2017 ONSC 4762, 2017 ONSC 4762

CITATION : Gibb v. Pereira, 2017 ONSC 4762 COURT FILE NO.: 1324-13 DATE: 2017/08/08 SUPERIOR COURT OF JUSTICE – ONTARIO RE: GILLEAN GIBB [1] (Plaintiff) And: LILIANA MARIA PEREIRA (Defendant) BEFORE: Justice I. F. Leach COUNSEL: William Dewar, for the plaintiff Jeremy Forrest, for the defendant HEARD: September 16, 2016 ENDORSEMENT Introduction [ 1 ] Before me is a motion for partial

summary judgment brought by the plaintiff, seeking declaratory relief, as well as associated injunctions and mandatory orders, relating to a narrow strip of land (“the strip” or “disputed property”) [2] that lies between the plaintiff’s house, (known by its municipal address as 569 Grosvenor Street in the city of London, and henceforth referred to as “569”), and the defendant’s house, (known by its municipal address as 573 Grosvenor Street in the city of London, and henceforth referred to as “573”). [ 2 ] In that regard, the plaintiff relies principally on an assertion that any possible right of the defendant to title and possession in relation to the strip was extinguished many years ago by extended adverse possession, (i.e., by her predecessors in title vis-à-vis the predecessors in title of the defendant), and provisions of the Real Property Limitations Act , R.S.O. 1990, c.L.15. [ 3 ] The plaintiff submits that there is no genuine issue requiring a trial in that regard, or in relation to her claims for ancillary relief that would: • confirm her possessory title to the relevant strip of property; • facilitate formal registrations reflecting that title; and • restrain various forms of past and anticipated interference with her enjoyment of the relevant property by the defendant. [ 4 ] She accordingly seeks partial

summary judgment, along with costs of the motion and partial costs of the action on a substantial indemnity basis, with an order directing a trial or reference to determine and quantify damages possibly owed to the plaintiff as a result of the defendant’s conduct. [ 5 ] In response, the defendant denies the plaintiff’s entitlement to any form of relief based on alleged adverse possession, submitting that the evidence tendered by the plaintiff is problematic and insufficient to support timely and sufficient adverse possession in the sense required. [ 6 ] The defendant accordingly says there is no proper basis for the plaintiff’s claims, (including the imposition of any restrictions on the defendant’s use of property that is truly hers), let alone

summary judgment. The defendant therefore seeks an order dismissing not only the plaintiff’s

summary judgment motion but the plaintiff’s action as well, together costs of the motion and action on a substantial indemnity basis. [3] [ 7 ] Before turning to a consideration of the evidence filed by the parties in support of their respective positions, and an analysis of which party should prevail, I think it helpful to outline, at the outset, legislation and principles relating to the law of adverse possession and

summary judgment. Adverse possession [ 8 ] In relation to the law of adverse possession, relevant legislation and principles include the following: • In Ontario, adverse possession claims are based on sections 4 and 15 of the Real Property Limitations Act , R.S.O. 1990, c.L.15.

Section 4 of that legislation establishes a ten-year limitation period in which a dispossessed legal owner must bring an action to recover possession of land. By

section 15 of that legislation, when a legal owner has not attempted to recover his or her land within ten years after the right to bring an action or make entry accrued, the right and title of that owner of the land is extinguished. [4] At that point, not only is a formal action to recover the land barred by statute, but recovery of possession through self-help is not valid. Once adverse possession has endured for the requisite minimum period of ten years, the party asserting adverse possession has superior title to the

property. The previous owner thereafter cannot become revested with any right of property or title except by conveyance. In particular, the extinguished title is not revested by re-entry or by subsequent acknowledgment of title.

Indeed, re-entry by the previous owner at that point would be a trespass. [5] The rule protects the settled expectations of an adverse possessor who has acted on the assumption that his or her occupation will not be disturbed, as “long dormant claims have often more of cruelty than of justice in them”. [6] • A person claiming a possessory title as against the legal owner of land generally must establish each of the following for such a claim to succeed: that the claimant and/or those through whom he or she claims had actual possession of the relevant land for the required minimum statutory period of ten years; that such possession was effected with the intention of excluding from possession the true owner or persons entitled to possession; and that possession of the relevant land by the true owner and any others entitled to possession effectively was excluded for that minimum statutory period. [7] In that regard: o The “actual possession” required over the minimum 10-year period must be open, notorious, constant, continuous, adverse and exclusive of the right of the true owner.

In particular, “open and notorious” possession is that which shows that the claimant is using the property as an owner might, effectively putting the true owner on notice that the relevant statutory period has started to run such that delay may fairly be held against the true owner. [8] Enclosure of the relevant land, (e.g., by a fence, chain, retaining wall or hedge), may provide useful evidence of the requisite possession, but is neither a necessary nor sufficient act. [9] The element of continuity means that, as a general rule, occupation will not suffice if it is merely occasional or for a limited, special or temporary purpose. [10] The element of “adversity” means that the claimant is in possession of the property without the permission of the owner.

For example, if a claimant acknowledges the right of the true owner, or the claimant is in possession with the consent of the true owner, then the relevant possession will not be “adverse” in the sense required. [11] o An “intention of excluding the true owner”, (referred to in some of the authorities as animus possidendi ), involves an intention to exclude the owner from such use as the owner wants to make of the property.

It is reflected in use of the property by the claimant that is inconsistent with the use of the true owner; i.e., “inconsistent use” whereby the claimant’s possession effectively excludes the true owner and the entitled use which the true owner intended for the disputed land. [12] o However, the second of the three criteria noted above, (i.e., an intention to exclude the true owner and “inconsistent use” in the sense required), does not apply to cases of honest mutual mistake, (where the true owner and person in possession both operate under a mistaken belief as to title or boundaries), or to cases of honest unilateral mistake, (where the person in possession operates under the honestly held belief that he or she is the rightful owner of the relevant property), as opposed to cases involving an intentional trespasser who occupies property knowing it is legally owned by someone else.

The law should protect good faith reliance on bona fide boundary errors. In such cases of mutual or unilateral mistake, an inference therefore may be drawn that the occupier was in possession of the land with the intention of excluding all others including the legal owners.

Put another way, in such cases the second criteria or aspect of the test generally applied to claims of adverse possession may be presumed to have been met, in the absence of evidence to the contrary. [13] o In determining whether there has been “actual exclusion of the true owners”, the court considers the conduct of the owners and possessory claimants in relation to the land. [14] It does not take much by the paper title owner to interrupt another party’s exclusive possession.

For example, the requisite 10 year minimum period of adverse possession effectively may be interrupted, and have to start anew, by accepted evidence of an isolated instance of the titled owner setting foot on the relevant land. [15] However, absence of objection to the use or occupation of the disputed lands may be evidence that the true owner has been dispossessed. [16] • Whether a prescriptive title has been acquired through adverse possession is a question of fact which must be determined in the light of the particular circumstances of each case.

Acts which amount to sufficient possession in one case may be wholly inadequate to establish it in another. Matters such as the nature of the property, the appropriate and natural uses to which it can be put, and the course of conduct which the owner might reasonably be expected to adopt with due regard to his own interests, are all matters to be considered. [17] • Once land is registered under the Land Titles Act , R.S.O. 1990, c.L.5, no new rights of adverse possession may be acquired. [18] • However, existing rights of adverse possession survive conversion of a property into the Land Titles system.

In particular, the Land Titles Act does protect a “crystallized”, “matured” or “fully ripened” possessory title, provided the requisite ten year period of adverse possession has elapsed as of the relevant date of a property’s conversion into the Land Titles system. A right based on adverse possession, perfected prior to that date, can be asserted even many years after that date. [19] • Claims to possessory title in relation to property, based on adverse possession arising prior to registration of the property in the Land Titles system, accordingly may be advanced pursuant to the Land Titles Act , supra .

