SUPREME COURT OF Nova Scotia
Citation: Shannon v. Frank George’s Island Investments Ltd., 2015 NSSC 76
Date: 2015-03-11
Docket: Hfx No. 420496
Registry: Halifax
Between:
Joel Shannon, David and Dinah Grace, and Gower Holdings Limited
Applicants
– and –
Frank George's Island Investments Limited, Anton and Gabriele Viehbeck, Seabright Holdings Limited and Paul Pleau
Respondents
– and –
The Attorney General of Nova Scotia
Intervenor
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Judge: |
The Honourable Justice James L. Chipman |
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Heard: |
January 12-16, 2015, in Halifax, Nova Scotia |
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Counsel: |
A. Douglas Tupper, Q.C. and Victoria Crosbie, articled clerk for the Applicants Matthew J.D. Moir and John A. Keith, Q.C. for the Respondents Sheldon Choo for the Intervenor |
By the Court:
Introduction
[1] This proceeding involves the question of whether a particular stretch of road is a public road or a private one.
[2] By Notice of Application in Court filed October 11, 2013, the Applicants (then not including Joel Shannon) applied for an order and declaratory relief on over 30 grounds. This was met by the Respondents’ Notice of Contest filed November 7, 2013, stating the Application should be dismissed. By consent order issued December 19, 2013, the Attorney General of Nova Scotia (the “Province”) was added as Intervenor. The Notice of Application was amended on February 3, 2014 and further on May 21, 2014. This latter amendment added Joel Shannon as an Applicant along with setting out an additional ground and an amendment to the declaration sought. At the outset of the hearing the Applicants confirmed they were no longer seeking a contempt order.
[3] The main litigants have had an acrimonious relationship dating back over 15 years. In 1999 the Respondent Frank George’s Island Investments Limited (“FGIL”) acquired Frank Georges Island, a 60 acre island in St. Margaret’s Bay. In 2001 the Respondents Anton Viehbeck and his wife, Gabriele Viehbeck, acquired their residence at 54 Tern lane (formerly known as 288 Umlah Road). In 2010 the Respondent Seabright Holdings Limited (“SHL”) acquired 248 Captain Hemlock Lane (“CHL”). SHL also now owns a parcel of land on Frank Georges Island. Anton Viehbeck is Director, President and Secretary of FGIL. The Respondent Paul Pleau is President of SHL.
[4] The aforementioned properties are all within close proximity to properties owned by the Applicants in Umlah Point, Seabright, Halifax County, Nova Scotia. In 2004 the Applicant Dinah Grace and nine of her neighbours sought to be joined as defendants in FGIL’s quieting of titles action in respect of Frank Georges Island. All ten applications were dismissed by Moir J in Frank Georges Island Investments v. Nova Scotia (Attorney General), 2004 NSSC 136. Later the matter settled with the Province and in December 2004 a certificate of title was issued by the Court naming FGIL sole owner of Frank Georges Island.
[5] In the later 2000s FGIL began transporting materials from 54 Tern Lane to Frank Georges Island. A number of Umlah Point property owners, including the Applicants David Grace and his wife, Dinah Grace, took objection to this and brought an application in Court. Another applicant was Seabright Partners, LLC, the predecessor in title to land located at 24 Lanyard Lane now owned by the Applicant, Joel Shannon. The application was allowed by Scaravelli J in Seabright Partners, LLC v. Frank George’s Island Investments Ltd., 2010 NSSC 368.
[6] In the present Application both the Amended Notice of Application and Notice of Contest refer to the decision of Justice Scaravelli, albeit as will be more fully discussed, the Applicants and Respondents offer markedly different interpretations of what the decision stands for.
[7] A few years ago Anton Viehbeck and Gabrielle Viehbeck commenced an application in Court seeking a declaration they are entitled to use motor vehicles on a shared twenty foot right-of-way across the property of John Pook and Jill King-Pook, two of the applicants in the matter before Scaravelli J. Further, the application involved intervenors including some of the same applicants in the matter before Moir J as well as Seabright Partners, LLC (again, the predecessor in title to land located at 24 Lanyard Lane now owned by the Applicant Joel Shannon). The Viehbecks’ application was allowed by Wood J in Viehbeck v. Pook, 2012 NSSC 48.
Preliminary Issues
[8] During a January 2, 2015, Pre-Trial Conference, it was agreed the voluminous evidence by way of affidavits (including exhibits) and statutory declarations would be before the Court, subject to counsels’ submissions on admissibility, which I received on January 9, 2015. At the commencement of trial I advised counsel that I accepted their written submissions and would treat the evidence in the manner requested. That is to say, most of the statements in the affidavits and statutory declarations were entered into evidence. The exceptions pertained to stipulated examples of argument and hearsay. Additionally, the Court confirmed with the parties that the only cross-examination (and potential re-examination) would be of these deponents:
1. Allen B. Robertson, the Applicants’ expert;
2. Shona Poirier, Acquisition and Disposal Officer with the Nova Scotia Department of Transportation and Infrastructure Renewal (“DTIR”); and
3. Dinah Grace and possibly David Grace (the Respondents ultimately did not cross-examine Mr. Grace).
Background
[9] To recapitulate, the Applicants and Respondents own property in Umlah Point, Seabright, Halifax County, Nova Scotia, as follows:
1. Joel Shannon – 24 Lanyard Lane bearing PID 514760 (“Shannon Property”);
2. David and Dinah Grace – 280 CHL bearing PID 512707;
3. Gower Holdings Limited – Lots B7-AX, B-2 and C CHL bearing PIDs 415075110, 40872541 and 0061453;
4. FGIL – Frank Georges Island;
5. Anton and Gabrielle Viehbeck – 54 Tern Lane bearing PID 00512749; and
6. SHL – 248 CHL bearing PID 00613513 (“SHL Property”) as well as a parcel of land on Frank Georges Island.
[10] To reach these properties (with the exception of Frank Georges Island) by vehicle, one must take Highway 333 (also known as the Peggy’s Cove Road) and then Umlah Road. The parties agree Highway 333 and part of Umlah Road are public roads. The Applicants say CHL and Tern Lane (which form part of what was once known as Umlah Road and which is granted over the Shannon Property) is a right-of-way, whereas the Respondents assert all of (old) Umlah Road is a public road. In this Application the Court is asked to determine this critical distinction. If the Applicants have their way, the Respondents will be prevented from using the right-of-way for commercial purposes. If the Respondents prevail, they will be permitted to use the public road to access the SHL Property to transfer goods and/or persons to Frank Georges Island, where in 2007 FGIL subdivided 15 building lots.
