



COURT OF APPEAL FOR ONTARIO

CITATION: Waterstone Properties Corporation v. Caledon
    (Town),

2017 ONCA 623

DATE: 20170801

DOCKET: C62685 and C62686

Hourigan, Benotto and Roberts JJ.A.

BETWEEN

Waterstone Properties Corporation and Wyndcliffe
Developments Inc.

Applicants
(Appellants)

and

The Corporation of the Town of Caledon

Respondent
(Respondent on Appeal)

and

BETWEEN

The Corporation of the Town of Caledon

Applicant
(Respondent on Appeal)

and

Waterstone Properties Corporation and Wyndcliffe
Developments Inc.

Respondents
(Appellants on Appeal)

Milton A. Davis and Ronald D. Davis, for the appellants

Signe Leisk and Michael Mahoney, for the respondent

Heard: May 24, 2017

On appeal from the orders of Justice Robert F. Goldstein
    of the Superior Court of Justice, dated August 26, 2016, with reasons reported
    at
2016 ONSC 5394
.

Roberts J.A.:

A.

Overview

[1]

The
    appellants appeal from the dismissal of their application and the granting of
    the respondents application for a declaration that the respondent is the
    beneficial and legal owner of a 2.8-acre park known as the Kingsview Parkette
    (the Parkette), which is located in the Town of Caledon (the Town).

[2]

The appellant,
Waterstone Properties
    Corporation (Waterstone), and its predecessors in title are related companies,
    and held paper title to the Parkette.  They are in the business of land
    development.  In 1972 and again in 1973, members of this group of companies
    entered into subdivision agreements with the Town.  Among other terms, the
    subdivision agreements provided that the Parkette would be deeded to the Town
    for use as a park.

[3]

While
    the Parkette was never formally transferred to or registered on title in the
    Towns name, there is no dispute that, since 1974, the Town has had possession
    of the Parkette and that, since 1977 or 1979, the Town has used and operated
    the Parkette as a public park.

[4]

In
    1995, the original owner of the Parkette, Sorrento Limited Partnership
    (Sorrento), another related company, demanded that the Town return the
    Parkette and release any claim that it had to it.  Sorrento relied on the
    re-conveyance provisions under the 1972 subdivision agreement.  The Town
    refused to do so, maintaining that the 1973 subdivision agreement superseded
    the 1972 subdivision agreement.

[5]

On
    March 26, 1999, the Parkette was administratively converted into the Land
    Titles system in the name of Great Georgian Realty Group (Great Georgian) as
    owner.

[6]

On May
    7, 2013, the Parkette was transferred into the name of the appellant, Waterstone.

[7]

On
    September 17, 2014, in an attempt to resolve the matter, the Town offered to
    purchase the Parkette.  The Town subsequently changed its position.  On May 8,
    2015, the Town asserted outright ownership of the Parkette and demanded a deed
    for nil consideration.

[8]

The
    appellants and the Town then commenced separate applications, each seeking a
    declaration of ownership of the Parkette.

[9]

The
    application judge dismissed the appellants application, declared the Town the
    legal and beneficial owner of the Parkette, and made an order directing the Land
    Registrar to correct the parcel register to reflect the Towns ownership, on
    the following bases:

i.

the 1973 subdivision agreement superseded the
    1972 subdivision agreement with respect to the conveyance of the Parkette; and
    the inclusion of the conveyance of the Parkette in the 1973 subdivision
    agreement was not a mistake;

ii.

the 1973 subdivision agreement created a
    constructive trust in favour of the Town as beneficial owner of the Parkette;

iii.

the administrative transfer of the Parkette into
    the Land Titles system in 1999 did not extinguish the Towns beneficial
    ownership of the Parkette;

iv.

in the alternative, the Town had acquired
    ownership of the Parkette by application of the doctrines of adverse possession
    and dedication and acceptance.

B.

