SUPREME COURT OF Nova Scotia
Citation: Henderson v. Quinn, 2021 NSSC 227
Date: 20210713
Docket: AMH No. 460159
Registry: Amherst
Between:
Patrick Henderson, Mark W. Scales, Nicola J. Scales, Richard King, Sheila King, Timothy King, Cherie Marshall, Vicki Hallett, Jo Ann Hatfield, Edith Leadbetter, Allan Mills, Donald Quinn, Kelly Quinn, Shelley Dow, Deborah Woods, Richard Porter, Nikole McCormick, Carol Brown, James Yorke, Joan Andrusaitis, David Redfield, Carol Redfield, John Campbell, Kevin McCormick, M. Gail McCormick, Delphine Davies, Gardiner Patterson, James Best, Donna Best, Danny Best, Heather Best, Jimmy-Lee Best, Natasha Kyte, Gwendolyn Henderson, and Kevin Yorke
Plaintiffs
and
Jaqueline Quinn and William Quinn
Defendants
and
Bruce W. Graham and G. Malcolm Graham
Third Parties
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Judge: |
The Honourable Justice Ann Smith
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Heard:
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March 17, 18, 2021, in Amherst, Nova Scotia |
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Counsel: |
Brian Creighton, for the Plaintiffs Dennis James, Q.C. and Paul Wadden, for the Defendants |
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Charles Thompson, for the Third Parties, not participating |
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By the Court:
Introduction
[1] This motion for summary judgment considers the question of whether a particular road, called “Old Farm Road”, is a private road owned by the Defendants, Jacqueline Quinn and William Quinn (the “Quinns”) or whether it has been designated as a public road.
[2] In the underlying action commenced in February 2017, the approximately 40 Plaintiffs claim, inter alia, that a portion of Old Farm Road which leads to a beach at Clarke Head has been designated as a public road. In this decision I will refer to the disputed portion of Old Farm Road as both “Old Farm Road” and “the road”.
[3] In July 2015, the Quinns purchased an 80-acre property at Old Farm Road in Greenhill, Nova Scotia from the Third Parties, Bruce and Malcolm Graham (the “Quinn land or property”). The land had been in the Graham family since 1951 (the “Graham lands”). The Graham family acquired the Graham lands from Fred Best in 1950.
[4] After purchasing the Graham lands, the Quinns noticed individuals crossing their land to access the beach at Clarke Head, to which their property is adjacent. The Quinns erected “No Trespassing” signs on their property and blocked the road to prevent vehicles from crossing. Soon thereafter the Plaintiffs filed a Notice of Action and Statement of Claim in which they allege:
3. The Old Farm Road is a well-established public road or right of way for numerous adjoining and adjacent properties that run from the Two Islands Road in Greenhill to the beach and shoreline of the Minas Basin at Clarke Head in Two Islands.
[…]
5. The Old Farm Road has been in uninterrupted use by the public since before living memory and by adjoining and adjacent property owners and their invitees for generations for beach access at Clarke Head for commercial and recreational purposes, including transport of fishing boats and gear to the shoreline for flounder fishing and other fishing, swimming, rock hounding and various recreational uses.
6. The Old Farm Road is integral to the use and enjoyment of the shore of the Minas Basin at Clarke Head:
a. by the public […]
7. The Old Farm Road has been openly used and enjoyed for generations by the public and by adjoining land owners as the defendants observed and were aware of on their purchase of the Graham lands in 2015.
[…]
10. The defendants have asserted that the Old Farm Road is not a public way or private way for adjoining and adjacent owners…
[…]
45. The plaintiffs claim the following relief:
a. All the plaintiffs claim a declaration that the Old Farm Road is a public road or is dedicated to public use since before living memory.
[5] In April 2019, the Plaintiffs applied to the Nova Scotia Supreme Court for an interlocutory injunction allowing them to use Old Farm Road to access Clarke Head beach. Arnold J. heard the motion and by decision dated June 21, 2019 (2019 NSSC 190), granted the motion for interlocutory relief as follows:
• Requiring the Defendants to forthwith remove structures or obstructions which they have built into or on the Old Farm Road;
• Allowing the Plaintiffs, at their own expense, to restore the roadway leading from Old Farm Road to Clarke Head beach to a condition that would permit pedestrian and vehicular access to the shore;
• Enjoining the Defendants from interfering with the Plaintiffs’ use of the roadway to access Clarke Head beach for recreational purposes.
[6] Also noted by Arnold J, the Plaintiffs fall into several groups:
7 There are more than 40 plaintiffs in this action. They fall into several groups. Some plaintiffs own cottages or homes on properties subdivided from the Graham land. Some own cottages or homes on Gilbert Road. Other plaintiffs are members of the public who live within a short distance of Old Farm Road or have historical or family connection to the local community. While some of the plaintiffs intend to establish at trial that their properties benefit from a right of way to use the road that crosses the Quinn property to access the beach at Clarke Head, all the plaintiffs say they have the right to use the road to access Clarke Head beach by way of dedication of the road for public use.
[7] The Quinns added Bruce and Malcolm Graham as third parties to the action, and discovery examinations began in November 2019.
Evidence on this Motion
[8] The Quinns filed and relied upon the following evidence:
1. Affidavit of Jacqueline Quinn (two volumes with exhibits (a-bb) sworn December 10, 2020;
2. Excerpts from the discovery examination of Bruce Graham who was discovered on January 10, 2020. At that time Bruce Graham confirmed that he had the authority to speak on behalf of his father Malcolm Graham and that his testimony bound Malcolm Graham;
3. Excerpts from the discovery evidence of approximately 20 of the Plaintiffs, including:
1. Sheila King
2. Kevin Yorke
3. Timothy King
4. Gail McCormick
5. Joan Andrusaitis
6. Cherie Marshall
7. James Hardy Best
[9] The Plaintiffs relied upon the Affidavits of forty (40) of the Plaintiffs. As a result of preliminary decision of Scaravelli J, certain portions of certain of these affidavits were struck. The Plaintiffs’ affidavit evidence of Plaintiffs on this summary judgment motion consisted of affidavits of Joan Andrusaitis, Danny Lee Best, Donna Carol Best, Heather Marie Best, James Hardy Best, Jimmy-Lee Best, Carol Brown, John Campbell, Carol Campbell, Delphine Davies, Shelley L. Dow, Kimberly Faulkner, Steven Faulkner, Edward Crane Gilbert, Vicki Hallett, Gwendolyn Henderson, Michael Henderson, Patrick Mark Henderson, Jill Langford, Richard C. King, Sheila K. King (two affidavits), Natasha Kyte, Edith Leadbetter, M. Gail McCormick, Nikole McCormick, Gardiner Patterson, Brady Keith Quinn, Donald Quinn, Kelly Quinn, Carol Redfield, David Redfield, Mark W. Scales, Nicola J. Scales, Deborah Woods, Eric Yorke and James Yorke, Kevin Yorke and Phyllis Yorke and Thomas Yorke.
[10] The Plaintiffs also relied on the Affidavits of various non-parties: Richard Blevins, Shannon Brownlee, Dawn Coleman, Nancy Curleigh, Kimberley Faulkner, Steve Faulkner, Karla Fulton, Edward Gilbert, Brian Jones, Dale Jones, Diana Langford, Martin G. Langford, Allen MacIsaac, Barbara Yorke, Bruce Yorke, Don Yorke and Robert Yorke.
[11] There was no cross-examination of any of these Affiants on the motion for summary judgment.
Issues
[12] The sole issue before the Court is whether the Quinns’ motion for summary judgment on evidence should be granted and the Plaintiffs’ claim against the Quinns dismissed in relation to the dedication of the Old Farm Road as a public road.
Position of the Parties in Brief
[13] The Quinns say that the Plaintiffs’ claim of a public road over their property, specifically over “the Old Farm Road”, should be dismissed now for failing to have any evidence to support such a claim. They say that the pleadings do not allege that anyone in the Graham family dedicated the Old Farm Road to the public, and the evidence before the Court shows that there is no genuine issue of material fact.
[14] The Quinns say that the discovery evidence of their predecessor in title, the Third Party Bruce Graham, was that the Old Farm Road privately belonged to him and his family since the 1950’s. Further, they say that the evidence before the Court shows that Bruce Graham’s father, George Graham, asserted ownership of the road in the 1960s by erecting a gate to prevent people from crossing the road.
[15] The Quinns say that there is no evidence before the Court that shows that the Grahams dedicated the Old Farm Road to the public and therefore there is no genuine issue of material fact requiring a trial, that the claim has no realistic prospect of success and the claim of a public road must fail.
[16] The Plaintiffs say that they have presented evidence of dedication of the Old Farm Road. They assert that the evidence presented respecting dedication in the injunction motion before Justice Arnold is in itself sufficient to demonstrate that there are material facts to be determined at trial. They also say that dedication of a predecessor in title binds a subsequent owner and that open and unobstructed use by the public for a substantial period of time may constitute the evidence from which dedication and acceptance may be inferred.
Law – Summary Judgment on Evidence
[17] Civil Procedure Rule 13.04 governs the granting of summary judgment on evidence.