[11]
In November, 2010, approximately one month after
the 2010 Order was issued, SHL acquired the SHL Property. In 2013, SHL began
permitting the Viehbecks to use the waterfront property to transport men,
equipment and materials (by way of the Viehbecks’ barge) to Frank Georges
Island.
[12] The Applicants assert that SHL is a company incorporated as a façade to deliberately hide Mr. and Mrs. Viehbeck’s absolute control of SHL so as to confuse the similar identities of the parties in this Application and the one before Justice Scaravelli. The Respondents deny this accusation and say that Mr. Pleau is the true President of SHL.
[13] The Applicants characterize the Respondents’ behaviour as in defiance of the 2010 Order. That is to say, they assert it is the same behaviour that was expressly prohibited by Justice Scaravelli with the only difference being that the Viehbecks are now using the SHL Property as opposed to 34 Tern Lane to access Frank Georges Island. The Respondents take issue with this characterization of their behaviour. They say that the application before Scaravelli J did not involve SHL or Paul Pleau as parties or the SHL Property. The Respondents assert that the SHL Property fronts on Umlah Road, which is a public road. In the result, they argue that the road may be used for commercial means. Having made this point, the Respondents add that whereas the Applicants repeatedly suggest the Viehbecks intend to develop a subdivision on Frank Georges Island, there is no evidence corroborating this, and I find this to be an accurate statement.
Application of Res Judicata and Issue Estoppel
[14] With their February 3, 2014, amended Notice of Application, the Applicants sought a declaration that the Respondents be estopped from arguing that what the Applicants characterize as a right-of-way is a public road, because this issue was dealt with in the prior proceeding. In short, the Applicants take the position that this characterization applies to the entire road system on Umlah Point past Houlihan’s Cove, affecting not only the properties which formed the subject matter of the prior litigation but also the SHL Property, which lies between those properties and Houlihan’s Cove.
[15] The Applicants argue by reason of res judicata that the Respondents should be barred from re-litigating this case. In support of their position, the Applicants cite Erschbamer v. Wallster, 2013 BCCA 76, per Tysoe JA, Hall and Smith JJA concurring, at para 12:
The general principles of the doctrine of res judicata were reviewed by this Court relatively recently in Cliffs Over Maple Bay. The doctrine has two aspects, issue estoppel and cause of action estoppel. In brief terms, issue estoppel prevents a litigant from raising an issue that has already been decided in a previous proceeding. Cause of action estoppel prevents a litigant from pursuing a matter that was or should have been the subject of a previous proceeding. If the technical requirements of issue estoppel or cause of action estoppel are not met, it may be possible to invoke the doctrine of abuse of process to prevent relitigation of matters.
[16] The Applicants take the position that issue estoppel, cause of action estoppel, and abuse of process are all relevant to the within application. These concepts were reviewed in Angle v. MNR, [1975] 2 S.C.R. 248, at p. 254:
This form of estoppel, as Diplock L.J. said in Thoday v. Thoday, at p. 198, has two species. The first, “cause of action estoppel”, precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction. We are not here concerned with cause of action estoppel as the Minister’s present claim that Mrs. Angle is indebted to Transworld in the sum of $34,612.33 is obviously not the cause of action which came before the Exchequer Court in the s. 8(1)(c) proceedings. The second species of estoppel per rem judicatam is known as “issue estoppel”, a phrase coined by Higgins J. of the High Court of Australia in Hoystead v. Federal Commissioner of Taxation, at p. 561:
I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as has been the subject of previous adjudication, and the doctrine of estoppel where, the cause of action being different, some point or issue of fact has already been decided (I may call it “issue-estoppel”).
Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), at p. 935, defined the requirements of issue estoppel as:
…(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies….
[17] In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para 33, Justice Binnie observed that issue estoppel requires a two-step analysis. Firstly, whether the three-part test described above has been met. Secondly, whether despite this fact, the Court should exercise its discretion to apply the doctrine. The Applicants argue that the three-part test has been met and that the doctrine should be applied, thus dispensing with the matter.
[18] The Respondents argue that because the SHL Property was never part of what was considered by Justice Scaravelli, the (now) owners of the SHL Property should not be shackled to the decision. They go on to state that the Applicants have muddled the issues in play in this proceeding and the earlier one. They point out that Scaravelli J was mainly concerned with the determination of a right-of-way concerning property along what was acknowledged to be a private lane, Tern Lane. In this application, however, they say the question relates to the SHL Property along Umlah Road, which they argue is a public road.
[19] Further, the Respondents refer to the Nova Scotia Court of Appeal as the authority to be followed in Montreal Trust Company of Canada v. Hoque, 1997 NSCA 153, per Cromwell JA (as he then was), Freeman and Roscoe JJA concurring. In particular, they cite paras 38 and 65, which read:
[38] Although many of these authorities cite with approval the broad language of Henderson v. Henderson, [1843-60] All E.R. Rep. 378 (Eng. V.-C,), to the effect that any matter which the parties had the opportunity to raise will be barred, I think, however that this language is somewhat too wide. The better principle is that those issues which the parties had the opportunity to raise and, in all the circumstances, should have raised, will be barred. In determining whether the matter should have been raised, a court will consider whether the proceeding constitutes a collateral attack on the earlier findings, whether it simply asserts a new legal conception of facts previously litigated, whether it relies on “new” evidence that could have been discovered in the earlier proceeding with reasonable diligence, whether the two proceedings relate to separate and distinct causes of action and whether, in all the circumstances, the second proceeding constitutes an abuse of process.
…
[65] My review of these authorities shows that while there are some very broad statements that all matters which could have been raised are barred under the principle of cause of action estoppel, none of the cases actually demonstrates this broad principle. In each case, the issue was whether the party should have raised the point now asserted in the second action. That turns on a number of considerations, including whether the new allegations are inconsistent with matters actually decided in the earlier case, whether it relates to the same or a distinct cause of action, whether there is an attempt to rely on new facts which could have been discovered with reasonable diligence in the earlier case, whether the second action is simply an attempt to impose a new legal conception on the same facts or whether the present action constitutes an abuse of process.
