Executive Summary: Key Legal and Evidentiary Issues

• Whether long-term use of a strip of the respondent’s land as part of a driveway satisfied the test for adverse possession, including inconsistency with the owner’s intended use of vacant land
• How mutual mistake or honest unilateral mistake about property boundaries affects the “inconsistent use” requirement in adverse possession claims
• The significance of the respondent’s decades-long silence and inaction while the full 18-foot driveway was used, improved, and treated as a single surface
• Whether the respondent’s conduct (including silence and later erection of a fence) created an equitable entitlement to the disputed strip under proprietary estoppel
• The degree of detriment suffered by the applicant through purchase, reliance on full driveway access, and maintenance and improvement of the driveway surface
• What remedy is appropriate in equity: removal of the fence, obligation to repair brickwork, and whether the entitlement should be an easement or a transfer of title, with monetary damages and costs left undetermined

Background and neighbouring properties
This case arises from a dispute between neighbouring landowners over a strip of land used as part of a driveway in Ontario. The applicant, 9409394 Canada Inc., owns a residential property that has, for decades, been accessed by an approximately 18-foot-wide driveway. The respondent, Ghislain Lascelles, owns the adjoining lands, which have been vacant since he acquired them in 1981. The applicant’s property benefits from a registered easement over a corridor on the respondent’s land. That easement, about 15 feet wide, legally allows access for the applicant, but only about 10 feet of the easement corridor is actually used as driveway. The remaining easement area is grass and functions as a buffer between the applicant’s driveway and a third neighbour. The contentious issue is an additional strip of land immediately beside the easement, which lies on the respondent’s title but has for many years formed part of the applicant’s driveway surface. Together, the easement area used as driveway and this disputed strip form a single 18-foot-wide driveway.

Longstanding use of the disputed strip as driveway
The driveway has existed as a single, unified surface since at least July 1993. When Brenda Giroux and her husband bought the applicant’s property in 1993, the full width of the driveway—covering both the right of way and the disputed strip—was already in place and surfaced with gravel and asphalt. About a year later, they paid to have interlocking brick laid across the entire driveway, without seeking permission from the respondent. A later owner, Robert Dawson (2003–2006), produced a photograph confirming that the driveway remained a single interlocking-brick surface across its full width. An occupier, Marc-André Labelle, and his spouse used the entire driveway from 2006 to 2015. When the applicant corporation acquired the property in November 2015, it continued to use and maintain the whole driveway, repairing the interlocking brick in 2016 without notifying or consulting the respondent. From at least 1993 until late 2024, there was no visible or physical boundary on the driveway surface indicating where the registered easement ended and the respondent’s retained land began; it functioned as one continuous access route to the applicant’s home.

Escalation of the dispute and installation of the fence
The dispute crystallized in late 2024. The applicant listed its property for sale on November 30, 2024. Between December 20 and 24, 2024, the respondent physically asserted his ownership of the disputed strip by installing a fence directly down the centre of the driveway. This fence effectively split the 18-foot driveway into two narrower passages, confining the applicant’s practical use to an approximately 8-foot width. The fence installation also damaged some of the interlocking bricks on the driveway surface. The result was not only a visual intrusion but also a significant restriction on vehicular access, particularly for larger vehicles such as ambulances and delivery trucks, which now faced a much tighter and arguably hazardous entry.

The adverse possession claim and the Land Titles context
The applicant first argued that it, and its predecessors, had acquired title to the disputed strip by adverse possession. Under Ontario’s Real Property Limitations Act, an owner’s title can be extinguished by another’s adverse possession lasting at least ten years. However, when land is brought into the Land Titles system, adverse possession cannot generally create new title unless the adverse claim was already complete and valid at the time of first registration in Land Titles. The respondent’s property was registered in Land Titles on August 22, 2010, so the relevant 10-year period for adverse possession ran from August 22, 2000 to August 22, 2010. To succeed, the applicant needed to show that, during that period, the occupiers had actual and exclusive possession, intended to exclude the true owner, and effectively excluded that owner, with possession that was open, notorious, constant, continuous, peaceful and exclusive. The respondent conceded that the owners of the applicant’s property had actual, open and continuous possession of the disputed strip between 2000 and 2010. The dispute focused on whether the respondent was effectively excluded, and specifically whether the applicant’s use was inconsistent with the respondent’s intended use of his land as vacant property.

Mistake and the “inconsistent use” requirement
The applicant argued that this was a case of mistake about property rights, so the usual requirement of inconsistent use should not apply in the same way. The law recognizes that in cases of mutual mistake—where both parties mistakenly think the claimant owns the disputed land—the court may dispense with the “inconsistent use” requirement because the owner never asserts competing use, and the claimant clearly intends to exclude all others. The applicant also cited decisions suggesting that an honest unilateral mistake by the possessor about ownership can similarly affect the analysis. On the evidence, however, the court could not find either mutual or honest unilateral mistake for the full limitation period. Two former owners of the applicant’s property said they knew they did not own the underlying land but believed the easement covered the full driveway width. There was no clear evidence of the Labelle family’s understanding during 2006–2010. Moreover, the respondent himself was not mistaken: his affidavit showed he understood where the easement ended and knew that the driveway extended beyond its limits. In these circumstances, the judge held that the case did not fall within the special “mutual mistake” line of authority, and that the applicant still had to prove that its use was inconsistent with the respondent’s intended use of the land as vacant property.

