Cassells et al v. Reid et al, 2026 ONSC 4359

Court File and Parties

CITATION: Cassells et al v. Reid et al, 2026 ONSC 4359

COURT FILE NO.: CV-23-133 and CV-23-139

DATE: 2026-07-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KAREN ELAINE CASSELLS and THOMAS JOHN CASSELLS Plaintiffs

– and –

BRODIE TYLER REID and ELIZABETH MARION REID Defendants

COUNSEL: M. Jantzi, Counsel for the Plaintiffs (Defendants in the Counterclaim) A. Zasada, Counsel for the Defendants (Plaintiffs in the Counterclaim)

HEARD: March 5, 2026

BEFORE: P. J. Moore J.

Overview

1The plaintiffs, Karen and Thomas Cassells, seek a ruling that they acquired title by adverse possession to a portion of the property at 81 Oxford Street in Woodstock, Ontario. The disputed land includes the portion of a concrete driveway that encroaches onto 81 Oxford Street and the grassy area behind it. They also seek a vesting order transferring title to that land.

2By the order of Tranquilli J., the court converted the plaintiffs’ application and the defendants’ cross-application into actions to be tried together.

3The trial proceeded by way of an agreed statement of facts, affidavit evidence, examinations for discovery and the accompanying exhibits. Counsel also conducted limited cross-examinations on the defendants’ affiants.

4Members of the Cassells family have owned and occupied 75 Oxford Street since approximately 1952. Ownership passed through several generations, including John and Verena Wright, Gerry and Mary Jane Cassells, and Thomas and Karen Cassells.

5The defendants, Brodie and Elizabeth Reid, purchased 81 Oxford Street on February 26, 2018. They purchased the property from Cindy and Vernon Leeson. Cindy is Thomas Cassells’ sister. The Leesons rented the property beginning in 1994 and purchased it on May 23, 2003, from Kathleen Gardiner. Kathleen Gardiner and her late husband had owned the property since February 28, 1989.

6Between the 1950s and 1989, members of the Sutherland family owned 81 Oxford Street. Myrtle Sutherland owned the property until 1971, Angus Sutherland owned it from 1971 to October 1986, and Dolores Margaret Sutherland owned it from October 1986 until February 1989. Kathleen and Beverly Gardiner purchased the property on February 28, 1989.

7The parties agree that the Cassells poured a concrete driveway in August 2010. The driveway extends approximately 1.29 metres (4.23 feet) onto 81 Oxford Street and runs for approximately 25.366 metres (83.22 feet). The disputed land is identified as Part 1 on the survey depicted below and which is included in the agreed statement of facts. The Cassells maintain that the concrete driveway replaced an earlier asphalt driveway in the same location. They also note that in 2010 Gerry Cassells paid to extend the driveway to the front of the house at 81 Oxford Street so that Cindy and Vernon Leeson could park a utility trailer there.

8The Cassells claim that they have used the disputed land as part of the driveway to park various RVs since the early 1950s. They submit that this use satisfies the requirements for adverse possession.

9The Reids submit that the driveway’s footprint expanded over time. The Cassells cannot establish the elements of adverse possession.

10For the reasons that follow, I find that the Cassells have not established adverse possession. Their claim must fail.

Issue #1: Have the Plaintiffs Established Adverse Possession?

11A paper owner’s title to land may be extinguished by the adverse possession of another person for a continuous period of ten years: Real Property Limitations Act, R.S.O. 1990, c. L. 15, s. 4. However, any right arising through adverse possession must have crystallized before the land was converted into the land titles system. Once land is registered in the land titles system, no new possessory rights may arise, although rights that crystallized prior to conversion are preserved: Land Titles Act, R.S.O. 1990, c. L.5, s. 51; McKay v. Vautour, 2020 ONCA 16, at para. 6; Majewsky v. Veveris, 2018 ONCA 848, at para. 13; and Cardoso v. Benjamin, 2021 ONSC 13, at para. 14.

12The parties’ properties were converted into the land titles system on August 22, 2005. Accordingly, the plaintiffs must establish the elements of adverse possession during any continuous ten-year period that ended before that date.

13The defendants submit that, after Cindy Leeson acquired 81 Oxford Street in 2003, the relationship between the families became sufficiently close that possession could no longer be considered adverse. I do not accept that submission. A family relationship or “family compound” does not necessarily extinguish the possibility of adverse possession. However, it may affect the court’s assessment of whether the claimant intended to exclude the true owner and whether the true owner was in fact excluded from possession. I therefore consider whether the plaintiffs have established adverse possession during any ten-year period prior to August 22, 2005.

