Bob Aaron bob@aaron.ca

July 7, 2007

Old fence makes for warring neighbours

A recent decision of the Ontario Superior Court emphasizes how risky it is to take the law into your own hands when it comes to boundary disputes, and how important it is to review a land survey of the property prior to closing to determine where the boundaries are.

The case involved what is commonly known as squatter’s rights to a narrow strip of land between two neighbouring properties in the Sheppard and Yonge area of Toronto. The lots are typically about 50 feet by 130 feet and the original post-war houses are increasingly being replaced by what I call row mansions.

Laura Cantera purchased her property on Johnson St. in August 1997. Wendy Eller and Paul Wright bought the house next door in February 2004. It was their intention to demolish the house and build a new one, which they have since done.

The boundary between the Cantera house and the Eller and Wright property was marked by an old post and wire fence that is shown on a survey done in 1952. The fence is clearly not on the lot line.

The prior owner of the Cantera property, who lived there from 1962 to 1997, was not aware that the fence extended across the lot line into the Eller and Wright property.

A 1994 survey showed that the south point of the disputed fence was 2.5 feet west of the real lot line, and the north point was 0.8 feet west of the line.

On reviewing the 1994 survey just before closing, Paul Wright became concerned that if his lot was only 48 feet wide instead of 50 feet, it would affect the size of the house he could build on the lot. Density bylaws dictate that the buildable size of a house is directly related to the size of the lot on which a house is built.

Wright made some inquiries prior to closing and he later said that "everybody" he spoke to told him that the fence should not be a problem. The only person who was not asked for advice was Wright’s own real estate lawyer.

As construction of the Eller-Wright house was about to take place, the neighbours had what turned into a heated discussion about where the replacement fence would be built on the deeded property line, or on the 1952 fence line.

In April 2004, Cantera and her husband delivered a letter to their neighbours claiming adverse possession (squatter’s rights) to the strip between the lot line and the fence line because of continued and exclusive possession of the land by the current and former owners since 1952. The letter warned that if the fence was removed without permission, it would be considered an act of trespass.

A few days later, when Cantera and her husband were away from home, Wright removed the fence and replaced it with an orange construction fence on the lot line.

Two months later, Cantera sued her neighbours for a declaration that she owned the disputed strip, and for damages for trespass.

The case came up for trial in March 2007, and Justice Alison Harvison Young released her decision in May. She carefully analyzed the law of adverse possession and ruled that the prior owners of the Cantera property had acquired possessory title to the disputed land by 1972 after living there for 10 years. That title passed to the current and future owners.

She ruled that Eller and Wright had to deliver possession of the disputed strip to Cantera and her husband. As well, the judge found that removal of the old fence and erection of the construction fence in the face of the plaintiff’s objections were acts of trespass. The defendants were ordered to pay $1,000 in nominal damages and $5,000 for punitive damages.

Clearly, landowners who move fences without the consent of their neighbours or without a court order do so at their own risk.

Bob Aaron is a Toronto real estate lawyer.  He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.
Visit the column archives at www.aaron.ca/columns/toronto-star-index.htm.

=====================

CanLII – 2007 CanLII 17024 (ON S.C.)

 Ontario

Superior Court of Justice

2007 CanLII 17024 (ON S.C.)
 

Cantera v. Leah Eller, 2007 CanLII 17024 (ON S.C.)

Date:2007-05-15
Docket:04-CV-272391CM1

URL:http://www.canlii.org/en/on/onsc/doc/2007/2007canlii17024/2007canlii17024.html

