3021386 Nova Scotia Ltd. v. Barrington District (Municipality) et al., 2015 NSCA 30

• Judge: Oland, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 20, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 30;(2015), 357 N.S.R.(2d) 289 (CA)

3021386 N.S. v. Barrington District (2015), 357 N.S.R.(2d) 289 (CA);

    1127 A.P.R. 289

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.044

3021386 Nova Scotia Ltd, a corporation (appellant) v. Municipality of the District of Barrington, a corporation (respondent)

(CA 424407; 2015 NSCA 30)

Indexed As: 3021386 Nova Scotia Ltd. v. Barrington District (Municipality) et al.

Nova Scotia Court of Appeal

Oland, Hamilton and Fichaud, JJ.A.

March 25, 2015.

Summary:

The plaintiff purchased property for development from the defendant municipality. There were two wells that provided water to the property, one that was on the property (the courtyard well) and one that was adjacent to the property (the soccer field well). During demolition, the piping leading from the courtyard well was destroyed. The plaintiff's request for permission from the defendant to use the soccer field well was denied. The plaintiff claimed an implied easement to use the soccer field well.

The Nova Scotia Supreme Court, in a decision reported at (2014), 339 N.S.R.(2d) 153; 1073 A.P.R. 153, dismissed the application. The parties made submissions on costs.

The Nova Scotia Supreme Court, in a decision reported at (2014), 350 N.S.R.(2d) 182; 1105 A.P.R. 182, awarded the defendant costs of $8,000, plus disbursements and HST of $1,656.36. The plaintiff appealed from the dismissal of its application and applied to adduce fresh evidence on the appeal.

The Nova Scotia Court of Appeal dismissed the application to adduce fresh evidence and dismissed the appeal with costs to the defendant of $3,500.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The plaintiff purchased property for development from the defendant municipality - There were two wells that provided water to the property, one that was on the property (the courtyard well) and one that was adjacent to the property (the soccer field well) - During demolition, the piping leading from the courtyard well was destroyed - The plaintiff's request for permission from the defendant to use the soccer field well was denied - The plaintiff claimed an implied easement to use the soccer field well - Muise, J., dismissed the application on the basis that the plaintiff had failed to establish the necessity criterion, i.e., that an implied easement to draw water from the soccer field well was necessary to the reasonable and/or convenient use of the property, and the "apparency" criterion, i.e., that it was apparent that the soccer field well was supplying water to the property - On appeal, the plaintiff applied to adduce fresh evidence, consisting of a report that indicated that the courtyard well was not accepted for registration as a drinking water supply - The Nova Scotia Court of Appeal dismissed the application - The report could have been available and introduced at the hearing by the exercise of due diligence - Further, it could not reasonably have been expected to affect the result regarding the apparency criterion - See paragraphs 22 to 31.

Real Property - Topic 7030

Easements, licences and prescriptive rights - Creation by implication of law - General - [See both Real Property - Topic 7156 ].

Real Property - Topic 7035

Easements, licences and prescriptive rights - Creation by implication of law - Doctrine of apparent convenience - [See second Real Property - Topic 7156 ].

Real Property - Topic 7156

Easements, licences and prescriptive rights - Easements and prescriptive rights relating to water - By implication - The plaintiff purchased property for development from the defendant municipality - There were two wells that provided water to the property, one that was on the property (the courtyard well) and one that was adjacent to the property (the soccer field well) - During demolition, the piping leading from the courtyard well was destroyed - The plaintiff's request for permission from the defendant to use the soccer field well was denied - The plaintiff claimed an implied easement to use the soccer field well - Muise, J., dismissed the application on the basis that the plaintiff had failed to establish the necessity criterion, i.e., that an implied easement to draw water from the soccer field well was necessary to the reasonable and/or convenient use of the property, and the "apparency" criterion, i.e., that it was apparent that the soccer field well was supplying water to the property - The Nova Scotia Court of Appeal dismissed the plaintiff's appeal - The court rejected the plaintiff's argument that Muise, J., had erred by confusing the test for an implied grant of easement with that for an implied reservation of easement - Despite Muise, J.'s reference to the courts being loathe to imply an easement, his reasons clearly indicated that he had applied the correct test without any increased burden - See paragraphs 34 to 37.

Real Property - Topic 7156

Easements, licences and prescriptive rights - Easements and prescriptive rights relating to water - By implication - The plaintiff purchased property for development from the defendant municipality - There were two wells that provided water to the property, one that was on the property (the courtyard well) and one that was adjacent to the property (the soccer field well) - During demolition, the piping leading from the courtyard well was destroyed - The plaintiff's request for permission from the defendant to use the soccer field well was denied - The plaintiff claimed an implied easement to use the soccer field well - Muise, J., dismissed the application on the basis that the plaintiff had failed to establish, inter alia, the "apparency" criterion, i.e., that it was apparent that the soccer field well was supplying water to the property - The Nova Scotia Court of Appeal dismissed the plaintiff's appeal - There was no error in Muise, J.'s finding that the use of the soccer field well as a water supply for the property was not apparent at the time of conveyance - It was for Muise, J., to resolve any conflict or ambiguity in the evidence concerning what the parties knew at the time of conveyance - There was evidence supporting his conclusion - See paragraphs 38 to 42.

Cases Noticed:

Armoyan v. Armoyan (2013), 334 N.S.R.(2d) 204; 1059 A.P.R. 204; 2013 NSCA 99, leave to appeal denied, [2014] N.R. TBEd. Motion 47 (S.C.C.), refd to. [para. 24].

Germain v. Brar (2010), 503 A.R. 110; 2010 ABQB 530, refd to. [para. 35].

St. Mary's Milling Company v. St. Mary's (Town) (1916), 32 D.L.R. 105; 37 O.L.R. 546 (C.A.), refd to. [para. 36].

Authors and Works Noticed:

Anger and Honsberger, Law of Real Property (3rd Ed. 2012), pp. 17-10, 17 -11 [para. 36].

Counsel:

Christopher I. Robinson and Eric Slone, for the appellant;

Kevin C. MacDonald, for the respondent.

This application and appeal were heard at Halifax, N.S., on January 20, 2015, by Oland, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. On March 25, 2015, Hamilton, J.A., delivered the following reasons for judgment for the court.