Executive Summary: Key Legal and Evidentiary Issues

• Dispute over the correct southern boundary of the plaintiffs’ land and confirmation of that boundary by reference to registered reference plans (Plans 26R-2694 and 26R-3217).
• Conflicting survey and testimonial evidence concerning whether the “hound building,” cement pad, trailers and fence encroach onto the plaintiffs’ property by several feet.
• Credibility and reliability findings at trial about who objected to the fence and structures (including evidence that the plaintiffs’ father, Bill Miner, objected to the fence when it was built).
• Defendants’ cross-application alleging that the surveys on title misdescribed the northern boundary of their properties and, alternatively, that they had acquired the disputed strip by adverse possession or equitable remedy.
• Application of the RJR-MacDonald three-part test for a stay pending appeal (serious issue, irreparable harm, balance of convenience) to a real property judgment involving physical encroachments.
• Weighing the balance of convenience and interests of justice between preserving the trial judgment’s remedial orders and maintaining the rural status quo while the appeal proceeds.

Background and parties

This litigation arises from a rural boundary dispute between neighbouring landowners in Ontario. The plaintiffs, Diana Lynne Ester Miner-Tremblay and Debra Jean Hazel Bowes, own land whose south boundary abuts the lands of the Rintoul family. The defendants, Kevin James Donald Rintoul (also known as Kevin Donald James Rintoul) and his sister, Karen Frances Rintoul, own adjacent lots to the north. The dispute centres on a narrow strip of land along the common boundary and on whether certain structures and a fence erected by the Rintouls lie wholly on their land or partly on the plaintiffs’ property.

Facts and physical encroachments

In the past, Kevin Rintoul constructed a building he called the “hound building” together with a cement pad. He has consistently claimed that these structures sit fully within his own property boundaries. The plaintiffs, however, contend that the hound building and cement pad extend a few feet onto their land.

The controversy does not end with the building and cement pad. In the early 2000s, according to Mr. Rintoul, he and his father built what he describes as a “new” cedar fence along his property and extended it across the properties of his two sisters, Karen and Leslie Ann. The plaintiffs say this fence actually sits on their land, not on the Rintouls’ property, and they rely in part on the assertion that their father, Bill Miner, objected to the location of the fence at the time it was built.

Over time, additional items – including trailers and other equipment – came to occupy the disputed strip. The plaintiffs view these as encroachments that interfere with their ability to use and, importantly, to market and potentially sell their property.

Competing applications and property law issues

To resolve the boundary question, the plaintiffs commenced an application seeking a judicial declaration confirming the south boundary of their land by reference to two registered reference plans (R-Plans) on title, identified as Plans 26R-2694 and 26R-3217. They asked the court to confirm that these plans correctly set out the boundary and to order the removal of the fence, hound building, cement pad, trailers and any other equipment they alleged to be encroaching on their land.

The Rintouls responded not only by defending but also by bringing a cross-application. In that cross-application, they argued that the surveys on title misdescribed the northern boundary of their properties, suggesting that the official plans were inaccurate and that, properly understood, the disputed strip belonged to them. In the alternative, they claimed that even if the surveys were technically correct, the disputed strip had, in any event, vested in them by way of adverse possession or some equitable remedy. This introduced classic property-law questions about boundary description, encroachment, and whether long-standing occupation could ripen into ownership rights.

There is no discussion in the appellate motion decision of any insurance policy or contractual policy terms, and no specific clauses of any policy appear to be at issue. The dispute is framed entirely in terms of real property law, land surveys, adverse possession, and equitable claims.

The trial decision: confirmation of boundary and removal orders

After a lengthy 13-day trial, the trial judge ruled in favour of the plaintiffs. The judge accepted the plaintiffs’ position that the boundary as set out in the R-Plans on title – Plans 26R-2694 and 26R-3217 – was the correct legal boundary between the properties. As a result, the disputed strip was confirmed to form part of the plaintiffs’ land.

The trial judge ordered that the north boundary between Lot 2 and the south boundary of Lot 3 be confirmed in accordance with those R-Plans. The court further ordered that the plaintiffs were to resume full access to their land. To give effect to that right, the judge directed that the fence Kevin Rintoul had constructed – in part across his property and Karen Rintoul’s property – be removed where it encroached on the plaintiffs’ land. The judge also ordered the removal of the equipment and structures located on the plaintiffs’ property, specifically including trailers, the cement pad and the hound building. The removal was to occur within 120 days.

