Court File and Parties
Ontario Superior Court of Justice
Between:
SUSAN MALCOLM — Applicant
Erin Kadwell, for the Applicant
— and —
MARNIE SCHREIBER — Respondent
Codie Mitchell, for the Respondent
Heard: August 20, 2025
Reasons for Judgment
LATIMER J.
1Good fences make good neighbours. Misplaced ones make litigation.
2This case involves neighbouring properties that sit on Burlington Bay on Lake Ontario. The view from the backyard of these properties, looking south towards Hamilton, is beautiful and would make any homeowner envious:1
3Regrettably, disagreement has spoiled the view for both homeowners.
4The matter before me arises out of a dispute over a seawall built by the Applicant, which she seeks to extend into a contested stretch of shoreline. This contested shoreline is the most southerly part of a triangle-shaped parcel of land that is approximately 50 metres long and 1.28 metres at its widest point. The land is registered as the Respondent's property, but the Applicant submits that the doctrine of adverse possession makes it hers. The resolution of this issue rests on recollections from years gone by.
5This is an application under Rule 14.05(3)(e) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for a declaration and vesting order transferring title to what I will refer to as the disputed land. While this land is presently governed by the Land Titles Act, R.S.O. 1990, c. L.5, section 51(2) of the Act permits adverse possession claims that crystallized prior to Land Titles registration. The disputed land, along with the rest of the Respondent's property, was registered in the Land Titles system on February 24, 1997. To succeed on this Application, the Applicant must establish that her family maintained actual and exclusive possession of the disputed land for the ten years prior to Land Titles registration (February 24, 1987, to February 24, 1997).
6The parties have presented evidence consisting mainly of historical photographs and modern recollections, seeking to document their respective usage of the disputed land during the critical ten-year period. For the reasons that follow, I am not satisfied the Applicant has made out her claim of adverse possession. The Application is dismissed. In explaining this result, I will review the factual context and the applicable law, and then move to the key factual findings that ground my determination that adverse possession has not been established.
I. The Properties Involved
7296 North Shore Boulevard ("the Malcolm property"), and 304 North Shore Boulevard ("the Schreiber property"), are next door to each other, sharing a common boundary. The Malcolm property sits to the west, the Schreiber property the east. Both properties extend to the Burlington Bay shoreline. In the below photograph, the Malcolm property is the lot to the left, and the Schreiber property the lot to the right (with the pool):
8Susan Malcolm ("the Applicant") currently owns the Malcolm property, having purchased it with her late husband in 1974.
9Marnie Schreiber ("the Respondent") currently owns the Schreiber property, which was originally purchased by her parents in 1971. Title was transferred to the Respondent from her parents in 2012.
10It is undisputed that the fence separating the properties – first, a white picket fence, later replaced by a chain link fence – was erroneously placed on the Respondent's property, to the east of the boundary line, unintentionally2 ceding a portion of the Schreiber's property. This portion is the disputed land at issue.
11The disputed land runs north to south to the immediate east of the Malcolm's property line, beginning at the southeast corner of the Malcolm garage, which is in the northeast corner of their property. This garage – installed well before either litigant's family owned either property – encroaches as well on the Schreiber's lot.3 The parties have described the disputed land as "an elongated triangle shaped parcel that is approximately fifty metres long and 1.28 metres at the widest point [which is the shoreline]". That is an accurate description. The triangle-shaped parcel can be seen running along the left side in this 1979 Survey of the Schreiber property:
12The white picket fence is visible in this 1977 photo from the Schreiber's backyard, looking towards the water:
13In 1981, a pool was installed at the Schreiber property and a chain link fence replaced the picket fence along the same line towards the water. The chain link fence can be seen in the below photograph, taken at some point between 2015 and 2017 from the Schreiber property looking towards the Malcolm's backyard and the water:
14Owners of waterfront properties reasonably worry about soil erosion. Every metre of land matters. Seawalls, a physical boundary, are often utilized to prevent land from being lost to waves, storms, and ongoing erosion. A seawall is a shore-protection structure; a fixed barrier designed to absorb or deflect the force of ice and wave action, for a time.
