



COURT OF APPEAL FOR ONTARIO

CITATION: Beffort v. Zuchelkowski, 2017 ONCA 774

DATE: 20171006

DOCKET: C61764

Sharpe, Blair and Epstein JJ.A.

BETWEEN

Scott Beffort and Heather Beffort

Plaintiffs

(Respondents)

and

Zygmunt Zuchelkowski and Jolanta Zuchelkowski

Defendants

(Appellants)

Marek Z. Tufman and Geoffrey A.P. Tufman, for the
    appellants

James S.G. MacDonald, for the respondents

Heard and released orally: October 5, 2017

On appeal from the judgment of Justice Jamie K. Trimble
    of the Superior Court of Justice, dated January 25, 2016.

REASONS FOR DECISION

[1]

This appeal involves a disputed strip of land between the abutting
    properties of the appellants and the respondents. The trial judge gave careful
    and detailed reasons for judgment explaining why he accepted the evidence pled
    by the respondents, that for the relevant 10-year period prior to the land
    being governed by land titles, their predecessors in title had adversely possessed
    the disputed strip. He gave judgment finding the respondents had established
    title by adverse possession. There is no issue as to the applicable legal test
    and the appeal turns solely on disputed issues of fact.

[2]

The appellants case rested almost entirely on the evidence of the Kepkas
    who had owned the respondents lands for a 10-month period between 1988 and
    1989. The evidence of all other predecessors entitled to both the appellants
    and the respondents lands was that during the relevant 10-year period (which
    began to run on September 21, 1988), a chain link fence divided the strip of
    land from that of the appellants and incorporated into the lands of the
    respondents. That evidence was supported by photographs taken during the
    relevant period showing that there was a chain linked fence. Only the Kepkas
    disputed that fact and testified that the property line was defined by a board
    fence that they erected. The trial judge carefully explained why he found that
    the recollection of the Kepkas was unreliable.

[3]

The trial judges findings of fact attract deference in this court. He
    was entitled to find on the evidence that while the Kepkas had erected a board
    fence on part of the property, the chain link fence was present and defined the
    rear boundary of the property during the entire time they owned it. The trial
    judge did not err in finding that a statutory declaration relied upon by the
    appellants simply reflected the mutual mistake of all parties at the time that
    the chain link fence was the boundary.

[4]

We see no err, much less one that rises to the level of a palpable and
    overriding error, that would justify this court in interfering with the trial
    judges decision.

[5]

The appellants also moved to introduce fresh evidence, namely an opinion
    from the president of a photogrammetric mapping company based on aerial
    photographs of the properties taken in the period 1988 to 1989. In our view,
    this evidence does not meet the test for admissibility.

[6]

First, the motion to adduce fresh evidence was filed on the eve of the
    appeal and the appellants have failed to provide an adequate explanation for
    either the late filing or for why the evidence could not have been made available
    earlier through the exercise of due diligence.

[7]

Second, we are not persuaded that the evidence is sufficiently reliable
    or credible to overcome the direct evidence of the various witnesses and the
    contemporary photographs taken on the ground indicating the presence of the
    chain link fence in the relevant period.

[8]

Accordingly, both the motion to adduce fresh evidence and the appeal are
    dismissed.

[9]

Costs to the respondents fixed at $16,224.45, inclusive of taxes and
    disbursements.

Robert J. Sharpe
    J.A.

Robert
    A. Blair J.A.

Gloria Epstein
    J.A.


