Dooling v. Ford

2023 BCSC 983 Dooling v. Ford

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dooling v. Ford, 2023 BCSC 983 Date: 20230607 Docket: S219331 Registry: Vancouver Between: Dara Elizabeth Dooling and Lisa Anne McCormack Plaintiffs And Robert Dallard Ford and Fay Rose Ford Defendants Before: The Honourable Mr. Justice Brundrett Oral Reasons for Judgment Counsel for the Plaintiffs: J. Hanson N. Kohan Counsel for the Defendants: A. Shee Place and Dates of Trial: Vancouver, B.C. May 8-12, 2023 Place and Date of Judgment: Vancouver, B.C. June 7, 2023 Overview [1] This action involves a dispute between the owners of two adjoining properties on the shores of North Vancouver concerning the plaintiffs' continued ability to use and access a dock off the shore of the defendants' property. [2] The plaintiffs Dara Dooling and Lisa McCormack are presently the joint owners of a waterfront home on Sasamat Lane, having inherited the property from the predecessors on title, their late parents Leo and Madge Dooling. The defendants Robert and Fay Ford are the owners of the property immediately to the south. The dock in question is located off the shore of the defendants' property and, until recently, was shared by the two families. [3] The dock was originally built by three property owners in the 1960s, and was used by those three families until the early 1980s when the neighbour to the north sold his property and the new

owners built their own dock. Thereafter, the dock sharing arrangement continued between the plaintiffs' and the defendants' families, who at various times worked, recreated and socialized together. However, in 2021, the defendant Fay Ford advised the plaintiff Lisa McCormack that their shared use of the dock was terminated. The plaintiffs, whose lot is now sandwiched between two lots who have docks in place, are likely unable to construct a dock of their own due to Vancouver Fraser Port Authority ("VFPA") guidelines which now require a 10‑meter setback from adjacent recreational docks and marine structures. [4] The plaintiffs seek orders which would provide for a continuing interest in the dock. Specifically, the plaintiffs seek 1) a declaration that the defendants hold their dock licence and structure in trust for the plaintiffs, 2) an order that an easement over the defendants' property be registered to provide access, and 3) an order for accounting and payment by the plaintiffs to the defendants for one-half of the costs incurred by the defendants for the dock from June 2019 to the present. The plaintiffs' claim is based on the doctrine of proprietary estoppel. [5] The defendants submit that no such claim has been made out. While the Fords allowed the Doolings access to the dock, they submit this was an informal arrangement not intended to apply to successors or subsequent

owners of the Dooling property. The defendants dispute that the Doolings paid one-half of the costs associated with the licensing and taxes for the dock, that assurances were given as to access going forward to the plaintiffs, and that the plaintiffs are entitled to any easement in respect of the dock. The defendants seek dismissal of the plaintiffs' claim. [6] The issue for my determination is whether on the facts the claim of proprietary estoppel has been made out, and if so, what remedy is appropriate to satisfy the equity. Circumstances [7] I find the following facts. [8] The defendant Robert Ford met Leo Dooling (the father of the plaintiffs) in 1962 when Mr. Ford was a service manager at an auto dealership where Mr. Dooling and Ron Hewson worked as mechanics. The three became friends and co-workers. [9] Mr. Ford's spouse is Fay Ford. She and Mr. Ford introduced Mr. Dooling to Mrs. Ford's first cousin, Madge, who later married Mr. Dooling. [10] In 1964, a mutual friend introduced Mr. Ford, Mr. Dooling and Mr. Hewson to three subdivided lots that came available on Indian Arm or səl̓ilw̓ət (Sleilwaut) inlet--the name of the inlet in hən̓q̓əmin̓əm̓ (Hun'qumyi'num)--which is a fjord on the northeast part of Burrard Inlet between the District of North Vancouver to the west and Annemore/Belcarra to the east (the "Inlet"). All three bought adjoining waterfront lots on the western

shore of the Inlet. [11] Mr. and Mrs. Ford bought the southernmost of the three lots (333 Sasamat, then lot 33); Mr. and Mrs. Dooling bought the middle lot (334 Sasamat, then lot 34); and Mr. Hewson bought the lot to the north (335 Sasamat, then lot 35). At the time, the lots were not cleared and had no access by road. However, Mr. Ford had a boat, and the three were able to access their lots from a marina in the Deep Cove area of North Vancouver. All three of the owners, with help of the other two, intended to construct recreational cabins and each had done so by approximately 1968. [12] In or about 1964 or 1965, construction of a dock (the "Dock", as I will hereinafter refer to the structure collectively) began in front of Mr. Ford's property. Mr. Ford testified that the foreshore of his lot was better for building a dock than the other lots because his extended further out to the east by eight to nine feet, thus making the high tide mark further off shore. Mr. Ford stated in discovery that if Mr. Dooling's lot would have been more suitable, they would have built the dock off the shore of that property instead. However, at trial he disagreed with that suggestion and stated that he wanted the dock in front of his house. [13] The walkway, ramp and float for the Dock were constructed with materials that were provided substantially for free from a local lumber yard. Mr. Hewson

was able to barter a trade to secure the installation of six pilings that helped limit the out-of-pocket expenses for Messrs. Ford, Dooling and Hewson for the construction. The three men worked on the dock whenever they had spare time. Mr. Hewson provided some assistance, but the bulk of the work was performed by Messrs. Ford and Dooling. [14] Thereafter, the three men used the Dock to transport construction materials for their respective cabins and to access their respective cabins following construction. [15] In 1968, when the Dock was almost finished, Mr. Ford applied to the National Harbours Board (the predecessor to the VFPA) and was granted a water lease for the Dock. The first lease was approved by the National Harbours Board on July 1, 1968 for $25. It was subject to yearly renewal. [16] Mr. Ford paid the water lease and taxes for the Dock in subsequent years, though Mr. Dooling sometimes contributed money toward expenses by cash or by cheque. [17] Mr. Dooling acquired his own boat in 1972 and thereafter was able to access his lot without travelling with Mr. Ford. [18] The plaintiff Dara Dooling was born in 1972. The plaintiff Lisa Dooling was born in 1974. [19] From 1972 through 1980, each of Mr. Ford, Mr. Dooling and Mr. Hewson accessed their respective properties via boat and moored their boats at the Dock. [20] In or about 1980, Mr. Hewson sought to sell his

