Loken v. St. Peter's Court Apartments
The appeal is dismissed because the application judge’s findings, grounded in the agreed facts, affidavits and cross-examination, established that the appellant did not prove the exclusion of the registered owner from the intended or ordinary use of the land and therefore failed to prove adverse possession.
Source-derived case information.
- Citation
- 2018 ONCA 501
- Parties
- Appellant: Johanne Mainville Loken; Respondent: St. Peter’s Court Apartments
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 30 May 2018
- Procedural Posture
- Civil / Appeal — Court of Appeal Decision From Superior Court Judgment (appeal Heard May 25, 2018; Reasons Released May 30, 2018)
- Outcome
- Appeal dismissed
- Legal Topics
- Adverse Possession, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johanne Mainville Loken
Appellant
St. Peter’s Court Apartments
Respondent
Procedural Posture
Civil / Appeal — Court of Appeal Decision From Superior Court Judgment (appeal Heard May 25, 2018; Reasons Released May 30, 2018)
Legal Issues
- 1 Whether the appellant established adverse possession
- 2 Whether the registered owner was excluded from intended or ordinary use of the disputed land
- 3 Whether the application judge departed from the agreed facts in making findings of fact
Ratio Decidendi
The appeal is dismissed because the application judge’s findings, grounded in the agreed facts, affidavits and cross-examination, established that the appellant did not prove the exclusion of the registered owner from the intended or ordinary use of the land and therefore failed to prove adverse possession.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to the respondent fixed at $9,000 inclusive of disbursements and HST
Full Case Text
Judgment text and source record
1 paragraphs
Loken v. St. Peter's Court Apartments Collection Decisions of the Court of Appeal Date 2018-05-30 Neutral citation 2018 ONCA 501 Docket numbers C64606 Judges Pepall, Sarah E.; van Rensburg, Katherine; Paciocco, David M. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Loken v. St. Peter's Court Apartments, 2018 ONCA 501 DATE: 20180530 DOCKET: C64606 Pepall, van Rensburg and Paciocco JJ.A. BETWEEN Johanne Mainville Loken Applicant (Appellant) and St. Peter’s Court Apartments Respondent (Respondent in Appeal) James Morton, for the appellant Jason Schmidt, for the respondent Heard and released orally: May 25, 2018 On appeal from the judgment of Justice M. Lack of the Superior Court of Justice, dated October 27, 2017. REASONS FOR DECISION [1] This is an appeal of the dismissal of a claim for adverse possession. [2] The appellant says that the application judge erred when she departed from the agreed facts in concluding that adverse possession had not been made out, and in making findings of fact that were contrary to the agreed facts. [3] The appellant says that the application judge’s finding that the respondent had not been excluded from the disputed property is inconsistent with the agreed fact that the hedge did not allow access to the respondent’s property and effectively excluded uninvited persons and trespassers. [4] We disagree. The question here was whether the respondent was excluded from its intended or ordinary use of the property in dispute. The admitted fact relied on by the appellant simply states that the area enclosed by the hedge effectively excluded uninvited persons and trespassers. This is not inconsistent with the application judge’s finding. In this regard, she found that the respondent had not been excluded from the disputed property because its use as a hedge was consistent with the use the registered owner intended. [5] The findings made by the application judge, which were based on the agreed facts, affidavits and the transcript of the cross-examination of the appellant, fully supported the conclusion that the claim for adverse possession had not been established. [6] The appeal is therefore dismissed. Costs to the respondent fixed at $9,000, inclusive of disbursements and HST. “S.E. Pepall J.A.” “K. van Rensburg J.A.” “David M. Paciocco J.A.”