) ) Mary Iola Smith Applicant – v. –, 2010 ONSC 5968

CITATION : Smith v. Kearns , 2010 ONSC 5968 COURT FILE NO.: 09-47037 DATE: 2010-11-30 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Mary Iola Smith Applicant – and – Donna Kearns, Peter Gaby and 1168537 Ontario Inc. Respondents ) ) ) ) ) ) ) ) )) Jean-François Lalonde, for the Applicant Michael S. Hebert, for the Respondents ) ) )) HEARD: June 7, 8, 28 and 29, 2010 (Ottawa) REASONS FOR DECISION BEAUDOIN J. [ 1 ] This proceeding primarily involves a claim of adverse possession that was originally commenced by way of an application on November 30, 2009 which application was later amended on January 28, 2010.

On February 2, 2010, the respondent 1168537 Ontario Inc. brought a counter-application. On March 16, 2010, Justice James directed a trial of the issues. He further ordered that the matter proceed for two days, the week of June 7 th , these dates being peremptory to the respondents. As the applicant was allowed an adjournment to call additional evidence after the second day of trial, the trial was ultimately concluded on June 28 and 29, 2010. The Issues [ 2 ] The applicant Mary Iola Smith (“Smith”) seeks: (

a) a declaration that the respondents or their predecessors in title have abandoned any rights they may have over a right-of-way registered against her property; (

b) a declaration that she has acquired by adverse possession a proprietary right in a portion of the respondents’ lands; (

c) damages against the respondents for trespass and nuisance; (

d) an order restraining the respondents from entering upon her lands and premises; and (

e) aggravated and punitive damages. [ 3 ] The respondent 1168537 Ontario Inc. (“116”) seeks: (

a) a declaration that the right-of-way in issue remains in full force and effect; (

b) an injunction against the applicant from interfering with the right-of-way; and (

c) an order that an existing fence be removed. [ 4 ] The parties seek their respective costs of these proceedings.

The Properties in Issue [ 5 ] Smith is the owner of the lands and premises known municipally as 124 Boteler Street in the City of Ottawa and these are legally described as: PT LTS 14 & 15, PL 3, AS IN CR275607 & CR356767, S/S BOTELER ST. EXCEPT PT 1, 5R9337; S/T & T/W CR275607; OTTAWA. [ 6 ] Smith and her late husband purchased the property from Albert J. Bingham on January 14, 1949.

Her husband, William James Smith, died on December 8, 1971 at which time his interest in the property passed to her. [ 7 ] On July 18, 2007, 116 purchased the adjacent lands and premises known municipally as 120 Boteler Street in the City of Ottawa and legally described as: PT LT 14, PL 3, AS IN N333333, S/S BOTELER ST; S/T & T/W N333333; OTTAWA. [ 8 ] This property was purchased from the estate of John Thomas Bingham. The respondent Donna Kearns (“Kearns”) is the director and president, secretary and treasurer of 116.

The respondent Peter Gaby (“Gaby”) is Kearn’s common-law partner and he was responsible for the construction work that is the subject of complaint in these proceedings. Kearns and Gaby were named as parties presumably because of the tort claims in these proceedings. [ 9 ] Both properties were subject to a right-of-way 10 feet in width running through the centre of lot 14. One half of that right-of-way extends 5 feet on each half of lot 14 from the front to the rear of each lot.

The right-of-way is described in a deed dated February 25, 1903 to give to the respective owners of the East and West halves of lot 14 a right-of-way for all purposes: ... to pass and repass either with or without horses, cattle or other animals, carts, wagons, carriages and other vehicles in along and over the said right of way. The expense of keeping and maintaining the said right of way to be borne by the said respective owners of the East and West halves of the said Lot in equal portions. [ 10 ] A copy of the registered plan survey dated September 29, 1948 is attached as

Schedule A to this decision illustrates the right-of-way in issue. It also reveals the existence of a fence some 2 feet west of the property line and within the right-of-way on the western half of lot 14. A

section of that fence remains in place to this day. [ 11 ] The evidence revealed that the lands in question were part of a larger parcel of land owned by the Bingham family. The right-of-way in issue originally gave access to a carriage house that had been located across the southern limit of both halves of lot 14. Evidence of Mary Iola Smith [ 12 ] Mary Iola Smith is 85 years of age, having been born on the 21 st of March 1925. She resides at 124 Boteler Street by herself. She has been a widow since 1971. She and her late husband had six children. As noted, the property was purchased in 1949.

Her husband ran a plumbing and heating business and was a general contractor. Smith was shown a plan of the 1948 survey and she agreed that this survey was the one that was produced to them at the time of the purchase of the property. That survey disclosed a fence and a gate. The fence commenced approximately 20 feet south of the northerly limit of lot 14 all the way to the southern end of the lot. That fence was located roughly 2 feet beyond the lot line and within the right-of-way on the western half of lot 14.

The gate appears to have been located on the right-of-way on the eastern half of the lot. [ 13 ] Smith was asked if she understood that the right-of-way shown on the survey meant that it was open to both property owners and that neither party could block it off. She said she understood that but that her late husband took care of that. She indicated that the grass was there on her side of the fence and that she cut it. She also identified a black post at the northern end of the fence and said that they and the neighbours shared the laneway from the black post forward to Boteler Street.

She maintained that the black post has been there since the purchase of the property and that it has never been moved. She indicated that there was a retaining wall below the fence where her husband had repaired it. She described this wall as being comprised of cement blocks under the fence from the black post to the rear of the property. Mr. and Mrs. Bingham lived next door; they were cousins of Mr. Smith.

Although the gate shown on the survey was removed at some time, she could not recall the date and insisted that the fence had never been shortened at its northerly limit. [ 14 ] She identified a number of photographs taken over a period of time. These demonstrate the continued existence of the white picket fence over the years and the black post is visible in some of these. Her husband constructed a shop at the rear of 124 Boteler sometime in 1952 and she was shown an application for a building permit for the shop that her husband had obtained.

