Court Turns Right of Way into Absolute Ownership
The Ontario Court of Appeal decided that a property owner may still acquire property through adverse possession in Friday Harbour Village Inc. v. 2138746 Ontario Inc., 19 December 2018.
2138746 Ontario Inc. (231) was the owner of Block C, which was composed of two parts, 1) the western strip, and 2) the marina strip.
Friday Harbour owned two parcels of property on either side of the marina strip.
The Trial Judge decided Friday Harbour:
- has acquired legal and beneficial ownership of the Marina Strip by adverse possession,
- has not abandoned its titled right of way over the Marina Strip,
- has a prescriptive easement over the Marina Strip, and
- that no action in trespass lies against Friday Harbour for its occupation and use of the Marina Strip.
Friday Harebour’s right of way over the Western Strip has been abandoned.
Justice Paciocco for the Court stated:
“ The trial judge recognized there is a heavier onus on a party claiming adverse possession of property over which it also has a right of way.
The party must prove that its use of the property was not simply an exercise of the right of way.
She found, however, that the evidence demonstrated that the between 1963 and 1975, and since then, Friday Harbour’s predecessors in title exercised such complete dominion, control and possession over the Marina Strip that they effectively, and with intention, excluded 213 and 213’s predecessors in title from use of the Marina Strip.”
She was entitled on the evidence before her to conclude that the titled owner only used the Marina Strip in the same capacity as other marina patrons, and that the titled owner was excluded qua owner. She committed no legal errors in making these findings.
 I would also reject 213’s submission that the evidence is incapable of supporting the trial judge’s conclusion that there was an impassable barrier across Block C, depriving the titled owner of access to the Marina Strip.
Ample evidence supports this finding, including the gate that had been constructed across Block C, the adjoining fence, and the testimony of Mr. Williams that the whole gate area was overgrown and “it would be tough to get through” the vegetation.
 The other means of access to the Marina Strip relied upon by 213 to oppose the adverse possession finding are irrelevant.
213 cannot rely upon means of access that would have required trespassing over other Friday Harbour land to defeat Friday Harbour’s adverse possession claim.
Nor does the fact that during the relevant time it was possible to climb over the gate or use water access defeat the claim.
What is relevant is whether the titled owner was able to access thedisputed land in the ordinary manner:
The Court confirmed:
“On the evidence, at all relevant times all parties knew about and acquiesced to the impassable barrier that prevented 213’s predecessors in title from accessing the Marina Strip.”
 Nor do I accept that the trial judge erred by finding adverse possession without making a finding about the intended use of the Marina Strip by 213’spredecessors in title.
The trial judge was entitled to find that the dominion exercised by Friday Harbour’s predecessors would, by its nature, defeat any use that a titled owner could make of the land. It necessarily follows from this finding that whatever uses 213’s predecessors in title might possibly have intended would be defeated.
 In any event, there is merit in Friday Harbour’s submission that given the right of way, the only permissible use the titled owner could make of the Marina Strip would be to gain access to the other lot owners’ land and the water, and that this use was entirely defeated by the impassable barrier preventing access to the Marina Strip.”
The trial in this case took place in December 2017, and the appeal in December 2018. The “key” evidence related to usage of the marina strip over a 12 year period, from 1963 to 1975.
In this case, prior owners were able to turn what they had, namely a right of way, into full ownership by adverse possession. So, no Deed, no money paid, just “squatter’s rights”, which is effectively a manner of stealing real property from someone else.
The property has to be in Registry system, not Land Titles. The occupation must be open, continuous, in full view, not surreptitious, without consent, and deprive the actual owner of his property for the requisite number of years, being 10 years in Ontario.
You will appreciate that it’s difficult to find witnesses from the appropriate time period, but here, Mr. Williams was able to attend at trial and testify about the gate and the vegetation. That’s important, otherwise the case will be unsuccessful.
Once property is transferred into the Land Titles registration system, there can be no new rights acquired. Legal theft is not permitted. The accumulation of time ends. However, as was the case here, rights are grandfathered, providing you can prove it.
Brian Madigan LL.B., Broker