15Both the Malcolm and Schreiber properties contained such structures. The original Malcolm seawall was made of stacked dry concrete bags that had cured in place. This original seawall pre-existed the Malcolm purchase of the property in 1974 and extends past the legal boundary line between the two properties, as seen in the below photographs. The first picture is taken from the Malcolm backyard looking towards the water with the concrete bags visible, and the second picture is of the concrete bags extending into the disputed area along the shoreline:
16The Schreiber waterfront included a gabion retaining wall and a wooden dock, as seen in the photograph below para. 13 of these Reasons.
17By 2019 and 2020, storms and rising lake levels made clear that the Malcolm concrete-bag seawall had reached the end of its days. The Applicant took steps to replace it with a more substantial structure. Pictured below is the new Malcolm seawall:
18This new seawall, and the gap between it and the Schreiber property, is visible from this 2022 aerial photo. This gap is the shoreline portion of the disputed land:
19The seawall restoration work served as the catalyst for the present dispute. The Applicant sought to have the Malcolm seawall tie into the Schreiber seawall, spanning the disputed shoreline area. The Respondent refused, pointing out that her access to the water would be negatively impacted by such an installation.
20I will now review the applicable law before returning to the evidence and my findings of fact on contested matters. I will then apply the law to those facts to address the Applicant's claim of adverse possession.
II. The Law
21The Applicant applies for a declaration that she has a legal right to the triangle-shaped parcel of land in dispute. It is submitted that she has obtained this right through adverse possession because of her actual, exclusive ownership of the property to the west of the chain link fence. Put another way, the Applicant submits that the placement of the fence has created circumstances where, over time, the parties consistently acted as if the Respondent and her family owned everything to the east of the fence line, and the Applicant's family everything to the west. In these specific factual circumstances, it is submitted that the law should favour the fence line and the parties' shared possessory understanding, not simply title. A finding of adverse possession would grant the Applicant the lawful ability to complete the Malcolm seawall by covering the disputed shoreline area.
22The Respondent's position is that this Application is brought in bad faith, solely to force completion of the Malcolm seawall on Schreiber property. It is submitted this adverse possession claim is recently conceived for this exclusive purpose. The Schreiber family never considered the disputed land anything other than theirs and benefited from the privacy afforded by the large hedge that covered much of the space during the critical period of 1987 to 1997. It is submitted that neighbourly co-habitation should not be equated with relinquishment of possession or ownership.
23Counsel on this matter – consistent with the high level of advocacy displayed throughout the proceedings – agree on the governing legal principles:
The disputed land was registered under the Registry Act until February 24, 1997. On that date, it was converted to the Land Titles system.4
The doctrine of adverse possession was extinguished by s. 51(1) of the Land Titles Act. However, s. 51(2) preserved adverse possession claims that had crystallized prior to registration in the Land Titles system.
As the Court of Appeal for Ontario explained in Billimoria v Mistry, 2022 ONCA 276, 470 D.L.R. (4th) 406, at para. 28"land that is registered in Land Titles cannot be obtained by adverse possession unless the ten-year exclusion period ran before the land was registered". Therefore, if the Applicant's possessory claim crystallized prior to February 24, 1997, she would have a right to the disputed land.
To establish possession by way of adverse possession, the Applicant bears the burden to establish (i) that she had actual possession of the disputed land for ten years prior to February 24, 1997; (ii) that she intended to exclude the Respondent's family from the disputed land, and (iii) that the Respondent's family was effectively excluded from the disputed land during this time period (February 24, 1987 to February 24, 1997): see Kosicki v Toronto, 2025 SCC 28, at para. 27; Barbour v Bailey, 2016 ONCA 98, 345 O.A.C. 311, at para. 35; Levy v Stoller, at paras. 24-25.
24As the title holder in this case knew the true boundary by at least the time of the 1979 Survey, the Applicant must show a use of the disputed land inconsistent with the Respondent's intended use; tolerated or neighbourly uses or uses consistent with the title holder's objective – such as maintaining a privacy buffer – are insufficient. This is not a case where the parties were mistaken about the true boundary line, i.e. this is not a case of mutual mistake: McCracken Estate et al v Gatt et al, 2023 ONSC 105, at paras. 70-71; Mueller v Lee, at paras. 22-23.
