NOVA SCOTIA COURT OF APPEAL
Citation: Nova Scotia (Attorney General) v. Brill, 2010 NSCA 69
Date: 20100909
Docket: CA 313430
Registry: Halifax
Between:
The Attorney General of Nova Scotia
Appellant
(Respondent by cross appeal)
v.
Alan R. Brill
Respondent
(Appellant by cross appeal)
and
Nova Scotia Barristers’ Society
Intervenor
Judges: Oland, Hamilton and Fichaud, JJ.A.
Appeal Heard: May 31, 2010, in Halifax, Nova Scotia
Held: The appeal and cross-appeal are dismissed, with the Province to pay costs of $5,000 plus disbursements to Mr. Brill for the appeal, per reasons for judgment of Fichaud, J.A.; Oland and Hamilton, JJ.A. concurring.
Counsel: Mark V. Rieksts, for the appellant The Attorney General of Nova Scotia
John A. Keith and Amy MacGregor, for the respondent Alan R. Brill
John T. Rafferty, Q.C. and Catherine Walker, Q.C., for the intervenor, Nova Scotia Barristers Society
Reasons for judgment:
[1] If no initial Crown grant of land is locatable today, but the land is subject to a current chain of paper title, then may the paper owner establish title?
1. The Proceeding Under Appeal
[2] Mr. Brill sued under the Quieting Titles Act, R.S.N.S. 1989, c. 382 (QTA) for a certificate of title to Bella Island in Mahone Bay. His statement of claim named the Attorney General of Nova Scotia (“Province”) , as required by s. 4(1) of the QTA, and claimed title against the Provincial Crown based on “a chain of title which is more than 200 years”. He traces his title back to a 1791 warranty deed from Michael Beck and his wife Mary Elonora Beck to George Eisenhower. As support, Mr. Brill cites the Marketable Titles Act, S.N.S. 1995-96, c. 9 (MTA). Mr. Brill alleges alternatively that, before 1791, the Crown had granted the land to the Becks’ predecessor in title. He also claims title by adverse possession under the Limitations of Actions Act, R.S.N.S. 1989, c. 258 (LAA), relying on his chain of title to assist.
[3] The Province’s Defence pleaded that the Crown had never granted Bella Island, and Mr. Brill’s chain of title does not diminish the Crown’s interest. The Province argued that Mr. Brill’s chain of title from 1791 is deficient at several junctures, the latest in 1969, and denied the adverse possession claim.
[4] Mr. Brill filed an interlocutory application, under both the former Civil Procedure Rule 25.01 and s. 9(5) of the QTA, asking that the court determine “the specific question of law ... whether the 60-year Common Law Rule for establishing good and marketable title is binding upon the Crown”. Mr. Brill’s application also requested, by summary judgment, a certificate of title to Bella Island. In support of the summary judgment application, Mr. Brill cited his chain of paper title as presumptive or constructive possession for adverse possession under the LAA.
[5] Justice Coady of the Supreme Court of Nova Scotia heard the interlocutory application in chambers on September 11, 2008, and issued a written decision on November 7, 2008 (2008 NSSC 330). This appeal is from that decision.
[6] The judge held that the 60 year common law rule for marketable title had been replaced by a statutory 40 year rule in s. 4(1) of the MTA, as amended by s. 115(7) of the Land Registration Act, S.N.S. 2001, c. 6 (LRA):
4 (1) A person has a marketable title at common law or equity or otherwise to an interest in land if that person has a good and sufficient chain of title during a period greater than forty years immediately preceding the date the marketability is to be determined.
He held that the 40 year rule applied to the Crown:
[21] The objective of the act was to reduce the chain to 40 years “in the interest of all present and future landowners.” The crown is not excluded from the 40 year period. The purpose of the Act is to dispose of the 60 year common law rule and to replace it with a 40 years statutory scheme.
Other than saying the “Crown is not excluded”, he did not explain how, in his view, the 40 year rule impacted the title issue.
[7] The judge declined to issue a certificate of title by summary judgment. Though he appeared to accept the principle of constructive possession, and characterized Mr. Brill’s case as “plausible”, he found there were issues to be tried. He said:
[31] Obviously summary judgment succeeds on factually clear cases and a party should not be deprived of a trial unless such exists after hearing from both sides of the case. It is a remedy to be ordered cautiously.
. . .
[37] In light of the above, I cannot conclude that there is “no arguable issue to be tried” respecting the chain of title to Bella Island. I am of the view that there are plausible, even compelling, explanations. However, they are not sufficient to support this application for summary judgment.
. . .
[40] I do not have the kind of evidence before me that conclusively establishes actual and continuous possession of Bella Island. Consequently this argument in favour of summary judgment cannot succeed.
[41] In light of the conclusions herein, I am unable to grant a certificate of title. I am prepared to sign an order setting this matter down for an expedited trial.
2. Bella Island - Title Background
[8] There is an evidential context to the issues on this appeal, though the chambers judge made no specific findings on these matters. My recital of this evidence is background for this appeal only, and of course does not preclude the eventual trial judge from making any findings of fact the trial judge considers appropriate.
[9] Dr. Brian Cuthbertson is an historical expert whose affidavit was submitted by Mr. Brill. He was not cross-examined. Dr. Cuthbertson’s report, attached to his affidavit, recites the following events surrounding the founding and settlement of the Township of Lunenburg, including Bella Island.
[10] The Township of Lunenburg was settled during the 18th century. In 1751, the Board of Trade, a creation of the British Crown and reporting to the Privy Council, declared its intention to recruit immigrants from Europe. The Board of Trade authorized an agent to promise immigrants a grant of 50 acres of land. For every dependent woman or child there would be an additional 10 acres. In 1753, two flotillas of immigrants, numbering 1,453 settlers, arrived in the Lunenburg area.
[11] Dr. Cuthbertson’s report describes the process for assigning parcels of land to the immigrants, how Nova Scotia’s House of Assembly dealt with concerns about title, and the initiation of a Registry:
2. (a) On 16 May 1753, those foreign Protestants intending to settle in Lunenburg were ordered to assemble on 21 May on the Halifax parade and there to draw their lots of land. Lunenburg town was already “delineated upon paper”. Although the procedure remains uncertain the casting of town lots took the form of drawing cards from a pack in which card had been marked with the number of one of the lots of land within the projected town. Once the settlers arrived in Lunenburg, Surveyor General Charles Morris and his assistants laid out the town lots using numbered stakes to point out to the lots for which the settlers had drawn before departure in Halifax. During the fall of 1753, winter of 1753-54 and the spring and summer of 1754, the work proceeded in laying out the 30 acre farm lots. The lots were laid out in ranges; these ranges were named and the individual lots numbered in their respective ranges. Once the survey work was completed, the settlers drew for their farm lots, similar to that employed for the town lots.
(b) Lunenburg’s town plan and the procedures for allotting lots had followed those for the settlement of Halifax in 1749. The drawing of lots had taken place on 8 August 1749 and were recorded in a registry book, which was considered evidence of title and possession. Later there was apparently some concern as to whether those receiving lots had them in fee simple. As a result, the Nova Scotia House of Assembly passed legislation entitled an Act for encouraging the Improvement of Lands in the Peninsula for Halifax, and further quieting of Possessions, 1760 Geo. II, cap. IV, in which section III stated:
And whereas it may be doubtful, whether the Registry of Lots of Land (granted simply as Lots without any formal Conveyance under the Seal of the Province) within the said Peninsula of Halifax, or elsewhere in this Province, import a Conveyance in Fee Simply [sic] to the Persons in whose Names the same are registered: For the quieting such Persons in their Possessions, Be it Enacted by the Authority aforesaid, That all and every Person, having a Right to claim by Virtue of such Registry (excepting the Persons absent or neglecting to improve as aforesaid [ )], shall be entitled to a full and absolute Estate in Fee Simple, in the Lands so registered, any want of Form in the said registry notwithstanding.”[italics in statute]
This legislation served as confirmation that lands assigned by drawing for lots had been granted in fee simple, not only for Halifax and Lunenburg townships, but also for the New England Planter townships that were being established as a result of Governor Charles Lawrence’s Proclamation of 11 January 1759.
(c) As in the case for Halifax, at Lunenburg a Registry Book of Lots was kept to record the assignment of lots. In his History of the County of Lunenburg (1895), Mather Byles DesBrisay states (page 44) that the first deed executed at Lunenburg was dated December 3rd, 1753 in which the grantor’s right and claim to a garden lot was recorded. Not until 1760 did Lieutenant Colonel Patrick Sutherland, Commandant and Chief Magistrate at Lunenburg from 1753 to 1762, certify in the Registry Book that the farm lots had been “Examined and approved by me”. Thus, the Registry Book at the time of Sutherland’s certification was the final authority for the allocation of 30 acre lots within Lunenburg Township.
Earlier, in November 1959, Leonard Christopher Rudolf wrote an endorsement on the first index book in the Registry of Deeds in Bridgewater: “Begun 20 November, 1759 and continued to March 31, 1775, containing Deeds of Sale, Conveyances ... by Leonard Christopher Rudolf Esq. First Deputy Registrar in said County”. Whether all conveyances of land between 1753 and November 1759 were officially recorded is unknown. In Registry of Lots there are entries as late the 1780s so it was still in use.
[12] Dr. Cuthbertson’s report describes in some detail the historical record respecting ownership of Bella Island. To summarize, John Beller arrived in Lunenburg in 1753, apparently was to receive land, and by his name in the Registry Book there is a marginal note “to have an isld”. In the 1750s the islands around Lunenburg were unnamed. So the Crown adopted a numbering system. Around 1758 or 1759, Nova Scotia’s new Surveyor General’s Office created “A List of the Islands in Mahone Bay”, and described the island assigned to Mr. Beller as Island Number 19. Island 19 is now known as Bella Island. “Bella” may have been a corruption of “Beller”. It is unclear how the island was conveyed, if at all, to Mr. Beller or to a successor in title. Dr. Cuthbertson expresses the view that the island was reassigned to Jacob Meurer after Mr. Beller left Lunenburg, and on Jacob Meurer’s death passed to Mr. Meurer’s daughter, Mary Elonora (married name – Beck). Bella Island was conveyed by a 1791 deed from Michael and Mary Elonora Beck to George Eisenhower, beginning the chain of paper title.
[13] Dr. Cuthbertson’s report discussed the 1760 statute of the Nova Scotia Assembly, governing escheat to the Crown of land assigned to settlers:
2. (e) The Crown retained a right to re-take and to re-assign lands originally assigned or granted if proprietors had vacated the land or failed to make improvements within three years from the date of the assignment. In the Lunenburg Township Registry Book, there are entries where originally assigned lots of various types – town, garden, 30 acre and 300 acre lots – were re-taken and re-assigned because the original proprietors had vacated the lands or failed to make any improvements.
In 1760, the Nova Scotia Assembly passed an act (34 Geo. II, c. 8) to establish the Courts of Escheat and Forfeitures. The act enabled the Crown to recover lands when the conditions of a grant had not been fulfilled. Under the act, once a jury of twelve men acting under a Commissioner of Escheats and Forfeitures had made an inquest and submitted its return to the office of the Register of Chancery, the Governor in Council might escheat and re-grant lands on the basis of its determination.
There is no record of any escheat proceedings for Bella Island.
[14] Dr. Cuthbertson’s report also referred to two general grants of the land in Lunenburg Township, the first in 1765 and the second on June 30, 1784:
3. In 1765, a grant of the whole of Lunenburg Township “for and in behalf of the inhabitants, passed the seal of the province”, but from various causes, not explained, it was never registered. Its preamble states that it had been made out when “the location of the whole [of the lots had been assigned] was completed”. If the grant had been registered then all the proprietors listed would have had full title to their assigned lands. The most likely reason that the grant was never registered was because of opposition from Lunenburg proprietors fearing that the government wanted to use it to collect quit-rents (i.e. an annual land tax to be paid to the Crown beginning ten years after receiving their lands).
Likely to ensure no lands already occupied in Lunenburg Township were granted to provide lands for the thousands of Loyalists arrived in Nova Scotia, a Lunenburg Township grant was finally executed, dated 30 June 1784. Other than giving the boundaries of Lunenburg Township and the terms of improvements, the grant did not follow the usual township grants in listing the names of 215 proprietors with the shares they held; nor did it give metes and bounds as in individual grants. The 1784 Lunenburg Township grant listed the proprietors with each given acreages of varying amounts. Since 1753, the settlers had been purchasing and selling originally assigned lands and the Deputy Registrar had records of these transactions. It seems, according to Bell, that he made calculations for each of the 215 proprietors from these records and “advised the government in terms of total acreages now rightfully climbable” by each of them”[sic]. As Johann Meurer had died in 1778 and Mary Elonora Beck had already acquired Beller’s Island as part or all of her dowry, then the island’s 26 acres would have been part of the 135 acres listed for Michael Beck in the 1784 grant, and which he was to sell in 1791.
[15] Karen Chamberlain is a planning technician with the Province’s Crown Land Information Management Center. Ms. Chamberlain’s affidavit attaches an “Index Sheet No 47 Lunenburg County”. The Index Sheet says it was “compiled 1948” by the Department of Lands and Forests - Nova Scotia. Ms. Chamberlain’s affidavit states:
6. THAT attached hereto and marked as Exhibit “B”is a true copy of Index Sheet No. 47 for Lunenburg County. Bella Island is designated number 19 in Exhibit “B”. Based upon my review of Index Sheet No. 47, I am informed and do verily believe that Bella Island is not shown as an island granted by the Crown as there is no book and page number, indicating a grant of Bella Island out of the Crown.
7. THAT attached hereto and marked as Exhibit “C” is a true copy of the List of Islands in Mahone Bay, found in Description Book, at Libre 1, Folio 44. Based upon my review of Exhibit “C”, and the references to other islands included in the List of Islands, I am informed, and do verily believe that Bella Island (Island No. 19 in the List of Islands) is shown as being assigned to John Bella, but not granted to John Bella. Comparing this to other islands shown in the List of Islands as being granted, and a review of the documents showing these other islands as being granted, it is my opinion, and I do verily believe, that Bella Island is not an island granted from the Crown.
8. THAT I have reviewed all documents at the Crown Land Information Management Centre, and can find no documents which confirm a grant of Bella Island by the Crown.
[16] Ms. Chamberlain’s discovery evidence was entered into the application record. In her testimony she agreed the current Bella Island was Island Number 19 on the List of Islands in Mahone Bay from the late 1750s. She said her view, that Bella Island was ungranted by the Crown, was based on her review of the Crown’s documentation. She was asked about the thoroughness and accuracy of the Crown’s documentation respecting Crown grants in the late 1700s, topics I will discuss later (¶ 108-111). Here I will just quote Ms. Chamberlain’s testimony:
Q. Okay. Now, is it true to say, to your knowledge, that there are probably, for reasons of the passage of time, but, in any event, there are gaps in the Crown’s records with respect to grants that were approved and how they were approved and council minutes and that sort of thing?