The claimant nevertheless must establish, on a balance of probabilities, that the requirements of adverse possession were satisfied over a requisite minimum 10 year period, prior to the date on which the property was converted into the Land Titles system. [20] • The combined effect of sections 4 and 15 of the Real Property Limitations Act is merely negative, in the sense that it extinguishes the right and title of the dispossessed owner, without then positively transferring or conveying the right or title of the dispossessed owner to the “usurper” who has demonstrated the requisite adverse possession.

However, it leaves parties who have established such adverse possession with an effective possessory title gained by the fact of possession and the absence of the right of others to eject them, (as those having the sole right to eject them have lost title). [21] In the discretion of the court, such parties nevertheless may be entitled to a declaration of possessory title to the lands [22] , and/or a declaration that the titled owner’s right to possession of and title to the lands in question is extinguished. [23] Moreover, such parties may be registered as owners of land with a possessory title, pursuant to section 36(1) of the Land Titles Act , supra .

Summary judgment [ 9 ] As for

summary judgment, the relevant legislative provisions are found in Rule 20 of Ontario’s Rules of Civil Procedure . [ 10 ] Pursuant to Rule 20.01(1), a plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for

summary judgment on all or part of the claim in a statement of claim.

[11] Numerous additional “sub-rules” outline the manner in which the court must approach such a motion, and the powers the courthas in that regard. They include the following: • Pursuant to Rule 20.02(1), an affidavit for use on a motion for

summary judgment may be made on information and belief, if thesource of the information and the fact of the belief are specified in the affidavit, as required by subrule 39.01(4). However, on thehearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of anyperson having personal knowledge of contested facts. • Pursuant to Rule 20.02(2), a defendant responding to a plaintiff’s motion for

summary judgment may not rest solely on theallegations or denials in his or her pleadings, but “must set out, in affidavit material or other evidence, specific facts showing that there isa genuine issue requiring a trial”.

This has been supplemented by repeated judicial admonitions emphasizing, in various ways, that arespondent to a such a motion is not permitted “to sit back and rely on the possibility that more favourable facts may develop at trial”,and is instead required to “lead trump or risk losing” and “put its best foot forward”, as “the court is entitled to assume that the recordcontains all the evidence the parties would present at trial”. See, for example: Pizza Pizza Ltd v. Gillespie (1990), (ON SC), 75 O.R. (2d) 225 (Gen.Div.); 1061590 Ontario Ltd. v.

Ontario Jockey Club (1995), (ON CA), 21 O.R. (3d)547 (C.A.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), (ON SC), 28 O.R.(3d) 423 (Gen.Div.); and Toronto-Dominion Bank v. Hylton, 2012 ONCA 614 , [2012] O.J. No. 4309 (C.A.). • Pursuant to Rule 20.04(2), the court is obliged to grant

summary judgment if it satisfied “that there is no genuine issue requiring atrial with respect to a claim”. • In making that determination, the court is to consider the evidence submitted by the parties, and pursuant to Rule 20.04(2.1), mayweigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, “unless it is in theinterest of justice for such powers to be exercise only at trial”.

In the exercise of those powers, the court also has the ability, pursuant toRule 20.04(2.2), to order presentation of oral evidence by one or more of the parties; i.e., to direct a “mini-trial”. • Where the only genuine issue is the amount of the plaintiff’s entitlement, the court has the ability, pursuant to Rule 20.04(3), toorder a trial of that issue, or grant judgment with a reference to determine the amount. Similarly, pursuant to Rule 20.04(4), where thecourt is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly. • Where

summary judgment is refused or granted only in part, the court nevertheless has additional powers, pursuant to Rules20.05(1) and (2), to specify what material facts are not in dispute, define the issues to be tried, order that the action proceed to trialexpeditiously, and make numerous further orders and directions that may be just in the circumstances. [12] In Hyrniak v. Mauldin, supra, the Supreme Court of Canada encouraged the use of Ontario’s

summary judgment rule to resolvecases in an expeditious manner provided that can achieve a fair and just adjudication. [13] Speaking for the court, the comments of Justice Karakatsanis in that regard included the following, (at paragraphs 1, 2 and 27of the Hyrniak decision): Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive andprotracted.

Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford togo to trial. … Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable accessto the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trialin favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure and access struck by ourjustice system must come to reflect the modern reality and recognize that new models of adjudication can be fair and just. … There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck byextensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted.

A properbalance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models ofadjudication are no less legitimate than the conventional trial. [14] Consistent with that general approach and philosophy, Justice Karakatsanis indicated, at paragraph 22 of Bruno Appliance andFurniture, Inc. v. Hyrniak, 2014 SCC 7 , [2014] 1 S.C.R. 87, (a companion action to Hyrniak v. Mauldin, supra), that

summaryjudgment would be appropriate where a matter “can be resolved in a fair and just manner”, which will be the case when the process: i. allows the judge to make the necessary findings of fact; ii. allows the judge to apply the law to the facts; and iii. is a proportionate, more expeditious and less expensive means to achieve a just result. [15] Justice Karakatsanis went on to say, in the same paragraph, that if there appeared to be a genuine issue requiring a trial, basedonly on the record before a judge hearing a

summary judgment motion, that judge must then ask if the need for a trial can be avoided byusing the new powers provided under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. If so, those powers may then be usedat the judge’s discretion, “provided that their use is not against the interest of justice”. Drawing of inferences on

summary judgment motions relating to adverse possession [16] Before moving on to a consideration of the evidence filed in relation to the plaintiff’s

summary judgment motion, and whetherthe matter is amenable to partial or full

summary judgment being granted in favour of one party or the other, I pause to address thedefendant’s considerable reliance on the following passage found at paragraph 14 of Justice Morgan’s decision in Maras v. Milianis,

supra : It should be noted that

section 34 of the Limitations Act, 2002 , S.O. 2002, c.24, Sched. B, stipulates that any claim of adverse possession requires “strict proof”. The Respondent cannot establish possessory title by inference; rather, he must bring specific evidence of 10 year exclusive possession. [ 17 ] With respect, for numerous reasons I do not think that passage has the significance defence counsel thinks it does. [ 18 ] First, there is no

section 34 to

Schedule B of the Limitations Act, 2002 , supra . The Act itself has provisions divided into 25 sections, and the Act’s “Schedule B” sets forth a table, containing no

section numbers at all. It seems likely that Justice Morgan’s comment instead was an intended reference to

section 34 of the Real Property Limitations Act , supra . However, the citation error also suggests that Justice Morgan was not referred to the actual underlying legislation. [ 19 ] Second, if the passage was an intended reference to

section 34 of the Real Property Limitations Act , supra , the actual text of those provisions does not correspond to the paraphrased

summary or

interpretation set forth in Justice Morgan’s comment, (which reinforces my impression that Justice Morgan was not referred to the actual text of the underlying legislation), and I respectfully think the meaning and scope attributed to

section 34, (if that was the intention), is simply incorrect. In particular: •

Section 34 does not say that it applies to “any claim of adverse possession”, or to claims seeking to “establish possessory title”. Indeed,

section 34 contains no mention whatsoever of “adverse possession” or “possessory title”. •

Section 34 instead specifically states that it applies “in the cases mentioned in and provided for by this Act, of claims to ways, water courses or other easements ”. [24] [Emphasis added.] In my view, that is clearly a reference to the specific limitation period set forth in

section 31 of the Real Property Limitations Act , supra , which expressly deals with claims “by custom, prescription or grant, to any way or other easement, or to any water course ”. [25] [Emphasis added.] • In my view, the text of

section 34 contains no wording to suggest that the scope of its intended application was to extend beyond claims governed by

section 31, (i.e., claims to rights of way, water courses or other easements), to also encompass claims of a fundamentally different nature governed by sections 4 and 15 of the Act, (e.g., entry or actions to recover land). As emphasized by the authorities set out above, claims for possessory title based on sections 4 and 15 of the Real Property Limitations Act extinguish the title of a previous owner and give rise to a possessory title in favour of the possessor.