property, and it was eventually purchased by Ron Jeffers. Mr. Jeffers planned to construct a dock adjacent to 335 Sasamat and an arrangement was made such that Mr. Jeffers could use the Dock until he was able to construct his own dock, which was completed in or about 1983. Thereafter, only the Fords and Doolings shared the Dock attached to 333 Sasamat. [21] According to Mr. Ford, the arrangement respecting the Dock was that Mr. Dooling and Mr. Hewson could use the Dock, "period". They all worked on it together, built it together, and used it together. Mr. Ford agreed with the description of the Dock as a communal dock as between the three properties. [22] At this time, access to the lots in issue was by boat only. Typically, the families would park their boats at Deep Cove Marina (formerly, Seycove Marina) and travel a short distance up the Inlet to the Dock to access their properties. The families used the Dock for the only access to their lots throughout the late 1960s, 1970s, 1980s and early 1990s. [23] A roadway from the Mount Seymour area was later constructed in or about 1994. This provided road access to the properties for the first time. Thereafter, the Dock was used mainly for recreational purposes. [24] The Ford and the Dooling families remained close over the years, in substantial measure due to the very close friendship between the patriarchs, Robert Ford and Leo

Dooling. The Dooling children (the plaintiffs) referred to Mr. and Mrs. Ford as "Uncle Bob" and "Aunt Fay". The families socialized together frequently in the May to October months, recreated on the Dock, fished from the Dock, and as noted above, used the Dock exclusively for access to their lots until the early 1990s. [25] Mr. Ford and Mr. Dooling shared the labour and expenses involved in maintaining the Dock. Mr. Ford confirmed in his discovery evidence that he and Mr. Dooling performed the labour and maintenance on the Dock and shared the expenses for the Dock, roughly equally. At trial, he pointed out that he paid some extra expenses for insurance and boat moorage. Dara Dooling, Lisa McCormack and her husband, Ken McCormack, described seeing Mr. Ford and Mr. Dooling working together doing various maintenance on the Dock over the years, including maintaining the slip-resistant flooring on the ramp, reattaching boards, screwing in boards that were becoming loose, and sealing or resealing the wood. The plaintiffs themselves helped scrape barnacles off the Dock. [26] From the late 1960s until 2021, the Doolings typically moored their boats on the north side of the Dock. The Fords moored their boat on the south side of the Dock (the eastern side of the Dock was disfavoured for mooring because of the wake from passing vessels). [27] Between 1999 and 2002, the Fords constructed a

fence around their property that encloses access to the Dock's walkway. A gate on the fence allowed the Doolings access to the Dock. Dara Dooling testified that the Doolings were allowed to use the gate freely to access the Dock and the only rule was to close the gate to make sure the Fords' dog did not escape. [28] For many years, the property numbers (333 and 334) for the Dooling and Ford homes have been placed on the pilings for the Dock to provide notice to passersby on the water of the residential addresses for the two homes. Mr. Ford testified, and I accept, that he placed the property numbers on the pilings after the District of North Vancouver constructed the road to Sasamat Lane in 1994 and assigned property numbers to homes in the area. After the Dock was made identifiable by its number, Mr. Ford agreed with the late Tim Jones, the well-known former leader of North Shore Rescue, that their service could use the Dock if needed. [29] Prior to 1995, the Dock had a wooden ramp which required more maintenance. Mr. Ford and Mr. Dooling performed maintenance on this ramp from time to time, with Mr. Ford performing more of the work after his retirement because he had more time. [30] The ramp to the floating portion of the Dock was replaced in 1995 with an aluminum ramp, which required less maintenance. Mr. Ford was assisted by Mr. Dooling, his two sons-in-law, and other

neighbours in the replacement project. The cost of the new ramp was shared by the Doolings, who contributed approximately $3,000. [31] In the late 1990s and early 2000s, each of Mr. Ford and Mr. Dooling demolished their respective cabins and built year-round, full-time residences on lots 33 and 34, respectively. [32] In 2005, the Fords and the Doolings bought a new float for the Dock from Kingfisher Docks, whose invoice in the amount of $17,436.72 was paid for by Mr. Ford. Mr. Dooling subsequently paid $8,732.49 to Mr. Ford, being one-half of the cost of the new float and a partial contribution to the taxes for the dock. Mr. Ford paid for smaller extra sums expended to take the old float away and for two workers to stay overnight. Mr. Ford described that Mr. Dooling "didn't want to be a freeloader" and always wanted to pay his share of the Dock and other expenses. He would give Mr. Ford money or a cheque and insist that he take it. Sometimes, if a cheque was small, Mr. Ford would rip it up. [33] The closest the parties came to formalizing an agreement was in July 2005 when Mr. Ford and Mr. Dooling had a conversation about the Dock with a mutual friend, Bob Jones. Mr. Ford said "we all talked about it" because there was a concern that if Mr. Ford sold the house, Mr. Dooling would be left without access. In Mr. Ford's words, there had to be an agreement that the Doolings could