[1] The heart of the plaintiff s case is a claim of adverse possession
of a narrow strip of property along the border between these neighbors lots in
the Sheppard and Yonge area of Toronto. This is an area of the city that has
been undergoing somewhat of a boom in recent years. The lots are typically
large, approximately 50 feet x 130 feet, and the houses originally built were
constructed during the period following the Second World War. During recent
years, these small houses have increasingly been replaced by large houses.
[2] The plaintiff, Laura Cantera, purchased her property at 96 Johnson
Street in August 1997. Since then, she has lived there with her husband, Leneo
Sdao, and their young children. The defendants, Wendy Eller and Paul Wright,
made an offer to purchase their property at 100 Johnson Street, next door to the
west of the plaintiff, in November 2003 and closed on February 27, 2004. The
defendants bought the property with a view to demolishing the existing house and
rebuilding a new one, which they have since done.
[3] The plaintiff seeks the following relief in this action:
(a) a declaration that she is the lawful owner of the disputed
land;
(b) an order requiring the defendants to deliver up possession of
the land forthwith and to remove from the land all fences;
(c) general damages in the sum of $25,000 for trespass to her
property and punitive damages in the amount of $5,000.
[4] The defendants deny that the plaintiff has established a claim of
adverse possession, deny the allegations of trespass, and, in the alternative,
submit that only nominal damages are warranted.
[5] The issues, then, may be summarized as follows:
(i) is the plaintiff s claim of adverse possession well
founded? I conclude that it is, and that it had been established long before
the plaintiff purchased the property in 1997.
(ii) are the plaintiff s assertions of trespass by the defendants
made out? Yes. I accept the facts and photographic evidence submitted by the
plaintiff and Mr. Sdao and find that the elements of trespass are established.
(iii) if the claims of trespass are made out, what damages should
be ordered?
The Facts
[6] Most of the facts are not in dispute. I found that the witnesses
who gave evidence were, for the most part, truthful and reliable in their
recollections, and, unless I say otherwise, I have accepted their evidence as
given. In order to deal with these issues, it will be useful to set out the
background to the dispute and the chronology of the ill-fated relationship
between these two families.
[7] Ms. Cantera had purchased the house in 1997 from the Connollys, an
elderly couple who had lived there since 1962. As Mrs. Connolly testified at
trial, they had always understood that the boundary between the two backyards
was marked by an old post and wire fence. This fence appears on a survey done in
August 1952, so it is clear that it was at least that old. The Connollys were
not aware that this fence extended across the lot line, despite the existence of
a survey done in 1994 that showed that the southerly point of the fence was 2.5
feet (30 inches) west of the lot line and the northerly point was 0.8 feet
(approximately 9 inches) west of the lot line. Although Ms. Cantera and Mr. Sdao
were not aware of this when the agreement of purchase and sale was signed as the
survey was not attached, they became aware of it shortly thereafter. Mr. Sdao
testified that he was not concerned about this, as he was satisfied that the
property up to the fence had by that time become part of 96 Johnson through the
operation of adverse possession. Although title to the house is held in Ms.
Cantera s name, there is no dispute that it was primarily Mr. Sdao, a real
estate lawyer, who dealt with the issues relating to the dispute.
[8] In addition to the old post and wire fence running north/south
between the properties, which everyone agrees was decrepit, there was a wooden
fence running east/west roughly perpendicular to the old fence between the
western end of the house at 96 Johnson and shortly before it would have met the
old fence to the west. Mrs. Connelly testified that she and her husband had
erected this fence to prevent neighborhood dogs from wandering into their
backyard. This fence forms part of the claim of trespass as part of it extended
over the lot line that appears on the 1994 survey, and this part was cut off by
Mr. Wright at the same time as he and his father removed the post and wire fence
to make way for the orange construction fence. A copy of the 1994 survey, which
shows both fences as well as the original lot line, is attached to these reasons
as Schedule A .
[9] In November 2003 Ms. Eller and Mr. Wright, who is a building
contractor, agreed to purchase 100 Johnson, and immediately began planning the
construction with a view to breaking ground in April 2004. Although they were
not going to be moving into the new house for some time, they were already
living in the general neighborhood, and sometime in December 2003 they contacted
the plaintiff and Mr. Sdao and asked if they could get their children together.
Both couples had daughters around the same age. It was clear from Mr. Sdao s
evidence that he was somewhat on edge concerning the boundary issue from the
start. When Ms. Eller contacted them, shortly after agreeing to purchase the
property, to arrange for the children to get together, Mr. Sdao was suspicious
of the real motives. He thought this was just an excuse to discuss the fence.
According to him, Ms. Eller had said that they wanted the children to meet their
new neighbors to prepare them for the move. Mr. Sdao thought this strange as the
family was not going to be moving very far away. In any event, the plaintiff and
Mr. Sdao put the defendants off on the basis that the children were sick and it
was too close to Christmas.
[10] When Mr. Wright received the 1994 survey he noticed that the old fence
was located on their side of the lot line. On January 19, 2004, Mr. Wright
retained Mr. Kidd, who had done the 1994 survey, to do a survey for the purposes
of locating the new house on the lot. Mr. Kidd, who testified, indicated that
for the purpose of the 2004 survey, he relied on the measurements in his 1994
survey. Just after the survey, Mr. Sdao called Mr. Wright to complain that the
surveyor had trespassed on his property and advised him that, as a result of
adverse possession, he had a 52 foot wide lot while Mr. Wright had a 48 foot
wide lot. Mr. Wright, who had made some inquiries but had not sought legal
advice on this point, responded that Mr. Sdao could not have acquired the
disputed land by adverse possession as he and Ms. Cantera had not owned it for
ten years. He also apologized for the trespass. According to Mr. Wright, Mr.
Sdao also told him that they intended to make a similar claim with respect to
the property at the front of the house as well, although they did not.
[11] At this point, Mr. Sdao took pictures of the fences and areas between
