Henry v. Nova Scotia

Henry v. Nova Scotia Court Supreme Court Date 2025-12-15 Citation 2025 NSSC 407 Docket Hfx No. 544406 Judge/Registrar/Adjudicator Gatchalian, Gail L. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Henry v. Nova Scotia, 2025 NSSC 407 Date: 20251215 Docket: Hfx No. 544406 Registry: Halifax Between: Lynn M. Henry, also known as Lynn M. Henry-Boutilier Applicant v. His Majesty the King in right of the Province of Nova Scotia and Dylan M. Mossman Respondents Decision on Motions to Strike Notice of Application Judge: The Honourable Justice Gail L. Gatchalian Heard: October 2, 2025, in Halifax, Nova Scotia Counsel: Lynn M. Henry, representing herself Mark V. Rieksts, for the Respondent His Majesty the King in right of the Province of Nova Scotia Parker J. Byrne and Anindo Satyajit Sen for the Respondent Dylan M. Mossman Caitlin Menczel-O’Neill, for the Registrar General of Land Titles, watching brief By the Court: Introduction [1] The Applicant, Lynn M. Henry, also known as Lynn M. Henry-Boutilier, has filed a Notice of Application in Court. [2] In the Notice of Application, Ms. Henry seeks declaratory relief: (a) a declaration concerning the location of the northern boundary of her property at Glen Margaret, Halifax; (b) a declaration that her property does not contain a segment of a “public road” under the Public Highways Act, R.S.N.S. 1989, c.371; and (c) a declaration that the survey plan of the Defendant, Dylan Mossman, “lacks data integrity.” [3] Under the Public Highways Act, a road is deemed to be a common and public highway if it meets any of the criteria under s.11(1): 11 (1) Except in so far as they have been closed according to law, (a) all allowances for highways made by surveyors for the Crown; (b) all highways laid out or established under the authority of any statute; (c) all roads on which public money has been expended for opening, or on which statute labour has been performed prior to the twenty-first day of March, 1953; (d) all roads passing through Indian lands; (e) all roads dedicated by the owners of the land to public use; (f) every road now open and used as a public road or highway; and (g) all alterations and deviations of, and all bridges on or along any road or highway, shall be deemed to be common and public highway until the contrary is shown. [4] Every public highway, together with the land within the highway’s boundaries, is vested in His Majesty in right of the Province: Public Highways Act, s.11(2). [5] The Notice of Application appends a 34-page, 292-paragraph “Grounds for the Orders.” The Grounds are misnumbered throughout the document. The pages are not numbered. [6] The Attorney General, on behalf of the Respondent His Majesty the King in right of the Province of Nova Scotia, seeks an order striking all but nine paragraphs of the Grounds for the Orders. The Respondent Dylan M. Mossman seeks an order striking the entire Notice of Application in Court. The Respondents assert that the Grounds for the Orders: a) plead evidence, argument, opinion, immaterial facts, and are not concise pleadings, contrary to Nova Scotia Civil Procedure Rules 5 and 38; and b) are frivolous, vexatious, scandalous or otherwise an abuse of the court’s process contrary to Rule 88. [7] Mr. Mossman seeks to strike the Application without prejudice to Ms. Henry’s ability to file a Notice of Application in Court that is Rule-compliant. [8] The Attorney General and Mr. Mossman filed briefs in support of their respective motions to strike. They were represented by counsel at the hearing of the motion. [9] Ms. Henry is a lawyer and a practicing member of the Nova Scotia Bar. She is representing herself. She filed a brief which did not respond to the motions to strike but rather addressed the merits of the Application. Her oral submissions at the motion hearing were focussed on the merits of the Application. After prompting from the court, she made brief oral submissions relevant to the motions to strike, stating that the Grounds for the Orders are relevant and contain material facts. She confirmed very briefly that she is alleging “boundary manipulation” and “fraud under the Land Registration system,” though there is no remedy sought for either of those claims in the Notice of Application. [10] As I will explain, the “Grounds for the Orders” appended to the Notice of Application run afoul of virtually every rule of pleading: a) The grounds are rife with evidence, immaterial facts, argument, opinion, and are not concise. b) They are an abuse of the court’s process. Civil Procedure Rules 38 and 5: General Principles and Pleading Grounds in