



COURT OF APPEAL FOR ONTARIO

CITATION: Majewsky v. Veveris, 2018 ONCA 848

DATE: 20181024

DOCKET: C62945

Simmons, Miller and Fairburn JJ.A.

BETWEEN

Peter Majewsky

Plaintiff (Respondent)

and

Juris
    Veveris and Christina Miller-Veveris

and
    Stewart Title Guaranty Company

Defendants (
Appellants
)

Marvin J. Huberman, for the appellants

Ryan Breedon, for the respondent

Heard: September 26, 2018

On appeal from the judgment
    of Justice M.J. Donohue of the Superior Court of Justice, dated October 11,
    2016, with reasons reported at 2016 ONSC 5608.

REASONS FOR DECISION

[1]

This appeal involves a boundary dispute between neighbours. The parties
    (for convenience, parties shall include Mr. Majewskys mother), acquired
    neighbouring acreages of land near Markdale, Ontario, during the 1980's. In
    2008, the appellants, the Veverises, observed an aerial photograph that led
    them to believe their neighbour, the respondent, Mr. Majewsky (who had by then
    acquired title from his mother) was encroaching on their land. The
    encroachments were confirmed through a survey obtained later that year.

[2]

The trial judge found that the respondent had acquired possessory title
    to an area of the appellants' land on which a portion of the respondent's
    house, outbuildings and yard were situate ("the house lands"). The
    trial judge also held that the respondent was entitled to prescriptive
    easements, based on the doctrine of lost modern grant, over a portion of a
    laneway and a cedar trail that encroached on the appellants' lands.

[3]

The appellants raise multiple issues on appeal: five concerning the house
    lands, five concerning the cedar trail and one concerning the laneway.
[1]
We address these arguments in turn.
[2]

The House Lands

[4]

First, the appellants argue that the trial judge erred in finding that
    the respondent had acquired possessory title to the house lands because, they
    say, the weight of the evidence demonstrated that the respondents (or his
    mothers) possession of such lands was not adverse, but rather was with the
    permission of the appellants.

[5]

We reject this argument. The trial judge's conclusion was premised in
    large measure on a finding that, until 2008, the parties operated under the
    mutually mistaken belief that the respondent (or his mother) owned the house
    lands. Nonetheless, to rebut the claim that the respondents (or his mothers)
    occupation of the house lands was adverse, the appellants point to permission
    given to the respondent, his mother or her spouse, to do various things on their
    (the appellants) land  for example, to cut grass, walk on it, and park
    vehicles on it. However, nothing the appellants have identified gives rise to
    an inference that that the appellants gave permission to the respondent or his
    mother to occupy the house lands as if they owned it and for the purpose of
    building a permanent residence on it  which the respondents mother did in
    1993. In the result, we see no error in the trial judges finding that
    possession of the house lands was adverse.

[6]

We will address the appellants second and third arguments together as
    they are related. The appellants second argument is that the trial judge erred
    in law at para. 76 of her reasons by holding it was unnecessary that the
    respondent establish effective exclusion of the appellants from possession of
    the house lands to establish a possessory title. Their third argument is that
    the trial judge erred in failing to find they were not effectively excluded
    from the house lands.

[7]

We do not accept these arguments.

[8]

At paras. 72 and 73 of her reasons, the trial judge correctly noted the
    three elements of the test for adverse possession (actual possession, intention
    to exclude the true owner from possession and effective exclusion of the true
    owner from possession) and correctly observed that it is unnecessary to prove
    the second element, where, as here, the parties have a mutual misunderstanding
    of true ownership.

[9]

Paragraphs 74 to 77 of the trial judges reasons, which include the
    impugned finding, read as follows:

All of the evidence in this case supports that the Majewskys
    openly used, maintained, possessed, and occupied the house and yard are
    including their out-buildings. The Majewskys serviced the trailers and sheds
    with electricity. They installed a septic tank and septic bed in the yard. They
    installed a yard overhead light. They acted as the owner and possessors of the
    land as they thought they were.

The plaintiff and the defendants were under the mistaken belief
    that it was the Majewskys land until 2008.

Mr. Veveris argued that it was not completely fenced in on
    all sides to establish it was exclusive to the Majewskys. I am not satisfied
    this was necessary or required when all parties operated under the mistaken
    belief that it was Majewsky property.

I am satisfied that [Mr. Majewsky]
    has made out a claim for possessory title of the house and yard including the
    out-buildings. [Emphasis added.]