the properties, a number of which were introduced into evidence.
[12] Mr. Wright was, however, concerned about the issue as he was afraid
that having even a slightly smaller lot could affect his ability to obtain
permission to build as a result of the density rules. He later discovered that
this would not be a problem. He was seeking a minor variance to reduce the set
back required, and although Mr. Sdao was initially planning to oppose this
variance, he advised later that he was withdrawing his objection. According to
Mr. Wright, Mr. Sdao did so because he and Ms. Cantera plan to replace their
present home with a bigger one and might also require a similar adjustment. In
his evidence, Mr. Sdao stated that he and Ms. Cantera have not decided whether
they will rebuild.
[13] This conversation marked the real beginning of the dispute between the
parties. Mr. Wright s immediate concern in January 2004 was whether they should
proceed with the closing in light of the boundary issue. He proceeded to make
some inquiries. According to his evidence, everybody he spoke to told him that
the fence should not be a problem. He spoke informally to the lawyer for some
other neighbors who advised that he had settled a similar issue; the lawyer
reportedly thought his neighbor would not have a claim and that it could get
remedied after closing . The closing proceeded on February 27, 2004.
[14] According to Mr. Wright s testimony, the period from January until
April 2004 was extremely busy and stressful. In addition to dealing with the
concerns relating to the committee of adjustments and the closing, he was lining
up trades and making all the other plans necessary to break ground in early
April. The stress was exacerbated by the fact that the general contractor he had
retained for the purpose of the project abandoned it, and so Mr. Wright assumed
this job himself, in addition to his other professional projects.
[15] Mr. Wright was clearly aware that the fence between the two houses
would have to be removed to make way for a construction fence to surround the
construction site, and he realized that this could be an issue with Mr. Sdao and
Ms. Eller. During this period he made some inquiries relating to his rights to
remove the fence. His evidence was that he spoke to the head of planning for
North York who told him that anytime he wanted to take that fence down, you go
right ahead . He also consulted Mr. Kidd, and stated that Mr. Kidd told him that
he should advise his neighbors that he was going to remove the fence, remove it
and then use the property as though it was his own. Mr. Kidd s evidence on this
conversation was somewhat different. He stated that he told Mr. Wright that
there are a number of reasons that a fence is not on the lot line, of which
adverse possession may be one, that this can be a problem, but that most such
difficulties are worked out between the neighbors. He denied advising Mr. Wright
to rip down the fence.
[16] Mr. Wright did not, however, obtain legal advice on this point, which
I find highly surprising for an experienced businessperson in the residential
construction industry. By Easter weekend 2004, Mr. Wright and Ms. Eller were
facing a serious time crunch. Excavation was due to start immediately following
the weekend. On Friday, April 9, 2004, Mr. Wright and Ms. Eller went over to
speak to Mr. Sdao and Ms. Cantera about the fence. The discussion did not go
well. The issue was not the removal of the fence per se, but where it would be
rebuilt. It is common ground that Mr. Wright offered to rebuild the fence at
his expense, but he was not prepared to agree to put it back where the old fence
had been. Mr. Sdao made it clear that he was not prepared to agree to the
removal of the fence in the absence of an agreement to put it back in the same
place as the old fence. Mr. Wright maintains he was willing to agree to do so
in the event that it turned out that Mr. Sdao and Ms. Cantera were correct on
the adverse possession point. In his evidence, Mr. Sdao denied that Mr. Wright
offered to put the fence back wherever it was determined it should go. The
discussion was heated; Mr. Sdao was adamant that if Mr. Wright removed the fence
he would be committing an act of trespass and breaking the law. It is clear that
by the end of the meeting Mr. Sdao and Ms. Cantera had not agreed to the removal
of the fence and no one thought they had. It is also clear that both sets of
neighbors, and Mr. Sdao and Mr. Wright in particular, were angry and upset.
[17] Mr. Sdao went home and drafted a letter to Mr. Wright and Ms. Eller
that Ms. Cantera typed. The letter, dated April 10, 2007, set out the
Sdao/Cantera position. Of particular concern to Mr. Sdao was Mr. Wright s
assertion that he was entitled to move the fence and that it would then be up to
Ms. Cantera and Mr. Sdao to prove a claim for adverse possession. First, the
letter pointed out that the Estate/Qualifier on the parcel register to the
Eller/Wright property stated that they owned a fee simple estate LT Conversion
Qualified . It continued:
The meaning of that statement is that your fee simple estate or paper title is
subject to the matters listed in the printout. For ease of reference, we have
highlighted the relevant parts. The parcel register state that your title is
subject to THE RIGHTS OF ANY PERSON WHO WOULD, BUT FOR THE LAND TITLES ACT, BE
ENTITLED TO THE LAND OR ANY PART OF IT THROUGH LENGTH OF ADVERSE POSSESSION,
PRESCRIPTION .
[18] The letter went on to state that contrary to Mr. Wright s assertions,
adverse possession does exist in the City of Toronto, and that the right of
adverse possession had been specifically preserved by the legislation converting
the Registry System to the Land Titles System. It also referred Mr. Wright to
page 1509 of Anger and Honsberger s Law of Real Property, where the author
states that when the paper title holder s remedy is gone so is his title, so
that reentry by him would be a trespass , and referred Mr. Wright s lawyer to
the case of Beaudoin et al. v. Aubin et al. (1981), 33 O.R. (2d) 604 (H.C.J.) as
being on point and containing a good discussion of the law of adverse
possession. I will discuss the law below, but it is useful to the reader of
these reasons to state here that Mr. Sdao s summary of the law on adverse
possession was accurate and fair.
[19] Having set out the legal context, the letter (a) disputed Mr. Wright s
assertion that the Sdao/Canteras could have no title by adverse possession
unless or until they had brought an application; (b) stated that the
Eller/Wright s rights over the disputed property had been extinguished and had
in fact been extinguished long before they had purchased the property; (c)
advised them not to remove the existing fence until we agree on the type of
replacement fence and on the understanding that the new fence is to be located
in the exact location as the current fence ; (d) warned them that if they chose
