Brill v. Nova Scotia (Attorney General)

Brill v. Nova Scotia (Attorney General) Court Supreme Court Date 2008-11-07 Citation 2008 NSSC 330 Docket SH 286642 Judge/Registrar/Adjudicator Coady, Kevin (Honourable Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Brill v. Nova Scotia (Attorney General), 2008 NSSC 330 Date: 20081107 Docket: SH 286642 Registry: Halifax Between: Alan R. Brill Applicant and The Attorney General of Nova Scotia, representing Her Majesty the Queen in the Right of the Province of Nova Scotia Respondent __________________________________________________________________ DECISION __________________________________________________________________ Judge: The Honourable Justice Kevin Coady Heard: September 11, 2008, in Halifax, Nova Scotia Decision: November 7, 2008 Counsel: John Keith, for the applicant Mark Rieksts, for the respondent By the Court: [1] This application was heard in chambers at Halifax on September 11, 2008. [2] On October 12, 2007 the applicant filed an Originating Notice (Action) seeking a Certificate of Title under the Quieting of Titles Act to an island in Mahone Bay, commonly referred to as “Bella Island”. [3] The respondent filed a defence on May 23, 2008 wherein it stated: 6. The Attorney General says that the island was never granted by any crown grant and is and remains ungranted crown land, and that any activities of the plaintiff on the island are the activities of a mere trespasser. 7. With respect to the conveyances relied upon and referred to by the plaintiff in his Statement of Claim and in the abstract of title at appendix 1 of the Statement of Claim, the Attorney General says that the conveyances described therein which purport to convey the island are invalid conveyances as they purport to convey title to an island which remains ungranted crown land. As such, the Attorney General denies the legal effect of the documents and conveyances at appendix 1 of the Statement of Claim. [4] In addition the respondent asserts that the abstract of title does not refer to Bella Island and does not convey Bella Island. The respondent also refutes the applicants’ claim of adverse possession. [5] Paragraph 14 of the defence states as follows: The Attorney General ... denies the application to the crown of any common law rule with respect to marketable titles, and pleads and relies upon the relevant provisions of the Marketable Titles Act, and specifically s.4 and s.9 of the Marketable Titles Act. The Attorney General states that any common law rule with respect to Marketable Title has been overridden by the enactment of the Marketable Titles Act. [6] On July 15, 2008 the plaintiff filed this interim application seeking the following interlocutory relief: (a) A determination of a question of law pursuant to rule 25.01 and s. 9(5) of the Quieting of Titles Act, R.S.N.S. 1989, chapter 382 as amended. The specific question of law is whether the 60 year common law rule for establishing good and marketable title is binding upon the crown; (b) An order that a Certificate of Title be issued in favour of the applicant based upon the pleadings herein; (c) An order, if necessary, that the pleadings be deemed closed under rule 14.23 of the Nova Scotia’s Civil Procedure Rules together with a further order for summary judgment in favour of the applicant pursuant to Rule 13 of Nova Scotia’s Civil Procedure Rules. Alternatively, an order setting the matter down for an expedited trial; [7] In relation to (a) I find that the 60 year Common Law Rule is not binding on the crown and that it has been subsumed by s. 4(1) of the Marketable Titles Act. The 40 year rules applies to all. The 60 year Common Law Rule is of no assistance to a property owner who does not have a crown grant. [8] In relation to (b) I am not prepared to order that a certificate of title issue as there are triable issues to be resolved. [9] In relation to (c) I am not prepared to grant summary judgment to the applicant. In as much as the Quieting of Titles Act allows, I will order that this case be set down for an expedited trial. POSITION OF THE PARTIES: [10] The applicants’ position is that Bella Island was granted and, in the alternative, any crown interest has been extinguished by possession established by 200 years of paper title. He argues that this chain of title to Bella Island commenced with a Warranty Deed in 1791 (Beck to Eisenhauer) which purported to convey “an island in Mahone Bay known as Bellers Island, 26 acres more or less”. It is his position that every conveyance thereafter conveyed this same island. Consequently, the applicant feels that he has established adverse possession and