Black v. Norris et al., (2013) 410 N.B.R.(2d) 337 (CA)

• Jurisdiction: New Brunswick
• Court: Court of Appeal of New Brunswick
• Judge: Robertson, Bell and Quigg, JJ.A.
• Citation: (2013), 410 N.B.R.(2d) 337 (CA),2013 NBCA 62
• Date: 10 September 2013
• Subject Matter: INJUNCTIONS,PRACTICE

Black v. Norris (2013), 410 N.B.R.(2d) 337 (CA);

    410 R.N.-B.(2e) 337; 1065 A.P.R. 337

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. NO.002

Renvoi temp.: [2013] N.B.R.(2d) TBEd. NO.002

Peter Herbert Norris (appellant) v. Lennox Kingman Black (respondent) and The Registrar General of Land Titles (respondent)

(157-12-CA; 2013 NBCA 62)

Indexed As: Black v. Norris et al.

Répertorié: Black v. Norris et al.

New Brunswick Court of Appeal

Robertson, Bell and Quigg, JJ.A.

October 31, 2013.

Summary:

Résumé:

This litigation arose out of a property dispute between the owners (Black and Norris) of two valuable waterfront properties. In addition to a number of legal issues, at issue was a subdivision plan which was prepared by Welch and who was the fee simple owner of the "disputed area".

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 399 N.B.R.(2d) 1; 1035 A.P.R. 1, concluded that Black was the fee simple owner of the disputed area. Accordingly, an amended subdivision plan was to be prepared by Welch at his expense and filed in the Land Titles office showing the disputed area as being part of Black's property. Black was entitled to rectification of the title register pursuant to s. 70 of the Land Titles Act to reflect this correction and to show that he was the fee simple owner of the disputed area. Black was also granted a permanent injunction restraining Norris and his agents and servants from committing any acts of trespass on the disputed area. Costs were to be determined at a separate hearing.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 403 N.B.R.(2d) 22; 1045 A.P.R. 22, ordered a lump sum award of costs in favour of Black in the amount of $50,000 together with HST in the amount of $6,500 for a total of $56,500 together with all reasonable disbursements. Norris appealed both decisions.

The New Brunswick Court of Appeal allowed the appeal for the limited purpose of striking the order made against Welch. In all other respects, the appeal was dismissed. Black was entitled to costs of $3,500 payable by Norris. No costs were ordered for or against the Registrar General of Land Titles.

Injunctions - Topic 1445

Permanent injunctions - When granted - Disputed boundaries - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - The trial judge concluded that Black was the fee simple owner of the disputed area and granted a permanent injunction restraining Norris and his agents and servants from committing any acts of trespass on the disputed area - Norris appealed, asserting that the trial judge erred in granting a permanent injunction against Norris - Norris argued that at no time did he wrongfully interfere with Black's proprietary rights and there was no evidence to support the allegation that there were reasonable grounds to believe that Norris would interfere with those rights in future - The New Brunswick Court of Appeal dismissed the appeal - The evidence at trial did not support Norris' argument - The trial judge concluded that Norris had attempted to exercise control over the disputed area by having Welch identify it on a subdivision plan of the Norris property - See paragraphs 14 to 16.

Practice - Topic 6963

Costs - Definitions - Amount involved - [See first Practice - Topic 7117 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - The trial judge concluded that Black was the fee simple owner of the disputed area and ordered a lump sum award of costs in favour of Black in the amount of $50,000 - Norris appealed, asserting that the trial judge erred in his determination of costs payable to Black - Norris argued that the trial judge erred in making a lump sum award rather than resorting to the Tariff - The New Brunswick Court of Appeal dismissed the appeal - The trial judge offered cogent reasons for his decision not to apply the Tariff in the circumstances of this case and there was nothing in those reasons warranting appellate intervention - Rule 59.09(1)(c) provided that in cases involving a "substantial non-monetary issue" the "amount involved" for purposes of applying the Tariff was to be based on an amount determined having regard to the complexity of the proceeding and the importance of the issue - The Tariff could still be applied even if the issue involved a non-quantifiable claim - That said, the discretion of the trial judge to abandon the Tariff altogether could not be disputed - That discretion was expressly preserved in rule 59.01 - Moreover, the typical case involving the application of the Tariff involved a claim for damages based in either tort or contract law - In the present case, Black made no claim for a monetary amount - He sought only a declaration with respect to ownership of lands and, correlatively, a determination with respect to a boundary line - These considerations led to the conclusion that not only was there was no "amount involved" but also that the issue at hand was non-quantifiable, monetarily speaking - See paragraphs 6 to 8.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - The trial judge concluded that Black was the fee simple owner of the disputed area and ordered a lump sum award of costs in favour of Black in the amount of $50,000 - Norris appealed, asserting that the trial judge erred in his determination of costs payable to Black - Norris argued that the costs award of $50,000 was "inordinately high" so as to be "manifestly wrong or plainly wrong" - His argument involved a comparison of the costs awarded in the present case with those generated in accordance with the Tariff and also costs awarded in earlier cases involving a boundary line dispute - The New Brunswick Court of Appeal dismissed the appeal - Any comparison between what might have been awarded under the Tariff and what the trial judge awarded as a lump sum was misplaced - The object of the lump sum award was "to provide the successful party with partial indemnification that reflects the realities of the time and money expended in pursuing the litigation." - It was unwise to rely unduly upon earlier precedents for three reasons - The circumstances surrounding the litigation and the factors to be considered under rule 59 were simply too diverse to postulate, for example, that costs awarded in one boundary line case should approximate those in another, having regard to an isolated fact: the length of the trial - Further, it was unwise to rely blindly on trial decisions that pre-dated the more recent jurisprudence - Finally, it was just as convenient to argue that the costs award in each of the earlier cases was manifestly low and unreflective of the true cost of litigation today - See paragraphs 9 to 11.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - Black purchased his waterfront property in 1984 - Norris purchased his adjoining waterfront property from his mother in 2009 - Norris retained the surveying services of Welch and caused a new subdivision plan to be registered under the land titles system in 2010 - At issue was the owner of a "disputed area" which Black thought he owned pursuant to his 1984 deed, but was registered as part of Norris' property pursuant to the 2010 registration - The trial judge concluded that Black was the fee simple owner of the disputed area and ordered a lump sum award of costs in favour of Black in the amount of $50,000 - Norris appealed, asserting that the trial judge erred in his determination of costs payable to Black - Norris argued that the trial judge failed to consider the "unproven allegations of fraud" aimed at both Norris and his mother and, consequently, even though Black was successful, he should not have been awarded costs - The New Brunswick Court of Appeal dismissed the appeal - There was no merit to the argument - Nowhere in the pleadings was there an allegation that Norris was culpable of fraudulent conduct - See paragraphs 12 and 13.

