Aug 8, 2017

ONTARIO COURT OF APPEAL SUMMARIES (JULY 31 – AUGUST 4, 2017)

Waterstone Properties Corporation v. Caledon (Town), 2017 ONCA 623 (CanLII)

[Hourigan, Benotto and Roberts JJ.A.]

Counsel:

A. Davis and R. D. Davis, for the appellants

S. Leisk and M. Mahoney, for the respondent

Keywords: Real Property, Conveyances, Equitable Interests in Land, Subdivision Agreements, Doctrine of Dedication and Acceptance, Limitation Periods, Real Property Limitations Act, ss. 4 and 5, Land Titles Act

Facts: The appellants appeal from the dismissal of their application and the granting of the respondent’s application for a declaration that the respondent is the beneficial and legal owner of a 2.8-acre park known as the Kingsview Parkette (“the Parkette”) located in the Town of Caledon (“the Town”). The appellant, Waterstone Properties Corporation (“Waterstone”), and its predecessors in title are related companies, and held paper title to the Parkette. In 1972 and in 1973, members of this group of companies entered into subdivision agreements with the Town.

Among other terms, the subdivision agreements provided that the Parkette would be deeded to the Town for use as a park. While the Parkette was never formally transferred to or registered on title in the Town’s name, there is no dispute that, since 1974, the Town has had possession of the Parkette and that, since 1977 or 1979, the Town has used and operated the Parkette as a public park. On March 26, 1999, the Parkette was administratively converted into the Land Titles system in the name of Great Georgian Realty Group (“Great Georgian”) as owner. On May 7, 2013, the Parkette was transferred into the name of the appellant, Waterstone. On May 8, 2015, the Town asserted outright ownership of the Parkette and demanded a deed for nil consideration.

The appellants and the Town then commenced separate applications, each seeking a declaration of ownership of the Parkette. The application judge dismissed the appellants’ application, declared the Town the legal and beneficial owner of the Parkette, and made an order directing the Land Registrar to correct the parcel register to reflect the Town’s ownership, on the basis that the 1973 subdivision agreement superseded the 1972 subdivision agreement with respect to the conveyance of the Parkette, and the inclusion of the conveyance of the Parkette in the 1973 subdivision agreement was not a mistake. Moreover, the 1973 subdivision agreement created a constructive trust in favour of the Town as beneficial owner of the Parkette. Finally, the administrative transfer of the Parkette into the Land Titles system in 1999 had not extinguish the Town’s beneficial ownership of the Parkette. In the alternative, the Town had acquired ownership of the Parkette by application of the doctrines of adverse possession and dedication and acceptance.

Issues:

(1) Did the application judge err in determining that the 1973 subdivision agreement superseded the 1972 subdivision agreement?

(2) Did the administrative transfer of the Parkette into the Land Titles system in 1999 extinguish the Town’s beneficial ownership of the Parkette?

(3) Is any claim that the Town may have to the Parkette statute-barred under ss. 4 or 5 of the Real Property Limitations Act?

(4) Did the application judge err in determining that the Parkette was conveyed to the Town in accordance with the doctrine of dedication and acceptance?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court held that the application judge found the subdivision agreements to be clear and unambiguous, with the 1973 agreement clearly not including a re-conveyance provision. The application judge rejected the appellant’s submission that the inclusion of the Parkette in the 1973 agreement was an error. The court held that those conclusions were open to the application judge on the evidentiary record before him and were subject to deference. The court saw no error in the application judge’s interpretation of the subdivision agreements and therefore had no basis to interfere.

(2) No. The court held that the appellant’s submissions on that point relied on the enforceability of the re-conveyance clause in the 1972 subdivision agreement. Since the court had already found the 1973 agreement to supersede it, there was no basis for this position. By virtue of the conveyance provisions in the 1973 agreement, the Town acquired a beneficial interest in the Parkette, of which the appellants had actual notice. The court held that although the deed was subsequently lost and title was mistakenly never registered in the Town’s name, there was actual notice of the Town’s equitable interest, and therefore the administrative conveyance of the Parkette into the Land Titles system was subject to the Town’s interest.

(3) No. The court held that although the Town’s claim to the Parkette was subject to the ten-year limitation period under s. 4 of the Real Estate Property Limitations Act, under s. 5(1) of the same Act, possession can operate to postpone the commencement of the limitation period, which would only start to run at the time of dispossession or discontinuance. The court found that there was no evidence the Town had ever been dispossessed or discontinued in its possession of the Parkette, and as a result the limitation period had never started to run.

(4) No. The court held that the application judge properly set out the two criteria for the doctrine of dedication and acceptance to apply: first that there was an actual intention to dedicate the land by the owner, and second, that it must appear that the intention was carried out in that the land was open for the public for use, and the public accepted it (Gibbs v Grand Bend (Village)). The court found that the application judge made several findings of fact supporting the conclusion that despite the Parkette never having been deeded to the Town, Waterstone’s predecessors had dedicated the Parkette as parkland for public use. The application judge also found that nearly four decades of public use of the Parkette as a park constituted acceptance by the public. The court held that those findings were open to the application judge on the record before him, and that the court saw no error in the application judge’s conclusion that the doctrine of dedication and acceptance applied and that the Town was therefore entitled to ownership of the Parkette.

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