



COURT OF APPEAL FOR ONTARIO

CITATION: McKay v. Vautour, 2020 ONCA 16

DATE: 20200110

DOCKET: C66724

Roberts, Paciocco and Harvison Young JJ.A.

BETWEEN

Susan Opal McKay

Plaintiff (Appellant)

and

Joel Paul Vautour

Defendant (Respondent)

J. Sebastian Winny, for the appellant

W. H. Peter Madorin, Q.C., for the respondent

Heard: January 6, 2020

On appeal from the judgment of Justice James W. Sloan of
    the Superior Court of Justice, dated February 26, 2019, with reasons reported
    at 2019 ONSC 1312.

REASONS FOR DECISION

A.

Overview

[1]

The appellant appeals from the dismissal
    of her claim for adverse possession. She claims possessory title over an
    approximately eight-foot wide strip of land running between her property and
    that of her next-door neighbour, the respondent.

[2]

For the following reasons, we dismiss the
    appeal.

B.

Background

[3]

In 2005, the appellant purchased her
    property, shown as Lot 11 in the 1980 Reference Plan attached as Exhibit 4 to her
    trial affidavit. In 2011, the respondent purchased Lots 6, 7, 8, 9 and 10, which
    had been owned by the same person, Roy Stumpf, for several decades. Lots 10 and
    11 are adjacent to each other, Lot 10 being west of Lot 11.

[4]

The present dispute arose in 2012 when the
    respondent removed part of what has been referred to as a paddock or horse fence
    that was situated about 8 feet to the west of the actual boundary line between
    Lots 10 and 11, as shown in the 1980 survey produced at trial. The respondent
    replaced it with a fence located on the surveyed boundary line. It is agreed
    that the surveyed boundary line between the properties is accurately set out in
    the 1980 survey. There is no evidence either party saw the 1980 survey before
    purchasing their respective properties.

[5]

The appellant claims that the existence and
    location of the paddock fence establishes the true boundary line between the
    properties
. There is no dispute that the paddock fence has been in place
    for several decades.

[6]

The parties properties were transferred
    into the land titles system on June 16, 2003. 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:
Cantera v. Eller

(2007), 56 R.P.R. (4th) 39 (Ont. S.C.), at para. 40,
    affd 2008 ONCA 876, 74 R.P.R. (4th) 162.

[7]

As a result, to succeed in her claim for
    adverse possession, the appellant had the burden to establish that the use of the
    disputed strip by her predecessors in title was open, notorious, constant,
    continuous, peaceful and exclusive of the right of the true owner, namely, the
    respondents predecessors in title, for any ten-year period prior to June 16,
    2003, and that this use met the following well-established criteria:

i.

Actual possession for the statutory period by the appellants predecessors
    in title through whom she claims;

ii.

Such possession was with the intention of excluding from possession the
    respondents predecessor in title;

iii.

Discontinuance of possession for the statutory period by the respondents
    predecessor in title.

See:
Pepper v. Brooker
, 2017 ONCA 532, 139 O.R.
    (3d) 67, at para. 32;
Cantera
, at paras. 38, 39.

[8]

The trial judge concluded that the
    appellant failed to prove her claim for adverse possession. There was no evidence
    from her predecessors in title to establish the requisite use during the statutory
    period. Evidence was given by Shannon Deckers, the daughter of the respondents
    predecessor in title, Roy Stumpf, now deceased, but it was insufficient to
    establish such use. Moreover, evidence gleaned from the survey, and given by
    Ms. Deckers and the appellant, supported the existence of a wooden fence on the
    upper portion of the disputed strip on the actual, titled property line between
    the properties. The trial judge concluded that this trumped any inference
    that the paddock fence on the lower portion of the disputed strip established
    the true boundary between the parties properties.

C.

Analysis

[9]

The appellant submits that the trial
    judge made the following reversible errors:

i.

The trial judge incorrectly made an adverse inference against possession
    by the appellant because of the absence of evidence from her predecessors in
    title.

ii.

Inconsistent with r. 76 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, the trial judge failed to consider the affidavit evidence filed
    at the trial conducted under the Simplified Rules.

iii.

The trial judge erroneously excluded as hearsay evidence, the appellants
    testimony about the state of mind or belief of Mr. Stumpf, the respondents predecessor
    in title, concerning the location of the property boundary;

iv.

The trial judge incorrectly applied the law of adverse possession.

[10]

We do not give effect to these
    submissions.

[11]

First, we do not agree that the trial
    judge erred by making an adverse inference against the appellant because of the
    absence of evidence from her predecessors in title. The trial judge made no
    such inference. Rather, he determined that the appellant had not met her onus
    of establishing adverse possession because of the absence of cogent evidence supporting
    her claim.

[12]

Second, we see no basis for concluding
    that the trial judge failed to consider the affidavit evidence that was filed. He
    was obliged to consider the whole of the evidence. His reasons demonstrate that
    he considered the points raised in the affidavits in conjunction with the
    cross-examination, as he was required to do, and that he specifically
    referenced exhibits to those affidavits.

