



COURT OF APPEAL FOR ONTARIO

CITATION: Song v. MacPhee, 2019 ONCA 331

DATE: 20190424

DOCKET: C65920

Tulloch, Hourigan and Fairburn JJ.A.

BETWEEN

Kyo Jeen Song and Jung
    Min Ryu

Applicants

(Appellants)

and

Michael MacPhee and Leah Walker

Respondents

(Respondents on Appeal)

Brian Diamond, for the appellant

Paul Gemmink, for the respondent

Heard and released orally: April 23, 2019

On appeal from the
    order of Justice Pollak of the Superior Court of Justice, dated August 30, 2018.

REASONS FOR DECISION

[1]

The appellants seek to overturn the decision of the application judge
    dismissing their claim for adverse possession of a strip of land between two
    residences in the city of Toronto.

[2]

The application judge found that the appellants did not meet their onus
    to establish a claim for adverse possession.

[3]

According to the appellants, the application judge correctly articulated
    the test for adverse possession but erred in her factual findings and failed to
    properly consider all the evidence. We do not give effect to that submission.

[4]

The application judge acknowledged that at one end of the disputed strip
    of land there is a gate that was locked by the appellants predecessor in title,
    Ms. Trone. However, the application judge found that Ms. Trone recognized that
    the land in issue was owned by the respondents predecessors in title. In
    addition, the application judge found that the appellants failed to establish that
    Ms. Trone intended to exclude the respondents predecessors in title.

[5]

These were findings open to the application judge on the record. Specifically
    they were supported by the evidence of Mr. Crocker, who owned the respondents
    property, from approximately 1990 to 2008. His evidence was that he did not
    object to the gate being locked in order to provide some measure of security to
    Ms. Trone. Further, he testified that Ms. Trone granted access to the area when
    necessary to carry out a repair.

[6]

Based on the record on the application we see no basis to interfere with
    the decision of the application judge. The appeal is dismissed. Costs are to
    the respondents payable by the appellants in the amount of $5,000, inclusive of
    disbursements and HST.

M.
    Tulloch J.A.

C.W.
    Hourigan J.A.

Fairburn
    J.A.