Issues

[10]

The appellants have raised
    numerous grounds of appeal.  However, for the purpose of disposing of this
    appeal, it is necessary to consider only the following:

1.
Did the application judge err in determining that the 1973 subdivision
    agreement superseded the 1972 subdivision agreement with respect to the provisions
    governing the conveyance of the Parkette to the Town, including that the conveyance
    of the Parkette in the 1973 subdivision agreement was not a mistake?

2.
Did the administrative transfer of the Parkette into the Land
    Titles system in 1999 extinguish the Towns beneficial ownership of the
    Parkette?

3.  Is any claim that the Town may have to the
    Parkette statute-barred under ss. 4 or 5 of the
Real Property
    Limitations Act
?

4.  Did the application judge err in determining
    that the Parkette was conveyed to the Town in accordance with the doctrine of
    dedication and acceptance?

[11]

For the reasons that
    follow, I am of the view that the application judge did not err in his
    determination of the above issues, and I would dismiss the appeal.

C.

Analysis

(1)

Did the 1973
    subdivision agreement supersede the 1972 subdivision agreement with respect to
    the Parkette?

[12]

In 1972, Sorrento and
    other related companies entered into a subdivision agreement with the Town with
    respect to land located in Plans 870, 887 and 930.  Schedule F of the 1972 subdivision
    agreement provided that the Parkette would be conveyed to the Town for use as
    parkland.  Under the 1972 subdivision agreement, the Town could be required to
    re-convey the Parkette if the following circumstances were met:  land to the
    north of the Parkette was developed; and another area of parkland was deeded to
    the Town.

[13]

The 1972 subdivision agreement
    was registered on the parcels of land to be developed in Plans 870, 887 and
    930, but not on the Parkette, which is located in Plan 990.  There is no
    dispute that the subdivision, which was the subject of the 1972 subdivision
    agreement, was developed but that title for the Parkette was not conveyed to
    the Town.

[14]

In March 1973, Sorrento
    transferred the land in Plan 990 to Great Georgian, a partnership that included
    Sorrento.  Subsequent to this transfer, in December 1973, Great Georgian
    entered into a subdivision agreement with the Town with respect to land
    situated in Plans 994 and 990.  The 1973 subdivision agreement also provided
    for the conveyance of the Parkette to the Town.  However, the agreement did not
    provide that the Town could be required to re-convey the Parkette.  The 1973
    subdivision agreement was registered on the title to the parcels of land to be
    developed in Plans 994 and 990, including the Parkette.

[15]

The appellants acknowledge
    the contradiction between the 1972 and 1973 subdivision agreements regarding
    the terms about the conveyance of the Parkette.  They submit that the inclusion
    of the Parkette in the lands to be conveyed to the Town in the 1973 subdivision
    agreement was a mistake.  According to the appellants, the application judge
    erred in failing to find that the 1972 subdivision agreement should prevail
    over the 1973 subdivision agreement.  They argue that the 1972 re-conveyance
    provisions in relation to the Parkette are still in force and can be invoked by
    the appellants to require the Town to re-convey the Parkette.

[16]

I disagree.

[17]

The application judge held
    that the 1972 and 1973 subdivision agreements were clear and unambiguous.  In
    particular, he found that the 1973 subdivision agreement plainly did not
    include a re-conveyance provision, which was not in dispute.  He rejected the
    appellants submission and evidence that the inclusion of the Parkette in the
    1973 agreement was an error.  These conclusions were open to him on the evidentiary
    record before him.

[18]

The application judges
    interpretation of the meaning of the 1972 and 1973 subdivision agreements is
    subject to deference; absent extricable error, this court cannot intervene:
Sattva Capital Corp. v. Creston Moly
    Corp.
,
2014 SCC 53
, [2014]
    2 S.C.R. 633, at paras. 50-55.  I see no error and therefore no basis to
    interfere with the application judges interpretation of the subdivision
    agreements.

[19]

Accordingly, I would
    dismiss this ground of appeal.

(2)

Did the administrative conveyance of the
    Parkette into Land Titles extinguish the Towns equitable interest?