use the Dock until Mr. Dooling got his own dock put in, and "that was fine with me." Mr. Jones suggested they put their arrangement respecting the Dock in writing. [34] Mr. Ford further testified that during this 2005 conversation, Mr. Jones asked something to the effect of, "what about the kids?". Mr. Ford described that Mr. Dooling responded that they did not come up to the property anyway. It was therefore Mr. Ford's understanding that Mr. Dooling was concerned only with access to the Dock for himself and his spouse, and not their children. I deal further with this point below. [35] This conversation resulted in Mr. Dooling consulting a lawyer, Brian Hanson, about the Dock at the same time he was having the title to 334 Sasamat transferred into joint tenancy with his spouse, Madge Dooling. Mr. Dooling showed Mr. Ford a copy of a letter he drafted to Mr. Hanson about the Dock. Mr. Dooling's handwritten letter to Mr. Hanson indicates in part as follows [all sic]: The "works" consist of a dock, ramp, float and the 6 wooden piles driven to secure same. R. Ford and I have shared the cost of purchasing, installing and maintain these "works" on a 50-50 basis. I have also paid 50% of the cost of licencing and 50% of the municipal taxes etc since the original installation. (1968) This allows me access to and shared use of the dock, ramp, float, etc. I would like a written agreement

recognizing and continuing the intent of the verbal agreement which has existed between R. D. Ford and myself (Leo Dooling) since before 1968, should the Ford property be sold I would be guaranteed either: 1. Continuance and/or renewal of this agreement with the new owner or; 2. A recompense of a cash amount equal to 50% of the then current replacement cost of the "works" (Dock, ramp, float, driven piles) (installed on site) [36] Mr. Ford reviewed the letter at the time and told Mr. Dooling that he did not need to "waste" money on a lawyer. While there are some notes in Mr. Hanson's file about Mr. Dooling raising the Dock issue, Mr. Hanson took no further steps with respect to drafting an agreement about use of or access to the Dock. [37] Madge Dooling wrote up an agreement between Mr. Ford and Mr. Dooling, but that agreement was lost and could not be found at trial. However, Mr. Ford testified that that agreement was a re-statement of the terms described in Mr. Dooling's letter to Mr. Hanson. [38] Mr. Ford indicated that under his "agreement" with Mr. Dooling, the Doolings had the right to use the Dock and access the Dock as long as they were on the property. The agreement was for the benefit of the Doolings in case Mr. Ford moved or passed away, but it was silent as to what would happen if Mr. Dooling passed away. [39] In 2008, the governing body, then Port Metro Vancouver,

imposed a moratorium on the construction of new docks on the Inlet (the "Moratorium"). The Moratorium lasted until 2020 when it was lifted by the VFPA which was, by then, the governing body with respect to water lot leases in and around the Inlet. [40] In or about 2009 or 2010, 335 Sasamat was sold by Mr. Jeffers and the new owner reconstructed the dock adjacent to 335 Sasamat. [41] Mr. Ford reported that Mr. Dooling expressed an interest in having his own dock from time to time. Mr. Ford and Mr. Dooling went to the VFPA sometime in the 2010 to 2012 period, but they learned that the Moratorium was in effect at the time. [42] In 2011, Leo Dooling suffered a significant stroke and spent the last several years of his life in an assisted living facility until his death in 2016. [43] In June of 2019, the plaintiffs (Mr. Dooling's two daughters) became the joint owners of 334 Sasamat along with Madge Dooling. [44] In April of 2020, Madge Dooling passed away. At that point, her name was removed from the title to the property leaving the two plaintiffs as sole owners of 334 Sasamat. [45] The plaintiffs continued to use the Dock periodically in the summer of 2020, which was referred to at trial as the "COVID summer". During that summer, Dara Dooling moored a boat at the Dock with no issues. In May of 2021, Dara Dooling advised Fay Ford that she would bring a boat to moor for the summer

again; however, due to mechanical problems, she did not moor her boat at the Dock at that time. [46] Sometime in 2020, Mr. Ford spoke with Mr. McCormack and asked if the plaintiffs should get their own dock. Mr. McCormack told him to talk to the plaintiffs about the issue because it was not his home. However, it appears Mr. Ford never engaged the plaintiffs directly in conversation about the issue. [47] The plaintiffs used the Dock periodically in the spring and early summer of 2021. [48] On or about June 30, 2021, Mr. McCormack was using the shower attached to the Dock. Fay Ford called out from her deck and advised him that she did not want him using the Dock for this purpose because it was affecting her drinking water. Mr. McCormack, who had helped build the water system and testified that it did not rely on drinking water, said nothing as he did not want to start any conflict. [49] Fay Ford then phoned the plaintiff Lisa McCormack and advised her that she could not use the Dock anymore. Fay Ford also advised the plaintiff Dara Dooling around the same time that the Dock was theirs and she did not want Ms. Dooling using the dock anymore. [50] The plaintiffs have not used the Dock since that time. Around this time, the defendants placed a discarded piece of Styrofoam on the north side of the Dock traditionally used by members of the Dooling family, though they deny their intent

was to prevent the plaintiffs from using or accessing the Dock. [51] Fay Ford agreed in discovery that she advised the plaintiffs not to use the Dock. She stated that she was concerned about liability if someone got hurt or drowned. [52] Mr. Ford testified at trial that he too was concerned about liability as a result of the plaintiffs' families using the dock. In addition, as a result of a conversation with a real estate agent, he was concerned that the value of his home would be diminished if he sold it with a shared dock. The real estate agent told him he was looking at a $200,000 reduction in value "off the top" for having a shared dock as opposed to a private one. [53] Mr. Ford estimated at trial that of the approximately $50,000 he has paid for the cost of the Dock over the years, Mr. Dooling contributed approximately $16,000‑17,000. The monies contributed by the Doolings were never requested or held out as a condition of their use of the Dock. [54] In August 2022, by letter to the VFPA, the plaintiffs inquired as to the possibility of obtaining a new water licence and getting approval to move the float for the Dock to straddle the property line between lots 33 and 34. [55] The VFPA advised by email on November 3, 2022 that it was aware that the Fords disputed the plaintiffs' claim of shared asset ownership and/or access. They further advised that their records are