to remove the fence, they would be doing so in contravention of the law and that
it would be an act of trespass providing a clear indication that you do not
respect our rights ; and (e) invited them to provide any contrary legal views
for their consideration, saying that [w]e do not want this matter to escalate
any further .
[20] The next day was Saturday, April 10, 2004. Mr. Sdao went to the house
and left the letter for Mr. Wright in his truck, which was in the driveway. Mr.
Sdao then left the house with his family to go to a dog show as they were
considering getting a dog. While they were gone, Mr. Wright and his father
removed the fence and replaced it with an orange construction fence, which he
placed along the lot line. The construction fence ran from a parking sign near
the curb at the front south end of the properties to the very back end at the
north.
[21] Mr. Wright and his father also sawed off the western 22 inches of the
board fence because, according to Mr. Wright, it was going to be in the way.
This was the board fence that ran perpendicular to the post and wire fence that
the Connollys had constructed with a view to keeping dogs out of their backyard.
[22] Unfortunately, Mr. Wright chose not to read the letter from Mr. Sdao
and Ms. Cantera before removing the fence, although he does not deny receiving
it. His evidence was that he was under great pressure at the time and, in
effect, the old fence had to come down that weekend, with or without the
neighbors consent. He stated that he wanted to open the letter in the presence
of a witness and that he did so some time later in the company of a neighbor who
is a lawyer.
[23] Not surprisingly, Mr. Sdao and Ms. Cantera were extremely distressed
and angry when they arrived home and found the fence gone. They seek punitive
damages on the basis that this was high-handed, outrageous conduct that warrants
such an award.
[24] If relations between these neighbors were already off to a poor start,
this incident only made things worse.
[25] Mr. Wright finally read the letter on April 18, 2004. His evidence was
that there was a lot going on and that the weekend of April 9 had not been the
preferred weekend for dealing with this. He did leave a message for Mr. Sdao
saying that we are not ignoring you but have simply not had time over the last
month to get seriously into this issue . He stated that [a]part from the hectic
family schedule and building a house, we sold our house and packed up and moved
to temporary accommodation on April 30, 2004 . In conclusion, he advised Mr.
Sdao and Ms. Cantera that they had started the investigation process but had
only got a short way down the path at this time . In closing, Mr. Wright stated
that they would respond as soon as time and information allowed. His letter did
not mention one significant additional stress that Mr. Wright alluded to at
trial. On May 17, 2004, a roofer died after falling off the roof during the
construction of the Eller/Wright house. Understandably, this was distressing for
both Mr. Wright and Ms. Eller, and it resulted in the shutting down of the site
pending an investigation.
[26] Mr. Wright s testimony at trial also referred to the fact that April
2004 had marked the tenth anniversary of Ms. Eller s sister s death and that the
family had been planning a memorial, which was an added stress on the family.
[27] Mr. Sdao wrote a letter in response, which is dated May 24, 2004. That
letter acknowledged the challenges facing their new neighbors but noted that
they had been first alerted to the problem on January 19, 2004, and that in
removing the fence as they had, despite my advice to you and without any legal
authority to support your position , they had turned the matter into an
adversarial one. Mr. Sdao stated that he and Ms. Cantera were prepared to delay
proceedings for a few weeks in the hope of resolving the matter without resort
to the courts, but were not prepared to let it drag on indefinitely, commenting
that they felt that they had been patient in the matter considering your
aggressive actions on April 10, 2004 . Finally, the letter stated that:
If we do not receive written confirmation from you by June 15, 2004 that a
proper fence will be erected in the original location and that you agree to pay
for the replacement of the brown fence, we will proceed with legal action. Any
settlement will be properly documented and will include a quit claim deed to the
lands in question.
[28] Mr. Wright and Ms. Eller replied briefly on June 13, 2004, stating
that [w]e do not agree with a number of statements made in your letters or
with Mr. Sdao s position regarding the lot line and would therefore not be
providing the written confirmation requested. It closed with the statement that,
[w]e look forward to moving into our new home and establishing good and
friendly mutual relationships with our neighbors and our respective children .
[29] The plaintiff Ms. Cantera issued the statement of claim commencing
this action on July 14, 2004.
[30] In addition to the trespass relating to the removal of the old post
and wire fence, the plaintiff is suing for a number of other alleged acts of
trespass that occurred in the course of the construction of the Eller/Wright
house. I will discuss the specific allegations in detail below, but it is fair
to say that they were minor and would almost certainly never have resulted in
legal action (or possibly even complaints) but for this context.
[31] It was very clear from the testimony of Mr. Sdao and Ms. Cantera that
the incident with the removal of the fence was distressing and set a difficult
tone for the rest of the construction process. The placement of the portable
toilet on the Eller/Wright construction site is a good example. It was placed in
front of the house near the eastern edge of their property where the driveway
was located. Mr. Sdao was unhappy with this positioning of the portable toilet
as he said it obstructed his vision as he backed out of the driveway. It was
also evident from his testimony that he felt that the toilet was deliberately
put there, close to his property, as further provocation. Mr. Wright denied that
this was true and I accept his evidence. The explanation for the location of
the portable toilet as being easily accessible to the disposal trucks makes good
sense. Ms. Cantera also stated in her evidence that she felt that the defendants
deliberately provoked them and ignored their feelings, citing the placement of
the scaffolding as one example, which I will discuss further below. I mention
this because, while I conclude that Mr. Sdao misconstrued the motives behind the
location of the portable toilet, and that Ms. Cantera misconstrued the
intentions of the defendants, their reactions illustrate the poisoning effect
that the removal of the fence on April 10, 2004 had on the relationship between
these neighbors. Apart from the removal of the fence, the trespasses of which
