McKinney v. Tobias

• Jurisdiction: New Brunswick
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Judge: Glennie, J.
• Neutral Citation: 2006 NBQB 290
• Citation: (2006), 306 N.B.R.(2d) 282 (TD),2006 NBQB 290,306 NBR (2d) 282,[2006] NBJ No 357 (QL),306 NBR(2d) 282,(2006), 306 NBR(2d) 282 (TD),[2006] N.B.J. No 357 (QL),306 N.B.R.(2d) 282
• Date: 20 July 2006

McKinney v. Tobias (2006), 306 N.B.R.(2d) 282 (TD);

    306 R.N.-B.(2e) 282; 793 A.P.R. 282

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2006] N.B.R.(2d) TBEd. SE.003

Douglas Clayborn McKinney and Patricia Ann McKinney (plaintiffs) v. Raymond Joseph Tobias and Doris Gertrude Tobias (defendants)

(S/C/391/04; 2006 NBQB 290)

Indexed As: McKinney v. Tobias

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

July 20, 2006.

Summary:

The plaintiffs brought an action claiming acquisition by prescription of rights to por­tions of the defendants' land. The plaintiffs also asked that the registration certificate issued to the defendants pursuant to the Land Titles Act be rectified to say that it was subject to the plaintiffs' rights.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action.

Editor's Note: An interim injunction was granted to the plaintiffs which prevented the defendants from taking any action with respect to certain encroachments on their land. A judgment continuing the interim injunction can be found at [2004] N.B.R.(2d) Uned. 133.

Real Property - Topic 5604

Title - Extinguishment, prescription and adverse possession - Availability of claim by adverse possession - The plaintiffs acquired their property in 1985 - Their surveyor's certificate showed certain en­croachments on the adjacent land - The defendants acquired the adjacent land in 2002 - Their vendor was unaware of en­croachments - Title was registered for the first time under the Land Titles Act - In 2004, the plaintiffs, who had taken no steps since 1985 to deal with the encroach­ments, invoked acquisitive prescription and claimed title to the encroachments - They also sought rectification of the defendants' title, pursuant to ss. 70(1)(a) and 71(c) of the Act, to say that it was subject to their rights - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action - The Act abolished acquisition of title by adverse possession except for specific relief available under s. 17(2) respecting rights of way or access existing at the time of first registration - Possessory rights were not included in the overriding interests listed in s. 17(4) - Prescriptive rights could not be created under a land titles system because those rights were inconsistent with the indefeasibility of title accorded by land titles legislation - While rectification was available respecting a valid possessory title in existence at the time of first registration, it was not unjust not to order rectification here (s. 71(c)) where the defendants took no steps to address the encroachment situation.

Real Property - Topic 8015

Title - Registration of instruments, etc. - Land titles system - The certificate of title - [See Real Property - Topic 5604 ].

Real Property - Topic 8023

Title - Registration of instruments, etc. - Land titles system - Certificate of title - Property description and boundaries - The New Brunswick Court of Queen's Bench, Trial Division, held that there was guaran­tee of boundaries under the New Bruns­wick land titles system - See paragraphs 2, 35 to 37, 53.

Real Property - Topic 8024

Title - Registration of instruments, etc. - Land titles system - Certificate of title - Reliance on issue of - [See Real Property - Topic 5604 ].

Cases Noticed:

Vancouver City Savings Credit Union v. Hu et al., [2005] B.C.T.C. 712; 31 R.P.R.(4th) 309 (S.C.), consd. [para. 45].

CitiFinancial Canada East Corp. v. Mor­row (Bankrupt) (2006), 302 N.B.R.(2d) 240; 784 A.P.R. 240 (T.D.), refd to. [para. 45].

Gatz v. Kiziw, 1958 CarswellOnt 79, consd. [para. 47].

Charlebois v. Saint John (City) (2005), 342 N.R. 203; 292 N.B.R.(2d) 1; 761 A.P.R. 1; 2005 CarswellNB 710 (S.C.C.), refd to. [para. 105].

Stone v. Woodstock (Town) (2006), 302 N.B.R.(2d) 165; 784 A.P.R. 165; 2006 NBCA 71, refd to. [para. 105].

Rogers, Re (1920), 47 O.L.R. 82 (H.C.), refd to. [para. 108].

Statutes Noticed:

Land Titles Act, S.N.B. 1981, c. L-1.1, sect. 17 [para. 33]; sect. 68 [para. 35]; sect. 70, sect. 71 [para. 36].

Land Titles Act Regulations (N.B.), Gen­eral Regulation, Reg. 83-130, sect. 13(2) [para. 37].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), p. 1344 [para. 107]; paras. 1345 [para. 108]; 1628, 1629 [para. 42].

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006), vol. 2, para. 28.50 [para. 46].

Law Society of New Brunswick, Standards for the Practice of Real Property Law, paras. 40, 41 [para. 101].

Neave, Marsha, Indefeasibility of Title in the Canadian Context (1976), 26 U.T.L.J. 173, generally [para. 44].

Siebrasse, Norman, Boundary Law under the New Brunswick Land Titles Act: The Worst of All Possible Worlds (2005), 21 Sol. J. (Issue 3), generally [para. 49 et seq.].

Counsel:

A. Wilber MacLeod, Q.C., on behalf of the plaintiffs;

Thomas B. Drummie, Q.C. and Timothy P. Kennedy, on behalf of the defendants.

This action was heard on November 3 and 4, 2005, by Glennie, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Saint John, who delivered the following decision orally on July 20, 2006.