[20]

That the 1973 subdivision agreement
    prevails with respect to the conveyance of the Parkette to the Town also disposes
    of the appellants argument that the administrative conveyance of the Parkette
    into Land Titles extinguished the Towns interest in the Parkette.  The
    appellants arguments depend on the enforceability of the re-conveyance clause
    under the 1972 subdivision agreement, which the application judge determined
    was superseded by the terms of the 1973 subdivision agreement.  By virtue of those
    conveyance provisions, the Town acquired a beneficial interest in the Parkette
    of which the appellants had actual notice.

[21]

Under the 1973 subdivision agreement,
    title to the Parkette should have been transferred to the Town:  the Town had
    performed everything it was required to do under the agreement and the
    agreement was fully implemented.  Indeed, there is no dispute that Sorrento
    delivered the deed to the Parkette to the Town in December 1973. That the deed
    was subsequently lost and title was mistakenly not registered in the Towns
    name does not affect the Towns equitable interest in the Parkette.

[22]

The appellants argue that
    the administrative conveyance of the Parkette into Land Titles extinguished any
    interest that the Town may have had in the Parkette.  The difficulty with the
    appellants argument is that it ignores the uncontroverted fact that they and
    their predecessors in title had actual notice of the Towns equitable interest
    in the Parkette.

[23]

It is well-established that the
Land Titles Act
has not abolished the equitable
    doctrine of actual notice.

[24]

In rejecting the argument that the
Land Titles Act
in Ontario abrogated the principle
    of actual notice, Spence J. in
United Trust Co. v. Dominion Stores Ltd. et al
, [1977] 2 S.C.R. 915, at p. 952,
    stated for the majority:

However, in Ontario, only a few years after the enactment of
    the
Land Titles Act
, the courts have expressed a disinclination to
    imply such an extinction of the doctrine of actual notice. There is no doubt
    that such doctrine as to all contractual relations and particularly the law of
    real property has been firmly based in our laws since the beginning of equity.
    It was the view of those courts, and it is my view, that such a cardinal
    principle of property law cannot be considered to have been abrogated unless
    the legislative enactment is in the clearest and most unequivocal of terms.

[25]

It is thus clear that in Ontario the
    doctrine of actual notice is applicable even if the lands in question are in
    the Land Titles system.

[26]


In consequence, as a result of their having
    actual notice, notwithstanding that the appellants subsequently disputed the
    Towns interest, the administrative conveyance of the Parkette into the Land
    Titles system was subject to the Towns interest:
United Trust v. Dominion Stores et al
.

[27]

Accordingly, I would dismiss this
    ground of appeal.

(3)

Is any claim that the
    Town may have to the Parkette statute-barred under ss. 4 or 5 of the
Real Property Limitations Act
?

[28]

The appellants submit that
    any claim under the 1973 subdivision agreement, or any other claim that the
    Town may have had in relation to the Parkette, was extinguished well before the
    Town commenced its present application in 2015.  Specifically, the appellants
    argue that the Towns claim was subject to the ten-year limitation period under
    s. 4 of the
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15 (
RPLA
).

[29]

According to the
    appellants submissions, the limitation period with respect to the Towns claim
    began to run, at the earliest, shortly after the completion of the 1973
    subdivision agreement, when the Town should have realized that the Parkette had
    not been conveyed to it, or, at the latest, in 1995, when Sorrento demanded
    re-conveyance of and asserted ownership over the Parkette.  As a result, the
    Towns claim is statute-barred.
[1]

[30]

For the reasons that
    follow, I would reject this ground of appeal.

[31]

I agree that the Towns claim
    to the Parkette is subject to the ten-year limitation period under s. 4 of the
RPLA
.  Section 4 creates a ten-year
    limitation period for an action to recover land.  It provides as follows:

No person shall
make an entry or distress, or
bring an action to recover any land
or
    rent,
but within ten years next after the time at which the right
to
    make such entry or distress, or
to bring such action, first accrued
to
    some person through whom the person making or bringing it claims, or if the
    right did not accrue to any person through whom that person claims, then within
    ten years next after the time at which the right to make such entry or
    distress, or to bring such action, first accrued
to the person making or
    bringing it
.  [Emphasis added.]

