



COURT OF APPEAL FOR ONTARIO

CITATION: 2279088 Ontario Inc. v. Nisbet, 2018 ONCA 897

DATE: 20181109

DOCKET: C65227

Lauwers, Huscroft and
    Trotter JJ.A.

BETWEEN

2279088 Ontario Inc.

Applicant/Respondent by

Counter-Application (Appellant)

and

Alan Douglas Nisbet

Respondent/Applicant by

Counter-Application (Respondent)

Patrick R. Simon, for the appellant

Colin R. Dubeau, for the respondent

Heard: November 1, 2018

On appeal from the order of Justice Robert Pelletier of
    the Superior Court of Justice, dated March 15, 2018.

REASONS FOR DECISION

[1]

This appeal involves a dispute over a parking platform that was built on
    Mr. Nisbets land and which encroaches on contiguous property owned by 2279088
    Ontario Inc. (227). The application judge dismissed 227s claim in trespass
    and allowed Mr. Nisbets claim for a declaration of title as a result of
    adverse possession.

The Parking Platform and the Land

[2]

227 owns a piece of land, part of which serves as a private roadway (known
    as Chretien Street) in the Township of Alfred-Plantagenet, in the United
    Counties of Prescott and Russell. Mr. Nisbet is one of 14 landowners who enjoys
    a right of way over this roadway, and over a grassy drainage area between his
    land and the home of Joseph Jones, the sole shareholder and director of 227.
    The roadway is also the subject of various easements (in relation to water,
    sewage, and other utilities) in favour of the Township.

[3]

In 1994, Mr. Nisbets predecessor in title built the parking platform. The
    top of the platform is level with the road. Because the land slopes away from
    the roadway, there are retaining walls on the other three sides of the
    platform, comprised of interlocking timbers. It is mostly filled in by gravel.

[4]

The timbers that support the platform extend to the roadway and encroach
    by 1.37 meters (54 inches). The encroachment is beneath the ground and only
    extends as far as a grassy area to the side of the traveled roadway.

[5]

The other encroachment is at the rear of the platform, where the timbers
    meet at one of the corners. At a height of six feet, it encroaches by only .33
    meters (13 inches) onto the unmaintained grassy drainage area of 227s land.

[6]

When the parking platform was built in 1994, long before Mr. Nisbet and
    227 were on the scene, a landowner who was building his own home across the
    roadway was able to pinpoint when the platform was constructed. He has images of
    the property taken before and after the platform was built. He also observed
    that, once completed, the platform was used exclusively by Mr. Nisbet and his
    predecessors in title to park their respective vehicles, and those of their
    guests.

The Dispute

[7]

227 acquired the property in 2011. Trouble soon followed. The
    application judge found that Mr. Jones immediately declared his rights as the owner,
    claiming that he could do as he wished with the land, including tearing up the
    asphalt roadway and replacing it with grass. He threatened to sue Mr. Nisbet.
    This hostile stance resulted in criminal proceedings against Mr. Jones, and
    then this litigation.

[8]

It was not until 2016 that a survey revealed the encroachments at issue
    in this litigation. As the application judge found, at para. 30, it would
    appear that the parties had been operating on the basis of a mistake about
    property lines.

[9]

227 brought an application for a declaration of trespass and for an
    order that the parking platform be torn down. Mr. Nisbet sought a declaration
    vesting title in the encroached lands in his name, based on a claim of adverse
    possession.

[10]

The
    application judge dismissed 227s claim. Applying the governing authorities of
    this court, including
Masidon Investments Ltd. v. Ham
(1984), 45 O.R.
    (3d) 563 (C.A.), leave to appeal refused, [1984] S.C.C.A. No. 232;
Teis v.
    Ancaster (Town)
(1997), 35 O.R. (3d) 216 (C.A.); and
McClatchie v.
    Rideau Lakes (Township)
, 2015 ONCA 233, the application judge allowed the
    adverse possession claim, subject to the existing rights of way.

Analysis

[11]

In
    approaching this case, we accept the parties invitation to address the two
    encroachments together, in an all-or-nothing fashion. Although each
    encroachment has a somewhat different impact on 227, they arise from a single
    structure  the parking platform. The timbers that create the triangular
    encroachment on the drainage ditch are the same timbers that extend underneath
    the roadway. To approach the case otherwise would be artificial.

[12]

227
    argues that the application judge applied an erroneous test for adverse
    possession. It submits that
Keefer v. Arillott
a
(1976), 13 O.R.
    (2d) 680 (C.A.) created a modified test when one claims adverse possession
    to lands subject to others rights of way. 227 relies on the following passage
    from the reasons of Wilson J.A. (as she then was), at pp. 691-692:

The onus of establishing title by possession is on the
    claimant and it is harder for a claimant to discharge this onus when he is on
    the property pursuant to a grant from the owner
. It was held in
Littledale
    v. Liverpool College
, [1900] 1 Ch. 19, that
acts done on another's land
    may be attributed to the exercise of an easement, even an excessive exercise of
    an easement, rather than to adverse possession of the fee.