Although the sketch of the lot and proposed building did not disclose the right-of-way or the fence, it shows that the proposed building was to be constructed very close to the property line between 124 and 120 Boteler and on the eastern half of the right-of-way. She said no issue was taken with the location of the shop and that the neighbours never complained. She currently uses it for storage. The shop was constructed in two phases. A second addition was built in 1953-54.

The second building permit application also fails to refer to the right-of-way. [ 15 ] She identified a photograph of her daughter Anne-Marie taken sometime in 1974, and while there is a fence in the background it is evident that a

section of the picket fence at the rear of the property has been removed. The photograph also shows a new shorter

section of fence in front of the older picket fence. This fence appears to connect to the front of the garage and to be situated on the property line. She explained that the fence was for the dog. The photograph also shows a tree growing on the property line between the Smith and Bingham property as well as a large structure at the rear of 120 Boteler. [ 16 ] Smith testified that her husband removed part of the fence that ran parallel to the shop building in order to build storage racks

on the side of the shop. She said the whole of the space that would have been previously enclosed by the fence was then taken up by the racks. These racks were used to store long lengths of pipe used by her husband in his business. She said the racks were constructed sometime in 1951-52 but she did not know the exact date. She was shown another photograph of her son Peter that was taken in 1975 when there were no racks visible. The racks had been taken down after her husband’s death in 1971.

They remained in place for about a year and her son Peter removed them. [ 17 ] The applicant had no further evidence of any use of the property alongside of the garage other than to go along there to inspect the rear of her garage. No other structure was put there by her and all that remained was the “rubble wall” below the fence and this was level with the surface of the ground. [ 18 ] She acknowledged receiving a letter from Nelligan O’Brien Payne in December 2008. It was sent on behalf of the respondents and requested that she take down her fence and garage encroaching on the right-of-way.

Smith then described the damage she alleges was done to the laneway when the defendants dug a sewer. She said that the crushed stone was replaced with rocks for her to walk on and which would cause a problem for her snow blower. She complained that the defendants’ trucks also caused damage to her fence. There was a hose running out of the basement, out on the laneway and into the street when the defendants dug up the basement. She said that the excavation shovel would drop soil onto her property and onto part of her fence.

She identified a photograph which she claimed showed the extent of the damage. [ 19 ] On July 6, 2008 she reinstalled the back

section of the fence that had been taken down over 50 years earlier. She said that she put the fence up “on my property” after Mr. Gaby took all the trees down at the rear of 120 Boteler. No clear reason was given for putting the fence up at that time although it is apparent that she was unhappy with the renovations being carried out next door. She produced a copy of the invoice revealing that the fence cost $1,400. This

section of fence was subsequently taken down by the defendants. [ 20 ] She insisted that there was no difference in elevation between her property and the property next door and said that the respondents had disturbed the land and lowered the level of her property. She complained that the defendants took the blocks out that were previously located in the soil under the fence. These blocks have also been described as the remnants of a retaining wall or rubble wall and in the photographs introduced in evidence they appear to be large rocks.

There was no evidence that these extended above ground level or that they formed any kind of a barrier between the two properties. [ 21 ] She complained that the defendants regraded the land at the rear of their property and installed a chain link fence which prevented her from having access to the rear of her property or to the back of her shop in the case of repairs or fire. She was shown a photograph of the siding on the side of the garage and she claimed that it demonstrated damage to the aluminum siding.

She was also shown a photograph of the northwest corner of the shop which revealed damage to a telephone wire. She was not sure when this was done, sometime in 2008 or maybe in 2009. She complained that the access to the shared laneway was blocked for five days while the connection to the new sewers was completed and that she was unable to get out of her property. [ 22 ] In cross-examination she was not sure if the Binghams next door were part of the same family or the children of Alfred Bingham. She confirmed that she knew about the right-of-way.

She confirmed that after her husband passed away she registered a deed to herself where she registered the 1948 plan of survey disclosing the right-of-way. When questioned about this she claimed she did not know what the respondents’ counsel was talking about. When asked if she ever had seen a deed that did not have a description of the right-of-way, she answered that she did not know what he was referring to. [ 23 ] When asked if the gate was removed in 1954, she said that it was removed sometime in the 1950’s but she could not remember if it was the late 1940’s or early 50’s; she was not sure.

It was pointed out to her that the fence in issue originally ran from the gate to the back of the lot and that a subsequent survey later introduced in evidence now reveals that it is 12 feet shorter and she did not disagree with that. She was unable to explain the contradiction with her earlier statement that the black post at the end of the fence had never been moved. [ 24 ] She agreed that the southern portion of the fence was taken out in 1954 by her husband. The plumbing racks were removed prior to 1974.

When she was asked if anyone ever told her that the fence was on the property line, she answered that she had always believed that the fence was on the property line. She acknowledged that there had been a number of fences on the property and there is one photo of her husband where no fence is visible. [ 25 ] She was shown the photograph of her daughter Anne-Marie that was taken in 1974. It reveals a large building across the rear of the neighbour’s property. She claimed she never saw it before, and she did not remember it at all.

When asked if this building went across the rear of her property, she said she could not recall it, she did not remember it and she repeated that she was too busy and did not have time to go out and look. She claimed nothing ever blocked her access to the rear of her property and that nothing ever interfered with her right-of-way to their land.

When asked if there was a big tree on the Bingham property which prevented her from putting a fence any closer, she answered that someone else would know how big the tree was, and that it was a long time ago. [ 26 ] She did not know anything about a release of the right-of-way. When she installed her new fence in 2008, she agreed that she did not have any discussions with anyone. Mr.