[32]

The words action to
    recover any land in s. 4 of the
RPLA

are not limited to claims for possession of land or to
    regain something a plaintiff has lost.  Rather, to recover any land means
    simply to obtain any land by judgment of the Court and thus these words also
    encompass claims for a declaration in respect of land and claims to the
    ownership of land advanced by way of resulting or constructive trust:
Hartman Estate v. Hartfam Holdings
    Ltd.
,
    [2006] O.J. No. 69, at para. 56;
McConnell v. Huxtable
, 2014 ONCA 86, 118 O.R. (3d) 561, at
    paras. 38-39.

[33]

However, I am not
    persuaded that the ten-year limitation period applicable to the Towns claim to
    the Parkette ever started to run, as provided for under s. 5(1) of the
RPLA
.  Section 5(1) reads as follows:

5(1)
Where the person claiming such land
or rent, or some person through whom that person claims,
has, in respect of
    the estate or interest claimed, been in possession
or in receipt of the
    profits
of the land
, or in respect of the rent,
and has, while
    entitled thereto, been dispossessed, or has discontinued such possession
or
    receipt,
the right to
make an entry or distress or
bring an action to
    recover the land shall be deemed to have first accrued at the time of the
    dispossession or discontinuance of possession
, or at the last time at which
    any such profits or rents were so received.   [Emphasis added.]

[34]

Under s. 5(1) of the
RPLA
, possession can operate to postpone
    the commencement of the limitation period:  if the claimant has been in
    possession of the land, s. 5(1) postpones the commencement of the limitation
    period to the time of dispossession or discontinuance:
Hartman
, at para. 34.  Here, there is no
    evidence that the Town was ever dispossessed or discontinued in its possession
    of the Parkette.

[35]

On the contrary, it is
    common ground that the Town has been in continuous physical possession of the
    Parkette since 1974.  Although there was evidence of various discussions
    between the Town and the appellants concerning their respective claims of ownership,
    the Town never returned possession of the Parkette to the appellants.  Indeed,
    the Towns refusal to do so prompted the commencement of Sorrentos application
    in 1997 and then ultimately culminated in the present proceedings.

[36]

The appellants submit that
    s. 5(1) of the
RPLA

has no application
    to the present case because the conditions precedent contained in that
    provision are not met.  Specifically, they submit, the Town was never in
    possession of the Parkette while entitled thereto or at all because the Town
    had no right to possession other than with the appellants consent.

[37]

I disagree.  The
    appellants argument again rests on the operation of the re-conveyance clause
    under the 1972 subdivision agreement.  For the reasons already stated, I agree with
    the application judges conclusion that the unconditional conveyance of the
    Parkette to the Town under the 1973 subdivision agreement supersedes the
    re-conveyance clause under the 1972 subdivision agreement.  There is no dispute
    that the 1973 subdivision agreement was implemented.  As a result, as
    beneficial owner, the Town has been and remains entitled to possession of the
    Parkette.  Further, as explained above, the Towns possession of the Parkette has
    not been interfered with or discontinued.

[38]

Accordingly, the Towns
    claim to the Parkette is not statute-barred.

(4)

Does the doctrine of
    dedication and acceptance apply?

[39]

As an alternative
    conclusion, the application judge determined that the Town is entitled to
    ownership of the Parkette by application of the doctrine of dedication and
    acceptance.  In particular, the application judge found that the Parkette had
    been dedicated by its owners, and accepted and developed by the Town, for
    public use as a park.

[40]

The appellants do not
    dispute that, for almost 40 years, the public has been using the Parkette as a
    park with no interference or obstruction.  However, the appellants submit that
    the application judge erred in determining that the doctrine of dedication and
    acceptance applies because of the re-conveyance provision of the 1972
    agreement.  They argue that this provision establishes that there was no
    intention to dedicate the Parkette as a public park.

[41]

I would reject this
    submission.