A. There could be.
Q. Yeah. Well, there could be, but are you aware that there are, that there are grants in which you don’t have council minutes, for example?
A. Well, we don’t keep council minutes.
Q. Okay. Where are they kept, do you know?
A. Legislative library, public archives.
Q. Do you know for sure or are you just . . .
A. No, I’m just . . .
Q. . . . guessing?
A. . . . thinking.
Yeah. Okay. So if there are gaps in the Crown’s records in terms of council minutes, that’s not an issue that you researched or would have any knowledge of?
A. No.
Q. Is that correct?
A. Yes.
Q. Okay. And if there are - - and when a grant was created, the Crown has very few of the original grants left, isn’t that correct, the original sheepskin grants?
A. Well, they would have been given to the grantee.
Q. Right. And what the Crown kept was only a record of what was given to the grantee, correct?
A. Yes.
Q. Okay. So the Crown has very few original grants left, correct?
A. Yes.
Q. All the Crown has left are copies that would have been made of those grants, that would have been sort of written down by a scribe?
A. Yes. Yes.
Q. Okay. And are you aware of any gaps in the - - the - - or any problems with the actual transcribing of grant documents?
A. I would say errors could have occurred.
. . .
Q. And are you aware of any instances in which the record, the Crown grant record, has been lost but there is extraneous evidence that shows an intention and an actual - - in fact, that the Crown - - that the document was - - or the land in question was actually granted, even though the Crown grant may have been lost through the midst of time or through some inadvertent destruction?
A. There have been some instances where our office did not have copies of the grants.
. . .
Q. Okay. So far as you can recall, the only instances, that you remember at least, is instances where the Crown may have lost the original grant but the claimant had a copy of the grant?
A. Or if another individual came forward with a grant.
Q. With an actual grant?
A. Yes, not necessarily the claimant. I know that - - I know for sure there were four grants down in Shelburne County that we did not have record of, and it was discovered that the grants did exist.
Q. The actual documents existed?
A. Yes.
Q. Okay. And people had those documents?
A. Yes.
Q. But from the Crown’s perspective, if there are gaps in the Crown’s records, that’s something for somebody else to prove, and the grants - - the Crown’s initial position is that at least their records are comprehensive. So, in other words, if you can’t find a grant in the documents, in your own documents, then the Crown’s position, it’s ungranted land?
A. Yes.
Q. And so what you look for is you look for a document that you can tie to the land in question similar to what we see at tab A, which is a grant document?
A. Yes.
Q. Okay. And if you can’t find a document like we see at tab A, then your conclusion is ultimately that there is no grant, right?
A. Yes.
Q. So even if you see, for example, a document that we see at tab C, which is the list . . .
A. Right.
Q. . . . which shows an intention ultimately to grant, if you can’t find subsequent evidence that the grant was ever actually issued, you would presume no grant?
A. Right.
Q. And if you see a map that has some evidence of an intention to grant, you would not accept that evidence as confirming a grant unless you also see an actual document like we see at tab A, is that correct?
A. Correct.
Q. Okay. So ultimately what it comes down to is the Crown trying to find a document similar to what we see at tab A?
A. Yes.
Q. Okay. And if that document isn’t found, then the conclusion is there is no grant?
A. Right. However, if an outside source brought a grant into our office, then we would consider a grant such as the . . .
. . .
Q. Okay. Now, when it says here - - let’s just take the first name. Do you see where it says, “I give, grant and confirm unto John Creighton, Esquire, 800 acres”? Do you know what those - - where those 800 acres are specifically?
A. No.
Q. Okay. And so you don’t know what they include, that land?
A. No, I don’t.
Q. Okay. And have you added up all the acreage in this grant?
A. Have I?
Q. Yeah. Has anyone, to your knowledge?
A. I believe it was done years ago, and it falls short of the - - I don’t know if it’s 100,000 acres.
Q. Yeah. It doesn’t match up, does it?
A. No.
Q. So the acreage that - - if you add up all the acreage - - to your knowledge, if you add up all the acreage of all of the grantees, it falls short of what the actual amount of land included in the grant here is, doesn’t it.
A. Yes.
Q. So - - and I guess what I’m trying to say is there’s more land included in the grant than the sum total of all the people getting grants, isn’t there?
A. Within what’s described there.
Q. Right. Right. So within - - based on what we can read here, if you add up all the people that are getting land and the amount of their acreage, that number, the total, is less than the total amount that’s included within this grant, correct?
A. Yes.
Q. And to your knowledge, has anyone ever tried to explain where the missing land is and who owns the missing land?
A. No. It’s my understanding that once a township was created, that there were commissioners appointed, and they were responsible for the allotting of the land.
Q. For allotting the land?
A. Allotting.
Q. Additional lands?
A. Yes.
Q. But you don’t know - - I guess my question is, you don’t know, to the extent there’s missing land, you don’t know where that missing land is or who owned that missing land?
A. No.
Q. That’s correct?
A. Correct.
3. Issues in the Court of Appeal
[17] As mentioned, the chambers judge held that the 60 year common law rule for marketable title was replaced by the MTA’s 40 year statutory rule and that “[t]he Crown is not excluded from the 40 year period”. He declined to order the issuance of a certificate of title by summary judgment because there were triable issues.
[18] The Province applied for leave to appeal the interlocutory ruling. The Province’s two grounds of appeal are that the judge erred by (1) ruling that the Crown was bound by the 40 year rule under the MTA and (2) even considering whether or not the Crown was bound by the 40 year rule in the MTA.
[19] Mr. Brill applied for leave to cross-appeal. His grounds, to paraphrase, are that the judge erred by (1) ruling that the 60 year common law rule for marketable title has been replaced by the MTA’s 40 years, and (2) denying Mr. Brill a summary judgment with an order for a certificate of title. Mr. Brill’s submissions encompass both the principle of marketable title and presumptive or constructive possession, each triggered by a chain of paper title.
[20] Because of this appeal’s importance to conveyancing practice, the Court gave notice to the Nova Scotia Barristers’ Society (NSBS). The NSBS intervened and filed a comprehensive factum. After the NSBS’ factum and before the hearing, the Province and Mr. Brill filed supplementary facta responding to the NSBS.
[21] Before the NSBS’ factum and supplementary facta of the Province and Mr. Brill, the clerk of the Court, at the request of the panel, wrote to counsel to request that counsel be prepared to address the effects of provisions in the LRA and LAA. The factum of the NSBS and supplementary facta of the Province and Mr. Brill addressed those points.
[22] At the hearing, counsel for the Province, Mr. Brill and the NSBS further discussed the issues related to the MTA, LRA, LAA, and the common law principles of marketable title and presumptive or constructive possession from a chain of title. At the hearing, a significant component of the Province’s oral submission on the common law principles appeared to lack authoritative support. So, at the Court’s request, the parties filed post-hearing submissions on that point, with an opportunity to cite further authorities, followed by written replies to those post hearing submissions. At the end of the day, the Province had submitted five facta, Mr. Brill four, and the NSBS three, in what was a superbly argued appeal from all sides.
[23] Mr. Brill’s interlocutory notice cited the former Rule 25.01 and s. 9(5) of the QTA. There has been authority that generally an issue of law should not be determined by interlocutory application under the former Rule 25.01 unless the parties have filed an agreed statement of facts. There was no agreed statement of facts here. Nonetheless, the chambers judge determined the legal issue and no ground of appeal suggests inappropriate use of Rule 25.01. So I will not take the absence of the agreed statement of facts as an impediment to dealing with the merits of the legal arguments submitted on this appeal.
[24] I will distill the submissions into three issues.
1. Did the judge err by even considering whether or not the MTA’s 40 year rule applied to the Crown?
2. Did the judge err in his rulings that (a) “the Crown is not excluded from the 40 year period” for marketable title, and (b) the 60 year common law rule for marketable title no longer applies? These 40 and 60 year periods relate to chains of paper title. With this issue I also will discuss the judge made presumptions from a chain of title and conclude with the effect of the LRA.
3. Did the judge err by denying to Mr. Brill a summary judgment with a certificate of title?
The first issue is the Province’s second ground of appeal. The second issue includes the Province’s first ground of appeal, Mr. Brill’s first ground of cross-appeal (along with some of Mr. Brill’s submissions in support of his summary judgment application) and the NSBS’s submissions. The third issue comprises Mr. Brill’s second and third grounds of cross appeal.
4. Standard of Review
[25] The first issue is a challenge to the procedural fairness of the chambers proceeding, for which the Court of Appeal effectively is a tribunal of first instance. The second issue is legal, for which the standard of review is correctness. I will discuss the standard of review on an appeal from a summary judgment ruling when I come to the third issue.
5. First Issue- the Judge’s
Consideration of the 40 Year Rule
[26] First, the Province’s preliminary objection. The Province’s Notice of Appeal says that the judge erred by even considering whether or not the 40 year rule applied to the Crown. That is because Mr. Brill’s interlocutory notice asked for a ruling on the “specific question” whether the common law 60 year rule applied. The Province contends that, once the chambers judge answered “no” to the 60 year rule, he should have signed off. The Province’s factum submits that the chambers judge’s consideration of the 40 year rule “was a denial of fundamental justice, specifically the principles of audi alteram partem”.
[27] I reject the Province’s argument.
[28] The Province injected the MTA’s 40 year rule into this case. The Province’s oral submissions to the chambers judge were based on ss. 4(1) and 9 of the MTA:
Section 4(1) doesn’t say a person has marketable title at common law and equity except for the Crown. The Crown ‑‑ for the Crown, the marketable title provision, the common law marketable title provision of 60 years still applies. There’s no wording like that in here. There’s nothing to indicate that. So we have to take the wording as it is. It doesn’t make any sense to put in at common law if it’s not supposed to apply to either change or substitute for the common law, the 40 year rule. And it really doesn’t matter which way you ‑‑ you look at it. If you ‑‑ if you ‑‑ you can say it’s a modification. I would ‑‑ I would argue that it’s, in fact, meant to be a complete substitution for the common law rule, and the effect of it is the same. It subsumes the common law rule, changes the common law rule, brings it into the act, makes the ‑‑ makes the Crown not subject to it.
. . .
Internally, the act itself maintains what the Crown’s submission is, that there ‑‑ that the ‑‑ that the marketable title period at common law, which is now a 40 year period ‑‑ so if you take that to mean that it’s amending that or that it’s replacing the common law, same thing, it still brings it into the act. The act doesn’t apply to the Crown interest to make it subject to any time period, to any marketable search period.
. . .
So it’s clear here in this situation, we had a common law rule 60 years. That’s been changed. And the second clear thing from the act is that that doesn’t apply, this marketable title period does not apply to the Crown.
. . .
So this ‑‑ this also ‑‑ the whole argument advanced by the applicant is that the 60 year rule is still out there. Well, the 60 year rule isn’t out there. It’s been ‑‑ it’s been subsumed. It’s been ‑‑ it’s been extinguished by the act, and the act also indicates what ‑‑ what that means for the Crown interest. I just ‑‑ I just point that case out so Your Lordship knows that ‑‑ that this wording is a wording that ‑‑ that has effect as of the date of marketability to be determined, and that’s the other part of this that has to be understood, I think, My Lord. The wording of the act itself, the whole issue of when the marketable ‑‑ marketable period begins is defined by the act now for the purposes of establishing marketable title. It doesn’t apply to any ‑‑ to impede or affect any Crown interest, but I think it has to be pointed out because there seems to be a ‑‑ the argument that the act doesn’t apply somehow to the applicant’s marketable title claim. Well, the act ‑‑the act does though. The act ‑‑ the act says marketable ‑‑ a person who has a marketable title at common law, equity or otherwise, sets out the 40 year period.
[29] The Province’s position was that (1) the MTA’s 40 year rule ousted the 60 year common law rule for everyone including the Crown, but (2) the MTA’s 40 year rule did not apply to the Crown because s. 9 of the MTA said the MTA did not affect the Crown. So the Province would be liberated from any rule, even for possessory claims under the LAA. The judge agreed with the Province on the first point, but not the second. The judge’s consideration of whether or not the 40 year rule applied to the Crown followed naturally from the Province’s submission. The Province beckoned at the doorstep and shouldn’t be startled that the judge crossed the threshold.
[30] The same submission appears in the Province’s factum (of October 2009) to the Court of Appeal:
17. The Appellant [Province] submits that the Chamber [sic] Judge made no interpretive error in his ruling. As stated by the Chambers Judge, the “intent of the legislation is clear and unambiguous and must be accorded its full effect”: the common law 60-year rule no longer applies in this province, and therefore does not apply to the Crown. The “purpose of the Act is to dispose of the 60 year common law rule and to replace it with a 40 year statutory scheme."
22. The Appellant [Province] submits that the clear wording of s. 4 [of the MTA] displaces the common law rule, and substitutes a 40 - year statutory rule of marketable title....The Appellant submits that the plain wording of s 4(1) means that the common law rule of 60 years, which the Respondent claims still applies to the Crown, has been subsumed and replaced in this province by a minimum statutory period of 40 years plus a day.
See also the Province’s facta quoted below, ¶ 88.
[31] The Province parried the 60 year common law rule, cited by Mr. Brill, by saying it was “dispose[d]”, “displace[d]”, “substitute[d]”, “subsumed and replaced” by the MTA’s 40 year rule. Not surprisingly, this generated the question whether that 40 year rule applies to the Crown.
[32] There was full argument in this court from everyone, including the Province, on the applicability of the 40 year rule for either marketable title or the LAA. The Province’s factum of April 7, 2010 says:
17. This appeal involves three central questions: (I) Has the 60 year Common Law Marketable Title rule been replaced by the 40 year statutory period under the MTA; (II) Is the Crown still subject to the 60 year common law rule, and (III) Is the Crown subject to the 40 year marketable titles rule under the MTA?
The third question, whether the Crown is bound by the 40 year rule, was exhaustively canvassed in the written and oral submissions from all sides.
[33] In addition to requesting a ruling on the “specific question of law” respecting the 60 year rule, Mr. Brill’s interlocutory notice also claimed a certificate of title by summary judgment. That application encompassed the legal principles, if necessary extending beyond the 60 year rule, that supported his claim to title. The application of the 40 year rule and the principles of constructive or presumptive possession were among those extended principles.
[34] I would dismiss this ground of the Province’s appeal.
6. Second Issue -
Legal Effect of Chain of Title to Land
With no Locatable Crown Grant
[35] The parties’ wide-ranging submissions sometimes shape shifted from issues of marketable title to possessory claims, the MTA to the LAA to the LRA, and statute to common law. I will separate the issues and address them in what I hope is a logical sequence. First I will (a) discuss the QTA, under which Mr. Brill sues. Next, as context, I will (b) trace the development of Nova Scotia’s law respecting the 40 and 60 year rules for a chain of title. With that backdrop, I will then address the parties’ submissions respecting the principles governing the effects of: (c) the MTA directly on Mr. Brill’s claim, (d) the MTA on the common law principles, (e) the common law principle of marketable title on Mr. Brill’s claim, (f) the judge made presumptions from a chain of title, usually in LAA claims, on Mr. Brill’s claim and finally (g) the LRA on Mr. Brill’s claim.