an Application [11] The general principles of pleadings are set out in Civil Procedure Rule 38.02: 38.02 General principles of pleading (1) A party must, by the pleading the party files, provide notice to the other party of all claims, defences, or grounds to be raised by the party signing the pleading. (2) The pleading must be concise, but it must provide information sufficient to accomplish both of the following: (a) the other party will know the case the party has to meet when preparing for, and participating in, the trial or hearing; (b) the other party will not be surprised when the party signing the pleading seeks to prove a material fact. (3) Material facts must be pleaded, but the evidence to prove a material fact must not be pleaded. (4) A party may plead a point of law, if the material facts that make it applicable are also pleaded. [12] Rule 38.06 sets out the rules for pleading grounds in an application, and has the same requirement to plead material facts in a concise manner: 38.06 Pleading grounds in an application The following rules of pleading apply to a statement of grounds or notice of contest in an application and they are further to the rules of pleading provided in Rules 5.02 to 5.04, 5.07, and 5.08, of Rule 5 - Application: (a) the grounds must be stated in such a way that the relevance of each statement in an affidavit filed, or to be filed, by the party is apparent; (b) a description of a person must not contain more personal information than is necessary to identify the person and show the person’s relationship to a claim or ground of contest. [13] The Honourable Justice Christa Brothers distilled the following principles of pleading from the case law in H&N Enterprises Inc. v. Novacation Inc., 2021 NSSC 191 at para.19: 1. A pleading must sufficiently inform the defendant of the case she has to meet. 2. A pleading must contain a reasonable cause of action – that is setting forth the material facts for the constituent elements of the claim. 3. Pleadings must be concise but provide enough information for the opposing party to understand the claim that must be met. 4. Material facts are to be pleaded but not evidence in proof of those facts– the distinction between the two has been noted as difficult to ascertain at times: “it is often difficult to separate material facts from evidence” Fairbanks v. Nova Scotia (Attorney General), 2000 NSSC 103. 5. The Court must consider whether the opposing party is prejudiced by the pleading as it stands. 6. Pleadings should not contain opinion, argument, or irrelevant facts. 7. The drafter of a pleading will be given some latitude. [14] At para. 20 of H&N Enterprises Inc., Justice Brothers cited with approval the following statement from the PEI Supreme Court in Capital Markets Technologies, Inc. v. Prince Edward Island, 2016 PESC 4 at para. 14 of that decision: [14] That Rule provides the basis for determining what a proper pleading should and should not contain. A statement of claim (or a statement of defence) should not become a rambling narrative of the relationship between the parties but should clearly and concisely recite only essential or material facts necessary to base a claim. Superfluous, irrelevant, extraneous, repetitive, or immaterial statements are not to be tolerated. [15] Civil Procedure Rule 38.03(3) became relevant during the course of the motion hearing, given Ms. Henry’s statement that she is pursuing an allegation of fraud under the land registration system. Rule 38.03(3) provides as follows: 38.03 (3)A pleading must provide full particulars of a claim alleging unconscionable conduct, such as fraud, fraudulent misrepresentation, misappropriation, or malice. Abuse of Process [16] Pleadings may also be struck pursuant to Civil Procedure Rule 88 as an abuse of the court’s process, or as being frivolous, scandalous or vexatious. [17] Rules 88.01 and 88.02 provide as follows: 88.01 (1) These Rules do not diminish the inherent authority of a judge to control an abuse of the court’s processes. (2) This Rule does not limit the varieties of conduct that may amount to an abuse or the remedies that may be provided in response to an abuse. (3) This Rule provides procedure for controlling abuse. 