Court of Appeal

Nova Scotia Court of Appeal

Citation: Hatt v. Peralta, 2014 NSCA 15

Date: 20140212

Docket: CA 415500

Registry: Halifax

Between:

Marlene Hatt

Appellant

v.

Gregory David Peralta

Respondent

Reasons for judgment:

[1]                  The parties own abutting properties in Gaetz Brook, Nova Scotia. Marlene Hatt claims she obtained title to a portion of Mr. Peralta’s lands based on adverse possession. She also claims an easement to her property based on adverse possession or based on the doctrine of lost modern grant.  In an unreported decision dated March 28, 2013, Nova Scotia Supreme Court Justice Pierre Muise dismissed Ms. Hatt’s claims.

[2]                  Ms. Hatt’s Notice of Appeal sets out four grounds of appeal.  Ms. Hatt asserts the trial judge erred in applying the law as it relates to adverse possession of cottage properties and the applicable burden of proof to be met to prove adverse possession. Ms. Hatt also argues the trial judge made palpable and overriding errors with respect to the evidence. Finally she argues the trial judge erred in the application of the provisions of the Limitation of Actions Act, R.S.N.S. 1989, c. 258.

[3]                  For the reasons which follow, I would dismiss the appeal.

Standard of Review

[4]                  A Court of Appeal must not interfere with a trial judge’s conclusions on matters of fact unless there is a palpable or overriding error. A Court of Appeal will only intervene if the trial judge has made a manifest error, ignored or misunderstood conclusive or relevant evidence, or drawn erroneous conclusions from it (Hatfield v. Mader, 2012 NSCA 66 at ¶21). If a trial judge applies an incorrect legal principle then appellate deference is forfeited and the standard of review we apply is one of correctness (Housen v. Nikolaisen, 2002 SCC 33, ¶33).

Analysis

[5]                  I deal with the first three issues as raised by the appellant together as they are related issues.  Ms. Hatt has framed her submissions on appeal to suggest the trial judge made errors in law. I am satisfied Ms. Hatt is actually challenging the trial judge’s findings of fact. In his decision the trial judge conducted a thorough review of the evidence. In part he concluded: “In the case at hand, we are dealing with minimal acts of possession, and the title holders were friendly acquaintances in an area where no one erected fences nor complained of such minor use of their property. So there is at least as much reason in the case at hand to find that the requisite possession has not been established as it was in Mader.”

[6]                  In A.M. v. Children’s Aid Society of Cape Breton-Victoria, 2005 NSCA 58 at ¶26 the court explained:

[26]   This is an appeal.  It is not a retrial on the written record or a chance to second guess the judge’s exercise of discretion.  The appellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise of discretion for that of the judge at first instance.  This Court is to intervene only if the trial judge erred in legal principle or made a palpable and overriding error in finding the facts.  The advantages of the trial judge in appreciating the nuances of the evidence and in weighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deference except in the presence of clear and material error ...

[7]                  The appellants say that the trial judge applied a higher standard than a balance of probabilities, and in doing so, “marginalized” their evidence.  With respect, this is not what the trial judge did. He said “…the burden to provide the requisite clear and cogent evidence is always on the party claiming adverse possession and remains on that party to the end.”  That is a correct statement of the law as emphasized by this Court more than once. The expression “very cogent evidence” appears in Hatfield at ¶97, and  Fralick v. Dauphinee, 2003 NSCA 128 at ¶46. It is a comment on the quality of the evidence required to dispossess a legal owner (Mr. Peralta in this case).  It is not a comment on the burden of proof, which remains the balance of probabilities.

[8]                  Likewise, the trial judge did not marginalize the evidence of the appellant and her witnesses. It is clear that he considered it carefully, and found they were making every effort to be truthful.  In the end he found that they were mistaken in some of the details of their evidence. There is an important distinction between lying and being mistaken. The trial judge here did not say the appellant was untruthful.  Making this kind of determination was the duty of the trial judge and it is not something this Court can interfere with unless he was obviously wrong. The appellant’s reliance on some criminal cases to support the ‘marginalization’ argument is misplaced.  In criminal cases, such as R. v. Lake, 2005 NSCA 162 and R. v. W.(D.), [1991] 1 S.C.R. 742, the analysis is designed to protect the constitutional presumption of innocence. It has no application in a civil case where the appellants have a burden of proof to discharge.