Ms. Cantera complains all arose in the course of the construction of their
neighbor s house in the course of 2004. One such trespass was the removal of
some bushes that were adjacent to the old fence. These were removed shortly
after the removal of the old fence and its replacement with the orange
construction fence. The bushes have not been replaced per se, but the defendants
have put in new landscaping and Mr. Wright indicated at trial that their
position has always been that they would remove it if the adverse possession
claim was upheld.
[32] Mr. Sdao took numerous photographs of the construction site with a
view to substantiating the trespasses. Other than the placement of the orange
fence, the major complaint related to the scaffolding, which Mr. Sdao complains
was placed on their property without any request for permission, and that it
stayed there from roughly May to September 2004. He introduced photographs into
evidence that document this. When he called to complain, Mr. Wright had it moved
farther north on the property. On another occasion, Mr. Sdao called Mr. Wright
because of lumber that was piled on the construction site and extended onto the
plaintiff s property so that Mr. Sdao had trouble getting into his car. Mr.
Sdao s evidence was that this was moved further north on the property so that
while it was still effectively trespassing onto the disputed land, Mr. Wright
did respond to this concern promptly. Another photograph shows debris piled
along and leaning into the orange fence near the front south end of the
property. It is clear from this photograph, as it is from most of them, that if
Ms. Cantera and Mr. Sdao are correct in asserting their title to the disputed
lands through adverse possession, this debris was in fact partly on their
property. In the course of his testimony, Mr. Sdao stated that he did not
complain about all the acts of trespass that occurred during the construction,
only the ones that caused problems. He did call Mr. Wright to complain about
lumber left that had nails in it. During his cross-examination by Mr. Juriansz,
there was some question raised as to whether there had been nails in any of this
lumber, but during a recess Mr. Sdao was able to refer to photos that he had
produced which do, in my view, show this.
[33] Having heard the evidence and reviewed the exhibits, I reach a number
of conclusions.
[34] First, there were a number of occasions during construction when the
defendants trespassed onto the plaintiff s property. In most if not all of these
incidents, this trespass was onto the disputed area, in other words, just east
of the orange construction fence. This means that, but for my conclusion that
the plaintiff s claim of adverse possession should be upheld, the other
trespasses would have been more difficult, if not impossible, to make out
[35] In giving his evidence, Mr. Wright emphasized that he had done
everything he could to minimize any difficulties with his neighbors. He did not
claim, however, to have obtained the permission or consent of Mr. Sdao or Ms.
Cantera.
[36] Second, I do not find that the defendants deliberately provoked the
plaintiff and Mr. Sdao. I accept Mr. Wright s evidence that he tried to avoid
exacerbating the tensions that already existed, at least after he had removed
the fence, and that he moved as quickly as he could to address the problems that
arose. Mr. Sdao did not dispute the fact that issues, such as the blockage to
his car door, were addressed promptly. I find that the placement of the portable
toilet was the normal and natural place for it for the reasons adduced by the
defendant Mr. Wright, and was in no way intended to inflame matters.
[37] Having said this, I find that Mr. Wright rode roughshod on the rights
of his neighbors on a number of occasions in a manner that I find remarkable for
someone in the business of construction. He appears to have dismissed the merits
of the Cantera/Sdao adverse possession claim on the basis of assurances that
were not in the form of legal advice. His failure to read the letter left by his
neighbors when he was about to demolish their fence is little short of
astonishing. The letter referred to the law on the subject. Yet it appears that
he did not retain counsel on the subject even at that point, when he knew that
his neighbor was a real estate lawyer with some degree of expertise in this
subject.
The Adverse Possession Claim
The Law on Adverse Possession
[38] The requirements for establishing possessory title by adverse
possession are:
(a) actual possession for the statutory period by the claimants and those
through whom they claim;
(b) that such possession was with the intention of excluding from
possession the owner or persons entitled to possession;
(c) discontinuance of possession for the statutory period by the owner
and all others entitled to possession.
[39] Adverse possession must be open, notorious, constant, continuous,
peaceful and exclusive of the right of the true owner : Fletcher v. Storoschuk
et al. (1981), 35 O.R. (2d) 722 at 3 (C.A.) (QL).
[40] Before discussing these in detail, one preliminary issue should be
addressed. At the outset, Mr. Wright appears to have had the impression that
because the plaintiff had not owned the house for ten years, she could not have
acquired title by adverse possession. This is mistaken, because as a real right,
adverse possession is a right, which once acquired, affects the title itself. It
is also mistaken because it fails to take account of the effect of the change
from the Registry System to the Land Titles System. Section 51 of the Land
Titles Act, R.S.O. 1990, c. L.5 prevents the creation of any new possessory
titles through adverse possession once land has been placed under the Land
Titles System, but preserves any rights to adverse possession acquired prior to
the placement of the land under the Land Titles System.. The Land Titles System
came to apply to the land in question in 2002, therefore any claim in adverse
possession that arose prior to this date is preserved. If the owners of 100
Johnson had acquired title to the land in question by way of adverse possession
prior to 2002, such title would be preserved by s.51. The fact that the
plaintiff had not owned the property for ten years is irrelevant.
Actual Possession for the Statutory Period
[41] I find that the requirement of actual possession was met by the post
and wire fence that had marked the boundary between the properties at 96 and 100
Johnson since 1952 at the latest. The survey done that year (the Gibson
Survey ) shows the structure and describes it as a post and wire fence. At that
point, the house at 96 Johnson was described as unfinished . According to the
Gibson Survey, the fence was located 0.6 feet west of the actual lot line at the
northern tip of the property and 2.3 feet west of the actual lot line at the
southern end of the fence.
[42] Mrs. Connolly was called as a witness by the plaintiff. She impressed