[10]

Read
    fairly, the trial judge was not saying in para. 76 of her reasons that it was
    unnecessary to prove effective exclusion of the true owner of land to establish
    a possessory title. Rather, she was saying that, in the context of this case,
    involving mutual mistake as to the ownership of the house lands  on which the
    Majewskys had established a permanent home  it was unnecessary that those
    lands be completely fenced to establish effective exclusion of the true owners.
    The Majewskys had achieved that result through the nature of their occupation
    and by virtue of the mutual mistake of the parties.

[11]

In
    our view, this finding was well supported by the evidence. The respondent, and
    before him, his mother, used the house lands as their permanent residence from
    1993 onward. As a result of mutual mistake, all parties believed the Majewskys
    owned the house lands. In our view, it was open to the trial judge to conclude
    that an inference of effective exclusion arose from the nature of the Majewskys
    use which included the erection of a permanent home and related outbuildings,
    installation of a septic tank system and customary usage of the adjacent yard;
    and that, further, that inference was not displaced by the fact of occasional
    neighbourly visits by the appellants.

[12]

The
    appellants fourth and fifth arguments are also related. The appellants fourth
    argument is that the trial judge erred in using the period 1997 to 2007 as
    sufficient for establishing adverse possession instead of focusing on the ten-year
    period immediately preceding registration of the lands in Land Titles (May 25,
    1999 to May 25, 2009). The appellants say this is significant based on their
    fifth argument: the trial judge misconstrued or ignored the evidence that, in
    2008, which was within the ten-year statutory period they say applies, the
    appellants objected to the respondent's encroachments on the appellants lands.

[13]

We
    do not accept these submissions. The appellants arguments on this issue as set
    out in their factum misinterpret the provisions of the
Real Property
    Limitations Act
, R.S.O. 1990, c. L.15, under which limitation periods are
    established for an owner to move to recover possession of land. Contrary to the
    appellants' submissions,
Sipsas v. 1299781 Ontario Inc.
,
2017
    ONCA 265, 85 R.P.R. (5th) 24, at paras. 10 and 18, stands for the proposition
    that adverse possession can be established with respect to lands registered
    under
the Land Titles Act
, R.S.O. 1990, c. L.5, by possession meeting
    the necessary requirements during
any
continuous ten-year period prior
    to registration in Land Titles.

[14]

In
    oral argument, the appellants asserted that the trial judge erred by misconstruing
    the starting date of the adverse possession claim. This was because the
    requirements for an adverse possession claim were never met due to the various
    errors they had identified. However, for the reasons we have already explained,
    we do not accept the appellants other arguments concerning the adverse
    possession claim.

[15]

Based
    on the foregoing reasons, we reject the appellants grounds of appeal
    concerning the house lands.

The Cedar Trail

[16]

As
    we have said, the appellants raise five issues in relation to the finding of a
    prescriptive easement over the cedar trail. In our view, two of those issues
    are dispositive and it is unnecessary that we address the appellants other
    issues concerning the cedar trail.

[17]

As
    their ninth argument, the appellants contend that the trial judge erred in
    finding that the harvesting and transporting of wood use on the cedar trail
    was continuous. As their tenth argument, they submit the trial judge erred in
    finding that the cedar trail conferred a benefit on the dominant tenement. In
    our view, the trial judges reasons concerning accommodation of the dominant
    tenement and continuous use cannot be sustained.

[18]

At
    para. 49 of her reasons, when addressing the laneway, the trial judge set out
    the law relating to prescriptive rights of way and correctly recognized, quoting
    from
Barbour v. Bailey
, 2016 ONCA 98, 66 R.P.R. (5th) 173, leave to
    appeal refused, [2016] S.C.C.A. No. 139, that one of the essential
    characteristics of a prescriptive easement is that it must accommodate  that
    is, be reasonably necessary to the better enjoyment of the dominant tenement.

[19]

Further,
    at paras. 52 and 53 of her reasons, the trial judge correctly relied on
Kaminskas
    v. Storm
, 2009 ONCA 318, 310 D.L.R. (4
th
) 549 for the
    proposition that to acquire a prescriptive easement whether under the doctrine
    of lost modern grant or by prescription under the
Real Property Limitations
    Act
, the claimant must demonstrate use that is continuous, uninterrupted,
    open, and peaceful for a period of 20 years.