[emphasis added]
[20] In argument counsel for the Applicants acknowledge Hoque to be the appropriate authority to be followed in Nova Scotia. With this in mind, I will now apply the law to the facts here.
[21] I find the new allegations pertain mainly to the SHL Property and whether the entirety of the road leading to the SHL Property is private or public. In reading the decision of Justice Scaravelli, I find that these new allegations (as to whether the road is public or private) are distinct from matters decided in the earlier case which concerned the nature and extent of the grant of right-of-way over properties around, but not including, the SHL Property.
[22] I find the within Application relates to a distinct cause of action (application), albeit, several of the same individuals and properties are involved. I do not find that what is involved with this Application is an attempt to rely on new facts which could have been discovered with reasonable diligence in the earlier case, as the earlier case did not concern itself with the characterization of the road in the context of the SHL Property. Further, I do not regard the position of the Respondents in this the second application as simply an attempt to impose a new legal conception on the same facts. Indeed, this Application involves new affidavit and expert evidence. Finally, the present Application and response is anything but an abuse of process as it involves a legitimate contest to determine the status of the road in question. I might add that the Applicants have seen fit to abandon their contempt application.
[23] In coming to my decision I do not feel it is necessary to weigh in on the Applicants’ argument that SHL is a sham company. Indeed, all I have before me to sort through this allegation are the discovery transcripts of Messrs. Viehbeck and Pleau. Asked to make such a finding, which involves allegations of fraud, I would want viva voce evidence. In any event, this determination is not required to come to my conclusion on this aspect of the Application.
[24] In summary, I have determined that the within Application concerns some of the same, but also some different, owners and locations as were considered by Justice Scaravelli. Furthermore, this Application also involves public rights, as my decision must consider the history of Umlah Road and whether or not the public has a right to access the portion in question. In the result, for all of the reasons discussed, I decline the Applicants’ invitation to apply res judicata and issue estoppel.
Evidence
[25] During the application exhibits were entered by agreement. Apart from what is reviewed below, the exhibits primarily consisted of additional material (maps and the like) providing historical context to the road system in this area, referred to as District 12, Halifax County.
Applicants
[26] The Applicants’ evidence consisted of the following affidavits (several with numerous exhibits):
1. David and Dinah Grace – sworn September 23, 2013
2. David Grace – sworn November 12, 2013, March 18 and June 18, 2014
3. Dinah Grace – sworn March 18, 2014 and June 18, 2014
4. John Lindley – sworn March 18, 2014
5. Lisa MacDormand – sworn March 18, 2014
6. Richard Hattin – sworn March 18, 2014
7. Jeff Theriault - sworn March 18, 2014
8. Barbara Jones - sworn March 18, 2014
9. Patricia D. Lindley - sworn March 18, 2014
10. John G. Pook - sworn March 17, 2014
11. Robert Radchuk - sworn March 14, 2014
12. Joel Shannon - sworn March 19, 2014
13. Allen B. Robertson – sworn November 24, 2014 and January 7, 2015
[27] The Applicants also entered a Trustee’s Deed dated November 2, 2010 between Alexander and Edward Rettie (grantor) and SHL (grantee) and a Form 24 registered November 22, 2013. They entered discovery transcripts of Paul Pleau (deposed April 16, 2014) and Anton Viehbeck (deposed April 15, 2014) as well as expert reports of Dr. Robertson dated September 2 and November 21, 2014.
[28] Dr. Robertson is an historian and his curriculum vitae was entered as an exhibit. He was qualified as an expert in history and in the geographical aspects of history.
[29] Dr. Robertson’s reports were not in compliance with Rule 55 and Applicants’ counsel did not file a statement of qualification pursuant to Rule 55.09. While I had some initial concerns about these omissions, the cross-examination of Dr. Robertson served to allay these concerns. Indeed, I was satisfied that when Dr. Robertson was challenged on the contents of his reports, he had turned his mind to Rule 55.04. When the expert was stepped through the requirements of this rule, given his answers, I formed the strong impression that although he did not overtly refer to Rule 55 in his written opinions, Dr. Robertson made the appropriate representations to the Court. Further, on the basis of his viva voce and written opinions, I find that Dr. Robertson gave a concise statement of his opinions containing proper information (see Rule 55.04(2)) in support of each opinion. Finally, Dr. Robertson’s reports contained required information needed for assessing the weight to be given to each opinion (see Rule 55.04(3)).
Respondents
[30] The Respondents’ evidence consisted of the following affidavits:
1. Anton Viehbeck – sworn April 16 and September 26, 2014
2. Matthew Moir – sworn February 18, August 5, October 8 and December 19, 2014
3. Paul Lumsden – sworn June 16, 2014
4. James F.E. White – sworn June 27, 2014
5. Thomas F. Giovannetti – sworn December 19, 2014
[31] The affidavits contained voluminous exhibits. Indeed, Mr. Moir’s February 16, 2014 affidavit appended nine other affidavits and 18 statutory declarations of individuals primarily attesting to their historical knowledge of road usage and the like.
[32] The Respondents also entered the discovery transcripts of David Grace (deposed April 16, 2014) and Dinah Grace (deposed April 16, 2014). They entered expert reports prepared by Dr. White, Mr. Lumsden and Mr. Giovannetti.
[33] Dr. White is an historian and he was qualified as an expert in the field of Nova Scotia history, capable of giving opinion evidence on the subject of the historical situation of Seabright and Umlah Point.
[34] Mr. Lumsden is a photogrammetrist and he was qualified as an expert in this field, capable of giving opinion evidence on the subject of the interpretation of aerial photography.
[35] Mr. Giovannetti is a qualified Nova Scotia land surveyor and professional engineer. He was qualified to give opinion evidence on, inter alia, the subjects of the interpretation of aerial photography, mapping, surveying, distances and measuring.
Intervenor
[36] The Intervenor’s evidence consisted of three affidavits of the Province’s DTIR Acquisition and Disposal Officer, Shona Poirier, sworn February 24, April14 and June 4, 2014, with accompanying exhibits.