Gaby had taken all the trees down at the rear of the neighbour property and she decided to put up her new fence, and she did not tell them about it. [ 27 ] She was shown the building permit for the garage and she agreed that it did not show a right-of-way. She was asked about a large tree at the rear of 120 Boteler that was on the lot line and she maintained that as far as the tree was concerned, she did not know it was coming down and she did not know anything about a truck being in her laneway for that purpose, nor did she give the parties permission to park in her laneway.

She only knew about the truck when she saw a picture of it that was produced in this litigation. She claimed that she would have blocked it if she had been there. [ 28 ] She was asked about a plan of survey and whether or not what she considered her front lawn to be on part of the city’s property or if she knew if her front steps were on City property. She did not know. She was shown a photo where she acknowledged that the City had paved over the gaps in the driveway caused by the excavation done by Mr. Gaby, and she was not sure when that was done.

[ 29 ] She acknowledged that the renovation job next door was a large job and it was a very slow process. She acknowledged that she has lived in the area for over 60 years and there has been a lot of work over the time that she has lived there because of a number of embassies that were situated in the area – five embassies in total – and that on those occasions there was quite a bit of disruption that lasted over a period of months. There was also work being done on King Edward Avenue nearby. [ 30 ] She was shown a letter of September 3, 2008 from the respondents asking her to discuss the location of the property lines and her recent construction of the new fence

section and her response was that she had more to do with her time than to go around and discuss people’s property. She acknowledged receiving a letter from the respondents on October 8, 2009 advising of their intention of removing the fence. She went to her lawyer who threatened this litigation if the fence was removed. She said that the siding on the garage was damaged and she did not have it repaired because it was part of this case.

As for the fence, she was the one who told the fence contractor to put the fence where it was built and she maintained that “that’s our property line and it has been since 1948.” [ 31 ] Asked if the remaining fence measured approximately 35 feet, she did not know much about it. She left it up to her lawyer and she acknowledged she had no argument with her surveyor. She was shown a photograph and was asked whether or not the lot line was indicated by a red dot on the page, and she said that she did not know. She acknowledged her car was parked to the left of the red marker.

She was shown a recent photo of the adjoining properties and acknowledged that it accurately described the location of the fence since the 1950’s. When she was questioned about the racks, she maintained that they took up the whole width of the space formerly enclosed by the fence and that she would have to get around to the side to get access to the racks. She said they could have been as much as seven feet wide.

She said the racks disappeared in the 1970’s and there has been nothing there from the 1970’s to today’s date. [ 32 ] She indicated that the City paved the laneway in June of 2009 and when asked if the City had supervised that pavement job, she said she did not know; she did not pay much attention and, she said that there was a lot of work going on as a result of the King Edward Street project. She was shown some photographs of the construction debris. She confirmed that the only debris in the photos was from the basement.

She maintained that the trees that were taken down were on the Bingham property and not hers and she was evasive when asked to acknowledge that the roots and the base of the tree went onto “her property”. [ 33 ] She referred to a 1956 deed from a neighbour named Carisse who lived to the east of her on lot 15. She did not have much recollection about the deed but recalled that it was a court case; that it was short and sweet, and it had to do with a laneway between her and her husband and Carisse and that the matter had been dealt with in court.

She was referred to the deed and a Land Transfer Tax Affidavit and said she did not know anything about it. [ 34 ] When questioned about damage to her lot, she said that the respondents had used boulders and debris and garbage from another job instead of crushed stone when they did the work on the sewers. She claimed there were rough stones on the surface. She was shown photographs of the work and she said these described the stones as being the size of softballs and boulders that she could break her neck on.

From my own examination of these photographs these statements are gross exaggerations. [ 35 ] As to the damage to her phone line, she does not recall if construction workers were there. She does not recall making any special effort to speak to anyone next door. She went to her lawyer’s office to use the phone and to call Bell. She claims that Bell came and it was fixed within a reasonable time and that she did not know how it happened. She said she could not make a guess and when asked about the construction activity, she was not very clear.

Evidence of Steve Maréchal [ 36 ] Steve Maréchal is a general contractor who was retained by Mrs. Smith in February 2010 to provide estimates for repairs to the damage Smith claims were done to her property. He gave an estimate for the replacement of the fence, retaining wall and for the repair to the vinyl siding. In terms of the vinyl siding, he believed it was pierced, and that there were scuffs.

He was also asked to do an estimate to repair a slope in the earth, install masonry blocks, backfill and repair damage to the driveway. [ 37 ] With respect to the damage to the driveway, he could not recall if he was able to see any damage because it was covered with ice. He could not say if the area in issue was on Smith’s property or on the City property. His estimate was based on a minimum cost to do some work. He did not know if there had been a retaining wall before.

He had not seen any masonry blocks or an existing fence; he was just relying on what the owner told him had been there before. [ 38 ] In cross-examination he was shown a photograph that Smith claimed to reveal the damage to the siding and he agreed that it showed no problems; in fact, he did not see anything worth mentioning. In fact he confirmed that with respect to the other items, he relied on what Smith told him had been there before and that he had not actually inspected or seen any damage to the laneway because of snow and ice.

Evidence of Andrew Shelp [ 39 ] Andrew Shelp is a professional land surveyor with Annis, O’Sullivan, Vollebekk Ltd. He was retained by the applicant’s lawyer to prepare a plan of survey to show the westerly limit of lot 14. That survey dated October 29, 2009 was introduced in evidence. He concluded that the right-of-way was registered on the respondents’ land and the following could be found: a. a metal and picket fence; b. the remains of a stone rubble wall; c. a chain link fence and a fence post; and

d. a portion of a vinyl sided garage (shop). [ 40 ] I note this survey was completed after a large tree had been removed and the land in issue had been disturbed by construction. He made comparisons with the 1948 survey. He confirmed that the existing picket fence remained entirely on the west side of the centre line of lot 14. The distance varies between 0.53 metres and 0.74 metres. He noted that the existing fence no longer extended to the rear of the property but that the remains of the rubble wall were in the same location as the old fence that was removed.