That clearly is a very different thing from claims to ways, easements and watercourse, wherein a claimant seeks certain limited rights of passage or waterflow over land in respect of which the original owner retains title. [ 20 ] Third, in my view, the suggestion that no inferences may be made in relation to “any claim of adverse possession”, or to any claim to “establish possessory title”, is entirely at odds with the numerous authorities outlined above, including decisions of our Court of Appeal, emphasizing the inferences are possible and appropriate in relation to deciding certain claims based on adverse possession. [26] [ 21 ] With great respect to Justice Morgan, and contrary to the submission of defence counsel, I accordingly do not think there are any applicable legislative constraints, created by

section 34 of the Real Property Limitations Act , supra , on my ability to draw otherwise permissible and reasonable inferences in accordance with the authorities dealing with adverse possession; and the provisions of Rule 20, including Rule 20.04(2.1)3, if I think resort to that additional power is necessary and appropriate in the circumstances.

Evidence – Party filings [ 22 ] I turn next to an overview of the material filed by the parties in support of their respective positions. [ 23 ] In doing so, I note at the outset that neither party apparently thought it necessary to conduct cross-examinations on affidavit material pursuant to Rule 39.02, or examine other witnesses pursuant to Rule 39.03, prior to hearing of the motion. [27] The evidence relied upon by the parties therefore was limited to their respective documentary filings. [ 24 ] In that regard, the plaintiff filed material that included the following: a.

An affidavit sworn by the plaintiff, (who apparently purchased 569 on January 14, 2008, and has since resided there with her husband and family), included in the plaintiff’s motion record. b.

A “stand alone” brief titled “Book of Plaintiff’s Exhibits”, (but alternatively referred to by the plaintiff, in her affidavit, as the “Plaintiff’s Exhibit Book” or “Exhibit Book”), not included in the plaintiff’s motion record or attached to an affidavit, which contains eight numbered and tabbed documents: i. a copy of the plaintiff’s statement of claim; ii. a copy of the defendant’s statement of defence; iii. the agreement of purchase of sale whereby the defendant acquired title to 573 on August 31, 2009; iv. a letter before action dated October 23, 2012, sent by courier from plaintiff counsel to the defendant, asserting and outlining the plaintiff’s claim of adverse possession; v. a letter dated September 9, 2012, sent by plaintiff counsel to defence counsel, requesting production of any survey in the defendant’s possession; vi. a letter dated December 18, 2014, (albeit without its indicated attachment), sent by defence counsel to plaintiff counsel, forwarding a copy of the requested survey;

vii. a chart suggesting accumulated years of claimed ownership through adverse possession, from January of 1954 to October 12, 2012; and viii. a chart summarizing the respective ownership of 569 and 573 from February 27, 1947, to the present. c. A “stand alone” brief of photographs, (not included in the plaintiff’s motion record or otherwise attached to an affidavit), apparently marked as Exhibit #1 during the oral examination for discovery of the plaintiff which took place on May 14, 2015. d.

A “stand alone” brief of certified title documents, (not included in the plaintiff’s motion record or otherwise attached to an affidavit), filed in the public registers maintained pursuant to the Registry Act , R.S.O. 1990, c.R.20, and Land Titles Act , R.S.O. 1990, c.L.5, outlining and confirming the chain of those holding title to 569 from January 21, 1954, to date. e.

A “stand alone” brief of certified title documents, (not included in the plaintiff’s motion record or otherwise attached to an affidavit), filed in the same public registers, outlining and confirming the chain of those holding title to the defendant’s neighbouring residential property, 573, from February 18, 1947, to date. f. A typed “will say” statement sworn by Caroline and Therese Quigley, (two surviving members of a family that apparently owned and lived at 569 from January 21, 1954, until August 15, 1983), included in the plaintiff’s motion record. g.

An email ostensibly sent to plaintiff counsel by Libby McCallum, (formerly Elizabeth Bryan), who apparently grew up at 565 Grosvenor Street in the City of London; i.e., the second residential property immediately to the west of 569. Ms McCallum then apparently married and lived at 573 with her husband Barry McCallum, as joint owners of that property, from July 12, 1979, to November 10, 1987. The relevant email is included in the plaintiff’s motion record, (at a separate tab entry), but is not otherwise attached to any affidavit. h.

An affidavit sworn by Constance McDonald, formerly Constance Kenwell, (who owned and lived at 569 from June 29, 1990, to April 2, 1998), [28] included in the plaintiff’s motion record along with a number of photographs attached to Ms McDonald’s affidavit as exhibits. i. An affidavit sworn by Paul Brock, (who lived at 569 with his wife Jocelyn Brock, as joint owners of the property, from May 2, 2003, to February 15, 2006), included in the plaintiff’s motion record. j.

An affidavit sworn by Antonio Soares, (who lived at 569 with his wife Kyrsta Hesketh, as joint owners, from February 15, 2006, to January 14, 2008), included in the plaintiff’s motion record. k. The affidavit sworn by Bruce Baker, (a licenced Ontario land surveyor), noted and described above. [ 25 ] During the course of oral submissions, plaintiff counsel also provided the court with additional documents, not tendered as evidence in support of the motion but as material offered to assist the court in summarizing the plaintiff’s view of evidence already filed.

In particular, plaintiff counsel tendered a suggested chronology of relevant events from 1954 to 1992, and a corresponding table presenting a suggested

summary of 569 and 573 ownership from 1954 to 1992. Both documents were marked as exhibits for identification. I accepted and had regard to those documents as partial written submissions from plaintiff counsel, and not as evidence. [ 26 ] Before proceeding further, I think it appropriate to note my view that there were a number of irregularities and concerns, of varying significance, in relation to the material tendered by the plaintiff as evidence. [ 27 ] For example, in relation to the sworn evidence provided by the Quigley sisters: • That evidence is provided by a document that deviates from the format requirements for affidavits set forth in Rule 4.06(1)(

a) and Form 4D; e.g., it is styled as a “Will Say Statement” rather than an “affidavit”, and employs the words “state as follows” rather than the prescribed words “MAKE OATH AND SAY (or AFFIRM)”, although the jurat indicates that the document was indeed sworn by the two sisters. • For such reasons, defence counsel briefly questioned in passing, during the course of oral submissions, whether the document providing evidence from the Quigley sisters therefore should be treated as an affidavit, or given the same weight as a sworn affidavit. • I also note that the document, somewhat unusually, was sworn by two persons rather than one, (even though some portions of the affidavit are described therein as being the evidence of Therese Quigley alone, while other portions are described therein as being the evidence of Caroline Quigley alone), without employing a separate jurat for each deponent. • In my view, however, these identified irregularities should not undermine the admissibility or weight to be given to the evidence thus provided by the Quigley sisters. • Despite the nomenclature employed, and minor deviations from prescribed form, there appears to have been general compliance with most of the requirements of Rules 4.06(1), and in my view, the document effectively is a sworn affidavit in all but self-appellation. • Moreover, I note that the Rule 4.06(1)(

b) requirement of expressing affidavits “in the first person” does not rule out use of the “first person plural”, and Rule 4.06(4) expressly contemplates an affidavit made by two or more deponents, with a single jurat, if all the deponents make the affidavit before the same person at the same time.

In that respect, there is a further deviation from the rules, in that Rule 4.06(4) then requires the single jurat to read “Sworn (or affirmed) by the above-named deponents”, whereas the single jurat on the sworn “Will Say Statement” reads “Severally sworn before me at the city of London, County of Middlesex, this 29 th day of December, 2014”. However, I think the jurat employed accomplishes the underlying intent of the applicable Rule provisions, in effectively documenting that both deponents swore the document before the same commissioner on the same occasion. There was no suggestion to

the contrary. [ 28 ] In relation to the “stand alone” briefs or other documents not attached to an affidavit, including the email ostensibly sent to plaintiff counsel by Ms McCallum: • Rule 39.01(1) of the Rules of Civil Procedure , generally applicable to all motions, indicates that evidence on a motion may be given by affidavit, unless a statute or other provisions of the Rules provide otherwise.