[18] The purpose of summary judgment motions is to put to an end claims or defences which have no real prospect of success. This was confirmed by the Nova Scotia Court of Appeal in Burton Canada Co. v. Coady, 2013 NSCA 95 (N.S.C.A.):
[22] In my respectful opinion this process has become needlessly complicated and cumbersome. Summary judgment should be just that. “Summary” is intended to mean quick and effective and less costly and time consuming than a trial. The purpose of summary judgment is to put to an end to claims or defences that have no real prospect of success. Such cases are seen by an experienced judge as being doomed to fail. These matters are weeded out to free the system for other cases that deserve to be heard on their merits. That is the objective. Lawyers and judges should apply the Rules to ensure that such an outcome is achieved.
[19] The parties agree with respect to the analytical framework to be applied on motions for summary judgment on the evidence pursuant to Civil Procedure Rule 13.04. That framework, which involves sequential questions and answers, was set out by Fichaud, J.A. in Shannex Inc. v. Dora Construction Ltd., 2016 NSCA 89 at paragraph 34:
34 I interpret the amended Rule 13.04 to pose five sequential questions:
• First Question: Does the challenged pleading disclose a “genuine issue of material fact”, either pure or mixed with a question of law? [Rules 13.04(1), (2) and (4)]
If Yes, it should not be determined by summary judgment. It should either be considered for conversion to an application under Rules 13.08(1)(b) and 6 as discussed below [paras. 37-42], or go to trial.
The analysis of this question follows Burton’s first step.
A “material fact” is one that would affect the result. A dispute about an incidental fact-i.e. one that would not affect the outcome-will not derail a summary judgment motion: 2420188 Nova Scotia Ltd. v. Hiltz, 2011 NSCA 74 (N.S.C.A.), para.27, adopted by Burton, para.41, and see also para.87(#8).
The moving party has the onus to show by evidence there is no genuine issue of material fact. But the judge’s assessment is based on all the evidence from any source. If the pleadings dispute the material facts, and the evidence on the motion fails to negate the existence of a genuine issue of material fact, then the onus bites and the judge answers the first question Yes. [Rules 13.04(4) and (5)]
Burton, paras. 85-86, said that, if the responding party reasonably requires time to marshal his evidence, the judge should adjourn the motion for summary judgment. Summary judgment isn’t an ambush. Neither is the adjournment permission to procrastinate. The amended Rule 13.04(6)(b) allows the judge to balance these factors.
• Second Question: If the answer to #1 is No, then: Does the challenged pleading require the determination of a question of law, either pure, or mixed with a question of fact?
If the answers to #1 and #2 are both No, summary judgment “must” issue: Rules 13.04(1) and (2). This would be a nuisance claim with no genuine issue of any kind – whether material fact, law, or mixed fact and law.
• Third Question: If the answers to #1 and #2 are No and Yes respectively, leaving only an issue of law, then the judge “may” grant or deny summary judgment: Rule 13.04(3). Governing that discretion is the principle in Burton’s second test. “Does the challenged pleading have a real chance of success?”
Nothing in the amended Rule 13.04 changes Burton’s test. It is difficult to envisage any other principled standard for a summary judgment. To dismiss summarily, without a full merits analysis, a claim or defence that has a real chance of success at a later trial or application hearing, would be a patently unjust exercise of discretion.
It is for the responding party to show a real chance of success. If the answer is No, then summary judgment issues to dismiss the ill-fated pleading.
• Fourth Question: If the answer to #3 is Yes, leaving only an issue of law with a real chance of success, then, under Rule 13.04(6)(a): Should the judge exercise the “discretion” to finally determine the issue of law?
If the judge does not exercise this discretion, then: (1) the judge dismisses the motion for summary judgment, and (2) the matter with a “real chance of success” goes onward either to a converted application under Rules 13.08(1)(b) and 6, as discussed below [paras. 37-42], or to trial. If the judge exercises the discretion, he or she determines the full merits of the legal issue once and for all. Then the judge’s conclusion generates issue estoppel, subject to any appeal.
[20] I will return to these questions after reviewing the pleadings and evidence.
When is a Nova Scotia Roadway “Public”?
[21] The parties agreed that a roadway in Nova Scotia is public “if it meets the definition of “public highway” pursuant to the Public Highways Act, R.S.N.S. 1989, c. 371, s.1 (“PHA”), or if it has been proven, on a balance of probabilities, to have been “dedicated as such”. The PHA defines public roadways and also codifies the common law doctrine of dedication, by which the public can obtain a right-of-way over private lands.
[22] Section 11 of the PHA defines public roadways in Nova Scotia as follows:
11 (1) Except in so far as they have been closed according to law,
(a) all allowances for highways made by surveyors for the Crown;
(b) all highways laid out or established under the authority of any statute;
(c) all roads on which public money has been expended for opening, or on which statute labour has been performed prior to the twenty-first day of March, 1953;
(d) all roads passing through Indian lands;
(e) all roads dedicated by the owners of the land to public use;
(f) every road now open and used as a public road or highway; and
(g) all alterations and deviations of, and all bridges on or along any road or highway, shall be deemed to be common and public highway until the contrary is shown.
[23] In Frank Georges Island Investments v. Nova Scotia (Attorney General) 2004 NSSC 136, Moir J considered the doctrine of dedication as follows at paras. 37-38:
[37] The branch of property law known as dedication and acceptance developed in reference to roadways passing over private lands. If the owner dedicated the roadway to the amorphous public and the public accepted the dedication, say by many of the members of a community making use of the roadway, then a public right of way could be privately enforced. The application of this law extended beyond roadways. In Carpenter v. Smith, 1951 CanLII 113 (ON SC), [1951] O.R. 241 (Co. Ct.) a beach was found to have been dedicated to the public. Wright v. Long Branch, 1959 CanLII 6 (SCC), [1959] S.C.R. 418 concerned the dedication of a war memorial. It is at least arguable that an island could be dedicated to the public for recreational use.
(emphasis added)
[38] According to Duff, J. as he then was, writing for the majority in Bailey v. City of Victoria (1920), 1920 CanLII 367 (SCC), 60 S.C.R. 38 at p. 53, land may be dedicated to the public if two conditions are satisfied: “first, there must be on the part of the owner the actual intention to dedicate ... and second, it must appear that the intention was carried out by the [road]way being thrown open to the public and that the way has been accepted by the public.” He followed (p. 55) Lord MacNaghten in Simpson v. Attorney General, [1904] A.C. 477 at p. 493: “that the mere acting so as to lead persons into the supposition that a way is dedicated to the public does not in itself amount to dedication”. However, it is also said that “Open and unobstructed use by the public for a substantial period of time is, as a rule, the evidence from which a trier of fact may infer both dedication and acceptance.” Brooke, J. A. in Gibbs v. Grand Bend, (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (OCA) at p. 680. Mr. Keith points out that public use is merely evidence going towards proof of the two conditions. So, in Attorney-General v. Esher Linoleum Co. Limited, [1901] 2 Ch. 647 at p. 650 the Court stressed that “user is but the evidence to prove dedication” and “what always has to be investigated is whether the owner of the soil did or did not dedicate certain land to the use of the public.” With roadways, there needs to be proof of “an actual intention on the part of a predecessor in title of the plaintiff to dedicate the road as a public highway”: Reed v. Lincoln (1974), 1974 CanLII 513 (ON CA), 6 O.R. (2nd) 391 (CA) at p. 396.
(emphasis added)
[24] As Chipman J confirmed in Shannon v. Frank Georges Island Investments Ltd., 2015 NSSC 76 (“Shannon”) at paras. 58 and 59, a public right-of-way may be created by dedication and acceptance. Two conditions must be satisfied to create a public right-of-way by dedication:
1. There must be an express or implied intention to dedicate; and
2. the public must accept the dedication.
[25] Chipman J in Shannon (para.59) referenced Anger and Honsberger, Law of Real Property (2nd Ed.), vol 2, at page 1001 where the authors note:
[59] In Anger and Honsberger, Law of Real Property (2nd Ed.), vol 2, at page 1001 the authors note:
An owner of land may establish a public highway by the dedication and the acceptance by the public of the land for use as a highway. This is known as a common law dedication. Both the intention to dedicate and the acceptance by the public must be proved in order to establish a dedication. No formal act of adoption is required to indicate acceptance. It usually is inferred by public user of the highway.
… Open and unobstructed use by the public for a substantial time is as a rule evidence from which both dedication and acceptance may be inferred. User, however, is but the evidence to prove dedication; it is not use, but dedication, which creates a highway, as a public highway cannot be created by prescription.
The expenditure of public funds to maintain a highway is an inference of both dedication and acceptance.
(emphasis that of Chipman J.)
[26] Chipman J. in Shannon concluded that:
[61] … while there was evidence that the laneway was used by the public and the public usage had occurred over an extended period of time (over 20 years), the court was not satisfied that there was sufficient usage for a sufficient period of time to establish the necessary intention and acceptance required to prove that dedication applied. There is, therefore, a high threshold to establish a public right-of-way over private property. Given the evidence here, I am not satisfied the Respondents have met their burden.
(emphasis added)
The Evidence Relied Upon by the Parties on the Issue of Whether Old Farm Road has been Dedicated for Public Use
Evidence of the Defendant Jaqueline Quinn
[27] Jacqueline Quinn’s affidavit evidence is that she and her husband William (“Bill”) Quinn purchased the property in question, at Old Farm Road in Greenhill, Cumberland County from Bruce W. Graham and G. Malcolm Graham, with the deed being registered on July 7, 2015. This property borders beaches along the Minas Basin.