[13]

Third, even if the trial judge had erred
    in rejecting as hearsay evidence the appellants testimony concerning Mr. Stumpfs
    state of mind about the boundary, we do not see this error as having any
    material outcome on the trial. The appellants evidence was that Mr. Stumpf had
    never raised with her any issue about the location of the paddock fence, nor
    her asphalt driveway that encroached on his property by about six inches. This
    evidence was equivocal regarding Mr. Stumpfs state of mind and could equally
    be construed as a manifestation of neighbourly accommodation.

[14]

Finally, we see no error in the trial
    judges application of the doctrine of adverse possession.

[15]

We disagree with the appellants
    submission that the trial judge was required to conclude that the paddock fence
    established the correct boundary and was intended to exclude the true owner. While
    fences can provide powerful evidence giving rise to such an inference, such a
    presumption is not mandatory:
Sammut v. Doheny
, 2019 ONCA 693, at para. 3.

[16]

In this case, the evidence concerning the
    purpose and treatment of the paddock fence was at best ambiguous. While Ms.
    Deckers testified that the paddock fence had been in place since her childhood
    and that her father repaired the paddock fence, she did not know who first constructed
    it or why it was built. She indicated that it served as an enclosure for the animals
    that roamed freely in the paddock and that it prevented them from going onto
    Lot 11. There was no clear or direct evidence that the parties predecessors in
    title treated the paddock fence as the boundary line. The appellant did not give
    evidence that Mr. Stumpf agreed that the paddock fence constituted the boundary
    line. Ms. Deckers confirmed in cross-examination that she had never discussed
    property lines with her father. Moreover, the southerly continuation of the paddock
    fence into Lot 7, as described by Ms. Deckers and as shown on the 1980 Reference
    Plan, supports the characterization of the paddock fence as an enclosure of a
    paddock within the entirety of the respondents five lot boundaries, rather
    than simply as a boundary line between the parties respective properties, Lots
    10 and 11.

[17]

Moreover, the evidence supported the
    existence of two fences  the paddock fence and another wooden fence located at
    the upper portion of the actual boundary line between Lots 10 and 11 (noted in
    handwriting on the 1980 survey as wood fence built by neighbour). The appellant
    confirmed the existence of a pressure-treated slat five- or six-foot high wooden
    fence that has been in place since prior to her purchase. Ms. Deckers had no
    recollection of the wooden fence described by the appellant but recalled that
    there was a fence that ran along the same upper stretch of the actual boundary
    line between Lots 10 and 11. As a result, it was open to the trial judge to
    conclude that the wooden fence displaced any inference that the paddock fence
    constituted and was treated as the boundary line between Lots 10 and 11.

[18]

Further, the trial judge was entitled to
    conclude that the absence of evidence from the appellants predecessors in
    title or any other evidence that would prove the requisite use of adverse
    possession for the statutory period was fatal to the appellants claim. Neither
    party had owned their properties prior to their conversion under the land titles
    system nor did either party have any personal knowledge of the use of the strip
    by their respective predecessors in title. It was also open to the trial judge
    to conclude that Ms. Deckers evidence was insufficient to establish the appellants
    claim for adverse possession. She was unable to adequately attest to the
    regular use that the appellants predecessors in title made of the disputed
    strip, their intentions with respect to the strip, or to her fathers view of such
    use or where the boundary line was located.

[19]

Notably, there was no evidence that the
    respondents predecessors in title were effectively excluded from the disputed
    strip for any ten-year period. There was no evidence that the appellant or any
    of her predecessors in title took any such exclusory steps. Rather, as Ms.
    Deckers confirmed, in order to repair the [paddock] fence [her father] would
    have to work on either side of the fence.
It is well established that
    the true owner of the disputed property need not demonstrate the same continuous
    use that the adverse claimant must show. The true owner is in constructive
    possession of the entire property even when in actual possession of only a part
    of it. As such, [f]airly trivial acts of dominion, such as the paddock fence repairs
    carried out by Mr. Stumpf as described by Ms. Deckers, may demonstrate that the
    true owner has not been excluded:
Barbour v. Bailey
,
2016 ONCA
    98, 66 R.P.R. (5th) 173, at para. 45;
Fletcher v. Storoschuk et al.
(1981), 35 O.R. (2d) 722 (C.A.), at p. 725.

[20]

Finally, we do not accept that the trial
    judges misstatement of the relevant statutory period as being from 1993 to
    2003 was material to the outcome because there was no cogent evidence to establish
    any of the requisite elements of adverse possession for any ten-year period prior
    to 2003.

D.

Conclusion

[21]

For these reasons, we dismiss the appeal.

[22]

The respondent is entitled to his partial
    indemnity costs of the appeal in the agreed upon amount of $11,000, inclusive
    of disbursements and applicable taxes.

L.B. Roberts J.A.

David M. Paciocco J.A.

A. Harvison Young J.A.