Onus and Burden of Proof
[37] Given my determination that this Application concerns a fresh issue, I must now go on to assess the parties’ arguments concerning the extent to which Umlah Road is a public road in the context of the evidence and law. Before doing so, it is important to establish which party carries the onus and on what standard of proof.
[38] In Silvern Estates Ltd v. British Columbia, (2007) 242 B.C.A.C. 281, 2007 BCCA 284, Finch CJBC, Donald and Smith JJA concurring, endorsed the trial judge’s interpretation of the required standard of proof for determination whether a road is a public road, and held that the correct standard was a preponderance of probabilities requiring cogent and substantial evidence:
[23] The learned chambers judge held, correctly, that the petitioner bore the onus of proving the facts necessary to bring a road within the deeming provisions of the Highway Act. He also held, correctly, that the standard of proof was on a “preponderance of probabilities which, in these circumstances, requires cogent and substantial evidence…”, citing Dunstand v. Hell’s Gate Enterprises Ltd. (1987), 20 B.C.L.R. (2d) 29 (C.A.).
[24] He said:
[15] Where, as in the present matter, a petitioner relies on historical evidence of travel and expenditure of public money to invoke the rule “once a highway, always a highway”, the evidence must establish that the road at issue is in the same location as the travelled road on which public money was spent in the past. As a declaration that land constitutes a public highway affects other interests in land, the evidence going to location must be cogent and substantial.
[emphasis added]
[39] In assessing this application I adopt the above standard. That is to say, here the Respondents have the burden of proving that the road in question is public. To succeed, they must prove their case with cogent and substantial evidence on a balance of probabilities, which I prefer to the analogous preponderance of probabilities.
Consideration of the Evidence and Law Respecting the Road in Question
Statutory Framework
[40] A roadway in Nova Scotia is considered a public roadway only if it meets the definition of a “public highway” under the Public Highways Act, R.S.N.S. 1989, c. 371, s. 1 (“PHA”), or if it has been shown on balance of probabilities to have been “dedicated” as such. Therefore, if a roadway does not satisfy the legislative requirements of the PHA as a public highway, the public can only obtain a right-of-way over private lands via the common-law doctrine of dedication, which has also now been codified in the PHA.
[41] Section 11 of the PHA defines public roadways in Nova Scotia as follows:
Except in so far as they have been closed according to law,
(a) all allowances for highways made by surveyors for the Crown;
(b) all highways laid out or established under the authority of any statute;
(c) all roads on which public money has been expended for opening, or on which statute labour has been performed prior to the twenty-first day of March, 1953;
(d) all roads passing through Indian lands;
(e) all roads dedicated by the owners of the land to public use;
(f) every road now open and used as a public road or highway; and
(g) all alterations and deviations of, and all bridges on or along any road or highway,
shall be deemed to be common and public highway until the contrary is shown.
[42] Subsection 11(c) provides that a roadway will automatically be considered a public roadway if public money was expended for opening it, or if statue labour was performed on it prior to March 21, 1953.
[43] The Applicants argue there is no probative evidence that public money was expended or statute labour was performed on the portion of Umlah Road they assert to be private prior to March 21, 1953. The Respondents state otherwise, pointing to among other evidence, a 1908 Return of Road Tax for Road Section 2, District 12 (“1908 Road Tax Return”). The Intervenor highlights the evidence of Ms. Poirier (inclusive of her affidavit exhibits of mapping, surveys and road expenditure reports) in supporting the Applicants’ position. They say the records do not support the notion that statute labour was ever performed and/or public funds ever spent on the road in question.
[44] The Respondents attached the 1908 Road Tax Return to their lawyer’s October 8, 2014, affidavit. In correspondence of the same date (addressed to the Court and copied to counsel), Mr. Moir referred to the 1908 Road Tax Return as “lynchpin”:
This evidence is lynchpin. It proves the respondents’ case without any consideration of the significant evidence proving dedication and acceptance of this road by its owners from time to time by the public. If statute labour was performed on this road prior to March 21, 1953, then pursuant to paragraph 11(1)(a) of the Public Highways Act it is “deemed to be a coming and public highway unit the contrary is shown.” Once a public highway; always a public highway – unless there has been a formal road closure which there has not been.
[45] If the 1908 Road Tax Return constitutes evidence that statute labour was performed on the Road, then (barring any formal closure of the Road) pursuant to the PHA the Road is public. Accordingly, I must now examine the 1908 Road Tax Return in the legislative and historical context, bearing in mind the evidence, inclusive of the expert evidence of Drs. Robertson and White and Messrs. Giovannetti and Lumsden.
Legislative Context
[46] On April 16, 1908, The Highway Act, S.N.S. 1908, c.4, was passed. Section 3 stated:
Every male person of more than eighteen and less than sixty years of age shall pay annually a poll tax of $1.00 for the maintenance of the public roads of the Municipality in which he resides.
[47] Under the Act, municipalities also assessed additional sums required for maintenance of public roads as determined by the amount of real and personal property an individual owned (s. 4). Pursuant to s. 9 each Municipal Council was given the ability to define, set off and alter road sections, and was to appoint a Surveyor of Highways for each road section in the municipality.
[48] Section 13 allowed a person liable for poll or property road tax to commute the cash payment by rendering service or work upon the highway by himself or a substitute upon approval by the Surveyor. Section 14 stated that in the Municipality of the County of Halifax the number of hours for a day’s work was ten. The Surveyor was required within twenty days after the specified time for commutation road work had expired to make a general return to the Municipal Clerk of each and every person who has not paid, or by labour commuted his road tax (s. 24).
[49] I have reviewed the Highway Act from the time in question. In my view, the 1908 Road Tax Return would have been used by the Surveyor to record whether or not the individuals listed completed their statutory obligations. Importantly, the Surveyor was not required by the statute to note where the work was done, only to record if the work was done and if there was any amount still owing. Accordingly, caution should be taken before assuming the 1908 Road Tax Return is evidence of statute labour being done on specific roads (here, Umlah Road) within the road section.
Historical Context/Expert Evidence Review
[50]
In asking the Court to adopt their line of
reasoning, the Applicants emphasized Dr. Robertson’s opinion and noted it is
the Respondents who carry the burden of proof in establishing whether the road
is a public road.
