White v. Fisher-Banville

2003BCSC0606

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: White v. Banville, 2003 BCSC 606 Date: 20030417 Docket: 00/4046 Registry: Victoria Between: FRANK ELLISON WHITE and

HEATHER LOUISE WHITE

PLAINTIFFS And JOAN ANN FISHER-BANVILLE and

MARC ANDRE BANVILLE

DEFENDANTS Before: The Honourable Mr. Justice Edwards Reasons for Judgment Counsel for Plaintiffs D. Laurence Armstrong Counsel for Defendants Sandra E. Jenko Date and Place of Hearing: April 4, 2003 Victoria, B.C. [1] This is an application under Rule 18A for an order that: Right of Way 3510 RW and Easements H1114 and G99863 be rectified by including within the Easement Area the existing paved "turnaround" at the westerly end of the paved driveway. [2] The question of whether the easement included the turnaround arose during a boundary dispute between neighbours. After the trial of this and a companion case (Victoria Registry No. 00/4889) arising from that dispute, I gave judgment 2001 BCSC 628 on April 27, 2001. At paragraphs 49-54 of that judgment I permitted the plaintiffs (the "Whites") to amend their pleadings to seek modification of reciprocal easements G99863 and H01114 pursuant to s. 35 of the Property Law Act and granted that modification. [3] The defendants (the "Banvilles") appealed and the Court of Appeal in judgment 2002 B.C.C.A. 239 on April 16, 2002, at paragraphs 18-25 and 56 held that "modification" under s. 35 was not a remedy provided by s. 35 of the Act on the facts of this case. [4] At the hearing of the appeal, the equitable doctrine of rectification was argued on behalf of the Whites as an alternative remedy for altering the easements to include the

turnaround. [5] Chief Justice Finch, at paragraphs 18 to 42, concluded that rectification was available and on the basis of findings of fact made at the trial and his own reference to the transcript evidence of Mrs. Kittleson, a former owner of the property on which the turnaround is situated, ordered rectification of easement H01114. [6] Madam Justice Ryan (Mr. Justice Low concurring) held at paragraph 63 that the Whites should be permitted to amend their pleadings to seek rectification and the case should be returned to this court for determination of the issue of rectification on the amended pleadings. [7] The parties amended their pleadings. The following was added to the Whites' Statement of Claim: 20. Lot 2 and Lot 1 aforesaid are respectively charged by Easements G99863 and H1114, each incorporating portions of Right of Way 3510 RW.

21. Easement H1114 and Right of Way 3510 RW do not reflect the true agreement between the owners of the properties at the time the said instruments were created.

22. Both prior to the preparation and registration of Easement H1114 and Right of Way 3510 RW, and subsequent thereto, the true agreement between the owners of the properties was that the paved "turnaround" area near the westerly end of the driveway was to be included as an integral part of the said Easement and Right of Way and the driveway thereon.

23. That notwithstanding the terms of the said Easement and Right of Way, at all times the owners of the property and their successors in title shared a common continuing intention that the above-described true agreement stand as agreed, rather than as reflected in the registered Easement and Right of Way.

24. The Defendants were given notice that the easement included the turnaround at the time they acquired Lot 1 and acted continuously in accordance thereof (until this dispute arose) and are now estopped from denying the true agreement.

25. The Plaintiffs plead the doctrine of rectification. THE PLAINTIFFS CLAIM AS FOLLOWS: (g.) An Order rectifying Easement H1114 and Right of Way 3510 RW to include as part thereof the paved turnaround area at the westerly end of the paved driveway. [8] The following was added to the Banvilles' Statement of Defence: 4. The Defendants did not have any notice prior to purchasing Lot 1 that the purported "turn around" was supposed to be included in the easement and Right of Way.

5. The Defendants believed the disputed area was their parking space when they wanted to drive down to their beach access.

6. The Defendants did not have any notice that the Plaintiffs were claiming the Defendants' parking space was supposed to be included in the Right of Way as a "turn around" until this claim arose at trial.

7. The Defendants plead and rely on Part 3, and in particular Sections 20, 23, 24 and 29 of the Land Title Act, R.S.B.C. 1996, Ch. 250. [9] Chief Justice Finch at paragraphs 28 and 40 noted: 28. ... Counsel says the Banvilles might have been able to lead other evidence touching on the intention of the Dilays if rectification had been pleaded. ...

