Nelson et al. v. 1153696 Alberta Ltd., (2010) 478 A.R. 267 (QB)

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 12, 2010
• Citations: (2010), 478 A.R. 267 (QB);2010 ABQB 130

Nelson v. 1153696 Alta. (2010), 478 A.R. 267 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MR.022

Kenneth E. Nelson, Karen L. Nelson and Matrix Marine Equipment Ltd. (plaintiffs) v. 1153696 Alberta Ltd. (defendant)

(0503-08689; 2010 ABQB 130)

Indexed As: Nelson et al. v. 1153696 Alberta Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

February 19, 2010.

Summary:

In 1985, the plaintiff purchased a 42 acre parcel of land. He built a home and a man-made lake. He developed a marine repair facility and a water-skiing facility. Each year, thousands of persons used the facilities. Rabbit Hill Road provided access to the property. As the plaintiff did not do a title search, he did not discover that it was a private road running across Stelter's property. However, Stelter never did anything to stop public access. In 2005, Stelter sold his property to the defendant. The defendant denied use of Rabbit Hill Road. The plaintiff could not get to his home and his business was effectively shut down. The plaintiff sued to enforce access and obtained temporary injunctions and a temporary road bylaw to permit access pending trial. At issue was whether Stelter or a previous owner dedicated Rabbit Hill Road as a public road or, alternatively, whether the plaintiff had an easement across the Stelter lands at common law or in equity (i.e., easement of necessity, easement arising as a result of apparent accommodation, or equitable easement created by proprietary estoppel).

The Alberta Court of Queen's Bench, in a judgment reported 478 A.R. 208, held that Rabbit Hill Road had been dedicated as a public highway, precluding the defendant from interfering with public usage. The court rejected the alternative claim of an equitable easement. Prior to the entering of judgment, the defendant applied to submit new evidence (aerial photographs and witness affidavit) to establish that there was a gate blocking the Rabbit Hill Road in 1982 and that motor vehicle traffic was not in place until after July 1970.

The Alberta Court of Queen's Bench declined to admit the new evidence.

Practice - Topic 5006

Conduct of trial - General principles - Reopening of trial to hear additional submissions or evidence - The plaintiff obtained a judgment finding that an access road running across the defendant's property had been dedicated as a public highway by 1972 at the latest - Prior to judgment being entered, the defendant sought to re-open the trial to admit new evidence (aerial photographs and witness affidavit) to establish that there was a gate blocking the Rabbit Hill Road in 1982 and that motor vehicle traffic was not in place until after July 1970 - The Alberta Court of Queen's Bench declined to re-open the trial to admit the new evidence - The evidence was obtainable at trial with due diligence - In fact, the defendant possessed the evidence but made a tactical decision not to admit it - In any event, the evidence would have no effect on the result - The evidence related to a time period after which the Rabbit Hill Road had already been dedicated as a public highway.

Practice - Topic 5006

Conduct of trial - General principles - Reopening of trial to hear additional submissions or evidence - The Alberta Court of Queen's Bench referred to the four part test for determining whether new evidence could be admitted after trial, but before judgment was entered: "1. Could the evidence have been obtained earlier if due diligence had been observed? That the evidence was available to the applicant but not looked for because it was hard to access and because other matters pressed, is fatal. 2. Is the evidence credible? 3. Would the evidence have been practically conclusive in producing the opposite result to that earlier pronounced? A debatable matter of opinion is not sufficient. Nor is controvertible evidence which would open up an extremely complex and convoluted exercise. 4. Is the evidence in its present form admissible under the ordinary rules of evidence?" - The court rejected the submission that a trial judge retained a residual discretion to admit evidence that failed to meet the four part test, if justice required it - The absence of due diligence was fatal - The court suggested a fifth consideration, which was how long after the trial decision was rendered did the applicant seek to admit the new evidence - The court stated that "the later an application is made in the trial process the more likely it should be rejected" - See paragraphs 13 to 21, 26.

Cases Noticed:

Director of Child, Youth and Family Enhancement (Alta.) v. B.M. (2009), 460 A.R. 188; 462 W.A.C. 188; 2009 ABCA 258, refd to. [para. 6].

Alberta Turkey Producers v. Leth (2006), 399 A.R. 259; 2006 ABQB 283, refd to. [para. 6].

Shunamon v. Diegel (2008), 453 A.R. 199; 2008 ABQB 199, refd to. [para. 7].

Stone Sapphire Ltd. v. Transglobal Communications Group Inc. et al. (2008), 431 A.R. 240; 2008 ABQB 142, disagreed with [para. 7].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 7].

Scott v. Cook, [1970] 2 O.R. 769; 12 D.L.R.(3d) 113 (C.A.), refd to. [para. 8].

Ladd v. Marshall, [1954] 1 W.L.R. 1489 (C.A.), refd to. [para. 10].

McGinn v. Bain Insulation and Supply Ltd. (1990), 126 A.R. 81; 2 Alta. L.R.(3d) 127 (Q.B.), refd to. [para. 27].

Davidson v. Patten et al., [2003] A.R. Uned. 760; 2003 ABQB 996, refd to. [para. 28].

Counsel:

J. Cameron Prowse, Q.C., and N. Papadopoulos (Prowse Chowne LLP), for the plaintiffs;

D.R. Peskett (Brownlee LLP), for the defendant.

This matter was heard on February 12, 2010, before Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on February 19, 2010.