[42]

For the reasons already
    noted, I would uphold the application judges determination that the 1973
    agreement superseded the 1972 agreement in relation to the conveyance of the
    Parkette.

[43]

The appellants concede, in
    para. 128 of their factum, that if the 1972 agreement does not apply, the 1973
    agreement could be read to show an intention to dedicate the Parkette to the
    Town.

[44]

I agree.

[45]

In paragraphs 95 to 99 of
    his reasons, the application judge correctly cites the leading authorities on
    the doctrine of dedication and acceptance with respect to public recreational
    land.  He properly sets out the two criteria that must be shown in order for
    the doctrine to apply, namely, that there was an actual intention to dedicate
    the land by the owner; and, that it must appear that the intention was carried
    out in that the land was open to the public for use, and the public accepted
    it:  see
Gibbs v.
    Grand Bend (Village)
(1995), 26 O.R. (3d) 644 (C.A.);
Wright v. Long Branch (Village)
, [1959] S.C.R. 418,
    citing with approval at p. 423,
Re Lorne Park Road
(1914), 33 O.L.R. 51 (C.A.).

[46]

In his reasons, the
    application judge made numerous findings of fact supporting his conclusion
    that, despite the Parkette never having been deeded to the Town, Waterstones
    predecessors had dedicated the Parkette as parkland for public use.   These
    findings include: neither Sorrento nor Great Georgian objected to the land
    being zoned for recreational purposes; Great Georgian registered the plan of
    subdivision for Plan 990 on title showing the Parkette as parkland; and neither
    Great Georgian nor Sorrento nor any other successor in title asserted a right
    to the Parkette until at least 1995.

[47]

The application judge
    found that nearly four decades of public use of the Parkette as a park
    constituted acceptance by the public.  Since 1977, the Town has consistently been
    responsible for maintaining the land as a park available for public use, for
    instance, by the installation of playground equipment that the application
    judge found was clearly listed in the park inventory.  The record also suggests
    the owner paid no taxes on the property for these decades, save for in 2013 and
    2014 as a result of assessments that the Town indicates arose automatically
    from the 2013 transfer of title to Waterstone.  Taken together, these facts distinguish
    this case from this courts decision in
Cooks Road Maintenance Assn. v. Crowhill Estates
(2001), 196 D.L.R. (4th)
    35 (Ont. C.A.).

[48]

Citing the reasons of
    Brooke J.A. in
Gibbs
, at p. 680, the
    application judge observed that [o]pen and unobstructed use by the public for
    a substantial period of time is, as a rule, the evidence from which a trier of
    fact may infer both dedication and acceptance and that [o]nce a dedication is
    complete, neither the owners nor their successors in title could revoke it. See
    also
Lehtiniemi v.
    Mattawan (Municipality)
, 2016 ONCA 940, [2016] O.J. No. 6473, at para. 19.

[49]

These findings were open
    to the application judge on the record before him.  I see no error in the
    application judges conclusion that the doctrine of dedication and acceptance
    applies and that the Town is therefore entitled to ownership of the Parkette.

(5)

Other issues

[50]

Given my proposed
    disposition of the above issues, it is not necessary to deal with the other
    grounds of appeal.

D.

Disposition

[51]

Accordingly, I would
    dismiss the appeal.

[52]

As agreed, the respondent,
    as the successful party on appeal, is entitled to costs in the amount of $42,000,
    inclusive of disbursements and HST.

Released: August 1, 2017

L.B. Roberts J.A.

I agree C.W. Hourigan J.A.

I agree M.L. Benotto J.A.





[1]
It does not appear that this specific argument was ever advanced before the
    application judge.  Rather, as indicated in the application judges reasons,
    the limitation period argument was limited to the issue of adverse possession. 
    Ordinarily, this court would not entertain an argument raised for the first
    time on appeal.  However, the respondent Town made no objection to it and
    provided a response.  Moreover, although minimal, there is a sufficient
    evidentiary foundation to allow this court to dispose of this ground of appeal.