14To establish adverse possession, the claimant must prove on a balance of probabilities:

a. Actual possession of the land in issue;

b. An intention to exclude the true owner from possession of their land; and

c. Effective exclusion of the true owner from possession of their land: Armstrong v. Moore, 2020 ONCA 49, at para. 18; Kosicki v. Toronto (City), 2025 SCC 28, 507 D.L.R. (4th) 1, at para. 27.

15All three elements must be established. A claim fails if any one of them is absent during the relevant ten-year period. Time begins to run against the true owner only when all three requirements are satisfied: McKay, at para. 7; Pepper v. Brooker, 2017 ONCA 532, 139 O.R. (3d) 67, at para. 32; and Vivekanandan v. Terzian, 2020 ONCA 110, 443 D.L.R. (4th) 678, at para. 21.

(a) Actual Possession

16The first question is whether the plaintiffs have established actual possession of the disputed lands throughout a ten-year period before August 22, 2005. Actual possession requires acts of occupation that are “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner”: Moore, at para. 18. Whether the claimant has established possession depends on the nature of the land in issue and whether the claimant exercised dominion over it in a manner consistent with ownership. The inquiry is practical. The court must assess how an ordinary owner would use the particular property. What constitutes possession will vary according to the character of the land and the purpose for which it is ordinarily used: Majewsky, at para. 11; Murray-Leung et al. v. Dyck et al., 2025 ONSC 2071, at paras. 21-22, aff’d 2026 ONCA 204, citing Teis v. Ancaster (Town) (1997), , 35 O.R. (3d) 216 (C.A.).

17Continuous possession does not require constant physical occupation. What constitutes possession depends upon the nature of the land. The question is whether the evidence demonstrates ongoing dominion and control of the disputed area in a manner consistent with ownership: Majewsky, at para. 11.

18The defendants submit that the plaintiffs cannot establish continuous possession because the evidence does not identify the precise periods during which trailers or RVs occupied the disputed land. They argue that the Cassells’ practice of taking trailers on vacations, weekend trips and winter trips interrupted any continuity of possession.

19I do not accept that position. A driveway is not land that is expected to be physically occupied every day. Driveways are inherently used episodically. Continuous possession does not require constant physical occupation. The question is whether the evidence demonstrates ongoing dominion and control of the disputed area in a manner consistent with ownership: Majewsky, at para. 11.

20Mary Cassells testified that her father paved a driveway beside 75 Oxford Street around Easter in 1952 or 1953. Her parents used that paved area to park a trailer. Mary and her husband, Gerry Cassells, continued the same use after acquiring the property in 1972 and did so until they transferred the property to their son, Thomas Cassells, in 2022.

21Karen Cassells produced family photographs from 1984 and 1994 showing camper trailers parked on the disputed area. Cindy Leeson similarly testified that a driveway existed in that location for as long as she could remember.

22Kathleen Gardiner owned 81 Oxford Street between 1989 and 1998. She confirmed that the owners of 75 Oxford Street parked a trailer beside their home on an asphalt surface beside their garage extending toward the backyard. She testified that the trailer was present most of the time except when the Cassells used it for seasonal trips. She further testified that the asphalt ran from the sidewalk alongside the house to the backyard and that, at times, the trailer slightly overhung the asphalt surface near the rear of the property. While she believed the current concrete driveway extends farther toward 81 Oxford Street and appears wider than the former asphalt surface, her evidence confirms the existence of a long-standing asphalt parking area and trailer use adjacent to 75 Oxford Street.

23Thomas Cassells testified that his family continuously parked trailers and RVs in the disputed area throughout his lifetime. He identified several such vehicles, including a Golden Falcon trailer in the early 1970s, a Prowler trailer from 1978 and a Citation motorhome. His evidence establishes a succession of RVs occupying the same general area over several decades.

24The defendants dispute the dimensions of the former asphalt surface. They rely on a Woodstock Public Library photograph from 1995, GIS imagery and evidence from Marnie Cook and Sharon Angi to argue that the area between the houses was largely grassy and that the driveway expanded during Cindy Leeson’s ownership.

25I place little weight on the evidence of Ms. Cook and Ms. Angi regarding the absence of trailers or the absence of a paved parking area. I accept that both witnesses attempted to testify honestly from memory. However, their recollections are inconsistent with the contemporaneous photographic evidence and with other evidence establishing both the existence of a trailer parking area and the regular parking of RVs.