25I will now review these three requirements in the context of this Application.
III. Analysis
(1) Did the Applicant's family have actual possession between 1987 and 1997?
26This question asks whether the Applicant has established actual possession of the disputed land in a manner that is open, notorious, peaceful, adverse, exclusive of the right of the true owner, actual, and continuous: McKay v Vautour, 2020 ONCA 16, at para. 7; Teis v Ancaster (Town of) (1997), 35 O.R. (3d) 216, at 221 (CA).
27The evidence relevant to this question – indeed, all three adverse possession requirements - is contained in the Application Records provided by both sides. That includes the discovery transcripts provided. I have reviewed this material multiple times. Regarding the discovery testimony, I remind myself of the importance of assessing both a witness's credibility and reliability: R v Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 146.
28In this case, credibility is not a live concern. I have no issue with the sincerity or honesty of Ms. Malcolm or Ms. Schreiber. I accept both are doing their best to recollect the timing of events, such as the removal of a hedge, that would have seemed inconsequential at the time. In doing so, however, reliability considerations are engaged, given the passage of time and the impact, unintentional or otherwise, of the current litigation.
29The majority opinion of the Court of Appeal for Ontario in R. v. S. (H.P.), 2012 ONCA 117, rev'd 2013 SCC 4 , [2013] 1 S.C.R. 54 (but not on this point), is presently helpful. While dealing with a very different factual circumstance, Justice Blair discusses witness reliability concerns engaged by the passage of time between an event and testimony; what a later panel of the Court of Appeal described as "the subtle influences that may have distorted memory over time": Paddy-Cannon v Canada (Attorney General), 2022 ONCA 110, at para. 37.
30In S. (H.P.), at para. 42, Blair JA instructs that trial judges should be alive to "the inherent frailties attaching to evidence that attempts to reconstruct distant events through the prism of memory that may be coloured or distorted by the erosive impact of time and life experience". [emphasis added]
31In my view, this caution applies to the current recollections of both Ms. Malcolm and Ms. Schreiber. Both are seeking to recall innocuous historical details that have only recently achieved prominence because of the current litigation. Both seek to search their memory for dates associated with minor events in a timeline that spans over fifty years (1971 to 2024). While this is not a determinative consideration, it is relevant and is a factor I consider when assessing their testimony in the context of the evidence as a whole.
32I now move to an evaluation of the first requirement. I consider whether the Applicant has established actual possession of the disputed land between 1987 and 1997 by assessing the following relevant areas: (1) the garage, (2) the fence(s), (3) the hedge, and (4) the shoreline.
The Garage
33There is no dispute the Malcolm garage is slightly over the property line. All parties were aware of this fact. The garage is aged and pre-existed both family's purchases of their homes. While hearsay, the Applicant's statement during discovery that the garage was built in 1939 could very well be true. I accept however, based on the 1979 Survey, that the incursion would have been no more than a few inches.
34It is to each family's credit that the garage placement was never an issue (at least until recently). It was reasonable neighbourly behaviour to advert to the issue, as it appears the Malcolms did, by asking permission to enter Schreiber property when they needed to conduct maintenance on the east side of their garage. It was equally reasonable for the Schreibers to simply live with the slight property line discrepancy, and not seek out an absurd remedy like destruction of the garage. The two neighbouring families acted – until recently – as I would expect most people would act when faced with such a property line issue. They simply lived with it and made the best. Such is the good nature of neighbours.
35I do not accept that any of the garage-related activity supports the Applicant's overall adverse possession argument.
The Fence(s)
36It is undisputed that the white picket fence pre-existed the Schreiber home purchase in 1971. I accept it was replaced by the chain link fence in 1981, as required by municipal by-law because of the pool installation. I do not accept, contrary to the Applicant's recollection, that the fences co-existed for a time. I reject her evidence on this point because:
a) there is no room for the chain link fence to go between the picket fence and the Schreiber planter boxes (see the photograph below para. 12 of these Reasons),
b) the hedge would have prevented removal of the picket fence from the Malcolm side,
c) Ms. Malcolm's discovery testimony on this point is devoid of any real detail, and
d) it is more plausible, given the physical constraints, that the wooden fence was removed when the new chain link fence was being installed.
