Brill v. Nova Scotia (Attorney General), 2010 NSCA 69

• Judge: Oland, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 31, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSCA 69;(2010), 294 N.S.R.(2d) 307 (CA)

Brill v. N.S. (A.G.) (2010), 294 N.S.R.(2d) 307 (CA);

    933 A.P.R. 307

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. SE.005

The Attorney General of Nova Scotia (appellant/respondent by cross appeal) v. Alan R. Brill (respondent/appellant by cross appeal) and Nova Scotia Barristers' Society (intervenor)

(CA 313430; 2010 NSCA 69)

Indexed As: Brill v. Nova Scotia (Attorney General)

Nova Scotia Court of Appeal

Oland, Hamilton and Fichaud, JJ.A.

September 9, 2010.

Summary:

Brill sued under the Quieting of Titles Act for a certificate of title to Bella Island in Mahone Bay, Nova Scotia. He claimed title against the provincial Crown based on "a chain of title which is more than 200 years". He traced his title back to a 1791 warranty deed from the Becks. As support, Brill cited the Marketable Titles Act of Nova Scotia. Alternatively, he alleged that the Crown had granted the land to the Becks' predecessor in title. He also claimed title by adverse possession under the Limitation of Actions Act. The province pleaded that the Crown had never granted Bella Island, and that Brill's chain of title did not diminish the Crown's interest. The province argued that Brill's chain of title was deficient and denied the adverse possession claim. Brill filed an interlocutory application to determine "the specific question of law ... whether the 60-year Common Law Rule for establishing good and marketable title is binding upon the Crown". The application also requested, by summary judgment, a certificate of title to Bella Island.

The Nova Scotia Supreme Court, in a decision reported at (2008), 271 N.S.R.(2d) 169; 867 A.P.R. 169; 2008 NSSC 330, held that the 60 year common law rule for marketable title had been replaced by a statutory 40 year rule in s. 4(1) of the Marketable Titles Act, and that the 40 year rule applied to the Crown. The court declined to issue a certificate of title by summary judgment. There were arguable issues to be tried respecting the chain of title. The province applied for leave to appeal. Brill applied for leave to cross-appeal. The Nova Scotia Barristers' Society intervened.

The Nova Scotia Court of Appeal granted leave, and dismissed the appeal and cross-appeal. Though the reasons differed from those of the chambers judge, the ultimate result was the same. On the issues posed by Brill, there was no longer a 60 year rule at common law (though common law principles did impact Brill's claim). Summary judgment was denied. Brill's claim should go to trial. On the province's appeal, the 40 year rule did apply to the Crown on the terms discussed by the Court.

Civil Rights - Topic 3226

Trials - Due process, fundamental justice and fair hearings - Civil proceedings - Right to present argument - [See Crown - Topic 467 ].

Crown - Topic 467

Statutes affecting the Crown - Particular matters - Statutes preserving common law rights - The applicant sued under the Quieting of Titles Act of Nova Scotia - He claimed title against the provincial Crown - His interlocutory application requested, by summary judgment, a certificate of title - The chambers judge held that the 60 year common law rule for marketable title was replaced by the Marketable Titles Act's 40 year rule - An issue on appeal was whether the judge erred by even considering whether or not the statutory rule applied to the Crown - The Nova Scotia Court of Appeal rejected the Province's argument that the judge's consideration of the 40 year rule "was a denial of fundamental justice, specifically the principles of audi alteram partem" - The Province injected the Act's 40 year rule into the case - The judge's consideration of whether or not the 40 year rule applied to the Crown followed naturally from the Province's submission - "The Province beckoned at the doorstep and shouldn't be startled that the judge crossed the threshold" - See paragraphs 26 to 29.

Crown - Topic 6743

Crown lands - Grants - Interpretation - [See Practice - Topic 5708 ].

Deeds and Documents - Topic 2621

Operation and interpretation - Interest conveyed - General - [See Practice - Topic 5708 ].

