Forrestall v. Akins Court Condominiums

Forrestall v. Akins Court Condominiums Court Court of Appeal Date 2008-06-25 Citation 2008 NSCA 58 Docket CA 291725 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice); Fichaud, Joel E. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Forrestall v. Akins Court Condominiums - 2008 NSCA 58 - 2008-06-25 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Forrestall v. Akins Court Condominiums, 2008 NSCA 58 Date: 20080625 Docket: CA 291725 Registry: Halifax Between: Katherine Forrestall and Robert J. Russell Appellants v. Halifax County Condominium Corporation No. 142 (Akins Court Condominiums), Akins Cottage Limited and Halifax Regional Municipality Respondents Judges: Bateman, Cromwell and Fichaud, JJ.A. Appeal Heard: June 17, 2008, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Bateman and Fichaud, JJ.A. concurring. Counsel: Burnley A. Jones, for the appellants James D. MacNeil and Kelly Peck, for the respondents Halifax County Condominium Corporation No. 142 (Akins Court Condominiums) and Akins Cottage Limited Joshua J. Judah, for the respondent Halifax Regional Municipality Reasons for judgment: [1] The appellants claimed to have a right of way under the doctrine of lost modern grant. Hall, J. at trial dismissed their claim and they appeal: 2006 NSSC 387. [2] On the view I take of the case, I need to decide only two main points. [3] The first relates to the relevant period of time for determining whether the right of way had been established. The judge found that, in order to succeed, the appellants had to establish that there had been continuous use of the driveway by the owner or occupant of the property for a continuous period of twenty years prior to the City acquiring title in 1965. This conclusion, in his view, flowed from s. 592 of the Halifax City Charter, S.N.S. 1963, c. 52 (carried forward in successor provisions) which precludes acquiring an interest in City land “... by reason of the adverse or unauthorized possession, occupation, enjoyment or use ...” of that land. The section reads: 592 No person shall, by reason of the adverse or unauthorized possession, occupation, enjoyment or use of any land owned by the City or of any street within the City and shown upon any plan of subdivision or dedicated for use as a street whether adopted by the City as a street or not, obtain any estate or interest therein or in any such land by reason of such adverse possession, occupation, enjoyment or use thereof, and it shall be deemed that no such right has heretofore been so acquired. [4] The appellants say the judge was wrong about this in two respects. They submit first that s. 592 is not relevant here because it does not apply to all City land but only to land that is subject to a public trust. The appellants’ second point is that s. 592 does not preclude easements, such as they claim, based on the doctrine of lost modern grant. I cannot accept either submission. [5] The wording of s. 592 is not restricted to land subject to a public trust. According to its express wording, the section applies to “... any land owned by the City.” The Legislature could hardly have used more all-inclusive language. The two cases relied on by the appellants do not support their position that a limitation to lands held by the City subject to a public trust should be read into the provision. Teis v. Ancaster (Town) (1997), 152 D.L.R. (4th) 304; [1997] O.J. No. 3512 (Q.L.) (Ont. C.A.) is not relevant because the Court was not considering a similar legislative provision. S. W. Properties Inc. v. Calgary (City of), 2003 ABCA 10, 222 D.L.R. (4th) 430 is also not relevant because the case concerned the apparent conflict between two enactments which is not present in this case and the comments relied on are obiter in any event. There is, in my view, no basis in the text of the provision or in the authorities to add to the clear and broad words of this section the limitation for which the appellants contend. [6] The appellants’ second submission concerning s. 592 is that it does not preclude easements founded on the doctrine of lost modern grant but only interests acquired by adverse possession. The appellants advance no authority for this view and, in my opinion, the wording of the section is amply broad to preclude the interest which the appellants say they acquired. [7] Section 592 provides that no person may obtain any interest “... by reason of the adverse or unauthorized possession, occupation, enjoyment or use ...” of any land owned by the City. There are different legal theories underlying easements claimed on the basis of the doctrine of lost modern grant (as the appellants assert here) and easements claimed on the basis of adverse possession. However, both are founded on the claimant’s use and enjoyment of the land. The nature of the enjoyment and use necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by adverse possession: Mason v. Partridge, 2005 NSCA 144, 237 N.S.R. (2d) 252 (C.A.) at paras. 17 - 18, citing Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.) at 382-83. Claims on either basis therefore arise “by reason of” the claimant’s enjoyment and use of the land. I conclude, therefore, that acquisition of an easement on the basis of the doctrine of lost modern grant is precluded by s. 592 because it is an interest in land claimed “... by reason of the adverse or unauthorized possession, occupation, enjoyment or use...” of that land. [8] I conclude that the judge did not err in finding that to succeed, the appellants had to establish a 20 year period of use before the City acquired the land in 1965. [9] The appellants also challenge the judge’s conclusion that they had not established use of the alleged right of way for a 20 year period before 1965. This was a finding of fact and can be interfered with on appeal only if the appellants show that the judge made a clear and determinative error. Having reviewed the record, the judge’s reasons and the appellants’ submissions, I conclude that there is no such error and that the judge’s conclusion is well-supported by the evidence. [10] I do not accept the appellants’ submission that Mason v. Partridge, supra is on all fours with this case. There, the question was not the length or nature of the use of the claimed easement, but whether that use had been shown to have been without the consent of the owner. The trial judge’s error was his failure to consider whether absence of that consent could be inferred from all of the evidence: see para. 30. [11] Unlike Mason, the judge in this case found that the evidence of use was lacking. He concluded that the appellants had “... failed to establish that there was continuous use of the driveway by the owner or occupant of the property for a continuous period of twenty years prior to the City acquiring title ... in 1965”: 2006 NSSC 387 at para. 36. The judge correctly set out the legal principles and carefully and quite fully reviewed the relevant evidence. There is no basis upon which it can be said that his finding was the result of any error, let alone one that is both clear and determinative of the issue. There is no basis for appellate intervention on this issue. [12] In light of my conclusion that the judge correctly held that the appellants had to establish the required period of use before 1965 and that they failed to do so, it is not necessary to consider the arguments relating to the effect, if any, of the later expropriation on the claimed easement. [13] I would dismiss the appeal. Costs should follow the event. A range of costs on appeal higher than our usual orders is justified here as a result of the volume of material, the number of issues pursued on appeal and the failure of the appellants to file proper material. The appeal arose out of a three day trial. The transcript was roughly 500 pages and, in addition, there were three volumes of documentation. The appellants argued seven issues. The material filed by the appellants, particularly the Appeal Book, did not comply with the Rules and this made the respondents' task of replying to the appeal more difficult than it needed to be. The poor state of the material also made the Court's task unnecessarily burdensome. The City and the other two respondents were separately represented and filed full briefs on the points raised by the appellants. I would order the appellants to pay the respondent Halifax Regional Municipality costs fixed at $4000. plus disbursements and as well to pay the respondents Halifax County Condominium Corporation No. 142 (Akins Court Condominiums) and Akins Cottage Limited, taxed as one bill, costs fixed at $4000. plus disbursements. Cromwell, J.A. Concurred in: Bateman, J.A. Fichaud, J.A.