26Their evidence is also difficult to reconcile with the evidence of Ms. Gardiner, who independently recalled both an asphalt parking surface and trailer beside 75 Oxford Street during her ownership of 81 Oxford Street. Unlike the Cassells, Ms. Gardiner had no interest in the outcome of this litigation. Her evidence provides significant corroboration of the plaintiffs’ position.

27The defendants’ photographic evidence is more persuasive. The 1981 photograph showing a trailer beside 75 Oxford Street directly contradicts the suggestion that no trailer parking occurred in that location. The photographs from 1984, 1994 and 1995 consistently depict vehicles or camper trailers parked beside 75 Oxford Street in the area now occupied by the driveway. I accept the photographic evidence as a more reliable indicator of the state of the property than recollections of events occurring several decades ago.

28There are no photographs that clearly establish the precise dimensions of the former asphalt surface. However, the photographs consistently show trailers and vehicles occupying the area between the homes. The 1984 photographs depict a camper parked beside the house while the Cassells installed a family pool. The rear of the camper appears generally aligned with the rear wall of the house and there appears to be some clearance between the side of the camper and the house itself. The 1994 photograph shows a vehicle parked between the homes in a manner consistent with the existence of a driveway or parking surface. The 1995 photograph similarly depicts a camper van parked in the same location. While the photographs do not permit precise measurements, they support the inference that the paved area extended substantially toward the rear of the house.

29I do not find the Woodstock Public Library photograph from 1995 particularly helpful. The photograph shows grass adjacent to 81 Oxford Street. It does not reliably establish the dimensions of the driveway or whether an asphalt surface existed beneath the area where vehicles were parked. Nor am I persuaded by the GIS imagery. The evidence establishes that a substantial grassy and landscaped area existed between the driveway and 81 Oxford Street. Indeed, the parties presented evidence that approximately eight feet of grass and gardens remained between the paved driveway and 81 Oxford Street. The maintenance of that area does not permit a reliable inference that the width of the driveway changed materially over time.

30The defendants also rely on the 2010 driveway quotation referring to the removal of “existing asphalt + earth.” I attach little weight to that document. It establishes only that asphalt and earth were removed before the installation of the current concrete driveway. It does not establish that the driveway footprint was enlarged. Likewise, the alleged statement by Gerry Cassells that he extended the driveway after Cindy Leeson moved into 81 Oxford Street is ambiguous. Even if I accept that Mr. Cassells made the statement, it is unclear whether he referred to the driveway itself or to the walkway extension completed as part of the same project.

31The defendants further submit that there is insufficient evidence of the dimensions of the trailers parked on the property over the years. I disagree. The evidence establishes a continuous pattern of trailer and RV parking in the disputed area. While the dimensions of individual vehicles varied, the evidence is sufficient to establish longstanding occupation and use of the driveway area. The evidence further establishes that Golden Falcon trailers manufactured in the early 1970s were approximately 7’10” to 8’ wide and ranged between approximately 16 and 35 feet in length. Prowler trailers from 1978 were approximately 7’9” wide and between approximately 21 and 31 feet long. Later Titanium trailers were approximately 8 feet wide and between 29 and 40 feet long. While dimensions varied, all were substantial RVs requiring a dedicated parking area.

32Having considered the evidence as a whole, I am satisfied on a balance of probabilities that from at least the early 1970s, and likely earlier, there existed an asphalt driveway or parking surface approximately ten feet wide running alongside 75 Oxford Street and extending substantially toward the rear of the property. That finding is supported by the evidence of Mary Cassells, the corroborating evidence of Kathleen Gardiner, the succession of trailers and RVs identified by Thomas Cassells, and the contemporaneous photographs from 1981, 1984, 1994 and 1995. I am not persuaded by the defendants’ evidence that the disputed area remained entirely grassy or that the driveway expanded materially before 2005. I further find that the Cassells and their predecessors used that area continuously for vehicular access and for parking trailers and RVs. That use was open, visible, longstanding and entirely consistent with ownership.

33I find that the plaintiffs have established actual possession of the disputed driveway area throughout a ten-year period prior to August 22, 2005. I reach a different conclusion regarding the grassy area behind the driveway. Unlike the driveway itself, there is little evidence identifying how that area was used, when it was used, or whether acts of possession occurred continuously throughout any identifiable ten-year period. The evidence concerning that area is sparse and does not establish continuous acts of possession throughout any identifiable ten-year period. The plaintiffs have therefore failed to establish actual possession of the grassy area on a balance of probabilities.