marketable title which displaces any interest the crown may have in this island. [11] On the Rule 25.01 issue the applicant argues that the Marketable Titles Act does not extinguish the 60 year Common Law Rule as against all, including the crown, for all purposes, and therefore his chain and possession provides him with marketable title to Bella’s Island. [12] The respondent’s position is that Bella Island was neither granted nor properly registered and was therefore never confirmed as granted by an act of the legislature in 1760. (Act for encouraging the improvement of lands in the peninsula for Halifax, and further quieting of possessions). Consequently, the Attorney General argues that even if the applicant can establish a continuous chain of title to Bella Island, such would amount to nothing more than trespass. [13] Also on the Rule 25.01 issue the respondent argues that the Marketable Titles Act precludes application of the 60 year Common Law Rule to property without crown grant. [14] The respondent argues that the paper title advanced by the applicant is deficient. It identifies three faults over the years (1791, 1823 and 1969). The applicant take the position that these conveyances are effective and offers evidence, including expert evidence, to support that position. RULE 25.01 ISSUE: [15] The parties agree that the courts in this province have historically recognized that 60 years of continuous paper title, starting from a good root of title, was sufficient to establish marketable title. [16] Notwithstanding this common law rule, uncertainty developed as to whether 60 years or 40 years was necessary to establish marketable title. Solicitors were searching back 40 years from the present on the assumption that the Limitations of Actions Act had set this as a standard. It was this inconsistency that led to the introduction of the Marketable Titles Act in 1996. It was the objective of this legislation to “remove uncertainties respecting the determination of marketable titles to land”. [17] This application requires the interpretation of this Act and its application to the crown. The relevant sections of the Act are as follows: PURPOSE OF ACT 2 The purpose of this Act is to (a) remove uncertainties respecting the determination of marketable titles to land in the interests of all present and future landowners and facilitate the development of the Province; and (b) remove uncertainties respecting the validity of past and future tax deeds. MARKETABLE TITLE 4(1) A person has a marketable title at common law or equity or otherwise to an interest in land if that person has a good and sufficient chain of title during a period greater than 40 years immediately preceding the date marketability is to be determined. (2) Chain of title commences with a registered instrument other than a Will, that conveys or purports to convey that interest in the land and is dated most recently before the 40 years immediately proceeding the date the marketability is to be determined. (3) A Chain of Title may commence before or after the coming into force of this Act. (4) Nothing in this Act extinguishes any interest in land. CROWN INTERESTS PRESERVED 9 For greater certainty, nothing in this Act affects any interest of her Majesty in any land. [18] The applicant argues that the reduced 40 year search period is not binding on the crown because s.9 states that “nothing in this act affects any interest of Her Majesty in any land”. Consequently, the common law is unaffected as it pertains to claims of marketable title asserted against the crown. The respondent, on the other hand, argues that the 60 year Common Law Rule has not applied since the enactment of the Marketable Titles Act. It all comes down to a statutory interpretation of s.9. [19] There are a number of principles of statutory interpretation that apply to this application: “Today there is only one principle or approach, namely the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.” (Driedger - The Construction of Statutes - 1st edition 1974, page 74) “Except insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law.” (36 Hals., 3ed., p.412, 2, para 625) It is a principle of legislative sovereignty that validly enacted legislation is paramount over the common law, as long as its intention is clearly stated. In the absence of a reason to believe that the common law has been displaced or excluded, it continues to apply. (Driedger - The Construction of Statutes (1994) 3ed. at p.307) “No enactment is binding on Her Majesty or Her Majesty’s rights or prerogatives in any manner unless it is expressly stated therein that Her Majesty is bound thereby”. (Interpretation