[28] At the time of the purchase, Jacqueline and Bill Quinn were given a warranty deed for the property stating that they “shall have quiet enjoyment of the lands” and that the “lands are free from encumbrances”.
[29] Her evidence was that the property included the Old Farm Road as a private road and she and her husband paid purchase proceeds for it. Jacqueline Quinn says that at no time prior to purchasing the property did Bruce or Malcom Graham advise them that the Old Farm Road was a public road or right of way; nor did they advise that any person made a claim that the Old Farm Road was a public road or right of way.
[30] Jacqueline says that at the time of purchase, she was aware that a right of way existed on the property along Old Farm Road and across a property to the northwest, as well as rights of way held by PID numbers 25205683, 25469602 and 25083429. She denies the existence of any other rights of way on their property and the existence of a public road on the property. She specifically denies that the Old Farm Road is a public road or public right of way.
[31] Jacqueline says that when she and Bill purchased the property, the path on it that extended from the Old Farm Road was a wide path that was closely brushed in, ridden with large potholes, tree roots sticking up out of the ground, as well as large stones sticking up throughout the path.
[32] Jacqueline says that after she and Bill purchased the property, they put a considerable amount of time, effort, and money into renovating the property. This included clearing the path on the property of vegetation and rocks, as well as filling in potholes and widening it. Her evidence is that their work made the pathway navigable by foot and by vehicle.
[33] Jacqueline’s evidence was that in the fall of 2015 a few people, including the Plaintiff James Yorke, asked her if she minded if they went down to the beach over the Old Farm Road on their four-wheelers. She says that she gave permission because she and Bill had only started the process of clearing the land.
[34] Jacqueline says that in early summer 2016, Karla Fulton, her husband Albert and others came to their property with a sea doo on a trailer pulled by a four-wheeler. She says that they asked her if they could access the beach via Old Farm Road. She gave them permission that day to use the road because they asked her.
[35] Jacqueline’s evidence was that after that, around the summer of 2016 she and Bill noticed several more individuals crossing the property to gain access to the beach. She says that they did not grant these individuals, or any others, permission to cross the property to get to the beach other than the instances involving James Yorke and the Fultons.
[36] Jacqueline says that shortly thereafter they blocked the route over their property that these individuals were taking to the beach and placed “No Trespassing” signs on the property.
Evidence of the Third Party Bruce Graham
[37] Counsel for the Plaintiffs and for the Quinns each point to excerpts of the discovery evidence of Bruce Graham in support of their opposing positions. Bruce Graham was examined on discovery by counsel for the Quinns on January 9, 2020. Mr. Graham confirmed that the warranty deed to the Quinns included a covenant that the Grahams had quiet enjoyment of the lands to be conveyed. Bruce Graham’s evidence was that his view was that he had quiet enjoyment of the lands despite the fact that people crossed the property and parked vehicles on it. Mr. Graham’s evidence was also that the warranty deed to the Quinns stated that he held good title in fee simple and he understood that to mean to the entire property, including the roadways. His discovery evidence was that he stood by that covenant to the Quinns.
[38] Both counsel referred to the following questions put to Bruce Graham by counsel for the Quinns during his discovery examination and his answers:
Q. And so that if there is an assertion that you had – you or your family had intended to convey those lands for public use, you say that did not happen?
A. No.
Q. Sorry, I asked you a negative question and you’ve answered in the negative.
A. Yes.
Q. So, I just want to be clear on the record. You agree that at no point did you or your family intend to convey the private ownership for public use? Do you agree with that?
A. Well, I do, with one exception. At one time I did try to interest the Province of Nova Scotia in it. I don’t know when that was. Sometime before we sold it, obviously.
Q. Okay. And they turned you down?
A. They turned me down.
Q. So, other than that one discussion, that 1 was the only ---
A. Yeah.
Q. ---contemplation in your mind ---
A. Yes. Yeah.
(emphasis added)
[39] The Plaintiffs also point to the following discovery evidence of Bruce Graham relating to whether people needed the permission of the Graham family to use Old Farm Road:
Q. And you recall them getting permission from your family to be able to access the beach?
A. People didn’t need permission of my family, they just used it. We didn’t try to block people from using it.
[40] Bruce Graham also gave discovery evidence concerning whether his family considered the disrupted part of the road to be private land that it controlled:
Q. Okay. And did you family consider that point to be private land that it controlled?
A. We never stopped people from passing through the land to get to the beach, no, we certainly never did that.
Q. Okay. So, let me – did you consider – or did you have any – do you recall any discussions with your parents about whether that was Graham land that the Graham family had control over?
A. No.
[41] Bruce Graham also gave discovery evidence about whether people asked him and his family if they could use Old Farm Road, including the Plaintiff Joan Andrusaitis:
Q. Okay. And do you recall a discussion with – let me get her name right – Andrusaitis? Do you know who she is?
A. Yes.
Q. Okay. And she recalls in an affidavit – and I’m going to read it to you – it says:
“While the property where the access road is located was owned by Bruce and Helen Graham, we had attempted to obtain written permission from them to use the road but we only ever had verbal permission to access the beach by travelling down that road.”
Q. Do you recall a discussion with Ms. Andrusaitis to that effect?
A. No, but it sounds like something I would say, I would tell them to use the road like everybody else.
Q. And is that typically how you responded to people when they asked you about using the right-of-way – using the road?
A. Most people – the locals used the – had been using the road for a long time, so I didn’t have to explain anything to them.
(emphasis added)
[42] Bruce Graham was also asked by counsel for the Quinns whether he ever undertook any development work on Old Farm Road.
[43] Mr. Graham’s discovery evidence was that he attempted to develop three lots on an identified roadway called “Farm Road Extension”, but the development did not proceed for reasons related to requirements of the Municipality.
Evidence of the Plaintiff Joan Andrusaitus
[44] Ms. Andrusaitus’ evidence was that she attempted to obtain written permission from Bruce and Helen Graham to access the beach by travelling down Old Farm Road. She stated as follows in her affidavit on the motion for an interlocutory injunction:
8. The Old Farm Road provided easy access to the beach for young and old, whether it was to go swimming, boating, fishing or just to search the beach for interesting rocks. Because it was so easy to get down to the beach this way, I was able to take my mother down to the beach until she was almost 90 years old.
9. While the property where the access road is located was owned by Bruce and Helen Graham, we had attempted to obtain written permission from them to use the land, but we only ever had verbal permission to access the beach by traveling down that road.
Affidavit of the Plaintiff Danny Lee Best
[45] Danny Best’s evidence was that he is 57 years old (as of May 17, 2018) and has lived in Parrsboro, Nova Scotia all his life. In his Affidavit he states that he has been accessing the beach at Clarke Head by using the Old Farm Road since he was 16 years old and before that his parent took him to the beach using the road. He remembers going to the beach for various recreational activities and for a six year period using the beach to fish for lobsters with his father, who moored his fishing boat around the corner from the beach for 28 years.
[46] Danny Best states that he never sought permission to use the Old Farm Road from anyone, and that before the Quinns acquired property in the area, no one ever attempted to impair or obstruct our use of the road.
Evidence of the Plaintiff Donna Best
[47] Donna Best’s evidence was that she is 79 years old (as of May 20, 2020) and that she and her husband, James Hardy Best and her own property that adjoins the Old Farm Road that leads to Clarke Head Beach and that she has used this road to access the beach for at least sixty years. She states that her husband and her never sought permission to use the Old Farm Road from anyone and that before the Quinns acquired property in the area, no one ever attempted to impair or obstruct their use of the road.
Evidence of the Plaintiff Heather Best
[48] Heather Best stated that she is currently 56 years old (as of May 17, 2018), that her husband is Danny Best. She says that when she met her husband forty years ago, he would take her on dates to the beach at Clarke’s Head which they would access using the Old Farm Road. After they married and had children, they would take their children Natasha Best Kyte and Jimmy-Lee Best to the beach when they were young, always using the Old Farm Road to access the beach and that they were never denied access. Heather Best’s evidence was also that they never sought permission to use the Old Farm Road from anyone, and that before the Quinns acquired property in the area, no one ever attempted to impair or obstruct their use of the road.
Affidavit of the Plaintiff James Hardy Best
[49] James Best’s evidence was that he has lived in Parrsboro, Nova Scotia his whole life and has been using the Old Farm Road to access the Clarke Head beach for over sixty years.
[50] James Best owns property that adjoins Old Farm Road which he acquired by deed in 1986.
[51] James Best states that over the years, as it became necessary, he “spent many hours maintaining, repairing and providing financial support for the upkeep of this road to the shore”.
[52] James Best also says that as a commercial fisher, he has always used Old Farm Road to access the beach at Clarke Head. He states that he has traveled the road by truck, 3-wheeler, car and even by horse and buggy. He also sates that has traveled the road “at all hours of the day and night to catch the tide for picking bait and setting nets and trawls and tending to my boat when the weather was bad”.
[53] James Best says that has never sought permission to use Old Farm Road and no one ever interfered with his use of it “until William and Jacqueline Quinn blocked access to the Old Farm Road”.
Affidavit of the Plaintiff Jimmy-Lee Best
[54] Jimmy-Lee Best says that for as long as he can remember his family used the Old Farm Road to access the beach at Clarke’s Head. He says that the road has been used by the community to access the beach for recreational and commercial purposes. He says that when he lived in the area he went to the beach via Old Farm Road at least once a week in the summer months, either walking down to the beach or by using an ATV or truck.