He noted that the chain link fence and post installed by Mr. Gaby were on the western half of lot 14. [ 41 ] He confirmed in cross-examination that the surveys reveal that the black post has been moved and that the existing fence is shorter than the one that appears in the 1948 survey. He confirmed that he did not go out to the site and he did not examine the rubble wall, and whatever remained there was at the ground level. He acknowledged that the remainder of the fence did not enclose anything. From his research of the title, there was no deed where the right-of-way was not cited.

He confirmed that the front of the Smith house was 4 feet from the lot line and that 100% of the Smith lawn is on City property. James Smith [ 42 ] The trial was adjourned to permit the applicant to call additional evidence as to use of property formerly enclosed by the fence. Her son James Smith gave evidence. He was born in 1950 and is currently retired from the public service and working on contract with Transport Canada. He said that he resided at Boteler Street until 1973. He was asked how long the existing fence had been there and he said he could remember it from the 1950’s and that it had never moved.

He was shown another photograph, in particular the black post, and he said that it has always been there ever since his childhood. He remembers it because he put his tongue on it when he was 9 years old. He cannot recall if or when it was moved. [ 43 ] He was shown a picture on the side of the garage, the west side, and asked what was missing. He said his father kept racks there for pipes. The racks had a plywood covering and there was a wall alongside the pipes and they could not be accessed from the west side. He said that he played on the racks as a child.

He said there were trees on the Bingham property and they would climb on the box to get into the tree next to the racks. The box containing the pipes was as high as the window on the side of the garage and it was in line with the fence that ran from the front of the garage north to the black post. The racks extended from the front of the garage all the way to the back. He said that some of the pipes were at least 20 feet long. He could not recall the fence at the back of the property. No one else but his father used the racks. He noted that the trees on the Bingham property grew very close to the storage racks.

He did not know exactly when the racks were removed. His father died in 1971 and they would have been removed sometime later. [ 44 ] In cross-examination, he was referred to a photograph of a tree and he recalls it being very close to the garage but he could not tell the angle. As far as the use of the racks, he recalls his father would back up the truck to access the pipes. There was a plywood sheeting on top of the racks and on one side. The front end was open and the pipes would be sticking out. He acknowledged that there were other fences in the past when he was a boy.

There was a fence that enclosed the yard when they were children, and it is gone. [ 45 ] He was shown a photograph of the building at the back of the Bingham property and he recalls that there was a garage that went across the rear of the property that belonged to the houses facing Bolton Street. He described it as a large multi-car garage that had been there for a long time. He acknowledged that the rack came down in the 1970’s. He moved away in 1973. He was shown another photograph that showed a separate middle fence and he could not recall that fence; he said he could only recall the laneway fence.

The Respondents Evidence of Peter Thomas Gaby [ 46 ] He is the common-law partner of the defendant Donna Kearns and a business partner in 116. They originally lived 2 to 3 blocks away from Boteler. They have an interest in the history of “lower town” and this is how they came to know John Thomas Bingham and to know about the property at 120 Boteler. They purchased it from his estate on July 18, 2007. Their original intention was to restore the house, rent it out and then occupy it at a later date. They had previously bought and restored a property in the past.

At the time of their purchase they would have had access to the 1948 survey. [ 47 ] At first they did some superficial work on the house but they interrupted their work as they were called away to deal with a family matter. They resumed their work on the house in June 2008. He was referred to a number of photographs and noted the location of the existing fence and the black post at the northern end of it and he conceded that these were there at the time of the purchase.

He was shown a photograph of a tree and noted that while almost all of it was on his property, the base of it was against the garage on the Smith property. That tree was taken down. The restoration of 120 Boteler was completed in April - May 2010. [ 48 ] In the course of their work it was determined that the basement of the house had to be excavated to get additional clearance. Because of the location of the existing fence, they had difficulty getting access with heavy vehicles and they had to store all of the soil and debris in the back yard.

He claims that if they had had better access, the soil could have been more readily removed from the site. He confirmed that it is the respondents’ desire to use the right-of-way to the full extent so that they can park their vehicles more easily. [ 49 ] At the outset, he claims that he and Kearns tried to keep Smith informed on the renovations. They considered themselves obligated to inform her of any intended use of the right-of-way on her property which was not frequent. In the course of the basement renovations, they discovered that a new sewer line was required.

This would require excavating a portion of the shared driveway. There was some difficulty in locating the connection to the sewer line. Excavation and backfilling were required. He described the impact on Mrs. Smith’s property as minimal. The work was done in one day; the digging commenced at 9:00 a.m., the new sewer was installed between 12:00 and 1:00 p.m. He had arranged immediately for an inspection and the hole in the laneway was filled in by 4:00 p.m. on

the same day. Smith was advised of the work in case she had to use her car. He denied causing any damage to Smith’s property during the course of the renovations. [ 50 ] As for the cut of the telephone line, the respondents requested cable and phone locators to be done before they did any work and they were told that all cables were inactive. In the course of the back yard work, the phone line was pulled up, as there was approximately 20 feet of loose wire.

He called a Bell technician to repair it and he had no conversation with Smith. [ 51 ] He examined a number of surveys and it was his opinion that Smith’s front steps and front lawn were on City property. He removed the tree at the rear of the property because he considered it dangerous. He says he advised Smith of his plans and that a professional tree service did the work. As for the fence that was put up by Smith in 2008, this was done during a period of time that they were not at the property, in the early summer of 2008.

It was a new fence; 2 ½ to 3 feet on their property and they discovered it on their return to resume the restoration work. Mr. Gaby removed it. He said Donna Kearns first advised Smith of their intention to remove it. He acknowledged getting a letter couriered by Smith’s lawyer later in the day, but the fence was already down by that time. [ 52 ] He had the metal mesh fence and post installed at the rear of their property. He described these as being on his property – within 2 inches of the property line. He did not see a retaining wall when he installed the fence – that was not his description of it.