consistent with the Fords' position and do not reflect the shared status of the Dock and/or the licence. Therefore, the VFPA was unable to substantively respond to the plaintiffs' request to relocate the Dock and issue a joint licence without the cooperation of the Fords or a court order supporting the plaintiffs' claim. [56] The plaintiffs filed expert evidence from Berk Aktug, a real estate appraiser with knowledge of waterfront properties in the Inlet. He testified that a dock costs between $150,000 to $300,000 to construct and that it makes an approximate difference of $200,000 in the value of a property with or without a dock. [57] The VFPA introduced new guidelines in June of 2020 (the "Guidelines") with respect to docks in the area. Section 3 of the Guidelines indicates that the VFPA "encourages the consideration of less environmentally impactful options, such as a shared dock, which could accommodate the needs of multiple upland owners." A project permit is required for the removal of an existing dock, as well as the installation, maintenance or repair, or upgrade of new or existing recreational docks within the VFPA's jurisdiction. The Guidelines now require 10 meters between docks in this area of the Inlet: 3.1.1 Dock design and location criteria Any new recreational dock must be located: · At least 30 m away from the navigational channel · At least 10 m away from

adjacent recreational docks and other marine structures [Emphasis added.] [58] The distance between the defendants' dock and the dock at 335 Sasamat to the north is approximately 61 feet, nine inches, which would prima facie negate the ability of the plaintiffs to install a dock. There was some debate between counsel as to the possibility of an exemption or perhaps moving the neighbouring docks to allow greater room for the plaintiffs to construct a dock of their own, but this was not addressed in the VFPA's correspondence. [59] The plaintiffs have not had access to or use of the Dock since 2021. Legal Principles Applicable to Proprietary Estoppel [60] While as noted above there was some reference in the evidence to a written agreement that addressed the arrangements pertaining to the use of the Dock, neither of the parties have been able to produce any written document that lays out the intentions of the parties with respect to the Dock. Accordingly, the plaintiffs' claim is founded on the principles underlying the doctrine of proprietary estoppel. [61] The elements for proprietary estoppel were set out in Cowper-Smith v. Morgan, 2017 SCC 61 as follows: [15] An equity arises when (1) a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property; (2) the claimant relies on that

expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and (3) the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word [62] In formulating these elements of proprietary estoppel, the Supreme Court referenced the decision in Idle-O Apartments Inc. v. Charlyn Investments Ltd., 2014 BCCA 451 at para. 49 [Idle-O]. That decision adopted a broader and less literal approach to proprietary estoppel. Newbury J.A. wrote at para. 47 that "it is now beyond question that the estoppel may arise where both parties are 'mistaken' as to the representation or assumption, provided the claimant was induced or encouraged by the landowner to act on it to his detriment" [emphasis in original]. She then set out the following test: [49] From the foregoing I infer that although proprietary estoppel is, like most equitable remedies, flexible and aimed at doing justice, and although the basic elements of the doctrine are not to be technically confined, those elements must still be made out and an equity established. I reproduce again the encapsulation of the doctrine provided recently in Sabey: 1. Is an equity established? An equity will be established where: a. There was an assurance or representation, attributable to the owner, that the claimant has or will have some right to the property, and b. The claimant relied on this assurance to his or her detriment so that it would be unconscionable for the owner to go back on that assurance.

2. If an equity is established, the court must determine the extent of the equity and the remedy appropriate to satisfy the equity [63] A representation or assurance may be express or implied: Cowper-Smith at para.

15. An assurance or representation may arise out of the conduct of the parties: Idle-O at paras. 51-52. In certain circumstances, a representation may be inferred from silence: Hanch Enterprises Ltd. v Simply Ballet Performing Arts Society, 2022 BCSC 1063 at para. 32, citing Elk Valley v. Video Update, 2000 BCSC 1862 at para. 16. [64] I note that while the Court in Cowper-Smith moved away from strict requirements that would restrain judges' ability to do justice in the circumstances of a particular case (at para. 18), the Court noted that "flexibility must not come at the expense of clarity and predictability" (at para. 19). [65] Cowper-Smith concerned an interest in property alleged to have been created between siblings when one of the siblings moved in to care for his elderly mother on the promise by his sister that he would eventually acquire the sister's one-third interest in the mother's house: at para.

7. A majority of the Court of Appeal held that since the sister owned no interest in the property at the time she made assurances to her brother, proprietary estoppel did not arise: Cowper-Smith at para.

11. However, the Supreme Court disagreed with this finding. It held instead that proprietary estoppel may prevent the inequity of an unrequited detriment where a claimant has reasonably relied on an expectation that he will enjoy a right or benefit over property, "even when the party responsible for that expectation does not own an interest in the property at the time of the claimant's reliance": Cowper-Smith at para. 22. [66] The following comment in Cowper-Smith dealing with the nature of proprietary estoppel is also apt: [21] It has commonly been understood in Canada that proprietary estoppel is concerned with interests in land: Delane Industry Co. v. PCI Properties Corp., 2014 BCCA 285, 359 B.C.A.C. 61, at para. 49; Burgsteden v. Long, 2014 SKCA 115, 378 D.L.R. (4th) 562, at para. 25; Clarke, at para. 52; Eberts v. Carleton Condominium Corp. No. 396 (2000), 2000 CanLII 16889 (ON CA), 136 O.A.C. 317, at para. 23; Bellton Farms Ltd. v. Campbell, 2016 NSCA 1, 394 D.L.R. (4th) 262, at para.