[55] Jimmy-Lee Best states that he has never sought or received permissions to use the road and, prior to the road being blocked by William and Jaqueline Quinn, that no one had ever attempted to prevent his family from using the road to access the beach.
Affidavit of the Plaintiff Carol Brown
[56] Carol Brown’s evidence was that she owns a summer cottage on Gilbert Road in Parrsboro which she purchased in 1990, and that she also owns land below the cottage at a point which adjoins Old Farm Road. She states that when she purchased the cottage in 1990 for access to the point, via Old Farm Road had been available for all who would like to use it to get to the beach.
[57] Carol Brown states that it was common knowledge in the community that the road would always remain open, as it had been open for public use for many years. She states that the road was maintained by those who used it so that access was available by vehicle, ATV or walking.
[58] Carol Brown says that access to the beach is guaranteed in her deed, and that she believes that this is true for others living in the area. She says that she has never sought permission to use the Old Farm Road from anyone, and that before the Quinns acquired property in the area, no one ever attempted to impair or obstruct her use of the road.
Affidavits of the Plaintiffs John and Karen Campbell
[59] John Campbell says that he and his wife, Karen Campbell, own property at Gilbert Road. He states that for the past twenty-five (25) years he has traveled over and assisted in maintaining the Old Farm Road. Both John and Karen Campbell say that they would use the road to go flounder fishing, boating, clam digging and to take walks on the beach. They also say that when their children were young, they used the road to access the beach for recreational purpose. In more recent years, John Campbell says that he and Karen have used the road to take their grandchildren to the beach. Karen Campbell says that the road was always open for public use.
[60] Karen Campbell says that she and her husband have lived at Gilbert Road for approximately nine (9) years and prior to living there, it was their seasonal cottage for over twenty (20) years.
[61] John Campbell and Karen Campbell each says that they have never sought permission to use the Old Farm Road from anyone, and that before the Quinns acquired property in the area, no one ever attempted to impair or obstruct their use of the road.
Affidavit of the Plaintiff Delphine Davies
[62] Delphine Davies says that she and her spouse, Tracy Wise, are owners of a property on Ridgeview Lane in Greenhill. Her spouse acquired the property in October 2004 and conveyed it to herself and Delphine Davies as joint tenants by deed in March 2005.
[63] In 2008-2009 Delphine Davies and Tracy Wise constructed a house on Ridgeview Lane as their retirement residence where they have resided full-time since 2004. Before that time, they spent a portion of every year at their property.
[64] Delphine Davies states that they purchased the property with the understanding that, in addition to the granted right of way to their property from the main road, the Old Farm Road would “grant us open, free and uninterrupted access to the shore of the Bay of Fundy”.
[65] Delphine Davies also states that at no time since Tracy Wise acquired the property in 2004 and when the Quinns took steps to block access over Old Farm Road, did they ever seek permission to use the Old Farm Road as their regular access to the beach. She also says that at no time during this same time period did anyone ever suggest that they did not have the right to use the road and at no point did anyone ever suggest that they needed permission to use the road.
[66] Delphine Davies also says that the Quinns allowed people to use the road for a short while after they purchased their property, but later they put up signs and “positioned their trailer on the walk way to block anyone from driving down the road”.
[67] Delphine Davies’s evidence was that in late September 2017 she and a guest noticed that the Quinns had gathered sticks and put a sign and a rope up across Old Farm Road which said, “No Trespassing”, but she and her guest continued up the road “only to have William Quinn advise them that they could not travel on the Old Farm Road”.
Affidavit of the Plaintiff Shelley Dow
[68] Shelley Dow’s evidence is that in 1988 she purchased and still resides on Cove Road, Parrsboro. Her mother’s estate also owns a property with a cottage which her mother purchased in 1968 which was her family cottage when she was growing up.
[69] She states that Old Farm Road is the only access to the beach when the tide is half way in. She says that often people would take their cars, ATV’s trucks and bicycles and park at the top of the road and walk down to the beach. Shelly Dow says that she has frequently travelled Old Farm Road with an ATV, by car or by walking. She also says that it was common to see geologists or rock hounders on the beach and that some of them have been coming to search the beach for fifty (50) years.
[70] Shelley Dow’s evidence is that in fifty-three (53) years she has never sought or received permission to use the Old Farm Road as access to the beach and that no one has ever attempted to interfere with her use of the road prior to the Quinns.
The Affidavit of the Plaintiff Vicki Hallett
[71] Vicki Hallett says that she and her siblings own property on Gilbert Road near their parents Richard and Sheila King.
[72] Vicki Hallett’s evidence is that for as long as she can remember her family has owned property in the area and has used Old Farm Road, “continuously and unobstructed, to access the beach at Clarkes Head”.
[73] Vicki Hallett states that since she and her husband married twenty-four (24) years ago and had children, they have continued to spend summers in Parrsboro and used the Old Farm Road to access the beach with their children.
[74] Vicki Hallett says that they have never sought permission to use the Old Farm Road from anyone and that prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct their use of the road.
Affidavit of the Plaintiff Gwendolyn Henderson
[75] Gwendolyn Henderson says that in 1949 when she was in Grade 4 her teacher took her entire class in a school bus to Clarke’s Head, which she says was known at that time as Graham’s Point Beach, and that they accessed the beach by using the Old Farm Road.
[76] Gwendolyn Henderson says that once she married and had children in 1960, she took her children to the beach so that she could do the same things that she enjoyed doing on the beach as a child.
[77] She states that she has never sought permission to use the Old Farm Road from anyone and, prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct her use of the road.
Affidavit of the Plaintiff Michael Henderson
[78] Michael Henderson was 82 years old when he swore his Affidavit in May 2018. He says that he has used Old Farm Road to get to Clarke Head since 1960, when he took his children to swim and play on the beach. He says that he later used the road to access the shore to set fishing lines and go digging for clams.
[79] Michael Henderson says that when he was managing the Glooscap Park Campground for the Town of Parrsboro, he would show tourists and rock hounds how to use the road to gain easy path to mineral areas. He says that no one reported anyone objecting to his use of the road and nor was there any signage to indicate restrictions to traffic.
Affidavit of the Plaintiff Mark Henderson
[80] Mark Henderson’s evidence is that he owns property that adjoins the Old Farm Road which he acquired in 2017 and that he also has an adjoining property that was given to him by his parents Michael Henderson and Gwendolyn Henderson.
[81] Mark Henderson attaches the deed to his property at Flounder Road, Parrsboro as an exhibit to his Affidavit and states that in that deed he was granted a right to use the Old Farm Road and adjoining roads to gain access to his property. He notes that the Old Farm Road is his only access to the beach at Clarke’s Head.
[82] Mark Henderson states that while at Clarke’s Head beach, he has seen other people walking to the beach using the Old Farm Road and that he has seen “the locals use their tractors to affect repairs to the road to keep it usable by car, truck or 4-wheelers”. He states that trips to the beach using the road have benefited his property and that he and his family would take trips to the beach at least three times a week before their access was blocked.
[83] Mark Henderson says that he has never sought permission to use the road and no one has ever interfered with his use of it before the Quinns.
[84] The Court notes that Mr. Henderson is now deceased, so his affidavit would presumably not be before the Court on the trial of this action.
Affidavit of the Plaintiff Richard C. King
[85] Richard King’s evidence is that he and his wife, Sheila King, own property on Gilbert Road with deeded rights to use the “Old Farm Road”, amongst other roads. He says that he has used unrestricted and continual access to Clarke Head Beach via the “Farm Road”, which he says is also referred to as the “Traveled Way” to the beach in all seasons for fifty-two (52) years. He used the road to access the beach for various recreational activities. He says that he has noticed that when the tide comes in at Clarke Head beach, the Old Farm Road is the only way to escape the water without getting trapped.
[86] Richard King says that he and his wife have never sought permission to use the Old Farm Road from anyone and, prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct their use of the road.
Evidence of the Plaintiff Sheila King
[87] Sheila King states says in her Affidavit that she was born and raised in Parrsboro and that she has used the Old Farm Road on a continual basis, unobstructed, for over sixty years.
[88] Sheila King’s evidence is that she and her husband have never sought permission to use the Old Farm Road from anyone and, prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct their use of the road.
[89] The Plaintiff Sheila King gave a statement that she was concerned about access to the beach if Bruce Graham sold his property:
19. When we discovered that Bruce Graham had the property for sale, I happened to meet him with the Real Estate agent, coming up from the beach. I asked Bruce about the access to the beach, and how it might be affected should the property sell. He told me not to worry, that since access to the beach via Old Farm Road has been used continually for well over 20 years, with no obstructions, verbally or otherwise, that it would always remain as an access for anyone to get to or from the beach. This was very reassuring, for sure!
[90] When asked about this statement during her discovery examination in November 2019, Sheila King stated the following:
Q. Okay. And at paragraph 19, which is the second page there, you mentioned a meeting or a least a discussion with Bruce Graham.
A. Yes.
Q. Could you tell me about that discussion that you had.
A. Yes. Friend of mine, Barb Hallett, and myself. Barb was visiting the cottage with us for a few days and she and I walked to the point, and just as we got almost to the landing going down almost we met Bruce Graham and a real estate agent. We had noticed on the way down some real estate signs going up, that had been put in. So, anyway, we met Bruce and the real estate agent coming back from the beach.
