



COURT OF APPEAL FOR ONTARIO

CITATION: Friday Harbour
    Village Inc. v. 2138746 Ontario Inc., 2018 ONCA 1047

DATE: 20181219

DOCKET: C64844

Doherty, Miller and Paciocco JJ.A.

BETWEEN

Friday Harbour Village Inc.

Plaintiff/Defendant by
    counterclaim

(Respondent/Appellant
    by cross-appeal)

and

2138746 Ontario Inc.

Defendant/Plaintiff
    by counterclaim

(Appellant/Respondent by
    cross-appeal)

AND BETWEEN

2138746 Ontario Inc.

Objector/Appellant

(Appellant/Respondent
    by cross-appeal)

and

Friday Harbour Village Inc.

Applicant/Respondent

(Respondent/Appellant
    by cross-appeal)

Patrick Flaherty and Brendan Brammall, for the appellant
    2138746 Ontario Inc.

Ronald Slaght, Kelly Hayden and Jeffrey Shankman, for the
    respondent Friday Harbour Village Inc.

Heard: December 11, 2018

On appeal from the judgment of Justice Margaret Eberhard
    of the Superior Court of Justice, dated December 15, 2017, with reasons
    reported at 2017 ONSC 7444, and from the costs judgment of Eberhard J., dated
    April 5, 2018, with reasons reported at 2018 ONSC 2104.

Paciocco J.A.:

[1]

2138746 Ontario Inc. (213) is the registered owner of Block C on Plan
    1021. Block C is a strip of land, informally divided into two sections, the
    Western Strip and the Marina Strip. The Marina Strip stands between parcels of
    land owned by Friday Harbour Village Inc. (Friday Harbour) used for a marina and
    resort business on Lake Simcoe.

[2]

213 and Friday Harbour are engaged in a dispute relating to Block C. That
    dispute was brought before a judge (the trial judge). She heard together an
    appeal by way of a trial
de novo
by 213 of a decision of the Deputy
    Director of Titles, and an action brought by Friday Harbour concerning the
    property.

[3]

213 appeals the trial judges decision that Friday Harbour has acquired legal
    and beneficial ownership of the Marina Strip by adverse possession, has not
    abandoned its titled right of way over the Marina Strip, has a prescriptive
    easement over the Marina Strip, and that no action in trespass lies against
    Friday Harbour for its occupation and use of the Marina Strip.

[4]

Friday Harbour is cross-appealing a finding that its right of way over
    the Western Strip has been abandoned.

[5]

213 also seeks leave to appeal the costs order made by the trial judge.

[6]

I would dismiss all of the appeals.

[7]

I see no errors with the trial judges finding of adverse possession over
    the Marina Strip.

[8]

The trial judge recognized there is a heavier onus on a party claiming
    adverse possession of property over which it also has a right of way. The party
    must prove that its use of the property was not simply an exercise of the right
    of way. She found, however, that the evidence demonstrated that the between 1963
    and 1975, and since then, Friday Harbours predecessors in title exercised such
    complete dominion, control and possession over the Marina Strip that they
    effectively, and with intention, excluded 213 and 213s predecessors in title
    from use of the Marina Strip.

[9]

I do not agree with 213s submission that the trial judge misapprehended
    the evidence by failing to appreciate that the true owner was able to use the Marina
    Strip during the period of adverse possession. She was entitled on the evidence
    before her to conclude that the titled owner only used the Marina Strip in the
    same capacity as other marina patrons, and that the titled owner was excluded
qua
owner. She committed no legal errors in making these findings.

[10]

I
    would also reject 213s submission that the evidence is incapable of supporting
    the trial judges conclusion that there was an impassable barrier across Block
    C, depriving the titled owner of access to the Marina Strip. Ample evidence
    supports this finding, including the gate that had been constructed across
    Block C, the adjoining fence, and the testimony of Mr. Williams that the whole
    gate area was overgrown and it would be tough to get through the vegetation.

[11]

The
    other means of access to the Marina Strip relied upon by 213 to oppose the
    adverse possession finding are irrelevant. 213 cannot rely upon means of access
    that would have required trespassing over other Friday Harbour land to defeat Friday
    Harbours adverse possession claim. Nor does the fact that during the relevant
    time it was possible to climb over the gate or use water access defeat the
    claim. What is relevant is whether the titled owner was able to access the
    disputed land in the ordinary manner:
Marshall v. Taylor
, [1895] 1 Ch.
    641 (Eng. C.A.), at p. 645.