88.02 (1) A judge who is satisfied that a process of the court is abused may provide a remedy that is likely to control the abuse, including any of the following: … (e) an order striking or amending the pleading; [18] Justice Brothers addressed scandalous pleadings at para. 22 of H&N Enterprises Inc. Scandalous pleadings include pleadings that are irrelevant or that assert a cause of action against a non-party. Justice Brothers relied on the following passage from Capital Markets Technologies at para. 37: 37 ... A pleading can be scandalous when it is offensive, irrelevant, or, in addition, as in this case, constitutes a collateral attack asserting a cause of action against a non-party, leaving the non-party no ability to answer to the claim. Taylor J. also addressed this issue in Ayangma, supra, where the statement of claim included accusations against non-parties, alleging they engaged in a conspiracy. At para. 50(l) he stated: 50 (l) The statement of claim is scandalous at many points (Rule 25.11(b)). It accuses the Human Rights Commission (paragraphs 129, 158) and the French and Eastern School Board (paragraph 129) of conspiracy, and the PEI legal community (paragraphs 127, 128, 182, 234, 251, 254, 276, 290, 291) of malice, abuse of court process, and possibly defamation. These bodies are not parties to the action, and the claim is therefore scandalous in the legal sense, meaning that it is both offensive and irrelevant. [19] At para. 23 of H&N Enterprises Inc., Justice Brothers cited Ayangma v. Prince Edward Island, 2005 PESCTD 25, where the Supreme Court of Prince Edward Island described cases that might lead to a pleading being struck as frivolous, vexatious or an abuse of process: [49] The problems identified in the Prince Edward Island cases which may lead to having a statement of claim being struck as frivolous, vexatious, an abuse of process, or something which may prejudice or delay the fair trial of the action are: 1) unnecessary length; 2) improper pleading of evidence rather than material facts to support a party's claim; 3) difficulty in ascertaining what the plaintiff seeks; 4) repeated breach of the rules of pleading ("plain and obvious"); 5) impossibility of fixing the claim by a series of amendments; 6) whether a series of amendments would make of it a new statement of claim; 7) whether the defendant may be embarrassed or prejudiced in meeting the claim; 8) whether the claim pleads "facts" which are speculative. Opinion and Argument [20] The Grounds for the Orders are rife with opinion and argument; for example: • At para. 6, on the second page of the Grounds, Ms. Henry writes: 6. The simplicity and uncomplicated nature of the boundary dispute that is the primary issue for determination on this Application combined with the overwhelming evidence brings before this Honourable Court a very unique and interesting set of circumstances and undeniable facts, that have all come together in this one Application such that, like a perfect storm, the boundary dispute that is the primary issue for determination on this Application reveals and leaves no possible doubt that there is a serious flaw in the new land registration system, known commonly as Property Online (“POL”). • At para. 18, on the third page, Ms. Henry writes: 18. The facts and circumstances of the case at bar show that the Respondent Crown and multiple surveyors, including the Respondent Mossman, share a penchant for drawing pictures of roads that do not exist on the ground in the real world and putting these pictures on the POL map as virtual roads existing in the virtual world of POL, for all the people in the real world to see from any online location in the world, for a fee. • In the first line of para. 23, on the fourth page, Ms. Henry writes: “[i]t appears that not only does the new land registration not work for all the people of Nova Scotia, but even surveyors do not work for all the people of Nova Scotia.” • In the first line of para. 26, on the fourth page, Ms. Henry writes: “[t]hese newcomers in the woods seem to think every footpath is a trail, every trail is a road and every road is a public because they have been around for a long time.” • At para. 30, on the fifth page, Ms. Henry writes: 30. The Applicant has tried her best to reduce these grounds in length. She has made Sixteen (16) attempts to do so, since the last appearance, four or five of which she did manage to reduce to less than Fifteen (15) pages. None satisfied her. This is the most important case of her career, and it has taken the Applicant years to figure out what has been going on and who these newcomers and strangers are. • At para. 61, on the eighth page, Ms. Henry writes: 61. Common sense alone dictates that the Segment of the Old Road in Issue never could have come down the hill to Westhaver Road between the two banks of the Natural Wedge Formation. The two banks of it are at no point far enough apart from each other for there to be enough space in between them for a one lane/one-rod road, let alone a