46. Still, as Professor MacDougall has noted, "[a] limitation to land is arguably arbitrary . . . . It arises from the somewhat chance circumstance that proprietary estoppel . . . originated as a device to get round form requirements that mainly constrained the creation of or transfer of rights to land": p. 450; see also Wettstein v. Wettstein, 1992 CarswellBC 1421 (WL Can.) (S.C.), at paras. 56-57. The British Columbia Court of Appeal has acknowledged the question of whether proprietary estoppel "also extends to other proprietary rights", although this was not at issue in the case before it: Sabey, at para.

32. The English courts have gone much further, allowing proprietary estoppel claims in relation to chattels, insurance policies, intellectual property rights, commercial assets, and other forms of property: see S. Wilken and K. Ghaly, The Law of Waiver, Variation, and Estoppel (3rd ed. 2012), at pp. 263-64; MacDougall, at pp. 452-53; see also Thorner, at paras. 48 and 66, per Lord Walker, and para. 104, per Lord Neuberger. [67] As to the appropriate remedy, the Court in Cowper-Smith held as follows: [47] Still, "the court must take a principled approach, and cannot exercise a completely unfettered discretion according to the individual judge's notion of what is fair in any particular case": Jennings v. Rice, [2002] EWCA Civ. 159, [2003] 1 P. & C.R. 100, at para. 43, per Walker L.J. A claimant who establishes the need for proprietary estoppel is entitled only to the minimum relief necessary to satisfy the equity in his favour: see Clarke, at para. 81; Sabey, at para. 78; Idle-O Apartments, at para. 73; Sykes, at paras. 57-58; MacDougall, at p. 498; R. Megarry and W. Wade, The Law of Real Property (8th ed. 2012), by C. Harpum, S. Bridge and M. Dixon, at p.

731. Since the equity aims to address the unfair or unjust detriment the claimant would suffer if the owner were permitted to resile from her inducement, encouragement, or acquiescence, "there must be a proportionality between the remedy and the detriment which is its purpose to avoid": Commonwealth of Australia v. Verwayen (1990), 170 C.L.R. 394 (H.C.A.), at p. 413, per Mason C.J.; see also Sabey, at paras. 73-75; Idle-O Apartments, at para. 76; Jennings, at para. 36, per Aldous L.J.; Sledmore v. Dalby (1996), 72 P. & C.R. 196 (C.A.), at pp. 208-9, per Hobhouse L.J.; S. Gardner, "The Remedial Discretion in Proprietary Estoppel -- Again" (2006), 122 L.Q.R. 492, at pp. 499-503; Bright and McFarlane, at pp. 453-54. [Emphasis added.] [68] Proportionality encompasses a balance between vindicating a claimant's reasonable expectations and correcting the detriment. While this is difficult to measure, a claimant is not entitled to obtain more than they expected: Bertolami v. Money Family Projects Ltd., 2021 BCCA 456 at para. 32, citing Cowper-Smith at para. 48. [69] Our Court of Appeal more recently discussed proprietary estoppel in Bertolami, a decision dealing with a claim for a right of access and obligation to share maintenance costs over two access roads on a neighbouring property. In that case, the appellant challenged the trial judge's granting of two easements to the respondent over the appellant's property as a remedy for equity established under the doctrine of proprietary estoppel. The trial judge held that even though no enforceable contract had been formed, the remedy appropriate to satisfy that equity was a registrable easement: at para.

43. The Court dismissed the appeal--relying at paras. 29-32 on the test for proprietary estoppel in Idle-O and discussion of remedy in Cowper-Smith--and upheld the granting of the easements as a proportionate remedy. [70] Finally, the defendants referred me to the comments in Stratton v. Richter, 2022 BCCA 337, where the Court suggested that caution should be taken when it comes to recognizing unregistered interests that operate outside of the land registration system in jurisdictions that have adopted the Torrens model: [104] In previous judgments, this Court has commented on the need for caution in recognizing unregistered interests in land. In Roop v. Hopmeyr, 2016 BCCA 310, a case dealing with implied easements, the Court said: [57] There are strong policy reasons for preserving the Torrens system of land registration from unregistered interests. The abrogation of the doctrine of implied grant by the Land Title Act with respect to subsequent good faith purchasers is rooted in the general principles upon which the Torrens system is premised. In Principles of Property Law, 6th ed. (Toronto: Carswell, 2014) at 481, Professor Ziff described the foundation of the Torrens system as follows: Under Torrens the register is supposed to be everything. That means that one should (in theory anyway) be able to examine an abstract of title for a specific parcel of land and see listed

there all of the interests in land that pertain to that parcel. The register is said to be a mirror of all rights in relation to that land. [71] In Stratton, the plaintiff was denied an easement, at least partly on the basis that she was aware that there was nothing formal granting her access through a neighbouring strata lot at the time of purchasing her strata lot. She had sought, and was satisfied with, the personal assurances from the then-owner of the strata lot over which she wished to continue to have access. The Court found that, unlike cases like Young v. Beck, 2017 BCCA 248, the representation in question was not of a continuing nature. The personal assurances of the then-owner were not found to be binding on the new owners, even though they were aware that, historically, the strata lot they purchased had been used for access to another strata lot: at para.