He acknowledged there were rocks at the base of where Smith’s fence had been. He had the back yard regraded and acknowledged a change in the grade from the edge of the Smith property. Whereas there had been more gradual slope previously, he acknowledged that the regrading caused a sharper slope near the Smith garage as her property is 8 to 10 inches higher. [ 53 ] He attended at the City of Ottawa and obtained fire insurance surveys between 1878 and 1930. There was insurance map from 1956 that was entered as an exhibit.

It revealed that a former carriage house at the rear of lot 14 had been converted to an auto garage for the residents on Bolton Street. [ 54 ] In cross-examination, he acknowledged that Vice Hunter had sent a letter on October 8, 2009 warning him to not tear down the fence but he read it too late. He also agreed that the new 2008 fence was an extension of the old fence but added that he considered the old fence to also be on his property. As for the soil elevations he admitted that he changed the grade. Before it sloped over a 2 feet area.

He changed it to slope more abruptly over an 8 inch distance from the Smith shop but he added that he considered the land to be his property. [ 55 ] During the renovations he acknowledged that some soil may have gone on to the Smith property but noted that the photographs show this to be a small amount. He admitted that he never gave Smith notice in writing of restoration work but claims that he spoke to her about it and that he knew of no letters to Smith other than those that had been entered into evidence. [ 56 ] He was referred to the excavation work for the new sewer line.

He did not do the work, although he directed it. The majority of excavation was on 116’s property. Excavation was 10 feet deep and 6 feet wide. The last portion of the excavation was on the shared laneway. He maintained that the new sewer connection was excavated, inspected and filled in the same day. He was shown invoices from the excavator that suggested that the work had been done over four days. He explained that the contractor had done other work over those four days: On the first day he excavated and installed sewer and then filled in the excavation.

On the second day the laneway was leveled and soil was removed. On the third day, there was more grading of the driveway and work in the back yard. On the fourth day, the excavator installed “sonotubes” for the back porch. [ 57 ] He repeated that he put the new fence at the rear of his lot because it was his property and because of problems with transients in the neighborhood. He acknowledged that the only way to get to the rear of Mrs. Smith’s garage was to access it from Bolton Street to the south. As to the phone line, it was lifted up during the back yard work and the laying of the sod.

He acknowledged trimming it back to the end of the Smith garage because he considered it dangerous to have 20 feet of wire lying about. He had been led to believe that all lines were inactive. [ 58 ] He agreed that the remaining

section of fence was still on the property and it was still up for dispute. He was asked about a letter from Smith’s lawyer sent in April 2009 and acknowledged that he would have seen it but did not know when. He was referred to the building permits for the garage and was not aware of any complaints by the previous owners of 120 Boteler and acknowledged that it had been there for a long time judging from the appearance of it. He had no evidence to dispute that storage racks had been on the side of the shop between 1950 and 1970.

He could not agree that the remains of the rubble wall followed the path of the fence. He had about six conversations with Jack Bingham and they never discussed the right-of-way and he never complained about Smith. Evidence of Donna Elizabeth Kearns [ 59 ] Donna Elizabeth Kearns is the common-law spouse of Peter Gaby. She met Jack Bingham in 2003. He is a descendant of a former mayor of Ottawa. He saw that the defendants were restoring a house. They met him there and at his house frequently.

He would leave the defendants notes as he was interested in the preservation of historic properties and he wanted the defendants to buy his house. They found out about the property being available one week after his death, shortly after his funeral. The defendants were invited over. The house was in a bad state. Kearns had always loved the house. Mr. Bingham’s estate wanted a certain amount of money. The defendants put in an offer and it was accepted. [ 60 ] Nothing was done for the first year, as the defendants were working on their own house and Ms.

Kearns’ mother became critically ill, so they locked up the Boteler Street property and went back to their house. They were told by Jack’s brother, Peter Bingham, that the existing fence was ‘grandfathered’. In June of 2008. they started to work and they discovered that there was another fence that suddenly had appeared on the property, and they knew they had a problem. [ 61 ] She was referred to her letter dated September 13, 2008 raising their concerns about the property lines that she gave to Smith. Smith appeared very agitated when she provided her the letter.

Kearns tried to meet with Smith but the latter was not cooperative. After September of 2008 she could not talk to Smith. She heard that Smith had made a lot of allegations about her personally. Kearns

delivered the October 2009 letter advising of their intent to remove the new fence and put it in Smith’s mailbox. [ 62 ] From May 2008 to September 2008, Kearns conducted her research on the properties. She looked at all of the deeds from 1903 to present, and there was not one that did not show the right-of-way. She did not want to take the old fence down because they wanted to avoid problems, and that is why they are in court at this time. [ 63 ] She described the remaining fence as being about 35 feet in length. There are no gaps.

It is a picket fence and it is continuous; there are no openings except for the slots. The tree at the rear of the property was removed in July of 2008. She said that the respondents would like to install a 10-foot driveway, and she wants to have the right-of-way maintained and have peace with her neighbor. They now have air conditioning and gas installed next to their house so they have to keep a distance from their house in order to do parking. She did have a problem with the garage that was constructed, in that Mr.

Smith had obtained three building permits without mentioning the right-of-way. [ 64 ] When they bought the property, the Bingham family had showed her a roll number that showed her the dimensions of the property. They did not know about the encroachment by the garage and she could not remember if any mention was made of it at the closing of the property. She understood the dimensions of the property to be 33 feet by 99 feet more or less. She had no information about the old fence – when it was built. She knew that there was a shared driveway and a right-of-way. Jack Bingham never discussed the right-of-way.

He discussed the history of the properties and that they were all part of the Bingham family compound. She was unable to discuss the property with any of Mr. Bingham’s family. There was a brother who was still alive but he was in very frail health and he had memory problems. None of the family members that she was able to speak to had any recollections about the fence or the right-of-way; all they knew was that there was a shared driveway. [ 65 ] She gave evidence about the extent of the landscaping that was done to the property between November and December, and was referred to invoices about the landscaping.

