Real Estate - Adverse Possession
2279088 Ontario Inc. v. Nisbet (Ont CA, 2018)
In this case the Court of Appeal, in dismissing the position of a party, clarifies two points on the doctrine of adverse possession:
 227 argues that the application judge applied an erroneous test for adverse possession. It submits that Keefer v. Arillotta (1976), 1976 CanLII 571 (ON CA), 13 O.R. (2d) 680 (C.A.) created a “modified test” when “one claims adverse possession to lands subject to others’ rights of way.” 227 relies on the following passage from the reasons of Wilson J.A. (as she then was), at pp. 691-692:
The onus of establishing title by possession is on the claimant and it is harder for a claimant to discharge this onus when he is on the property pursuant to a grant from the owner. It was held in Littledale v. Liverpool College,  1 Ch. 19, that acts done on another's land may be attributed to the exercise of an easement, even an excessive exercise of an easement, rather than to adverse possession of the fee. This passage does not bear the interpretation urged upon us by 227. Wilson J.A. did not modify the requirements for adverse possession in cases involving pre-existing easements; she merely observed that it will be more difficult from an evidentiary perspective to establish the pre-conditions in these circumstances. As is clear from this excerpt, a stricter approach prevents easements from maturing into title too easily.
In Pflug and Pflug v. Collins, 1951 CanLII 80 (ON SC),  O.R. 519 at p. 527,  3 D.L.R. 681 at p. 689 [affirmed 1953 CanLII 368 (ON CA),  O.W.N. 140,  1 D.L.R. 841], Mr. Justice Wells (as he then was) made it clear that a person claiming a possessory title must establish (1) actual possession for the statutory period by themselves and those through whom they claim; (2) that such possession was with the intention of excluding from possession the owner or persons entitled to possession; and (3) discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession. If he fails in any one of these respects, his claim fails. [Emphasis added.]
 227 further argues that the application judge erred by ignoring the doctrine of inconsistent use, whereby it must be proved that the claimant’s use of the land is inconsistent with the true owner’s present or future enjoyment of the land: see Keefer; and Masidon. We disagree.
 In Teis, Laskin J.A. observed, at para. 24, that inconsistent use is a “controversial element” of an adverse possession claim. This element, which was revived in Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), at p. 273, has in more recent times been denounced by the House of Lords as “heretical and wrong”: see J. A. Pye (Oxford) Ltd. v. Graham,  UKHL 30,  1 A.C. 419, at para. 45. See also the discussion in Nelson (City) v. Mowatt, 2017 SCC 8 (CanLII),  1 S.C.R. 138, at paras. 17-27. Counsel for Mr. Nisbet argues that this court should dispense with this element of adverse possession once and for all.