131. The Court also found that granting an easement would conflict with the strict provisions of the Strata Property Act, S.B.C. 1998, c. 43 governing disposition of property: at para. 112. [72] The context here differs somewhat in that it involves not just a plea for access to a dock over private land, but importantly too, the right to access and use a dock held by a licensee over federal lands and waters. As noted in Falcone v. Maddern, 2017 BCSC 790 at para. 69, the defendants' licence to use the Dock is an interest in property. More specifically, the licence at issue involves an interest in federal land, as a riparian owner's right of access to the foreshore requires the agreement of the owner of the foreshore, here the Crown: North Saanich (District) v. Murray (1975), 54 D.L.R. (3d) 306, 1975 CarswellBC 103 at para. 10 (C.A.). The context therefore includes the fact that most of the Dock structure (the ramp and the float) at issue is located on Crown land administered by the VFPA, which requires adjacent landowners to enter into a formal licensing agreement to use and access a dock within its jurisdiction. Neither the Doolings nor the Fords have a right to use the Dock absent the VFPA's approval. Discussion (A) Has an equity been established? [73] I would apply the three-part test in Cowper-Smith, as interpreted in Bertolami, as follows. (1) Was a representation or

assurance made to the Doolings, on the basis of which the plaintiffs expected that they would enjoy some right or benefit over the Dock? [74] I would first consider whether there was an assurance or representation attributable to the Fords that the plaintiffs have or would have some continued right to the Dock after the passing of Mr. and Mrs. Dooling. [75] Broadly speaking, I find that Mr. Ford made repeated and historical assurances and representations by words and/or conduct that access to and use of the Dock would be shared between his family and the Doolings, and others from time to time. These assurances and representations were substantially made by Mr. Ford, to whom Fay Ford deferred. [76] This finding arises in the context of the pioneering and collaborative spirit of the Ford and Dooling families with respect to the long-time shared labour, cost, and use of the Dock from the late 1960s. I accept that Mr. Ford undertook planning for the Dock, and coordinated the installation of the pilings, the float, and the ramp for the Dock, with varying amounts of assistance from others. He also obtained the licence for the Dock in his name and performed the majority of the repair and maintenance work over the years. [77] However, for over 50 years, the Dooling family was provided with access to and use of the Dock. The Ford family boat typically occupied the south side of the

dock, and the Dooling family boat typically occupied the north side. Members of the Dooling family regularly used the Dock in the summer months to swim, fish, and recreate. [78] Two signs with the street number for each of the two properties have for well over two decades been displayed on two pilings attached to each side of the float portion of the Dock. The impression to any passersby on the waters of the Inlet would be that the Dock was accessible to and for the use of people who resided at those two addresses. [79] Even after roadway access was established in 1994, the Doolings shared the cost of the ramp replacement in 1995 and the float replacement in 2005. Mr. Dooling contributed labour to the maintenance of the Dock. While Mr. Ford paid for the water lease, the insurance and taxes for the Dock, the Doolings contributed to the expense and maintenance of the Dock throughout the years, which I find would not have occurred had assurances of continued use not been provided. [80] Until the Fords' assertions in June 2021 to the plaintiffs, there was never any exclusion of members of the Dooling family from use of the Dock. Perhaps this is understandable in light of the goodwill between the parties, the cooperative effort the families undertook to establish access to their homes, and the fact that the two families were so close. [81] In these circumstances, I find the

defendants provided assurances and representations that the Dooling family could access and use the Dock. [82] The real question is the nature of the representation. Did the Ford family, and Mr. Ford's actions in particular, provide representations or assurances of continued use to Leo and Madge Dooling's successors? [83] The defendants argue that any representation should be interpreted to be limited in scope and time. It is argued that access was meant to be temporary and principally applicable to Leo and Madge Dooling during their lifetime. [84] This issue is complicated by the lack of production at trial of a written record or contract over the terms of the Dooling family's use of the Dock. [85] Certainly, from his testimony at trial, Mr. Ford appears to have believed in his own mind that shared use of the Dock would be limited to the life of Leo and Madge Dooling. He testified that the idea was that "Leo and Madge" could use the Dock and "no one else". He based his belief in part on a colloquial comment Mr. Dooling made lamenting that his daughters, the plaintiffs, did not use the property anyway because it was too boring. A neighbour, Mr. Giesbrecht, testified that Mr. Dooling told him that he had done the mental math and figured that it did not make financial sense to build a dock of his own. [86] While I take these circumstances into account, there are other

circumstances at play. I find as a fact that any understanding in the defendants' minds as to a limit on the Doolings' use of the Dock within the lifetime of Leo and Madge Dooling was not communicated (or at least not well communicated) and certainly not understood by members of the Dooling family. It is also contradicted by some of the other evidence. [87] Mr. Dooling's state of mind, as evidenced by his July 15, 2005 letter drafted to his solicitor, indicates he had shared the cost of purchasing, installing and maintaining the Dock on a 50/50 basis, he wanted his access to continue, and he wanted his access to survive the sale of the Ford property at 333 Sasamat. The letter also reflects that should the Ford property be sold, his access rights would endure or he would be paid out 50 percent of the replacement cost of the Dock (presumably so that he could build his own dock). [88] Counsel debated whether these were hearsay statements, but I find that these statements are merely reflective of Mr. Dooling's state of mind. In any event, Mr. Ford testified that the same letter, which he reviewed at the time, reflected his understanding with Mr. Dooling, thereby adopting the contents of the letter. Nothing in the letter suggests that Mr. Dooling's access rights would be limited to a life estate. [89] Similarly, the agreement that Madge Dooling drew up for Mr. Dooling and Mr. Ford

to sign, which was not produced at trial and is believed to be lost, dealt with continued access to and use of the Dock by the Doolings if Mr. Ford predeceased them. This representation indicates that both the Fords and Doolings contemplated that the Doolings' access would endure beyond the Fords' sale of the property or their passing. The possibility of the younger Leo Dooling predeceasing Robert Ford was not dealt with in the now-lost agreement. [90] The defendants' argument that any representation of continued use and access was only for the lifetime of Leo Dooling is not supported by the evidence. The only succession planning the senior Doolings and the defendants engaged in dealt with preserving the Doolings' rights of access if the Fords predeceased them. [91] As for any representations made directly to the plaintiffs, it appears that there was never any assertion of a limit in the use of the Dock being made to the Dooling children. In the absence of evidence that the Fords communicated in words or writing a lifetime limit on the Doolings' access to the Dock, conduct speaks louder than words. [92] For over 50 years, the Dooling family had shared access to, and undertook shared responsibility for, the Dock. A spirit of neighbourliness toward use of the Dock became firmly ingrained from the long-time friendship, collaboration and shared experiences of the two families. This

