Duggan v. Nova Scotia (Attorney General) et al., 2004 NSSC 66

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 27, 2003
• Jurisdiction: Nova Scotia
• Citations: 2004 NSSC 66;(2004), 222 N.S.R.(2d) 229 (SC)

Duggan v. N.S. (A.G.) (2004), 222 N.S.R.(2d) 229 (SC);

 701 A.P.R. 229

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. AP.012

Richard Henry Duggan and Ester T. Duggan (plaintiffs) v. The Attorney General of Nova Scotia, Lester A. Daurie, Elizabeth J. Bowdridge, Raymond Coolen, Sylvia S. Pace and Barbara A. Duffy (defendants)

(S.H. 155844C; 2004 NSSC 66)

Indexed As: Duggan v. Nova Scotia (Attorney General) et al.

Nova Scotia Supreme Court

Moir, J.

March 23, 2004.

Summary:

The plaintiffs (one group) and defendants (two groups) all claimed ownership of woodlands located beyond settled rear boundaries.

The Nova Scotia Supreme Court held that the plaintiffs established title by adverse possession and were entitled to a certificate of title under the Quieting of Titles Act

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - In a land dispute involving competing claims of adverse possession, the issue was the admissibility of a statutory declaration by a now deceased declarant as to possession - The Nova Scotia Supreme Court held that the declaration was admissible for the truth of its contents under the principled exception to the hearsay rule - Admission was necessary because the declarant was deceased - Threshold reliability was established where the declaration was under oath and the declarant had no partisan interest in the issue - See paragraph 19.

Evidence - Topic 2401

Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - The plaintiffs and defendants all claimed title to the same parcel of land by adverse possession - The plaintiffs sought to have an adverse inference drawn against the defendants where one of the defendants did not testify and the husband or son of another defendant did not testify respecting the payment of taxes on the disputed land - The Nova Scotia Supreme Court declined to draw an adverse inference, given the present broad discovery rights - The court stated that "it would be unjust to draw an adverse inference after a party has closed its case if the party refrained from testifying or calling a witness for reasons other than fear of discovery. In a system of full disclosure it seems to me upon the proponent to show, by some evidence, why a fear of discovery has survived all the way to trial. ... I am in the dark as to whether these witnesses were discovered, if so why fear of discovery would persist, if not why the plaintiffs suggest the witnesses have pertinent information worth hiding from the court but not worth an examination of discovery by the plaintiffs." - See paragraphs 48 to 50.

Evidence - Topic 2401.1

Presumptions - Specific presumptions - Inference from failure of party to testify - [See Evidence - Topic 2401 ].

Real Property - Topic 5640

Title - Extinguishment, prescription and adverse possession - Possession - Effect of dividing line such as fence, road or river - The Nova Scotia Supreme Court stated that "to fence a property is often a strong act of possession" and referred to the statement that "one of the cleanest and most precise ways to meet the burden of proving adverse possession is by evidence of fencing which is a clear indication to all that the property is being claimed by open, continuous and visible means" - See paragraph 106.

Real Property - Topic 5646

Title - Extinguishment, prescription and adverse possession - Possession - Possessory title - Establishment of - The plaintiffs (one group) and defendants (two groups) all claimed ownership of woodlands located beyond settled rear boundaries - The Nova Scotia Supreme Court held that the plaintiffs established title by adverse possession and were entitled to a certificate of title under the Quieting of Titles Act - The plaintiffs had used the woodlands for business ventures and recreational purpose for the past 40 years - The plaintiffs use of the woodlands was open and notorious to the exclusion of others - One of the defendant groups exhibited acts of possession in the 1950's, but there was no possession for the 20 year statutory period and any acts of possession were ousted by the subsequent adverse possession by the plaintiffs since the 1960's - The second defendant group only occasionally used the woodlands (failed to meet 20 year requirement) and any acts of possession were not indicative of ownership - See paragraphs 1 to 125.

Real Property - Topic 5682

Title - Extinguishment, prescription and adverse possession - Open possession - What constitutes open possession - The Nova Scotia Supreme Court stated that "the elements of openness, notoriety, continuity, and exclusivity do not include actual notice to the true owner. If notice mattered, it may be that the elements of openness and notoriety would amount to constructive notice. If acts of possession went unnoticed by the owner, that could go to whether the acts were open and notorious. However, want of notice by the true owner is not sufficient to defeat possessory title." - See paragraph 104.

Real Property - Topic 5686

Title - Extinguishment, prescription and adverse possession - Notorious possession - General (incl. what constitutes) - [See Real Property - Topic 5682 ].

Real Property - Topic 5691

Title - Extinguishment, prescription and adverse possession - Exclusive possession - General - A person claiming title by adverse possession must establish exclusive possession on a balance of probabilities - The Nova Scotia Supreme Court held that although exclusivity did not mean to the exclusion of everyone, it did require that the person act towards the land as an owner of it would act - The court stated that "the owner must be 'excluded from his land' but in the sense that the conduct of the possessor prevents the owner 'from enjoying that measure of the physical possession of which land of the character of the land in question is capable'" - See paragraph 103.