And I said, “Oh, Bruce,” I said, “you’re just the man I wanted to see,” and he said, “Oh”, and he said, “Hi, Sheila,” and I introduced Barb and he introduced the real estate agent to me, and he said I said he said, “Oh, what did you want to know?” or something, and I said, “Well,” I said, “if and when you sell this property” and that’s exactly what I said, “if and when you sell this property,” I said, “what happens to this access to the beach for people like me” that’s what I said “or others like me?” And he said, “Absolutely nothing is going to change,” he said, “you don’t have to worry. It’s been used by the public for I don’t know ‘X’ number of years” I don’t know if he had said 50 years plus, “and it’ll never changed, you’ll always be able to come down to the beach, Sheila, no problem.”
And I said, “Oh, that’s a relief,” and I said, “because I was always worried about that.” So, anyway, he said, “No, you’ll always be able to come down.” So, I said, “Just the way it is now, we can always come” “Yes,” and I said, “Good.” And I have Barb as a witness, so my friend, because she was with me at the time.
(emphasis added)
Second Affidavit of the Plaintiff Sheila King
[91] Sheila King’s second Affidavit was filed in response to the Affidavit of Jacqueline Quinn.
[92] In this Affidavit, Sheila King refers to the parcel register for the Quinn property which she says contains textual qualification which “confirms there are various rights of way acknowledged to be on title”. One of these rights-of-way said to burden the Quinn property is Old Farm Road.
[93] Sheila King says that although Jacqueline Quinn refers to “renovating the property” in her affidavit, “there were no structures on the Quinn property in 2015 when they purchased it”. She says that after the Quinns purchased the property they moved travel trailers onto the Quinn property at Clarke Head, but that the Quinns have not constructed any buildings, to her knowledge.
[94] Sheila King says that the Old Farm Road has changed over time and has been affected by the growth of trees along the road where is used to be open filed. Sheila King says that regardless of changing conditions, the road was always usable for pedestrian and vehicular traffic down to the beach.
[95] Sheila King states that after the Quinns purchased their property, they did improve drainage and the overall quality and maintenance on the Old Farm Road “as far as their trailer but damaged the road from there to the shore so that it will be need to be repaired by the neighbourhood when we regain access”.
Affidavit of the Plaintiff Natasha Kyte
[96] Natasha Kyte says that she is thirty-six (36) years old and resided in Parrsboro from birth until she was approximately 21 years old. Natasha Kyte is the daughter of Danny and Heather Best and the granddaughter of J. Hardy and Donna Best whom she says have resided in Parrsboro their entire lives.
[97] Natasha Kyte currently lives in Halifax with her husband and children, but she frequently visits her parents and grandparents in Parrsboro. She and her children continue to enjoy the beach at Clarke’s Head and use Old Farm Road to access it, just as she had as a child.
[98] Natasha Kyte says that she remembers her grandfather, J. Hardy Best, kept his fishing boat in the tide next to the beach and that she remembers her grandfather, along with other locals and fishers, using gravel and other filler to fill in large holes in Old Farm Road which developed over the winter months, so the road would be safe for all to use.
[99] Natasha Kyte says that she and her husband have never sought permission to use the Old Farm Road from anyone and, prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct their use of the road.
Affidavit of the Plaintiff Edith Leadbetter
[100] Edith Leadbetter says that she has been familiar with the Old Farm Road and Clarke Head Cove for seventy-two of her seventy-eight years. She says that her father Lawrence and his brother Duncan Mills bought property on the Old Farm Road in the 1940s. She and her family members used Clarke Head Cove for recreational purposes since the 1940s.
[101] Edith Leadbetter says that she purchased the property of her aunt and uncle on Old Farm Road in the 1970s and that she has spent every summer there since. She says that she continues to spend many hours at Clarke Head Cove with many family members.
[102] Edith Leadbetter’s evidence is that she has never sought permission to use the Old Farm Road from anyone and, prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct her use of the road.
Affidavit of the Plaintiff Gail McCormick
[103] Gail McCormick’s evidence is that she and her husband, Kevin McCormick, reside primarily in Springhill, Nova Scotia, but that in June 2016 they purchased a summer residence located at Gilbert Road, which adjoins the Old Farm Road.
[104] Gail McCormick says that one of the main reasons for their purchase of the property on Gilbert Road was that the Old Farm Road provided access that would allow them to directly launch their recreational boat for fishing. They had been told by locals that it was a “perfect spot to launch a boat”. She goes on to state that on many occasions she and her husband observed locals using the access to the beach prior to when the Quinns purchased their property.
[105] Gail McCormick’s evidence was that they purchased their property the same year the Quinns purchased theirs and she and her husband were only able to access the beach via Old Farm Road on a couple of occasions before “No Trespassing” signs were erected. She says that prior to these postings she had a discussion with Jacqueline Quinn who told her that it was “OK for me to go ahead” to access the beach, but that a couple of days after that there were several signs posted stating, “No Trespassing”.
Affidavit of the Plaintiff Nikole McCormick
[106] Nikole McCormick’s evidence is that she resides primarily in Springhill, Nova Scotia but owns property at Old Farm Road which she purchased in May 2016.
[107] Nikole McCormick says that on many occasions when she first purchased the property, she accessed the beach via Old Farm Road, but discontinued trying to access the beach that way “once I heard from locals that access was being denied”.
[108] Nikole McCormick says that the deed to her property, attached as an exhibit to her Affidavit, gives her access to her cottage via the Old Farm Road and it her understanding that the road runs through to the beach.
[109] Nikole McCormick says that she has never sought permission to use the Old Farm Road from anyone and, prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct the use of the road.
Affidavit of the Plaintiff Gardiner Patterson
[110] Gardiner Patterson’s evidence is that he owns property near the Old Farm Road at Two Islands Road, Parrsboro. He has lived on this property his entire life and it was deeded to him by his father before his death. He states that his family has been living in the area for at least four generations.
[111] Gardiner Patterson states that he has used the Old Farm Road to access the beach at Clarke’s Head his entire life, i.e., for over fifty (50) years and has seen the road used by friends, neighbours and strangers on a regular basis.
[112] Gardiner Patterson says that he would use the road to access the beach for various recreational activities, including launching his boat for fishing and for search and rescue as a Canadian Coast Guard Auxiliary member.
[113] He states that he also helped maintain the Old Farm Road “so that there could continue to be access to the beach by walking” or by cars, trucks, four-wheelers, motorcycles and homemade beach buggies.
[114] Gardiner Patterson’s evidence is that there was never a time where he asked permission to use the road “because I had been using it unhindered since I was a young child with my father”. He says that no one has ever attempted to deny him access to the beach via Old Farm Road prior to the Quinns.
The Affidavit of the Plaintiff Donald Quinn
[115] Donald Quinn’s evidence is that he and his wife Kelly Quinn own property at Old Farm Road. They bought this property in 2006 from Reginald Winters.
[116] Donald Quinn states that his wife’s great Uncle, Fred Best, owned their property previously as well as all “of the Graham Land, which includes the property currently owned by the Defendants”.
[117] Donald Quinn states that the Old Farm Road has been used as far back as he can remember, not only by landowners, but “by people from all over”. He says that some would take their boats behind four-wheelers or trucks down the road to the beach to enjoy various recreational activities.
[118] Donald Quinn also says that the road was used as access to the point area where gypsum was mined and shipped out from the beach. He says that Old Farm Road would be used to move the gypsum from the mine to be loaded on ships or barges.
[119] Donald Quinn states that the deed to his property, which he attaches as an exhibit to his Affidavit, states that he has the right to use Old Farm Road to access his property.
[120] He also states that he has never sought permission to use the Old Farm Road as he did not think he needed to do so. He says that he has been using this route to the beach for forty (40) years and “it was always used to access the beach by many”.
[121] Donald Quinn says that he and others, including the Plaintiffs Patrick Henderson and Kevin McCormick, have investigated other places that a road could be put to access Clarkes Head beach and that they did so to “accommodate suggestions made by the Defendants that they may be willing to allow access to the beach at another location”.
Affidavit of the Plaintiff Kelly Quinn
[122] Kelly Quinn’s evidence is that she and her husband Donald Quinn own a property on Old Farm Road. She states that this property was once owned by her great uncle, Fred Best, now deceased.
[123] Kelly Quinn states that she was familiar with the area prior to owning property there. The first home that she remembers was not far from the Old Farm Road and her paternal grandfather lived next door to them. She says that she knows the area well.
[124] Kelly Quinn states that as of the date she swore her Affidavit (May 2018) she is fifty-five (55) years old and as far back as her memory serves her, they have always travelled the Old Farm Road to the beach at Clarkes Head. She says that her parents would take her and her brother to the beach for various recreational activities. She states that she has used the Old Farm Road frequently over the years, even prior to becoming a property owner. She used the road to go fishing with her father or brother, and they would haul their boat by an ATV.
[125] Kelly Quinn states that she and her family would travel the Old Farm Road to the shore at least twice a week from the middle of June until late September each year.
[126] Kelly Quinn’s evidence is that she has never sought permission to use the Old Farm Road from anyone and, prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct her use of the road.
Affidavit of the Plaintiff Carol Redfield
[127] Carol Redfield states that she and her husband, David Redfield, live primarily in New Hampshire. She says that they have been visiting Parrsboro and using the Old Farm Road to access the beach for almost thirty (30) years and that in 2000 they purchased a property on Gilbert Road.