[51] The Applicants provided a strong critique of the Respondents’ experts’ opinions, especially the opinions of Mr. Giovannetti.
[52] The Intervenor asked the Court to examine the legislative and historical context. They argued the “best evidence” of the extent to which statute labour has been performed on Umlah Road is in the provincial road list (exhibit N of Ms. Poirier’s February 24, 2014, affidavit).
[53] In their argument, the Respondents urged the Court to prefer the opinions of their experts over that of Dr. Robertson, whose opinion they characterized as flawed. Respondents’ counsel highlighted the 1908 Road Tax Returns and 15 additional pieces of evidence as follows:
1) 1908 Faribault Map
2) 1908 Creation of Highway Board
3) 1918 to 1923 Expense Reports
4) 1921 Board Map
5) 1924 Highway Board Map
6) 1931 Aerial Photograph
7) 1934 Road Section Descriptions
8) 1935 Lindsay Zwicker Deed
9) 1939 to 1940 Road Section Descriptions
10) 1945/1946 Hydrographic Office US Navy Map
11) 1947 Aerial Photograph
12) Declarations of Local Residents
13) Dyer Tea House
14) 1951/1958 Reardon Subdivision
15) 1958 to Present Deeds to SHL Property
[54] The Respondents submit that this evidence leads to the inevitable conclusion that all of the old Umlah Road is public. In particular, they emphasize the 1908 Road Tax Returns (which will be reviewed in detail, infra) as well as nos. 8 and 12 from the above list.
[55] The 1935 Lindsay Zwicker Deed is found attached to Mr. Viehbeck’s April 16, 2014, affidavit as exhibit N. The Deed describes a property in the relevant area (deeded from Lindsay and Jennie Zwicker to Edward K. Clarke and Bernard Feetham on September 16, 1935). Within the property description are the words, “… coming out to meet the public road leading into Lindsay Zwicker’s home.” While this certainly offers an argument in favor of the Respondents’ position, I do not regard the Deed as necessarily accurate and certainly not determinative of the issue as to how the road is to be characterized.
[56] With respect to the “Declarations of Local Residents”, these are found within the affidavits and statutory declarations submitted with Mr. Moir’s February 18, 2014, affidavit. In short, I find these sworn statements to be vague and not helpful in sorting through the issues of road dedication. For example, there is no evidence tying the past traversing over the road (deposed by several of the residents) to the 1908 Road Tax Returns. In particular, none of the deponents speak to themselves or their forbears working on the relevant part of Umlah Road.
[57] Taken together, I do not regard this evidence as coming anywhere near what is required to establish dedication. In Frank Georges Island Investments v. Nova Scotia (Attorney General), supra, Justice Moir dealt with the concept of dedication at paras. 37 and 38:
[37] The branch of property law known as dedication and acceptance developed in reference to roadways passing over private lands. If the owner dedicated the roadway to the amorphous public and the public accepted the dedication, say by many of the members of a community making use of the roadway, then a public right of way could be privately enforced…
[38] According to Duff, J. as he then was, writing for the majority in Bailey v. City of Victoria (1920), 60 S.C.R. 38 at p. 53, land may be dedicated to the public if two conditions are satisfied: “first, there must be on the part of the owner the actual intention to dedicate ... and second, it must appear that the intention was carried out by the [road]way being thrown open to the public and that the way has been accepted by the public.” He followed (p. 55) Lord MacNaghten in Simpson v. Attorney General, [1904] A.C. 477 at p. 493: “that the mere acting so as to lead persons into the supposition that a way is dedicated to the public does not in itself amount to dedication”. However, it is also said that “Open and unobstructed use by the public for a substantial period of time is, as a rule, the evidence from which a trier of fact may infer both dedication and acceptance.” Brooke, J. A. in Gibbs v. Grand Bend, (1995), 26 O.R. (3d) 644 (OCA) at p. 680. Mr. Keith points out that public use is merely evidence going towards proof of the two conditions. So, in Attorney-General v. Esher Linoleum Co. Limited, [1901] 2 Ch. 647 at p. 650 the Court stressed that “user is but the evidence to prove dedication” and “what always has to be investigated is whether the owner of the soil did or did not dedicate certain land to the use of the public.” With roadways, there needs to be proof of “an actual intention on the part of a predecessor in title of the plaintiff to dedicate the road as a public highway”: Reed v. Lincoln (1974), 6 O.R. (2nd) 391 (CA) at p. 396.
[emphasis added]
[58] Accordingly, a public right-of-way may be created by dedication and acceptance. Two conditions must be satisfied to create a public right-of-way by dedication:
1. There must be an express or implied intention to dedicate; and
2. the public must accept the dedication.
[59] In Anger and Honsberger, Law of Real Property (2nd Ed.), vol 2, at page 1001 the authors note:
An owner of land may establish a public highway by the dedication and the acceptance by the public of the land for use as a highway. This is known as a common law dedication. Both the intention to dedicate and the acceptance by the public must be proved in order to establish a dedication. No formal act of adoption is required to indicate acceptance. It usually is inferred by public user of the highway.
… Open and unobstructed use by the public for a substantial time is as a rule evidence from which both dedication and acceptance may be inferred. User, however, is but the evidence to prove dedication; it is not use, but dedication, which creates a highway, as a public highway cannot be created by prescription.
The expenditure of public funds to maintain a highway is an inference of both dedication and acceptance.
[emphasis added]
[60] In Kennedy v. Hickey, 2011 NLTD120, a laneway ran along the defendant’s property. The plaintiff and his family had used the laneway for over 20 years to access a river and their property on the other side of the defendant’s property. The public had also used the property since the 1930s to access the river to fish and wash clothes. While Leblanc J found that the plaintiff had a prescriptive easement to the laneway, he was not satisfied that a public right-of-way was established, noting at para 36:
The evidence of the extent of the usage by the public and the period of time that such usage occurred is not entirely clear from the Plaintiff’s testimony or other evidence presented. The fact that members of the public crossed over the land in question to fish or to get water or even to wash clothes is not, of itself, sufficient to establish the existence of a “public highway” at law.