In the past, some courts accordingly have emphasized that documents cannot simply be filed with the court in a motion record without being proved by affidavit or oral evidence. [29] • However, Rule 4.06(3) expressly contemplates the possibility of exhibits being filed with and without their being physically attached to and filed with an affidavit. In the former case, Rule 4.06(3)(

a) contemplates that the deponent’s affidavit will refer to an exhibit being attached to the affidavit, with the attachment then being made. In the latter case, Rule 4.06(3)(

b) contemplates that the deponent’s affidavit will refer to an exhibit being produced and shown to the deponent, in which case it is not to be attached to the affidavit or filed with it, but filed (“left with the registrar for use of the court”) after being served with the relevant affidavit (in the case of documents).

When either route has been taken, an exhibit effectively will have been introduced or “proven” by an affidavit sworn by a deponent, who can then be cross-examined about the exhibit, if necessary, pursuant to Rule 39.02. • The material filed by the plaintiff arguably deviates from those Rule 4.06(3) requirements.

In particular, the plaintiff’s sworn affidavit clearly and repeatedly makes express and often detailed reference to documents in the “Book of Plaintiff’s Exhibits”, to the “Brief of Certified Title Documents” relating to 569, to the “Brief of Certified Title Documents” relating to 573, to the “Plaintiff’s Book of Photographs”, and to the email ostensibly sent to plaintiff counsel by Ms McCallum; i.e., to what “Mrs McCallum herself says…in her email dated April 14, 2013”. [30] The plaintiff nevertheless does not refer to such documents as attachments to her affidavit, and they are not attached to that affidavit.

Nor does the plaintiff’s affidavit expressly refer to such documents being produced and shown to her. [31] • In my view, however, the significance of such deviations is inconsequential or relatively modest in the particular circumstances of this case, for reasons that include the following: o In her affidavit, the plaintiff may not have used wording expressly indicating that a particular document was being “produced and shown” to her.

However, use of that specific wording is not expressly required by Rule 4.06(3), and it seems to me that the underlying reality of that having been done is quite clear from the content of the plaintiff’s affidavit. For example, in her affidavit, the plaintiff makes detailed references to particular tab and photograph numbers within those briefs, to specific historical date entries and information that seem inherently unmemorable without reference to the indicated records, and to extended quotations from the email specifically dated and attributed to Ms McCallum.

In the circumstances, it seems to me that excluding the non-attached material which the plaintiff clearly seems to have seen and to which she repeatedly makes reference, because of a failure to use particular wording in the plaintiff’s affidavit, would represent a triumph of form over substance. o In the course of his written and oral submissions, defence counsel expressed no objection or concerns regarding the plaintiff’s filing or reliance upon the “Book of Plaintiff’s Exhibits”, “Plaintiff’s Book of Photographs”, “Brief of Certified Title Documents” relating to 569, or “Brief of Certified Title Documents” relating to 573, and such documents essentially were admitted into evidence on consent.

Indeed, defence counsel expressly made reference to some of that material, (e.g., the “Brief of Title Documents” relating to 573), during the course of his submissions. Moreover, it seems to me that the briefs of certified title documents, at least, are admissible evidence in any event by virtue of

section 32 of the Ontario Evidence Act , R.S.O. 1990, c.E.23 . o Defence counsel did raise specific concerns about the email from Ms McCallum being admitted as evidence, without being formally produced as an exhibit to a sworn affidavit.

However, it seemed to me that his concern in that regard actually focused on the hearsay aspects of that evidence, (insofar as the evidence was not provided in a sworn format by Ms McCallum herself), rather than failure to present the email properly as an exhibit, through a sworn affidavit. [32] Indeed, during the course of his oral submissions, defence counsel sought to rely on certain content of the relevant email, (e.g., references by Ms McCallum to the possibility of ladders being placed on or near the strip to clean eavestroughs, and to her husband believing the relevant property line was further to the west than the 573 house itself), as evidence supporting his opposition to a finding of exclusive possession by the owners of 569, or “honest mistake” as to boundaries.

Such reliance runs counter to the email being ruled completely inadmissible as evidence. o On the whole, for the reasons outlined above, I am not inclined to exclude the aforesaid documents, filed by the plaintiff but not affidavits themselves or identified documents attached to exhibits, owing to any failure to comply with the requirements of Rule 4.06. [33] [ 29 ] In relation to the affidavit evidence tendered by the plaintiff, (including the plaintiff’s own affidavit and the sworn “Will Say Statement” of the Quigley sisters), there are concerns about the admissibility of certain indications contained therein for reasons other than the irregularities already mentioned above.

For example: • I agree with defence counsel that certain portions of that material contain impermissible speculation. [34] I intend to place no reliance on such evidence. However, that does not render the remaining portions of such material inadmissible. • In my view, certain portions of the evidentiary material filed by the plaintiff also contain assertions constituting impermissible argument and/or legal conclusions. [35] I intend to place no reliance on that sort of evidence either.

Once again, however, that does not render the remaining portions of such material inadmissible. • I note that, at paragraph 29 of her affidavit, the plaintiff makes reference to certain material, (i.e., the defendant’s affidavit of documents and certain photographs apparently referenced therein, depicting construction of a new fence between the properties by the defendant and her boyfriend), which do not seem to have been filed as evidence in relation to this motion.

For obvious reasons, I therefore place no weight on such evidence, (although building of the relevant fence by the defendant and her boyfriend is not disputed in any event). [36] • I agree with defence counsel that there are hearsay aspects to some of the affidavit evidence filed by the plaintiff. In that regard:

o I nevertheless disagree with particular “hearsay” characterizations suggested by defence counsel in the course of his submissions. [37] o In the context of

summary judgment motions, reliance on hearsay evidence is permitted to some extent by the provisions of Rule 39.01(4), which allows an affidavit to contain statements of a deponent’s information and belief “if the source of the information and the fact of the belief are specified in the affidavit”, and Rule 20.02(1), which permits but does not requiring the drawing of an adverse inference “from the failure of a party to provide the evidence of any person having personal knowledge of contested facts”. o In many if not most instances of reliance on hearsay by the plaintiff, (e.g., where the plaintiff effectively indicates her belief in assertions of what was said to her by Mr Soares upon the plaintiff’s purchase of the property, or expressly relies upon the content of other sworn affidavits filed in support of her motion), there are efforts made to comply with the requirements of Rule 39.01(4), and the drawing of an adverse inference pursuant to Rule 20.02(1) seems inappropriate; e.g., because the plaintiff has tendered an affidavit sworn by the otherwise “hearsay declarant”, effectively making that person available for cross-examination pursuant to Rule 39.02. o In my view, by far the most significant instance of true hearsay evidence relied upon by the plaintiff, and the one underlying the principal hearsay concern and objection of the defendant, relates to the plaintiff’s reliance upon the truth of the substantive assertions set forth in the email ostensibly sent to plaintiff counsel by Ms McCallum on April 14, 2013. o In certain respects, there arguably is an aspect of artificiality to the professed hearsay concerns and objections of the defendant in that regard.

In particular, the defendant offered no evidence whatsoever to contradict that tendered by the plaintiff, in relation to use or occupation of 569 and 573 prior to the defendant’s purchase of her property. There accordingly is nothing “contentious” about the hearsay assertions of Ms McCallum, in the sense of having to decide whether that evidence or other competing evidence should be preferred. Indeed, as noted above and below, defence counsel sought to rely on the email assertions of Ms McCallum, in certain respects.

Moreover, the whereabouts of Ms McCallum seem to be known or knowable, (in the sense that plaintiff counsel apparently has access to both her telephone number and email address), and the defendant accordingly could have employed Rule 39.03 to secure the direct testimony of Ms McCallum, if that was truly thought to be desirable or necessary. o However, I am mindful of the reality that the plaintiff has the onus of proving, on the balance of probabilities, the requisite sustained adverse possession for the minimum required 10 year period prior to conversion of the strip into the Land Titles system in 1992.

