W. H. Peter Madorin

The appellant, Susan Opal McKay, appealed the dismissal of her claim for adverse possession over an eight-foot wide strip of land adjacent to her property, which is owned by the respondent, Joel Paul Vautour.

The dispute arose after the respondent removed an old paddock fence and replaced it with a fence on the surveyed boundary line.

The appellant argued that the paddock fence established the true boundary and that her predecessors in title had acquired possessory title prior to the land being converted to the land titles system in 2003.

The Court of Appeal upheld the trial judge's decision, finding that the appellant failed to meet the burden of proof for adverse possession, specifically lacking cogent evidence of open, notorious, constant, continuous, peaceful, and exclusive use with the intention to exclude the true owner for any ten-year period before June 16, 2003.

The court also found that the existence of another wooden fence on the actual boundary line and the ambiguous nature of the paddock fence's purpose undermined the appellant's claim.

The appeal was dismissed with costs awarded to the respondent.

This action concerned a boundary dispute where the plaintiff claimed ownership of an 8-foot strip of land by adverse possession.

The properties were converted to the land titles system on June 16, 2003, requiring the plaintiff to prove 10 years of adverse possession by her predecessors in title prior to that date.

The court found insufficient evidence of open, notorious, constant, continuous, peaceful, and exclusive possession by the plaintiff's predecessors.

Crucially, the existence of a wooden fence built by a predecessor on the surveyed lot line, rather than the informal 'paddock fence' relied upon by the plaintiff, indicated knowledge of the true boundary.

The plaintiff's claim for adverse possession was dismissed with costs.

The plaintiff brought a negligence action against a municipality after stepping into a crack or pothole in a municipal parking stall and sustaining a knee injury.

The municipality argued that it met the regulatory minimum maintenance standards for municipal highways and that the roadway was intended primarily for vehicular traffic.

The court held that where a municipality creates designated parking stalls, it is reasonably foreseeable that pedestrians will walk between parked vehicles to access the curb and sidewalk.

The municipality failed to prove it complied with inspection requirements under the Minimum Maintenance Standards for Municipal Highways and failed to inspect the area used by pedestrians.

The longitudinal pothole created an unreasonable risk of harm and the municipality was found liable.