Dan’s Tree Service took the tree down. She took the photo of the tree removal. Mr. Lance Robillard (“Robillard”) from the tree removal company was to give evidence on June 8 th but was not available to give evidence when the trial resumed. For that reason applicant’s counsel consented to Kearns providing hearsay evidence about her conversations with Robillard. According to him, Smith was in the house and watched the tree removal and Smith was told about it so she could move her car. She was shown a photo of a truck in the laneway.

It was the only time that that had ever happened and that was solely for the purposes of the tree removal. She referred to a note with respect to a phone call she made to locate services on the property. She had no invoice from Mr. Ladouceur for the excavation in December. She had provided counsel with whatever she had. She said that Smith was active, mowed her lawn and shoveled her snow. She was cross-examined briefly but there was no new evidence of any significance.

The Law [ 66 ] As noted the applicant claims that there has been an abandonment of all those portions south of the shared laneway right-of-way on 124 Boteler enjoyed by the respondents. Moreover the applicant claims that she has adversely possessed a strip of land on 120 Boteler; that approximately 2 feet strip is that piece of land on the east side of the existing and former picket fence. She also seeks damages in trespass, nuisance and damage to her property.

The Property Claims [ 67 ] At the outset, the respondents have conceded that there has been an abandonment of that portion of their right-of-way that is currently occupied by the shop at the rear of the Smith property. They concede nothing else. The subject property was transferred into the Land Titles Registry system in January 1997 and the parties agree that the claim to adverse possession would have had to accrued prior to that date. Adverse Possession [ 68 ] In addressing the issue, I conclude that it is necessary to distinguish between two separate sections of the property in issue.

It is necessary to distinguish between that area east of the existing fence (“remaining section”) and that portion where the old fence had been removed (“the southern section”). [ 69 ] The Real Property Limitations Act , R.S.O. 1990, c. L.15, sections 4, 5(1) and 15 provide as follows: Limitation where the subject interested 4.

No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990, c. L.15, s. 4 . When right accrues on dispossession 5.

(1) Where the person claiming such land or rent, or some person through whom that person claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of the land, or in receipt of the rent, and has, while entitled thereto, been

dispossessed, or has discontinued such possession or receipt, the right to make an entry or distress or bring an action to recover the land or rent shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession, or at the last time at which any such profits or rent were so received. R.S.O. 1990, c. L.15, s. 5 (1) . … Extinguishment of right at the end of the period of limitation 15.

At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished. R.S.O. 1990, c. L.15, s. 15 . [ 70 ]

Section 15 is key to the applicant’s argument. That

section provides that a property owner’s title to a property is extinguished if the claimant’s party’s adverse possession has continued over a period of 10 years. Her counsel submits that the evidence shows she has had adverse possession of all the property since 1949.

As for the southern section, the applicant argues even if the court finds that there has been no possession since 1974, when the pipe storage was taken down, there was continuous possession for 10 years prior to that date such that the respondents’ title is extinguished by operation of law even if no formal claim of adverse possession was made until this application was commenced in 2009, some 35 years later. [ 71 ] The parties agree that the case law is clear [1] that to succeed in a claim for adverse possession, the applicant must prove: (

a) that she was in actual possession for more than 10 years; (

b) she had the intention of excluding the true owner from possession; (

c) that she effectively excluded the owner; and (

d) that her possession has been visible, open, notorious and continuous. The Southern

Section of the Strip of Land Has there been actual possession? [ 72 ] There was a fence on that

section of the property in 1949 and it was taken down some time in 1954. This fence had been part of a longer fence that, along with a gate, completely enclosed an area that extended over the respondents’ land. That portion of the fence was replaced by storage racks that occupied generally the same area for a period of approximately 20 years. There was no evidence of any use by the neighbour. While there is little evidence of any significant use by Smith after 1974, the applicant says use during the period from 1949 to 1974 is enough to extinguish title.

I conclude that there was actual possession for that period of time. Was there any intention to exclude the true owner? Was the true owner effectively excluded? [ 73 ] It is clear from Smith’s evidence that although she knew about the original survey that disclosed the right-of-way and the property line, she was of the firm but mistaken belief that the picket fence was on the property line.

When she replaced the fence in 2008, she did not do so in her belief that she had acquired a possessory title but in the belief that the property had been hers all along. [ 74 ] In this case we have no evidence as to the purpose of the original fence that had been built by the Bingham brothers. The gate and a front portion of the fence were taken down in the 1950’s and they were not replaced. The existing fence was shortened by some 12 feet, probably at the same time when Mr. Smith built his shop at the rear of his property. Diagrams submitted by Mr.

Smith in support of his two applications for building permits recognize the true lot line and fail to disclose the right-of-way or the existence of any fence. When a new

section of the fence was built to contain the dog it appears to have been placed on the property line. The Smiths never instituted legal proceedings to claim title yet it is apparent that there was litigation to settle a property dispute with their neighbour Carisse. When the applicant transferred the title to herself in 1972, she did not change the legal description. [ 75 ] We have no idea what discussions Mr. Smith had with the property owners when he installed the racks. Those racks served to supplement the storage in the shop, not necessarily to exclude the neighbouring property owner.

All of the persons with any relevant knowledge are now deceased. All that Smith knows is that there were no complaints when the racks were put up. The remains of the rubble wall did not exclude anyone and a large tree on the Bingham property had grown close to the base of the garage. Smith was unable to replace the back

section of the fence until that tree was removed. There is no evidence of any significant use by Smith for over 35 years and no steps taken to assert title in all of that time, it is impossible to infer an intention to exclude the true property owners from title from the simple construction of some storage racks and the applicant’s claim for adverse possession for that piece of the property must fail. Has the possession been continuous? [ 76 ] There is an additional reason why the applicant’s claim to this piece of property must fail.