The possible evidence of Ms McCallum has inherent relevance and importance in that regard, as she not only owned and lived at 573 from July 12, 1979 to November 10, 1987, but apparently grew up in a nearby residence and visited 569 regularly in the years before 1979, according to the sworn evidence of the Quigley sisters. Despite plaintiff counsel apparently being in contact with Ms McCallum by telephone and email, there nevertheless was a noticeable failure to obtain and provide direct sworn evidence from Ms McCallum, in stark contrast to the approach taken vis-à-vis past owners and occupants of 569.

No explanation was provided for the failure, and the basis for assessing the credibility and reliability of Ms McCallum was provided only indirectly, through the title documentation and the sworn evidence of the Quigley sisters. In the circumstances, even if paragraphs 48-50 can be construed as including specifications as to the plaintiff’s belief in Ms McCallum’s email assertions and the source of that belief, I think it appropriate to draw an adverse inference that Ms McCallum was unwilling to provide sworn evidence confirming the assertions in her email.

That in turn has led me to exclude and place no weight on the email in deciding this motion. [ 30 ] The defendant responded to the plaintiff’s material by filing her own affidavit, attaching exhibits that included the following: • an abstract of title for 573 obtained on August 15, 2016; • an abstract of title for 569 obtained on August 15, 2016; • a copy of the electronic registration of power of sale Transfer, dated October 1, 2009, whereby the defendant acquired title to 573; • a survey dated December 18, 2013, prepared by other licenced surveyors retained by the defendant, (i.e., Holstead & Redmond Limited); and • an obituary relating to the death of Margaret Jane Fradgley, on July 17, 2004, which makes indirect reference to the prior death of Ms Fradgley’s parents Frank and Lyall Morkin, who were the owners of 573 from February 27, 1947, to July 12, 1979. [ 31 ] There were no irregularities asserted or noted in relation to the evidence tendered by the defendant, and I independently found none. [ 32 ] In my view, there similarly were no material hearsay aspects to the defendant’s evidence, apart from the obvious inferences I was asked to draw from the aforesaid obituary notice, (concerning the deaths of Frank and Lyall Morkin, and their corresponding inability to provide evidence), and the substantive accuracy of the survey commissioned by the defendant, (which was not introduced or supported by any affidavit from the surveyors, including confirmation of their expertise and recognition of an expert’s duties).

Summary judgment [ 33 ] With that extended introduction and overview, and bearing in mind the legislation and principles outlined above, I turn next to consideration of whether the underlying questions raised by this motion, concerning the merit of the plaintiff’s claims to superior title over the strip via adverse possession, and requests for declarations, mandatory orders and permanent injunctive relief to protect such a title, are amenable to adjudication by

summary judgment. [ 34 ] Both the plaintiff and the defendant clearly believe that they are, as each party requested

summary judgment resolving such issues in her favour. In other words, neither party believes there are any genuine issues requiring a trial in relation to the plaintiff’s “adverse possession” claims, and associated requests for declarations, mandatory orders and injunctive relief. [ 35 ] I agree with the parties, and independently find that there is no genuine issue require a trial with respect to the plaintiff’s claims that are the subject of this motion. Without limiting the generality of the foregoing:

• While disputing that the evidence tendered by the plaintiff is sufficient to establish requisite adverse possession of the strip by the plaintiff’s predecessors in title, prior to the strip’s conversion to the Land Titles system, absolutely no contradictory evidence or indeed evidence of any kind was tendered in that regard by the defendant. • In effect, the approach taken by the defendant, at least in relation to the plaintiff’s claims asserting a superior possessory title via adverse possession, is that contemplated and prohibited by Rule 20.02.

In other words, in relation to those issues, the responding defendant has rested solely on the denials in her pleading, and accordingly has failed to establish a genuine issue requiring a trial, in relation to such issues, because she has not set out, “in affidavit material or other evidence”, specific facts showing that there is a genuine issue requiring a trial in that regard. That does not mean the plaintiff necessarily is entitled to judgment in her favour, in relation to those issues. In particular, the plaintiff still has the onus of proving the requisite adverse possession, on a balance of probabilities.

However, it does mean that “no genuine issue requiring trial” has or can be established, according to the rules, and a judgment in relation to those issues should issue. • In any event, I independently find that the merits of the plaintiff’s claims asserting adverse possession, sufficient to establish a possessory title, “can be resolved in a fair and just manner” by

summary judgment. I am entitled to assume that the admissible evidence presented is all that would be available at trial and, with some resort to the additional powers available to me pursuant to Rule 20.04(2.1) [38] , I think I am able to make the necessary findings of fact, and apply the law to the facts, in order to resolve the parties’ dispute in that regard without putting either to the further delay and expense of a trial to resolve such issues. • Moreover, I independently find that the plaintiff’s claims for declarations, mandatory orders and permanent injunctive relief are similarly capable of being “resolved in a just and fair manner” by

summary judgment. In that regard, both parties filed evidence relevant to the need for such orders, to protect any superior possessory title via adverse possession established by the plaintiff.

However, for reasons outlined in more detail below, I think there was little or no contradiction in relation to the evidence justifying such relief, and that any relevant contradictions or gaps in that evidence are capable of being addressed by resort to the additional powers available to me pursuant to Rule 20.04(2). [39] [ 36 ] I accordingly move on to consideration and determination of the plaintiff’s claims on their merits.

Adverse possession [ 37 ] It was not disputed that both 569 and 573, including the relevant strip of property, were converted into the Land Titles system on or about June 8, 1992. [ 38 ] As per the authorities outlined above, the plaintiff accordingly has the onus of proving, on a balance of probabilities, that requisite adverse possession by her predecessors in title occurred, for an uninterrupted period of at least 10 years, prior to that date. [ 39 ] While the plaintiff filed considerable evidence relating to possession and use of the strip from 1954 to the present, (with some intermittent gaps), I frankly think that the sworn evidence of Caroline Quigley and Therese Quigley is sufficient, in the particular circumstances of this case, to satisfy the plaintiff’s onus. [ 40 ] Despite defence counsel’s suggestions to the contrary, I find no reason to doubt the credibility or reliability of the evidence provided by the Quigley sisters.

Without limiting the generality of the foregoing: • There is nothing whatsoever in the evidence to suggest that either sister has any interest in the outcome of this dispute, or any reason to favour one party or the other in giving evidence. The sisters’ familial interest in 569 ended completely in August of 1983, more than 31 years before the swearing of their affidavit.

Although they apparently were friends with the Morkins and McCallums, who successively owned and resided at 573 between 1947 and November of 1987, (a period covering the entire period of the corresponding ownership of 569 by the Quigley family), those other families disposed of their interest in 573 more than 27 years before the Quigley sisters swore their affidavit. • Although defence counsel suggested that the sworn evidence of the sisters should be largely discounted and/or dismissed as unreliable childhood recollection, in my view there really was little or nothing to justify such an approach.

To the contrary: o While the affidavit sworn by the sisters contains no express indication of their respective birth dates and corresponding ages, in my view there are indirect indications providing satisfactory evidence of sufficient maturity for one or both sisters to recall events during most of the 29-year-and-8-month period of 569 occupation addressed by their affidavit.

In particular: ▪ The sisters effectively indicate they both were alive and members of the Quigley family when that family moved into 569 Grosvenor Street on January 21, 1954. [40] In my view, even if both sisters were quite young at the time of the 1954 move, they would have gained sufficient maturity to recall, with accuracy, events from much of the family’s occupation of 569, and certainly for 10 year periods extending well into their respective adult years. ▪ The affidavit refers to Therese Quigley attending primary school from 1958 to 1966, suggesting that she was born in or around 1953 or 1954, shortly before the family’s move from Talbot Street to 569, (if one takes judicial notice that children traditionally have started school at the age of 4 or 5 in Ontario).