Real Property - Topic 6020

Title - Extinguishment, prescription and adverse possession - Payment of taxes - General - The Nova Scotia Supreme Court held that paying the property taxes on a parcel of land subject to competing adverse possession claims was not proof of possession - The payment of taxes was a "weak" act of possession - The court stated that "payment of assessed taxes may be appropriate to consider among other acts of possession where property, such as a woodlot, is remote and subject to few uses" - See paragraph 105.

Cases Noticed:

Ford et al. v. Kennie et al. (2002), 210 N.S.R.(2d) 50; 659 A.P.R. 50 (C.A.), refd to. [para. 19].

Scotia Fuels Ltd. v. Lewis (1991), 102 N.S.R.(2d) 12; 279 A.P.R. 12 (T.D.), refd to. [para. 48].

Ezbeidy v. Phalen (1957), 11 D.L.R.(2d) 660 (N.S.S.C.), refd to. [para. 101].

Tobias et al. v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. 101].

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. 101].

Baker v. Nova Scotia (Attorney General), [1991] N.S.J. No. 317 (Co. Ct.), refd to. [para. 101].

Corkum v. Nash and Sweet (1990), 98 N.S.R.(2d) 364; 263 A.P.R. 364 (S.C.), refd to. [para. 101].

Michalik v. Michalik, [1990] N.S.J. No. 250 (S.C.), refd to. [para. 101].

Burke Estate et al. v. Ormiston (1991), 107 N.S.R.(2d) 91; 290 A.P.R. 91 (S.C.), refd to. [para. 101].

Nemeskeri v. Nova Scotia (Attorney General) and Meisner (1992), 115 N.S.R.(2d) 271; 314 A.P.R. 271 (S.C.), refd to. [para. 101].

Burke v. Nova Scotia (Attorney General) (1997), 160 N.S.R.(2d) 233; 473 A.P.R. 233 (S.C.), refd to. [para. 101].

Bowers et al. v. Bowers (2002), 208 N.S.R.(2d) 297; 652 A.P.R. 297 (S.C.), refd to. [para. 101].

Spicer et al. v. Bowater Mersey Paper Co. (2003), 212 N.S.R.(2d) 152; 665 A.P.R. 152 (S.C.), refd to. [para. 101].

Dauphinee et al. v. Fralick Estate et al. (2003), 219 N.S.R.(2d) 238; 692 A.P.R. 238 (C.A.), refd to. [para. 101].

Spicer et al. v. Bowater Mersey Paper Co. (2004), 222 N.S.R.(2d) 103; 701 A.P.R. 103 (C.A.), refd to. [para. 101].

Jeffbrett Enterprises Ltd. v. Marsh Bros. Tractor Inc. et al., [1996] O.J. No. 1995, refd to. [para. 103].

Gould v. Edmonds (2001), 203 N.S.R.(2d) 163; 635 A.P.R. 163 (C.A.), refd to. [para. 103].

Brown v. Phillips et al. (1953), 42 D.L.R.(2d) 38 (Ont. C.A.), refd to. [para. 103].

Tobias et al. v. Nolan (1985), 71 N.S.R.(2d) 92; 171 A.P.R. 92 (T.D.), refd to. [para. 103].

Robertson v. McCarron (1985), 71 N.S.R.(2d) 34; 171 A.P.R. 34 (T.D.), refd to. [para. 104].

Lynch et al. v. Lynch et al. (1985), 71 N.S.R.(2d) 69; 171 A.P.R. 69 (T.D.), refd to. [para. 107].

Dempsey v. J.E.S. Developments Ltd. (1976), 15 N.S.R.(2d) 448; 14 A.P.R. 448 (T.D.), refd to. [para. 107].

MacNeil v. Nova Scotia (Attorney General) et al., [1998] N.S.R.(2d) Uned. 56 (S.C.), affd. (2000), 183 N.S.R.(2d) 119; 568 A.P.R. 119 (C.A.), refd to. [para. 108].

Naugle v. Naugle (1969), 1 N.S.R.(2d) 554 (T.D.), affd. (1970), 2 N.S.R.(2d) 309 (C.A.), refd to. [para. 113].

Authors and Works Noticed:

Sopinka, John, Lederman, S.N., and Bryant, A.W., The Law of Evidence in Canada (2nd Ed. 1999), p. 287 [para. 48].

Counsel:

Margot MacDonald, for the plaintiffs;

William Leahey, for the defendants, Lester Daurie, Elizabeth J. Bowdridge, Raymond Coolen, Sylvia S. Pace and Barbara A. Duffy;

The defendant, Attorney General, not taking part.

This case was heard between January 14 and June 27, 2003, before Moir, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 23, 2004.