Barrow v. Landry
- Citation
- 1999 BCCA 143
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- British Columbia Court of Appeal
- Decision
- 26 February 1999
- Posture
- Civil Property Appeal / Court of Appeal Oral Reasons and Decision
- Language
- English
More details
- Court
- British Columbia Court of Appeal
- Decision
- 26 February 1999
- Posture
- Civil Property Appeal / Court of Appeal Oral Reasons and Decision
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal was dismissed because the trial judge did not err in granting an easement under s.36 of the Property Law Act and the appellant could not, without evidentiary support, raise allegations of intentional encroachment or negligence for the first time on appeal.
Court disposition
Appeal dismissed; order of Mr. Justice Clancy affirmed; costs awarded to respondent.
Orders
- Appeal dismissed
- Order of Mr. Justice Clancy dated July 3, 1998 affirmed
- Costs awarded to the respondent
02
Material facts
Parties
Hollie Alberta Barrow
Respondent (original Petitioner) Counsel: G.M. ElliottWilfred Joseph Landry
Appellant (original Respondent) Counsel: G.A. Phillips03
Procedural history
Posture
Civil Property Appeal / Court of Appeal Oral Reasons and Decision
04
Questions and positions
Legal issues
- 01
Whether the trial judge erred in granting an easement under s.36 of the Property Law Act
- 02
Whether allegations of intentional encroachment or negligence can be raised for the first time on appeal
- 03
Whether equitable relief should be denied because of the respondent's alleged conduct
Party arguments
- Applicant
- The appellant argued the trial judge erred in granting an easement and sought to raise for the first time allegations that the respondent intentionally encroached or was negligent, which should bar equitable relief.
- Respondent
- The respondent maintained the easement under s.36 of the Property Law Act was properly granted and that the appellant's new allegations lacked evidentiary support and should not be entertained on appeal.
05
Court’s reasoning
Legal principles
- 01
Property Law Act (British Columbia) s.36
Court may grant an easement to accommodate an encroachment under statutory authority
- 02
Appellate procedure / common law principles
Appellate courts should not entertain new factual allegations raised for the first time on appeal in the absence of evidence
- 03
Equity principles / common law
Equitable relief may be withheld for unconscionable or wrongful conduct by a party
06
Ratio, limits and disposition
Ratio decidendi
The appeal was dismissed because the trial judge did not err in granting an easement under s.36 of the Property Law Act and the appellant could not, without evidentiary support, raise allegations of intentional encroachment or negligence for the first time on appeal.
Obiter and limits
- Allegations that would negate equitable relief require specific evidence at trial and are not appropriately decided for the first time on appeal.
- Counsel should call evidence to address allegations of intentional encroachment or negligence; appellate courts will not typically decide such factual issues raised anew on appeal.
Court disposition
Appeal dismissed; order of Mr. Justice Clancy affirmed; costs awarded to respondent.
- Appeal dismissed
- Order of Mr. Justice Clancy dated July 3, 1998 affirmed
- Costs awarded to the respondent
Source and reliance status
British Columbia Court of Appeal · 26 February 1999
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
British Columbia Court of Appeal
Judgment· 26 February 1999
Citation: Barrow v. Landry Date: 19990226 1999 BCCA 0143 Docket: CA024909 and CA025211 Registry: Vancouver
COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT: Before: THE HONOURABLE MADAM JUSTICE PROWSE February 26, 1999 THE HONOURABLE MR. JUSTICE FINCH THE HONOURABLE MR. JUSTICE MACKENZIE Vancouver, B.C. BETWEEN:
HOLLIE ALBERTA BARROW PETITIONER (RESPONDENT) AND:
WILFRED JOSEPH LANDRY RESPONDENT (APPELLANT) G.A. Phillips appearing for the Appellant G.M. Elliott appearing for the Respondent [1] PROWSE, J.A.: This is an appeal from the decision of Mr. Justice Clancy made July 3, 1998, relating to a dispute between two neighbours after they discovered that a retaining wall dividing the properties, which was built in 1973, encroached to a slight extent on the property of Mr. Landry. This was not discovered by Mr. Landry until 1996, when he had his property surveyed with a view to constructing an addition to his home. [2] Mr. Justice Clancy granted Mrs. Barrow, the respondent, an easement in perpetuity over the land on which the wall encroached, pursuant to s.36 of the Property Law Act. [3] Having reviewed the factums and having heard the submissions of counsel, I am not persuaded that Mr. Justice Clancy erred in the order which he made, and I would dismiss the appeal substantially for the reasons given by him. [4] I should add, however, that on appeal, counsel for Mr. Landry sought to raise for the first time allegations that Mrs. Barrow had either intentionally encroached on the neighbouring property for her own economic benefit or, alternatively, that she had been negligent in building the wall such that equitable relief should not lie. These are issues upon which one would reasonably expect evidence to be called to specifically address such allegations. No such evidence was called in this case. In my view, it would not be appropriate to deal with those issues for the first time on appeal in these circumstances. [5] As earlier stated, I would dismiss the appeal with costs to the respondent. [6] FINCH, J.A.: I agree. [7] MACKENZIE, J.A.: I agree. The Honourable Madam Justice Prowse
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