Reeder v. Woodward, (2016) 616 A.R. 255

• Judge: Martin, Slatter and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 09, 2016
• Citations: (2016), 616 A.R. 255;2016 ABCA 91

Reeder v. Woodward (2016), 616 A.R. 255; 672 W.A.C. 255 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. AP.018

William Lynn Reeder and Pam Reeder (respondents/plaintiffs) v. Robert E. Woodward and Lorraine J. Woodward (appellants/defendants)

(1501-0008-AC; 2016 ABCA 91)

Indexed As: Reeder v. Woodward

Alberta Court of Appeal

Martin, Slatter and McDonald, JJ.A.

April 7, 2016.

Summary:

The parties owned adjoining quarter sections of farmland. The defendants had been the registered owners of the south east parcel since May 5, 1999, when they acquired the title. The

plaintiffs had been the registered owners of the north east parcel during all relevant time periods; it had been in their family for generations. In 2011, the plaintiffs filed a caveat asserting a possessory title. The defendants asserted ownership to the disputed parcel by padlocking the gate, and blocking access with a truck. The plaintiffs commenced the present litigation to enforce their caveat, and the defendants counterclaimed seeking confirmation of their title.

The Alberta Court of Queen's Bench allowed the plaintiffs' action. The defendants appealed.

The Alberta Court of Appeal allowed the appeal in part and set aside the damage award. The court also allowed the appeal on costs and awarded the plaintiffs trial costs to be assessed on column 1.

Damages - Topic 224

When available - Requirement of proof of basis of claim - The parties owned adjoining quarter sections of farmland - The appellants had been the registered owners of the south east parcel since May 5, 1999, when they acquired the title - The respondents had been the registered owners of the north east parcel during all relevant time periods; it had been in their family for generations - In 2011, the respondents filed a caveat asserting a possessory title - The appellants asserted ownership to the disputed parcel by padlocking the gate, and blocking access with a truck - The respondents commenced the present litigation to enforce their caveat, and the appellants counterclaimed seeking confirmation of their title - The trial judge allowed the respondents' action and awarded damages for the years 2013 and 2014 totaling $20,280 - The appellants appealed - The Alberta Court of Appeal allowed the appeal in part and set aside the damage award - The court stated that "Ordinarily, this issue would be returned to the trial judge for adjudication. The case, however, has already had a lengthy history of litigation resulting in the respondents taking adverse possession of the land from the appellants, who were the registered owners and who had been paying taxes on the property throughout the respondents' adverse possession. The burden of proving the damages was on the respondents, and they did not include any adjustment for saved input costs. There appears to have been little, if any, effort to mitigate the damages now claimed. In the circumstances, the appeal on this issue is allowed and the damage award is set aside." - See paragraphs 23 to 28.

Limitation of Actions - Topic 4104

Recovery of land - Interruption or stopping of limitation period - Where new certificate of title issued - [See Real Property - Topic 5086 ].

Practice - Topic 6924

Costs - General principles - Duty to provide reasons for cost award - [See Practice - Topic 7407 ].

Practice - Topic 7407

Costs - Solicitor and client costs - General principles - Power to award solicitor and client costs - The parties owned adjoining quarter sections of farmland - The appellants had been the registered owners of the south east parcel since May 5, 1999, when they acquired the title - The respondents had been the registered owners of the north east parcel during all relevant time periods; it had been in their family for generations - In 2011, the respondents filed a caveat asserting a possessory title - The appellants asserted ownership to the disputed parcel by padlocking the gate, and blocking access with a truck - The respondents commenced the present litigation to enforce their caveat, and the appellants counterclaimed seeking confirmation of their title - The trial judge allowed the respondents' action and awarded damages for the years 2013 and 2014 totaling $20,280 - The appellants appealed - The Alberta Court of Appeal allowed the appeal in part and set aside the damage award for, inter alia, lack of evidence - The court also set aside the award of solicitor-client costs made at trial - No basis for solicitor and client costs was obvious on the face of the record and, absent any reasons from the trial judge, the costs award could not be sustained - The value of the 9.5 acre parcel was not clearly disclosed on the record, but it appeared to be within the range covered by Column 1 - The court awarded costs based on Column 1 - See paragraphs 29 to 35.

Practice - Topic 7451

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - General - The Alberta Court of Appeal set aside an award of solicitor and costs made at trial involving a claim to land based on adverse possession - The court stated that "An award of solicitor and client costs is an extraordinary remedy, and is generally reserved for cases of serious litigation misconduct. ... A lack of merit is not a proper basis for solicitor and client costs ... Failure to admit facts is a relevant consideration in awarding costs, but a failure to admit facts would rarely justify solicitor and client costs, at least beyond the costs of proving the disputed fact. ... It is difficult to characterize the appellants' pursuit of their claim as being unreasonable or high-handed. They were, after all, the registered owners of the disputed parcel, which the respondents have now acquired by adverse possession. ... The litigation was necessary to resolve this dispute, even though it was undoubtedly expensive and unfortunate for both sides." - See paragraphs 30 to 34.