40. With respect, I think it is fanciful to suggest that evidence could have been obtained from the Dilays, or from anyone else, to support the proposition that the turnaround was excluded from the easement by design, and that in doing so the Dilays intended to deprive themselves of its use for the 10 years or so that they continued to reside on Lot 2, after they sold Lot 1 to the Kittlesons in 1979. [10] Madam Justice Ryan at paragraph 59 concurred with this assessment of the trial evidence. [59] ... I agree with the Chief Justice that, on the evidence called at this trial, it is an irresistible inference that the original homeowners, the Dilays, the couple who created the easement, did not intend to deprive themselves of the only means by which they could reasonably have access to and egress from their home by motor vehicle. ... [11] Affidavits were filed on this Rule 18A application sworn by Mr. Dilay, the then joint owner with his wife of both lots, who registered the easements and by Mr. Carrier who prepared Right of Way Plan No.

3510. Mr. Dilay was cross-examined in court at the hearing. [12] I am satisfied on the basis of this evidence that it was the Dilays' intention when they created the easements to include the turnaround within the boundary of the right of way plan annexed as Schedule A to the easements and that through some miscommunication Mr. Carrier did not include the turnaround. I find the turnaround was not excluded from the right of way "by design" of the Dilays. [13] The fact Mr. and Mrs. Dilay signed Right of Way Plan No. 3510 does not alter my view of the Dilays' intention. I accept Mr. Dilay's explanation that he assumed the plan as prepared by Mr. Carrier reflected the Dilays' intention to include the whole paved area of the driveway, including the turnaround which was then paved. [14] Mr. Dilay states at paragraphs 4-7 and 10-11 of his first affidavit: 4. Access to the property was by a private paved driveway from Nimmo Road.

5. At all times, there was a paved "turnaround" area near our house, which we and our guests and suppliers used as part of the driveway.

6. The turnaround is a necessary part of the driveway, as there is nowhere else for a vehicle to practically turn so as to be able to go back up the steep and winding driveway.

7. From the time we moved in, we always used the turnaround as part of the driveway, and considered it as such. ...

10. I have no idea why the survey plan for the right of way and easements omitted the paved turnaround. It was not our intention that it should have been excluded.

11. Such omission or exclusion was an error. I did not even know that it was not included in the Land Title document until the Court action between the Banvilles and the Whites was started. [15] Mr. Carrier states at paragraph 7 of his affidavit: 7. At no time was I instructed to include the purported turn around in the Right of Way. Had I been instructed to include the purported turn around in the Right of Way, I would have done so. [16] Mr. Dilay states at paragraphs 4 to 6 of his second affidavit: 4. It was my intention and understanding, and that of my wife, that the driveway included the turnaround area previously described, and that when the easements were drafted the turnaround was included as part of the easement area.

5. I still don't understand why Mr. Carrier did not include them. It was not on our instructions that they be excluded.

6. At no time did Mr. Carrier notify us that the turnaround was not included in the easements, or seek any instruction from us in that respect. [17] There is no evidence as to why Mr. Carrier decided to put the right of way boundary across a continuous paved area, obviously intended for use by vehicles, thereby excluding the turnaround from the right of way and the easement. The suggestion that the turnaround was not paved at the time he prepared the right of way plan is refuted by the evidence of the Dilays. [18] The Dilays' intention and expectation was that the whole paved area comprising the driveway and turnaround would be within the right of way boundary. There was no apparent reason to exclude the turnaround and as Chief Justice Finch noted, good reason to include it. That was the Dilays' self-interest in continuing to use the turnaround while they lived on Lot 2 for several more years. To that I would add the ability to later sell Lot 2 with convenient road access guaranteed by a registered easement over Lot 1. [19] For the reasons of Chief Justice Finch quoted above and after hearing Mr. Dilay testify, I find there is the requisite "strong irrefragable evidence" that Right of Way Plan No. 3510 does not embody the Dilays' intention, as the only parties to the easement H01114 instrument, that it was to include the turnaround which they considered part of the driveway. I

find the necessary factual underpinning for rectification of the instrument has been proved to the necessary "highest degree of probability". See Snell's Equity 29th Edition p. 632. [20] Rectification will not be granted to the prejudice of a bona fide purchaser for value without notice who takes an interest conferred by the instrument. This prompted the majority in the Court of Appeal to return the matter for consideration of further evidence by this court. As Madam Justice Ryan observed at paragraphs 59-62: 59. ... The problem arises with the subsequent sale of the two pieces of property in question.

60. Assuming that rectification of the instrument creating the easement is possible and that the court may order that the easement recorded on the title to the properties be amended in accordance, the question becomes whether the appellants, were bona fide purchasers for value, or whether they purchased the property under the mistaken impression that the "turnaround" was part of the registered easement.

