



COURT OF APPEAL FOR ONTARIO

CITATION: Anthony v. McKenzie, 2019 ONCA 147

DATE: 20190225

DOCKET: C65491

Feldman, Brown and Miller JJ.A.

BETWEEN

Gerald Anthony

Plaintiff (Appellant)

and

Gary Gordon McKenzie and Jennifer McKenzie

Defendants (Respondents)

Yuce Baykara, for the appellant

Craig Losell, for the respondents

Heard and released orally: February 21, 2019

On appeal from the
    judgment of Justice Phillip Sutherland of the Superior Court of Justice, dated May
    8, 2018.

REASONS FOR DECISION

[1]

Mr. Anthony appeals from the motion judges dismissal of his action
    seeking a declaration of adverse possession over part of the respondents
    property.

[2]

Mr. Anthony submits the motion judge failed entirely to consider
    whether the evidence of his predecessor in title, Mr. Eric Fulton, disclosed a
    mistaken understanding as to the location of the boundary of his own property.

[3]

We do not agree.

[4]

The motion judge expressly dealt with that issue. At para. 26 of his
    reasons he identified the evidence of Mr. Fulton that demonstrated some
    inaccuracy in his understanding about the location of the boundary given that
    he mowed a small part of the disputed lands in the vicinity of his house.
    However, the motion judge was required to consider that evidence together with
    the rest of Mr. Fultons evidence. He did so, noting that the R-Plan filed by
    the Fultons in support of their application for conversion to the
Land
    Titles Act
, R.S.O. 1990, c. L.5 regime was consistent with Mr. Fultons
    evidence that he had no claim and made no claim for adverse possession over the
    disputed lands. Mr. Fulton also testified that he never mowed the area that
    forms the bulk of the disputed lands  the area outlined in blue on Exhibit 1
    to his cross-examination. Based upon the totality of the evidence, the motion
    judge concluded that the Fultons did not have any intention to exclude as
    demonstrated by their actions and by their words.

[5]

We see no error in that conclusion. Regardless of the limited use the
    Fultons may have made of a small portion of the disputed lands in the immediate
    vicinity of their house, the evidence was overwhelming that they had no
    intention to use the land to the exclusion of its true owner.

[6]

Mr. Anthony advances another fact-based ground of appeal. He contends
    the motion judge erred in finding that an old fence on the property did not
    create a boundary and did not indicate an intention to exclude. Key to this
    submission is the assertion contained in his affidavit, at para. 17, that
    either the Hashems or the Fultons erected a fence from the front of the
    property to the back closely following the top of [the] bank on the east side
    of the pond. That assertion had no support in the evidence. Mr. Fulton gave no
    such evidence. As the motion judge observed at para. 21, there was no evidence
    provided on the conduct or intentions of the Hashems.

[7]

Mr. Anthony did not pursue on appeal the motion judges dismissal of his
    alternative claim for an easement over some unspecified part of the disputed
    lands.

[8]

The appeal is dismissed.

[9]

Mr. Anthony shall pay the respondents their costs of the appeal fixed in
    the amount of $13,864.20, inclusive of disbursements and H.S.T.

K. Feldman J.A.

David Brown J.A.

B.W. Miller J.A.