I have not been provided with any case that supports the applicant’s position that a claim of adverse possession can arise from past possession without the applicant taking any steps to assert it. In all of the cases that have been submitted to the court, the adverse possession was continuous until the time of the determination by the trial court. Here we have a 35-year break from the time the applicant can be said to have had any actual possession until such time as the applicant seeks to assert her claim.

When I asked the applicant’s lawyer if this meant that an unsuspecting purchaser of property could be met with a claim of adverse possession relating to an unregistered claim that may have arisen many years earlier, he agreed that it would be unfortunate, but that was the state of the law. [ 77 ] Carrozzi v. Guo , [2002] O.J. No. 3629 is a case where the facts are somewhat similar to those at hand. There was a fence just

inside a neighbour’s property line and even though surveys consistently showed the fence as being on the neighbour’s property bothparties mistakenly believed the fence was on the property line. There was a mutual mistake and in the absence to the evidence to thecontrary, the intent to exclude the neighbour was inferred.

The applicant relies on this decision because of the trial judge’s comments atpara. 20 that the Real Property Limitations Act is a “statute of extinctive not acquisitive prescription.” The trial judge found in that casethat the claimant, Guo and his predecessors in title, had continuous possession of the lands in issue until such time as the Land Titles Actcame to apply to the properties in 1996. [78] The applicant has cited a number of other cases: Tasker v. Badgerow, [2007] O.J. No. 2487; Shannan v. Raymond, [1998] O.J.No. 666; Teis v. Ancaster (Town), (ON CA), 35 O.R. (3d) 216 (C.A.).

In each of these cases, the adverse possessionin issue was continuous to the time of trial. The lack of continuous possession in this case is inconsistent with an intention to exclude. The Remaining

Section [79] The applicant’s claim for adverse possession on that portion of the land on the east side of the remaining

section of fence andwest of the property line is valid. There is no question that a picket fence has been in that location since 1948 until this time. Therespondents themselves have left it in place. Respondents argue that the remaining piece of 35.5 feet fence does not enclose anything butin my view that is not an essential element. In this case, I find that the critical elements are made out: (

a) that she was in actual possession for more than 10 years until January 1997; (

b) she had the intention of excluding the true owner from possession; (

c) that she effectively excluded the owner; and (

d) that her possession has been visible, open, notorious and continuous. [80] This is perhaps the only place where the applicant’s evidence as to her own use of the land was clearest. She testified shemaintained the fence and cut the grass on her side of it. While she may have parked her car strictly within the lot line as a photographtendered in evidence by the respondents shows, she had to stand on the grass inside the fenced area to access her car. The respondentsacknowledged that they learned from the Bingham family that the fence might have been “grandfathered”.

There is no evidence of anyuse by Jack Bingham. [81] The respondents rely on Bunty Alf Ltd. v. Grace Evangelical Lutheran Church at Oakville, [1986] O.J. No. 1189. In that casethere was a hedge planted along the driveway in issue and the court concluded that it was porous and it did not enclose the lands in anyway to exclude the defendants from any use of the driveway.

The decision is easily distinguishable; in that case there was clear evidenceof members of the defendant Church passed through the hedge and regularly crossed the property is dispute. [82] The fence in this proceeding is unbroken and while it does not strictly enclose the strip of land, the shop building is located atthe southern end of it. While there is a gap between the end of the fence and the corner of the shop, for all practical purposes no onewould walk to that end of the fence to access the right-of-way.

It must be remembered that the original purpose of the right-of-way onthat half of lot 14 has been largely defeated by the construction of the garage. There would be no need to go to the other side of thefence. The shared laneway was to the north of the fence. Abandonment [83] The applicant also claims that the respondents’ right-of-way registered on her half of lot 14 has been abandoned by therespondents. Again there is not much dispute as to the law. In 2108133 Ontario Inc. v. Kabcan Foods Ltd., [2009] O.J.

No. 951 (S.C.J.)Aitken J. stated at para. 8 that the following principles apply to determine if a right-of-way has been abandoned: • Abandonment is a question of fact. • The onus of establishing the loss or extinction of an express right-of-way by abandonment or non-user rests upon the partyasserting it. • The only way in which a right-of-way can be extinguished by the act of the parties interested is by release, actual or presumed. • In the absence of an actual release, non-user is essential to abandonment. • Non-user and nothing more, however, is not sufficient to permit a conclusion of abandonment. • When a right-of-way has its origins in an express grant, it is not lost by mere non-user; there must be some intention to abandonthis property right. … The intention to abandon means that the person entitled to the right-of-way has knowingly, and with fullappreciation of his rights, determined to abandon it. • In some circumstances, evidence of non-user may lead to a finding of acquiescence on the part of the holder of title to the right-of-way. … Non-user will not have the effect of establishing abandonment unless a release can be implied from such non-user and thesurrounding circumstances. • All of the evidence bearing upon the issues of non-user, acquiescence and abandonment must be considered. • Including the express right-of-way in a registered conveyance is evidence that abandonment was not intended by the owner of the

dominant tenement or not presumed by the owner of the servant tenement. [citations omitted.] [ 84 ] The respondents put much reliance on the fact that the deed registered by the applicant after her husband’s death continued to refer to the right-of-way. While this may evidence that there was no abandonment, it is not conclusive. The applicant never had a genuine appreciation of the right-of-way and of what it entailed and she said she left the registering of the new deed up to her lawyer.

The respondent has conceded that the right-of-way over that portion of the right-of-way occupied by the shop has been abandoned by acquiescence. Having concluded that the applicant has established adverse possession over a strip of the respondent’s property in large part due to their predecessor in title’s non-use, I am led to conclude that there has been an abandonment of the right-of-way that is immediately to the east of that strip of property on the applicant’s land.