61. While there was evidence on the part of the Whites and Mrs. Kittleson, the former owner of the appellants' property, that the turnaround was always used for that purpose, there is conflicting evidence that all were under the mistaken impression that the turnaround was part of the registered easement.

62. The trial judge did not have this specific issue before him. He made no findings of fact with respect to it. Counsel for the appellants says that he would have called other evidence in support of his position had he been given the opportunity. [21] Here, of course, the Banvilles' fee simple interest in their lot, unencumbered by the easement to the extent it failed to include the turnaround, was effectively "conferred" by the instrument in question. [22] I interpret the phrase "bona fide purchasers for value" in the passage quoted in paragraph 20 to mean bona fide purchasers for value without knowledge that the easement did not include the turnaround. In other words, the Court of Appeal majority held that rectification can only be granted if the evidence shows that the Banvilles "purchased the property under the mistaken impression that the turnaround was part of the registered easement". [23] Counsel for the Whites argued that this issue had already been determined in their favour at the trial (2001 BCSC 628 paragraphs 44-46) and by Chief Justice Finch (2002 BCCA 239 paragraph 46). What was found in those paragraphs was that the Banvilles had notice of "encroachments, unregistered easements or unregistered rights of way". That notice served to alert them to inquire what was or was not registered against the title. [24] There were two successive bona fide purchasers, the

Kittlesons and the Banvilles. Chief Justice Finch at paragraph 38 quoted Mrs. Kittleson's trial testimony which supported the finding at paragraph 52 of the trial judgment that she always believed the turnaround was part of the driveway. Indeed she was "surprised to find out it was now on what had been our property". By that I take her to mean not included within the Right of Way Plan No. 3510. [25] That the turnaround was not within the boundary of the right of way was definitively determined only when Mr. Carrier conducted a survey in March 2000 and certified a plan in May 2000 which showed the turnaround was not within the right of way boundary. Had the Banvilles asked Mrs. Kittleson when they bought the property whether the turnaround was in or out of the right of way, no doubt she would have told them what she and the Dilays before her believed, that the turnaround was within the right of way. [26] There is no evidence the Banvilles asked Mrs. Kittleson whether the turnaround was within or outside the registered right of way or part of the disclosed unregistered interests referred to in paragraph 41 of Chief Justice Finch's judgment. [27] I infer the reason the Banvilles did not ask Mrs. Kittleson if the turnaround was part of the registered right of way was because anyone inspecting the property would naturally assume that the whole of the paved driveway area, including

the paved turnaround, was within the registered right of way. [28] I reject Mr. Banville's evidence given at the trial that when he inspected the property before purchase with a plan provided by Mrs. Kittleson in hand he realized the turnaround was not within the registered right of way and thereafter assumed that it was a parking spot for the Banvilles' exclusive use on those rare occasions when they visited the waterfront of Lot 1 by car. [29] Mr. Banville's testimony to that effect was given after Mr. Carrier's March 2000 survey and certified plan showed the turnaround was not within the right of way. That survey was done long after the boundary dispute began. There is no evidence that before the survey the Banvilles' ever protested the White's use of the turnaround on the basis it was not within the right of way. [30] The following is from pages 96-97 of the transcript of Mr. Banville's cross-examination at the trial: A. That turn they call -- what they call the turnaround, the parking area is on my property, it's not on the easement. Q. And you knew that right from day one? A. I don't know if day one, around there some time. Q. And when did you put up the barricade? A. Oh, two -- two or three months ago, I can't remember exactly when. Q. After the Court date was set? A. No, I think it was before that. Q. After the -- the Court actions had been started? A. How long has the

Court action been going on, I don't know what -- Q. About a year. A. oh, oh yeah, after that, yeah. Q. And -- and just after you got Mr. Carrier's plan? A. Yes. Q. And you don't -- you don't use that area where the turnaround is? A. Well if we go down we use it, if we -- if we're going -- Q. Well to park? A. -- for park bays and -- Q. But you only go down there a few times a year at the most? A. Well lately we haven't been down because it's not -- it's not private. [31] In context, the question "And you knew that right from day one?" meant "You knew at the time you purchased Lot 1 the turnaround was not on the easement?" The answer "around there some time" I find is not credible in light of the later acknowledgement that the Banvilles' attempt to barricade the turnaround did not occur until after the March 2000 survey. [32] Further, that answer is inconsistent with Mrs. Banville's cross-examination at transcript pages 260-262. When referred to a letter from Mrs. White dated 13 June 1999, indicating the Whites were told by the Dilays and Kittlesons that "the turnaround was part of the joint driveway system", Mrs. Banville agreed that her reply of 22 November 1999 made no mention of the turnaround "... because, ah - we didn't know about the turnaround." This I interpret to mean that the Banvilles did not then know the turnaround was not within the right of way. [33] According to