[emphasis added]
[61] Accordingly, while there was evidence that the laneway was used by the public and the public usage had occurred over an extended period of time (over 20 years), the court was not satisfied that there was sufficient usage for a sufficient period of time to establish the necessary intention and acceptance required to prove that dedication applied. There is, therefore, a high threshold to establish a public right-of-way over private property. Given the evidence here, I am not satisfied the Respondents have met their burden.
[62] To help assess the historical context, I turn to the expert evidence. The Applicants’ expert, Dr. Robertson, offers a detailed review of District 12 and then notes, at page 14 of his September 2, 2014, report:
It is
not disputed that Umlah Road was in use for a considerable length of time; this
present researcher has not found information, however, which would indicate
that the road beyond the “Head of Halloran’s Cove” [ie. Houlihan’s Cove] was
considered a public road. Nineteenth and Twentieth century records are
consistent in discriminating between responsibility for public roads and
permissions given for statute road labor on private roads.
[63] Dr. Robertson goes on to conclude his initial report as follows:
In summary the following observations may be made:
1. Though there are early maps indicating a roadway from the old Peggy’s Cove Road to the peninsula of Umlah Point these do not provide any documentation to confirm that the road is a public roadway without recourse having to be made to written or published documentation.
2. Documentation is consistent that public roadway responsibility for Umlah Road was only for that portion described as being from the Seabright Road to the Head of Halloran’s Cove. There is no documentation that public responsibility extended across the wetland/saltmarsh/bog portion of the Umlah Road onto the peninsula of Umlah Point.
3. The only economic activity by non-residents of Umlah Point out of Redmond(‘s) Cove are for the east side of the cove, namely the old limestone kiln (in operation at some time in the mid-1800s), and the swimming of livestock to Franks George Island from Callishaw’s Point which latter place was closer to the mouth of the Cove near Johnson’s Cove and not the head of Redmond(‘s) Cove.
4. Pre-1900 references to road work for Umlah Road appear to be contained in permissions for assigning a portion of statute road labour on private roads by the Umlah family by petition as contained in the minutes of the council for the municipality of the county of Halifax. The same records note debates on private road over public road assignment of statute road labour, and the provision that councillor’s reports on roads to council not include private roads or roads on which merely statute road work had been permitted.
I therefore state that I have come to the foregoing conclusions based on access to records consulted, and that in my professional capacity as a historian and consultant that these are my interpretations of the evidence.
[64] He buttresses his opinion that the road in question is private with his subsequent report of November 21, 2014, providing a detailed review of the type of documentation in existence, particularly referencing the road sections in District 12. At page 9 of this report he notes:
Actual records of specific roads receiving Statute Road work do exist in the form of petitions of the nineteenth century for permission to work on one’s own (read private) roads in lieu of work elsewhere. The Minutes and Reports for 1882 contained the notice from District 29 for such work: Petitions were submitted from Henry Aker and Jasper McDonald and others in District 29, who lived some distance from the main road, and wished to put their statute labor on their own roads. The same occurred in District 12 [1887]: Read Petitions from J.R. Umlah and Edmund Redmond. Also Levi Longard and others, in District 12, asking to be allowed to do their Statute Labor on their own Roads.
[65] Dr. Robertson continues at page 10 to recommend caution when reading the historical material:
It is essential in historical analysis to understand extant documentation and the pitfalls of assuming certain “facts” on a cursory reading. This excursus into Statute Road Labor returns well illustrates that aspect. Background details of the history of Statute Road Labor clarifies context, the function and process of road poll taxes, and the actual nature of required record keeping.
[66] Dr. Robertson then sets forth nine conclusions, including:
It cannot be assumed that the labor was expended on any particular road noted within the road section itself;
and
The Municipal Statute Labor document was not intended to show on which particular road statute labor was done. Instead, that document confirmed that certain persons in a road section (as defined) had in fact completed their required Statute Labor, in lieu of taxes.
[67] In his subsequent affidavits, deposed November 24, 2014, and January 7, 2015, Dr. Robertson provides further support for his conclusions. In particular, he states he has examined:
1. the 1908 Faribault map;
2. the Statute Road descriptions for District 12; and
3. other relevant documents, inclusive of the 1901 Federal Census of Canada for Nova Scotia, Halifax County – French Village Polling District.
[68] Dr. Robertson deposes that having reviewed this documentation, he is able to determine the approximate bounds of the Statute Road section markers along the Peggy’s Cove Road (now 333 Highway). He then sets forth the sections (nos. 1, 1.5, 2, 3, 4, 5, 5.5, 6, 7, 8, 9 and 10). He concludes by explaining why he has not relied on the mileage references, providing a logical explanation as to why they are inaccurate (see para 3 of each affidavit).
[69] The Respondents’ historical expert, Dr. White, provided a June 27, 2014, affidavit attaching his curriculum vitae and June 27, 2014, report. While a very interesting read of the history of St. Margaret’s Bay, I did not find Dr. White’s report to offer much on point. For example, at the close of his report, on page 13, he states:
Answers to the key questions of when and by whom a road to Umlah’s Point and to Redmond’s Cove was built were not found in the sources consulted for this report. However, from the foregoing the following facts may be inferred:
• That the close proximity of Frank George’s Island to the mainland facilitated access by many people over a period of at least 100 years (1850-1950) for a variety of purposes, including but not necessarily limited to, fishing, farming, pasturing livestock, hunting and logging.
• Access to Frank George’s Island was most easily and safely accomplished via the beach on the north side of Redmond’s Cove, because the passage between the island and the mainland is shallowest at that location.
• It may therefore be inferred that a road existed from the beach to Umlah Point road, and furthermore, that this road was used by inhabitants of, and owners of property on, Frank George’s Island, as well as others accessing the beach at Redmond’s Cove for other purposes. Those other purposes include fishing, bird-hunting, gathering eelgrass, harvesting lobsters and/or shellfish, and obtaining sand.
[70] On the basis of the above and the entirety of Dr. White’s report, I do not find his opinion offers much for the Court to consider in the context of the question of whether the old Umlah Road is public or private.