Evidence - Topic 2409

Special modes of proof - Presumptions - Specific presumptions - Ownership of property - From chain of title - The critical issue in this appeal was the Province of Nova Scotia's submission that the Marketable Titles Act of Nova Scotia extinguished the common law principles related to presumed possession under a chain of title, from claims against the Crown under s. 21 of the Limitation of Actions Act - The Nova Scotia Court of Appeal discussed the judge-made evidential presumptions that followed from a chain of title: (1) to infer the existence of a Crown grant from longstanding possession and (2) to establish possession for a claim under the Limitation of Actions Act - See paragraphs 108 to 142.

Evidence - Topic 2409

Special modes of proof - Presumptions - Specific presumptions - Ownership of property - From chain of title - The applicant claimed title against the provincial Crown based on a "chain of title which is more than 200 years" - He cited Nemeskeri v. Nova Scotia (Attorney General) and Meisner (1992) for the proposition that a chain of title per se established a legal presumption of possession for the period of the chain - As such, a chain of title for 40 years would presume 40 years' adverse possession under s. 21 of the Limitation of Actions Act - The Nova Scotia Court of Appeal did not read Nemeskeri as repudiating the authorities that some entry, occupation or act of dominion was required by the title holder to initiate constructive possession - "The paper title must be coupled with some act of dominion that signifies possession ... The nature of the required entry into possession, or act of possession, by a paper title holder with colour of title, is an issue of fact that varies with the circumstances of the parcel and the suitable and natural use of the property ... The inquiry is for substance, not ritual ... The possessory act may be evidenced by facts recited in the title documents admitted under the 'ancient document' principle" - See paragraphs 143 to 155.

Evidence - Topic 3810

Documentary evidence - Ancient documents - Evidence of title to land - [See second Evidence - Topic 2409 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Practice - Topic 5708 ].

Practice - Topic 5703

Judgments and orders - Summary judgments - Conditions precedent - On an appeal from a summary judgment ruling, the Nova Scotia Court of Appeal stated that the "standard is that the court will intervene only if the chambers judge's decision erred in law or would cause a patent injustice" - The hearing in this case occurred under Nova Scotia's pre-2009 Civil Procedure Rules - Rule 13.01 said that a party might apply for summary judgment on the ground that "there is no arguable issue to be tried" - The cause of action was for a certificate of title under the Quieting of Titles Act - The chamber judge's decision and the parties' submissions dealt solely with the summary judgment practice under rule 13.01 - Accordingly, the court considered the ground of appeal from that same procedural perspective - In the end result, the court concluded that the chambers judge did not err in law, nor did his decision result in a patent injustice - See paragraphs 170 to 175.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - Brill sued under the Quieting of Titles Act for a certificate of title to Bella Island in Nova Scotia - He claimed title against the Provincial Crown - Brill claimed that the Crown granted Bella Island via two Lunenburg grants - His interlocutory application requested, by summary judgment, a certificate of title - The chambers judge declined to issue a certificate of title, having concluded that there remained arguable issues to be tried - The Nova Scotia Court of Appeal agreed - The 1765 grant was not registered, but Brill might have an argument that non-registration could not assist the grantor - The 1784 grant might involve evidential issues whether Bella Island passed to Brill's predecessors in title - The application of those grants involved triable issues - A further issue for trial was whether certain presumptions or inferences from title indicia, involving the Lunenburg grants, applied to Bella Island - Brill's alternative claim for adverse possession also involved triable issues - A chain of paper title extending back 40 years might, in the circumstances, establish colour of title and constructive possession to support a claim against the Crown under s. 21 of the Limitation of Actions Act - There might be arguable issues about the existence of those circumstances and about the chain's integrity - See paragraphs 176 to 180.

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - [See Practice - Topic 5703 ].

Real Property - Topic 164

Incidents of ownership - Presumption of possession - [See second Evidence - Topic 2409 ].

Real Property - Topic 5041

Title - Establishing title - General - The critical issue in this appeal was the Province of Nova Scotia's submission that the 40 year statutory rule (Marketable Titles Act, enacted in 1996) extinguished the common law principles related to presumed possession under a chain of title, from claims against the Crown under s. 21 of the Limitation of Actions Act (LAA) - The Nova Scotia Court of Appeal identified Nova Scotia's legal milestones toward the 40 year statutory rule, and the 60 year common law rule for marketable title, "whereby a chain of paper title may assist to establish either marketable title or constructive and presumed possession under the LAA" - See paragraphs 41 to 63.

