Burrell v. Nova Scotia (Attorney General)

Burrell v. Nova Scotia (Attorney General) Court Court of Appeal Date 2006-04-20 Citation 2006 NSCA 48 Docket CA 238384 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice); Fichaud, Joel E. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Burrell v. Nova Scotia (Attorney General) - 2006 NSCA 48 - 2006-04-20 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Burrell v. Nova Scotia (Attorney General) , 2006 NSCA 48 Date: 20060420 Docket: CA 238384 Registry: Halifax Between: Lawrence D. Burrell Appellant v. The Attorney General of the Province of Nova Scotia and 2095891 Nova Scotia Limited Respondents Judges: Bateman, Hamilton and Fichaud, JJ.A. Appeal Heard: April 7, 2006, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bateman, J.A.; Hamilton and Fichaud, JJ.A. concurring. Counsel: appellant in person H.F. (Boe) MacIntyre, Q.C., for the respondent 2095891 Nova Scotia Limited respondent, Attorney General of the Province of Nova Scotia not appearing Reasons for judgment: [1] The parties both own parcels of land located in Sydney River, Nova Scotia. Mr. Burrell’s lands front on Kings Road. The Company’s lands are accessed from Kings Road via a deeded right-of-way running along a strip of land adjacent to the Burrell lands. Looking at the lands from King’s Road, the Company lands are behind the Burrell lands and the right-of-way is to the right of the Burrell lands. [2] In dispute in this litigation was the ownership of a parcel of land separating the Burrell and the Company lands and the strip of land over which the fifteen foot right-of-way runs, but exceeding, by roughly five to ten feet at various places, the width of the deeded right. For the purposes of this action, the owner of the separating parcel and the strip was not known. In a quieting of titles action (Quieting of Titles Act, R.S.N.S. 1989, c. 382) Mr. Burrell claimed title by adverse possession of both parcels. The Company counterclaimed for a right-of-way over the entire strip of land running along the Burrell property. [3] Justice Suzanne Hood of the Supreme Court of Nova Scotia heard three days of evidence, including that of an expert surveyor for each of the parties. She was not satisfied on the evidence that Mr. Burrell had made out his claim for possessory title of the back parcel. She found that neither the nature of the acts of possession nor their duration sufficed. For similar reasons she also dismissed Mr. Burrell’s claim for title to the strip of land. The judge found, however, that the Company had established the continuous use of lands beyond the width of the deeded right-of-way on the strip of land for the requisite twenty years. She granted a certificate of title for a right-of-way in excess of that deeded. Justice Hood’s decision is reported as Burrell v. Nova Scotia (Attorney General), [2004] N.S.J. No. 453 (Q.L.). [4] Mr. Burrell has appealed alleging, in fifteen grounds, errors by the trial judge. Essentially, the issues raised by Mr. Burrell on this appeal involve the judge’s factual determinations. The applicable standard of review is well known. The appellant must demonstrate palpable and overriding error on the part of the trial judge in her assessment of the evidence (Housen v. Nikolaisen, [2002] 2 S.C.R. 235). That is, error which is clear and obvious and goes to the root of the challenged finding of fact. Where there is conflicting expert testimony, as there was here, the weight to be placed on the various pieces of conflicting evidence is the province of the trial judge (Toneguzzo‑Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114 at para. 15; Housen, supra, at para. 57). [5] Mr. Burrell seeks to introduce several documents as fresh evidence on this appeal. The test for the admission of fresh evidence was set out by the Supreme Court of Canada in R. v. Palmer, [1980] 1 S.C.R. 759. We have considered the proffered evidence in conjunction with the other evidence in the case. The fact that this material was available and known to Mr. Burrell before trial where he was represented by counsel militates against its admission. Nor are we persuaded that, if it had been before the trial judge, the evidence could reasonably be expected to have affected the result. Accordingly, we do not admit the fresh evidence. [6] Mr. Burrell takes issue with the description of land contained in the order and over which the extended right-of-way is granted. His concerns in this regard were raised with Justice Hood through an exchange of letters, after trial but prior to the issuance of the order. We are satisfied, as was the trial judge, that the description incorporated into the order gives effect to her decision. [7] As for the merits of the appeal, the record does not support Mr. Burrell’s allegations of reviewable error. In effect, Mr. Burrell is looking for a retrial. That is not the function of this Court. [8] We would dismiss the appeal with costs payable by Mr. Burrell to the Company (2095891 Nova Scotia Limited) in the amount of $2000 plus disbursements as taxed or agreed. Bateman, J.A. Concurred in: Hamilton, J.A. Fichaud, J.A.