[20]

At
    para. 86 of her reasons, the trial judge turned to the issue of the cedar
    trail. After reviewing the evidence, she returned to the law and, at para. 108,
    again quoted from
Barbour v. Bailey
, in which the court said, in
    relation to the fourth criterion for a prescriptive easement, what is
    reasonably necessary [for the better enjoyment of the dominant tenement will]
    depend on the nature of the property and the purpose of the easement. Further,
    [t]here must be a connection between the easement and the normal enjoyment of
    the dominant tenement, as opposed to a personal right belonging to the dominant
    tenement owner:
Barbour
, at para. 58 (citation omitted). Parking spaces
    or driveways are examples of uses that courts have found fulfill the criteria.
    The
Barbour
court added at para. 59 that [t]his is reinforced by the
    fact that in order to be capable of forming the subject matter of a grant (the
    third criterion listed above) easement rights
must not be ones of mere
    recreation and amusement
; the rights in issue must be of utility and
    benefit to the dominant tenement (citation omitted, emphasis added).

[21]

However,
    having set out the law correctly, the trial judge erred by failing to properly
    consider whether the continuous use she found met the criterion of
    accommodating the dominant tenement.

[22]

At
    para. 109 of the reasons, the trial judge stated:

The use to which the Cedar Trail
    was put was for both for recreation in a country property and wood-gathering.
    It was not just for amusement but also for utility and benefit to the
    Majewskys.

[23]

At
    para. 111, the trial judge said she was satisfied that the respondent, through
    his mother and her partner, had made out factually an entitlement to a
    prescriptive easement for the cedar trail and therefore the use may continue
specifically
    for the purpose of harvesting and transporting wood from the woodlot

(emphasis added). This holding implies that continuous use for the purpose
    of harvesting wood had been established during the necessary period and that
    was the right that provided utility and benefit to the dominant tenement. Yet
    at para. 101 of the reasons, the trial judge noted that the evidence disclosed
    that the respondent had used the cedar trail to harvest wood on only two
    occasions in the past and that he planned and hoped to do so in the future. In
    fact, the record supports the use of the cedar trail for harvesting wood on only
    one prior occasion along with occasional use to bring firewood to the house. One
    or even two prior uses of the cedar trail for harvesting wood and occasional
    use for gathering firewood was not sufficient to support a conclusion of
    continuous use.

[24]

At
    para. 102 of the reasons, the trial judge also found continuous use based upon recreational
    uses (hikes, walks and an annual Legion event). However, as set out in
Barbour
    v. Bailey
, such uses were personal to the Majewskys rather than of utility
    and benefit to the dominant tenement.

The Laneway

[25]

The
    appellants eleventh argument is that the trial judge erred in finding a
    prescriptive right to maintain the laneway encroachment by clearing brush,
    plowing snow and cutting grass a distance of three metres onto the appellants
    lands as there was no evidence of such maintenance on the appellants lands
    during the 20-year period. We reject this argument. The appellants do not
    contest the trial judges finding of a prescriptive right for the portion of
    the laneway that encroaches on their land. Their sole objection is the
    maintenance rights the trial judge attached to the prescriptive easement. The
    trial judge accepted the respondents evidence concerning him, his mother and
    his stepfather taking out dead trees, cutting grass and plowing snow on either
    side of the laneway. Although the respondent testified that the grass was
    trimmed three feet on either side of the laneway he also said their snowblower
    shoots the snow a good two to three metres. Based on the evidence she
    accepted, it was open to the trial judge to make the order permitting
    maintenance of the laneway.

Disposition

[26]

Based
    on the foregoing reasons, the appeal is allowed in part by setting aside the
    trial judges finding of a prescriptive easement over the cedar trail and dismissing
    the respondents claim in that respect. The appeal is otherwise dismissed.

[27]

Costs
    of the appeal are to the respondent on a partial indemnity scale fixed in the
    amount of $10,000 inclusive of disbursements and applicable taxes. If so
    advised, the appellants may make written submissions, not to exceed three
    pages, concerning the costs award below within 10 days of the release of these
    reasons; the respondent may respond within 7 days thereafter.

Janet
    Simmons J.A.

B.W.
    Miller J.A.

Fairburn
    J.A.





[1]
In oral argument, counsel for the appellants confirmed they were not pursuing
    the twelfth argument as set out in their factum.



[2]
N
o issue was raised on appeal concerning the trial judges
    interpretation of s. 5(4) of the
Real Property Limitations Act,
R.S.O.
    1990, c. L.15. As such, nothing in these reasons should be taken as commenting
    on that interpretation.


