



COURT OF APPEAL FOR ONTARIO

CITATION: Sammut v. Doheny, 2019 ONCA 693

DATE: 20190905

DOCKET: C65910

Paciocco, Harvison Young and Zarnett JJ.A.

BETWEEN

Luciano Sammut

Applicant (Appellant)

and

Allan James Doheny

Respondent

Gregory Sidlofsky and Peter Askew, for Luciano Sammut

Gosia Bawolska and Kara Denny, for Allan James Doheny

Heard and released orally: August 15, 2019

On appeal from the order of Justice Sandra Nishikawa of
    the Superior Court of Justice, dated August 21, 2018.

REASONS FOR DECISION

[1]

It is not contested that between December 1992 and December 2002 a fence
    ran between 300 Pacific Avenue and 298 Pacific Avenue in the City of Toronto.
    The fence was not on the lot line. It enclosed a small but now significant
    strip of land belonging to 298 Pacific Avenue on the 300 Pacific Avenue side of
    the fence. Ms. Ruta Cube, who grew up at 298 Pacific Avenue, always thought the
    fence was the lot line. A dispute has now arisen over ownership of this strip
    of land.  Relying on the fence and Ms. Cubes evidence, the current owner of
    300 Pacific Avenue, Luciano Sammut, brought an application for a declaration
    that he is entitled to ownership and exclusive use of the disputed strip of
    land. His claim is based on the adverse possession that he says existed during
    the relevant statutory period, December 1992 and December 2002.

[2]

Mr. Sammuts application was not successful. The application judge found
    that Mr. Sammut had not discharged his onus of proving adverse possession.
    Although the application judge was satisfied that actual possession of the
    strip of land by Mr. Sammuts predecessors in title was established, their
    intention to exclude the true owner was not demonstrated, nor had effective
    exclusion from the disputed strip of land been established. Mr. Sammut now
    appeals that ruling. We would dismiss his appeal.

[3]

We do not agree that the application judge misapplied the test for
    adverse possession. We accept the clear and indisputable fact that disputed
    land enclosed behind a fence can be strong evidence of an intention by the
    possessor to exclude the true owner, and that such evidence may give rise to
    the presumption that the possessor intended to exclude the true owner. However,
    as Mr. Sammut concedes, that presumption is not mandatory. It permits, but does
    not require, a judge to draw the inference of intention. The judge will make
    the ultimate determination of whether to do so on the whole of the evidence. In
    our view, the application judge was entitled to refrain from doing so. She was
    correct in noting that Ms. Cube did not own the land at the relevant time, or
    even know who put up the fence, and that Ms. Cube did not claim in her
    affidavit to have knowledge of the intentions of the owners throughout the
    relevant period. Absent any evidence from the owners at the time, the application
    judge was not persuaded. That was her decision to make.

[4]

In our view, the application judge made this decision without committing
    any errors of law or principle. We do not read the application judge as having
    stated inaccurate propositions of law relating to the kind of evidence that is
    required to succeed in an adverse possession claim. She was not saying, for
    example, that as a matter of law there must be evidence from predecessors in
    title to prove intention. Instead, she was observing accurately the difficulty
    that the absence of such evidence presents in adverse possession claims, and
    how such evidence
may
be necessary to prove intention. Nor was she
    citing
Penwest Development Corp. v. Youthdale Ltd.
, 46 R.P.R. (4
th
)
    124 (Ont. S.C.) as authority for a legal rule that it is not permissible to
    draw inferences from a fence without evidence of the circumstances surrounding
    the building of the fence. She cited the
Penwest
case as an
    illustration of how uncertainty about such circumstances can undermine the
    circumstantial force of the evidence on the issue of intention.

[5]

Nor do we accept that the application judge engaged in improper speculation
    by positing scenarios in which a fence would not signal an intention to
    exclude. It is natural and appropriate in considering whether a fact has been
    proven to consider alternative factual scenarios that have not been ruled out
    by the evidence.

[6]

Nor did the application judge err in concluding that she could not be
    satisfied that this was a case of mutual or unilateral mistake. She had no
    evidence from the parties on which she was compelled to draw that inference,
    and it was open to her not to.

[7]

It is not for us to interfere with the factual decision arrived at by
    the application judge. The appeal is dismissed. Costs are payable to Mr. Doheny
    in the amount of $9,876.91, inclusive of disbursements and HST.


David M. Paciocco J.A.
Harvison Young J.A.
B. Zarnett J.A.