(b) Intention to Exclude

34The second element requires the plaintiffs to establish that their possession of the disputed lands was accompanied by an intention to exclude the true owner from possession. The inquiry is objective. The court does not examine the claimant’s subjective beliefs in isolation. Rather, it infers intention from the claimant’s conduct and from the way the claimant treated the disputed land over time: Gauld v. McFalls, 2018 ONSC 4734, at para. 63.

35Adverse possession may arise from an honest mistake concerning the location of a boundary. In mistaken boundary cases, courts often infer the requisite intention from the claimant’s occupation of the land as if it were their own: Chen v. Stafford, 2012 ONSC 3802, at para. 92. As Templeton J. observed in Gauld, at para. 63, where parties honestly but mistakenly believe that the claimant owns the disputed land, an inference may be drawn that the claimant intended to exclude all others, including the true owner. The threshold for establishing intention is therefore lower in mistaken boundary cases than in cases involving a knowing trespasser seeking to acquire land that they know belongs to someone else: Harmur Investments Ltd. v. Pearce, 2025 ONSC 628, at para. 68.

36Mutual mistake is not a separate element of adverse possession. Nor does the absence of mutual mistake necessarily defeat a claim. As explained in Swrjeski et al. v. Legris, 2026 ONSC 1862, at para. 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), (“Teis”).

37In this case, I am unable to conclude that there was a mutual mistake concerning the location of the boundary throughout any continuous ten-year period before August 22, 2005.

38The strongest evidence of mutual mistake comes from Cindy Leeson. She testified that when she and her husband purchased 81 Oxford Street in approximately September 1998, they did not know of any encroachments or permission granted for the use of the driveway area. They never obtained a survey and always regarded the driveway as belonging to 75 Oxford Street.

39There is insufficient evidence to establish mutual mistake through an identifiable ten-year period. It begins only upon the Leesons’ acquisition of the property. There is no comparable evidence from previous owners of either property concerning their understanding of the true boundary.

40I also place little weight on the evidence of Marnie Cook and Sharon Angi as proof of mutual mistake. They did not provide evidence that a driveway and RV parking area existed on the disputed lands under a shared misunderstanding of ownership. Rather, they provided evidence that no such driveway occupation existed and that the area remained grassy. If I accept their evidence, it would negate the adverse possession claim altogether. It does not support an inference of mutual mistake.

41Nor is there evidence from Mary Cassells, Thomas Cassells, Karen Cassells or Kathleen Gardiner that they held an honest but mistaken belief concerning the location of the legal boundary. At its best, their evidence is that the occupants of 81 Oxford Street never complained about the location or use of the driveway.

42I cannot conclude on the evidence before me that there was a mutual mistake concerning the boundary throughout any continuous ten-year period before August 22, 2005.

43However, this does not end the inquiry.

44Even absent proof of mutual mistake, intention to exclude may still be inferred from the plaintiffs’ conduct.

45I have already found that the disputed area was paved and used continuously as a driveway and parking area by successive owners of 75 Oxford Street for decades. The evidence establishes that the area functioned as part of the ordinary use and enjoyment of that property. The Cassells and their predecessors used it for vehicular access and for parking a succession of trailers, RVs and motorhomes. They used the property openly, visibly and continuously as part of the ordinary use and enjoyment of 75 Oxford Street.

46The evidence further establishes that the Cassells did not use the disputed area as though they were merely exercising a temporary privilege or neighbourly accommodation. They paved the disputed area, maintained it and parked successive trailers and RVs on it. They treated it as part of 75 Oxford Street over several decades.

47I find that the plaintiffs have established the second element of adverse possession. Their objective conduct demonstrates an intention to possess and control the disputed driveway area as owners and to exclude others from possession of it.

(c) Effective Exclusion

48The final element requires the plaintiffs to establish that they effectively excluded the true owners from possession of the disputed property throughout the statutory period. Effective exclusion remains a distinct requirement even where intention to exclude may be inferred from mutual mistake or from the claimant’s acts of ownership: Pepper, at paras. 37-39; Vivekanandan, at para. 21.

49The true owner need not demonstrate the same degree of use that an adverse possession claimant must establish. The owner remains in constructive possession of the land and relatively minor acts of dominion may be sufficient to demonstrate that they have not lost possession. As the Court of Appeal explained in Vivekanandan, at para. 25, even “fairly trivial acts of dominion” may demonstrate that the claimant did not exclude the true owner.

50The plaintiffs bear a heavy evidentiary burden. As the Court of Appeal observed in Vivekanandan, at para. 29, courts have traditionally been reluctant to deprive owners of title without compensation and adverse possession claims must be established by cogent evidence.

