Nova Scotia (Attorney General) v. Brill

Nova Scotia (Attorney General) v. Brill

The Court dismissed the appeal and cross‑appeal: the 60‑year common law rule has been replaced by the statutory 40‑year standard for marketable title as amended into the MTA by the LRA; the Crown is bound by the amended 40‑year limitation under the LAA and the common law principles continue to operate (the MTA did...

Source-derived case information.

Citation
2010 NSCA 69
Parties
Appellant (respondent by Cross Appeal): The Attorney General of Nova Scotia; Respondent (appellant by Cross Appeal): Alan R. Brill; Intervenor: Nova Scotia Barristers’ Society
Court
Nova Scotia Court of Appeal
Jurisdiction
Canada
Judgment Date
9 September 2010
Procedural Posture
Appeal / Interlocutory Appeal From Chambers Decision Denying Summary Judgment Under Quieting Titles Act
Outcome
Appeal and cross‑appeal dismissed
Legal Topics
Marketable Title, Quieting Titles Act, Limitations of Actions Act, Marketable Titles Act, Land Registration Act, Constructive Possession, Nullum Tempus, Summary Judgment, Crown Interests
Source Language
english
Property Law Real Property Land Titles Adverse Possession Statutory Interpretation Marketable Title Quieting Titles Act Limitations of Actions Act +6 more

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Parties

The Attorney General of Nova Scotia

Appellant (respondent by Cross Appeal)

Alan R. Brill

Respondent (appellant by Cross Appeal)

Nova Scotia Barristers’ Society

Intervenor

Procedural Posture

Appeal / Interlocutory Appeal From Chambers Decision Denying Summary Judgment Under Quieting Titles Act

Legal Issues

  1. 1 Whether the chambers judge should have considered the Marketable Titles Act's 40‑year rule when the interlocutory question raised the 60‑year common law rule
  2. 2 Whether the MTA replaced the 60‑year common law rule and whether the 40‑year rule applies to the Crown
  3. 3 Whether summary judgment awarding a certificate of title under the Quieting Titles Act should have been granted

Ratio Decidendi

The Court dismissed the appeal and cross‑appeal: the 60‑year common law rule has been replaced by the statutory 40‑year standard for marketable title as amended into the MTA by the LRA; the Crown is bound by the amended 40‑year limitation under the LAA and the common law principles continue to operate (the MTA did not extinguish judge‑made presumptions of constructive possession); and the chambers judge did not err in refusing summary judgment because triable issues remain as to the chain of title and facts required to establish possessory or grant‑based title under the Quieting Titles Act.

Court Disposition

Appeal and cross‑appeal dismissed

Orders

  • Appeal and cross‑appeal dismissed
  • Province to pay costs of $5,000 CAD plus disbursements to Mr. Brill for the appeal