Bailey v. Stonehouse et al., (2012) 334 N.S.R.(2d) 9 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 21, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 334 N.S.R.(2d) 9 (SC);2012 NSSC 448

Bailey v. Stonehouse (2012), 334 N.S.R.(2d) 9 (SC);

    1059 A.P.R. 9

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. SE.002

Julie Angela Bailey (applicant) v. William Daniel Murphy Stonehouse and Marie Danella MacQuarrie (respondents)

(Tru. No. 348608; 2012 NSSC 448)

Indexed As: Bailey v. Stonehouse et al.

Nova Scotia Supreme Court

LeBlanc, J.

December 24, 2012.

Summary:

Neighbouring landowners (Bailey and Stonehouse) each claimed title to a road that divided their properties. A 1927 deed from Packard conveyed land to Baillie "excepting thereout the right of way or road extending from the lands of said Donald Sutherland to the Public highway aforesaid". Bailey argued that the conveyance included the fee simple in the road (i.e., merely recorded a previously established right of way in favour of the Sutherland property). Stonehouse argued that the deed unambiguously excluded the road from the conveyance, reserving title to Packard. Stonehouse purportedly obtained title to the road by way of a quit claim deed from one of Packard's descendants (MacQuarrie). Bailey applied to set aside the quit claim deed as invalid and sought a declaration that Stonehouse had no fee simple interest in the road.

The Nova Scotia Supreme Court allowed Bailey's application. On its face, the wording of the 1927 deed supported Stonehouse's interpretation. However, extrinsic evidence revealed a latent ambiguity as to the meaning of "excepting thereout". The evidence supported an interpretation that the 1927 deed conveyed title to the road to Baillie. Accordingly, Stonehouse could acquire no interest in the road by way of MacQuarrie's quit claim deed. Whether Stonehouse had a right to use the right of way by way of prescription was not addressed by the court.

Deeds and Documents - Topic 2527

Operation and interpretation - The property conveyed - Latent ambiguity in description of property - Neighbouring landowners (Bailey and Stonehouse) each claimed title to a road that divided their properties - At issue was the interpretation of a 1927 deed which conveyed land "excepting thereout the right of way or road extending from the lands of said Donald Sutherland to the Public highway aforesaid" from Packard to Baillie - Bailey argued that the deed included the road in the conveyance - Stonehouse argued that use of the words "excepting thereout" made it clear that the road was retained by the grantor, and that he obtained title to the road by way of quit claim deed from one of the grantor's descendants - The Nova Scotia Supreme Court held that on its face, the use of "excepting thereout" supported Stonehouse's interpretation (i.e., no patent ambiguity) - However, extrinsic evidence revealed a latent ambiguity as to the meaning of "excepting thereout" - The evidence supported an interpretation that the 1927 deed conveyed title to the road to Baillie - "Excepting" was distinct from "reserving" - The deed referred to excepting the "right of way or road" - A right of way could not be "excepted" from a conveyance - Accordingly, since the grantor did not retain title to the road, the quit claim deed from the grantor's descendant could not convey any interest in the road to Stonehouse - See paragraphs 50 to 75.

Deeds and Documents - Topic 2562

Operation and interpretation - Interpretation - Generally - Meaning of words in a deed or document - [See Deeds and Documents - Topic 2527 ].

Deeds and Documents - Topic 2563

Operation and interpretation - Interpretation - Generally - Use of extrinsic evidence - [See Deeds and Documents - Topic 2527 ].

Deeds and Documents - Topic 2706

Operation and interpretation - Reservations and exceptions - In deeds - [See Deeds and Documents - Topic 2527 ].

Real Property - Topic 5048

Title - Establishing title - Deeds - Interpretation - [See Deeds and Documents - Topic 2527 ].

