



COURT OF APPEAL FOR ONTARIO

CITATION: Guerard v. Gray, 2014 ONCA 790

DATE: 20141112

DOCKET: C57900

Blair, Juriansz & Rouleau
    JJ.A.

BETWEEN

Kevin Guerard et al

Appellants (Respondents)

and

Sarah Gray et al

Respondents (Applicants)

Terrance Green, for the appellants

Joseph Y. Obagi, for the respondents

Heard and released orally: October 22, 2014

On appeal from the order of Justice Brian W. Abrams of
    the Superior Court of Justice, dated October 18, 2013.

ENDORSEMENT

[1]

The Grays and the Guerards own adjoining residences on Hope Street in
    Almonte, Ontario.  Their dispute involves a narrow strip of land between the
    two properties to which the Grays claim title by adverse possession.  The strip
    lies between some point on the Grays driveway, and the centre line of a hedge
    separating the properties.

[2]

After a three-day trial, Abrams J. allowed the claim for adverse
    possession.  He granted an order vesting title to the disputed lands in the
    Grays and extinguishing the interest of the Guerards and their mortgagors.  The
    trial judge conducted a thorough review of the evidence, and made clear
    findings of fact that were amply supported on the record.  He applied the
    proper principles of law relating to a claim for adverse possession, and there
    is no basis for interfering with his decision in that regard.

[3]

In particular, the trial judge recognised that only the rights and
    interests of adjoining owners in existence at the time of first registration in
    the Land Title system are protected.  He properly observed that the Grays were
    required to prove that, through the occupation of their predecessors, their
    possession was of the same nature and substance as when the lands were first
    registered in Land Titles.  He held they had done so, rejecting the argument of
    the Guerards that the occupation of Ms. Forster broke the chain of possession. 
    There is no basis for interfering with this finding and conclusion.

[4]

On appeal, the appellants raised an argument not made at trial, namely
    that the finding of adverse possession did not justify the granting of title to
    the Grays of the full width of the two 2.03 metres vested in them by the trial
    judges order.  What the precise dimension should be is not addressed by the
    appellant other than Mr. Greens general submission that the Grays only
    required the width of their driveway plus a small grass strip.

[5]

The problem is that this was not the way the case was put to the trial
    judge.  The trial judge was presented with a survey  on consent  showing the
    disputed lands on two bases: (i) the wingspan that would have been necessary
    for both a two-door and a four-door vehicle; and (ii) the centre line of the
    hedge.  As it turns out there is virtually no difference between these two boundaries. 
    The dispute at trial was over whether adverse possession had been established
    in relation to the surveyed lands.  No evidence to the contrary as to the
    appropriate width was led.  As we have noted, there was ample support in the
    record for the finding of adverse possession.

[6]

The appeal is therefore dismissed.

[7]

Given this disposition, it is unnecessary to address the argument that
    the appeal was moot.

[8]

In accordance with the agreement of the parties, the respondents are
    entitled to their costs of the appeal fixed at $12,880.15 all-inclusive on a
    partial indemnity basis.

[9]

Mr. Green raised the issue of costs before the trial judge.  No amended notice
    of appeal was filed raising his claim, and the cost order of Abrams J. is not
    before us nor is the questions addressed in the factum.

R.A.
    Blair J.A.

R.G.
    Juriansz J.A.

Paul
    Rouleau J.A.