[71] Similarly, I did not find the Respondents’ expert, Paul Lumsden, offered much in assessing the critical question. He deposed a June 16, 2014, affidavit attaching his curriculum vitae and May 15, 2014, report. At the outset of his report, the expert says his report is in response to a request from Mr. Giovannetti “… to produce topographic mapping and photo analysis from various years of aerial photography spanning the years from 1931 to 2002”.
[72] Mr. Lumsden reviewed the various years of aerial photography of the Umlah Point area and then made “observations” in his report at pp. 3 and 4. At this point I should indicate that the Court ruled his opinion be restricted to his area of expertise. Accordingly, the portion of his report dealing with Mr. Lumsden’s view of whom may have traveled Umlah Road was struck.
[73] Having reviewed the entirety of Mr. Lumsden’s report and accompanying photographs, I do not find it offers any assistance in determining the issue before the Court.
[74] The Respondents’ third expert, Mr. Giovannetti, is both an accredited Nova Scotia land surveyor and a professional engineer. His affidavit deposed December 19, 2014, sets out his education, training and experience. The affidavit also refers to his report (enclosing various exhibits, including Mr. Giovannetti’s curriculum vitae) of the same date, confirming he addressed six questions. The questions were asked by Respondents’ counsel and are set forth at page 2 of Mr. Giovannetti’s report:
1. The degree to which the roads indicated on the Jackson Sheet and the 1908 Faribault map is consistent or inconsistent with the 1931 aerial photography.
2. The location where one mile ends assuming one travels westward along the roads indicated, starting at the intersection between the main highway and the southerly portion of the road indicated.
3. The location where one half mile ends assuming one travels westward along the roads indicated, starting at the intersection between the main highway and the southerly portion of road indicated.
4. The locations of any swellings and structures lying along any of the roads in the first half-mile leading from the main highway.
5. The degree to which the statements contained at paragraph 3 of Dr. Robertson’s affidavit is accurate.
6. Where each successive mile ends on the Faribault map referred to in Dr. Robertson’s affidavit, beginning at the location of the southerly of the two Smelt Brook Bridges as indicated and traveling northward.
[75] The expert goes on to address each question in the body of his report. Through this discussion, he offers support for the Respondents’ position that the entirety of Umlah Road should be regarded as a public road. Unfortunately, in addressing the posed questions, I find Mr. Giovannetti strayed unnecessarily into speculation and an unfounded critique of Dr. Robertson’s research and opinions. For example, at page 6 and 8 he asserts:
According to Historical Land Information at the Nova Scotia Department of Natural Resources, in 1864 Ambrose F. Church was commissioned by Nova Scotia Legislature to create maps for each of Nova Scotia 18 Counties. The scale of these maps were not sufficient for this report however, it is common knowledge by many Nova Scotia Land Surveyors, that Church had used an odometer attached to the side of the horse drawn cart to provide the necessary mileage for mapping of the many residences. As such the direct read of such a device would be to the 1/10 of a mile with possible estimations to 0.05 of a mile that could be made to achieve greater accuracy.
Based on the technology in and around 1908 in the production of the Return of Road Tax sheets, mileage by the Road Masters could have been achieved by pacing or by the odometer. Therefore the range of accuracy could be anywhere from 1/100, one foot in a hundred feet, 53 feet in one mile by pacing, to the nearest 1/10 of a mile or better by use of the odometer or mileage records used on a horse drawn carriage.
…
The opinion of Dr. Robertson as contained in 3a appears to be an unsubstantiated opinion formed without fact or analysis of the correlation to reliable road section markers and quoted distances. Distances in 1908 could have easily been achieved by pacing and rounded to the nearest ½ mile. It is likely that the road markers chosen to and from residents were at or near the ½ mile or 1 mile etc., as quoted in the road sections.
[76] Additionally, I am of the view that Mr. Giovannetti strayed into areas of advocacy, as evidenced by his comments at p. 9:
The lack of any mileage recorded on any return was considered to be randomly provided and not considered to be arbitrary. For Dr. Robertson to have the opinion that the exact distances seem arbitrary in the same way the route markers were arbitrarily chosen as reference points is a poor comment that is not understanding of the manner of the intent and purpose of the method of describing the road sections.
[77] Further, I found that upon review of Mr. Giovannetti’s report, he tended to over-reach so as to fit his conclusions with the Respondents’ theory. Indeed, I am of the view Mr. Giovannetti placed too much reliance on the 1908 Road Tax Report, without examining where the road work was performed.
[78] Finally, when I considered Mr. Giovannetti’s opinion within the context of Dr. Robertson’s review of the Road Sections (discussed at paras 65 and 67, supra), I was struck by the unexplained gaps in Mr. Giovannetti’s analysis. This was ably demonstrated by Mr. Tupper when in his closing submission he referred to an enlarged 1908 Faribault Map of the area. In my view, this map vividly showed at least three significant gaps along the Peggy’s Cove Road. These gaps represent road sections which are not accounted for in Mr. Giovannetti’s analysis.
[79] In contrast, Dr. Robertson provided a very thorough review. For example, the historical context for statute labour is set out in the November 21, 2014 report. Dr. Robertson notes that statute road labour was used to expand and maintain provincial roads.
[80] The Applicants’ expert reviewed the Road Returns for all of District 12 (which are included in the appendices of his report). He noted that the road section descriptions use landmarks to define the boundaries of the section in general and not on any particular road beyond the (now) 333 Highway. With respect to District 12, in 1908 the descriptions appear to reference landmarks along the old Peggy’s Cove Road. Dr. Robertson identified many of the landmarks referred to in the descriptions of the road sections within District 12. The map attached as an exhibit to his November 24, 2014, affidavit demonstrates the approximate locations of the landmarks along the road.
[81] In deciding which expert to be preferred in this case I am mindful of the remarks in Canadian Civil Procedure Law, 2d edn. (LexisNexis, 2010), where Abrams and McGuiness give general guidance on how expert evidence may be evaluated:
§16.238 In deciding whether to accept the evidence of one witness or another, or to draw a conclusion of its own based on the evidence of both (or all) the experts, the court’s responsibility is to consider the assumptions that each witness has made, the extent to which those assumptions appear consistent with the other evidence before the court, the source of any data on which the opinion is based, the apparent impartiality of the expert, the apparent clarity and reason of the analysis that has been applied to that data, the extent (if any) to which other pertinent data has been ignored, the question of which theory seems to be most in accord with the prevailing opinion within a given body of knowledge, and the overall apparent general rigour of each expert’s approach to the issues considered. If, after such a careful review, the opinion of one expert seems more reliable than another, then the court should rule on that basis.