In addition to these injunctive and declaratory remedies, the trial judge awarded the plaintiffs nominal damages of $2,000, payable by Kevin Rintoul. This monetary award reflected a recognition of the plaintiffs’ legal rights and the encroachment, even if the financial loss assessed was modest.

The appeal and motion for a stay pending appeal

The Rintouls appealed the trial judgment to the Court of Appeal for Ontario. They challenged the trial judge’s factual findings, particularly the conclusions about where the true boundary lay and whether the structures and fence encroached on the plaintiffs’ land. Given that their grounds of appeal were largely factual, the motion judge noted that success on such appeals is rare, as appellate courts ordinarily defer to a trial judge’s findings of fact, including credibility and reliability assessments, absent a palpable and overriding error.

In tandem with their appeal, the Rintouls brought a motion for a stay pending appeal. They sought to suspend the operation of the judgment’s non-monetary terms – those requiring removal of the fence, hound building, cement pad, trailers and other items – while the appeal was heard. The monetary damages award of $2,000 was already automatically stayed by operation of the Rules of Civil Procedure, so the motion concerned the property-related orders.

The Court of Appeal applied the well-established three-part test for a stay drawn from RJR-MacDonald Inc. v. Canada (Attorney General): whether there was a serious question to be determined on appeal; whether the moving party would suffer irreparable harm if a stay were not granted; and where the balance of convenience lay, always with the overarching lens of the interests of justice. On the first branch, the appeal was characterized as weak due to its focus on factual re-assessment, but not frivolous or vexatious, especially given that it involved an interest in real property, which weighs more heavily than purely economic interests.

On the irreparable harm branch, the court recognized that complying with the trial judgment would likely be costly for the Rintouls because they would need to remove and potentially rebuild substantial structures. However, this was not viewed as irreparable harm in the legal sense, since the harm was ultimately monetary and reversible. By contrast, the plaintiffs’ claimed harm rested on reduced ability to sell their property while the encroachments persisted; yet any purchaser would be made aware of the ongoing litigation and pending appeal, so a stay would not fully resolve that concern either.

Balance of convenience, interests of justice and case management

The decisive factor for the Court of Appeal became the balance of convenience, understood through the interests of justice. The court noted that the property was rural and that maintaining the existing physical status quo while the appeal ran its course would not significantly inconvenience anyone. If the Rintouls were required to remove the fence, hound building, cement pad and other items before the appeal and were ultimately successful, that removal would have been wasteful and unnecessary.

On this basis, the Court of Appeal granted the motion to stay the judgment pending appeal. The status quo on the ground – including the ongoing presence of the fence and structures – would be preserved while the appeal was decided, although the plaintiffs’ trial victory remained in place unless and until overturned. Acknowledging the plaintiffs’ understandable desire for a prompt resolution, the court indicated that the appeal should be case-managed and expedited, particularly in light of delays in obtaining trial transcripts. The costs of the stay motion were left to the panel that would eventually hear the appeal, meaning no specific costs figure was set at this stage.

Overall outcome and monetary amount in favour of the successful parties

Taken together, the decisions depict a mixed procedural picture but a clear substantive result to date. On the merits at trial, the plaintiffs, Diana Lynne Ester Miner-Tremblay and Debra Jean Hazel Bowes, were successful: they secured judicial confirmation of the boundary in accordance with the R-Plans, orders requiring removal of encroaching structures and a fence from their land, and nominal damages of $2,000 payable by Kevin Rintoul. On the subsequent motion in the Court of Appeal, the defendants, Kevin James Donald Rintoul and Karen Frances Rintoul, succeeded procedurally in obtaining a stay of the judgment pending appeal, preserving the physical status quo until the appeal is heard, but without any additional monetary award. As matters stand on the record provided, the only quantified monetary relief ordered in favour of a successful party is the $2,000 in nominal damages awarded to the plaintiffs at trial; costs on the motion and any further costs of the litigation have not yet been determined or fixed in a specific amount.