fact alone goes a substantial distance toward creating an expectation of ongoing, permanent shared access notwithstanding the frequency or duration of the plaintiffs' visitations. [93] From the plaintiffs' perspectives as members of the next generation, prior to 2021 they too had for almost fifty years enjoyed the on-and-off use of the Dock to access and enjoy their parents' property. After Madge Dooling passed in April 2020, the plaintiffs continued to have access to and use of the Dock in the summer of 2020 and part of the summer of 2021. The signs on the pilings with the street numbers for the two properties remained in place on the Dock. [94] The reasonableness of a long-term assurance of continued use is supported by the historical shared access to the Dock, the closeness of the Dock to the Dooling property, the historical sharing of expenses for the Dock, and the plaintiffs' close personal relations with the defendants, whom they referred to as "Uncle Bob" and "Aunt Fay." [95] The insistence of Madge Dooling in accounting before her death for a share of expenses related to the Dock grew out of the implied assurances from long‑standing practices that the Dock would be shared going forward. [96] I note that the Fords' exclusion of the plaintiffs from the Dock came only after Mr. Ford's discussion with a realtor about the potential impact of a shared dock on the value of his

property, the perception that their drinking water might be diverted by use of the shower on the Dock, and the Fords' concern in June of 2021 over the perceived increased use of the Dock by the plaintiffs' families and friends. It appears, therefore, that the exclusion of the plaintiffs from use of the Dock was for reasons other than the loss of a right of access by the passing of Leo and Madge Dooling. [97] Based on all the evidence at trial, and drawing an inference from the conduct of the various parties since the late 1960s, I find as a fact that an assurance or representation was made by the defendants that the Doolings have, and would have, an ongoing right to access and use the Dock. (2) Did the plaintiffs rely on the expectation by doing or refraining from doing something, and if so, was their reliance reasonable in all the circumstances? [98] I would next consider whether the Doolings reasonably relied on this assurance to their detriment so that it would be unconscionable for the Fords to go back on their assurance. [99] On this aspect, I find overwhelmingly that the plaintiffs and their parents Mr. and Mrs. Dooling did rely on ongoing assurances regarding access to the Dock to their detriment. The plaintiffs' reliance was reasonable in the circumstances because a reasonable person standing in their place would believe that use of and access to the Dock would continue

given the longstanding goodwill and cooperation between the two families. [100] Mr. and Mrs. Dooling contributed to the Dock through Mr. Dooling's labour, and they shared the expenses for the Dock over many years on the understanding, I find, that their family would continue to have access to the Dock. Their contribution of approximately $8,700 in 2005 for a new float represented a significant investment, one which I find they would not have made but for their reliance on a continued right of access for their family going forward. [101] The defendants argue that while the permission Mr. Dooling received from Mr. Ford to use the Dock may have been part of the reason that no dock was ever constructed adjacent to 334 Sasamat, there were other reasons why he never constructed a dock of his own; to wit, the belief that his children seldom visited the property. [102] While this point deserves some consideration in the overall context, it does not resolve the overall impression left by the parties' conduct. The Dock was the only access to the parties' properties from the late 1960s through 1994, and it was used by the Fords and Doolings as a recreational dock until 2021 when the Fords told the plaintiffs they could no longer use the Dock. As noted, members of the Dooling family used the Dock for over five decades by consent and without difficulty. [103] I find that the assurance of

ongoing access to the Dock incentivized the Doolings to provide labour and financial contributions to the upkeep of the Dock and disincentivized the Doolings from building a dock of their own off the waters of their property. The second requirement of reasonable reliance on an expectation is therefore made out. (3) Did the plaintiffs suffer a detriment as a result of their reasonable reliance? [104] As the reasons above indicate, I find that the Doolings suffered a detriment as a result of their reasonable reliance in two ways. [105] First, the Dooling family made substantial contributions to the upkeep and renovation of the Dock. In the early stages, Mr. Dooling fully participated in the construction of the initial dock. He made substantial payments toward upgrading the Dock: $3,000 in 1995 for the aluminum ramp and $8,732 in 2005 for the purchase of a new float. He participated with Mr. Ford in the ongoing maintenance of the Dock. He made many contributions toward municipal taxes and VFPA fees. According to the evidence of Mr. Ford, Mr. Dooling made some of the contributions in cash. [106] All of these contributions of labour and money were to the detriment of Mr. Dooling and the Dooling family and to the benefit of the Ford family. Mr. Ford stated that of a total cost of approximately $50,000 over the years for the Dock, the Dooling family contributed in the range of

