the boundaries is not minor. It constitutes a loss of 16 acres. The Respondents purchased 142 acres from Ms. Moore. The Disputed Lands represent more than 10% of their property.

[41] The evidentiary record does not permit a finding that both parties operated under a common mistake as to the boundary during the relevant period.

[42] In the absence of evidence establishing a shared mistaken belief, the Applicants cannot rely on mutual mistake to support their claim. The issue therefore turns on whether the Applicants have otherwise demonstrated possession that was sufficiently adverse and exclusionary to displace the Respondents’ title. There was no additional evidence on this issue.

[43] As a result, the Applicants have not met their burden of proving the historic use of the Disputed Lands was adverse to the title holder. Their claim for adverse possession fails.

Does the Respondents’ claim to their title insurer preclude them from resisting this claim for adverse possession?

[44] This was not seriously argued but given the Applicants brought a motion to compel the production of the title insurance file, filed an affidavit with its contents, and filed a supplementary factum on this issue, I will address it.

[45] After this dispute arose, the Respondents made a claim to their title insurer and received payment of $54,000 from that insurer. The basis for that payment is unclear. The Applicants suggest that this should remove any of the court’s sympathies to the Respondents.

[46] This is a property claim. Whether or not the Respondents are sympathetic does not impact the adverse possession analysis. I have also not been required to make any credibility assessments on either party because the focus of the analysis predates either’s involvement. As a result, I find that the title insurance issue is not relevant.

Disposition

[47] On the evidence before me, I find that the Applicants have proven open, continuous and notorious usage of the Disputed Lands from 1955-1965. They have not proven that usage was adverse to the title holder. As a result, their application for adverse possession is dismissed.

[48] Given my finding on adverse possession, there is no reason to rule on the easement claim over the gravel road as that easement was only necessary to allow the Applicants access to the Disputed Lands.

[49] The application is therefore dismissed and the cross-application is granted. The Respondents have absolute title over the disputed lands without restriction.

[50] After this dispute arose, the Applicants set up trailers and other personal belongings on the Disputed Lands to attempt to assert their property rights. Those must all be removed at the Applicants’ cost. The Applicants have until April 30, 2026 to do so.

[51] The Respondents are entitled to costs. They will provide submissions of not more than 3 pages in length excluding Bills of Costs and Offers to Settle by no later than April 15, 2026. The Applicants will have until April 30, 2026 to file responding submissions with the equivalent page restrictions.

Justice Jaye Hooper

Released: March 27, 2026

[^1]: An eighth person, Steve Dowling, was part of the original purchase with the other Applicants but has since transferred his ownership to the remaining seven owners.

[^2]: This depiction was found at Tab 2 of the Applicant’s Compendium (Case Centre Ref A1859). I inserted the two text boxes with the parties’ names for clarification.