two lane/two-rod road. It is as simple as that in the real world. It is not rocket science. • At para. 64, on the eighth and ninth pages, Ms. Henry writes: 64. Such an assertion is also insulting to the Crown Grantees and early settlers of Glen Margaret and the other villages on the east side of the Bay, and portrays them as fools who chose to bring a road down the hill between the two banks of the Natural Wedge Formation at a time when they had all the land on the east side of Westhaver Road from which to choose. • At para. 137, on the eighteenth page, Ms. Henry writes: 137. The Applicant did not suddenly look out a window of her house one day after Thirty-Fourt (34) years of residing on the Applicant’s Property and at the age of Sixty-Two (62), in some bout of senility, decide to totter on over and obstruct a deemed common and public highway, that was supposedly akin in size to Westhaver Road, or even at least akin in size to her driveway, and that had supposedly been going up her hill from Westhaver Road and being used by the public throughout that time and for over Two-Hundred (200) years. • At para. 236, on the thirty-fourth page, Ms. Henry writes: 236. The new online land registration system is a creation of technology, it take technology to operate, and it favours technology. It is a system of numbers. Everything has a number and the numbers must add up properly in order for the virtual world of land ownership in Nova Scotia to accurately, or as accurately as possible, reflect the real world of land ownership in Nova Scotia. • At para. 199, on the thirty-fifth page, Ms. Henry writes: 199. Under the new land registration system, such a virtual curtain awaits the Respondents to hide behind and to hide what they are trying to do on the Applicant’s Property, whether by mistake, negligence or intent, which is not an issue to be determined on this Application and nor is liability. • At para. 205, on the thirty-sixth page, Ms. Henry writes: 205. What has transpired on the Applicant’s Property to date defies belief in this day and age, and is more suited to an action adventure movie than it is to something happening in real life, especially in a small, quiet, isolated and little known community unto itself, such as Westhaver Road is, in a small and little known village such as Glen Margaret is, and as they have always been in the Applicant’s lifetime of now Sixty-Seven (67) years. It was also completely unnecessary in the circumstances of this case. [21] These are but a few examples of numerous paragraphs in the Grounds for the Orders that contain impermissible opinion and argument. The foregoing paragraphs and the following paragraphs must be struck on the basis that they contain impermissible opinion and argument: • Paras. 5 (last line), 6-10, 12-21, 26-28, 31-35, both paragraphs numbered 37, 38, 40, 43, 45-47, 49, 51-52, 54-55, 62, 65, 73, 78-79, 82-86, 88-90, 93-94, 100-113, 128-136 (from the first to the seventeenth pages); paras. 127-128, 138, 140, 145-148, 155 (last line), 156, 164, 179, 218, 220-226, 229-242, 245 (from the seventeenth to the thirty-second page); paras. 223-226, 228-240 and 189 (from the thirty-second page to the thirty-fourth pages); and paras. 195-201, 210, 212-215, 219-224 (from the thirty-fifth page to the thirty-eighth page). Evidence and Immaterial Facts [22] The Grounds for the Orders are replete with evidence and with immaterial facts. [23] Paragraphs 172 to 182 of the Grounds for the Orders impermissibly plead evidence regarding Mr. Mossman and must be struck. For example, paras. 172 to 174 and 176 read as follows: 172. The Applicant was surprised when the Respondent Mossman attended at the Applicant’s Property in April of 2021 by himself and without any advance notice. It was his first attendance to the knowledge of the Applicant. 173. The first thing the Applicant asked him was whether the Province had found the ROW for the old road yet. The response of the Respondent Mossman was, “that’s what I’m here to do.” 174. The Applicant then asked the Respondent Mossman if he was disputing the Applicant’s Survey Plan, and his response was “no”. … 176. When the Applicant pointed out the Natural Wedge Formation, Respondent Mossman replied that in his “professional opinion” it was not a natural formation of the land but “ordinary wear and tear” from the many years of use. [24] The following Grounds for the Orders plead evidence and/or immaterial facts and must be struck: • Para. 22, from the third to fourth page: referring to the passing of surveyor Forbes Thompson, with statements from his obituary. • Para. 23, on the fourth page: describing Ms. Henry’s failed attempts to hire a land surveyor. • Para. 24, on the fourth page: referring to "reports of boundary manipulation” and the “Buck Line”. • Para. 25, on the fourth page: referring to “warnings” to locals to watch their land, alleged threats by unknown bikers, and reports of “new trails” and “new roads” being built in the area. • Para. 26, on the fourth page: referring to the “spiderweb of trails,” a new Planning Strategy and Zoning By-Law. • Paras. 