Thomas et al. v. Taylor et al., (2006) 250 N.S.R.(2d) 122 (CA)

• Judge: Roscoe, Bateman and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 01, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 250 N.S.R.(2d) 122 (CA);2006 NSCA 134

Thomas v. Taylor (2006), 250 N.S.R.(2d) 122 (CA);

    796 A.P.R. 122

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. DE.028

Wayne Michiel Thomas, Deborah Morash and Marilyn Peters (appellants) v. Moira Claire Cottam, The Attorney General of Nova Scotia and The Attorney General of Canada (respondents)

Wayne Michiel Thomas, Deborah Morash and Marilyn Peters (appellants) v. Sonja Taylor, The Attorney General of Nova Scotia and The Attorney General of Canada (respondents)

(CA 268483; 268484; 2006 NSCA 134)

Indexed As: Thomas et al. v. Taylor et al.

Nova Scotia Court of Appeal

Roscoe, Bateman and Hamilton, JJ.A.

December 13, 2006.

Summary:

The plaintiffs brought two quieting of titles actions. The applicants invoked s. 10 of the Quieting Titles Act (N.S.) and sought to be added as defendants.

The Nova Scotia Supreme Court, in a decision unreported in this series, dismissed the application. The applicants appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Deeds and Documents - Topic 5180

Rectification - Proof and evidence - Burden of proof - [See second Real Property - Topic 5097 ].

Real Property - Topic 5097

Title - Quieting of title - Parties - The Nova Scotia Court of Appeal held that, under s. 10 of the Quieting Titles Act (N.S.), a person could be added as a defendant in a quieting of titles application unless it was clear that he had no interest - Interest meant a property interest affecting the subject property - An applicant wishing to be joined as a defendant had to demonstrate that he had some evidence which, if accepted at trial, could establish an interest in the land - If, in the context of the abstract of title, that evidence was clearly insufficient, or, to quote Justice Moir in Frank Georges Island, 225 N.S.R.(2d) 264; 713 A.P.R. 264, it was "so weak that a claim would clearly fail" to "establish any possibility of an interest in land", he should not be joined as a defendant - See paragraphs 9 to 14.

Real Property - Topic 5097

Title - Quieting of title - Parties - Section 10 of the Quieting Titles Act (N.S.) provided for a person to be joined as a defendant unless it was clear that the person had "no interest that may be affected by the proceedings" - Taylor brought a quieting of titles action - The applicants, who made recreational use of the subject lands over the years, sought to be added as defendants - They said that the grantors in a 1907 deed to a predecessor of Taylor did not intend to include the lands as described in the deed - The chambers judge dismissed the application, ruling that the applicants failed to establish an interest in the subject property - The Nova Scotia Court of Appeal upheld the decision - To establish that the 1907 grantors did not include the subject property, the applicants had to seek rectification - Rectification required clear and convincing proof of mutual mistake between the grantors and the grantee that the deed did not reflect the parties' intention - There was no such proof here - See paragraphs 15 to 19.

Real Property - Topic 5097

Title - Quieting of title - Parties - Section 10 of the Quieting Titles Act (N.S.) provided for a person to be joined as a defendant unless it was clear that the person had "no interest that may be affected by the proceedings" - Taylor brought a quieting of titles action - The applicants, who used the subject lands over the years for walking, berry picking and going to the beach, sought to be added as defendants - They said that the subject lands were dedicated to public use prior to 1907 - The chambers judge dismissed the application, ruling that the applicants failed to establish an interest in the subject property - The applicants' activities were common place on uninhabited lands and did not support the proposition on which an inference of dedication to the public could be founded - The Nova Scotia Court of Appeal upheld the decision - See paragraphs 20 to 24.

Real Property - Topic 5705

Title - Extinguishment, prescription and adverse possession - Continuity of possession - What constitutes "continuous possession" - Section 10 of the Quieting Titles Act (N.S.) provided for a person to be joined as a defendant unless it was clear that the person had "no interest that may be affected by the proceedings" - Taylor brought a quieting of titles action - The applicants, who used the subject lands over the years for walking, berry picking and going to the beach, sought to be added as defendants - They argued adverse possession as a basis for their interest in the subject lands - The chambers judge dismissed the application - The Nova Scotia Court of Appeal upheld the decision - There was no evidence of exclusivity and continuity of possession - Sporadic acts, even if frequent, of berry picking, crossing over the land to go to the beach and walking around on the land were not capable of proving continuous occupation - See paragraphs 25 and 26.

Real Property - Topic 5777

Title - Extinguishment, prescription and adverse possession - Dedication to public use - What constitutes - [See third Real Property - Topic 5097 ].

Words and Phrases

Interest - The Nova Scotia Court of Appeal discussed the meaning of the word "interest" found in s. 10 of the Quieting Titles Act, R.S.N.S. 1989, c. 382 - See paragraphs 9 to 14.

Cases Noticed:

Frank Georges Island Investments v. Nova Scotia (Attorney General) (2004), 225 N.S.R.(2d) 264; 713 A.P.R. 264; 2004 NSSC 136, refd to. [para. 5].

Frank v. Purdy Estate (1995), 142 N.S.R.(2d) 50; 407 A.P.R. 50 (C.A.), refd to. [para. 8].

Clarke v. Sherman et al. (2002), 205 N.S.R.(2d) 112; 643 A.P.R. 112 (C.A.), refd to. [para. 8].

Binder v. Royal Bank of Canada et al. (2005), 234 N.S.R.(2d) 109; 745 A.P.R. 109; 2005 NSCA 94, refd to. [para. 8].

Dartmouth (City) v. Dartmouth Police Association (1998), 172 N.S.R.(2d) 352; 524 A.P.R. 352 (C.A.), consd. [para. 17].

Ezbeidy v. Phalen (1958), 11 D.L.R.(2d) 660 (N.S.S.C.), refd to. [para. 25].

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. 25].

Carson v. Musialo, [1940] 4 D.L.R. 651 (Ont. C.A.), refd to. [para. 26].

Grace v. Gavin et al. (1990), 99 N.S.R.(2d) 34; 270 A.P.R. 34 (C.A.), refd to. [para. 26].

Sherren v. Pearson (1887), 14 S.C.R. 581, refd to. [para. 26].

Goulden v. Kimbrell (2006), 248 N.S.R.(2d) 96; 789 A.P.R. 96; 2006 NSCA 102, refd to. [para. 28].

Statutes Noticed:

Quieting Titles Act, R.S.N.S. 1989, c. 382, sect. 10 [para. 2].

Counsel:

Tim Hill, for the appellants;

Colin D. Bryson, for the respondents, Moira Claire Cottam and Sonja Taylor;

No one appearing for other respondent.

This appeal was heard on December 1, 2006, at Halifax, N.S., by Roscoe, Bateman and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. The decision of the Court of Appeal was delivered on December 13, 2006, by Roscoe, J.A.