Real Property - Topic 5042

Title - Establishing title - By Crown grant - [See Practice - Topic 5708 ].

Real Property - Topic 5083

Title - Quieting of title - Procedure - The Nova Scotia Court of Appeal discussed the Quieting of Titles Act (QTA) in the following manner - "The QTA does not enable a court to create title. Rather it authorizes a court to grant a certificate that reflects the title, including possessory title, to which the party is entitled by the legal principles that exist outside the QTA ... The judge should be satisfied that all interested persons have been joined or sufficiently notified, or are before the court. Then, if there is no other apparent title holder and the contest is between just two parties, the court may quiet title based on the better claim. This practical approach reflects that title to land is relative and hierarchical, not absolute ... Section 16(1) of the QTA says that a certificate of quieted title 'is binding and conclusive upon all persons, including the Crown, and whether named in the action or not', subject to limited exceptions" - See paragraphs 36 to 40.

Real Property - Topic 5086

Title - Quieting of title - Basis of claimant's title - Adverse possession - [See third Real Property - Topic 8014.4 ].

Real Property - Topic 5094

Title - Quieting of title - Effect of - [See Real Property - Topic 5083 ].

Real Property - Topic 5603

Title - Extinguishment, prescription and adverse possession - Adverse possession and prescription - General principles - Purpose of limitation of actions legislation - [See third Real Property - Topic 8014.4 ].

Real Property - Topic 5604

Title - Extinguishment, prescription and adverse possession - Adverse possession and prescription - General principles - Availability of claim by adverse possession - [See third Real Property - Topic 8014.4 ].

Real Property - Topic 7805

Title - Registration of instruments, etc. - General principles - Legislation - The applicant sued under the Quieting of Titles Act, claiming title against the Provincial Crown - The Province pleaded that the Crown had never granted the subject property - The Nova Scotia Court of Appeal discussed the relevant provisions of the Land Registration Act (LRA) - The LRA bound the Crown (ss. 6(2) and (3)), subject to the overriding interests set out in s. 73(1)(a), referring to a reservation or exception in an original Crown grant - "But s. 73(1) is silent about a dispute over whether there was an original Crown grant ... The heart of the LRA is s. 20 [the 'qualified lawyer's opinion of title'] ... This achieves the 'certainty of ownership' in s. 2(a)'s statement of purposes. The parcel register is a root of title" - The LRA amended the Limitation of Actions Act (LAA): s. 115(7) changed "sixty" to "forty" in s. 21 of the LAA ("No claim for land ... shall be made by Her Majesty but within forty years after the right of action to recover such land ... accrued") - The LRA's amendment to s. 4(1) of the Marketable Titles Act was also significant to this appeal - See paragraphs 69 to 80.

Real Property - Topic 7805

Title - Registration of instruments, etc. - General principles - Legislation - The Nova Scotia Court of Appeal discussed the legislative initiatives "that tried to address the sometimes paralytic uncertainty of land titles in this province since the 18th century system of Crown grants" - See paragraphs 92, 115 to 155.

Real Property - Topic 8014.4

Title - Registration of instruments, etc. - Land titles system - Registration requirement - Good safe-holding and marketable title - The Nova Scotia Court of Appeal discussed the substantive provisions of the province's Marketable Titles Act that prescribed a 40 year period from the root of title defined by s. 4(2) - The court stated that the common law's 60 year rule of marketable title survived the 1996 enactment of the Act's 40 year rule - See paragraphs 65 to 68.

Real Property - Topic 8014.4

Title - Registration of instruments, etc. - Land titles system - Registration requirement - Good safe-holding and marketable title - The "battlefield" of this appeal was the Marketable Titles Act (MTA) of Nova Scotia, enacted in 1996 and amended by the Land Registration Act (LRA) in 2001 - The Crown submitted that no one could own land without an initial Crown grant in hand - The Nova Scotia Court of Appeal stated that the Crown's submission was "oblivious" to the MTA's stated object, like the LRA after it, to "remove uncertainties" - "Conveyancing legislation does not abolish the common law of property or vendor and purchaser ... With the LRA, the Legislature intended to continue the principles respecting chain of title that are sourced in the common law, subject to the LRA's statutory substitution of the prerequisite period for 'marketable title' from 60 years to 40 years plus a day" - See paragraphs 92 to 98.