[128] Carol Redfield says that their decision to purchase this property was partially based on its proximity to the beach and the access via Old Farm Road. She states that they have been using the Old Farm Road two to three times a week, each time they are in Parrsboro in both the summer and winter months.
[129] Carol Redfield says they have never sought permission to use the Old Farm Road from anyone, and prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct their use of the road.
Affidavit of the Plaintiff David Redfield
[130] David Redfield says that he and his wife Carol, purchased a cottage on Gilbert Road in 1999-2000. He says that although he and Carol live primarily in New Hampshire, they have been coming to Parrsboro for more than twenty-five (25) years to go rockhounding at Clarke’s Head.
[131] David Redfield states that the Old Farm Road provides access to Clarke’s Head and he and his family make an effort to go to Clarke’s Head beach a few times a week, every time they are in Parrsboro.
[132] David Redfield’s evidence is that he is not aware of anyone ever having sought permission to use the Old Farm Road from anyone, and prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct the use of the road.
Affidavits of the Plaintiffs Mark W. Scales and Nicola Scales
[133] Mark Scales’ evidence is that he and his wife, Nicola Scales, own property at Gilbert Road, Parrsboro. Both he and Nicola Scales state that they have used the Old Farm Road for the past six (6) years to walk to the point at the end of the road to access the beach. They each also state that they have taken their car to travel on the road if they have senior family members coming to the beach with them.
[134] Mark and Nicola Scales each says that they use the Old Farm Road as access to reach the ocean front of their property as the point is the lowest and closet access to that portion of their property.
[135] Mark and Nicola Scales each say that they have never sought or received permission to use the Old Farm Road to access the beach, and nor has anyone ever attempted to interfere with their use of the road, prior to the Quinns.
Affidavit of the Plaintiff Deborah Woods
[136] Deborah Woods’ evidence is that she lives primarily in Texas but owns property located at Cove Road in Parrsboro. She purchased this property from her mother in August 2006. Her mother owned the property from May 1971 to the day she purchased from her. She was twelve (12) years old when her mother purchased the property, and her family would spend every summer there.
[137] Deborah Woods also states that her parents owned another cottage on Cove Road which is now owned by her cousin Shelly Dow.
[138] Deborah Woods says that she and family members used the Old Farm Road to access the beach for various recreational activities. She says that they often took her father’s Jeep down the road to the beach and at times they would drive her aunt’s four-wheeler to the beach. She also states that from the time she was a young girl that she remembers James Hardy Best driving his truck down Old Farm Road to the beach to go fishing.
[139] Deborah Woods also states that over the past fifty-two years she has seen many people spend time on the beach who she says do not own property in the area, including rock hounders and geologists. She says that most of the people she has seen access the beach via Old Farm Road have been from Cove Road, Old Farm Road, Cliff Side, Roger Lane, Gilbert Hill, Two Islands Road and Parrsboro. She says that some people walk down, others drive down in cars, trucks, or four-wheelers, while others drive and park at the end of the Old Farm Road and then walk down to the beach.
[140] Deborah Woods says that she has never sought or received permission to use the Old Farm Road because she never had to. She says as far back as she can remember they always used it and didn’t have to ask permission from anyone.
Affidavit of the Plaintiff Eric Yorke
[141] At the time he swore his Affidavit (May 2018) Eric Yorke was seventy-six (76) years old. He states that he has used the Old Farm Road to access the beach for many years. His evidence is that he has never heard of any problems using the road to access the beach area and he has never heard of anyone being required to have permission to use it.
[142] Eric Yorke says that he and his family would access the beach via Old Farm Road to pick dulse and go flounder fishing. When he and his wife would go to the beach, they would park their car or truck at the top of the bank and walk down to the beach area.
[143] Eric Yorke says that he and his wife would look after the Ogilvie cottage (formerly the Knowlton cottage) for a number of years and so, when there, they would frequently take a walk down Old Farm Road to the beach as the bank in front of the cottage was not safe and had no stairs.
[144] Eric Yorke’s evidence is that he has observed members of the community use the Old Farm Road to access the beach. They would park at the top and walk down the road to the beach and fishermen would often leave their car or four-wheeler at the high-water mark until they returned from fishing or clamming.
[145] Eric Yorke says that to his knowledge, no one prior to the Quinns has ever attempted to interfere with the use of the road.
Affidavit of the Plaintiff James Yorke
[146] James Yorke says that he co-owns a property at Gilbert Road with his sister Joan Andrusaitis, who purchased the property with her husband in 1993. In 2000 James Yorke and his sister built a cottage on the property. They later acquired land which abuts this property. In 2015 they consolidated the two lots into one.
[147] James Yorke says that he has a copy of the survey drawings for his property. His evidence is that there is nothing expressly written into the deed that gives him deeded right of way to the beach via Old Farm Road. He also says that since they have had unobstructed use of the Old Farm Road to get to Clarke Head Beach for over fifty (50) years, they contend that this historic access should not be interrupted.
[148] James Yorke says that the Old Farm Road has been widely used by the general public to access the beach for as long as he can remember. He says that his memories go back at least fifty (50) years.
[149] James Yorke also says that the Old Farm Road was maintained by many in the community that used the road to access the beach. He says that in recent years John Campbell and Mike Tupper would use their tractors to level off potholes in the road and would regrade the landing leading down to the beach, which he says would need attention each spring as a result of winter storms and water runoff from the snow melt.
[150] James Yorke says that this work was done at the expense of the people who maintained the road over the years.
[151] James Yorke says that he has never sought permission to use the Old Farm Road from anyone. He says that prior to the Quinns acquiring property in the area and blocking access to the road, no one every attempted to impair or obstruct his use of the road.
Affidavit of the Plaintiff Kevin Yorke
[152] Kevin Yorke’s evidence is that from 1985 to 2016 he owned property at Old Farm Road. He says that during the time he was a property owner, he had unrestricted and unobstructed access to the beach at Clarke’s Head. His evidence is that over the years he, and many residents and visitors, have enjoyed the beach for various recreational activities.
[153] Kevin Yorke says that he has never sought permission to use the Old Farm Road from anyone and, prior to the Quinns acquiring property in the area, no one ever attempted to impair or obstruct his use of the road.
Affidavit of the Plaintiff Phyllis B. Yorke
[154] Phyliss Yorke says that she lives near the Clarke’s Head Beach and that access to the point via Old Farm Road is very important to her and her family. She states that for the last three years she has used the road year-round to access the beach for various recreational activities.
The Affidavits of the Non-Parties
[155] Each of the Affidavits of the Non-Parties (with the exception of the Affidavit of Eric Yorke, portions of which I will refer to below) had the format of a series of fill-in-the blank areas for the insert of evidence. The operative portions of these Affidavits asked the following questions to be answered:
• I reside ______________
• I have made use of the Old Farm Road, Greenhill, NS to access the beach at Clarks Head for ______ years.
• I have used the Old Farm Road, Greenhill, NS to access the beach at Clarks Head for the following purposes over the aforementioned years: _____
• Please describe how you observed members of the community in general using the Old Farm Road to access the shore______________
• Describe the nature and frequency of your use? ______________
• When you used the road what type of activities were you engaged in (ie fishing for commercial or recreational, swimming, etc.) ____________
• What modes of transportation did you use to travel the road? (4 wheeler? Car? Truck?)
• Have you ever sought or received permission to use the Road? _______
• Has anyone ever attempted to interfere with your use of the Road?_____
• Do you have any information on the history of the local use of the road that comes from sources other your own personal experience? (ie stories? Written materials? News articles?)
[156] With that review of the pleadings and evidence, I return to the analytical framework for determining a claim for summary judgment on evidence.
Law and Analysis
1. Does the challenged pleading disclose a “genuine issue of material fact”, either pure or mixed with a question of law?
[157] To answer this question the Court must look to the pleadings to determine whether they disclose a genuine issue of material fact. The pleadings do not allege that anyone in the Graham family, who owned the property in dispute since the early 1950’s, dedicated Old Farm Road to the public. Rather the Statement of Claim refers to a dedication “to public use since before living memory.” But there are no allegations of facts in the pleadings that confirm such a claim. Accordingly, there are no genuine issues of material facts disclosed in the pleadings.
[158] Further, the Plaintiffs' counsel in argument to this Court, conceded that the Plaintiffs are not denying nor contesting that at the point in time when Bruce Graham approached the Province to see if it was interested in his family conveying the disputed portion of Old Farm Road to it, that he held legal title to the road, as did the Quinns after him. The Plaintiffs’ counsel argues that what is at issue before the Court is not conveying the ownership of the road, but the question of dedicating the road to public use.
[159] However, this concession flies in the face of the Plaintiffs arguing that the road was dedicated "to public use since before living memory" as alleged in the Statement of Claim. The concession does not preclude that individual Plaintiffs, or others, may not assert private prescriptive rights over the road. However, prescriptive rights are individual, not collective, and the Plaintiffs cannot assert in law some kind of collective prescriptive claim that would oust the Quinns' private ownership to dedication of the road to the public.