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective or retroactive operation - Neighbouring landowners (Bailey and Stonehouse) each claimed title to a road that divided their properties - At issue was the interpretation of a 1927 deed which conveyed land "excepting thereout the right of way or road extending from the lands of said Donald Sutherland to the Public highway aforesaid" - Bailey argued that the deed included the road in the conveyance - Stonehouse argued that use of the words "excepting thereout" made it clear that the road was retained by the grantor, and that he obtained title to the road by way of quit claim deed from one of the grantor's descendants - Section 11(1) of the Conveyancing Act provided that "a conveyance shall be read as a whole and if it contains contradictory provisions the later provisions shall be effective" - The deed was executed in 1927 - Section 11(1) did not come into force until 1956 - The Nova Scotia Supreme Court held that s. 11(1) did not apply to the interpretation of the 1927 deed - The court stated that "applying the interpretative principle set out in section 11(1) of the Act would give the legislation retroactive force, since any change to interpretation generated by the section could apply so as to alter the effect of the Deed at the time of the conveyance, not only for the future. As a result, the statute attracts the presumption against retroactivity as cited in Gustavson, and given that there is no express language in the legislation indicating that retroactivity was intended, the presumption is not rebutted." - See paragraphs 39 to 49.

Statutes - Topic 6703.1

Operation and effect - Commencement, duration and repeal - Retrospective enactments - Retrospective and retroactive distinguished - The Nova Scotia Supreme Court distinguished retroactivity and retrospectivity - A retroactive statute "makes the law different from what it was prior to its enactment" while a retrospective statute "opens up a closed transaction and changes its consequences, although the change is effective only for the future" - See paragraph 46.

Cases Noticed:

Knock v. Fouillard (2007), 252 N.S.R.(2d) 298; 804 A.P.R. 298; 2007 NSCA 27, refd to. [para. 38].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 45].

Quebec (Attorney General) v. Expropriation Tribunal, [1986] 1 S.C.R. 732; 66 N.R. 380, refd to. [para. 45].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2) (1991), 102 N.S.R.(2d) 222; 279 A.P.R. 222 (C.A.), refd to. [para. 46].

Hayward Estate, Re (2011), 311 N.S.R.(2d) 136; 985 A.P.R. 136; 2011 NSCA 118, refd to. [para. 46].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 46].

Cotter v. General Petroleum Ltd., [1951] S.C.R. 154, refd to. [para. 50].

Saueracker et al. v. Snow et al. (1976), 14 N.S.R.(2d) 607; 11 A.P.R. 607 (T.D.), refd to. [para. 51].

Swinemar v. Hatt and Tarbox (1980), 41 N.S.R.(2d) 453; 76 A.P.R. 453 (T.D.), refd to. [para. 51].

Herbst v. Seaboyer (1994), 137 N.S.R.(2d) 5; 391 A.P.R. 5 (C.A.), refd to. [para. 51].

Kolstee v. Metlin (2002), 207 N.S.R.(2d) 27; 649 A.P.R. 27; 2002 NSCA 81, refd to. [para. 51].

3209292 Nova Scotia Ltd. v. MacDuff (2011), 308 N.S.R.(2d) 227; 976 A.P.R. 227; 2011 NSSC 363, refd to. [para. 51].

McDonnell Estate v. Scott World Wide Inc. et al. (1997), 160 N.S.R.(2d) 349; 473 A.P.R. 349; 1997 CarswellNS 285 (C.A.), refd to. [para. 54].

Gibbs et al. v. Grand Bend (Village) et al. (1995), 86 O.A.C. 321; 26 O.R.(3d) 644 (C.A.), refd to. [para. 56].

Statutes Noticed:

Conveyancing Act, R.S.N.S. 1989, c. 97, sect. 11(1) [para. 40].

Authors and Works Noticed:

Di Castri, Victor, The Law of Vendor and Purchaser (1988) (Looseleaf), vol. 2, §437 [para. 57].

Driedger, Elmer A., The Construction of Statutes (2nd Ed. 1983), p. 186 [para. 46].

MacIntosh, C.W., Real Property Practice Manual (1988) (Looseleaf), p. 5-39(4) [para. 55].

Counsel:

Robert Pineo, for the applicant;

Stacey England, for the respondent.

This application was heard on March 21, 2012, at Halifax, N.S., before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 24, 2012.