There is no similar indication of the years when Caroline attended primary school. However, if Caroline also was alive by the time of the move, it seems reasonable to infer that she must have been older than Therese. ▪ Moreover, the affidavit also speaks to the two sisters being “children and teenagers” at the time of a hedge’s planting “in the mid- sixties”. That suggests Caroline is considerably older than Therese. o It seems to me that even young children are likely to be familiar with and able to recall events in and around their home, which obviously serves as the focal point of most childhood experience.

Indeed, they are likely to remember details which may very well not have been the focus or notice of a more adult perspective, such as the sisters’ indications of their regular placement of bicycles, and the strip being filled by friends’ bicycles during regular neighbourhood ball games played in the backyard of 569.

• In my view, the reliability of the sisters’ observations concerning the strip also seems heightened by their obvious joint agreement on most matters set forth in their affidavit, and indications that they were assigned responsibility for regular summer and winter maintenance of that area of the family property; e.g., personally trimming a hedge separating 569 and 573, and “chopping up the ice” that fell from both roofs and built up between the houses. [ 41 ] In my view, the Quigley sisters provide emphatic and categorical evidence that their family had actual possession of the land between the two houses, including the strip, throughout the years the family owned and occupied 569.

In that regard, the sisters’ sworn evidence included the following indications: • “For all intensive purposes”, (presumably meaning “for all intents and purposes”), the entire space between the houses at 573 and 569 respectively, including the strip, was “exclusively used” by the Quigley family. [41] • Over “all the years” of their residence at 569, the Quigley family maintained the entire walkway space between the two houses, “all the way over to the side (westerly) wall” of the house at 573.

As the sisters put it: “we alone managed this space year round”. [42] • In the mid-1960s, the Quigley family planted and thereafter exclusively maintained a privet hedge which grew quickly, thickly and densely to meet the southwest corner of the house at 573, thereby physically sealing off and separating the respective backyards of 569 and 573 from each other for the remainder of the Quigleys’ time at 569.

The Quigleys did so by watering, trimming and pruning the hedge on both sides, as well as the top. [43] • As noted above, the Quigleys assumed responsibility for chopping up fallen and accumulated ice that built up between the houses in winter.

Moreover, I think it reasonable to infer, from such maintenance, that the Quigleys were using the strip for transit purposes on a regular basis, such that maintenance was needed in order to have such transit continue during the winter months. • As mentioned above, the Quigleys also kept their bicycles between the two houses, and “the lane way between the houses was filled with bikes” when the neighbourhood ball games were scheduled for the Quigleys’ backyard. [ 42 ] In my view, the aforesaid uses made of the strip by the Quigleys inherently were open and notorious.

In particular, the Quigleys were using the strip as an owner might, and there was no evidence to indicate or even suggest that there was anything clandestine about their activities. Moreover, as emphasized by defence counsel, there is no evidence to suggest that the north entrance to the space between the houses was fenced or gated during the Quigleys’ time at 569. [44] Their use and maintenance of the strip therefore was capable of being seen by the Morkins and the McCallums, (the successive owners of 573 for 25 and 4 years respectively, during the Quigleys time at 569), had they chosen to look.

Furthermore, I think it reasonable to infer that the Morkins and McCallums must have been aware that the Quigleys were maintaining the hedge from both sides, as the Quigleys obviously must have entered the backyard of 573 on a regular basis to do so. [ 43 ] In my view, the aforesaid possession and use of the strip by the Quigleys also was constant and continuous, in the sense required. Again, the sisters emphasize that it was “year round”, and provided specifics of regular summer and winter maintenance.

There was no evidence to suggest that the Quigleys’ use of the strip was only for a limited, special or temporary purpose. [ 44 ] I think the sisters’ evidence also makes it clear that the Quigleys’ possession and use of the strip was “adverse”, in the required sense that it was done without the permission of the owner.

In that regard, the sisters emphasize that the Quigleys believed they owned the strip, and that the Morkins and McCallums “had absolutely nothing to do with the walkway space between the houses”. [45] They also swear that the Morkins and McCallums “believed it belonged to the Quigleys”. [46] Even if one discounts and rejects the latter assertion as impermissible speculation as to what the Morkins and McCallums actually may have believed, in my view the sisters’ evidence is completely at odds with any suggestion that the Quigleys secured or felt the need to secure any permission or consent from the Morkins or McCallums to possess and use the strip.

Nor is there any evidence whatsoever to suggest that the Quigleys ever acknowledged rights of the Morkins or McCallums in relation to the strip, or that the Morkins or McCallums provided any form of consent or permission to the Quigleys to possess and use the strip. [ 45 ] Although defence counsel questioned the sufficiency of all such evidence to establish actual possession of the strip in the sense required, there is simply no evidence to contradict that of the sisters, and no other relevant evidence to weigh in the balance. [ 46 ] I accordingly find that the plaintiff has established, on a balance of probabilities, satisfaction of the first of the criteria for adverse possession; i.e., that her predecessors in title, (the Quigleys), had actual possession of the relevant land, (the strip), for the minimum statutory period of ten years.

Indeed, the completely uncontradicted evidence of the sisters indicates that the Quigleys had actual possession of the strip for a much longer period; i.e., more than 29 years. [ 47 ] As for the second of the three criteria normally required for adverse possession, (i.e., an intention to exclude the true owner and “inconsistent use” in the sense required), in my view that requirement does not apply to present case, according to the authorities outlined above.

In that regard: • As noted above, in their affidavit, the Quigley sisters swear that the Quigleys and the Morkins and McCallums believed the strip belonged to the Quigleys [47] , which would make the case one of honest mutual mistake; i.e., a case where the persons in possession and the true owners were operating under a mistaken belief as to the true title or boundary between their respective properties.

Even if one discounts and rejects the sisters’ evidence of what the Morkins and McCallums believed, (i.e., as impermissible speculation), there is still the absence of any evidence of an objection by the titled owners, (i.e., the Morkins or McCallums), to the Quigleys’ use and occupation of the strip.

Pursuant to the authorities outlined above, that in itself gives rise to a reasonable inference that the titled owners also believed the strip was the property of the Quigleys. [48] • At the very least, the evidence before me clearly establishes that this is a case of honest unilateral mistake, insofar as the Quigleys possessed and used the strip under an honestly held belief that they were the rightful owners of the property. In that regard, there is simply no evidence to undermine or contradict the sworn evidence of the Quigley sisters that their family believed the strip “belonged to the Quigleys”. [49]

• Pursuant to the authorities outlined above, I accordingly find it permissible and reasonable to infer that the Quigleys were in possession of the strip with the intention of excluding all others, including the legal owners of the strip, (i.e., the Morkins and McCallums), who formally held title to the strip.

Put another way, the second criteria is presumed to be met in such cases of honest mistake, in the absence of evidence to the contrary, and there is no evidence to the contrary in this case. [ 48 ] As for the last of the applicable criteria that must be satisfied to establish a valid claim to possessory title based on adverse possession, (i.e., that there was “actual exclusion of the true owners”), I think this too has been established on a balance of probabilities, based on the evidence before me, and the sworn affidavit of the Quigley sisters in particular.

In that regard: • In their affidavit, the sisters repeatedly emphasize that their family’s use, maintenance and accessing of the strip was “exclusive”, and exercised “exclusively”, during the entire period of their residence at 569. [50] • The sisters also emphasize that the Morkins and McCallums “had absolutely nothing to do with the walkway space between the houses”. [51] • The sisters also swear that they do not recall ever seeing the Morkins or the McCallums using the walkway space between the houses for access purposes, and emphasize that access between the walkway and the backyard of 573 became physically impossible in any event once the privet hedge was planted in the mid-sixties and quickly grew to a point where it made contact with the southwest corner of the house at 573. [52] • The sisters also emphasize numerous other considerations, in addition to lack of access between the strip and the backyard to 573, effectively indicating that there was little or no reason for the successive owners of 573 to access the strip while the Quigleys were residing at 569.