Use of vacant land and failure of adverse possession
The respondent’s intended use from 2000 to 2010 was simply to keep his lands vacant. The court therefore turned to appellate case law on adverse possession of vacant land. Those cases stress that it is difficult for a claimant to show inconsistency when the owner’s intention is to make no active use of the land. So long as the occupier does not prevent the owner from keeping the land in that vacant state, their activities may not be “inconsistent” even if they alter the land. Past decisions have held that activities such as planting trees, maintaining grass, or even operating a small private airstrip, without fencing out the owner or constructing permanent facilities, can still be compatible with an owner’s decision to hold land vacant. Another case, Georgco, had suggested that using land meant it was not truly vacant, but the judge followed the binding approach from the Ontario Court of Appeal, which focuses on whether the owner is prevented from the intended use, not on whether the land is factually untouched. Applying these principles, the judge concluded that using the disputed strip as part of a driveway did not prevent the respondent from maintaining his preference that the land remain undeveloped and vacant. The driveway use did not effectively exclude him from his intended use; therefore, the element of inconsistent use was not satisfied. On that basis, the adverse possession claim failed, and legal title to the strip remained with the respondent.

Proprietary estoppel and the respondent’s encouragement
Although the adverse possession claim did not succeed, the applicant advanced an alternative claim in equity based on proprietary estoppel. To establish proprietary estoppel, an applicant must show three key elements: that the owner encouraged or allowed them to believe they had or would receive some right in the property; that the applicant relied on that belief to their detriment, and the owner knew or ought to have known of that reliance; and that it would now be unconscionable for the owner to insist on his strict legal rights. Encouragement can come through statements or through conduct, including long-term silence in the face of obvious, beneficial use. Here, the full driveway had been in place and openly used since at least 1993. For more than 30 years, the respondent knew the driveway straddled his land and yet remained silent. He did not object, did not mark the boundary, and did not demand any limitation on use. The judge accepted that this prolonged inaction, in circumstances where the respondent knew the driveway was being used and improved, reasonably led the applicant and its predecessors to assume that he would not enforce his strict ownership over the narrow strip in the middle of an established driveway.

Reliance, detriment, and unconscionability
The court then considered whether the applicant had relied on that assumption to its detriment and whether it would be unconscionable to let the respondent now assert his legal title. The applicant bought the property on the reasonable understanding that the home was served by a full 18-foot-wide driveway providing safe and convenient access. Over time, the applicant and its predecessors spent money to maintain and improve the driveway surface, including laying and later repairing interlocking brick over the entire width, treating it as a single unit. These acts of purchase, maintenance and improvement were consistent with a belief in continued, unimpeded use of the full driveway. The respondent’s late decision, after decades of silence, to install a fence down the centre materially changed the situation. Without prior notice or consultation, the fence narrowed the usable driveway to about 8 feet, made access to the applicant’s home more difficult and potentially hazardous, especially for larger emergency and service vehicles, and visually marred the property. In light of the long history of permissive conduct, the essential role of the driveway in enjoying the property, and the investment the applicant and prior owners had made in improving and maintaining the full surface, the judge found it would be unconscionable to allow the respondent to insist on his strict legal rights to the disputed strip. As a result, while the adverse possession claim failed, the proprietary estoppel claim succeeded, giving the applicant an equitable entitlement to continue using the disputed land as part of its driveway.

Remedies granted and outstanding issues on title and costs
Having found proprietary estoppel, the court had to determine appropriate relief. The judge ordered the respondent to remove the fence from the centre of the driveway without delay and, no later than April 15, 2026, to repair at his expense the interlocking bricks damaged when the fence was installed. The applicant also claimed general damages, but the court dismissed that part of the claim, holding that there was no sufficient evidence of compensable non-monetary loss justifying a quantified award. The judgment notes that the parties disagreed on whether the disputed land should ultimately vest in the applicant (transferring ownership) or be formalized as an easement. That structural question is left for further submissions if the parties cannot agree. The decision similarly leaves costs open: the judge directs each side to deliver short, written costs submissions within set timelines, with no right of reply without leave. Because neither the transfer/easement structure nor costs have been determined and no specific damages were awarded, there is at this stage no fixed total monetary amount ordered in favour of the successful party. The applicant, 9409394 Canada Inc., is the successful party on the proprietary estoppel claim and gains a court-recognized equitable entitlement to the disputed strip, mandatory removal of the fence, and restoration of the damaged brickwork, but the total monetary impact (including any future costs order and the value of repairs) cannot presently be quantified from this decision.