me as a truthful witness. She clearly remembered the fence being there when she
and her husband moved into the house in 1962. Mrs. Connolly stated that she and
her family always treated their property as extending to the post and wire
fence, and the neighbors never suggested otherwise. She and her husband cut the
grass up to the fence. Around 1968, they constructed a wooden fence that ran
perpendicular to the post and wire fence separating the front yard from the back
on the western side of the property, which she stated they did to try to
discourage neighborhood dogs from entering their backyard. It is common ground
that the wooden fence did not actually meet the post and wire fence, and the
defendants took the position that this constituted evidence that the Connollys
were not in possession of that strip, which Mrs. Connolly estimated to have been
somewhere around eight inches. Her evidence was that the reason they did not
extend the wooden fence all the way to the post and wire fence was simply that
there was a depression in which water often collected, so that the wooden fence
would have rotted if they had extended it west to meet the post and wire fence.
[43] I accept Mrs. Connolly s evidence that she always thought that the
post and wire fence marked the property line and that families on both sides of
the fence acted accordingly for many years. I conclude that the first
requirement of actual possession for the statutory period was met by 1972 at the
latest, by which point the Connollys had lived at 96 Johnson for ten years.
The Intention of Excluding the Owner from Possession
[44] The defendants, through Mr. Juriansz, argued that the plaintiff fails
on the second limb of the test because there was never any intention or plan to
acquire possession by adverse possession. The plaintiff, through Mr. Riswick,
submitted that the law in Ontario draws a distinction between claims that arise
from inadvertent and advertent conduct. An adverse possession claim arises from
inadvertent conduct when the claimant takes possession of lands that the
claimant mistakenly believes he or she already owns. The claim arises from
advertent conduct when the claimant is a trespasser whose acts of possession
have the purpose of acquiring ownership of lands that the trespasser knows he or
she does not own.
[45] In my view, having reviewed the authorities submitted by the parties,
the plaintiff is correct in asserting that a claim to adverse possession may be
established by inadvertent or mistaken conduct. The underlying policy rationale
makes good sense. The law of adverse possession should not favour a deliberate
trespasser over an innocent or mistaken one by recognizing title acquired by the
former but not the latter.
[46] Mr. Juriansz submitted that the plaintiff s claim must fail because
the Connollys never intended to effectively dispossess the owners of 100
Johnson of the disputed property. He emphasized that Mrs. Connolly readily
admitted during cross examination that, had her former neighbors informed her of
the mistake and asked to move the fence to the actual lot line, she would have
agreed. This argument cannot succeed. First, even if Mrs. Connolly would have
agreed, there is no evidence to suggest that Mr. Connolly would have. Second,
it appears that neither of them, in fact, had any idea that the fence was not
actually on the lot line until the property was sold to Ms. Cantera in 1997.
Third, and most important, the case law on this issue supports the plaintiff s
position. Adverse possession can clearly be established through inadvertent or
mistaken possession of the property of another.
[47] The facts of the case of Beaudoin et al. v. Aubin et al., supra,
bear a remarkable similarity to the present case. As in this case, the
plaintiffs as well as the defendants predecessors in title were under a mutual
mistake as to the true boundary of their properties. Anderson J. found that the
plaintiffs were in exclusive, open and notorious possession of the disputed
strip of land from 1951 until at least 1973, which meant that they occupied the
strip well in excess of the ten year period stipulated by ss. 4 and 15 of the
Limitations Act, R.S.O. 1970, c. 246 within which the defendants should have
brought an action to recover possession. Anderson J. also made the point that
even if their possession until 1966 had inured to their landlord (at which time
they purchased the lot that they had previously been renting), they purchased
whatever interest their landlord thus acquired. After a very full review of the
law, he concluded that ignorance of the true state of the title does not prevent
possession that is open and notorious from ripening into title. Thus, the fact
that there, the plaintiffs were under a misapprehension as to the true state of
their title to the disputed strip, or that the plaintiffs and the defendants
predecessors in title were under a mutual mistake as to the true boundary did
not mean that the plaintiffs possession was not adverse. The learned judge was
quite clear that in order to acquire title by adverse possession, it is not
necessary to have an actual intention to exclude the true owner if the true
owner is in fact excluded for the statutory period by a possession that is
certain and unequivocal.
[48] Sharpe J. cited Anderson J. s analysis with approval in Raso v.
Lonergan, [1996] O.J. No. 2898 (Ct. J. Gen. Div.) (QL) and addressed the
argument that it had had been superceded by the later Court of Appeal decisions
of Masidon Investment Ltd. v. Ham (1984), 45 O.R. (2d) 563 (C.A.) and Fletcher
v. Storoschuk, supra. In his view, those cases were distinguishable because they
were cases where the acts of possession relied upon were equivocal. In Masidon,
the defendant was a tenant of adjoining lands who used the plaintiff s land as a
private airstrip for a period of ten years. The defendant had claimed adverse
possession when the plaintiff sought a declaration that it was the owner. The
plaintiff had been unaware of the defendant s use of the property and was
holding it only as an investment. The defendant was unsuccessful both at trial
and at appeal because the plaintiff had not been excluded or prevented from
making the kind of use of the land that it desired to make, which was to hold it
as an investment. In Fletcher, the defendant constructed a fence 18 feet inside
the plaintiff s property as a buffer zone between his and the plaintiff s
properties. The defendants, who asserted a claim of adverse possession, had
erected a high fence inside their own lot line, and at one point, had offered to
buy the buffer zone from the plaintiff, who had refused. Wilson J.A. concluded
as follows:
even if they could be viewed as acts of adverse possession, it seems to me that
they were at most seasonal and intermittent and did not meet the required test
of being open, notorious, constant, continuous, peaceful and exclusive of the
right of the true owner (at 3) .
