Pond v. Hovey, 2015 NBCA 24

• Judge: Larlee, Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 24, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 24;(2015), 435 N.B.R.(2d) 301 (CA)

Pond v. Hovey (2015), 435 N.B.R.(2d) 301 (CA);

    435 R.N.-B.(2e) 301; 1134 A.P.R. 301

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

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

.........................

Temp. Cite: [2015] N.B.R.(2d) TBEd. AP.017

Renvoi temp.: [2015] N.B.R.(2d) TBEd. AP.017

Donald Hovey (appellant) v. Registrar General of Land Titles, 643589 NB Ltd., K.W. Pond Limited and Doreen Pond (respondents)

(66-14-CA; 2015 NBCA 24)

Indexed As: Pond v. Hovey

Répertorié: Pond v. Hovey

New Brunswick Court of Appeal

Larlee, Deschênes and Richard, JJ.A.

April 23, 2015.

Summary:

Résumé:

The parties were adjacent property owners of two lots on the Miramichi River. Pond owned lot 73, which was granted in 1916. Hovey owned lot 74, which was granted in 1809. The Crown grant map attached to the 1916 Crown deed showed the borderline between the properties extending across a small peninsula, including the tip of the peninsula in Pond's lot 73. The extension of the borderline across the peninsula was not shown in the 1809 grant. After Hovey bulldozed vegetation on the peninsula, Pond brought an action, claiming that Hovey had trespassed, causing damage to her property.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2009), 343 N.B.R.(2d) 390; 881 A.P.R. 390, granted judgment for Pond. She was awarded nominal damages of $1,500. She was also entitled to special damages of $15,014.65 for a survey and $4,377.50 for a legal opinion. Hovey appealed.

The New Brunswick Court of Appeal, in a decision reported at (2010), 353 N.B.R.(2d) 388; 910 A.P.R. 388, allowed the appeal. Based on the 1809 grant, Hovey was the owner of the disputed land. Hovey successfully applied under the Land Titles Act for registration of the peninsula lands. Asserting that the formal judgment had effectively extinguished its ownership of a 10 foot strip of land around the peninsula, 643589 NB Ltd. sought an order to amend the judgment.

The New Brunswick Court of Appeal, in a decision reported at (2011), 369 N.B.R.(2d) 394; 952 A.P.R. 394, treating 643589 NB. Ltd. as a party to the action under rule 15.01(2) for the purposes of this motion, granted the motion and corrected its judgment, deleting the declaration of title. The Registrar General purported to correct the title register under s. 52 of the Act to show that 643589 was the title holder of the 10' strip with Hovey owning the remainder of the peninsula. Hovey applied to have his title registration restored.

The New Brunswick Court of Queen's Bench, in a decision reported at (2014), 420 N.B.R.(2d) 201; 1091 A.P.R. 201, dismissed the application. Hovey appealed.

The New Brunswick Court of Appeal allowed the appeal. The court set aside the order below and made the order that should have been made, which was to convert Hovey's application to an action to proceed to trial.

Practice - Topic 3082

Applications and motions - Applications - Disposition - Application to proceed as action - [See Real Property - Topic 8014.2 ].

Real Property - Topic 8011

Title - Registration of instruments, etc. - Land titles system - Registration - Procedure - [See Real Property - Topic 8014.2 ].

Real Property - Topic 8014.2

Title - Registration of instruments, etc. - Land titles system - Registration - Rectification - Pond and Hovey were adjacent property owners on the Miramichi River - They disputed the ownership of a small peninsula - Hovey's predecessor in title had deeded a 10' strip of land around the peninsula to Russell - The appeal court held that, based on an 1809 land grant, Hovey was the owner of the disputed peninsula - The formal judgment included a declaration as to title that did not reference the 10' strip that had subsequently been conveyed to 643589 NB Ltd. - Hovey successfully applied under the Land Titles Act for registration of the peninsula lands - 643589 entered a caveat - The Court of Appeal corrected its judgment, deleting the declaration of title - The Registrar General purported to correct the title register under s. 52 of the Act to show that 643589 owned the 10' strip with Hovey owning the remainder of the peninsula - Hovey applied to have his title registration restored - The application judge, in dismissing the application, held that s. 52 was not the appropriate legal vehicle for rectification of the register - While the court had jurisdiction under s. 70 to rectify the title, there was a complete absence of evidence that Hovey had title to the 10' strip - Under s. 70, the application judge directed the Registrar General to rectify the title register as intended and reflected by the rectification incorrectly made under s. 52 - The New Brunswick Court of Appeal allowed Hovey's appeal - The application judge erred in rectifying the title under s. 70 based on "a complete absence of evidence" of Hovey's title to the 10' strip - In fact, Hovey was not given an opportunity to present his evidence because the application judge had failed to convert the application to a trial - There were facts in dispute - If the application judge had wanted to undertake a rectification under ss. 70 and 71 of the Act, he should have done a proper analysis of the title - However, he made no proper findings of fact - The court set aside the order below and made the order that should have been made, which was to convert Hovey's application to an action to proceed to trial.

Biens réels - Cote 8011

Titre - Enregistrement d'actes instrumentaires - Système d'enregistrement foncier - Enregistrement - Procédure - [Voir Real Property - Topic 8011 ].

Biens réels - Cote 8014.2

Titre - Enregistrement d'actes instrumentaires - Système d'enregistrement foncier - Enregistrement - Rectification - [Voir Real Property - Topic 8014.2 ].

Procédure - Cote 3082

Requêtes et motions - Requêtes - Décision - Requête instruite comme une action - [Voir Practice - Topic 3082 ].

Cases Noticed:

Lemay v. Peters (2014), 425 N.B.R.(2d) 336; 1107 A.P.R. 336; 2014 NBCA 59, refd to. [para. 8].

835637 Alberta Ltd. et al. v. Moonraker Realty Inc. (2010), 364 N.B.R.(2d) 148; 937 A.P.R. 148; 2010 NBCA 72, refd to. [para. 17].

Black v. Norris et al. (2012), 399 N.B.R.(2d) 1; 1035 A.P.R. 1; 2012 NBQB 346, varied (2013), 410 N.B.R.(2d) 337; 1065 A.P.R. 337; 2013 NBCA 62, refd to. [para. 17].

Counsel:

Avocats:

Joseph W.J. FitzPatrick III, for the appellant;

David D. Eidt, for the respondent, Registrar General of Land Titles;

David T. Hashey, Q.C., and Aaron McKinley Savage, for the respondent, 643589 NB Ltd.

This appeal was heard on February 24, 2015, by Larlee, Deschênes and Richard, JJ.A., of the New Brunswick Court of Appeal. On April 23, 2015, Larlee, J.A., delivered the following reasons for judgment in both official languages for the court.