Defendant owned vacant lot adjacent to plaintiffs’ lot. Both lots were converted to land titles in 2001. Defendant listed its lot for sale. Plaintiffs brought action for declaration that they owned portion of defendant’s lot (“disputed lands”) through adverse possession. Action was dismissed. Plaintiffs failed to show that their predecessors in title (H) established adverse possession over disputed lands prior to conversion to land titles, or that H’s acts of possession had intention of and effectively excluded true owner from possession. Trial judge found that use of defendant’s lot by H was seasonal and intermittent at best, which did not meet requirement of being constant and continuous, so there was no actual possession of disputed lands. Plaintiffs appealed. Appeal dismissed. It was clearly arguable that H’s use of disputed lands was sufficient to establish actual possession. However, plaintiffs’ claim failed on second branch of test for adverse possession, as they failed to show that H intended to use disputed lands in manner inconsistent with right of true owner to possession. H testified that he completed fence that enclosed disputed lands in belief that they were part of his property, and that he built concrete steps and two sheds on disputed lands. Mutual mistake could not be established on record; nor could argument of unilateral mistake by H be supported. It was open to trial judge to consider agreement of purchase and sale and statutory declaration when plaintiffs purchased their lot in rejecting H’s evidence that he believed he owned disputed lands. Trial judge’s conclusion that H knew he had no claim to defendant’s lot was not palpable and overriding error.
Sipsas v. 1299781 Ontario Inc. (2017), 2017 CarswellOnt 4409, 2017 ONCA 265, Alexandra Hoy A.C.J.O., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 1572, 2016 ONSC 212, Hood J. (Ont. S.C.J.).