The Hedge
37I accept that the Schreibers would have known, by 1981, that the fence was misaligned. The 1979 Survey made that detail clear. I accept that the installation of the chain link fence along the same path was a deliberate one, but I do not accept that it was done to intentionally cede land to the Malcolms. I accept it was done to maintain the hedge and the substantial privacy being afforded by the large shrubbery.
38I accept the hedge served its purpose as a privacy buffer between the two properties until its eventual demise. The key question, for present purposes, is when was the hedge removed? The Applicant submits that it was done in the late 1980's if not earlier, because it had become "haphazard". Wisteria would have been subsequently planted by her husband prior to 1997, when he became ill and began receiving cancer treatment.
39I do not accept the Applicant's recollection on the timing of the hedge removal. I say so for the following reasons:
a) the hedge was not mentioned at all in the Applicant's first affidavit. This is a notable omission, given its significance to the disputed area. I am concerned this omission occurred because the hedge's existence did not assist the Applicant's legal position,
b) the hedge is visible in the 1996/7 photo (the one with the Inuit statue in the forefront): see Exhibit J of Schreiber Affidavit, dated June 27, 2024, found at B-1-161 on Case Center,
c) the 1998 City of Burlington aerial photograph (found below paragraph 7 of this decision) clearly depicts greenery in the disputed area. This photograph is Exhibit M of the Schreiber Affidavit, found at B-1-170 on Case Center.
40In a case where the passage of time and the heat of litigation has the capacity to inhibit reliable recollection, I place significant weight on the objective evidence of the photographs, particularly the aerial one. These photos depict the hedge's existence in the disputed area in 1997 and 1998. I find as a fact that the hedge was removed after this date. As a result, the hedge existed throughout the key 1987 - 1997 period. I do not accept that other plants, like the Wisteria, would have been planted in this area during this time period. The existence of the hedge would have prevented such planting. I do not accept the Applicant's discovery testimony that one could have climbed under the hedge and planted at the fence line. I do not believe that occurred.
41I find as a fact that the hedge's presence in the disputed area between 1987 and 1997 made that area inaccessible for anything other than hedge maintenance. I accept as well that both families used the hedge as a privacy barrier. I do not accept that, in so doing, the Schreiber family ceded possession of the hedge and the disputed area to the Malcolms.
42Additionally, the Applicant's factum and affidavit reference her maintenance of gardens in front of the hedge on her property. I do not consider this relevant for present purposes. These gardens were on her property; it was the hedge that was in the disputed land. While the installation of irrigation lines did occur on the disputed land, that installation occurred in 2005, well after the key time period for adverse possession purposes.
The Shoreline
43It has been established that the original Malcolm seawall extended into the disputed area near the shoreline. It has also been established that the Schreiber family used this gap to access the shoreline. At best, possession was being shared by both families. It cannot be said that the Applicant's family had exclusive possession of this portion of the disputed land.
Conclusion on the First Requirement
44Having considered the entirety of the disputed area, running from the garage south to the shoreline, I am not satisfied that the Applicant has met her burden to establish actual possession of any of this property. The garage and shoreline were shared in the way that reasonable neighbours share. My finding of fact that the hedge was not removed prior to 1997 means that the bulk of the disputed area was inaccessible between 1987 and 1997 and exclusively served as a privacy buffer between the properties. It would be wrong to conclude that it was in the actual possession of the Malcolms, to the exclusion of the Schreibers.
45For the sake of completeness, I will move on to consider the next two requirements, beginning with whether the Applicant intended to exclude the Respondent's family from the disputed area.
(2) Did the Applicant's family intend to exclude?
46I assess this requirement in light of the factual determinations I have just made. Regarding the garage, I additionally accept that the Respondent's family used the east wall of the garage to hang tools. That fact, and the fact that the Applicant's family would ask permission before entering the Schreiber property to conduct maintenance on the east side of the garage, demonstrate no intention existed to exclude the Schreibers from the inches-deep property line incursion created by the garage.