[9]                  As noted above, in the absence of a palpable or overriding error a trial judge is accorded substantial deference in relation to findings of fact.  In this case, the facts as determined by the trial judge are reasonably and logically connected to the evidence. There is nothing in the record that suggests the trial judge ignored or misunderstood the evidence or that he may have drawn an erroneous conclusion that would amount to a palpable or overriding error.

[10]             I am not persuaded that, in applying the law to his findings of fact, the judge made any error to warrant appellate intervention in determining that Ms. Hatt’s acts of possession were not sufficient to establish adverse possession.  Ms. Hatt’s use and occupation of the disputed lands is a far cry from the situation in Taylor v. Willigar and Skidmore, (1979), 32 N.S.R. (2d) 11 (S.C.A.D.).  In that case the court was dealing with a situation wherein the claimant had erected a camp and was using it seasonally.  The case before this Court is one where the trial judge determined there was occasional minor use of a friendly neighbour’s property. It is clear from his decision, including his description of Ms. Hatt’s property as the “cottage lot” that the trial judge understood the nature and use of the property.  This was also reflected in the judge’s recounting of evidence of Ms. Hatt, her children, her predecessors in title, the MacMillans, and Mr. Anderson, a predecessor in title to Mr. Peralta. Although acts of possession are to be viewed contextually depending on the circumstances of each property (Nova Scotia (Attorney General) v. Brill, 2010 NSCA 69) casual and intermittent entry by a friendly neighbour does not amount to adverse possession using any standard of proof.   

[11]             Ms. Hatt also argued the trial judge erred by failing to properly apply s. 13 of the Limitation of Actions Act. She argues that occasional use of the disputed lands by Mr. Peralta or his predecessors in title was not sufficient to reset the clock in terms of the limitation period. Section 13 provides as follows:

No person shall be deemed to have been in possession of any land, within the meaning of this Act, merely by reason of having made an entry thereon.

[12]             The argument in relation to s. 13 is rendered moot based on the failure by Ms. Hatt to establish her claim of adverse possession. I would however state that the trial judge did not err when he held that the limitation clock is reset when a true owner sets foot upon the lands in dispute. In the present case the trial judge found that the true owner had been on the disputed lands during the relevant 20 year period.  I reference, for example, the appellant’s own evidence that Mr. MacKenzie, one of Mr. Peralta’s predecessors in title, came over more than once and stood on the disputed lands and talked while leaning against cars. Ms. Hatt says that by virtue of s. 13, the occasional use of the land was not sufficient to interrupt Ms. Hatt’s possession. This argument fails to recognize the legal distinction as between the true owner of lands and a person asserting a claim based on adverse possession.  A true owner interrupts the adverse possession of an occupier the moment a true owner steps upon the lands. The limitation period begins to run from the time the true owner was last upon the lands. This point was made by Murray, J. in Bain v. Nova Scotia (Attorney General), 2012 NSSC 355 when he said:

[157] ... Under the Limitation of Actions Act, a mere entry by a person is not considered under Section 13, to be possession. A person in this context is different from an owner who, according to Bowater, need only step foot on the land, to be considered in possession of it.  ...

[13]             A claim based on adverse possession by Ms. Hatt could only begin to run from the last time Mr. Peralta or his predecessor in title was upon the lands. The learned trial judge did not misapply the law in relation to section 13 of the Act.

Disposition

[14]             I would dismiss the appeal with costs in the amount of $2,500 plus disbursements to be agreed upon or taxed, payable by the appellant to the respondent.

Scanlan, J.A.

Concurred in:

Oland, J.A.

Bryson, J.A.