Masidon Investments Ltd. et al. v. Ham

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Zuber, Blair and Goodman, JJ.A.
• Citation: (1984), 2 O.A.C. 147 (CA),1984 CanLII 1877 (ON CA),45 OR (2d) 563,[1984] OJ No 3139 (QL),25 ACWS (2d) 38,2 OAC 147,31 RPR 200
• Date: 06 April 1984

Masidon Inv. Ltd. v. Ham (1984), 2 O.A.C. 147 (CA)

MLB headnote and full text

Masidon Investments Limited, Cohen, Wolfe, Etigson, Hyman, Fogel, Gandalman, Josephs, Raymond, and Josephs Estate v. Ham

Indexed As: Masidon Investments Ltd. et al. v. Ham

Ontario Court of Appeal

Zuber, Blair and Goodman, JJ.A.

April 6, 1984.

Summary:

A mortgagee obtained and registered a final order of foreclosure against land which was leased at the time to the defendant. Title to a portion of the lands remained in the mortgagee and was later conveyed to the plaintiffs. The defendant continued to occupy the land as a trespasser for over ten years after the foreclosure, and, inter alia, operated an airport on the property. The plaintiffs intended to hold the land for future sale and development and neither entered upon nor used the property. The plaintiffs sued for a declaration of their ownership, an injunction restraining the defendant from entering the lands and punitive damages. The defendant counterclaimed for a declaration that he acquired possessory title to the land.

The Ontario High Court, in a decision reported in (1982), 39 O.R.(2d) 534, allowed the plaintiffs' action and granted them a declaration of ownership. The court dismissed the defendant's counterclaim. The defendant appealed.

The Ontario Court of Appeal dismissed the appeal.

Real Property - Topic 5602

Title - Extinguishment of title - Limitation of actions - Adverse possession - General - The Ontario Court of Appeal stated that adverse possession is established "where the claimant's use of the land is inconsistent with the owner's use of the soil for the purposes for which he intended to use it" - See paragraph 17.

Real Property - Topic 5603

Title - Extinguishment of title - Limitation of actions - Adverse possession - Purpose of limitation of actions legislation - The Ontario Court of Appeal affirmed that the purpose of the Limitations Act, R.S.O. 1980, c. 240, was not "to promote the obtaining of possessory title" by a trespasser - See paragraphs 33 to 34.

Real Property - Topic 5638

Title - Extinguishment of title - Limitation of actions - Adverse possession - Possession - Uses not constituting possession - A tenant trespassed on land for over ten years after a mortgagee obtained a final order of foreclosure - Later the mortgagee conveyed title to the plaintiffs - The plaintiffs intended to hold the land for future development - Neither the plaintiffs nor their agents (excepting two appraisers) entered or used the property during this time - The tenant operated a private airport on the property, built a hangar and provided aircraft and vehicle parking - There was no fencing to prevent others from entering - The Ontario Court of Appeal affirmed that the tenant's use was not inconsistent with the plaintiffs' use and was insufficient to establish adverse possession - See paragraphs 17 to 32.

Real Property - Topic 5638

Title - Extinguishment of title - Limitation of actions - Adverse possession - Possession - Uses not constituting possession - In determining whether a claimant's use of property effectively excluded the owner from possession, the Ontario Court of Appeal affirmed that any future use to be made by the owner was irrelevant and that only the owner's use during the limitation period was significant - See paragraphs 26 to 28.

Real Property - Topic 5646

Title - Extinguishment of title - Limitation of actions - Adverse possession - Possession - Possessory title - Establishment of - The Ontario Court of Appeal held that to establish possessory title, the claimant throughout the statutory period must have (1) actual possession (2) the intention of excluding the true owner from possession and (3) effectively excluded the true owner from possession - See paragraph 14 - The court held that the claim fails unless each test is met and time begins to run against the owner only from the last date when all are satisfied - See paragraph 15.

Cases Noticed:

Keefer v. Arillotta (1976), 13 O.R.(2d) 680, consd. [para. 14].

Fletcher v. Storoschuk et al. (1981), 35 O.R.(2d) 722, consd. [para. 14].

Wright v. Olmstead (1911), 3 O.W.N. 434; 20 O.W.R. 701, refd to. [para. 15].

Pflug and Pflug v. Collins, [1952] O.R. 519, refd to. [para. 15].

Ledyard v. Chase, 57 O.L.R. 268, refd to. [para. 15].

Leigh v. Jack (1879), 5 Ex. D. 264, consd. [para. 17].

John Austin & Sons Ltd. v. Smith et al. (1982), 35 O.R.(2d) 272 (C.A.), consd. [para. 21].

Williams Brothers Direct Supply Stores Ltd. v. Raftery, [1958] 1 Q.B. 159, consd. [para. 23].

Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mex and BP Ltd., [1974] 3 All E.R. 575, consd. [para. 24].

Giouroukos v. Cadillac Fairview Corp. Ltd. et al. (1982), 37 O.R.(2d) 364, not folld. [para. 27].

Harris v. Mudie (1883), 7 O.A.R. 414, refd to. [para. 33].

Lewis v. Todd and McClure, [1980] 2 S.C.R. 694; 34 N.R. 1; 115 D.L.R. (3d) 257; 14 C.C.L.T. 294, refd to. [para. 38].

Statutes Noticed:

Limitations Act, R.S.O. 1980, c. 240, sect. 4 [para. 13].

Authors and Works Noticed:

Megarry and Wade, The Law of Real Property (4th Ed.), p. 1013 [para. 17].

Baker, P.V., Megarry's Manual of the Law of Real Property (4th Ed. 1969), p. 529 [para. 30].

Counsel:

G.J. Smith, Q.C., and R.E. Hawkins, for the appellant;

R.F. Wilson, Q.C., and P. Dillon, for the respondents.

This appeal was heard before Zuber, Blair and Goodman, JJ.A., of the Ontario Court of Appeal on January 30 and 31, 1984. The decision of the Court of Appeal was delivered by Blair, J.A., and released on April 6, 1984.