[12]

In
    my view, uncertainty over who had originally installed the gate across Block C does
    not undermine the trial judges conclusions:
Raso v. Lonergan
(1996), 13
    O.T.C. 230 (Gen. Div.), at para. 5, affd (1998), 114 O.A.C. 335 (C.A.). On the
    evidence, at all relevant times all parties knew about and acquiesced to the impassable
    barrier that prevented 213s predecessors in title from accessing the Marina
    Strip.

[13]

Nor
    do I accept that the trial judge erred by finding adverse possession without
    making a finding about the intended use of the Marina Strip by 213s
    predecessors in title. The trial judge was entitled to find that the dominion
    exercised by Friday Harbours predecessors would, by its nature, defeat any use
    that a titled owner could make of the land. It necessarily follows from this
    finding that whatever uses 213s predecessors in title might possibly have
    intended would be defeated.

[14]

In
    any event, there is merit in Friday Harbours submission that given the right
    of way, the only permissible use the titled owner could make of the Marina
    Strip would be to gain access to the other lot owners land and the water, and
    that this use was entirely defeated by the impassable barrier preventing access
    to the Marina Strip.

[15]

Finally,
    I do not agree that the trial judge erred by not treating title documents
    executed by Friday Harbour or its predecessors as acknowledgements of title
    defeating the adverse possession claim. Certainly, the title documents do not constitute
    acknowledgements that deem the true owner to be in possession pursuant to
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15, s. 13. The title
    documents, which include within the descriptions of title a right of way over
    Block C, were not executed for the purpose of acknowledging the title of
    another, nor were they delivered to 213 or its predecessors as an
    acknowledgment of title:
Grygorcewicz v. Agar
, 1998 CanLII 7141 (Ont. C.A.),
    at para. 3. To the extent that the common law allows the execution of these title
    documents to be relied on as evidence inconsistent with claimed adverse
    possession, the trial judge considered this evidence and was entitled to give it
    the weight she did.

[16]

I
    would therefore deny 213s appeal from the trial judges adverse possession
    finding.

[17]

Given
    that Friday Harbour has acquired title by adverse possession, it necessarily
    follows that I would also deny the appeals from the trial judges decision that
    Friday Harbour did not abandon its right of way over the Marina Strip, was
    entitled to a prescriptive easement, and did not commit an actionable tort of
    trespass. As 213 conceded before us, these outcomes follow automatically from a
    finding of Friday Harbours acquisition of title by adverse possession.

[18]

Nor
    would I accept Friday Harbours cross-appeal from the trial judges decision
    that its right of way over the Western Strip has been abandoned. While she does
    comment on the imbalance that would arise in finding otherwise, this was not
    the basis for her decision. In my view, she was saying no more than that given
    Friday Harbours adverse possession claim over the Marina Strip, Friday Harbour
    and its predecessors cannot be found to have been exercising their right of way
    when using the Marina Strip.

[19]

Her
    conclusion that Friday Harbours right of way over the Western Strip has been
    abandoned is amply supported by evidence that Friday Harbour and its
    predecessors acquiesced for many years to the impassable barrier that prevented
    them from accessing and using the right of way over the Western Strip, and by the
    decision to build an alternative roadway. I would not allow the cross-appeal.

[20]

Finally,
    I would not grant leave to 213 to appeal the costs order. The trial judges
    conclusion that Friday Harbour emphatically won, and her interpretation of the
    scope of the offer to settle, were hers to make. Nor do I accept 213s
    submission that even though it asked for almost as much in costs as were
    ordered against it, the stakes were higher for 213, making the costs claimed by
    Friday Harbour unfair and unreasonable.

[21]

This
    is not an obvious case where there are strong grounds to believe the trial
    judge erred in exercising her discretion:
Brad-Jay Investments Ltd. v.
    Village Developments Ltd.
(2006), 218 O.A.C. 315 (C.A.), at para. 21,
    leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 92; and
Feinstein v.
    Freedman
, 2014 ONCA 205, 119 O.R. (3d) 385, at para. 52.

DISPOSITION

[22]

I
    would therefore dismiss 213s appeal and deny it leave to appeal the costs
    order. For the reasons given, I would also dismiss Friday Harbours cross-appeal.

[23]

As
    agreed between the parties, I would fix costs of the appeal in favour of Friday
    Harbour in the amount of $45,000, inclusive of disbursements and HST, and fix costs
    of the cross-appeal in favour of 213 in the amount of $15,000, inclusive of
    disbursements and HST.

Released: December 19, 2018 (D.D.)

David M. Paciocco J.A.

I agree. Doherty J.A.

I agree. B.W. Miller J.A.


