Vinland Holdings Ltd. v. Penick, 2003 NSSC 148

• Judge: Cacchione, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 03, 2003
• Jurisdiction: Nova Scotia
• Citations: 2003 NSSC 148;(2003), 215 N.S.R.(2d) 225 (SC)

Vinland Holdings Ltd. v. Penick (2003), 215 N.S.R.(2d) 225 (SC);

 675 A.P.R. 225

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. JL.020

Vinland Holdings Limited, a body corporate, duly incorporated pursuant to the laws of the Province of Nova Scotia (applicant) v. Barbara Stewart Penick and Van Penick, solicitors, both of 1474 Carleton Street in the City and County of Halifax and Province of Nova Scotia (respondents)

(S.H. 200171; 2003 NSSC 148)

Indexed As: Vinland Holdings Ltd. v. Penick

Nova Scotia Supreme Court

Cacchione, J.

July 14, 2003.

Summary:

The applicant and the respondents owned properties which had a similar right of way along the back. By a Statutory Declaration recorded at the Registry of Deeds, the respondents stated that the applicant's right to the use of the right of way had expired and that the respondents had exerted open and continuous use of the area since 1975. The applicant applied for a declaratory judgment pursuant to Civil Procedure Rule 5.14 that the Statutory Declaration was not a recordable instrument within the meaning of s. 2(e) of the Registry Act and was therefore a nullity.

The Nova Scotia Supreme Court held that paragraphs 1 to 7 of the Statutory Declaration related to matters of fact and were permissible. However, the opening recital paragraph and paragraph 8 were caveats and were not permissible. The court granted a declaratory judgment that the opening recital paragraph and paragraph 8 of the Statutory Declaration were a nullity and not a recordable instrument within the meaning of s. 2(e) of the Registry Act. The remainder of

the Statutory Declaration was a document within the purview of the Registry Act.

Real Property - Topic 7803

Title - Registration of instruments, etc. - General principles - What constitutes an instrument - [See Real Property - Topic 7921 ].

Real Property - Topic 7921

Title - Registration of instruments, etc. - Caveats or cautions - General - The applicant and the respondents owned properties which had a similar right of way along the back - By a Statutory Declaration recorded at the Registry of Deeds, the respondents stated that the applicant's right to the use of the right of way had expired and that the respondents had exerted open and continuous use of the area since 1975 - The Nova Scotia Supreme Court held that paragraphs 1 to 7 of the Statutory Declaration related to matters of fact and were permissible - However, the opening recital paragraph and paragraph 8 were caveats and were not permissible - The court granted a declaratory judgment that the opening recital paragraph and paragraph 8 of the Statutory Declaration were a nullity and not a recordable instrument within the meaning of s. 2(e) of the Registry Act - The remainder of the Statutory Declaration was a document within the purview of the Registry Act.

Cases Noticed:

Church v. Forbes and Church (1983), 60 N.S.R.(2d) 211; 128 A.P.R. 211 (T.D.), consd. [para. 9].

Royal Bank of Canada v. Kesebi (1997), 163 N.S.R.(2d) 321; 487 A.P.R. 321 (S.C.), refd to. [para. 9].

Royal Bank of Canada v. Madill (1981), 43 N.S.R.(2d) 574; 81 A.P.R. 574 (C.A.), consd. [para. 10].

Lemorand Projects Ltd. v. Old Sack Holdings Ltd. et al. (1987), 80 N.S.R.(2d) 133; 200 A.P.R. 133 (T.D.), consd. [para. 11].

Blades and Quinlan v. Atwood (1990), 95 N.S.R.(2d) 348; 251 A.P.R. 348; 99 R.P.R.(2d) 15 (T.D.), consd. [para. 13].

Lynch et al. v. Lynch et al. (1985), 71 N.S.R.(2d) 69; 171 A.P.R. 69 (T.D.), consd. [para. 18].

Authors and Works Noticed:

MacIntosh, Real Property Practice Manual, p. 40-52, para. 4.40 [para.17].

Counsel:

Charles D. Lienaux, for the applicant;

Michael S. Ryan, Q.C., for the respondents.

This application was heard on July 3, 2003, at Halifax, Nova Scotia, before Cacchione, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 14, 2003.