[82] At the end of the day, having carefully reviewed the expert opinions, I find Dr. Robertson to be more reliable than the Respondents’ experts and I thus adopt his rationale in assisting with my finding that Umlah Road is not a public road beyond 0.5 miles (or 0.8 km) from Highway 333.
Evidence of Shona Poirier
[83] After reading and listening to the evidence and argument and sifting through the competing evidence, I am of the emphatic view that the Umlah Road is private after the first half a mile off the Peggy’s Cove Road. I make this finding with particular reference to the opinion of Dr. Robertson and evidence of Ms. Poirier who were both tested through cross-examination. For the reasons outlined, I prefer the expert evidence of Dr. Robertson to the three experts who gave written evidence on behalf of the Respondents. As for Ms. Poirier, I find she gave balanced affidavit and oral evidence from her vantage point as an impartial civil servant charged with overseeing the file concerning, inter alia, the road in question.
[84] In particular, I find Ms. Poirier’s evidence at para 17 of her February 21, 2014, affidavit to be persuasive:
The 1951 road list shows Umlah Road as owned and maintained by the DTIR with a length of 0.5 miles (0.8 km), which is roughly where the Head of Houlihan’s Cove is. A copy of this road list is attached as exhibit N.
[85] Scrutiny of exhibit N reveals Ms. Poirier’s statement to be accurate and she was not shaken on cross-examination. The import of Ms. Poirier’s statement on my critical finding is further understood when one appreciates that after 0.8 km Umlah Road branches into CHL. Later in Ms. Poirier’s February 21, 2014, affidavit she confirms the Province does not maintain CHL. It is therefore not surprising that she deposes (para 8, March 27, 2014, affidavit) as follows:
It is my opinion that Umlah Road, listed under authority 503, is a public highway for a distance of 0.8 km from Route 333, until just past the beginning of Captain Hemlock Drive. Attached as Exhibit A is the current map of the area generated for Property Online. The approximate length of the public portion of Umlah Road has been highlighted.
[86] Ms. Poirier goes on to state the basis for her conclusion, which I find persuasive, in para 9 of her March 27, 2014, affidavit:
This conclusion is based on the following sources:
a) 1951 provincial road lists that was attached as Exhibit N of my Affidavit of February 21, 2014. This road list includes under authority 503, a listing for Umlah, Main Rd at Seabright to Head Halloran’s, for 0.5 miles. This is the first road list that includes the distance that was maintained by DTIR.
b) This description is consistent with the expenditures found in 1923, 1923, 1926-1929, 1931, 1932, 1934-1937 & 1941 expenditure reports, attached as Exhibit L of the February 21, 2014 affidavit.
c) TIR Board Map from 1921 identifies Peggy’s Cove Road as French Village Road, and one road only at the location as what appears to be Umlah Road and is identified as Hubleys Road. A copy of this TIR Board Map is attached as Exhibit C of my February 21, 2014 affidavit. This reference to Hubley’s Road coincides with the description in the Highway Expenditure Report for 1921 as well, included with Exhibit G of my February 21, 2014 Affidavit.
d) The road descriptions found in the expenditure reports in Exhibits G, H, I, J and K of my February 21, 2014 affidavit refer to the same general area, but there is insufficient evidence to identify what length exactly was being maintained.
e) I reviewed the Crown Grant at the subject location. My research did not identify any road identified in the Crown Grant and therefore it does not satisfy Section 11(1)(a) of the Public Highways Act.
f) My review of the material indicates that at no point since 1953 has the Department of Transportation and Infrastructure Renewal (or its predecessors) accepted (formally or otherwise) the Umlah Road as a public highway beyond the distance indicated in the 1951 road list.
[87] She adds (para 11 of her March 27, 2014, affidavit) that there has never been a road closure of the highway in question. Once again, I found Ms. Poirier’s evidence to be of assistance in reaching my decision. It was without any bias and offered a balanced overview of the road in question.
Conclusion
[88] For the reasons outlined I find that the portion of Umlah Road in issue is private. For certainty I will ask Mr. Tupper to prepare an Order with, inter alia, the following terms:
…AND UPON IT APPEARING that the Right-of-Way which is the subject of this Order (“Right-of-Way”) is the Right-of-Way known as Captain Hemlock Lane and Tern Lane on Umlah Point, Nova Scotia, and which is granted over property owned by Joel Shannon situated at 24 Lanyard Lane, Seabright, Nova Scotia, and bearing PID No. 514760 (“Shannon Property”);
AND UPON IT APPEARING that the properties in this Application benefitted from the Right-of-Way (“Benefitted Properties”) are those properties with an express or implied grant of use of the Right-of-Way, and include the properties located at the following civic address:
a) 280 Captain Hemlock Lane owned by David and Dina Grace bearing PID No. 512707;
b) Lot B7-A1X, Lot B-2 and Lot C, Captain Hemlock Lane owned by Gower Holdings Limited, bearing PID Nos. 415075110, 40872541 and 0061453; and
c) 248 Captain Hemlock Lane owned by the Respondent Seabright Holdings Limited, bearing PID No. 00613513.
IT IS HEREBY ORDERED AND DECLARED:
1. The Shannon Property is not burdened by a Right-of-Way in favour of the Respondent, Frank Georges Island Investments Limited.
2. The Right-of-Way is restricted in use to that of a private road, only for the limited purpose of access to the Benefitted Properties, and, incidentally properties beyond, and only in the private capacity of the Benefitted Properties. For greater clarity, the owners of the Benefitted Properties are expressly prohibited from using the Right-of-Way to transfer goods and/or persons to adjacent or nearby properties for the benefit of non-benefitted parties.
[89] Due to my ruling on res judicata and issue estoppel I decline to hold any of the Respondents liable for trespass on the Shannon Property and/or for their past excessive use of the right-of-way. Given the within decision any future such transgressions will obviously be met with a different outcome.
[90] If the parties are unable to agree on costs I will receive written submissions within 30 days of this decision.
Chipman, J.