(a) The QTA
[36] Mr. Brill’s action is for a certificate of title under the QTA. Section 13 of the QTA says:
Burden of proof
13 Nothing in this Act changes the burden of proof upon the parties in actions of trespass to land, of ejectment or for the recovery of land, or in the other actions in which a claim for a certificate of title may be joined under this Act, nor is it required that any lesser or greater title or possession be shown than was required on the twenty‑fourth day of March, 1961, in such cases, but the claimant may establish under this Act whatever title the claimant has against the Crown and against persons generally. R.S., c. 382, s. 13.
[37] The QTA does not enable a court to create title. Rather it authorizes a court to grant a certificate that reflects the title, including possessory title, to which the party is entitled by the legal principles that exist outside the QTA. Yeadon v. Nova Scotia (Attorney General), [1988] N.S.J. No. 30 (Q.L.)(T.D.); Palmer v. Nova Scotia (Attorney General) (1988), 50 R.P.R. 55 (N.S.S.C.T.D.), affirmed (1989), 4 R.P.R. (2d) 285 (C.A.); Frank Georges Island Investment Ltd. v. Nova Scotia (Attorney General) (2004), 225 N.S.R. (2d) 264 (S.C.); Legge v. Scott Paper Co. (1970), 3 N.S.R. (2d) 206 (T.D.); Partington v. Musial (1988), 171 N.S.R. (2d) 228 (C.A.); Chute v. Nova Scotia (Attorney General), [1992] CarswellNS 631, [1992] N.S.J. No. 222 (Q.L.) (C.A.); Meredith v. Nova Scotia (Attorney General) (1968), 2 D.L.R. (3d) 486 (N.S.S.C.T.D.). In Ferguson (R.B.) Construction Ltd. v. Ormiston (1989), 91 N.S.R. (2d) 226 (C.A.) ¶ 6, Chief Justice MacKeigan said:
... Legal title since the enactment of the Quieting of Titles Act in 1961 can now be more conveniently established and declared by an action such as the present in which all persons interested in the land become joined in a contest to determine who has the best title ‑ a contest in which the rules as to adverse possession, constructive possession, and limitation of actions ordinarily control the result.
[38] The judge should be satisfied that all interested persons have been joined or sufficiently notified, or are before the court. Then, if there is no other apparent title holder and the contest is between just two parties, the court may quiet title based on the better claim. This practical approach reflects that title to land is relative and heirarchical, not absolute: Robert Megarry and H.W.R. Wade, The Law of Real Property, 4th Ed. (London: Stevens & Sons Ltd. 1975), p. 1006; Anger & Honsberger, Law of Real Property, by Anne W. LaForest, (Canada Law Book, 3rd ed. looseleaf) ¶ 28.50; Ocean Estates Ltd. v. Pinder, [1969] 2 A.C. 19 (P.C.) at pp. 24-25 per Lord Diplock. In MacNeil v. Nova Scotia (Attorney General), 2000 NSCA 31, (2000), 183 N.S.R. (2d) 119 (C.A.), at ¶ 43, Justice Cromwell said:
43 As Justice Hallett noted in Bowater Mersey Paper Co. Ltd. v. Nova Scotia (Attorney General) and Peck (1987), 80 N.S.R. (2d) 229 (T.D.), aff'd (1988), 83 N.S.R. (2d) 162 (N.S.S.C..A.D.), where property is woodland, there is evidence of possession for the requisite period and no other person has a stronger claim, the Quieting of Titles Act, R.S.N.S. 1989, c. 382 should be applied in a practical way so as to achieve its purpose as a mechanism to quiet titles.
[39] Section 16(1) of the QTA says that a certificate of quieted title “is binding and conclusive upon all persons, including the Crown, and whether named in the action or not”, subject to limited exceptions stated in s. 16 or proof of fraud under s. 17.
[40] The QTA affords a process to ascertain and quiet the title to Bella Island. The substantive principles to ascertain that title derive from other legislation and the common law.
(b) History of the 40 and 60 Year Chain
of Title Rules in Nova Scotia
[41] To appreciate the parties’ submissions, it will be helpful to identify Nova Scotia’s legal milestones toward the 40 and 60 year rules, whereby a chain of paper title may assist to establish either marketable title or constructive and presumed possession under the LAA.
[42] When the MTA was enacted in 1996, conveyancing in Nova Scotia operated under the names based registry system. Each conveyance required the reconstruction of a chain of title by searching grantors’ and grantees’ names first backward, then forward at the Registry of Deeds. This registry system had been legislated in 1758 [An Act for Confirming Titles to Lands and Quieting Possessions, S.N.S. 1758 (32 Geo. II), c. 2], and continued [Registry Act, R.S.N.S. 1989, c. 392 as amended] until the LRA, S.N.S. 2001, c. 6 instituted a land titles system.
[43] Before the MTA, Nova Scotia’s conveyancing practice was ambivalent on the length of the required search period. Authority supported both 40 year and 60 year periods.
[44] Nova Scotia courts fashioned the 40 year rule from s. 19 of the LAA. Section 19 at that time said that a person under disability had 40 years to sue for the recovery of land. Section 19 did not apply to the Crown.
[45] In Dooks v. Rhodes (1982), 52 N.S.R. (2d) 650 (T.D.), ¶ 4, Justice Rogers cited s. 19 of the LAA (as it then read):
“No entry, distress or action shall be made or brought by any person who, at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent, first accrued, was under any of the disabilities in the next preceding section mentioned, or by any person claiming through him, but within forty years next after the time at which such right first accrued; although the person under disability at such time has remained under one or more of such disabilities during the whole term of such forty years, or although the term of ten years from the time at which he ceased to be under any such disability, or died, has not expired.”
Justice Rogers then stated:
5. It is this provision that imposes what is accepted as a forty year period beyond which a root of title must be found in order to certify marketable title to land in Nova Scotia.
[46] Similarly, in Knox v. Veinote (1982), 54 N.S.R. (2d) 666 (T.D.), at ¶ 38, Justice Hallett said:
. . . This gap in title would have been disclosed in a normal search of title going back at least forty years, as is the practice in Nova Scotia because of the extended limitation period within which persons under disability, such as being outside the province, may bring actions for possession of land (s. 19, Limitations of Actions Act, R.S.N.S. 1967, c. 168).
[47] In Boland v. Berthelot (1991), 107 N.S.R. (2d) 187 (S.C.), at ¶ 4, Justice Boudreau cited the 40 year rule in an application under the Vendors and Purchasers Act, R.S.N.S. 1989, c. 487 (VPA) to disallow a purchaser’s title objection.
[48] In 1995, the Nova Scotia Barristers' Society codified its standards for real estate practitioners. Standard # 2 (“Root of Title”) said:
A lawyer certifying a title must be satisfied that a proper root of title has been located. A proper root of title could be a Crown Grant, a Quieting Titles Act order, a vesting order, an expropriation, or a warranty deed more than 40 years old.
[49] Now the 60 year rule, with its lineage. Anger & Honsberger, in the chapter on “Conveyancing” authored by David Townsend, ¶ 22:20.20, summarizes this rule:
Historically, the common law required that a good root of title be established through a Crown grant or by a good chain of title established for at least a 60-year period. In order to keep time and expenses under control, efforts have been made to reduce the search period to at least 40 years for most eastern provinces [citing Nova Scotia's LRA, s. 37(9)(a)].
Anger & Honsberger’s note to this passage says:
The 60 - year rule was inherited from English common law. It was premised on the assumption that 60 years of continuous possession was necessary for adverse possession against the Crown and because this was considered to be an average life span should it be necessary to secure witnesses for a claim.
[50] In Nemeskeri v. Nova Scotia (Attorney General) (1992), 115 N.S.R. (2d) 271 (S.C.), affirmed (1993), 125 N.S.R. (2d) 67 (C.A.), Justice Tidman referred to both the 40 and 60 year rules.
[51] In Inter Lake Developments Ltd. v. Slaunwhite (1988), 86 N.S.R. (2d) 23 (T.D.), Justice Davison said:
8. The one issue before me is whether the purchaser's objection to title was valid. A determination of this point does not rest on the effect of the Limitations of Actions Act. There is no evidence of possessory title before me and according to the authorities in this country, possessory title can only be presumed if there exists paper title for a period of 60 years.
Justice Davison (¶ 5) referred as authority for the 60 year rule to a 1987 article by Mr. C.W. MacIntosh. I will discuss this article below (¶ 61, 63).
[52] In Dupuis Estate v. O’Blenis, [1995] N.S.J. No. 630, Justice Scanlan referred to the Barristers’ Society Standard # 2, quoted above (¶ 48), and to case law supporting the 40 year rule, then said:
[9] I would say that in spite of the bar society standard #2 and Boland v. Berthelot counsel in Nova Scotia are well advised not to limit title searches to 40 years. Because of the absence of specific legislation the situation in Nova Scotia is not as clear as in some other provinces. By way of explanation I would offer a number of comments. The vendor is required to provide good and marketable title to the lands in question. Marketable title has been defined in various ways but it can be summarized to be title which can be forced upon an unwilling purchaser. An unwilling purchaser cannot be compelled to take title which would expose him to litigation or hazard. The title must be free from palpable defects. There must be a degree of certainty of peaceful possession which is apparent from the title records and a certainty that no title flaw will disturb the market value. A purchaser is not obliged to rely on parol evidence, the word of the vendor or information which is off the record. In short, a good root of title is based on documents which convey the title and equitable interests in the land and cast no doubts upon the right of the parties thereto to make the disposition.
[10] Many authorities refer to forty years as being sufficient paper title to establish marketable title. These authors often refer to jurisdictions where there is specific legislation to establish the 40 year period. For example in Anger and Honsberger Real Property (2nd Ed.), at pp. 1623‑1624 the author refers to a good root of title having been held to be a chain of title over a 40 year period. But the author refers to s. 105 of the Registry Act, R.S.O. 1980, c. 230, as establishing the forty year period. I cite that section in part to show the nature of the legislation:
105(1) A person dealing with land shall not be required to show that he is lawfully entitled to the land as owner thereof through a good and sufficient chain of title during a period greater than forty years immediately preceding the day of such dealing, except in respect of a claim referred to in subsection 106(5).
Section 106(5) refers to Crown grants, rights of ways and railways.
[11] As already noted there is no similar legislation in Nova Scotia. The courts must therefor[e] look to each case to ascertain whether there is marketable title. The Nova Scotia Statute of Limitations is of little assistance as the matter of sufficiency of title is governed by the common law. At common law the period of 60 years continuous chain of title starting from a warranty deed was held to be sufficient. This appears to be based on the fact that 60 years would be what is required to obtain possessory title as against the Crown. In addition 60 years was in earlier years considered to be the lifespan of humans.
[12] In Inter Lake Developments Ltd. v. Slauenwhite (1988), 86 N.S.R. (2d) 23, the 60 year requirement was reaffirmed. Justice Davison referred to an article published by C.W. MacIntosh, Q.C., in vol. 14 of the Nova Scotia Law News (December 1987). In that article Mr. MacIntosh referred to the practise of some solicitors searching back forty years on the assumption that the Statute of Limitations has set that standard. Mr. MacIntosh has correctly pointed out that the 60 year requirement is as valid today as it was in 1749. I quote Justice Davison at p. 60 of Inter Lake Development Ltd. "... according to the authorities in this country, possessory title can only be presumed if there exists paper title for a period of sixty 60 years". I find it difficult to explain why the barristers standard number two has ignored the comments in this decision.
[53] Here I will digress backward to trace the antecedence of the 60 year rule.
[54] After the Norman Conquest, the Writ of Right allowed a person to recover possession of land. The sovereign addressed the writ to the feudal lord who was directed to “do full right” by the dispossessed title claimant. In 1540, An Act of Limitation with a Proviso (U.K.), 32 Hen. VIII, c. 2 [Limitations Act of Hen. VIII] set a limit of “threescore” years on actions brought further to a writ of right. The Act’s reason for the 60 year benchmark was “it is above the Remembrance of any living Man, truly to try and know the perfect Certainty of such Things” earlier than 60 years. The Limitations Act of Hen. VIII did not limit the rights of the Crown.
[55] Also referencing 60 years, the Nullum Tempus Acts of 1623 and 1769 did limit the Crown’s rights to recover land: An Act for the General Quiet of the Subjects against all Pretences of Concealment whatsoever (U.K.), 21 Jac. 1, c. 2 (1623); and An Act to amend and render more effectual an Act made in the Twenty-first Year of the reign of King James the First, intituled, An Act for the general Quiet of the Subjects against all Pretences of Concealment whatsoever (U.K.), 9 Geo. III, c. 16 (1769). The old common law prerogative did not acknowledge adverse possession against the Crown – nullum tempus occurrit regi. The Nullum Tempus Acts superceded that prerogative by barring Crown claims that predated 60 years. The Nullum Tempus Acts’ rationale was that the King wished his subjects quietly to hold the lands that they and their ancestors had long enjoyed. The 1623 Act retrospectively barred the Crown’s land actions that were unaccrued within 60 years of that current session of Parliament. The 1769 Act was prospective. Its rationale was that “by Efflux of Time”, the 1623 Act had “become ineffectual to answer the good End and purpose of securing the general Quiet of the Subject against all Pretences of Concealment whatsoever”. The 1769 Act (with modern editing) said:
That the King’s Majesty, his Heirs, or Sucessors, shall not at any Time hereafter, sue, impeach, question, or implead, any Person or Persons, Bodies Politick or Corporate, for or in any wise concerning any ... Lands, [etc.] ... whatsoever (other than Liberties or Franchises), or for or in any wise concerning the Revenues, Issues, or Profits thereof, or make any Title, Claim, Challenge, or Demand, of, in, or to the same, or any of them by reason of any Right or Title which hath not first accrued and grown, or which shall not hereafter first accrue and grow, within the Space of sixty Years next before the filing, issuing, or commencing, of every such Action, Bill, Plaint, Information, Commission, or other Suit or Proceeding, as shall at any time or Times hereafter be filed, issued, or commenced, for recovering the same. ...
[56] To the limited extent of their operation, the Limitations Act of Hen. VIII and the 1623 Nullum Tempus Act were received into the laws of Nova Scotia further to the principle in Uniacke v. Dickson (1848), 2 N.S.R. 287 (Ch.). This principle established 1758 (the first general assembly of Nova Scotia’s colonial legislature) as the common law date for reception of English law into Nova Scotia. The 1769 U.K. Nullum Tempus Act was not received under the common law principle.
[57] The 1769 U.K. Nullum Tempus Act likely did extend to Nova Scotia, however, as an imperial statute for the benefit of the British Empire. The Act would apply in Nova Scotia because of the UK Parliament’s intent, rather than a common law principle governing received statutes. The point is posited in Nickerson v. Canada (Attorney General) (2000), 185 N.S.R. (2d) 36 (S.C.), ¶ 16-17, which quotes an opinion of Professor Philip Girard, an expert in legal history.