For example, the sisters swear that the west side the house at 573 had no driveway, no entrances or exits, no electricity stacks or meters mounted, no water hose spool, no lights, nor “any other such installations”, and that such features were located on the eastern side of the house at 573. [53] • In their affidavit, the sisters also swear that the hedge was planted by their family to foster and respect privacy between the two properties, as the Morkins living at 573 were elderly, and the Quigleys had seven children living in their residence at 569. [54] In my view, such evidence gives rise to a reasonable inference, (consistent with the memories and evidence of the sisters of never seeing the Morkins using the strip), that the Morkins generally would not be inclined to access that area during the period of the Quigleys’ residence. • While there was no fence or other barrier physically obstructing access to the strip from its north end, during the time of the Quigleys’ residence at 569, the authorities noted above confirm that such an enclosure is not required to establish effective exclusion of the true owner, in the sense required. • Moreover, as noted above, the absence of objection to use or occupation of the strip by the Quigleys, (and there is no evidence of any such objection in this case), provides further evidence that the “true owners” had been dispossessed throughout the period of the Quigleys’ residence at 569. [ 49 ] In the course of oral submissions, defence counsel emphasized, in accordance with the authorities cited above, that it would not take much for the true owners of the strip, (i.e., the Morkins or the McCallums, during the period of the Quigleys residence at 569), to interrupt any period of exclusion by the Quigleys, effectively restarting the statutory period of adverse possession required to establish possessory title. [ 50 ] For example, it was emphasized that even one fleeting occasion of access by the Morkins or McCallums to the strip, to effect repairs or maintenance, at intervals just under 10 years during the course of the Quigleys’ residence at 569, would have sufficed to frustrate any successful claim by the Quigleys of adverse possession giving rise to possessory title. [ 51 ] All of that is true. [ 52 ] However, in my view, the simple reality is that there is absolutely no evidence of any entry onto the strip, by the Morkins or the McCallums, during the 29-year period of the Quigleys residence at 569 and their corresponding exclusive use and occupation of the strip throughout that period.

Moreover, the available sworn evidence indicates that the contrary is true. [ 53 ] Defence counsel asked me to assume that there reasonably must have been such access during the course of that period, to effect maintenance or repairs. In my view, however, making such an assumption, contrary to the available evidence, would entail impermissible speculation rather than reasonable inference.

In that regard: • The evidence before me indicates that there was little on the west side of the house at 573, during the period of the Quigleys’ occupation of 569, that would necessitate access or maintenance. • The evidence also indicates that the Morkins were elderly neighbours, with whom the Quigleys enjoyed a cordial relationship, and that the Quigleys provided considerable voluntary and neighbourly assistance to the Morkins by providing substantial maintenance in relation to 573; e.g., trimming the hedge between the properties on both sides, (including the side facing the backyard of 573), mowing the front and back lawns of 573, and shovelling snow at 573. [55] In the circumstances, and given the other uncontradicted evidence of the Quigleys exercising exclusive access and maintenance in relation to the entire area between the two houses, I think it would be just as reasonable, if not more reasonable, to assume or infer that the Quigleys voluntarily would have performed any necessary repairs or maintenance to 573 requiring access to or from the strip. [56] • As noted above, to counter the plaintiff’s assertion that the actual owners of the strip were excluded for the requisite minimum statutory period, one would have to assume not just one interruption of such exclusion by the true owners during the 29 year period of the Quigleys’ residence at 569, but several such interruptions, occurring not more than 10 years apart.

In my view, that simply underscores the inappropriate nature of making such assumptions repeatedly, in favour of the defendant, contrary to the available sworn

evidence. [ 54 ] In the result, I find that the plaintiff also has established, on a balance of probabilities, uninterrupted actual exclusion by the true owners of the strip for a period of at least ten years. [ 55 ] The plaintiff accordingly has established each of the applicable requirements necessary to demonstrate a possessory title that matured or crystallized before the strip was converted into the Land Titles system. [ 56 ] Again, I think the uncontradicted sworn evidence of the Quigley sisters alone is sufficient to reach that conclusion. [ 57 ] However, I also think that conclusion is buttressed by the evidence of subsequent owners of 569, who have provided sworn evidence consistent with a sustained belief, conduct and understanding, in the years following the departure of the Quigleys, that the complete space between the houses was owned, and capable of exclusive occupation and use, by those holding title to 569. [ 58 ] For example, even excluding the evidence of Ms McCallum’s hearsay email assertions, for the reasons outlined above, I think it telling that, according to the sworn affidavit evidence of Ms McDonald: • When she and her husband purchased 569 in June of 1990, (almost seven years after the departure of the Quigleys), access between the backyard of 573 and the strip was still blocked entirely by the surviving privet hedge, while the northern entrance to the strip was still not enclosed by any fence or other barrier. [57] • Like the Quigleys, the situation presenting itself to Ms McDonald and her husband made them honestly believe that they were the true owners of the entire space between the two houses, to the exclusion of all others. [58] • Like the Quigleys, Ms McDonald and her husband exclusively used and maintained the entire area between the houses as their own, right over to the west wall of the house at 573, and never asked for any permission in that regard from the owners of 573. [59] • Like the Morkins and McCallums, those who owned and occupied 573 while Ms McDonald and her husband owned and occupied 569 never entered the space between the houses, from any direction, and never used or maintained the space at all. [60] • Ms McDonald and her husband were able to tear out the privet hedge, replace it with a fence that similarly sealed off the backyard of 573 from the strip, and install and maintain a fence and gate barrier at the northern end of the strip, (thereby increasing the physical exclusivity of the strip), without any interest or objection whatsoever from the owners of 573. [61] [ 59 ] In my view, all of that evidence, from an additional independent witness who has absolutely no interest in the outcome of these proceedings, serves a number of purposes.

In particular: • It supports the reasonableness and probable accuracy of the sworn evidence provided by the Quigley sisters, in relation to such matters as the absence of any need for the owners of 573 to access the strip to perform repairs and maintenance; [62] • From June 29, 1990, until conversion of the strip into the Land Titles system on or about June 8, 1992, it provides direct evidence of a further period during which the requirements of adverse possession seem to be met, for reasons similar to the analysis set forth above in relation to the period of occupation and use by the Quigleys; and • It provides indirect evidence that an understanding and exercise of exclusive adverse possession of the strip by the owners and occupiers of 569, described by the Quigleys, effectively had been passed on and sustained as between the subsequent owners and occupiers of the two properties, between the time of the Quigleys’ departure and Ms McDonald’s arrival. [ 60 ] On the last point, further evidence of similar conduct and understandings between the owners of 569 and 573, subsequent to the conversion date, arguably might provide further indirect evidence of the practices and situation existing prior to the conversion date; i.e., not because adverse possession after the conversion date can itself create any valid possessory title, (as it most certainly cannot), but because evidence of an “inherited” understanding, consistently passed on and followed by successive owners, might provide further indirect evidence of an effectively accepted and recognized possessory title that matured and crystallized before the conversion date. [ 61 ] However, I think it unnecessary to carry out further examination and review of the additional evidence tendered by the plaintiff, in support of her adverse possession claim. [ 62 ] For the reasons outlined above, (including the sufficiency of the sworn evidence provided by the Quigley sisters), the plaintiff already has proven her claim in that regard, on a balance of probabilities.

Relief DECLARATORY RELIEF [ 63 ] The plaintiff has sought numerous remedies in her notice of motion, starting with requests, in sub-paragraphs 1(a)(i), 1(a)(ii) and 1(a)(iii) of that notice of motion’s prayer for relief, for declarations: i. “that the defendant’s right to possession of and title to” the disputed strip of land, specifically described and delineated in the plan of survey prepared by Mr Baker, “is extinguished pursuant to the Real Property Limitations Act ”; ii. “that the plaintiff has a valid possessory title to the said lands”; and iii. “that the plaintiff may be registered as the owner in fee simple of such lands, with an absolute unqualified title there to pursuant to the Land Titles Act ”.