the transcript at page 262, it was not until a letter of 7 December 1999, that the Banvilles asserted "Our property is not a common turnaround nor is it for your convenient parking of many vehicles." and "We just want you off our property." This was in reply to a letter from the Whites dated 5 December 1999 relating an incident where Mr. Banville had parked "in the turn around" forcing friends of the Whites' children to turn their vehicle in a "gravel area" to which Mr. Banville protested. There is no evidence that Mr. Banville asserted on that occasion that the turnaround was not within the right of way. So the letter of 7 December 1999 cannot be interpreted as a reiteration of such an assertion. [34] I find that the acrimonious nature of the boundary dispute would have prompted the Banvilles to assert to the Whites their belief that the turnaround was not within the registered right of way long before March 2000, if they in fact held that belief from the time they purchased Lot 1. I infer from the absence of evidence of any such assertion prior to March 2000 that the Banvilles must have had the "mistaken impression", along with the Dilays, the Whites and Mrs. Kittleson, that the turnaround was within the right of way from the time they purchased Lot 1 until the result of the 2000 survey was known. [35] The fact it took a survey to settle the matter further demonstrates that

it was not obvious that the turnaround was not within the right of way. [36] I find that the Banvilles were bona fide purchasers for value who were unaware that the turnaround was not included in the right of way. It follows that rectification of the instrument is not precluded in this case because the Banvilles, notwithstanding the state of registered title, did not have actual notice that their property included the turnaround unencumbered by the right of way but were, at the time they purchased Lot 1, under the mistaken belief the right of way included the turnaround. [37] Counsel for the Banvilles argued that principles of the Torrens System, as reflected in the Land Title Act, precluded rectification in this case citing Fowler v. Henry, [1902] 10 B.C.R. 212. [38] That neither the Land Title Act nor the principles of the Torrens System are a bar to rectification of a registered instrument is clear from the decision of the Court of Appeal in Hawkes Estate v. Silver Campsites Ltd. (1991), 79 D.L.R. (4th) 690 which considered Fowler. [39] McQuiggan v. Sharp, [1984] B.C.J. No. 1054 (S.C.).,cited by Chief Justice Finch at paragraph 30, is an example of rectification of a registered easement where the actual alignment of a road on the ground did not conform to the right of way. [40] In McQuiggan, Mr. Justice Ruttan considered the evidence of a workman who remembered that the

alignment of the road in 1941, before the right of way was registered, had not subsequently changed. Mr. Justice Ruttan found that the instrument which included an inaccurate sketch of the road to be included in the right of way, did not reflect the true intention of the deceased parties to the instrument. They left no evidence apart from the instrument of their intent. [41] At paragraph 20, Mr. Justice Ruttan noted "What the explanation is for the error in the drawing of the designated road as opposed to the constructed road, is something we can only speculate on. But I can only conclude that by error, neglect or forgetfulness the right-of-way as sketched on the plan was never corrected, but that both the parties always intended the right-of-way sketch to refer only to the road ... that was already constructed." [42] The facts in McQuiggan closely parallel those in this case except that in McQuiggan there was no evidence reported as to what the successors in title believed about whether the road conformed to the right of way. In one place the road on the ground was 140 feet from the registered right of way. That made it far more obvious on even casual inspection that the two did not conform than is the case here, where the turnaround appears to be part of the paved driveway which is otherwise contained within the right of way boundary. [43] I have found that the Banvilles were

under the mistaken impression at the time they acquired Lot 1 that the turnaround was part of the driveway within the right of way boundary. That means the proposed rectification will simply reflect the state of title they believed they were acquiring when they bought Lot 1. That is no injustice. [44] I would grant the order of rectification sought by the Whites and direct they bear the costs of preparation of a new right of way plan and other documentation necessary to register the instrument rectifying easement instruments H01114 and G99863 as though the change were a "modification" under s. 35 of the Property Law Act. I further direct that the requisite documentation, once in a form satisfactory to the Registrar of Titles, be registered. "E.R.A. Edwards, J." The Honourable Mr. Justice E.R.A. Edwards April 17, 2003 - Corrigendum for the Reasons for Judgment issued by Mr. Justice E.R.A. Edwards advising that on page 2, paragraph 2, line 5 of the said Reasons should read: " . I gave judgment 2001 BCSC 628 on April 27, 2001."