[58] The Province on this appeal acknowledged that the 1769 UK Nullum Tempus Act entered Nova Scotia law.
[59] In any case, in 1837 Nova Scotia enacted its own Nullum Tempus Act - An Act for the Quiet of the Subjects in their possession of Lands, Tenements and Hereditaments, within this Province, S.N.S. 1837 (7 Wm. IV), c. 93. Nova Scotia’s 1837 Act suspended its effect until “His Majesty’s pleasure be known”. On November 18, 1837 a British Order-in-Council confirmed that there was no sovereign objection to the statute. Nova Scotia’s Nullum Tempus Act, 1837 said:
Be it declared and enacted, by the Lieutenant-Governor, Council and Assembly, That the King’s Majesty, His Heirs or Successors, shall not at any time hereafter, sue, impeach, question or implead, any person ... for or in anywise concerning any Lands ..., or make any title, claim, challenge, or demand of, in or to, the same, or any of them, by reason of any right or title which hath not first accrued and grown, or which shall not hereafter accrue and grow, within the space of sixty years, next before the filing, issuing, or commencing of every such action, bill, plaint, information, commission, or other suit or proceeding, as shall at any time or times hereafter be filed, issued or commenced, for recovering the same, or in respect thereof, ....; and that all and every person ..., shall, at all times hereafter, quietly and freely have, hold and enjoy, against His Majesty, His Heirs and Successors, claiming by any title which hath not first accrued or grown, or which shall not hereafter first accrue or grow, within the said space of sixty years, all and singular, Lands, ..., which he or they, or his or their, or any of their Ancestors or Predecessors, or those from, by, or under whom, they do or shall claim, have or shall have held or enjoyed, ..., by the space of sixty years next before the filing, issuing or commencing, of every such action ...
[60] Fourteen years later a more finespun version of Nova Scotia’s 1837 Nullum Tempus Act was revised into the Limitations of Actions Act, R.S.N.S. 1851, c. 153, s 14:
No claim for lands or rent shall be made by Her Majesty, but within sixty years after the right of action to recover such lands or rent shall have accrued.
That wording remained in the later general revisions of Nova Scotia’s statutes, becoming s. 21 of the Limitations of Actions Act, R.S.N.S. 1989, c. 258, under the heading “Limitation on Claim by Her Majesty”. That wording was amended by the LRA, S.N.S. 2001, c. 6, s. 115(7), which substituted “forty” for “sixty”.
[61] Mr. C.W. MacIntosh, Q.C., How Far Back Do You Have To Search?, Nova Scotia Law News, Vol. 14, No. 3 (December, 1987), discusses the caselaw from England, Nova Scotia and New Brunswick. Mr. MacIntosh is an authority on Nova Scotia’s conveyancing practice and authors the Nova Scotia Real Property Practice Manual (Butterworths, looseleaf). It was this article that was cited for the 60 year rule by Justices Davison and Scanlan in the Inter Lake and Dupuis cases, discussed above (¶ 51-52). Mr. MacIntosh (page 52) distinguished the application of the 40 and 60 year rules:
Claim under Limitations Act - During the 40 years the vendor and his predecessors in title must have been in continuous, visible, uninterrupted, adverse possession of the property to the exclusion of the true owner and of any third party.
Claim to paper title - During the 60 years of unbroken title, physical possession of the land need not be shown, but the documentation itself raises a presumption of possession, and if documentation of continuous title for this length of time can be shown, a purchaser cannot refuse the vendor's title, except in certain exceptional circumstances.
[62] As intimated in this passage, the 60 year principle assigned two distinct legal consequences to a chain of paper title:
(1) A vendor with 60 years continuous paper title could enforce an agreement of sale by specific performance against the purchaser. This is “marketable title”. It is an in personam right of a vendor against a purchaser derived from their contract of sale.
(2) The chain of paper title raised a rebuttable presumption of possession. This assisted the presumed or constructive possessor with an adverse possession claim under the LAA, and could result in a certificate of title under the QTA with in rem effect.
Later I will refer to the authorities for those two principles (¶ 104,126-155).
[63] Mr. MacIntosh’s article continued (page 53), with comments that presaged the enactment of Nova Scotia’s MTA eight years later:
The traditional search period of 60 years was developed to protect against the possibility of double claims of title and to establish a standard, short of a chain continuous from a grant from the Sovereign, which would be recognized as one which a purchaser would not be able to reject.
. . .
It is generally recognized that a 60 year search is not really a practical standard in this century. Many jurisdictions in the United States, as well as Ontario and Prince Edward Island, have passed acts to deal with this problem. This is known as marketable titles legislation.
The Ontario act, now Part III of the Registry Act, states that a 40 year search period is sufficient.
[64] This leads to the MTA.
[65] The MTA, as it read on enactment in 1996, included the following provisions that founded the principal submissions on this appeal:
Purpose of Act
2 The purpose of this Act is to
(a) remove uncertainties respecting the determination of marketable titles to land in the interests of all present and future landowners and facilitate the development of the Province; . . .
Interpretation
3 In this Act,
(a) "chain of title" means a chain of title as described in subsection 4(2);
. . .
Marketable title
4 (1) A person has a marketable title to an interest in land if that person has a good and sufficient chain of title during a period greater than forty years immediately preceding the date the marketability is to be determined.
(2) A chain of title commences with the registered instrument, other than a will, that conveys or purports to convey that interest in the land and is dated most recently before the forty years immediately preceding the date the marketability is to be determined.
(3) A chain of title may commence before or after the coming into force of this Act.
. . .
Exceptions to Act
7 (1) This Act does not apply to
(a) any interest in land created or preserved by a statute;
. . .
Crown interests preserved
9 For greater certainty, nothing in this Act affects any interest of Her Majesty in any land.
[66] The Honourable Sandra Jolly, Minister of Municipal Affairs, explained the MTA’s purpose in her introduction for second reading of the Bill that became the MTA:
...Bill No. 53 is the Marketable Titles Act which, I think, is an extremely important piece of legislation for the Province of Nova Scotia. Bill No. 53 will help all Nova Scotians by increasing the certainty of title to land. The essential purpose of this bill is to bring certainty to the law respecting marketable titles and tax deeds, where confusion and unpredictability exist now. The bill addresses two issues that have reduced certainty of title, delayed property transactions and compelled property owners to engage in expensive court proceedings to validate their titles.
The first issue is the appropriate number of years for a title search. Courts have tended to increase the length of the required title search. Under the present system, a search for at least 60 years seems essential. Some people have suggested that the only way to be sure about your title is to go back more than 200 years to the original Crown grant. The longer the search period, the more expensive.
Madam Speaker, this bill fixes the title search period at 40 years, the period used in the other provinces for this kind of legislation. A marketable title must have a starting point and a registered document at least 40 years old. The bill does not eliminate any legal interest in land, however old, except for some older, unregistered interests. This kind of interest most often arises on intestate; the bill provides a method of protecting those interests with a registered notice.
[Nova Scotia House of Assembly, Hansard, December 5, 1995 Ref. 3907]
[67] The MTA prescribed a 40 year period from the root of title defined by s. 4(2). But the MTA was silent on its implications for common law’s 60 year chain of title. In Gunning v. Trans Canada Credit Corp. (1998), 169 N.S.R. (2d) 184, [1998] N.S.J. No. 165 the Supreme Court of Nova Scotia held that the common law’s 60 year rule co-existed with the MTA’s 40 year rule. In an application under the VPA to consider the validity of a title objection, Justice MacLellan (¶ 7, 10) found that there was not 40 years’ paper title from a root defined by the MTA’s s. 4(2) (a registered instrument that purports to convey an interest). But the VPA, unlike the MTA, permitted a deed’s recitals to establish facts that bridge a gap in the chain. Justice MacLellan, citing Inter Lake and Dupuis, then considered (¶ 8, 11) whether there was a 60 year chain of title under the common law, given the VPA’s bridging.
[68] So the common law’s 60 year rule of marketable title survived the 1996 enactment of the MTA’s 40 year rule.
[69] Five years after the MTA, the LRA established a comprehensive system of land registration. Section 2 said that the LRA’s purposes were to “provide certainty in ownership”, “simplify proof of ownership”, facilitate “execution of transactions” and compensate for losses caused by a failure of the land registration system. On his introduction of the Bill for second reading, the Minister of Service Nova Scotia and Municipal Relations, the Honourable Angus MacIsaac, said:
... This bill would make substantial changes to the process of regulating properties in Nova Scotia, moving from what is essentially a 250 year old paper based system to a modern, electronic format. Most importantly, the new legislation would provide greater certainty about property ownership across Nova Scotia. ...
The public interest in this streamlined system, with security of title combined with the cost of maintaining the current system, are reasons enough to close the vault doors on the status quo ...
Let me recap what our legislation proposes. Firstly, Mr Speaker, the government would guarantee ownership of all parcels of land registered in the system. ... Secondly, the state of title would be certified by lawyers in the private sector, performing the same investigations that they do today. Parcels of land would be registered after one final historic title search and the lawyers' certificates would form the basis of the government guarantee of ownership. Thirdly, the registration of a property in the system would be conclusive as to the ownership of their land.
[Nova Scotia House of Assembly, Hansard, No. 01-4, March 27, 2001, pp. 205- 206]
[70] Later (¶ 109-121) I review the concerns in the mid-19th century about the vagueries in Nova Scotia’s system of registered land titles. The passage of another 150 years did not elevate the certainty level. By the 1990s it was obvious that the old search-based Registry system impeded effective conveyancing. There were subdivisions by deed, missing survey plans or lost markers, vague or illegible legal descriptions, and difficulties with land transfers after death. As reflected by Ms. Chamberlain’s testimony (above ¶ 16) and the judicial commentary (below ¶ 115-120), there was uncertainty respecting the ascertainment of ancient unregistered Crown grants from Nova Scotia’s period of settlement.
[71] Before discussing the LRA’s substantive provisions, I note that the LRA binds the Crown. Subsections 6(2) and (3) say:
(2) Her Majesty in right of the Province is bound by this Act.
(3) This Act applies to any interest vested in Her Majesty in any other right that is within the competence of the Legislature and to any interest that has been subjected to this Act by Her Majesty.
This is subject to s. 73(1)(a), governing overriding interests:
73(1) Notwithstanding anything contained in this Act, the following interests, whether or not recorded or registered, and no other interests, shall be enforced with priority over all other interests according to law:
(a) an interest of Her Majesty in right of the Province that was reserved in or excepted from the original grant of the fee simple absolute from Her Majesty, or that has been vested in Her Majesty pursuant to an enactment.
Section 73(1)(a) refers to a reservation or exception in an actual original Crown grant. But s. 73(1) is silent about a dispute over whether there was an original Crown grant. Section 40(c) [as replaced by S.N.S. 2008, c. 19, s. 18] says that certain interests that have escheated to the Crown are not to be included in a parcel register.
[72] The heart of the LRA is s. 20 [as replaced by S.N.S. 2008, c. 19, s. 11]:
20 A parcel register is a complete statement of all interests affecting the parcel, as are required to be shown in the qualified lawyer's opinion of title pursuant to Section 37, subject to any subsequent qualifications, revisions of registrations, recordings or cancellation of recordings in accordance with this Act.
This achieves the “certainty of ownership” in s. 2(a)’s statement of purposes. The parcel register is a root of title. I discuss this later in more detail (¶ 161-166).
[73] The Registrar General under the LRA, and the court, may correct errors in the parcel register: ss .34-36, 91, 92, as amended by S.N.S. 2008, c. 19, ss. 15, 33.
[74] The LRA provides that a person who suffers loss because of an error in the parcel register is entitled to compensation, under the statutory standards and procedures, payable by Nova Scotia’s Minister of Finance or the Registrar General on the Minister’s behalf: ss. 85-88, and also ss. 35, 36(2) and 50(2), as amended by: S.N.S. 2002, c. 19, ss. 13-14, and S.N.S. 2008, c. 19, ss. 15, 28-31.
[75] Section 20 refers to the “qualified lawyer’s opinion of title”. The parcel register’s status as an indemnifiable “complete statement of all interests”, is predicated on the lawyer’s certificate. A document submitted for registration must be accompanied by a lawyer’s “certificate of legal effect certifying the legal effect of the document”, upon which the “registrar is entitled to rely”. The lawyer is liable to the Registrar General if, as a result of the lawyer’s negligence, the Registrar General has been required to pay compensation within ten years after the lawyer’s certificate. See ss. 18, 24(5) and (6), 26, 32(3), 37(4)(b) and (f), 37(11), 37(11A), 37(12), as amended by: S.N.S. 2002, c. 19, ss. 6, 11, 15; S.N.S. 2004, c. 38, ss. 11 and 26; S.N.S. 2006, c. 15, s. 9; S.N.S. 2008, c. 19, ss. 9, 13, 16, 36.
[76] The legal standards that govern “the qualified lawyer’s opinion of title” are the foundation of the parcel register. Those standards are stipulated by s. 37(9)(b) of the LRA, as replaced by S.N.S. 2008, c. 19, ss. 16 and 36:
37 (9) The qualified lawyer's opinion of title required by clause 4(b) shall be prepared in accordance with the relevant Nova Scotia Barristers' Society practice standards in effect at the time of the opinion, and
...
(b) shall be based upon a title search, as evidenced in an abstract of title, that shows a chain of title to the standard required to demonstrate a marketable title pursuant to the Marketable Titles Act or to the standard required pursuant to the Limitations of Actions Act or any other enactment or the common law, or to such lesser standard as the Registrar General may approve.
[77] Section 37(9) incorporates the NSBS’ practice standard. The Nova Scotia Barristers Society’s Professional Standards - Real Property Transactions in Nova Scotia, approved by the NSBS’ Bar Council on November 22, 2002, states:
STANDARD 1.3
Certified Opinion of Title and Certificate of Legal Effect
A lawyer may certify title as marketable if, after examining the abstract of title, the lawyer is satisfied that title to the parcel is marketable in accordance with legislation, common law and equity.
[78] Also relevant here are the LRA’s definitions of “interest” in land [“any estate or right in, over, or under land recognized under law, a prescribed contract or a prescribed statutory designation” - s. 3 (1)(g)] and of “law” [“the law in force in the Province, including enactments and principles of common law and equity” - s. 3(1)(h)].
[79] The LRA amended the LAA. As noted above (¶ 60), s. 115(7), changed “sixty” to “forty” in s. 21 of the LAA. This meant that s. 21 of the LAA now reads:
21 No claim for land or rent shall be made by Her Majesty but within forty years after the right of action to recover such land or rent first accrued.
[80] Finally, the LRA amended the MTA. Section 116 of the LRA said:
116 (1) Subsection 4(1) of Chapter 9 of the Acts of 1995-96, the Marketable Titles Act, is amended by adding “at common law or equity or otherwise” immediately after “title” in the first line.
(2) Subsections 4(4) and (5) of Chapter 9 are repealed and the following subsection substituted:
(4) Nothing in this Section extinguishes any interest in land.
