Summary

38598

Gerald Anthony v. Gary Gordon McKenzie, et al.

(Ontario) (Civil) (By Leave)

Keywords

Property — Real Property — Adverse Possession — Applicant claiming possessory title to portion of respondent’s property — Is the doctrine of “inconsistent use” applicable in Canadian law? — How is adverse possession to be determined in cases of mutual mistake? — To what extent does the law protect good faith reliance on boundary errors? — How should the conflict between the Ontario Court of Appeal decision in this case and long established Canadian jurisprudence be resolved?

Summary

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Gerald Anthony is the registered owner of 10 acres of land at 202 St. John’s Sideroad East in the town of Aurora, Ontario. Mr. Anthony acquired title to this property in 1997 from Eric and Stella Fulton. 202 was converted into Land Titles Absolute in 1991. Gary and Jennifer McKenzie are the registered owners of 36 acres of land at 130 St. John’s Sideroad East in Aurora. 130 was converted into Land Titles Conversion Qualified on September 27, 1999. Both sets of property were subdivided in 1972 from a 100 acre family farm owned — at that time — by Mr. McKenzie’s grandmother. Mr. Anthony brought an action for adverse possession of the approximately 6 acres of land located at the north east corner of 130. In response, the McKenzie’s brought a motion for summary judgment, requesting the action be dismissed. A motions judge for the Ontario Superior Court of Justice granted the motion for summary judgment and dismissed Mr. Anthony’s action. According to the judge, Mr. Anthony (and the Fultons as previous owners) had failed to demonstrate adverse possession of the entire 6 acres of disputed land for at least 10 years prior to September 27, 1999, when the property was registered under the Land Titles Act, RSO 1990, c L.5. A unanimous Court of Appeal for Ontario agreed with the motions judge and dismissed the appeal.

Lower Court Rulings

May 8, 2018
Ontario Superior Court of Justice

2018 ONSC 2752, CV-17-132506-00
Motion for summary judgment granted; Action dismissed.
February 25, 2019
Court of Appeal for Ontario

C65491, 2019 ONCA 147
Appeal dismissed.