[160] In terms of the nature of the evidence that is required to prove public dedication, this Court refers again to the decision of Chipman J. in Shannon, supra, at paras. 55 – 57:
[55] The 1935 Lindsay Zwicker Deed is found attached to Mr. Viehbeck’s April 16, 2014, affidavit as exhibit N. The Deed describes a property in the relevant area (deeded from Lindsay and Jennie Zwicker to Edward K. Clarke and Bernard Feetham on September 16, 1935). Within the property description are the words, “... coming out to meet the public road leading into Lindsay Zwicker’s home.” While this certainly offers an argument in favor of the Respondents’ position, I do not regard the Deed as necessarily accurate and certainly not determinative of the issue as to how the road is to be characterized.
[56] With respect to the “Declarations of Local Residents”, these are found within the affidavits and statutory declarations submitted with Mr. Moir’s February 18, 2014, affidavit. In short, I find these sworn statements to be vague and not helpful in sorting through the issues of road dedication. For example, there is no evidence tying the past traversing over the road (deposed by several of the residents) to the 1908 Road Tax Returns. In particular, none of the deponents speak to themselves or their forbears working on the relevant part of Umlah Road.
[57] Taken together, I do not regard this evidence as coming anywhere near what is required to establish dedication. In Frank Georges Island Investments v. Nova Scotia (Attorney General), supra, Justice Moir dealt with the concept of dedication at paras. 37 and 38:
[37] The branch of property law known as dedication and acceptance developed in reference to roadways passing over private lands. If the owner dedicated the roadway to the amorphous public and the public accepted the dedication, say by many of the members of a community making use of the roadway, then a public right of way could be privately enforced...
[38] According to Duff, J. as he then was, writing for the majority in Bailey v. City of Victoria (1920), 60 S.C.R. 38 at p. 53, land may be dedicated to the public if two conditions are satisfied: “first, there must be on the part of the owner the actual intention to dedicate ... and second, it must appear that the intention was carried out by the [road]way being thrown open to the public and that the way has been accepted by the public.” He followed (p. 55) Lord MacNaghten in Simpson v. Attorney General, [1904] A.C. 477 at p. 493: “that the mere acting so as to lead persons into the supposition that a way is dedicated to the public does not in itself amount to dedication”. However, it is also said that “Open and unobstructed use by the public for a substantial period of time is, as a rule, the evidence from which a trier of fact may infer both dedication and acceptance.” Brooke, J. A. in Gibbs v. Grand Bend, (1995), 26 O.R. (3d) 644 (OCA) at p. 680. Mr. Keith points out that public use is merely evidence going towards proof of the two conditions. So, in Attorney-General v. Esher Linoleum Co. Limited, [1901] 2 Ch. 647 at p. 650 the Court stressed that “user is but the evidence to prove dedication” and “what always has to be investigated is whether the owner of the soil did or did not dedicate certain land to the use of the public.” With roadways, there needs to be proof of “an actual intention on the part of a predecessor in title of the plaintiff to dedicate the road as a public highway”: Reed v. Lincoln (1974), 6 O.R. (2nd) 391 (CA) at p. 396.
(emphasis added)
[161] Justice Chipman then refers to the fact that in order for a landowner to establish a public highway both the intention to dedicate and acceptance of the public must be proved:
[59] In Anger and Honsberger, Law of Real Property (2nd Ed.), vol 2, at page 1001 the authors note:
An owner of land may establish a public highway by the dedication and the acceptance by the public of the land for use as a highway. This is known as a common law dedication. Both the intention to dedicate and the acceptance by the public must be proved in order to establish a dedication. No formal act of adoption is required to indicate acceptance. It usually is inferred by public user of the highway.
... Open and unobstructed use by the public for a substantial time is as a rule evidence from which both dedication and acceptance may be inferred. User, however, is but the evidence to prove dedication; it is not use, but dedication, which creates a highway, as a public highway cannot be created by prescription.
The expenditure of public funds to maintain a highway is an inference of both dedication and acceptance.
(emphasis added)
[60] In Kennedy v. Hickey, 2011 NLTD120, a laneway ran along the defendant’s property. The plaintiff and his family had used the laneway for over 20 years to access a river and their property on the other side of the defendant’s property. The public had also used the property since the 1930s to access the river to fish and wash clothes. While Leblanc J found that the plaintiff had a prescriptive easement to the laneway, he was not satisfied that a public right-of-way was established, noting at para 36:
The evidence of the extent of the usage by the public and the period of time that such usage occurred is not entirely clear from the Plaintiff’s testimony or other evidence presented. The fact that members of the public crossed over the land in question to fish or to get water or even to wash clothes is not, of itself, sufficient to establish the existence of a “public highway” at law.
(emphasis added)
[162] There is a high threshold to establish a public right of way by dedication. In Shannon at para. 61, Chipman J. stated:
[61] Accordingly, while there was evidence that the laneway was used by the public and the public usage had occurred over an extended period of time (over 20 years), the court was not satisfied that there was sufficient usage for a sufficient period of time to establish the necessary intention and acceptance required to prove that dedication applied. There is, therefore, a high threshold to establish a public right-of-way over private property. Given the evidence here, I am not satisfied the Respondents have met their burden.
(emphasis added)
[163] The Plaintiffs’ pleadings do not allege that anyone in the Graham family, who were owners of the property in dispute since the early 1950’s, dedicated the Old Farm Road to the public. Rather, the Plaintiffs have framed their pleadings as dedication “to public use since before living memory”. There are no specific allegations of fact contained in the pleading that substantiate such a claim.
[164] Unlike the evidence before the Court in Shannon, in this case Bruce Graham, the predecessor in title to the Quinns, has given uncontested evidence that neither he nor anyone in his family dedicated the Old Farm Road to the public. As noted previously, Bruce Graham attempted to do so by offering it to the Province, but the Province declined. Thereafter, in 2001, Bruce Graham attempted to develop the road, an act that shows an assertion of full control over Old Farm Road.
[165] Further, the property was migrated in 2010. There was no indication that the Province claimed any ownership over any of the roads on the property, including Old Farm Road. Further, the evidence shows that the land surveyor Bruce Graham hired to survey the property in 2010 listed the section of the Old Farm Road in question as being “private”. The deed to the property makes no mention whatsoever of any public roads on the property.
[166] The evidence before the Court from the discovery evidence of Bruce Graham shows that when the Grahams first listed the property for sale in 2006, part of the property description was as follows:
80 acres of ocean frontage, spectacular views, ready for development, located minutes from Parrsboro, enjoy the private cove, coastal cliffs, local golfing and renowned Ships Company Theatre.
(emphasis added)
[167] The Court also notes that when certain of the Plaintiffs were asked on discovery examination whether they had evidence that would rebut Bruce Graham’s statement that he and his family owned the Old Farm Road, they either replied that they did not, or with evidence such as “everyone always used it”.
[168] For example, Joan Andrusaitis stated the following during her discovery examination:
Q: Okay. Do you know if the road that you’re claiming as public was ever expressly dedicated to the public by George Graham or any of the Grahams?
A: I do not know that.
Q: Okay. And you’ve met Bruce Graham?
A: I’ve met Bruce.
Q: Okay. So, Ms. Andrusaitis, I’m going to put to you that Bruce Graham, during his discovery examination during this proceeding, stated that the road you’re claiming is a public road was privately owned by him during the entire ownership, during his entire ownership of the land, okay?
A: Okay.
Q: Would you disagree with statement?
A: No, I would not disagree.
Q: Okay. So you would agree that the Old Farm Road and any other road in there would be privately held by the Grahams?
A: That’s correct. And, I’m sorry, I never even gave that a thought, but I knew that that was all of his property.
[169] The Plaintiff Kevin Yorke gave the following discovery evidence:
Q: Okay. So, I’m going to put to you that Bruce Graham, during his discovery examination in this proceeding, stated that the road you are claiming is a public road was privately owned by him during his entire ownership of the land. Would you disagree with this statement?
A: No.
[170] The testimony of the Plaintiff Cherie Marshall was that she always thought of the Old Farm road as a private road, with a lot of members of the public using it:
Q: Okay. You’re claiming that the Old Farm Road is a public road, is that right?
A: It’s always been a public road. Well, no, I never thought it was a public road, I always thought it was a private road but a lot of the public used it. Put it that way. Because it was never ploughed or anything like that in the winter, so it wasn’t a public highway or anything like that.
[171] The Court also notes that the Plaintiff James Hardy Best gave discovery evidence that George Graham, Bruce Graham’s father and predecessor in title to the property put up a gate over the Old Farm Road at one point in the early 1960’s to prevent individuals from vandalizing the road:
Q: Are you claiming that you are – you’ve used the road for over 20 years without anybody saying that you weren’t allowed to do it or you didn’t get permission to do so?
A: I never had permission, no.
Q: Oh, okay.
A: We just – they always told me I could go ahead and use it.
Q: Sorry, they said you could go ahead and use it?
A: Yeah.
Q: Who said that?
A: Well, my uncle Fred for one and then George Graham after – gave me a key, because he got the gate there – he put up a gate for some vandalism or something.
Q: When did he give you a key to the gate?
A: Owen Patterson gave me a set and – all the fishermen he gave a set and – which I never used. I didn’t have to, because I always worked on my boat all through the summer, and then when I went back out the gate wasn’t there.
[…]
Q: Okay. Earlier you mentioned that a gate was put up and you were given a key to it.
A: Yeah.
Q: Can you tell me about that.
Q: Yeah. George Graham done that on account of the – he said they was vandalizing […..]