Real Property - Topic 5086

Title - Quieting of title - Basis of claimant's title - Adverse possession - The respondents successfully brought an action to enforce a caveat claiming ownership of land - The appellants had counterclaimed seeking confirmation of their title to the same land - On appeal, the appellants argued that the respondents were in possession of the disputed parcel under an express or implied licence - The Alberta Court of Appeal dismissed the appeal on the basis that the defence was statute-barred - The court stated that "In the end, the exact source of the respondents' occupation is not determinative because the limitation period had expired. It is not disputed that the respondents were in actual possession of the disputed parcel of land and rejected the appellants' claim to it. The appellants had to 'seek a remedial order' within the time limits set out in s. 3 of the Limitations Act, RSA 2000, c. L-12. Under the Limitations Act, the time within which a claim must be pursued generally depends on 'reasonable discoverability'. Because of the operation of the Torrens system of land registration, the limitation period with respect to the occupation of land can start over again each time there is a new registered owner ... The precise situation presented by this litigation is contemplated by s. 3(6): (6) The re-entry of a claimant to real property in order to recover possession of that real property is effective only if it occurs prior to the end of the 10-year limitation period provided by subsection (1)(b). ... In summary, the finding of the trial judge that there was no implied licence does not disclose any palpable and overriding error. It is clear that the respondents were in actual possession of the disputed parcel for over 10 years, and consistently asserted the right to be there notwithstanding the true state of the title. The appellants' claim to the land was extinguished under the Limitations Act before this action was commenced." - See paragraphs 17 to 21.

Real Property - Topic 5601

Title - Extinguishment - Prescription and adverse possession - Adverse possession defined - The Alberta Court of Appeal stated that "Where possession is taken on a consensual basis, it can only become 'adverse' if there is some clear repudiation of the contract by the occupant of the land, or some clear assertion of rights inconsistent with the title of the owner." - See paragraph 11.

Real Property - Topic 5601

Title - Extinguishment - Prescription and adverse possession - Adverse possession defined - The Alberta Court of Appeal stated that "Section 3(7) of the Limitations Act confirms that an acknowledgement of a claim to possession of land can restart the time for seeking a remedial order: ... This section acknowledges that consensual occupation of land is not 'adverse'. If the occupant is in possession of the lands through some sort of agreement with the owner (whether it be as tenant at will, licensee, lessee, or otherwise), then the occupant cannot claim title by adverse possession when the limitation period expires. Consensual occupation of this type can end a period of adverse possession, and thereby stop the limitation period from running, but consensual occupation requires the agreement of both the occupant and the owner. The owner cannot, after the fact, foist a licence on the occupant by unilaterally declaring that the owner will permit the occupation to continue. In order to change the character of the occupation from 'adverse' to 'permitted', both the occupant and the owner must agree that the possession of the land is consensual. The Limitations Act contemplates this sort of acknowledgment being in writing." - See paragraphs 19 and 20.

Real Property - Topic 6093

Title - Extinguishment - Prescription and adverse possession - Defences - Acknowledgement of owner's title by adverse claimants - [See second Real Property - Topic 5601 ].

Real Property - Topic 7066

Easements, licenses and prescriptive rights - Creation by prescription - Intention of user - [See second Real Property - Topic 7068 ].

Real Property - Topic 7068

Easements, licenses and prescriptive rights - Creation by prescription - Bars (permission, etc.) - [See second Real Property - Topic 5601 ].

Real Property - Topic 7068

Easements, licenses and prescriptive rights - Creation by prescription - Bars (permission, etc.) - On appeal, the appellants argued that the respondents were in possession of a disputed parcel under an express or implied licence - The Alberta Court of Appeal dismissed the appeal on the basis that the appellants' defence was statute-barred - However, the court stated that "The appellants also argue there was an implied licence because the respondents 'knew' who was the true owner. The appellants argue that the record is clear that the respondents knew that they did not have title to the disputed parcel, that they were not paying taxes on it, and that the appellants were the true owners. Mere knowledge that the occupant does not have legal title to the land does not preclude a claim for adverse possession; on the contrary, nothing can be more adverse than claiming property owned by another. The case law is clear that the knowledge of the claimant about the exact state of the title is not important; what matters is the intention of the claimant to possess the disputed piece of land" - See paragraph 16.

Counsel:

D.C. Thompson, for the respondents;

D.P Carle, for the appellants.

This appeal was heard on March 9, 2016, by Martin, Slatter and McDonald, JJ.A., of the Alberta Court of Appeal. The Court delivered the following memorandum of judgment on April 7, 2016.