Act, R.S.N.S. 1989, c235, section 14) “Crown actions and their approach to contracts must be interpreted in a way which best preserves the crown’s honour and dignity.” (R. v. Marshall,[1999]3 S.C.R. 456) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters: (a) the occasion and necessity for the enactment; (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; (e) the former law, including other enactments upon the same or similar subjects; (f) the consequences of a particular interpretation; and (g) the history of legislation on the subject.” (Interpretation Act, R.S.N.S. 1989, c235, section 9(5)) [20] There seems to be a certain disconnect in the way this question has been framed. I view s.9 of the Marketable Titles Act more as a response to the 60/40 year conundrum than a remedy to the grant issue. There were difficulties associated with the 60/40 year issue. It is not surprising that the Act stated as its purpose “to remove uncertainties respecting the determination of Marketable Titles to Land”. I do not find that this purpose has been compromised by the use of the additional words [to] “facilitate the development of the province.” These are not separate purposes as removing uncertainty will facilitate development in the province. [21] The objective of the act was to reduce the chain to 40 years “in the interest of all present and future landowners.” The crown is not excluded from the 40 year period. The purpose of the Act is to dispose of the 60 year common law rule and to replace it with a 40 years statutory scheme. [22] I conclude that s.9 is meant to create “greater certainty” as to the import of the Act. It is a legislative statement that any rights the crown possess in land are not disturbed. It is not meant to enhance or distract such interests. In the instant case that interest flows from the crown’s position that Bella Island was never granted. [23] I accept the respondent’s argument that s. 4(1) effectively subsumes the common law rule into the statutory regime. This position is supported by the addition of the words “common law or equity or otherwise” by amendment in 2001 after this courts decision in Gunning v. Trans Canada Credit Corp. (1998), 169 N.S.R. (2d) 184. [24] The above conclusion could create title issues for some Nova Scotia landowners. I have some sympathy for those landowners who must rely on the crown’s historical records, or lack thereof, to find a crown grant or to establish adverse possession. I am not convinced that such will be the case for this plaintiff as he has a compelling case for both. I also expect that Nova Scotians will have something to say if the crown attempted to exploit any interest arising from no grant and in the face of a lengthy chain of paper title and the payment of taxes. [25] Notwithstanding the above paragraph, the intent of this legislation is clear and unambiguous and must be accorded its full effect. I find that the 60 year Common Law Rule no longer applies in this province and that it has been displaced by s.4 of the Marketable Titles Act. SUMMARY JUDGMENT ISSUE: [26] The applicant argues that he is entitled to summary judgment because he has (1) demonstrated marketable title as against the crown, and (2) established adverse possession to Bella Island. [27] Civil Procedure Rule 13.01 states as follows: “After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; (b) there is no arguable issue to be tried with respect to the defence or any part thereof; or (c) the only arguable issue to be tried is as to the amount of any damages claimed.” [28] The decision in Binder v. Royal Bank of Canada, [2003] N.S.J. No. 304 (N.S.S.C.) affirmed 2005 NSCA 94 confirmed the test for summary judgment in Nova Scotia. Justice Moir relied on the Supreme Court of Canada decisions in Hercules Management Limited v. Ernst & Young, [1997] 2 S.C.R. 165 and Guarantee Company of North America v. Gordon Capitol Corp., [1999] 3 S.C.R. 423. In the latter the court stated at paragraph 15: “The appropriate test to be applied on a motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is a proper question for consideration by the court. ... once the moving party has made this showing, the respondent must then ‘establish his claim as being one with a real chance of success...’.” [29] This decision established a two step test. A respondent cannot sit back on such an application but must put their “best foot forward” or “play trump”. In MacNeil v. Black (1998), 166 N.S.R. (2d) 127 (N.S.C.A.) Justice Freeman stated at paragraph 10: “The bald statement in the pleadings does not disclose the existence of an actual or probable defence and cannot fend off an application for summary judgment.” [30] In Don Fry Scaffold Service Inc. v. Canadian Bonding Corp. (2004), 39 C.L.R. (3d) 296 (Ont. S.C.J.) Rivard J., stated at paragraph 32: “Although the onus remains on the moving party to satisfy the court no genuine issue for trial exists, there is an obligation on the responding party to ‘put their best foot forward.’ A responding party cannot rely on bold denials, but must place before the court facts which support the defence. It is where the court concludes that a trial is unnecessary that a motion for summary judgment will succeed.” [31] Obviously summary judgment succeeds on factually clear cases and a party should not be deprived of a trial unless such exists after hearing from both sides of the case. It is a remedy to be ordered cautiously. (1) MARKETABLE TITLE: [32] The applicant argues that he has a chain of title since the settlement of Lunenburg and marketable title since 1791. The respondent challenges the plaintiff’s position every step of the way. I am satisfied that the respondent has not sat on it’s hands in this application. I refer to the affidavits of Samual R. Lamey, QC, Wendy Gingell and Karen B. Chamberlain. There are a number of arguable factual issues that must be heard at a trial. [33] There is considerable debate as to whether Bella Island was the subject of a crown grant, whether it was corrected by the Act of 1760, or whether it was the subject of the 1784 Lunenburg Township Grant. The 1754 marginal notation “to have an Isd” raises a number of questions about authenticity. While I am attracted to the explanations offered by the applicant’s expert Brian Cuthbertson, I must note that they are opinions and this is a summary judgment application. [34] There is a question as to whether Bella Island was assigned to Jacob Meurer after John Beller returned to Halifax. Once again I am attracted to Mr. Cuthbertson’s opinion but I cannot conclude it settles the question. [35] The Warranty Deed of 1791 is the root relied upon by the applicant. While it purports to convey an “island in Mahone Bay known as Bellers Island, 26 acres more or less”, there is no title record of how Michael Beck acquired title to Bellers Island. Brian Cuthbertson offers a viable opinion. [36] The respondent argues that there is no deed out of Chester Sand and Gravel Company which conveys Bella Island. A tax deed in 1969 conveys the interest of Chester Sand and Gravel to Robert Gibson but it does not include Bella Island. This impacts on a 1972 tax deed which purports to convey the interest of Robert Gibson in Bella Island to Alan and Linda Ruffman. I have closely considered the 1997 statutory declaration of Robert Gibson. While it offers plausible evidence of possession, it does not settle the question. [37] In light of the above, I cannot conclude that there is “no arguable issue to be tried” respecting the chain of title to Bella Island. I am of the view that there are plausible, even compelling, explanations. However, they are not sufficient to support this application for summary judgment. (2) ADVERSE POSSESSION: [38] The applicant also seeks summary judgment based on adverse possession. He argues that when assessing the possessory or physical element of adverse possession, the presumption of possession arises out of the title documents. I accept the applicants reliance on Nemereski v. Nova Scotia (Attorney General) (1992), 115 N.S.R. (2d) 271 as support for the proposition that Warranty Deeds give rise to constructive dispossession sufficient to ground a claim for adverse possession. [39] Nova Scotia courts have generally adopted the definition found in Anger and Honsberger, Canadian Law of Real Property, which states: “The possession that is necessary to extinguish title of the true owner must be actual, constant, open, visible and notorious occupation” or “open, visible and continuous possession, known, or which might have been known” to the owner, by some person or persons not necessarily in privity with one another, to the exclusion of the owner for the full statutory period, and not merely a possession which is “equivocal, occasional or for a special or temporary purpose.” [40] I do not have the kind of evidence before me that conclusively establishes actual and continuous possession of Bella Island. Consequently this argument in favour of summary judgment cannot succeed. CONCLUSION: [41] In light of the conclusions herein, I am unable to grant a certificate of title. I am prepared to sign an order setting this matter down for an expedited trial. [42] I will accept written submissions on costs should the parties be unable to agree. J. Coady