[ 64 ] I think it fair to say that the relief sought in sub-paragraphs 1(a)(

i) and 1(a)(ii) of the notice of motion’s prayer for relief corresponds, with slight variations in form, to the relief sought in sub-paragraphs 1(

a) and 1(

b) of the plaintiff’s statement of claim. [ 65 ] As noted above, where a claimant has demonstrated satisfaction by the claimant and/or his or her predecessors in title of the applicable requirements for adverse possession in relation to land, for the minimum period required by statute, prior to conversion of that land into the Land Titles system, (as the plaintiff has done in this case for the reasons outlined above), the court has the discretion to grant such a claimant the sort of relief sought in sub-paragraphs 1(a)(

i) and 1(a)(ii) of the notice of motion prayer for relief. [63] [ 66 ] In the circumstances, I see no reason why the plaintiff should not be granted such relief by way of partial

summary judgment, having regard to the considerations set forth in Hyrniak v. Mauldin, supra . [ 67 ] A final order accordingly should go, granting partial

summary judgment awarding the relief requested at sub-paragraphs 1(a)(

i) and 1(a)(ii) of the notice of motion, except that the wording of the order shall be revised so as to correct and include the proper statutory citation; i.e., the Real Property Limitations Act , R.S.O. 1990, c.L.15. [64] [ 68 ] As for the declaratory relief sought by sub-paragraph 1(a)(iii) of the prayer for relief in the plaintiff’s notice of motion, the following legislative provisions are found at

section 36 of the Land Titles Act , supra : Possessory title may be registered 36.

(1) Where on an application for first registration it appears that the application is so entitled by virtue of length of possession of the land, the applicant may be registered as the owner of the land with a possessory title. Absolute title based on possession

(2) Subject to the approval of the Director of Titles , an application for first registration whose claim to ownership is based upon length of possession of the land may be registered as the owner in fee simple with an absolute title of the land. [Emphasis added.] [ 69 ] I find the wording of the relief sought by the plaintiff in that regard problematic. [ 70 ] In particular, the relief seeks a declaration that the plaintiff “may” be registered as the owner in fee simple of the specified strip of land “pursuant to the Land Titles Act ”.

That quoted wording may suggest not only mere possibility, but also a mere possibility subject to the discretionary approval authority expressly conferred by the Legislature on the Director of Titles. If so, a court declaration would seem to be of little consequence, which in turn may suggest to a reader of such a declaratory order that the court intended something more; i.e., a court sanctioned “override” of the authority conferred by the Legislature on the Director of Titles. [ 71 ] I was provided with no authority or submissions to support the possibility of any such “override”.

Nor, to my knowledge, was the plaintiff’s motion record served on the Director of Titles, who might very well have views on the matter and submissions to make in that regard. [ 72 ] In the circumstances, I decline to grant the relief requested at sub-paragraph 1(a)(iii) of the prayer for relief in the plaintiff’s notice of motion.

However, I do so without prejudice to the plaintiff’s ability to seek further assistance from the court, on proper notice to the Director of Titles, if attempts to secure her desired registration, (e.g., through reliance on these reasons and the other relief ordered herein), are unsuccessful. MANDATORY ORDERS AND INJUNCTIVE RELIEF [ 73 ] In sub-paragraphs 1(a)(iv) through 1(a)(vii) inclusive of the prayer for relief in the plaintiff’s notice of motion, the plaintiff seeks a number of mandatory orders and a permanent injunction.

Those requests correspond, in large measure, to requests for such permanent relief included within sub-paragraphs 1(

e) of the plaintiff’s statement of claim. [ 74 ] Such desired relief seeks to address, in various ways, the plaintiff’s concerns regarding alleged past and threatened interference, by the defendant, with the plaintiff’s now confirmed superior title to the relevant strip of land. [ 75 ] In my view, the evidence before me substantiates such concerns, and warrants partial

summary judgment granting of such relief. [ 76 ] In that regard, the plaintiff’s affidavit includes detailed evidence of various and repeated intrusions by the defendant onto the strip, and associated acts of apparently deliberate disturbance and/or destruction. For example, the plaintiff’s sworn evidence includes the following indications: • On or about August 10-12, 2012, the defendant moved garbage bins the plaintiff had been placing on strip.

The defendant also placed many bags of dirt directly on top of well-established ground cover, growing on the strip, that had been planted and maintained by the plaintiff and/or previous owners of 569 Grosvenor Street. Placement of the bags suggested a deliberate attempt to kill the relevant ground cover. • During the week following August 12, 2012, the defendant placed and rearranged bags of dirt on the strip’s ground cover on three further occasions.

On each occasion, the defendant would move bags of dirt back into position over the ground cover, countering repeated efforts by the plaintiff to move the bags off the ground cover, and once again suggesting a deliberate attempt by the defendant to kill the relevant ground cover on the strip. • On August 26, 2012, (after the plaintiff and her husband had begun locking the gate providing access to the strip from its north end), the defendant removed vertical fence boards from the east-west portion of the fence, erected in 1992 by the plaintiff’s predecessors

in title, running along the southern end of the strip. • On the evening of August 31, 2012, the defendant uprooted and removed two small cedar trees from the strip, and re-planted them in the defendant’s backyard. The defendant also covered the entire length of the strip with dirt, effectively killing the groundcover and plants installed and maintained by the plaintiff and her predecessors in title. • On October 12, 2012, (approximately 12 or 13 days after the aforesaid vertical fence boards had been restored by the plaintiff’s husband), the defendant once again removed the relevant fence boards.

Other actions taken on that occasion by the defendant, in relation to the strip, included placement of more dirt, laying of new fence boards around the ground, placement of stakes in the ground, and the stringing of upper and lower lines along the length of the strip to mark the course for construction of a fence. • From October 13 to 21, 2012, the defendant and her boyfriend erected a board fence between the two houses; work that included the digging of holes, and placement of fence posts in those holes, before the holes were then filled with concrete.

A subsequent survey belatedly obtained by the defendant herself, in December of 2013, would confirm that the fence thus erected by the defendant and her boyfriend actually was located to the west of the strip, on property unquestionably owned by the plaintiff.

In any event, the defendant and her boyfriend self-evidently accessed and crossed the strip on a sustained basis to erect the new fence. • In late November of 2013, the defendant and her boyfriend verbally and physically interfered with efforts by the plaintiff’s husband to dismantle the fence constructed by the defendant and her boyfriend, and related efforts by the plaintiff’s husband to restore the vertical boards of the 1992 fence. (Those actions by the plaintiff’s husband were taken after the provision of written notice exchanged through lawyers retained by the parties.) • Since November of 2013, the defendant has persisted in placing and re-arranging various items and articles on the strip, including a hose spool or reel, a black garbage bag, an inverted bucket with piled items including long-festering dog feces, as well as other debris and refuse.

The defendant has done so deliberately; e.g., by bringing items from her undisputed property to the strip, and by moving such items back onto the strip after temporary efforts by the plaintiff to relocate them onto other nearby areas of property indisputably owned by the defendant.

In a similar fashion, the defendant has taken to placing her domestic garbage at the north end of the strip, (despite previously placing it on her front porch facing Grosvenor street), with associated odours, blown garbage and rolling garbage containers. [ 77 ] None of that conduct alleged by the plaintiff and described in the previous paragraph was disputed by the defendant in her responding material, or in the other evidence before me.

I accordingly find that such actions occurred, as alleged by the plaintiff. [ 78 ] I also find that all of that conduct by the defendant and/or boyfriend was done without the plaintiff’s direct or indirect permission or consent. [ 79 ] In that regard, the defendant’s responding material contains no suggestion of any such permission or consent in relation to the conduct described above, with the possible exception of removal of the fence boards and removal and replanting of the shrubs. [65] [ 80 ] In relation to removal of the fence boards, the defendant alleged that she had made express statements to the plaintiff’s husband “in or about mid-August” indicating her

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