30-33, on the fifth page: describing Ms. Henry’s attempts to make the grounds more concise and clear, and why the grounds are so extensive. • Paras. 66-72, on the ninth page: describing Ms. Henry’s ancestral tree. • Paras. 114-115, on the fourteenth page: discussing water issues. • Paras. 116-126, on the fifteenth to sixteenth page: discussing the nature of Westhaver Road, for example, that it is “an insignificant, short, dead end, more dirt than gravel road, that goes nowhere, has few residents, little public use…” and that “[i]n 1986 it was still common to see turtles walking up it from the River,”; Ms. Henry’s husband and his father having been born and raised on the Seabright Old Halifax Road, paramedics not being able to find Ms. Henry’s home, her husband having died before the paramedics arrived, the building of a “New Bridge”, the “Old Bridge”, and the Landowners Road. • Para. 135, on the eighteenth page: stating that “[t]he only view of the Applicant’s Property from Westhaver Road is the Applicant’s driveway going in and up to its crest part way up the hill, largely line with woods on both sides, and then more woods going up the hill beyond the crest.” • Paras. 140-141, on the eighteenth page: references to an “Unknown Road Project” and discussions with landowners about a landowners association in response to an “Unknown Road Project.” • Para. 163, on the twenty-first page: what a representative of the Crown allegedly told “Craig” to do in order to prevent further trespasses. • Paras. 189-195, on the thirty-fourth to thirty-fifth pages: references to efforts to remove barricades, unknown individuals, the police being called. [25] Ms. Henry states at para. 221 of the grounds that “the boundary dispute that is the primary issue for determination on this Application involves no findings of fault, negligence, intention, liability or consequential relief whatsoever.” Inconsistently, at the motion hearing, she said that she is pursuing a claim of fraud. All other allegations of tortious conduct or other claims of improper conduct on the part of unnamed parties or unknown individuals are immaterial and must be struck, i.e.: • Paras. 129-148, from the seventeenth page to the nineteenth page: alleging trespass and harassment by unknown individuals and non-parties. • Paras. 156-157, 159-163, 165-166, 170, the second instance of para. 171, 177, from the twentieth page to the twenty-second page): references to unknown individuals responsible for trespass, Unknown Interferers and the Interfering ATV Association. • Paras. 189-194, 201-209, 211 and 218, from the thirty-fourth page to the thirty-eighth page: references to trespass and harassment by strangers, Unknown Interferers, the Interfering ATV Association, and Unknown Bikers. • Para. 224, on the thirty-eight page: reference to people who have been interfering in this dispute, and Ms. Henry being in doubt as to her legal rights. [26] Several paragraphs must be struck as they plead evidence, while also consisting of irrelevant statements, argument and opinion. A few examples are as follows: • At para. 29, on the fourth page, Ms. Henry writes: 29. The Applicant and her friend, Craig Morash, who has been maintaining the Applicant’s property since 2007 (“Craig”), have both examined and compared the survey plans and historical documentation and are both familiar with the Applicant’s Property, Craig especially so. He has been off trail hunting in the woods since he was a boy of Twelve (12) and is like Daniel Boone in the wood, though not in a long time following a motorcycle accident in 2012. He is one with nature and the wild animals on the Applicant’s Property. Deer and pheasants breed on it. • At para. 171, Ms. Henry writes: 171. A couple of days later three (3) of the Unknown Interferers riding ATVs drove down Newcombe’s Field, parked, and then stood in the field conversing looking up the hill at Newcombe’s Field. Craig approached them through the Applicant’s woods without been seen and listened to their conversation. They were mentioning the owner’s name and saying the road had been stolen. The Applicant anticipated that the dispute would be over with