



COURT OF APPEAL FOR ONTARIO

CITATION: Richard v. Niagara Falls (City), 2019 ONCA 531

DATE: 20190624

DOCKET: C66372

Juriansz, van Rensburg and Paciocco JJ.A.

BETWEEN

Michael Richard

Applicant (Appellant)

and

The Corporation of the City of Niagara Falls

Respondent (Respondent)

Christopher Du Vernet and Carlin McGoogan, for the
    appellant

Michael Bordin, for the respondent

Heard: June 19, 2019

On appeal from the order of Justice Joseph R. Henderson
    of the Superior Court of Justice, dated December 10, 2018, with reasons
    reported at 2018 ONSC 7389.

REASONS FOR DECISION

[1]

Mr. Richard brought an application seeking a declaration that he is the
    legal owner by way of adverse possession of certain land belonging to the City
    of Niagara Falls (the City). He also requested a vesting order.

[2]

That disputed land was formerly part of a railway corridor contiguous to
    Mr. Richards backyard.

[3]

The application judge denied the application after finding that Mr.
    Richard had failed to provide sufficient evidence to meet the third branch of
    the adverse possession test, which required him to prove that the City had
    effectively been excluded from possession of the disputed land in the ten years
    immediately prior to July 19, 1999, when the land was first registered in the
    Land Titles system.

[4]

Mr. Richard appeals that decision. He contends that the application
    judge erred in law by applying an improper and unduly stringent standard on the
    third element of the adverse possession test, and that the application judge
    committed palpable and overriding error by failing to give effect to all of the
    evidence on that issue. The City disputes both grounds of appeal, and argues
    that in fact the application judge erred in finding in Mr. Richards favour on
    the first two elements of the adverse possession test. The City raises
    additional arguments about the availability of adverse possession against a
    municipality.

[5]

It is unnecessary to address all of the issues raised to resolve this
    appeal. Mr. Richards adverse possession claim cannot succeed unless he
    establishes all three elements of the adverse possession test, and we find no
    error in the application judges conclusion that Mr. Richard had not satisfied
    the third branch of the test. We therefore dismissed Mr. Richards appeal at
    the end of the oral hearing. These are our reasons relating to the application
    judges conclusions on this third branch of the test.

[6]

We do not agree that the application judge applied the wrong or an
    unnecessarily onerous standard in considering the third element of the adverse
    possession test. This third element inquires whether the claimant has
    effectively excluded the true owner from possession of the disputed land:
Masidon
    Investments Ltd. v. Ham
(1984), 45 O.R. (2d) 563 (C.A.), at p. 567, leave
    to appeal refused, [1984] S.C.C.A. No. 232. The application judges material
    finding - that the evidence is insufficient to prove that the City has been
    effectively excluded from possession of the Disputed Land  directly addresses
    the proper inquiry.

[7]

When the application judge found that the tree line does not form an
    insurmountable obstacle, he was not elevating that standard. Instead, he was making
    a factual determination that was available on the evidence and that contributed
    to his finding that the third branch of the test had not been met. Mr. Richard
    had limited evidence that could advance his contention that members of the
    public had effectively been excluded from the disputed property from 1989 to
    1999. He therefore relied heavily on the tree line. Had that tree line formed an
    insurmountable obstacle between 1989 and 1999, the necessary factual inference
    would have been that the public must have effectively been excluded by that
    barrier. When the application judge found that the tree line was not an
    insurmountable obstacle, he was simply explaining why he declined to make that
    inference.

[8]

We have considered the other evidence that Mr. Richard points to in
    support of his alternative position that the application judge committed
    palpable and overriding error by not finding that the public had been
    effectively excluded.

[9]

Much of that evidence, including the 2017 concession made by a lawyer
    for the City that the land was not then functioning as a park, describes the
    current state of affairs and is therefore of limited utility in determining the
    use that the public could have made of the land between 1989 and 1999.

[10]

Nor
    was the application judge compelled to infer that because the tree line looked
    like a backyard boundary, the public was effectively excluded.

[11]

In
    our view, the application judge was entitled to conclude that Mr. Richard had
    not established the third element of the adverse possession test. He made no palpable
    and overriding error.

[12]

For
    these reasons we dismissed the appeal. As agreed between the parties, the City
    of Niagara Falls is entitled to costs on the appeal in the amount of $13,000
    inclusive of applicable taxes and disbursements.

R.G.
    Juriansz J.A.
K. van Rensburg J.A.

David M. Paciocco J.A.


