Canada: Agricultural Law NetLetter - 2016


* The Alberta Court of Appeal has considered and explained the law of adverse possession in relation to Alberta farm land. The case involved 9.5 acres of land which had been separated from other land owned by a registered owner when a highway was constructed in 1972. The separated parcel was subsequently farmed by a neighbouring farmer. The registered owner sold his land in 1999. The Court observed that the initial adverse possession could not be enforced against the purchaser from the registered owner because of the operation of the Torrens system of land registration in Alberta. However, the new registered owner delayed commencing a claim until 2011, after the 10 year limitation period under the Alberta Limitations Act expired. The Court considered and commented on the operation of a number of provisions in the Alberta Limitations Act concerning adverse possession including the effect of re-entry prior to the expiry of the 10 year limitation period, the type of evidence required to show possession was "adverse" and what would be needed to constitute a written acknowledgment of title prior to the expiry of the limitation period. (Reeder v Woodward, CALN/2016-009, [2016] A.J. No. 326, Court of Appeal of Alberta)

* The Ontario Court of Appeal has dismissed the appeal of Grain Farmers of Ontario from an October, 2015 decision which held that Grain Farmers could not challenge the authority of the Ontario Government to enact regulations which controlled the use of treated seeds. The Court held that although the regulations may well affect farmers' legal and property rights, this fact alone did not give the Court the right to interfere with the regulation, or "amend" the regulation by providing a declaration with respect to its interpretation. The Court concluded that the regulation was clear. (Grain Farmers of Ontario v. Ontario (Environment and Climate Change), CALN/2016-010, [2016] O.J. No. 2012, Court of Appeal for Ontario)


Reeder v Woodward;


Full text: [2016] A.J. No. 326;

2016 ABCA 91,

Court of Appeal of Alberta,

P.W.L. Martin, F.F. Slatter and J.D.B. McDonald JJ.A.,

April7, 2016.

Adverse Possession -- Alberta Limitations Act.

Robert Woodward and Lorraine Woodward (the "Woodwards") appealed to the Alberta Court of Appeal from the decision of a Queen's Bench Justice who concluded that the Woodwards had lost title to 9.5 acres of land to William Lynn Reeder and Pam Reeder (the "Reeders") by virtue of the Reeders' adverse possession of the Woodwards' land.

The Woodwards and the Reeders owned adjoining quarter sections of farm land. The Woodwards were registered owners of the subject land since May 5, 1999 when they purchased it. The Reeders had been registered owners of their land for several generations.

A disputed strip of land was created in 1972 when the County upgraded a highway. The highway was created a few feet south of the actual property boundary line between the Woodwards' land and the Reeders' land creating a 9.5 acre parcel registered in the name of the Woodwards' predecessor in title (the "Disputed Parcel").

The County also moved a fence from the property line to the boundary of a roadway.

At the time the highway was upgraded, the Disputed Parcel was not used and was of marginal value. The Reeders subsequently improved the Disputed Parcel and used it on a regular basis to grow hay and pasture cattle.

The Reeders' use of the Disputed Parcel was well known to the Reeders' precedecessors in title and would have been obvious to the Woodwards when they took title in 1999.

In 2011, the Reeders filed a Caveat asserting possessory title to the Disputed Parcel. The Woodwards asserted ownership by padlocking a gate and blocking access to the land with a truck. The Reeders then commenced an action to enforce their Caveat and the Woodwards counterclaimed seeking confirmation of their title.

The trial judge found that the Reeders' possession to the Disputed Parcel was exclusive and continuous, and was open, visible and notorious relying on Lutz v Kawa, 1980 ABCA 112 (CanLII), 13 Alta LR (2d) 8, 23 AR 9, and that the Reeders had a valid claim to the disputed parcel by virtue of adverse possession.

The trial Judge also found that the Reeders' adverse possession of the Disputed Parcel was discoverable by May 5, 1999 when the Woodwards took title, that "neighbourly attempts" to resolve the issue did not amount to an acknowledgement by the Reeders of the Woodwards' title and that the Woodwards' title was barred years later, on May 5, 2009. Since the Woodwards' action was not commenced until 2011, the Reeders were entitled to a declaration that they were owners of the Disputed Parcel.

The trial Judge also awarded the Reeders' damages of $20,280.00 arising from the Woodwards' alleged blocking access to their land in 2013 and 2014 and solicitor and client costs.

Decision: The Alberta Court of Appeal (Martin, Slater and McDonald, JJA) dismissed the Woodwards' appeal from the adverse possession judgment but allowed the Woodwards' appeal for a damage award and costs [at para. 36].

The Court considered the Woodwards' argument that they were in possession of the Disputed Parcel by virtue of a three-way oral contract and observed that if possession is claimed by virtue of a contract, there can be no claim based on adverse possession, stating at para. 10 and 11:

[10] It should be observed that the claims pursued by the respondents at trial were inconsistent. A claim to land based on adverse possession must be "adverse". If the claimant is in possession of the land with the permission or consent of the registered owner, then that possession is not "adverse": Robertson v King Estate, 1999 ABQB 167 (CanLII) at paras. 36-8, 243 AR 201 affirmed, 1999 ABCA 314 (CanLII), 244 AR 379. If, as alleged, the respondents were in possession of the disputed parcel of land by virtue of a three-way contract, then that contract must be the source of their claim.