[…]
[172] The Plaintiff Shelley Dow also gave discovery evidence that Bruce Graham widened the Old Farm Road in approximately 2001 and that to her knowledge, he did not seek permission from anyone to do so.
[173] The discovery evidence of Bruce Graham was that it was typical for him to tell community members that they could “go ahead and use” the Old Farm Road.
[174] R. E. Megarry and H.W. R. Wade, in Law of Real Property, at page 845 note the following about permission and a landowner’s indulgence in determining whether a private road has been dedicated to the public:
…[Highways are] usually inferred from long use by the public, so that user is enough to show both dedication and acceptance. However, to raise a presumption of dedication there must have been open user as of right for so long a time and in such a way that the landowner must have known that the public were claiming a right. A user with the landowner’s permission or tolerance is not a user as of right, and courts will not find a public right of way exists where the use is attributable to the landowner’s indulgence. (847)
(emphasis added)
[175] The evidence before the Court shows that there were users with permission dating back until at least George Graham when he provided individuals such as Hardy Best keys to the gate he put up over the Old Farm Road.
[176] Counsel for the Plaintiffs referred the Court to the decision of the Ontario Court of Appeal in Gibbs v. Grand Bend (Village), (1995) 86 O.A.C. 321 for the proposition that open and unobstructed use by the public for a substantial period of time may constitute the evidence from which dedication and acceptance may be inferred and that dedication by a predecessor in title binds a successor in title. In that case, Finlayson J.A. stated:
109. In this regard, Kerans J.A. said in Foothills Municipal District No. 31 v. Stockwell, supra, at pp. 669-70: [1986] 1 W.W.R. 668 (Alta. C.A.)]:
An actual intention to dedicate may be inferred from the circumstances and, in particular, from long, uninterrupted, public use. Acceptance by the public may be inferred from the same circumstance: see Williams v. Wilson Ltd. v. Toronto, [1946] O.R. 309…(H.C.)
In modern times, one could say that the issue is whether owners before the respondents had acquiesced in the public’s assertion of a right of passage as a gift so that the respondents’ title was subject to the right thus acquired.
110. Open and unobstructed use by the public for a substantial period of time is, as a rule, the evidence from which a trier of act may infer both dedication and acceptance. This principle seems to have been generally accepted. [cited cases omitted]. Once a dedication is complete, neither the owners nor their successors in title could revoke it: see Hunsinger v. Simcoe (Town), and Carpenter v. Smith (supra). Neither the dedicator nor his successors in title can resume control of or convey the land free from the public rights to its use, nor can anything be done by the present owners to take back that which had been previously given away: see Gion v. Crutz, 2 Cal. 3d 29….at pp. 52-53 and 60.
[177] However, it is important to note that in Gibbs v. Grand Bend, where ownership of a beach was at issue, Finlayson stated that there was never a gate or fence restricting access to the beach claimed to have been publicly dedicated to the public. Mr. Gibbs in that case asserted private ownership of the beach. In addition, the municipality where the beach was located did not accept that Charles Gibbs was the owner of the beach and he was never assessed as owner of the beach. Further, the evidence showed that, to the knowledge of Charles Gibbs, over the years the municipality “paid a great deal of money annually to maintain the beach” and that in 1938 “the village received a licence of occupation of the beach from the province and assumed formal control of the beach. The village hired life guards, built bathhouses, and provided lighting and parking on the beach; Charles A. Gibbs participated in the presentation of the beach as a public beach; he owned a refreshment booth and leased it to an operator to sell refreshments to the public. In addition, the operator of the dance hall paid Gibbs to keep the beach clean” (para. 124)
[178] No such facts are in evidence before this Court. The evidence of Bruce Graham was that he had never dedicated the beach road to the public and that the one time he had taken steps to do so, the Province was not interested. There is no cogent and compelling evidence that any of Bruce Graham’s predecessors in title had done so. Without dedication to the public, there can be no acceptance of a road as public.
[179] I find that based on all of the evidence, from any source, there is no genuine issue of material fact that could alter the outcome of the first part of the test for summary judgment.
2. Does the challenged pleading require the determination of a question of law, either pure, or mixed with a question of fact?
[180] The answer to this question is “yes”. This Court must determine whether Old Farm Road is a public right of law. That engages a question of law. Accordingly, steps 3 much be examined.
3. Does the challenged pleading, have a real chance of success?
[181] This Court finds that it does not, based on all of the evidence before it. A “real chance of success” was explained by Jamieson J. in Trout Point Lodge Limited v. Automattic Inc., 2020 NSSC 212 at para 49:
[49] Justice Saunders in Coady v. Burton Canada Co., supra, discussed what is meant by a read chance of success:
44 The phrase “real chance” should be given its ordinary meaning – that is, a chance, a possibility that is reasonable in the sense that it is an arguable and realistic position that finds support in the record. In other words, it is a prospect that is rooted in the evidence, and not based on hunch, hope or speculation. A claim or a defence with a “real chance of success” is the kind of prospect that if the judge were to ask himself/herself the question:
Is there a reasonable prospect for success on the undisputed facts?
The answer would be yes.
[182] The evidence of Mr. Graham, the immediate predecessor in title to the Quinns, is that Old Farm Road is private.
[183] As is obvious from the Court’s review of the Plaintiffs’ evidence in response to this motion for summary judgment, many of the Plaintiff Affiants and the Non-Party Affiants gave evidence about their use and their family’s use of Old Farm Road to access the beach over many years. Many also gave evidence to the effect that they did not have to ask either the Grahams or their predecessors in title whether they could use the road to access the beach. There was also evidence that certain of the Plaintiffs or their family members helped “maintain” the road from time to time. However, that was on a voluntary basis.
[184] As is noted in the review of the case law above, both the intention of the landowner to dedicate and the acceptance by the public must be proved by cogent and substantial evidence in order to establish a dedication. Open and unobstructed use by the public for a substantial time may be evidence from which both dedication and acceptance may be inferred. User, however, is but the evidence to prove dedication; it is not use, but dedication, which creates a highway, as a public highway cannot be created by prescription. See Shannon at paragraph 59, referencing Anger and Honsberger, Law of Real Property (2nd Ed.), vol 2, at page 1001.
[185] The Plaintiffs have not shown that Old Farm Road was dedicated to the public. Rather, the Graham family’s actions were those of an owner. At one point they blocked it with a gate. They widened it and gave permission to people who asked to use it.
[186] The Plaintiffs have had sufficient time to garner evidence and put their best foot forward to show that a public road exists on the Quinn property.
[187] I find that there is no reasonable prospect of success on the undisputed facts. The Plaintiffs’ claim that a public road exists on the Quinns’ property must fail as a result.
[188] If I am wrong, and the challenged pleading does have a reasonable chance of success, I will consider the fourth question to consider in a motion for summary judgment.
4. Should the judge exercise their discretion to finally determine the issue of law?
[189] I am convinced that this Court should finally determine the issue of law, i.e. whether Old Farm Road has been dedicated to the public.
[190] As per the commentary in the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7 at paras. 27-33, this Court must consider whether dismissing the Plaintiffs’ public road claim at this point, rather than waiting for trial would be “proportionate, timely and affordable”.
[191] Although the Plaintiffs argue that this issue should be left for trial, it is to be remembered that it is necessary for the Plaintiffs to put their “best foot forward” to respond to this motion for summary judgment. The Court assumes that they have done so. They filed a significant number of Affidavits of both Plaintiffs and non-Plaintiff affiants.
[192] In Shannex Inc. v. Dora Construction Ltd., 2016 NSCA 89, Justice Fichaud explained the meaning of “best foot forward” in connection with summary judgment on evidence as follows:
36 “Best foot forward”: Under the amended Rule, as with the former Rule, the judge’s assessment of issues of fact or mixed fact and law depends on evidence, not just pleaded allegations or speculation from the counsel table. Each party is expected to “put his best foot forward” with evidence and legal submissions on all these questions, including the “genuine issue of material fact”, issue of law, and “real chance of success”: Rules 13.04(4) and (5); Burton, para. 87.
[193] In this case discovery examinations have been conducted. Extensive affidavit evidence was obtained and was before Justice Arnold on the injunction motion. Additional affidavit evidence was before the Court for the purpose of responding to this motion. None of the affidavits provide any details that support a legal assertion that the roadway is a public road. Some of the affidavits contain a bare assertion that a public road or public right of way exists. That comes very far from constituting the kind of evidence necessary to oust title to the disputed road from the Quinns, the acknowledged owners of the legal title to the property.
[194] I find that it is in the interests of justice for this Court to exercise its discretion to determine whether the Plaintiffs have proven dedication of Old Farm Road to the public. There is no reason to expect that any further or better evidence will be marshalled before a trial on the merits.
[195] I find that there is insufficient evidence before this Court for the Plaintiffs to meet the high burden of establishing that the Old Farm Road was dedicated to the public.
Conclusions
[196] Summary judgment is granted to the Quinns on the sole issue before the Court, i.e. whether the disputed portion of the Old Farm Road has been dedicated to the public. It has not been.
[197] The Quinns are entitled to their costs. If the parties cannot agree on costs, the Court will receive written costs’ submissions within twenty (20) calendar days of this decision.
[198] This decision only addresses the Quinns’ motion for summary judgment on the issue of whether Old Farm Road has been dedicated to public use and not on the issue of whether the Plaintiffs, or certain of them, or non-Plaintiffs, have prescriptive or deeded rights over Old Farm Road.
Smith, J.