



COURT OF APPEAL FOR ONTARIO

CITATION: Loken v. St. Peter's Court Apartments, 2018 ONCA
    501

DATE: 20180530

DOCKET: C64606

Pepall, van Rensburg and Paciocco JJ.A.

BETWEEN

Johanne Mainville Loken

Applicant
(Appellant)

and

St. Peters Court Apartments

Respondent
(Respondent in Appeal)

James Morton, for the appellant

Jason Schmidt, for the respondent

Heard and released orally: May 25, 2018

On appeal from the
    judgment of Justice M. Lack of the Superior Court of Justice, dated October 27,
    2017.

REASONS FOR
    DECISION

[1]

This is an appeal of the dismissal of a claim
    for adverse possession.

[2]

The appellant says that the application judge
    erred when she departed from the agreed facts in concluding that adverse
    possession had not been made out, and in making findings of fact that were
    contrary to the agreed facts.

[3]

The appellant says that the application judges
    finding that the respondent had not been excluded from the disputed property is
    inconsistent with the agreed fact that the hedge did not allow access to the
    respondents property and effectively excluded uninvited persons and
    trespassers.

[4]

We disagree. The question here was whether the
    respondent was excluded from its intended or ordinary use of the property in
    dispute. The admitted fact relied on by the appellant simply states that the
    area enclosed by the hedge effectively excluded uninvited persons and
    trespassers. This is not inconsistent with the application judges finding. In
    this regard, she found that the respondent had not been excluded from the
    disputed property because its use as a hedge was consistent with the use the
    registered owner intended.

[5]

The findings made by the application judge,
    which were based on the agreed facts, affidavits and the transcript of the
    cross-examination of the appellant, fully supported the conclusion that the
    claim for adverse possession had not been established.

[6]

The appeal is therefore dismissed. Costs to the
    respondent fixed at $9,000, inclusive of disbursements and HST.

S.E.
    Pepall J.A.

K.
    van Rensburg J.A.

David
    M. Paciocco J.A.