Injonctions - Cote 1445

Injonctions permanentes - Circonstances y donnant droit - Dispute quant aux bornes - [Voir Injunctions - Topic 1445 ].

Procédure - Cote 6963

Dépens - Définitions - Montant clé - [Voir Practice - Topic 6963 ].

Procédure - Cote 7117

Dépens - Dépens entre parties - Ordonnances spéciales - Somme globale au lieu de dépens taxés - [Voir Practice - Topic 7117 ].

Cases Noticed:

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 2011 NBCA 44, refd to. [para. 3].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 9].

Potash Corp. of Saskatchewan Inc. et al. v. Dupont Canada Inc. et al., [2008] N.B.R.(2d) Uned. 13 (C.A.), refd to. [para. 9].

Williams et al. v. Saint John (City), New Brunswick and Chubb Industries Ltd. (1985), 66 N.B.R.(2d) 10; 169 A.P.R. 10 (C.A.), refd to. [para. 9].

Pond v. Hovey (2009), 343 N.B.R.(2d) 390; 881 A.P.R. 390; 2009 NBQB 86, revd. (2010), 353 N.B.R.(2d) 388; 910 A.P.R. 388; 2010 NBCA 2, refd to. [para. 10].

McKinney v. Tobias (2006), 306 N.B.R.(2d) 282; 793 A.P.R. 282; 2006 NBQB 290, refd to. [para. 10].

Pride of Derby and Derbyshire Angling Association Ltd. v. British Celanese Ltd., [1953] Ch. 149 (U.K.), refd to. [para. 14].

OH Ranch Ltd. v. Patton (1996), 187 A.R. 232; 127 W.A.C. 232 (C.A.), refd to. [para. 14].

Irving Pulp & Paper Ltd. v. McBrine et al. (1973), 9 N.B.R.(2d) 194; 1 A.P.R. 194 (Q.B.), refd to. [para. 14].

New Brunswick Power Distribution and Customer Service Corp. et al. v. Kinsella (2013), 402 N.B.R.(2d) 323; 1044 A.P.R. 323; 2013 NBCA 25, refd to. [para. 15].

Stamper v. Finnigan, Via Rail Canada Inc., Canadian National Railway Co. and New Brunswick (1987), 81 N.B.R.(2d) 213; 205 A.P.R. 213 (C.A.), refd to. [para. 17].

P.H. v. P.H. (2008), 328 N.B.R.(2d) 245; 841 A.P.R. 245; 2008 NBCA 17, refd to. [para. 17].

Legal Aid Services Commission (N.B.) v. Comeau (2009), 351 N.B.R.(2d) 269; 904 A.P.R. 269; 2009 NBCA 78, refd to. [para. 17].

Authors and Works Noticed:

Abrams, Linda S., and McGuinness, Kevin P., Canadian Civil Procedure Law (2nd Ed. 2010), §19.203 [para. 18].

Counsel:

Avocats:

D. Andrew Rouse, for the appellant;

John D. Townsend, Q.C., for the respondent, Lennox Kingman Black;

David D. Eidt, for the respondent, The Registrar General of Land Titles.

This appeal was heard on September 10, 2013, by Robertson, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Robertson, J.A., in both official languages, on October 31, 2013.