Real Property - Topic 8014.4

Title - Registration of instruments, etc. - Land titles system - Registration requirement - Good safe-holding and marketable title - In an action under the Quieting of Titles Act (Nova Scotia), the applicant claimed title against the provincial Crown, including by adverse possession under the Limitation of Actions Act (LAA) - The Land Registration Act (LRA) expressly bound Her Majesty (ss. 6(2) and (3)) - The LRA added the words "at common law or otherwise" to s. 4(1) of the Marketable Titles Act (MTA) (chain of title during a period greater than 40 years) - The Nova Scotia Court of Appeal stated that "[t]here is no merit to the Province's suggestion that somehow the MTA jettisons the common law's treatment of constructive or presumed possession, from a chain of title, in an adverse possession claim under the LAA ... The Province's submission, that ss. 4(1) and 9 of the MTA extinguish all the judge made consequences from a chain of title is a lonesome castaway on a billowing sea" - See paragraphs 99 and 100.

Real Property - Topic 8014.4

Title - Registration of instruments, etc. - Land titles system - Registration requirement - Good safe-holding and marketable title - Brill sued under the Quieting of Titles Act for a certificate of title to Bella Island in Nova Scotia - He claimed title against the Provincial Crown based on "a chain of title which is more than 200 years" - As support, Brill cited the Marketable Titles Act (MTA) - The Nova Scotia Court of Appeal held that, subject to the effect of the Land Registration Act on the MTA, the MTA by itself had no direct effect on the dispute - Brill was not a vendor and the Crown was not a purchaser in any transaction involving Bella Island - Section 4(4) of the MTA ("Nothing in this Section extinguishes any interest in land") meant that s. 4(1), prescribing who "has marketable title", did not extinguish any interest of the Crown in Bella Island - This was without even considering s. 9 ("Nothing in this Act affects any interest of Her Majesty in any land") - The exceptions specifically noted in s. 4A of the MTA, where it might affect the title of someone who was not party to an agreement of sale, did not, by their wording, apply to the Bella Island dispute - See paragraphs 82 to 87.

Real Property - Topic 8014.4

Title - Registration of instruments, etc. - Land titles system - Registration requirement - Good safe-holding and marketable title - Section 4(1) of the Marketable Titles Act of Nova Scotia was amended by the Land Registration Act (LRA) in 2001, and now read: "A person has a marketable title at common law or equity or otherwise to an interest in land if that person has a good and sufficient chain of title during a period greater than forty years immediately preceding the date the marketability is to be determined" - The Nova Scotia Court of Appeal disagreed with the Crown, "for many reasons, that s. 4(1) jettisoned the common law as a source of the principles that give effect to a chain of title" - The words "at common law or equity or otherwise" confirmed that the person "has title at common law" - The words were not "has title by statute" - The LRA's amendment changed the former 60 year prerequisite for establishing common law marketable title, to a statutory prerequisite of 40 years plus a day - That change did not extinguish the underlying principle that, at common law, an appropriate chain of instruments might establish marketable title with legal consequences - See paragraphs 88 to 91.

Real Property - Topic 8014.4

Title - Registration of instruments, etc. - Land titles system - Registration requirement - Good safe-holding and marketable title - The applicant claimed title to the subject property against the provincial Crown based on "a chain of title which is more than 200 years" - The Nova Scotia Court of Appeal considered the effect of common law marketable title on the claim, in the following manner - The common law of marketable title applied to the Crown - Further, the Land Registration Act's (LRA) amendment to s. 4(1) of the Marketable Titles Act (MTA) (the 40 year standard that triggered "marketable title") also applied to the Crown - This was consistent with the LRA's amendment to s. 21 of the Limitation of Actions Act, reducing (from 60 years to 40 years) the period needed for adverse possession against the Crown - These were examples of the principles of coherence and consistency among related statutes - Marketable title at common law "is an in personam incident of the contract between vendor and purchaser" - In the end result, the court held that common law marketable title did not determine the dispute - The applicant and the Crown were neither vendor nor purchaser, had no contract, and there was no contemplated sale of the subject property - See paragraphs 101 to 106.

