Podgorski v. Cook, 2013 NSCA 47

• Judge: Saunders, Oland and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 26, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSCA 47;(2013), 329 N.S.R.(2d) 69 (CA)

Podgorski v. Cook (2013), 329 N.S.R.(2d) 69 (CA);

    1042 A.P.R. 69

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. AP.021

James D. Cook (appellant) v. Mary-Ann Podgorski (respondent)

(CA 404881; 2013 NSCA 47)

Indexed As: Podgorski v. Cook

Nova Scotia Court of Appeal

Saunders, Oland and Bryson, JJ.A.

April 18, 2013.

Summary:

Podgorski applied under Civil Procedure Rule 5.03 for an order establishing the property line between her property and Cook's property as shown in a survey plan prepared by Barrigan Survey's Limited. She also claimed damages and expenses incurred as a result of Cook's actions. Cook disputed Podgorski's view of the location of the property line. Alternatively, he claimed that he had possessory title to the disputed area.

The Nova Scotia Supreme Court, in a decision reported at 316 N.S.R.(2d) 173; 1002 A.P.R. 173, concluded that Podgorski had legal title to the disputed area and rejected Cook's claim to possessory title. The court refused to award damages. The parties made submissions on costs.

The Nova Scotia Supreme Court, in a decision reported at [2012] N.S.R.(2d) Uned. 329, awarded costs of $20,207.16 to Podgorski. The costs consisted of a sum based on an "amount involved" plus $2,000 a day for three plus days of the 3.5 day hearing, totalling $16,750. The balance constituted disbursements. Cook appealed the decisions.

The Nova Scotia Court of Appeal dismissed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Podgorski applied under Civil Procedure Rule 5.03 for an order establishing the property line between her property and Cook's property as shown in a survey plan - She also claimed damages and expenses incurred as a result of Cook's actions - Cook disputed Podgorski's view of the location of the line and, alternatively, claimed that he had possessory title to the disputed area - The application judge concluded that Podgorski had legal title to the disputed area and rejected Cook's claim to possessory title - Cook appealed, asserting that the application judge erred by ignoring the law of survey and failing to apply that law as set out in Nicholson v. Halliday (2005, Ont. C.A.) - The Nova Scotia Court of Appeal rejected the assertion - The fact that the application judge did not refer to Nicholson v. Halliday did not mean that he made an error of law - That case was argued before the judge - He was presumed to know the law and there was no need for him to recite the case or to explicitly set out the principles in it - The real question was whether correct principles were applied - See paragraphs 42 to 44.

Practice - Topic 7003

Costs - Party and party costs - General principles and definitions - Amount involved - Podgorski applied for an order establishing the property line between her property and Cook's property as shown in a survey plan - She also claimed damages and expenses incurred as a result of Cook's actions - Cook disputed Podgorski's view of the line's location and, alternatively, claimed that he had possessory title to the disputed area - The application judge concluded that Podgorski had legal title to the area, but refused to award damages - The judge awarded Podgorski costs of $20,207.16 - The $20,207.16 consisted of a sum based on an "amount involved" plus $2,000 a day for the 3.5 day hearing, totalling $16,750 - The balance constituted disbursements - Cook appealed, asserting that the judge erred in selecting an "amount involved" of $75,000 and not accounting for the divided success - The Nova Scotia Court of Appeal dismissed the appeal - The application judge applied correct principles - He found that the line's location was the principal issue while damages was a secondary issue - Although he did not explain how he arrived at $75,000, the Rules gave no guidance other than the principles of complexity and importance (rule 77.18(c)) - Those principles did not readily lend themselves to quantitative expression - The judge found the amounts suggested by the parties to be unhelpful - $16,750.00 did not constitute an unreasonable contribution to the party's legal expenses for a 3.5 day hearing involving land ownership - Arguably, it was low - Podgorski was entitled to a substantial indemnity - Although she was not awarded damages, the judge took that into account - See paragraphs 68 to 76.

Practice - Topic 7020.1

Costs - Party and party costs - Successful party - Quantum - [See Practice - Topic 7003 ].

Practice - Topic 7030

Costs - Party and party costs - Successful party - Where success or fault divided - [See Practice - Topic 7003 ].

Real Property - Topic 5602

Title - Extinguishment - Prescription and adverse possession - General principles - The Nova Scotia Court of Appeal reviewed the legal principles relevant to adverse possession - See paragraphs 49 to 58.