(3) Chapter 9 is further amended by adding immediately after Section 4 the following Section:
4A Notwithstanding the Descent of Property Act and the Intestate Succession Act, but subject to Section 5, an interest in land, whether arising before or after the coming into force of this Act, that has not vested pursuant to an instrument that is registered pursuant to the Land Registration Act or the Registry Act, is extinguished by a registered instrument other than a will that conveys or purports to convey that interest in the land and that is executed by a person with a marketable title to that interest, upon the expiry of
(a) the twenty-year period immediately following the vesting of the interest;
(b) the five-year period immediately following the attainment of the age of majority by the person with the interest; or
(c) where the person with the interest is of unsound mind, the five-year period immediately following the person ceasing to be of unsound mind or the twenty-five year period immediately following the vesting of the interest, whichever is earlier.
(4) Subsection 5(1) of Chapter 9 is amended by striking out “subsection 4(4)” in the second and third lines and substituting “Section 4A”.
The LRA’s amendment to s. 4(1) of the MTA [see above ¶ 65] is significant to the submissions on this appeal. After the amendment s. 4(1) now reads:
4 (1) A person has a marketable title at common law or equity or otherwise to an interest in land if that person has a good and sufficient chain of title during a period greater than forty years immediately preceding the date the marketability is to be determined. [emphasis added]
[81] I will move now to the parties’ submissions.
(c) MTA’s Direct Effect on Mr. Brill’s Claim
[82] “Marketable title” usually is pertinent to issues between a vendor and a purchaser (see below ¶ 104-5). The MTA’s primary purpose, according to s. 2(1), is to remove uncertainties respecting “marketability” of land – i.e., conveyancing from a vendor to a purchaser. Section 4(1) prescribes who “has marketable title”. But s. 4(4) then says:
Nothing in this Section extinguishes any interest in land.
Section 4 of the MTA does not operate like s. 22 of the LAA, which says that after the limitation period expires “the right and title of such person to the land . . . shall be extinguished”.
[83] There are exceptions specifically noted in the MTA where the MTA may affect the title of someone who is not party to an agreement of sale. Section 4A says that an interest in land, not in an instrument registered under the LRA, “is extinguished” by a registered instrument after the passage of specified periods of time. Those exceptions mirror provisions in the LAA other than s. 21, and which do not apply to the Crown. Section 4A’s exceptions, by their wording, do not apply to the Bella Island dispute between Mr. Brill and the Crown.
[84] Mr. Brill is not a vendor and the Crown is not a purchaser in any transaction involving Bella Island. Section 4(4) means that s. 4(1) does not extinguish any interest of the Crown in Bella Island. This is without even considering s. 9 of the MTA (“nothing in this Act affects any interest of Her Majesty in any land”).
[85] The NSBS suggests that the MTA’s marketable title has attained in rem status by s. 37(9)(b) of the LRA (quoted above ¶ 76). Section 37(9)(b) cites the MTA standard as one of the bases for the lawyer’s certificate of title, which in turn generates the binding parcel register. I will discuss this point later (¶ 157-168).
[86] Subject to the effect of the LRA on the MTA, the MTA by itself has no direct effect on the dispute to Bella Island between Mr. Brill and the Crown.
[87] The next question is whether s. 4(1)’s words “by common law ... or otherwise” have an indirect effect on the Bella Island dispute by impacting the common law’s principles and consequences that flow from a chain of title.
(d) MTA’s Effect on the
Common Law Principles
[88] This issue is the battlefield of the appeal. The Province submits that: (1) s. 4(1) of the MTA extinguished any common law consequence from a chain of paper title, respecting both marketable title and constructive or presumed possession, by enacting an exhaustive statutory code; and (2) s. 9 of the MTA (“nothing in this Act affects any interest of Her Majesty in any land”) exempts the Crown from that code. The Province’s facta say:
The Appellant [Province] submits that the MTA is intended to be an exhaustive code which deals exclusively with the concept of marketable title, thereby modifying and displacing at the same time the prior common law rule. In doing this the MTA carves out exceptions within the statutory regime, such as interests of Her Majesty in any land (MTA, s. 9), but does not permit a reversion to the prior common law rule outside the statutory framework. [April 2010 factum, ¶ 30]
[C]onstructive possession derives from the fact of good and marketable paper title for the common law period of 60 years. The Appellant [Province] submits that this reasoning does not apply to the Crown in Nova Scotia, as the basis for claiming constructive possession in the first instance in Nemeskeri was the existence of marketable title. Pursuant to s. 9 of the Act, the Crown’s interest in land is not affected by the marketable title rule as encompassed in the legislation.[October 2009 factum, ¶ 74]
As I will discuss (¶ 101), subject to prerogatives, the common law applies to the Crown and (¶ 115-155) there are elaborate judge made principles and presumptions deriving from a chain of paper title. The Province’s submission would mean that an interpretive minuet in the MTA has freed the Crown from every principle, common law or statutory, that previously gave legal effect to a chain of paper title for both marketable title and LAA claims against the Crown. The result, even today under the LRA, would be the stern consequence proposed by Ms. Chamberlain’s testimony (above ¶ 16):
Q. But from the Crown's perspective, if there are gaps in the Crown's records, that's something for someone else to prove, and the grants - the Crown's initial position is that at least there [sic - their] records are comprehensive. So, in other words, if you can't find a grant in the documents, in your own documents, then the Crown's position, it's ungranted land?
A. Yes.
[89] I respectfully disagree, for many reasons, that s. 4(1) jettisoned the common law as a source of the principles that give effect to a chain of title.
[90] The MTA, as enacted in 1996, said nothing of the “common law”. As discussed earlier (¶ 67 ), in 1998 the Supreme Court of Nova Scotia expressed the view that the common law’s rule for marketable title coexisted with the MTA’s rule.
[91] Then in 2001 (though proclaimed later), the LRA amended s. 4(1) of the MTA by adding “at common law or equity or otherwise” after “title” in s. 4(1) (above ¶ 80). Since that amendment, s. 4(1) says: “A person has a marketable title at common law” if he has a chain of paper title exceeding 40 years. These words do not, as the Province submits, eliminate the common law as a source of either marketable title or its consequences. To the contrary, they confirm that the person “has title at common law”. The words are not “has title by statute”. The LRA’s amendment to s. 4(1) eliminated the former 60 year prerequisite for establishing that common law marketable title, and replaced it with a statutory prerequisite of 40 years plus a day. But that change of the prerequisite did not extinguish the underlying principle that, at common law, an appropriate chain of instruments may establish marketable title with legal consequences.
[92] I will discuss later (¶ 115-155) the legislative and judicial initiatives spanning about 175 years, that tried to address the sometimes paralytic uncertainty of land titles in this province since the 18th century system of Crown grants. The Province’s submission is that the MTA, like a brush on a blackboard, just erases the product of those efforts. Basically the Province says that, even now under the LRA, nobody can own land without an initial Crown grant in hand. The presumptions declared by the courts for LAA claims would not apply to the Crown. Countless landholders who thought they owned land would learn that their chains of title vested just whimsical cloud castles. These persons would have paid property taxes as “owner” under the provincial government’s system of property assessment. The MTA’s stated object, like the LRA after it, was to “remove uncertainties”. The Province’s submission is oblivious to that objective.
[93] The Legislature often grafts a stalk onto the common law’s living root. Tortfeasors legislation does not abolish the common law of tort. Unconscionable transactions relief legislation does not abolish the common law of contract. Neither does sale of goods, mortgages or securities legislation. Conveyancing legislation does not abolish the common law of property or vendor and purchaser.
[94] Sullivan and Driedger on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008), pp. 431-2, discusses statutory alteration of the common law:
Presumption against changing the common law. Although legislation is paramount, it is presumed that legislatures respect the common law. It is also presumed that legislatures do not intend to interfere with common law rights, to oust the jurisdiction of common law courts, or generally to change the common law. As explained in Halsbury’s in a formulation adopted by many Canadian courts:
Except insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law.
These presumptions permit the court to insist on precise and explicit direction from the legislature before accepting any change. The common law is thus shielded from inadvertent legislative encroachments.
That principle follows from the legislature’s piecemeal amendment of the organic common law. Sullivan and Driedger say (page 432):
“The courts readily assume that reform legislation is meant to be assimililated into the existing body of common law. This assumption is likely to apply to any legislation dealing with so-called “private” law — the law of contracts, torts and private property. Historically, the law governing these matters is rooted in the common law and still is closely associated with common law principles and values. In addition, certain types of law such as procedure and evidence are thought to be especially suited to the common law method of incremental development by judges.”
[95] In Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, Justice Iacobucci for the majority said:
39 To begin with, I think it useful to stress the presumption that the legislature does not intend to change existing law or to depart from established principles, policies or practices. In Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., [1956] S.C.R. 610, at p. 614, for example, Fauteux J. (as he then was) wrote that “a Legislature is not presumed to depart from the general system of the law without expressing its intentions to do so with irresistible clearness, failing which the law remains undisturbed”. In Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1077, Lamer J. (as he then was) wrote that “in the absence of a clear provision to the contrary, the legislator should not be assumed to have intended to alter the pre‑existing ordinary rules of common law”.
[96] An example of a statutory extinguishment of the common law is s. 3 of the Occupier’s Liability Act, S.N.S. 1996, c. 27:
3 This Act applies in place of the rules of common law for the purpose of determining the duty of care that an occupier of premises owes persons entering on the premises in respect of damages to them or their property.
That provision, unlike s. 4(1) of the MTA, clearly expresses the Legislature’s intent to oust the common law.
[97] Section 37(9)(b) of the LRA, as discussed earlier (¶ 76), requires that the foundational “qualified lawyer’s opinion of title” show a chain of title based on legal sources including the “common law”. Section 37(9) requires that the lawyer’s opinion satisfy the NSBS’ practice standard which, in turn, requires that the title be marketable “in accordance with legislation, common law and equity” (above ¶ 77). Sections 3(1)(g) and (h) of the LRA define “interest” in land as including any right “recognized under law”, and “law” to include “principles of common law”. The LRA, containing these provisions, expressly binds Her Majesty by ss. 6(2) and (3). It was the LRA that added the key words “at common law or otherwise” to s. 4(1) of the MTA, the provision which the Province now says extinguishes the common law.
[98] With the LRA, the Legislature intended to continue the principles respecting chain of title that are sourced in the common law, subject to the LRA’s statutory substitution of the prerequisite period for “marketable title” from 60 years to 40 years plus a day. By adding “at common law ... or otherwise” to s. 4(1) of the MTA, s. 116(1) of the LRA confirmed that the lawyer’s opinion of title may rest on common law principles of marketable title, while standardizing for both common law and the MTA the length of the triggering chain at 40 years plus a day.
[99] More importantly for the Bella Island dispute, nothing in the MTA touches the evidential principles of constructive or presumptive possession from a chain of title, to support a claim under the LAA. The Province’s submission assumes that, because the MTA involves a chain of title, every chain of title rule must be governed by the MTA. I disagree with this inverse logic. Claims to marketable title between a vendor and purchaser and possessory title under the LAA are parallel topics, in that the former is triggered by a chain of paper title and the latter may be assisted by a chain of paper title. But the latter is not a subset of the former, and the MTA in no way qualifies the LAA’s process for determining possessory title. There is no merit to the Province’s suggestion that somehow the MTA jettisons the common law’s treatment of constructive or presumed possession, from a chain of title, in an adverse possession claim under the LAA. The Province did not cite an authority that connected the two statutes.
[100] The Province’s submission, that ss. 4(1) and 9 of the MTA extinguish all the judge made consequences from a chain of title, is a lonesome castaway on a billowing sea. Every analytical perspective confirms that those consequences are with us still.
(e) Effect of Common Law Marketable Title
on Mr Brill’s Claim
[101] The common law of marketable title applies to the Crown. Anger & Honsberger, ¶ 24:40 says:
The Crown
The legal position of Her Majesty is that she is a legal person subject to the general common law and equity except as it is varied or added to by prerogative rules or by statutes applying to her.
Peter Hogg and Patrick J. Monahan, Liability of the Crown, 3rd ed. (Carswell, Scarborough, 2000), p. 274 says:
11.1 Subjection to common law
The Crown is subject to the common law. Thus, the common law of property and contract applies to the Crown in much the same way as it applies to a private person.
Halsbury's Laws of England, 4th ed., ¶ 202 states:
Principles governing Crown property. The rules of the common law apply to lands and other property held by or on behalf of the Crown as they apply to those of subjects.
See also Eastern Trust Co. v. McKenzie, Mann & Co., [1915] A.C. 750 (P.C.), at p. 759.
[102] Further, the amended prerequisite (40 years plus a day) that triggers “marketable title” in s. 4(1) of the MTA also applies to the Crown, despite s. 9 of the MTA. Section 116(1) of the LRA amended s. 4(1) of the MTA by subjecting the common law to the 40 year standard. Section 116(1) expressly binds the Crown, by s. 6 of the LRA. So the 40 year marketable title standard “at common law” binds the Crown. This is consistent with the LRA s. 115(7)’s amendment to s. 21 of the LAA, reducing from “sixty” to “forty” the period needed for adverse possession against the Crown. In terms of statutory interpretation, these are examples of the principles of coherence and consistency among related statutes (Sullivan and Driedger, p. 323). The amendment to s. 4(1) of the MTA was not in a mere omnibus enactment containing unrelated amendments to various statutes. Rather the LRA was a coherent and comprehensive reformation of land law. All the LRA’s provisions, including the amendment of the MTA by s. 116(1), focus on that transformational purpose. So the LRA’s amendment to s. 4(1) of the MTA (60 to 40 years) binds the Crown because s. 6 of the LRA says so.
[103] Does the rule of marketable title at common law affect the dispute over Bella Island?
[104] Di Castri, The Law of Vendor and Purchaser, ¶ 339, describes the common law principle of marketable title:
Apart from the exceptional case, a vendor will be required to show a good title: This means a merchantable or a marketable title: one which at all times and under all circumstances can be forced upon an unwilling purchaser who is not compelled to take a title which would expose him to litigation or hazard; one which is free from litigation, palpable defects and grave doubts and couples a certainty of peaceful possession with a certainty that no flaw will appear to disturb its market value. A purchaser is not required to accept or rely upon parol evidence of title, or information dehors the record, or upon the word of the vendor.
Of course, the probability of litigation must be based on reasonable, not idle grounds.
This is similar to Justice Scanlan's definition in Dupuis, above para. 52.
[105] Marketable title at common law is an in personam incident of the contract between vendor and purchaser. The vendor's remedy against a recalcitrant purchaser was available if he could deliver marketable title.
[106] Mr. Brill and the Crown are neither vendor nor purchaser, have no contract, and there is no contemplated sale of Bella Island. So the common law's concept of marketable does not determine Mr. Brill's dispute with the Crown.
[107] Mr. Brill and the NSBS point to the LRA's incorporation of common law marketable title, as a standard for the in rem effect of the binding parcel register. I will consider the LRA’s effect later (¶ 157-168).