[11] If, on the other hand, there was no contractual or consensual basis for the occupation, then the claimant to the land might prove adverse possession under the test set out in cases like Lutz v Kawa. A finding that the respondents were entitled to the disputed parcel either because of a three-way contract, or alternatively because of adverse possession, would potentially be inconsistent. Where possession is taken on a consensusal basis, it can only become "adverse" if there is some clear repudiation of the contract by the occupant of the land, or some clear assertion of rights inconsistent with the title of the owner.

However, the Court observed that the trial Judge never found as a fact that there was a three-way agreement and did not decide the case based on this assumption [at para. 12].

The Court considered the factual basis which supported the finding that Reeders' possession of the disputed lands was adverse, stating, at para. 14:

[14] The appellant Robert Woodward lived in the area, and knew that the respondents were occupying the 9.5 acre parcel even before the appellants purchased it. Robert Woodward testified that shortly after he acquired title in 1999, he told William Reeder he wanted to fence off the disputed parcel. William Reeder refused, and thereafter refused to cooperate with any suggestions about constructing that fence. The trial judge found at para. 23 that William Reeder consistently asserted his right to occupy the land in question. These are all acts of adverse possession, because they imply that the respondents believed they could occupy the disputed parcel notwithstanding the objections of the title holder. When the appellants allowed this state of affairs to continue for over 10 years without seeking a remedial order, their rights to the disputed parcel were extinguished.

At para. 16, the Court commented that

"[16] .nothing can be more adverse than claiming property owned by another. The case law is clear that the knowledge of the claimant about the exact state of the title is not important; what matters is the intention of the claimant to possess the disputed piece of land: Lutz v Kawa at paras. 19, 28."

The Court then reviewed the provisions of the Alberta Limitations Act in relation to adverse possession claims, including the consequences of re-entry by a claimant prior to the end of the 10 year limitation period, and whether the requirement that an acknowledgement of a claim be "in writing" can be avoided by asserting an "implied license" stating, at para. 17 to 21:

[17] In the end, the exact source of the respondents' occupation is not determinative because the limitation period had expired. It is not disputed that the respondents were in actual possession of the disputed parcel of land and rejected the appellants' claim to it. The appellants had to "seek a remedial order" within the time limits set out in s. 3 of the Limitations Act, RSA 2000, c. L-12. Under the Limitations Act, the time within which a claim must be pursued generally depends on "reasonable discoverability". Because of the operation of the Torrens system of land registration, the limitation period with respect to the occupation of land can start over again each time there is a new registered owner: Tooke v Eastern Irrigation District (1993), 1993 ABCA 39 (CanLII), 7 Alta LR (3d) 136, 135 AR 23 at paras. 21-2 (CA); Dobek v Jennings, [1928] 1 WWR 348 at p. 351 (Alta SC, App. Div). The earliest that the limitation could expire in this case would therefore be May 5, 2009, the 10th anniversary of the appellants' acquiring their title. Since Robert Woodward testified that William Reeder asserted his rights to the property very shortly after the appellants obtained title, the limitation period expired shortly after May 5, 2009.

[18] The precise situation presented by this litigation is contemplated by s. 3(6):

(6) The re-entry of a claimant to real property in order to recover possession of that real property is effective only if it occurs prior to the end of the 10-year limitation period provided by subsection (1)(b).

Thus, the appellants' actions of padlocking the gate and blocking access would only have been effective in stopping the respondents' adverse possession if they had occurred prior to May 2009. Whatever the original basis of the respondents' occupation of the disputed parcel, the appellants' claim to the land was barred by the passage of time.

[19] Section 3(7) of the Limitations Act confirms that an acknowledgement of a claim to possession of land can restart the time for seeking a remedial order.

(7) If a person in possession of real property has given to the person entitled to possession of the real property an acknowledgement in writing of that person's title to the real property prior to the expiry of the 10-year limitation period provided by subsection (1)(b),

(a) possession of the real property by the person who has given the acknowledgement is deemed, for the purposes of this Act, to have been possession by the person to whom the acknowledgement was given, and

(b) the right of the person to whom the acknowledgement was given, or of a successor in title to that person, to take proceedings to recover possession of the real property is deemed to have arisen at the time at which the acknowledgement, or the last of the acknowledgements if there was more than one, was given.

There is no evidence on this record of any acknowledgement "in writing" that would trigger the operation of this section. This provision cannot be avoided by asserting an "implied licence".

[20] This section acknowledges that consensual occupation of land is not "adverse". If the occupant is in possesion of the lands through some sort of agreement with the owner (whether it be a tenant at will, licensee, lessee, or otherwise), the the occupant cannot claim title by adverse possession when the limitation period expires. Consensual occupation of this type can end a period of adverse possession, and thereby stop the limitation period from running, but consensual occupation requires the agreement of both the occupant and the owner. The owner cannot, after the fact, foist a licence on the occupant by unilaterally declaring that the owner will permit the occupation to continue. In order to change the character of the occupation from "adverse" to "permitted", both the occupant and the owner must agree that the possession of the land is consensual. The Limitations Act contemplates this sort of acknowledgment being in writing.

[21] In summary, the finding of the trial judge that there was no implied licence does not disclose any palpable and overriding error. It is clear that the respondents were in actual possession of the disputed parcel for over 10 years, and consistently asserted the right to be there notwithstanding the true state of the title. The appellants' claim to the land was extinguished under the Limitations Act before this action was commenced.

The Court of Appeal also concluded that there was insufficient evidence to justify the damage award or an award of solicitor and client costs, which is an extraordinary remedy "generally reserved for cases of serious litigation misconduct" [at para. 29 to 35].

To continue reading this article, please click here.

Previously published by LexisNexis

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.