In
Pflug and Pflug v. Collins
, [1952] O.R. 519 at p.
    527, [1952] 3 D.L.R. 681 at p. 689 [affirmed [1953] O.W.N. 140, [1953] 1 D.L.R.
    841], Mr. Justice Wells (as he then was) made it clear that a person claiming a
    possessory title must establish (1) actual possession for the statutory period
    by themselves and those through whom they claim; (2) that such possession was
    with the intention of excluding from possession the owner or persons entitled
    to possession; and (3) discontinuance of possession for the statutory period by
    the owner and all others, if any, entitled to possession. If he fails in any
    one of these respects, his claim fails. [Emphasis added.]

[13]

This
    passage does not bear the interpretation urged upon us by 227. Wilson J.A. did
    not modify the requirements for adverse possession in cases involving
    pre-existing easements; she merely observed that it will be more difficult from
    an evidentiary perspective to establish the pre-conditions in these
    circumstances. As is clear from this excerpt, a stricter approach prevents easements
    from maturing into title too easily.

[14]

Moreover,
    we are not persuaded that the application judge misapplied the doctrine of
    adverse possession. There was a solid evidentiary foundation on which he could
    find that the construction of the parking platform was not merely the excessive
    use of the right of way; it involved a completely different use of the land in
    question, different in purpose and kind from the original grant.

[15]

The
    evidence demonstrated that Mr. Nisbet and his predecessor in title
    unequivocally excluded the true owners and all others from the use of the
    encroached spaces. Over two decades of exclusive use of these spaces permitted
    the application judge to find the intention to exclude all others. In short, Mr.
    Nisbet proved the three elements necessary to establish title by adverse
    possession.

[16]

227
    further argues that the application judge erred by ignoring the doctrine of
    inconsistent use, whereby it must be proved that the claimants use of the land
    is inconsistent with the true owners present or future enjoyment of the land:
    see
Keefer
; and
Masidon
. We disagree.

[17]

In
Teis
, Laskin J.A. observed, at para. 24, that inconsistent use is a
    controversial element of an adverse possession claim. This element, which was
    revived in
Leigh v. Jack
(1879), 5 Ex. Div. 264 (C.A.), at p. 273, has
    in more recent times been denounced by the House of Lords as heretical and
    wrong: see
J. A. Pye (Oxford) Ltd. v. Graham
, [2002] UKHL 30, [2003]
    1 A.C. 419, at para. 45. See also the discussion in
Nelson (City) v. Mowatt
,
    2017 SCC 8, [2017] 1 S.C.R. 138, at paras. 17-27. Counsel for Mr. Nisbet argues
    that this court should dispense with this element of adverse possession once
    and for all.

[18]

Presently
    constituted as a three-person panel, we are not able to address this argument,
    which would involve reversing numerous authorities of this court. Only a
    five-person panel could receive such arguments. See
Sipsas v. 1299781
    Ontario Inc.
, 2017 ONCA 265, at para. 30, in which an identical request
    was rejected for the same reason.

[19]

In
    any event, to the extent that it was necessary to address this issue, we are
    satisfied that the application judge adequately dealt with inconsistent use in
    relation to the roadway, at paras. 29-31 of his reasons. Although he did not
    address inconsistent use as it applied to the drainage ditch, it was not
    necessary to do so because the dispute (over both pieces of disputed land) arose
    as a result of a mutual mistake. As this court held in
Teis
, at para.
    25, the doctrine has no application in these circumstances.

[20]

227
    also argues that the application judge granted relief not sought by Mr. Nisbet
    and, in doing so, rendered the proceedings unfair. As 227 submits in its factum:
    when the Learned Application Judge granted Mr. Nisbet possessory title
    subject to the same encumbrances already on title, the Learned Application Judge
    caught the Appellant by surprise and did not allow the Appellant to make
    submissions regarding same relief.

[21]

There
    is no merit in this ground of appeal. Both parties had the opportunity to make
    submissions to the application judge on this issue, both orally and in writing.
    Moreover, there was nothing unfair or unusual about the relief granted by the
    application judge. As Laskin J.A. said in
Teis
, at para. 34: A
    possessory title may be subject to a right of way.

[22]

Lastly,
    227 submits that, should it be successful on the adverse possession issue, it
    is entitled to injunctive relief based on its claim of trespass. To the extent
    that it is necessary to address this issue, this ground has no merit. The
    encroachments were trifling. One was underground. As the application judge
    found, at para. 24, the parking platform has not created even the slightest
    obstruction or risk for those who exercise their rights of way on the roadway. Nor
    was it established that the miniscule encroachment created by the rear corner
    of the parking platform has impacted on anyones enjoyment of the drainage
    ditch. The fact that the encroachment is a permanent structure is irrelevant:
    see
Weidelich v. de Koning
, 2014 ONCA 736, 122 O.R. (3d) 545, at para.
    19.

Disposition

[23]

The
    appeal is dismissed.

[24]

Counsel
    agree that the successful party on appeal is entitled to $17,000, inclusive of
    disbursements and HST. Mr. Nisbet is entitled to costs in this amount.

P. Lauwers
    J.A.

Grant Huscroft
    J.A.

G.T. Trotter
    J.A.