Damages to Property in Trespass and Nuisance and Punitive Damages [ 85 ] The applicant claims that her property was damaged, in particular the fence that she erected in 2008 as well as damage to her siding, her phone line and to her existing fence. She says the soil on her property has been disturbed. She claims that the respondents prevented access to her driveway for five days; they left the laneway in a dangerous condition after the repairs to the sewer and that their new chain link fence impedes her access to the rear of her property.

Her counsel argues that because the respondents took the law into their own hands by destroying the 2008 fence, that the applicant is entitled to an award or punitive damages. It was because of these claims that Justice James directed a trial of the issues. They are the only possible basis for any claims against the respondents Kearns and Gaby. The respondents say that these claims are without merit and I agree. [ 86 ] In arriving at that conclusion I must also make comments on the applicant’s credibility.

I found that she grossly exaggerated the presence of stones as large as softballs and boulders during the excavation for the new sewers. The photographs introduced in evidence and upon which she relied show nothing more than coarse gravel. The photographs of damages to her fence show nothing more than clots of earth that have fallen on the rails of the picket fence. Even her own contractor was unable to find any damage to the siding as she claimed. [ 87 ] She was adamant that the black lamp post at the northern end of the fence had never been moved even when her own survey evidence disclosed that it had.

She claimed no knowledge of a large building, the former carriage house at the rear of lot 14. When pressed on some answers she replied she was too busy, or her lawyer knew about it or her husband looked after things. She was clearly confused about the right-of-way and the location of the property line although she said she had looked at the survey. To the extent that there is any conflict in her evidence with that of the respondents on these issues, I preferred the evidence of the respondents. Trespass [ 88 ] The court in Millstone Consulting Services Inc. v. Cleary , [2008] O.J.

No. 3106 (S.C.J.) at para. 87 defined trespass as any “ unjustifiable intrusion by one person upon land in possession of another” . Since I have determined that the applicant’s claim for adverse possession of the rear portion of the lands must fail, there is no trespass to her property at that location; it was not her property. [ 89 ] As for trespass to any other portion of her land, she claims to have had no knowledge of the large tree being removed next door and says that had she known about the tree removal truck being in the laneway she would have blocked it.

This is not credible and I prefer the evidence given through Kearns that she actually watched the removal from her window and granted permission for the truck to be on her property. The respondents had work permits for all that they did. I am satisfied that they attempted to communicate with the applicant from the outset but that Smith refused any invitations to discuss matters with them, claiming she was too busy. [ 90 ] As for the sewer work in the laneway, I accept Peter Gaby’s evidence that this was done in two days and that any inconvenience to the applicant was minimal.

I accept Gaby’s evidence that she was told about the work and was given an opportunity to move her car. Any intrusion on to her lands was minimal and justified. The work had to be done. In any event, any impact was insignificant having regard to her own evidence as to the major construction that had taken place during the years she has lived at that location. Any damage to the phone line was an accident. The respondents had taken steps to find out about active lines and cables before they did their landscaping work. The phone line was repaired the same day.

The applicant’s decision to go to her lawyer’s office to phone Bell repair service is an example of her exaggerated and negative response that the applicant’s renovation work. Nuisance [ 91 ] Nuisance is described in Canadian Tort Law, 8 th Ed. at p. 572 as follows: Nuisance is usually thought to be a continuing wrong, that is the establishment or maintenance of some state of affairs which continuously or repeatedly causes the escape of noxious material onto the plaintiff’s lands. And later on at p. 573:

The ultimate question to be asked is whether the defendant is using the property reasonably having regard to the fact that the defendant has a neighbor. [ 92 ] There is no doubt that 116 carried substantial renovation work to the property at 120 Boteler. Photographs of the property, taken before and after the renovations, disclose a remarkable transformation in the appearance of the property. Any evidence of nuisance appears to be the same as that in support of the trespass claims and none of this supports a finding of actionable nuisance.

Damage to Property [ 93 ] With respect to the fence, it is conceded that it was removed by Gaby. Having determined that the applicant had not established her claim to adverse possession at the time of her installation of the fence or at all, the respondents were entitled to remove the fence. The respondents tried to discuss the property issues with the applicant without success. They gave her fair warning of their objection to the new fence and of their intention to remove it. There was no credible evidence of damage to the siding or to the laneway.

The shared laneway was fully restored by the respondents and has now been paved. It is now in better condition than before. Punitive Damages [ 94 ] There has been no “high-handed, malicious, arbitrary or highly reprehensible conduct that departs to a marked degree from ordinary standards of decent behaviour” [2] At all times the respondents tried to be responsible property owners. To the extent that there was any arbitrary conduct, it was on the part of the applicant who decided, after a period of nearly 55 years to install a fence without clearly determining her legal right to do so.

Summary [ 95 ] In

summary, the applicant’s claims for damages are dismissed as is her claim for adverse possession of the southern

section portion of the strip of property. Her claim for adverse possession of that

section of the respondents’ lands demarked by the remaining

section of the fence succeeds as well as her claim for a declaration that the respondents’ rights to the right-of-way below the shared laneway is abandoned. The respondent 116 did not seek a declaration that the applicant’s entitlement to the right-of-way on their property had been abandoned and had they done so, that relief would have been granted. [ 96 ] The applicant is to make her submissions as to costs within 20 days of the release of this decision and the respondents within a further 20 days. Any reply submissions are to be delivered with 10 days of that date. Mr. Justice Robert N. Beaudoin Released: November 30, 2010

SCHEDULE “A”

CITATION : Smith v. Kearns , 2010 ONSC 5968 COURT FILE NO.: 09-47037 DATE: 2010-11-30

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Mary Iola Smith Applicant – and – Donna Kearns, Peter Gaby and 1168537 Ontario Inc. Respondents REASONS FOR decision Mr. Justice Robert N. Beaudoin Released: November 30, 2010