Real Property - Topic 8014.4

Title - Registration of instruments, etc. - Land titles system - Registration requirement - Good safe-holding and marketable title - Brill sued for a certificate of title to Bella Island in Nova Scotia - He claimed title against the provincial Crown based on "a chain of title which is more than 200 years" - Brill and the Nova Scotia Barristers' Society (intervenor) submitted that the in personam application of the Marketable Titles Act (MTA) and the common law of marketable title was now by statute an in rem standard; thus, a 40 year chain of title, without any act of possession, defined title against the world, including the Crown - They submitted that the Land Registration Act (LRA) incorporated those principles into the parcel register - The Nova Scotia Court of Appeal agreed that the parcel register under the LRA would have in rem effect against the world, including the Crown - Also, the standards under the MTA or common law were among those that might generate the parcel register - However, Bella Island had not been migrated to the LRA - It could not be predicted now what standard eventually might determine Bella Island's ultimate parcel register - See paragraphs 157 to 166.

Statutes - Topic 511

Interpretation - General principles - Source of construction - State of the law prior to enactment of statute - [See second Real Property - Topic 7805 ].

Statutes - Topic 2617

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization of statutes - Presumption of coherence - [See sixth Real Property - Topic 8014.4 ].

Cases Noticed:

Yeadon v. Nova Scotia (Attorney General), [1988] N.S.J. No. 30 (T.D.), refd to. [para. 37].

Palmer v. Nova Scotia (Attorney General) (1988), 50 R.P.R. 55 (N.S.T.D.), affd. (1989), 4 R.P.R.(2d) 285 (N.S.C.A.), refd to. [para. 37].

Frank Georges Island Investment Ltd. v. Nova Scotia (Attorney General) (2004), 225 N.S.R.(2d) 264; 713 A.P.R. 264; 2004 NSSC 136, refd to. [para. 37].

Legge v. Scott Paper Co. (1970), 3 N.S.R.(2d) 206 (T.D.), refd to. [para. 37].

Partington et al. v. Musial et al. (1998), 171 N.S.R.(2d) 228; 519 A.P.R. 228; 1998 CanLII 1161 (C.A.), refd to. [para. 37].

Chute v. Nova Scotia (Attorney General), 1992 CarswellNS 631 (C.A.), refd to. [para. 37].

Meredith v. Nova Scotia (Attorney General) (1968), 2 D.L.R.(3d) 486 (N.S.T.D.), refd to. [para. 37].

Ferguson (R.B.) Construction Ltd. v. Ormiston et al. (1989), 91 N.S.R.(2d) 226; 233 A.P.R. 226 (C.A.), refd to. [para. 37].

Ocean Estates Ltd. v. Pinder, [1969] 2 A.C. 19 (P.C.), refd to. [para. 38].

MacNeil v. Nova Scotia (Attorney General) et al. (2000), 183 N.S.R.(3d) 119; 568 A.P.R. 119; 2000 NSCA 31, refd to. [para. 38].

Dooks and Dooks v. Rhodes and Rhodes (1982), 52 N.S.R.(2d) 650; 106 A.P.R. 650 (T.D.), consd. [para. 45].

Knox & Knox v. Veinote, Veinote & Cook (1982), 54 N.S.R.(2d) 666; 112 A.P.R. 666 (T.D.), consd. [para. 46].

Boland v. Berthelot (1991), 107 N.S.R.(2d) 187; 290 A.P.R. 187 (T.D.), refd to. [para. 47].

Nemeskeri v. Nova Scotia (Attorney General) and Meisner (1992), 115 N.S.R.(2d) 271; 314 A.P.R. 271 (T.D.), affd. (1993), 125 N.S.R.(2d) 67; 349 A.P.R. 67; 1993 CanLII 3263 (C.A.), refd to. [para. 50].

Inter Lake Developments Ltd. v. Slauenwhite (1988), 86 N.S.R.(2d) 23; 218 A.P.R. 23 (T.D.), refd to. [para. 51].

Dupuis Estate v. O'Blenis - see Landry v. O'Blenis.

Landry v. O'Blenis (1995), 146 N.S.R.(2d) 76; 422 A.P.R. 76 (S.C.), refd to. [para. 52].

Uniacke v. Dickson (1848), 2 N.S.R. 287 (Ch. D.), refd to. [para. 56].