[49] The Ontario Court of Appeal decision in Teis v. Ancaster (Town) 1997
CanLII 1688 (ON C.A.), (1997), 35 O.R. (3d) 216 (C.A.) reinforces the principle
expressed in Beaudoin and supports the distinction made by Sharpe J. (as he then
was). The central issue in Teis was the question of whether the doctrine of
inconsistent use as applied in Masidon and Fletcher (see also Keefer v. Arilotta
(1976), 13 O.R. (2d) 680 (C.A.)) applied to a case of mutual mistake.
[50] As Laskin J.A. noted, the cases on inconsistent use were all cases in
which the party claiming a possessory title had knowingly trespassed on the
owner s land. Here, as in Teis, the evidence indicates that for a long time, the
owners of both 96 Johnson and 100 Johnson thought that the post and wire fence
was on the lot line and both behaved as though that was the case.
[51] Laskin J.A., writing for the court in Teis, held that the doctrine of
inconsistent use does not apply to cases of mutual mistake. He stated that to do
so would mean that a claimant in such cases could never make out a case in
adverse possession, a result that would offend established jurisprudence, logic
and sound policy (at 225), and concluded that:
Policy considerations support a contrary conclusion. The law should protect
good faith reliance on boundary errors or at least the settled expectations of
innocent adverse posssessors who have acted on the assumption that their
occupation will not be disturbed. Conversely, the law has always been less
generous when a knowing trespasser seeks its aid to dispossess the rightful
owner (at 225).
[52] In summary, the present case was clearly one of mutual mistake that
went back at least to the time when the Connollys acquired 96 Johnson in 1962
and probably before. Accordingly, it is clear that the doctrine of inconsistent
use cannot apply for the reasons set out in Teis. Rather, this is a case where
the intention is presumed by the nature of the possession. As Anderson J.
stated in Beaudoin:
Where there is possession with the intention of holding for one s benefit,
excluding all others, the possession is sufficient and animus is presumed. If
it were necessary to say so, one could say of such a situation that the
intention ipso facto included the intention to exclude the true owner even if
his rights were unknown to the person in possession (at 2).
[53] It is clear that for many years, the owners of both properties treated
the post and wire fence as the line between their properties. In this sense the
fence did enclose the backyard at 96 Johnson. There is no need to establish
any additional element of intention; it is inferred from the continuous,
notorious and open possession, at least in a case such as this where the owners
or their predecessors in title were operating under a mutual mistake.
Discontinuance of Possession by the Titled Owner for the Statutory Period
[54] There is no serious suggestion that this test was not met in the
present case. No evidence was led at trial of any assertion of the owners of 100
Johnson to the disputed strip until the defendants purchased the property.
[55] For the foregoing reasons, I conclude that the owners of 96 Johnson
had acquired title to the disputed land by adverse possession since well before
Ms. Cantera purchased the property. There was no evidence at trial given as to
the treatment of the fence at the time of its construction or before the
Connollys purchased the property, so we cannot know for certain whether their
predecessors treated the disputed land as their own. On the basis of Mrs.
Connolly s evidence, however, I conclude that they had acquired title to the
disputed land by adverse possession no later than ten years after they moved in
to 96 Johnson in 1962, that is, by 1972. This means that the claim had been made
out some 22 years prior to the 1994 survey.
[56] At trial, there was considerable discussion and evidence led
concerning the accuracy of the 1994 survey, largely because there was some
difference in the dimensions from the 1952 survey. The defendants implied that
the plaintiffs had moved the fence. Mr. Kidd was called by the defence to
testify. His evidence was that while surveying techniques had not changed
significantly between 1952 and 1994, things do shift and that could have
affected the measurements. When Mr. Kidd returned to the property in January
2004, he assumed that his 1994 survey measurements were correct. As this was not
a complete survey, but a grading plan, he relied on his earlier measurements.
[57] In reviewing the evidence and the submissions, I conclude that there
is no basis for disputing the accuracy of the 1994 survey. I cannot conclude
that the plaintiff and Mr. Sdao moved the fence. For one thing, it is hard to
understand why they would have moved it closer to the actual property line,
which is what the difference suggests. The best explanation for the difference
is that one of the posts was removed at some point. The photographs submitted as
evidence seem to me to support this hypothesis. Certainly, given the age and
derelict condition of the fence, it is not surprising that this could have
happened at some point. In my view, nothing turns on this. The best evidence of
the dimensions of the fence relative to the original lot line are found on the
1994 survey. Mr. Kidd was satisfied enough with his 1994 dimensions to rely on
them in 2004. These are the dimensions that should define the boundaries of the
two properties along the post and wire fence.
The Claims in Trespass
[58] Trespass is an intentional tort that is actionable without proof of
actual damage. In this case, the plaintiff is seeking general damages in the
amount of $10,000 and punitive damages in the amount of $5,000. The plaintiff s
claims in trespass fall into two general categories. The first include the
trespass relating to the removal of the post and wire fence, the bushes and the
western 22 inches of the board fence that ran perpendicular to the post and wire
fence that the Connollys had erected to discourage dogs from wandering into the
backyard. The second category includes the incidents that arose during the
construction.
The Removal of the Fence
[59] As a result of my conclusion that the plaintiff had title to the
disputed land by adverse possession, it follows that the act the removal of the
fence and the erection of the construction fence in the face of the express
objections of Ms. Cantera and Mr. Sdao constituted an act of trespass. The
plaintiff seeks punitive damages for this intrusion. The defendants argue that
the removal of the fence was, at worst, a technical trespass or one committed
with colour of right. With respect to the removal of the fence, and its
replacement by an orange construction sense along the original property line, I
cannot agree with this argument.
[60] By the end of November 2003, the defendants knew that there was an
issue with respect to the location of the fence. Having made an unsuccessful