(f) Effect of
Evidential Presumptions
on Mr. Brill’s Claim
[108] For the next several paragraphs I refer to Dr. Cuthbertson's report (above ¶ 11-14) and Ms. Chamberlain's evidence (above ¶ 16).
[109] The Crown’s promise of land enticed immigrants for Nova Scotia's settlement in the late 18th century. This predated a statutory registry and continued during the registry's infancy. The Crown allocated land to immigrants in parcels by drawing lots. In Lunenburg Township this began in 1753. The colonial government did not manage the allotment and grant system with an eye to litigation in the 21st century. There was no registry for Lunenburg until the end of the 1750s, and it cannot be ascertained now which, if any, earlier grants following the allotments were unregistered. Grants did not always meaningfully identify the parcel. The gross acreage said to be granted could exceed the total of the individual parcels mentioned in the grant.
[110] The colonial government tried to clarify the uncertainty by issuing general Township grants. In 1765, by government seal, there was a general grant of Lunenburg "for and in behalf of the inhabitants". But for unexplained reasons, this general grant was not registered after the registry began. Another general Lunenburg Township grant on June 30, 1784 listed acreages beside names of current owners, without identifying the properties or tracing title from the original grantees. Michael Beck (who with his wife granted Bella Island in 1791, beginning Mr. Brill's chain of title) was listed for 135 acres, which Dr. Cuthbertson opines would include the 26 acres of Bella Island.
[111] Crown grants were on sheepskin, and the Crown did not keep them. Rather the Crown would keep a version that was scribed at the time by a government official. There is no way to know now whether a grant was not scribed, the script was accurate or complete, or the scribed version later was lost. Ms. Chamberlain testified that there are gaps where the Crown has no record of its own grant. Errors have been found in the scribed copies of Crown grants. These 18th century documents may be illegible or use imprecise wording.
[112] This situation existed under a registry system operated by the Crown, for the Crown's grants that were the Crown's inducement for the grantee to settle in Nova Scotia.
[113] This case involves Lunenburg township. Similar allotment systems operated elsewhere in Nova Scotia - eg. in Halifax in 1749 [Cuthbertson Report, ¶ 2(b), above ¶ 11] and Falmouth, Nova Scotia as discussed in Des Barres v. Shey, [1874] 29 L.T.(N.S.) 592 (P.C., from N.S.).
[114] It was no coincidence that in 1837 the Legislature enacted Nova Scotia's Nullum Tempus Act, with its 60 year benchmark. That would have been somewhat over 60 years since the allotment and grant system operated.
[115] Our courts have long reflected upon Nova Scotia's title obscurities. Boehner v. Hirtle, 1910 CarswellNS 128 (N.S.S.C.), rev'd (1912), 46 N.S.R. 231 (in banco), rev'd by [1913] 50 S.C.R. 264 which restored the trial decision, was a trespass action which depended on title arising from the same Lunenburg allotment system. Justice Meagher, dissenting in the appeal court but later upheld by the Supreme Court of Canada, said (p. 270):
The only thing certain about this case is its profound uncertainty, and the only judges who will be found to be correct are those who are the best guessers.
[116] In Emmerson v. Madison 1903 CarswellNB 40, 36 N.B.R. 260 (S.C. in banco), rev'd (1904) 34 S.C.R. 533, aff'd [1906] A.C. 569, Justice Hannington of the New Brunswick Supreme Court in banco (Carswell ¶ 11) expressed gratitude for the possessory principle because, otherwise, "what a lamentable condition every owner of lands in Sackville and Westmorland County would be in, for, it is a fact, that owing to the loss of the original Nova Scotia grants and plans, no one in those parishes can prove his title back to the Crown".
[117] In McGibbon v. McGibbon, 1913 CarswellNS 78, 9 D.L.R. 308, 46 N.S.R. 552 (N.S.S.C. in banco) Justice Graham said [¶ 33, Carswell]:
33 Take the early grants in this province of vast areas of wilderness land with very many grantees in one grant, and granted by shares or numbers instead of individual descriptions and very vague descriptions, if any. Suppose the officials of the Crown would grant those lands to others now, what hope would the old occupants have if they could not rely upon the sixty years possession? I refer to Attorney‑General v. Love (1898) A. C., 679. I think this provision would be a very poor statute if it should receive a construction which could be evaded by such officials. Such a construction is always to be avoided.
[118] In Halifax Power Co. v. Christie (1915), 48 N.S.R. 264, 23 D.L.R. 481 (N.S.S.C. in banco), the trial judge (N.S.R. p 270), with whom the appeal court agreed (p. 275), referred to Cunard v. Irvine (1853-55), 2 N.S.R. 31 (S.C. in banco), and said (p. 271):
Before I leave that case, I may mention that it is often relied upon for this doctrine: that a person in proving his title need not trace it back to the Crown, but may trace it back to some one who has been in possession of the land. That has always been a useful thing because, from loss of deeds and neglect to register, and looseness in the descriptions in grants, the land marks having disappeared, a very large proportion of the titles could not be traced back to the Crown.
[119] Early courts presumed the Crown's civic empathy. In Scott v. Henderson (1856-59), 3 N.S.R. 115 (S.C.), at p, 119, Chief Justice Haliburton said:
The [Crown's] prerogative is founded upon the maxim that all the lands in the realm were originally in the Crown, and the law therefore acknowledges that the king's right to call upon his subjects to show under what title they claim to hold that which was formerly his. So long as the exercise of this power is confined to the Crown, little danger is to be apprehended from it, because, even in cases where a strict legal title could not be shown, if the possessor showed a reasonable equitable claim, it is to be supposed that the king, as parens patriae, and the fountain of justice, would, in such case, rather confirm than disturb the possession of his subject ...
[120] But if this attributed benevolence turned to opportunism, the Crown might expect a grim judicial reception. In Smyth v. MacDonald, (1863), 1 Old. (N.S.) 274 (N.S.S.C.), Chief Justice Young said at pp. 276-7:
... It was, in fact, a permissive and bona fide possession under the Crown; and why should the Crown, having by the act of its own officers induced one of the Queen’s subjects to enter upon wilderness land; to expend upon it the sweat of his brow, to raise his family, and, perhaps, to die upon it, be allowed to perpetrate so gross an injustice, as to pass the title and right of possession to a stranger, and turn out the innocent and meritorious settler, or his widow and children, without notice or compensation. That this ought not to be the law, will be readily allowed; and I am very clear that it is not the law. ...
and at pp. 281-2:
It is not, however, necessary to adopt the principle to the extent thus laid down by his lordship, to give full effect to the Statute of James, which evidently was passed to give protection to the subject; and where can the provisions of the Act be more valuable than to the people of Nova Scotia? I believe there are many settlers in the extreme eastern parts of the Province, that have been in possession of their lands for over fifty years, holding adversely to the Crown, and who have cultivated and improved nearly to the whole extent of the land thus claimed. To allow such persons, after the crown slumbering over its rights for so extended period, to be dispossessed by some fortunate applicant to its favor, who has succeeded in obtaining a grant, without the slightest notice to the party in possession, would, in my opinion, be an act of great injustice. And fortunate for the people it will be, if this Court can, under such circumstances, so construe the law as to afford them, if not any thing else, the opportunity of having their case fairly submitted to the Government of the country, before being deprived of possessions they have made valuable by years of toil and labor.
[121] Nova Scotia's courts did not rest with these exhortations. They responded substantively to the plight of the landholder holding a chain of title. The courts' utensils were evidential presumptions to (1) infer the existence of a grant itself from longstanding possession and (2) establish possession for a claim under the LAA.
[122] First the presumed or, as I prefer to call it, an inferred grant.
[123] In Boutilier v. Knock (1865), 6 N.S.R. 77 (S.C.), Justice Wilkins considered the 1765 and 1784 Lunenburg grants. He (p. 82) adopted the "doctrine of presumptions" which he described as follows (p. 81-2):
... “Presumption is often resorted to for the purpose of supplying defective evidence; and in this country (United States) is not oftener applied to any subject than to supplying defective title to lands. It would be difficult to make out the titles to many of the elder tracts of land in this State, by a regular deduction of title deeds from the patentees down to the present proprietors, without resorting in some stage of them to presumption. Records may sometimes be lost or destroyed, ancient title papers may be defectively executed, or the proof of them from lapse of time may be impossible,” Again: “Proprietary grants, under certain circumstances, are presumed. In general, these presumptions are bottomed upon the existence of certain facts, which can leave but little doubt upon the mind of the truth of the fact which we are called upon to presume. They frequently, too, derive their force and efficacy from that vigilance with which the law guards ancient possessions; which, sooner than that they should be disturbed, presumes that they had in contract a rightful commencement.”
In Jackson e. d. Gansevoort et al. v. Lunn, 3 Johns. Cases 109, the Court, although a grant by letters patent was proved to A. in 1735, drew the presumption of a grant from the original patentee to B., under whom and whose heirs acts of subsequent possession were proved, commencing in the year 1836, which was one year subsequent to the date of the letters patent. Radcliff, J., said (p. 113): “It is no doubt true that a plaintiff in ejectment must prevail by the strength of his own title, and if a legal title be shown to exist in another, he must be defeated of his recovery. But such an outstanding title must be a continuing or subsisting title. It is not sufficient to show that, at any distance of time, it was vested in another. If that were sufficient, it would be in the power of a defendant in ejectment, on most occasions, to hunt up the original grant or patent, comprehending the premises in controversy, and oblige a plaintiff to deduce a chain of paper title from thence. * * The possession may be shown by acts of ownership applicable to the nature of the property.” Kent, J., said (p. 117): “Patents and grants are, in a variety of cases, to be presumed, even within the time of legal memory, for the sake of quieting an ancient possession.”
He then applied the principle to the Lunenburg grants:
... It may be that those who did not concur in the petition were content to rely on the title they then had, namely, a title derived from the original grant, which certainly existed, and does not appear to have been avoided, and also in connection therewith on the preceding “laying out and locating” to them – an act which the recital shews [sic] to have been done. Unless, indeed, those of all the inhabitants who did not apply for and obtain the grant of 1784, had either the grant of 1765 to fall back upon, or some subsequent grant or grants, then they, representing 108,594 acres out of the 180,000 acres of which the whole tract described in the grant of 1784 consisted, had no title at all. That is scarcely conceivable. When the grant of 1784 passed, lot No. 15 of the 300 acre farm lots had been “located and laid out” to Jacques Boutilier in 1767, as appears by the allotment book. The recital to the later grant shows it had been allotted to him as one of the inhabitants, and that the older grant had actually passed to them generally to establish their locations.
We have then but to proceed one step further, and presume, or rather infer, that the name of Jacques Boutilier was in the older grant, or in some other grant which is not now forthcoming. ...
[124] In Des Barres v. Shey, the Privy Council applied a similar principle, to competing chains of title from an allotment and grant system in Falmouth, Nova Scotia, similar to the Lunenburg system. The headnote described the land as:
... uninclosed [sic] woodland, forming part of the native forest of this province. ... It was therefore necessarily incapable of the same extent of continuous occupation and possession as enclosed and cultivated land, and the right to it depended mainly on documentary evidence.
Sir Montague Smith wrote (pp. 594-5):
Their Lordships ... are disposed to agree with the learned judge who tried the action that both titles are defective, that is to say, neither is perfect throughout its entire course; but it appears to them they are both of such a character, that either is capable of being made good by the presumptions which ought to be made from long possession.
...
The second objection is answered by the evidence, and the presumptions arising from it. Granting that the particular lands which were to be allotted to each share were unascertained by the grant of 1761, and the grant was therefore uncertain, it does not thence follow that the title of the defendant to the specific Lot 81 is bad: for from long possession a good grant from the Crown to the predecessor in title of the defendant after allotment, may be presumed.
[125] In Halifax Power, the appeal court (p. 279), in the same vein as Boutilier and Des Barres, accepted that a conveyance could be inferred by common sense, from long possession:
But the fourth ground ... is sufficient to convince me that there was a purchase from Mason. It would be, I think, unreasonable to the last degree to believe that Mason would have stood by and acquiesced in the Todds going into possession of his land, continuing for many years in possession, logging on it, and using it as their own, if there had been no sale.
There is, in my opinion, nothing from which inferences of fact can be more safely drawn than the action of people at the time, applying to their conduct one's ordinary everyday knowledge of human nature. I am satisfied of the purchase from and the letting into possession of the Todds by Mason.
[126] The second set of judicial presumptions relates to the possessory claim under what is currently the LAA.
[127] The 1913 decision of the Nova Scotia Supreme Court in banco in McGibbon was the seminal authority on what is now s. 21 of the LAA. Justice Graham (Carswell, ¶ 5) said that the LAA provision should be construed as mirroring the purpose of Nova Scotia's 1837 Nullum Tempus Act. He continued:
27 Now I think that the expression “no claim for land shall be made by Her Majesty” is as strong to bar the right to grant as it is to bar a remedy.
28 In New Brunswick the provision in the Statute of Limitations in respect to real property is much the same in the case of the Crown as it is in Nova Scotia. It is mentioned in the report of the case of Emmerson v. Maddison, (1906) A. C., 569, and could hardly have been overlooked in the Supreme Court of Canada, 34 S. C. R., 567. And at that page Nesbitt, J., delivering the judgment of the majority, more than once uses language implying that the effect of the statute is to extinguish the Crown's title after the lapse of sixty years.
29 In our Statute of Limitations the very next section to the one in question, namely, section 21, provides:
That at the determination of the period limited by this chapter to any person for making an entry or bringing an action, the right and title of such person to the land ... for the recovery whereof such entry ... or action respectively might have been made or brought shall be extinguished.
30 I see no objection whatever to holding that “person” in that section includes Her Majesty, who is mentioned in the next preceding section.
Section 21 of the LAA, discussed in McGibbon, is s. 22 of the current LAA.
[128] Under the LAA, the question was - What possession is required of someone with documentary title? The answer has evolved as Nova Scotia's courts considered several approaches.
[129] In Bentley v. Peppard (1903), 33 S.C.R. 444 (from N.S.), at pp. 445-6, Justice Sedgewick for the unanimous Court stated seven “fundamental propositions” for adverse possession, of which several pertain here:
1. According to the English law the word “possession”, as applied to real estate, has a purely technical meaning. The word “occupancy” is not a word of legal import apart from its popular acceptation. Occupancy may as a matter of fact negative possession in its legal sense, but possession in the same sense is consistent with non-occupancy. In other words, all land in the dominions of the Crown must be in the possession of some one, whether that “some one” be the Crown itself or a natural or artificial entity. “Vacant” land – “abandoned” land, (where title is involved) is an impossibility. Possession must be somewhere – in somebody – and he who has the title is presumed to have the possession unless the actual dominion and occupancy is elsewhere.
...
4. But where a person in good faith under a written instrument from one purporting to be the proprietor, enters into blackacre – a definite territorial area – his actual occupancy of a part – no matter how small – in the absence of actual adverse occupancy by another, gives him a constructive possession of blackacre as a whole. He has it, as the phrase is, under “colour of title.”
...