Nickerson v. Canada (Attorney General) (2000), 185 N.S.R.(2d) 36; 575 A.P.R. 36; 2000 CanLII 2177 (S.C.), refd to. [para. 57].

Gunning v. Trans Canada Credit Corp. (1998), 169 N.S.R.(2d) 184; 508 A.P.R. 184; 1998 CanLII 3370 (S.C.), refd to. [para. 67].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 95].

Eastern Trust Co. v. McKenzie, Mann & Co., [1915] A.C. 750 (P.C.), refd to. [para. 101].

Des Barres v. Shey (1874), 29 L.T.(N.S.) 592 (P.C.), refd to. [para. 113].

Boehner v. Hirtle, 1910 CarswellNS 128 (S.C.), revd. (1912), 46 N.S.R. 231 (in banco), revd. (1913), 50 S.C.R. 264, refd to. [para. 115].

Emmerson v. Madison (1903), 36 N.B.R. 260; 1903 CarswellNB 40 (S.C. in banco), revd. (1904), 34 S.C.R. 533, affd. [1906] A.C. 569 (P.C.), refd to. [para. 116].

McGibbon v. McGibbon (1913), 9 D.L.R. 308; 46 N.S.R. 552; 1913 CarswellNS 78 (S.C. in banco), refd to. [para. 117].

Halifax Power Co. v. Christie (1915), 48 N.S.R. 264; 23 D.L.R. 481 (S.C. in banco), refd to. [para. 118].

Cunard (Lessee of) v. Irvine (1854), 2 N.S.R. 31 (S.C. in banco), refd to. [para. 118].

Scott v. Henderson (1843), 3 N.S.R. 115 (S.C.), refd to. [para. 119].

Smyth v. MacDonald (1863), 1 Old. 274 (N.S.S.C.), refd to. [para. 120].

Boutilier v. Knock (1865), 6 N.S.R. 77 (S.C.), refd to. [para. 123].

Bentley v. Peppard (1903), 33 S.C.R. 444, refd to. [para. 129].

Tobin v. McDougall (1914), 47 N.S.R. 470; 1914 CarswellNS 50 (S.C. in banco), refd to. [para. 131].

Ezbeidy v. Phalen (1957), 11 D.L.R.(2d) 660 (N.S.S.C.), refd to. [para. 132].

MacDonald v. McCormick (2009), 274 N.S.R.(2d) 258; 874 A.P.R. 258; 2009 NSCA 12, refd to. [para. 134].

Mason v. Nova Scotia (Minister of Justice) - see Mason v. Mason Estate et al.

Mason v. Mason Estate et al. (1999), 176 N.S.R.(2d) 321; 538 A.P.R. 321; 1999 CanLII 2804 (C.A.), refd to. [para. 134].

Rafuse and Rafuse v. Meister (1979), 32 N.S.R.(2d) 217; 54 A.P.R. 217 (C.A.), refd to. [para. 134].

Scott v. Smith (1979), 36 N.S.R.(2d) 541; 64 A.P.R. 541 (C.A.), refd to. [para. 134].

Kirby v. Cowderoy, [1912] A.C. 599 (P.C.), refd to. [para. 135].

Elliott v. Jardine (1961), 45 M.P.R. 104 (N.S.S.C. in banco), refd to. [para. 135].

Taylor v. Willigar and Skidmore (1979), 32 N.S.R.(2d) 11; 54 A.P.R. 11 (C.A.), refd to. [para. 135].

Tobias et al. v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. 136].

Logan v. Levy and Nova Scotia (Attorney General) (1975), 20 N.S.R.(2d) 500; 27 A.P.R. 500 (T.D.), refd to. [para. 149].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 151].

R. v. Marshall (S.F.) et al.; R. v. Bernard (J.) (2003), 218 N.S.R.(2d) 78; 687 A.P.R. 78; 2003 NSCA 105, revd. [2005] 2 S.C.R. 220; 336 N.R. 22; 287 N.B.R.(2d) 206; 750 A.P.R. 206; 235 N.S.R.(2d) 151; 747 A.P.R. 151; 2005 SCC 43, refd to. [para. 151].