$16,000-17,000. Part of their contributions were for annual property taxes and licence fees. It is not reasonable to assume that Mr. Dooling would have provided these payments unless he believed he was acquiring an interest in the Dock. [107] Second, the existence of the Dock in its current placement interferes with the rights of the Doolings to acquire their own dock. Had the Doolings not joined the Fords in sharing the dock, they may have been able to build their own dock prior to the Moratorium and the Fords' asserting exclusive use over the Dock. Alternatively, in the early years, they may have filed their own application for a dock or made a sufficient objection to influence the Fords to build their dock further away from the property line in order to preserve their potential ability to install a dock of their own. [108] After the Dock was put into place, and in reliance on the ongoing shared access to the Dock, the Doolings' ability to construct a dock of their own was impaired as a result of the Moratorium first, and then the Guidelines, which now require a 10-meter setback from a neighbouring dock or structure. There is now only about 62 feet between the Dock and the dock at 335 Sasamat built by Mr. Jeffers. [109] Mr. Ford stated that his position was that Mr. and Mrs. Dooling could use the Dock until they got a dock of their own, an outcome which now appears unlikely

in light of the Guidelines, which do not appear to make allowances for any kind of variance. [110] The defendants suggest that Mr. Dooling's contribution of work toward the Dock can be explained by his character as a hard worker who enjoyed keeping busy. They also point out that the money the Doolings contributed was never requested or held out as a condition of use of the Dock by the Fords. The defendants also characterize the Doolings' post‑1994 access to the Dock as akin to a luxury. I cannot accede to these arguments as undermining my finding that the Dooling family suffered a detriment by their reliance on a continuing right of access. [111] I find that whereas the Doolings could likely have built their own dock early on, they instead reasonably relied upon the representation of Robert Ford that they would have ongoing use of and access to the Dock, and expended labour and funds to build, refurbish and maintain the Dock, all to their detriment for the reasons above. (4) Conclusion [112] I find in all the circumstances that the plaintiffs have established an equity based on proprietary estoppel. (B) What is the appropriate remedy? [113] If an equity is established, the court must determine the extent of the equity and the remedy appropriate to satisfy the equity. As noted above, a claimant who establishes the need for proprietary estoppel is entitled only to the minimum

relief necessary to satisfy the equity in their favour, and there must be proportionality between the remedy and the detriment. [114] The defendants submit that should the Court find that the plaintiffs have made out a case of proprietary estoppel in respect of the Dock and are entitled to an easement over any portion of 333 Sasamat, any right of access should be limited to members of the Dooling family only (i.e., excluding tenants of 334 Sasamat) and that any right of use is not transferable to any future third-party purchasers of 334 Sasamat. I cannot agree with this submission. [115] Behind the defendants' submission is the idea that because they built their dock first and adjacent to their property, their rights should forever take priority over the Doolings' ability to access the Dock or build a dock of their own. However, this position is insufficiently sensitive to the efforts and expenses the Doolings historically lent to maintaining the Dock and the disadvantage the plaintiffs now find themselves in. It fails to recognize that the very existence of the Dock interferes with the ability of the Doolings to build their own dock, and that dock access is not a fee simple property right but a right that is, in part, leased from the VFPA. I note parenthetically that the Fords' position runs counter to the VFPA's encouragement of shared docks. [116] The plaintiffs submit that

the only remedy sufficient to satisfy the equity is a trust declaration, an order for an easement granting access over the defendants' land to the Dock, and an order for shared maintenance costs. [117] I substantially agree with the orders sought by the plaintiffs, as I do not regard the orders proposed by the defendants to be sufficient to satisfy the detriment suffered by the plaintiffs. In my view, a proportionate remedy would balance the plaintiffs' reasonable expectations of future access to and use of the Dock and correct their current disadvantage but contemplate future governance over the Dock (and the land and water beneath it) by the VFPA. I would hence modify the plaintiffs' proposed language and make room for the future involvement of the VFPA, which is best positioned to balance the competing interests of successive landowners to the Dock over the long term. [118] I therefore make the following declarations and orders: 1. A declaration that the owners of 333 Sasamat Lane, North Vancouver, currently the defendants, hold their current and future water licence and dock structures located at 333 Sasamat Lane ("the shared dock") in trust for the owner or owners of 334 Sasamat Lane, currently the plaintiffs, who are the beneficiaries of a one-half interest in the shared dock.

2. An order that the plaintiffs provide a copy of these Reasons to the Vancouver Fraser Port Authority as soon as reasonably possible, so that the records of the Vancouver Fraser Port Authority reflect the shared status of the dock and licence located at 333 Sasamat Lane.

3. An order that the defendants execute a registrable form of easement granting access across such portion of the defendants' property at 333 Sasamat Lane as is necessary to allow access by the owners of 334 Sasamat Lane, currently the plaintiffs, to the shared dock on 333 Sasamat Lane as long as the dock remains shared. The plaintiffs shall bear the cost of registering the easement.

4. An order for accounting and payments by the plaintiffs to the defendants for one-half of the costs incurred by the defendants for taxes, insurance and maintenance of the shared dock from the date the plaintiffs acquired title to 334 Sasamat Lane (in June 2019) on an ongoing basis as long as the dock remains shared. [119] I would also make the following additional order to better reflect the intention of the parties to the representations concerning the Dock: 5. The easement and/or trust may be discharged by agreement of the owners of 333 Sasamat Lane and 334 Sasamat Lane and/or further order of the Court; or upon the regulatory approval and construction of a dock directly servicing 334 Sasamat Lane. [120] As alluded to above, I am alive to the fact that the defendant's dock licence is issued by the VFPA, which is ultimately the appropriate public body to make determinations as to long-term use and access to recreational docks on the shoreline of the parties' properties. However, the issues in this matter have been litigated without the benefit of the participation of the VFPA, which was not a party to these proceedings. [121] I would therefore add the following orders to provide for some flexibility and account for the authority of the VFPA to make decisions with respect to the Dock in the future: 6. These orders are without prejudice to the right and authority of the Vancouver Fraser Port Authority to modify, cancel or renew the dock licence issued to 333 Sasamat Lane or to issue a shared licence in relation to the dock at 333 Sasamat Lane.

7. This Court retains the jurisdiction to make further modifications to the above orders and declarations, and to hear submissions from the parties or the Vancouver Fraser Port Authority as to the proper form, scope, duration and administration of the orders and declarations set out in these Reasons. [122] As the plaintiffs were substantially successful in this matter, they are entitled to their costs. "Brundrett J."