47Regarding the hedge, I accept that Mr. Malcolm was the one who maintained the hedge. Its existence as a privacy barrier, however, during the 1987 to 1997 period, precludes a determination that the Schreiber family was being excluded from possession of the disputed area. Indeed, the hedge was serving the purpose they intended, privacy. This is a meaningful consideration for any backyard, particularly one with a pool. As a result, Mr. Malcolm's maintenance of the hedge was not inconsistent with the Schreiber's intended use of the shrubbery as a privacy buffer: Sipsas v 1299781 Ontario Inc., 2017 ONCA 265, at para. 21.
48The same consideration applies along the shoreline. The presence of the original Malcolm seawall did not inhibit the Schreibers' ability to access the shoreline. I am not satisfied that the Applicant has met her burden on the second requirement.
(3) Was the Respondent's family effectively excluded?
49I will be briefer on this third requirement. There is scant evidence of exclusion between 1987 and 1997. I find as a fact that the Malcolms' planting of Wisteria and installation of the T-bar (which was not in the disputed area in any event) occurred after 1997. During the key time period, the disputed land provided the Schreibers a place to hang tools on the garage, privacy via the hedge, and access to the Burlington Bay shoreline. The absence of a fence gate is immaterial, because the Schreibers' intended use of the hedge – privacy and practical shoreline access - persisted, and they maintained occasional access at the bottom of the fence at the shoreline. I am not satisfied that the Applicant has met her burden on this third requirement.
IV. Concluding Remarks
50The timing of the removal of the hedge is a key fact on this Application. I am sure it is obvious to the parties that this finding involved a rejection of much of the Applicant's present-day recollection of the timing of events along the fence line. As I said at the beginning of the Analysis section, my concern centers on the reliability of both her and the Respondent's recollection of events. These events were innocuous when they happened. There would have been no reason to commit to memory when a hedge was removed, or when Wisteria was planted, for example. The prominence of these details, however, grew post-litigation. It is apparent from the discovery transcript and some of the letters filed that animosity now exists between Ms. Malcolm and Ms. Schreiber. I am concerned, to again quote Blair JA in S. (H.P.), that their "attempts to reconstruct distant events through the prism of memory … may be coloured or distorted by the erosive impact of time and life experience". For that reason, I have looked to the surrounding evidence – photographs and publicly accessible documents – to support their respective positions. That review has led me to reject the Applicant's evidence when it is not corroborated by this surrounding evidence. While I have similar concerns about the Respondent's discovery testimony, her evidence – for example, the hedge – is supported by the surrounding evidence. As a result, I have made the findings that I have made.
51I do wish to make one further point clear. The Respondent characterized this Application as having been brought in bad faith. I do not agree with that characterization. The Applicant advanced an arguable claim to formalize property rights she genuinely believed she held. My dismissal of the claim does not convert her position into bad faith.
52Finally, although unnecessary to the determination of this Application, I must acknowledge sadness that matters have progressed to this point. The natural beauty of these waterfront properties has been overshadowed by the conflict arising from the seawall construction. I understand the Applicant's wish to connect the Malcolm and Schreiber seawalls. Having failed to satisfy the court that she had adverse possession of the disputed land prior to February 24, 1997, however, decision-making authority is retained by the title holder. It remains the Respondent's decision.
53Application dismissed. The parties are encouraged to agree on costs. If they cannot, the Applicant may file written submissions of not more than five pages, exclusive of attachments, by March 13, 2026. The Respondent may respond in kind by March 31, 2026.
LATIMER J
Released: February 18, 2026
Footnotes
- This is the backyard view from 296 North Shore Boulevard prior to construction of the new Malcolm seawall. All images included in these Reasons have been taken from the evidentiary record provided on the Application.
- There is no evidence in this record explaining why the white picket fence was placed where it was. It is a fact lost to history. When I say "unintentionally" I simply mean there is no evidence of intention.
- The extent of the encroachment is disputed and will be addressed later in these Reasons at paras. 33 to 35.
- See Parcel Register for 304 North Shore Boulevard, Exhibit C to Malcolm Affidavit, dated December 1, 2023 (A219 on Case Center).