7. But independently of that, and notwithstanding the statute, his grant or feoffment of the whole estate to one entering into possession under it operates as an ouster of the others and the latter’s right under the Statute of Limitations begins from the date of the grant.”
[130] Lessee of Cunard v. Irvine (1853-55), 2 N.S.R. 31 (S.C. in banco), is Nova Scotia’s leading authority in a line of cases that is central to this appeal. Chief Justice Haliburton discussed when a court may presume that a holder of paper title has possession of the parcel. He distinguished Nova Scotia from England respecting adverse possession of "wild or vacant land" (pp. 32-33):
... [B]ut I scarcely think that such a title as the plaintiff has set up in this case would be sufficient to put the defendant upon his defence in England. I incline to think, however, that it ought to be in this country. Livery of seisin has never prevailed on this side of the Atlantic; actual seisin of wild lands has never been deemed necessary to entitle a party to convey them to another.
The difference upon this point between the two countries, is well stated by Mr. Justice Story ...
... “The very object of the rule, therefore, was notoriety, to prevent frauds upon the lord, and upon other tenants. But in a mere uncultivated country, in wild and impenetrable woods, in the sullen and solitary haunts of beasts of prey, what notoriety could an entry, a gathering of a twig or an acorn, convey to civilized man at a distance of hundreds of miles. The reason of the rule could not apply to such a state of things, and cessante ratione cessat ipsa lex. We are entirely satisfied that a conveyance of wild or vacant land gives a constructive seisin thereof in deed, to the grantee, and attaches to him all the legal remedies incident to the estate.”
The operation of this different state of things in the two countries, has not been confined to the solitary haunts to which the learned Judge alludes. The deeds of conveyance which have been adopted here, have long been deemed to transfer the possession of the vendor to the vendee, although both may be at a distance from the land, at the time of the delivery of the deed.
As it is not necessary for the vendor to be in the actual possession of the land at the time of transfer, does it follow when he is not, that he must either trace up the title to the Crown, or deduce it from someone who has been in the actual possession of the land? [F]or that, it appears to me, is the question now presented to us. A large portion of land in this Province still remains uncultivated, of which no actual possession has ever been taken, and I think it would hamper the transfer of such property very inconveniently, if it were deemed necessary in all such cases to trace up a title from the Crown.
Chief Justice Haliburton then defined the application in Nova Scotia of constructive possession for purposes of an adverse possession claim (pp 34-35):
The American doctrine, and the cases decided upon it on this point ... are very safe guides in the determination of cases which can now rarely arise in England, but are of frequent occurrence here.
The rule has been stated by Mr. Justice Thompson in the circuit Courts of the United States to be unquestionable, “that where one enters into land under a conveyance, his seizin is not bounded by his actual possession, but is co-extensive with his title, but where he enters without title, his seizin is confined to his possession”.
Chief Justice Haliburton said (p. 34) “that there has been a possession of some part of this lot in the Irvines for upwards of 20 years, is undeniable.” Therefore, by constructive possession, they established title by adverse possession to the entire parcel.
[131] In Tobin v. McDougall 1914 CarswellNS 50, 47 N.S.R. 470 (N.S.S.C. in banco) at ¶ 1 (Carswell), Justice Ritchie for the court reiterated Cunard’s principle:
1. ... The fact that the defendant is in possession of itself amounts to prima facie evidence that he is legally entitled to possession, until the contrary is proved by the plaintiff. Mr. Burchell, for the defendant, took the point that the plaintiff, in order to recover, is bound to trace his title back to the Crown, or, failing that, to someone in possession. There is no doubt that this is the rule. It was laid down many years ago in Cunard v. Irvine, James' Reports, 31, and was recognized and followed in McLeod v. Delaney, 29 N.S.R. 133. The rule is too firmly established in this province to be open to question, but in my opinion the evidence does not bring this case within the rule. It is clear, as I have said, on the evidence that the defendant was in possession before and at the time that Mr. McNeil recovered his judgment. The plaintiff, therefore, has traced his title back to a person in possession, and it was not necessary that he should trace it any further back.
[132] In Ezbeidy v. Phalen (1957), 11 D.L.R. (2d) 660 (N.S.S.C.), Justice MacQuarrie (pp. 665-6) deduced from Cunard that what might be “discontinuous” or “disjointed acts of trespass” for a squatter could establish possession under colour of title:
...where there is a contest between a person who claims by virtue of his title, as the defendant does here, and a person who claims by long adverse possession only, such as the plaintiff must rely on here, there is first of all a presumption that the true owner is in possession, that the seisin follows the title.
...
Possession may be roughly defined as the actual exercise of rights incidental to ownership as such, that is, the person who claims to be in possession must exercise these rights with the intention of possessing. Where a man acts toward land as an owner would act, he possesses it. The visible signs of possession must vary with the different circumstances and physical conditions of the property possessed.
Where the contest is between the true owner on the one hand and a person having colour title on the other hand, that is, a person having a claim which is good on the face of it, such as a prior unregistered deed, that person has a much lighter burden to discharge than a mere squatter, because he always has the mental attitude, or is presumed to have it, which is a necessary ingredient to possession. He does not have to prove that discontinuous acts are not simply disjointed acts of trespass as a squatter must show, and in this case possession of a part is constructive possession of all land comprised or covered by his colour of title: cf. Lessee of Cunard v. Irvine (1853), 2 N.S.R. 31.
[133] In Legge v. Scott Paper Co. (1970), 3 N.S.R. (2d) 206 (T.D.) at pp. 221-222, Justice Gillis adopted the principles from Ezbeidy and Cunard
[134] Anger & Honsberger, ¶ 29:60.80 reiterates that the instrument which sources the colour of title need not derive from an original Crown grant:
To constitute colour of title it is not essential that the title under which the party claims be a valid one. It is not the instrument which gives the title, but adverse possession under it for the requisite period, with colour of title.
See also MacDonald v. McCormick 2009 NSCA 12, ¶ 92-94; Mason v. Nova Scotia (Minister of Justice) (1999), 176 N.S.R. (2d) 321 (C.A.), at ¶ 31; Rafuse v. Meister (1979), 32 N.S.R. (2d) 217 (C.A.), ¶ 21-25; Scott v. Smith (1979), 36 N.S.R. (2d) 541 (A.D.) at ¶ 12; Ferguson v. Ormiston, ¶ 6-9, and cases there cited.
[135] The quality of the possession required for constructive possession is a "highly contextual" factual issue that varies with the circumstances of each property and "the suitable and natural mode of using" the property. So "acts constituting possession in one case may be wholly inadequate to prove it in another". Halifax Power, N.S.R., pp. 269, 275 (agreeing with trial judge); Kirby v. Cowderoy, [1912] A.C. 599, p. 603; Elliott v. Jardine (1961), 45 M.P.R. 104 (N.S.C. in banco), p. 110; Taylor v. Willigar (1979), 32 N.S.R. (2d) 11 (S.C.A.D.), ¶ 20-21; Nickerson v. Canada (Attorney General) (2000), 185 N.S.R. (2d) 36 (S.C.), at ¶ 44. A rural property with a summer cottage may still be possessed when unoccupied the rest of the year: Taylor, ¶ 20. Vacant woodland may have no suitable and natural form of possession, and the payment of property taxes by the paper title holder may be an act of possession. Halifax Power, pp. 269, 275; Kirby, pp. 602-603.
[136] The court may use recitals in ancient title documents (i.e. documents over 30 years old) as evidence to presume possession: Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Butterworths, 1999) says:
G. Statements Contained in Ancient Documents as Evidencing a Proprietary Interest in Land
§6.200 Ancient documents such as deeds or leases which affect an interest in property have been admitted by the courts as evidence of possession of the realty. This exception is usually restricted in its application to property deeds and similar documents.
...
A. Ancient Documents
§18.52 Any written document proved or purporting to be not less than 30 years old, which is produced from proper custody, is presumed, in the absence of circumstances of suspicion, to have been duly signed, sealed, attested, delivered, or published according to its purport. Such documents, in absence of suspicious circumstances, are said to prove themselves.
In Tobias v. Nolan (1987), 78 N.S.R. (2d) 271 (C.A.), at ¶ 39-40, Justice MacDonald reiterated the trial judge's use of the passage from Sopinka and Lederman.
[137] Similarly Di Castri, Q.C., The Law of Vendor and Purchaser ¶ 306 says:
At common law an instrument 30 years old qualifies as an “ancient document”, i.e., admissible in evidence without proof of execution, provided it is free from suspicion and produced from the proper custody, e.g., that of the plaintiff’s solicitor.
...
While an ancient document is admissible as presumptive evidence of possession, and not as proving the truth of the facts alleged, when admissible, it may not only be evidence of the deduction of title, but may also constitute reasonable evidence of seisin, even in favour of a grantor and his successors in title.
[138] In Inter Lake, supra, Justice Davison said:
12 The remaining question is whether the facts, with respect to the 1914 deed as set forth in the 1947 deed, are sufficient to extend paper title back to 1914.
13 I have not been referred to nor do I know of any authority where s. 1(a) of the Vendors and Purchasers Act has been judicially considered.
14 In Gunn v. Turner (1906), 13 O.L.R. 158 (Ont. C.A.), the Court had before it an action for specific performance of an agreement for the sale of lands and at issue was whether the defendant could produce a good title to the lands. In the course of his judgment, Teetzel, J. commented that the plaintiff should have applied to the Court under the Vendors and Purchasers Act, R.S.O. 1897, c. 134. His decision was subsequently affirmed by the Divisional Court. At issue was a deed which was more than 20 years old which contained a recital that the grantee was the administrator of his father's estate and that the land was conveyed to him in satisfaction of the discharge of a debt due to his father. It was held that this recital, being a recital in a deed 20 years old, was sufficient evidence of the truth of the facts therein stated in the absence of proof to the contrary.
[139] Inter Lake was an application under the VPA. Section 2(a) of the VPA states:
2 In the completion of a contract of sale of land, the rights and obligations of the vendor and the purchaser shall, subject to any stipulation to the contrary in the contract, be regulated by the following rules:
(a) recitals, statements and descriptions of facts, matters and parties contained in statutes, deeds, instruments, conveyances or statutory declarations, any of which are more than twenty years old at the date of the contract, unless and except in so far as they are proved to be inaccurate, shall be sufficient evidence of the truth of such facts, matters and descriptions;
[140] In Interlake, ¶ 8, Justice Davison also said:
... There is no evidence of possessory title before me and according to the authorities in this country, possessory title can only be presumed if there exists paper title for a period of 60 years.
[141] In Boland, ¶ 4, Justice Boudreau similarly said:
In my opinion the paper title is prima facie evidence of ownership and possession as indicated by the recorded documents ... [Justice Boudreau’s underlining]
[142] The line of authority culminates with Nemeskeri v. Nova Scotia (Attorney General) (1992), 115 N.S.R. (2d) 271 (S.C.T.D.) affirmed (1993), 125 N.S.R. (2d) 67 (C.A.). At trial, Justice Tidman found that the plaintiffs had established adverse possession to land under the LAA, and quieted title under the QTA. He said (¶ 68) that the evidence of actual possession by the plaintiffs was "sketchy as it appears that the title holders made very little use of the lands". He continued:
69 What is referred to as the doctrine of color of title does not require the plaintiff to show actual possession. As stated by MacQuarrie, J., in Ezbeidy v. Phalen (1957), 11 D.L.R. (2d) 660 (N.S.T.D.), at p. 665:
As to (3) where there is a contest between a person who claims by virtue of his title, as the defendant does here, and a person who claims by long adverse possession only, such as the plaintiff must rely on here, there is first of all a presumption that the true owner is in possession, that the seisin follows the title. This presumption is not rebutted or in any way affected by the fact that he is not occupying what is in dispute.
70 In the circumstances here I would equate the true owner to the registered owner of the lands. The presumption that the registered owner of the title is in possession and that the seisin follows the title has not been rebutted by the defendant Meisner. Meisner offers no evidence of possession by the heirs through which he claims.
...
73 The conveyance by warranty deed from Omri and Kenneth Moland to the Chester Light and Power in 1924 (item #5) is also evidence indicating that Omri and Kenneth at that time were sole owners of the fee simple which is also evidence of constructive dispossession or discontinuance of possession by the other heirs.
The Court of Appeal dismissed the appeal with short reasons: (1993), 125 N.S.R. (2d) 67. Justice Freeman (¶ 6) noted that Justice Tidman had found that the right to bring an action "expired in 1970, forty years after they were disposed by the Kenneth Morland deed". He said (¶ 9) "As noted by the trial judge any claim by the heirs of David Morland was barred by the limitation period."
[143] Mr. Brill cites Nemeskeri for the proposition that a chain of title per se establishes a legal presumption of possession in the title holder for the period of the chain. Accordingly, since the amendment to s. 21 of the LAA by the 2001 LRA, a chain of title for 40 years in Mr. Brill or his predecessor would presume 40 years of adverse possession in Mr. Brill under the LAA. Before that amendment to s. 21, a 60 year chain of title would satisfy the former version of s. 21.
[144] My view is as follows. I intend this as a summary of the principles from the authorities that I have discussed.
[145] The question is - What is the effect of a chain of title under s. 21 of the LAA? The answer is not as simple as the application of the standard in s. 4(1) of the MTA. Section 4(1) cites a straightforward 40 year chain of title from a root simply defined in s. 4(2). Adverse possession under the LAA depends on textured principles that the Nova Scotian courts knitted over 140 years from Cunard through Nemeskeri. Those principles aren’t reducible to a snappy axiom.
[146] The common law binds the Crown, subject to an exception for a prerogative. One former prerogative was nullum tempus occurrit regi. But that was superceded by the Nullum Tempus Acts of the United Kingdom and Nova Scotia, and then by Nova Scotia's LAA, currently s. 21. This conclusion is clear from McGibbon. As discussed earlier, I reject the Province's argument in this appeal that the MTA has resurrected the Crown's prerogative. The Crown is bound under s. 21 of the LAA by the same judge made principles that apply to others under the LAA’s general provisions for adverse possession claims.
[147] The limitation against the Crown, formerly 60 years, is now 40 years under s. 21 of the LAA, as amended by the LRA.
[148] Since McGibbon, it is clear that the times of successive possessors may be tacked and that the current s. 21 may be interpreted consistently with the intent of the more fulsomely worded 1837 Nova Scotia Nullum Tempus Act.
[149] McGibbon ruled that what is now s. 22 of the LAA applies to extinguish a Crown interest after the passage of the limitation in s. 21. Section 6(1) of the QTA has similar effect once the possessory title is quieted. In Logan v. Levy and AGNS (1975), 20 N.S.R. (2d) 500 (T.D.), ¶ 41, Justice Jones issued “an order declaring that the Crown’s title to these lands has been extinguished” under the LAA.
[150] The holder of documentary title need not trace his ostensible title back to an original Crown grant to have colour of title, as discussed in Cunard, Bentley, Tobin, Ezbeidy, Legge, Anger & Honsberger, and the other authorities above.