respect to the Applicant’s property. • At para. 189, on the thirty-fourth page, Ms. Henry writes: 189. On the morning of May 13, 2022, the morning that POL came back online, the Province was on the Applicant’s Property attempting to remove the Applicant’s barricades pursuant to the third Statutory Notice. There was a police escort for it that had Westhaver Road blocked from the start of the Applicant’s Property. Several strangers were gathered nearby. Some were the Unknown Interferers, including some of her known neighbours and an officer of the Interfering ATV Association. One of the Unknown Interferers, who was know [sic] as a neighbour, had a drone flying over the Applicant’s Property, without permission, to capture the event. • At para. 194, on the thirty-fifth page, Ms. Henry writes: 194. On the fifth day after the Province removed, a rather beat off [sic] truck with Provincial sign attached to it by magnet brought several men, most younger ones wearing hoodies, and wearing highway vests, came all the way the Applicant’s driveway, telling the Applicant that she did not own any of her driveway and started marking more trees they were going to remove up the further in line with it. They taunted the Applicant with comments such as “ha, has, you don’t own your land anymore, I do.” The Applicant called the police again, but they left before the police arrived. [27] The foregoing paragraphs and the following paragraphs must be struck as they plead evidence, while also consisting of irrelevant statements, argument and opinion: paras. 22-26, 29, 38, 39, 40-44, 46, 51, 53-64, 66-77, 81, 91-92, 95-99, 102, 107, 114-126, 128, 131-132, 136, 138, 141-144, 147-218, 223-230, 234, 236, 238-243; and starting at the thirty-second page: paras. 222, 223, 225-229, the second instance of para. 231, 232, 236, 238-240, 189, 190-196, 202-204 and 208-219. Allegations Against Non-Parties [28] The following paragraphs make allegations against non-parties (“unknown persons”, “unknown interferers”, “interfering ATV Association”, “Unknown Bikers”, “Interfering Survey Client”) and must be struck: paras. 84, 129-133, 138, 140, 141, 170, 171, 177; and starting on the thirty-fourth page: paras. 189, 193-194, 201-204, 206-208, 211, 218 and 224. Speculative and Therefore Argument/Opinion and Immaterial [29] The following grounds plead speculative facts which either constitute argument or opinion, or are immaterial, and must be struck: • Para. 65: “To build and widen a road in the Natural Wedge Formation would have required the Crown Grantees and early settlers to dig it into the north side of a hill by hand, without the luxury of an excavator”. • Paras. 40, 49, 51 (last line), 64, 78-79, 90, 93-94, 107, 145, 218(b), 244, and 193 (on the thirty-sixth page). Conclusion [30] The Grounds for the Orders violate almost every rule that governs proper pleadings. The Application is appropriately described as a rambling narrative that contains superfluous, irrelevant, extraneous and immaterial statements. The effect of the copious instances of pleading of opinion and argument, irrelevant facts and evidence, and claims against unknown individuals and third parties, results in a pleading that is prolix and confusing. The Application completely fails to frame the material facts and the legal claim. The Application is scandalous, in that it violates the rules of pleadings, is confused and rambling, is unnecessarily prolix, is rife with opinion and argument and with evidence rather than material facts. The Application is therefore an abuse of the court’s process. While Ms. Henry briefly asserted in oral argument that she is pursuing a claim of fraud, the Application fails to comply with Civil Procedure Rule 38.03(3), and the requirement for full particulars of a claim alleging unconscionable conduct, such as fraud. It would be impossible to fix this claim by a series of amendments. It would be wholly unfair and “embarrassing” to require the Respondents to respond to the Grounds for the Orders. The Notice of Application does not do what a pleading should. It does not state the material facts and put the Respondents on notice of the claims they must respond to (see H& N Enterprises at para. 24). [31] The Notice of Application, including all of Grounds for the Orders, is struck in its entirety. Ms. Henry shall have three months from the date of the Order to file a Rule-compliant Notice of Application. [32] If the parties cannot agree on the issue of costs, I will receive written submissions from the Respondents within two weeks of this decision, and from Ms. Henry within four weeks of this decision. Gatchalian, J.