attempt to negotiate a solution with Mr. Sdao and Ms. Cantera, and having
refused to undertake to put a new fence where the old one had been, Mr. Wright
resorted to self-help. He waited until the plaintiff and her family were out,
then he along with some relatives removed the fence and erected an orange
construction fence. This was not a merely technical act of trespass as in the
case of Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.), which was cited by
Mr. Juriansz. Unlike that case, this was not a case of understandable
mistake . Mr. Wright knew that Mr. Sdao, a real estate lawyer whom he might have
expected to have some knowledge of the law on such matters, strongly believed
that he had title by adverse possession. Nevertheless, and despite the fact that
he knew of the issue many months before he removed the fence on April 10, 2004,
he failed to obtain legal advice on the subject. Moreover, he failed to read the
letter from Mr. Sdao which Mr. Sdao left for him on the day that he removed the
fence, saying that he pretty well knew what it contained. The facts of this case
are very analogous to those in a number of cases that were cited by the
plaintiff: see Furgal v. Angel (2005), 42 R.P.R. (4th) 213 (Ont. Sup. Ct. J.);
Saly Estate v. Flabiano (2006), 149 A.C.W.S. (3d) 156 (Ont. Sup. Ct. J.);
Paradiso v. Talbot, 2003 CanLII 8923 (ON S.C.), 2003 CanLII 8923 (Ont. Sup. Ct.
J.); Hanna v. Muir (2000), 99 A.C.W.S. (3d) 713 (B.C.S.C.); Glashutter v. Bell
(2001), 110 A.C.W.S. (3d) 478 (B.C.S.C.).
The Construction Phase Trespasses
[61] I am satisfied that the defendants did commit a number of acts of
trespass on the plaintiff s property during the period in which their house was
under construction. I am satisfied, having examined the photographs, that the
scaffolding did encroach on their property for a period of time. I am also
satisfied that the materials and debris stacked along the construction fence
encroached at times onto the plaintiff s property. I do not think that these
incidents, recurring as they were, would warrant an award of punitive damages in
themselves. While the plaintiff and Mr. Sdao believed that the defendants were
deliberately provoking them in various ways with these acts of trespass and by
locating the portable toilet where they did, I accept the evidence of Mr. Wright
that he went out of his way to avoid trespassing on the plaintiff s property
during construction. As he pointed out during his testimony, it is extremely
difficult to avoid some encroachments during such construction. This reality,
however, does not excuse or justify trespassing on one s neighbor s property.
Rather, it underlines the importance of ensuring that one obtains the necessary
consents ahead of time. The circumstances, and Mr. Wright s removal of the fence
in the face of the specific objections and warnings by his neighbors, added to
the stress that the subsequent, and minor, acts of trespass incurred to Ms.
Cantera and Mr. Sdao.
Damages
[62] The plaintiff seeks general damages in the amount of $10,000 and
punitive damages in the amount of $5,000.
General Damages
[63] It is well established that trespass to land is actionable per se:
see, for example, Anthony M. Dugdale et al., eds., Clerk & Lindsell on Torts,
19th ed. (London: Sweet & Maxwell, 2006) at 1145, and G.J.L. Fridman, The Law of
Torts in Canada, Vol.1 (Toronto: Carswell, 1989) at 7). There is, however, some
controversy as to whether damages for trespass are at large or whether a
plaintiff must prove a loss suffered in order to recover damages other than
nominal or punitive. Despite the decision of the Alberta Court of Appeal in Band
of Nova Scotia v. Dunphy Leasing Enterprises Ltd. (1991), 120 A.R. 241 at 259,
the prevailing view in Ontario is that general damages must be proved: see
Hudson s Bay Co. v. White, [1997] O.J. No. 307 (Ct. J. Gen. Div.) (QL) per
Lederman J.
[64] The plaintiff did not lead evidence of any loss or damage associated
with the trespass to their property other than the stress that the entire series
of events caused to them. The defendants have re-landscaped the area to the west
of the orange construction fence, which has remained there. The plaintiff and
her family will enjoy the benefit of this landscaping once a new fence is
erected further west, although this is a very narrow strip of land. In short, I
cannot find any basis for awarding general damages in this case, and accordingly
I would deny that aspect of the claim. Rather, I would award nominal damages
totaling $1,000 for the various minor acts of trespass committed as well as the
trespass involved in moving the fence.
Punitive Damages
[65] The claim for punitive damages in the amount of $5,000 is made out on
the facts of this case. As I have discussed above, the defendants acted
knowingly, deliberately and willfully. While they clearly did not accept the
plaintiff s assertions that she had adverse possession, they knew that the
plaintiff and Mr. Sdao were making these claims long before April 10, 2004. The
fact that Mr. Wright may have had an honest belief that the claim of adverse
possession was ill-founded does not in any way mitigate his conduct. Nor does
his feeling that the plaintiff and Mr. Sdao were trying to bring undue pressure
on him to sign a quit claim at that point. In removing the fence, he chose to
bear the risk that his conduct was unlawful. In short, the defendants have acted
in a high-handed and arrogant fashion and their conduct justifies an award of
punitive damages: see Furgal v. Angel, supra, Saly Estate v. Flabiano, supra,
Glashutter v. Bell, supra.
Conclusion
[66] As discussed above, the plaintiff has successfully established that
she is the lawful owner of the land between the post and wire fence and the lot
line as shown in the 1994 Kidd survey, and a declaration shall issue
accordingly, along with an order that the defendants deliver up possession of
the land, for nominal damages in the amount of $1,000, and for punitive damages
in the amount of $5,000.
[67] If the parties are unable to agree as to costs, they may make brief
submissions to me as follows. The plaintiff is to deliver her bill of costs
along with brief submissions of no more than two pages within 14 days of the
date of this judgment, the defendants are to deliver their responding
submissions within seven days thereafter and the plaintiff may reply within
three working days after that.

___________________________
Harvison Young J.

Released: May 15, 2007

COURT FILE NO.: 04-CV-272391 CM1
DATE: 20070515

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LAURA CANTERA

Plaintiff

– and –

WENDY LEAH ELLER AND PAUL WRIGHT

Defendants

REASONS FOR JUDGMENT

Harvison Young J.

Released: May 15, 2007

Bob Aaron is a Toronto real estate lawyer. He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.
Visit the Toronto Star column archives at https://www.aaron.ca/columns for articles on this and other topics or his main webpage at www.aaron.ca.