[151] The title holder with colour of title who enters into occupancy of any part, however small, of the parcel gains constructive possession of the entire parcel that is described in his title instrument: Bentley. Cunard acknowledged that constructive possession is triggered by some entry. Possession is basic to title in land at common law: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, ¶ 149; Megarry and Wade, pp. 1004-1006; Anger & Honsgerger, ¶ 28:50; R. v. Marshall, 2003 NSCA 105, ¶ 120-121, per Justice Cromwell, appeal allowed without disturbing this general principle [2005] 2 S.C.R. 220. The paper title must be coupled with some act of dominion that signifies possession. In Nemeskeri, Justice Tidman said the evidence of possession was "sketchy". I take that to indicate there was some act of possession. I do not read Nemeskeri as repudiating the authorities that some – no matter how small – entry, occupation or act of dominion is required by the title holder to initiate constructive possession.
[152] The grant of the estate to one who enters into possession begins the entrant's possessory march under the LAA: Bentley. Justice Tidman's comments about constructive dispossession in Nemeskeri should be read in this context.
[153] The nature of the required entry into possession, or act of possession, by a paper title holder with colour of title, is an issue of fact that varies with the circumstances of the parcel and the suitable and natural use of the property: Halifax Power, Kirby. What would be “discontinuous” or “disjointed” acts for a squatter, someone without paper title, might establish possession for someone with colour of title. That is because the paper title establishes the mental attitude of dominion, and needs only a coupling act, or evidence of it, to exercise the possession: Ezbeidy. Vacant land, woodland or what the cases have described as "wild" land, would require significantly less than a developed property: Cunard, Bentley, Halifax Power, Kirby.
[154] Mr. Brill says that he and his predecessors have for years paid the property taxes on Bella Island, which he cites as acts of possession. As I will discuss under the third issue, the application of the legal principles to the circumstances of this case is for trial. But I reiterate the view of Justices Hallett and Cromwell from Bowater and MacNeil (above ¶ 38). In a QTA dispute between only two parties with no other apparent title holder, after proper notices have been given, the practical approach is to quiet title based on the better claim. So a landholder’s payment of property taxes, because he is designated “owner” by the Provincial Government’s assessment office, in the circumstances might be a meaningful act of possession in a dispute between just the landholder and the Provincial Crown, with no other claimant. (See also Halifax Power and Kirby.) In this respect, the following provisions of the Assessment Act, R.S.N.S. 1989, c. 23, as amended, are pertinent. Section 5(1)(a) says that Crown land is exempt, but if the land is “occupied” the “occupant” may be assessed. Section 32 says that, except where the Act otherwise provides, “property shall be assessed as property of the owner”. Section 15 gives the Province’s Director of Assessment responsibility to administer the Act and the duties assigned by the Lieutenant Governor in Council or the provincial Minister of Municipal Affairs. Section 18 directs that the Director “shall ascertain by diligent inquiry and examination the names of all persons liable to be rated ..., their property within the municipality and the extent, amount and nature of the same ...”. Section 25(a) says the Director “shall prepare the assessment roll” to include “the name and address of the owner”. Section 38(1) says the property “may be assessed” to the latest owner shown at the Registry of Deeds and s. 38(3) says it “shall be assessed” to the owner in fee simple listed on a parcel register under the LRA.
[155] The court looks for an entry, occupation or other act of dominion by the party with the chain of title. The inquiry is for substance, not ritual. So it is not essential to have viva voce evidence witnessing the title holder stride into his woodland to seize an acorn (Cunard). The possessory act may be evidenced by facts recited in the title documents admitted under the “ancient document” principle (Sopinka, Di Castri, Tobias). Section 29 of the Evidence Act, R.S.N.S. 1989, c. 154 (as amended by the LRA, S.N.S. 2001, c. 6, S. 105) says that certified copies of registered LRA documents are admissible as proof of their contents.
[156] I have been discussing the judge made presumptions that follow from a chain of title. The final question, addressed at length in the submissions on this appeal, is how those principles are affected by Nova Scotia's new land title system under the LRA.
(g) Effect of LRA
[157] Mr. Brill and the NSBS say that the LRA has shifted the paradigm. They submit that s. 20 gives in rem effect to the statement of title on the parcel register. The parcel register derives from the solicitor's certificate upon which the Registrar General is entitled to rely by s. 18(3). Section 37(9) states that the certificate of title is based on the current NSBS practice standards, and shall show a chain of title based on the standard in the MTA, LAA, any other enactment, the common law, or to a lesser standard that the Registrar General approves. The NSBS practice standard refers to marketable title and the common law.
[158] The NSBS and Mr. Brill submit that the in personam application of the MTA and common law of marketable title, between vendor and purchaser, is now by statute an in rem standard. So a 40 year chain of title, either by s. 4 of the MTA or by the common law of marketable titles as amended by the MTA s. 4(1), without any act of possession, defines title against the world. The world includes the Crown, which by s. 6 of the LRA is bound by the parcel register.
[159] The NSBS and Mr. Brill submit that this result makes eminent sense. They describe as inherently irrational the notion that a vendor may force a "marketable title" on a purchaser to land that is still owned by the Crown, because there was no initial Crown grant. Marketable title is to be “free from litigation, palpable defects and grave doubts and couples a certainty of peaceful possession with a certainty that no flaw will appear to disturb its market value” (Di Castri ¶ 339, quoted above ¶ 104). How, Mr. Brill and the NSBS ask figuratively, can there ever be such a marketable title from a 40 year chain if the Crown nonetheless may recover the land, as ungranted centuries before the recorded chain? They point to the following passage from the decision of the Ontario Court of Appeal, under somewhat differently worded legislation, in Fire v. Longtin (1994), 112 D.L.R. (4th) 34 (O.C.A.), at p. 42, appeal dismissed for the reasons of the Court of Appeal, [1995] 4 S.C.R. 3:
With respect, I find it difficult to understand how it can be said that a title searcher and the solicitor certifying title can safely rely upon instruments within the forty‑year period, and then say that a grantee taking within that period gets no title if his grantor had no title to convey. That is merely saying that a solicitor certifying title is saved from a negligence claim, but that the grantee who relies on the certification gets no title. That is not what the legislation says, and that is not what this court said in the Tkach case and in the Algoma case. In both of those cases, the root of title on which the successful party relied was one where a grantor, as a result of some form of error, purported to convey title which he did not have. Indeed, if the decision of this court in National Sewer Pipe is correct — that the grantor under a conveyance which constitutes a root of title must have had a good title to convey — then it follows that the only safe search is one back to the original grant from the Crown.
[160] The NSBS and Mr. Brill refer to s. 4(2) of the MTA that starts the 40 year chain from a registered instrument that "conveys or purports to convey" title. This, they say, replicates the courts' view under the LAA that a defective instrument may still establish colour of title. They submit that the LRA has incorporated these principles into the architecture of the parcel register that binds the world, including the Crown.
[161] My comments on the submissions of Mr. Brill and the NSBS are these.
[162] By s. 20, "a parcel register is a complete statement of all interests affecting the parcel". This is subject to the exceptions expressly noted in the LRA, such as overriding interests and challenges to the contents of the parcel register that may be resolved by the Registrar General and the Court. By s. 6, the Crown is bound, as is everyone. Section 73(1)(a) states that an actual reservation or exception in an actual initial Crown grant overrides, but says nothing about a dispute whether there was an initial Crown grant.
[163] The LRA involves the mirror, curtain and insurance principles of land title systems. These mean, respectively, that the register should accurately reflect the title, the register is the only source of title information, and there is indemnity to those who suffer a loss because of a flaw in the land registration system. Anger & Honsberger, ¶ 30:40.30. MacIntosh, Nova Scotia Real Property Practice Manual, ¶ 16-2.
[164] In C.P.R. and Imperial Oil Ltd. v. Turta, [1954] S.C.R. 427, at p. 443, Justice Estey for the majority adopted this passage from an earlier decision:
The cardinal principle of the statute is that the register is everything and that, except in cases of actual fraud in the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against the world.
Justice Estey continued (pp. 443-444):
The foregoing preamble and quotations, as well as others to similar effect, emphasize that the Torrens system is intended “to give certainty to the title” as it appears in the land titles office.
[165] I agree that the parcel register under Nova Scotia's LRA would have in rem effect against the world, including the Crown, subject to the exceptions expressly prescribed in the LRA. I agree that there is no such exception, expressed in the LRA, governing a dispute whether there was an initial Crown grant. I also agree that, by s. 37(9), the standards under the MTA or common law, including the common law of marketable title, are among those that may generate the parcel register.
[166] But that is as far as I can take the submissions of Mr. Brill and the NSBS on this appeal. Bella Island has not been migrated to the LRA, and has no parcel register. Section 37(9)(b), offers a menu of standards to generate the parcel register, including the MTA, LAA, any other enactment, common law or "such lesser standard as the Registrar General may approve". It cannot be predicted now what standard eventually may determine Bella Island’s ultimate parcel register.
[167] Once there is a parcel register, the LRA provides a process for consideration of objections. The Registrar General may act under ss. 33-34, or the court under ss. 35 and 91-92.
[168] This is not a proceeding under the LRA to consider the accuracy of a parcel register. So I will not express a view how this court might handle a possible appeal from a future decision of the Supreme Court on a prospective challenge to a hypothetical parcel register. That currently abstract issue will have to await another day when this court has an appeal with a record containing a Supreme Court ruling, possibly a determination by the Registrar General, and an actual parcel register for Bella Island.
[169] Mr. Brill’s factum says the Province has “frozen” the migration of Bella Island to the LRA. I do not comment on that allegation. There is no motion or supporting record in this proceeding for an order based on that allegation.
7. Third Issue -
Summary Judgment
[170] On an appeal from a summary judgment ruling, the Court of Appeal’s standard is that the court will intervene only if the chambers judge’s decision erred in law or would cause a patent injustice. Maritime Travel Inc. v. Go Travel Direct. Com Inc., 2007 NSCA 11, ¶ 3 and authorities there cited.
[171] The hearing before Justice Coady occurred in September 2008, under Nova Scotia’s former Civil Procedure Rules. The new Rules came into force on January 1, 2009. The former Rule 13.01 said that a party may apply for summary judgment on the ground that “there is no arguable issue to be tried” respecting either the claim, the defence, or any part of the claim or defence.
[172] Mr. Brill’s cause of action in his statement of claim is for a certificate of title under the QTA, and his interlocutory notice cited s. 9(5) of the QTA. Section 9(5) permits an application to a judge for directions. Section 11(4) permits a judge to order a certificate of title after an application without trial. Section 12 discusses certificates after trial. The chambers judge’s ruling on the summary judgment application, and the parties’ submissions on appeal from that ruling, did not discuss the QTA’s practice for interlocutory rulings. Rather the judge’s decision and the parties’ submissions dealt solely with the summary judgment practice under Civil Procedure Rule 13.01. So I will consider the ground of appeal from that same procedural perspective. My reasons should not be taken as altering any practice under the QTA.
[173] The principles governing a chambers application for summary judgment under the former Rule 13.01 are well known. The applicant must show there is no genuine (or arguable) issue of material fact requiring trial. If the applicant does not show this, the application is dismissed. If the applicant shows this, then, to defeat the application, the responding party must show, on the undisputed facts, that his claim or defence has a real chance of success: Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, ¶ 27; United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35, ¶ 9; Selig v. Cook’s Oil Company Ltd., 2005 NSCA 36, ¶ 10. To satisfy this test, a bald assertion or denial in the pleadings may not suffice. Rather the parties are expected to put their evidential “best foot forward”: MacNeil v. Bethune, 2006 NSCA 21, ¶ 32-33. Notwithstanding the above, the chambers judge retains discretion to deny summary judgment on a principled basis in the interests of justice: MacNeil v. Bethune, ¶ 34.
[174] Justice Coady’s decision, ¶ 27-30, referred to Rule 13.01, the test from Guarantee v. Gordon and the “best foot forward” principle. He examined the evidence and concluded that, though Mr. Brill’s case was persuasive, there remained arguable issues to be tried.
[175] I cannot conclude that the chambers judge erred in law, or that his decision resulted in a patent injustice. The evidence of Mr. Brill’s chain of title may lean to Mr. Brill, as the judge said. But the balance of probabilities is a trial standard. An evidential tilt is not the same as absence of a genuine triable issue needed for a summary judgment. I am unable to overturn the chambers judge’s appraisal of weight.
[176] Mr. Brill sues for a quieted title under the QTA. To succeed under the QTA Mr. Brill needs to establish title based on property law.
[177] Mr. Brill claims that the Crown granted Bella Island. These were two Lunenburg grants of 1765 and 1784 (above ¶ 14). The 1765 grant was not registered, but Mr. Brill may have an argument that non-registration cannot assist the grantor. The 1784 grant may involve evidential issues whether Bella Island passed to Jacob Meurer, then to Michael Beck or his wife, Mr. Brill’s predecessors in title (Cuthbertson report, above ¶ 12 and 14). These grants have been litigated: e.g. Boehner v. Hirtle and Boutilier v. Knock (above ¶ 115, 123). The application of those grants to Bella Island involves triable issues as it did in those cases.
[178] As discussed earlier (¶ 124), in Des Barres, the Privy Council considered which of two competing claims to land was sourced in the earlier Crown grant, derived from an allotment system in Falmouth, Nova Scotia similar to the 18th century system in Lunenburg County. The Privy Council (p. 595) said “from long possession a good grant from the Crown to the predecessor in title of the defendant may be presumed.” The courts drew similar presumptions or inferences from title indicia in Boutilier v. Knock, involving the Lunenburg grant, and Halifax Power. Whether this approach applies to Bella Island is an issue for trial, not summary judgment.
[179] Mr. Brill’s alternative claim for adverse possession involves triable issues. A chain of paper title extending back forty years today [or sixty years before the LRA s. 115(7)] may, in the circumstances I have discussed, establish colour of title and constructive possession to support a claim against the Crown under s. 21 of the LAA. There may be issues about the existence of those circumstances. As the chambers judge said, there may be arguable issues about the chain’s integrity.
[180] I agree with the chambers judge that Mr. Brill’s claim for a certificate of title under the QTA involves triable issues.
8. Conclusion
[181] I would grant leave to the Province and Mr. Brill to appeal and cross appeal the interlocutory decision. Though my reasons differ from those of the Chambers judge, the ultimate result is the same. On the two issues posed by Mr. Brill’s interlocutory notice: (1) there is no longer a “60” year rule at common law (though common law principles do impact Mr. Brill’s claim as I have discussed); (2) summary judgment should be denied, and Mr. Brill’s QTA claim should go to trial. On the Province’s appeal, a 40 year rule does apply to the Crown on the terms I have discussed. So I would dismiss the appeal and cross-appeal.
[182] Though some tangential topics were argued, the critical issue in this appeal was the Province’s submission that the MTA extinguished the common law principles related to presumed possession under a chain of title, from claims against the Crown under s. 21 of the LAA. Mr. Brill succeeded on that issue. I would order the Province to pay costs of $5,000 plus disbursements to Mr. Brill for the appeal.
Fichaud, J.A.
Concurred in:
Oland, J.A.