51Unlike the successful claims in Majewsky, this is not a case where the disputed lands were occupied by a permanent residence, enclosed by structures or otherwise incorporated into a clearly defined area from which the claimant effectively excluded the true owner. Nor is it a case where the nature of the occupation itself necessarily gave rise to an inference of exclusion: Majewsky, at para. 11.

52The evidence establishes that the disputed area functioned as a driveway for 75 Oxford Street. At the same time, it remained an open area between the two homes. Although the Cassells paved the area and used it to park trailers and RVs, there were no physical barriers preventing the occupants of 81 Oxford Street from entering or using the area. There were no fences, hedges, gates, retaining walls, tree lines or other demarcations separating the disputed strip from the remainder of 81 Oxford Street.

53This distinction is important. Longstanding use is not the same as exclusion. In Swrjeski, at paras. 41-43, the court accepted that the claimants had established longstanding and open use of the disputed lands but nevertheless dismissed the claim because the evidence did not establish use that was sufficiently adverse or exclusionary to displace the owner’s title.

54Similarly, in 9400394 Canada Inc. v. Ghislain Lascelles, 2026 ONSC 819, at paras. 22-29, Flaherty J. emphasized that the relevant question is not simply whether the claimant used the property, but whether that use interfered with the true owner’s ability to make use of the land in accordance with its nature and intended purpose.

55Although the disputed property in this case is not vacant land, the same principle applies. I must consider whether the plaintiffs’ occupation of the driveway area actually deprived the owners of 81 Oxford Street of possession.

56I am unable to find that it did.

57Throughout the Cassells’ ownership, the occupants of 75 Oxford Street used the disputed area as a driveway. At the same time, it functioned as open space or a buffer between the two homes for the occupants of 81 Oxford Street. There is no evidence that the claimants prevented the occupants of 81 Oxford Street from entering the area, crossing it, maintaining adjacent landscaping, accessing their home, or otherwise making use of the property. Nor is there evidence that the Cassells took any steps to physically demarcate the disputed land or communicated to the owners of 81 Oxford Street that they asserted exclusive ownership over the disputed land. The evidence suggests that successive owners of both properties simply accepted the driveway’s location.

58The plaintiffs’ own evidence does not identify any occasion upon which they asserted exclusive control over the disputed area as against the owners of 81 Oxford Street. Their evidence is instead that the owners of 81 Oxford Street never complained about the location of the driveway.

59The absence of objection is not equivalent to effective exclusion.

60The evidence is materially different from cases where the true owner was effectively dispossessed. Viewed as a whole, the evidence is more consistent with neighbourly accommodation, acquiescence to the location of the driveway and long-standing acceptance of the way the owners used the property than with the dispossession of the owners of 81 Oxford Street. The evidence establishes longstanding use of the disputed area by the Cassells. It does not establish that the owners of 81 Oxford Street were dispossessed.

61I also note that, once Cindy Leeson acquired 81 Oxford Street, the concrete driveway was ultimately extended toward the porch area of that property. While this work occurred after conversion into the land titles system and is not itself determinative, it is difficult to reconcile with an assertion that the plaintiffs attempted to hold the property to the exclusion of the true owners.

62I am not satisfied on a balance of probabilities that the plaintiffs effectively excluded the owners of 81 Oxford Street from possession of the disputed area throughout any identifiable ten-year period before August 22, 2005.

Disposition

63I find that the plaintiffs established actual possession of the disputed driveway area and that their use of that area supports an inference of an intention to possess it as owners. However, they did not establish actual possession of the grassy area behind the driveway, nor did they establish that they effectively excluded the owners of 81 Oxford Street from possession of the disputed property throughout any continuous ten-year period prior to August 22, 2005. Because all three elements of adverse possession must be present throughout the same statutory period, the claim fails.

64Accordingly, I dismiss the plaintiffs’ claim for adverse possession.

65I grant the defendants’ crossclaim. I grant the defendants absolute title over the disputed property at 81 Oxford Street, legally described as PIN 00117-0115 (LT) PT LT 8 W/S OXFORD ST PL 10 AS IN 465631; WOODSTOCK, including the disputed lands identified as Part 1 on the survey filed in this proceeding, free from any adverse possession claim advanced by the plaintiffs.

Costs

66I encourage the parties to attempt to resolve the issue of costs.

67If they are unable to do so, the Reids may make written costs submissions not exceeding three double-spaced pages, together with a bill of costs and copies of any written offers to settle made pursuant to r. 49 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, within 14 days of the release of these reasons.

68The Cassells may make responding submissions in the same form within 21 days of the release of these reasons.

69There shall be no reply unless requested by the court.