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Tuesday, April 18, 2017

Court of Appeal confirms inconsistent use requirement for adverse possession in Ontario

In a recent post, I wrote about a B.C. adverse possession case that made it all the way to the Supreme Court of Canada - Nelson v. Mowatt.  The Ontario Court of Appeal has now released a decision in which it comments on the Mowatt decision and the question of whether an Ontario adverse possession claimant must satisfy the "inconsistent use requirement" (by demonstrating that his or her use of disputed lands was inconsistent with the intended use of the "true owner").  Here is what the Court says:
A note on Mowatt
[29]      After this appeal was heard, the Supreme Court released Mowatt, a decision concerning the law of adverse possession in British Columbia. We refer to Mowatt in para. 20, above. In Mowatt, the Supreme Court also noted, citing Masidon and other cases, that the inconsistent use requirement appears in the jurisprudence of Ontario.  It held that the law of British Columbia governing adverse possession does not require a claimant to demonstrate that his or her use of disputed lands was inconsistent with the intended use of the “true owner”. At para. 27, Brown J., for the court, wrote: “Whether the requirement is properly applicable in other provinces remains an open question subject to examination of their respective legislative histories, the wording of their particular limitation statutes, and the treatment of these matters by the courts of those provinces.”  
[30]      In supplemental submissions following the release of Mowatt, the appellants effectively urge this panel to overrule Masidon and eliminate the inconsistent use requirement in Ontario, without regard to whether there is mutual or unilateral mistake.  However, this panel is not in a position to overrule Masidon.
So, it seems that the question left open by the Supreme Court has (relatively) quickly been answered by the Ontario Court of Appeal: inconsistent use remains a requirement of the law of adverse possession in Ontario (see Masidon Investments Ltd. v. Ham).

Read the Ontario Court of Appeal's decision at: Sipsas v. 1299781 Ontario Inc.