Real Property - Topic 5609

Title - Extinguishment - Prescription and adverse possession - General principles - Evidence and proof - Podgorski applied under Civil Procedure Rule 5.03 for an order establishing the property line between her property and Cook's property as shown in a survey plan - She also claimed damages and expenses incurred as a result of Cook's actions - Cook disputed Podgorski's view of the line's location and, alternatively, claimed that he had possessory title to the disputed area - The evidence of adverse possession included a garden planted by Cook's father in 1949, the burning of brush, ditching an area to avoid surface water running into the garden, his family's annual July 1 party on the disputed property, his children playing in the area, the storage of cars and boats on the land and a turning area for tractors - The application judge concluded that Podgorski had legal title to the disputed property - The garden's location was not established and it was uncertain when or how long it existed - The judge could not conclude that the area where tractors turned around extended beyond the line established in the survey plan - The evidence of recreational use, brush burning and storage of boats and vehicles was insufficient to oust Podgorski's legal title - Possessory title was not established - The Nova Scotia Court of Appeal dismissed Cook's appeal - The application judge was not satisfied that the evidence of use and occupation was sufficient - It did not rise to the very cogent evidence required to dispossess a legal owner - Absent palpable and overriding error the court would not interfere - See paragraphs 59 to 67.

Real Property - Topic 5646

Title - Extinguishment - Prescription and adverse possession - Possession - Possessory title - Establishment of - [See Real Property - Topic 5609 ].

Real Property - Topic 5751

Title - Extinguishment - Prescription and adverse possession - Adverse possession - General - What constitutes - [See Real Property - Topic 5609 ].

Real Property - Topic 5882

Title - Extinguishment - Prescription and adverse possession - Evidence - Burden of proof - [See Real Property - Topic 5609 ].

Cases Noticed:

3209292 Nova Scotia Ltd. v. MacDuff (2013), 328 N.S.R.(2d) 113; 1039 A.P.R. 113; 2013 NSCA 31, refd to. [para. 12].

R. v. D.M. (2007), 256 N.S.R.(2d) 242; 818 A.P.R. 242; 2007 NSCA 80, refd to. [para. 13].

Nicholson v. Halliday (2005), 193 O.A.C. 240; 74 O.R.(3d) 81 (C.A.), refd to. [para. 18].

Aberg v. Rafuse (1979), 36 N.S.R.(2d) 56; 64 A.P.R. 56; 8 R.P.R. 216 (T.D.), refd to. [para. 35].

Bent v. Farm Loan Board (N.S.), Horsnell and Horsnell (1978), 30 N.S.R.(2d) 552; 49 A.P.R. 552 (C.A.), refd to. [para. 35].

Lawrence v. Toronto Humane Society (2006), 212 O.A.C. 263 (CA.), refd to. [para. 43].

Hug v. Bliss (1998), 112 B.C.A.C. 242; 182 W.A.C. 242 (C.A.), refd to. [para. 43].

Phillips et al. v. Keefe (2012), 318 B.C.A.C. 184; 541 W.A.C. 184; 2012 BCCA 123, refd to. [para. 45].

Lynch et al. v. Lynch et al. (1985), 71 N.S.R.(2d) 69; 171 A.P.R. 69 (T.D.), refd to. [para. 48].

Lynch v. Nova Scotia (Attorney General) - see Lynch et al. v. Lynch et al.

Spicer et al. v. Bowater Mersey Paper Co. (2004), 222 N.S.R.(2d) 103; 701 A.P.R. 103; 2004 NSCA 39, refd to. [para. 48].

Dauphinee et al. v. Fralick Estate et al. (2003), 219 N.S.R.(2d) 238; 692 A.P.R. 238; 2003 NSCA 128, refd to. [para. 48].

Ezbeidy v. Phalen (1957), 11 D.L.R.(2d) 660 (N.S.S.C.), refd to. [para. 49].

Brown v. Phillips et al. (1953), 42 D.L.R.(2d) 38 (Ont. C.A.), refd to. [para. 49].

MacDonald v. McCormick (2009), 274 N.S.R.(2d) 258; 874 A.P.R. 258; 2009 NSCA 12, refd to. [para. 49].

Mason v. Mason Estate et al. (1999), 176 N.S.R.(2d) 321; 538 A.P.R. 321 (C.A.), refd to. [para. 49].

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. 49].

Rafuse and Rafuse v. Meister (1979), 32 N.S.R.(2d) 217; 54 A.P.R. 217 (C.A.), refd to. [para. 49].

Wood v. LeBlanc (1904), 34 S.C.R. 627, refd to. [para. 49].

Brill v. Nova Scotia (Attorney General) (2010), 294 N.S.R.(2d) 307; 933 A.P.R. 307; 2010 NSCA 69, refd to. [para. 49].

McLeod v. McRae (1918), 43 O.L.R. 34 (C.A.), refd to. [para. 65].

Founders Square Ltd. v. Coopers & Lybrand (1999), 179 N.S.R.(2d) 375; 553 A.P.R. 375 (C.A.), refd to. [para. 69].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2008), ྷ 29:60.80 [para. 49].

Counsel:

Kathryn M. Dumke, for the appellant;

Peter Rumscheidt, for the respondent.

This appeal was heard on March 26, 2013, at Halifax, Nova Scotia, by Saunders, Oland and Bryson, JJ.A., of the Nova Scotia Court of Appeal. Bryson, J.A., delivered the following reasons for judgment for the court on April 18, 2013.