Bowater Mersey Paper Co. v. Nova Scotia (Attorney General) and Peck (1987), 80 N.S.R.(2d) 229; 200 A.P.R. 229 (T.D.), affd. (1988), 83 N.S.R.(2d) 162; 210 A.P.R. 162 (C.A.), refd to. [para. 154].

Longtin v. Fire (1994), 70 O.A.C. 226; 112 D.L.R.(4th) 34; 1994 CanLII 1058 (C.A.), affd. [1995] 4 S.C.R. 3; 188 N.R. 234; 86 O.A.C. 288; 1995 CanLII 75, refd to. [para. 159].

Imperial Oil Ltd. v. Turta - see Turta v. Canadian Pacific Railway.

Turta v. Canadian Pacific Railway, [1954] S.C.R. 427; 1954 CanLII 58, refd to. [para. 164].

Maritime Travel Inc. v. Go Travel Direct.Com Inc., [2007] N.S.R.(2d) Uned. 13; 2007 NSCA 11, refd to. [para. 170].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1; 1999 CanLII 664, refd to. [para. 173].

United Gulf Developments Ltd. et al. v. Iskandar et al. (2004), 222 N.S.R.(2d) 137; 701 A.P.R. 137; 2004 NSCA 35, refd to. [para. 173].

Selig v. Cook's Oil Co. et al. (2005), 230 N.S.R.(2d) 198; 729 A.P.R. 198; 2005 NSCA 36, refd to. [para. 173].

MacNeil v. Bethune et al. (2006), 241 N.S.R.(2d) 1; 767 A.P.R. 1; 2006 NSCA 21, refd to. [para. 173].

Statutes Noticed:

Land Registration Act, S.N.S. 2001, c. 6, sect. 20 [para. 72].

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 21 [para. 60].

Marketable Titles Act, S.N.S. 1995-96, c. 9, sect. 4(1) [paras. 6, 65], sect. 4(2), sect. 4(3), sect. 7(1)(a), sect. 9 [para. 65].

Quieting Titles Act, R.S.N.S. 1989, c. 382, sect. 13 [para. 36].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (Looseleaf), paras. 22:20.20 [para. 49]; 24:40 [para. 101]; 28.50 [paras. 38, 151]; 29:60.80 [para. 134]; 30:40.30 [para. 163].

Di Castri, J. Victor, The Law of Vendor and Purchaser, paras. 306 [para. 137]; 339 [paras. 104, 159].

Halsbury's Laws of England (4th Ed. 1976), para. 202 [para. 101].

Hansard (N.S.) - see Nova Scotia, Hansard, Legislative Assembly Debates.

Hogg, Peter W., and Monahan, Patrick J., Liability of the Crown (3rd Ed. 2000), p. 274 [para. 101].

La Forest, Anne Warner, Anger and Honsberger Law of Real Property - see Anger and Honsberger, The Law of Real Property.

MacIntosh, Charles W., Nova Scotia Real Property Practice Manual (2008), generally [para. 61]; para. 16-2 [para. 163].

MacIntosh, Charles W., How Far Back Do You Have To Search (1987), 14 Nova Scotia Law News No. 3, generally [para. 51]; paras. 51, 52 [para. 61]; 53 [para. 63].

Megarry, Robert E., and Wade, H.W.R., The Law of Real Property (4th Ed. 1975), pp. 1004, 1005 [para. 151]; 1006 [paras. 38, 151].

Nova Scotia, Hansard, Legislative Assembly Debates (December 5, 1995), Ref. 3907 [para. 66].

Nova Scotia, Hansard, Legislative Assembly Debates, No. 01-4 (March 27, 2001), pp. 205, 206 [para. 69].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), §§ 6.200, 18.52 [para. 136].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 323 [para. 102]; 431, 432 [para. 94].

Counsel:

Mark V. Rieksts, for the appellant, The Attorney General of Nova Scotia;

John A. Keith and Amy MacGregor, for the respondent, Alan R. Brill;

John T. Rafferty, Q.C., and Catherine Walker, Q.C., for the intervenor, Nova Scotia Barristers' Society.

This appeal and cross-appeal were heard on May 31, 2010, before Oland, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by Fichaud, J.A., the Court of Appeal delivered the following judgment, dated September 9, 2010.