Deguire v. Burnett, 2013 ABQB 488

Court of Queen ’ s Bench of Alberta Citation: Deguire v. Burnett, 2013 ABQB 488 Date: 20130827 Docket: 1003 14447 Registry: Edmonton Between: Christopher Deguire Plaintiff - and - Larry Burnett Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Russell Brown _________________________________________ ______________ I. Introduction [ 1 ] Mr. Deguire and Mr. Burnett are immediate neighbours. Their dispute arises from Mr. Deguire’s construction of improvements (part of his house, and a well) on a portion of Mr. Burnett’s land. Mr.

Deguire has sued Mr. Burnett for an order under Section 69(1) of the Law of Property Act , RSA 2000, c L-7 directing that he is entitled to retain the portion of Mr. Burnett’s lands on which his improvements encroach, and setting the appropriate compensation to Mr. Burnett. Mr. Burnett counterclaims in trespass, negligence and nuisance for damages resulting from the encroachment and for an order directing Mr. Deguire to remove the encroachments. [ 2 ] Each party applies for

summary judgment on his respective claims against the other. At issue is whether the evidence for either party supports a grant of

summary judgment and, if so, what relief ought to follow.

II. Background [ 3 ] Both Mr. Deguire and Mr. Burnett own acreage lots (of approximately 3 acres in size) in a subdivision in Lac Ste. Anne County, Alberta. Mr. Deguire purchased his lot (Lot 27) in June 2002. Mr. Burnett purchased his lot (Lot 28) in November 2008 – after the well had been dug, and approximately one week before Mr. Deguire placed his house (a modular home) onto the foundation. [ 4 ] The parties do not dispute that Mr.

Deguire’s house encroaches, at its furthest, 5.82 metres (including eaves) into Lot 28, and that the encroachment tapers down to include the entire west wall of the house and over 1/3 of the house’s north wall. The parties also agree that Mr. Deguire’s well is situated 14.61 metres inside Lot 28. While Mr. Deguire does not expressly depose to having made an honest mistake, it is implicit from his affidavit that the encroachment was the result of inadvertence on his part.

He says that, when he made these improvements, he believed that they were located entirely on his own land – that is, within the boundaries of Lot 27. [ 5 ] As to how Mr. Deguire came inadvertently to build upon Lot 28, he deposes: In or about 2003, I retained the services of Grove Engineering & Surveying Inc. to attend at [Lot 27] and provide advice regarding the boundaries of [Lot 27].

The representative from Grove Engineering & Surveying Inc. verbally and visually indicated where the property boundaries were located; the representative did not place stakes of any sort to mark the property boundaries. [ 6 ] Under questioning, Mr. Deguire gave further evidence regarding the representative of Grove Engineering & Surveying Inc. (“Grove”). He does not know the representative’s name. He had asked Grove for a survey, but did not receive a written document. He does not know why he did not receive a written document. He paid the representative $400 in cash. He did not receive a receipt.

He received nothing in writing from the representative. And, he received no form of report or any written document from Grove indicating that anyone from Grove had attended at Lot 27. [ 7 ] Mr. Deguire also agreed under questioning that, at the time of purchasing Lot 27, he had received from the previous owner a copy of a survey showing the dimensions of Lots 27 and 28 relative to their neighbouring properties. He also elaborated upon what he says was the Grove representative’s error that led him to believe later on that he was building upon Lot 27, and not upon Lot 28.

Specifically, he says that he and his then-wife walked the property with the representative, who located five survey stakes with a metal detector. Mr. Deguire says that he did not see the stakes, but that the representative told him that they were under the ground. [ 8 ] The presence of five survey stakes would make sense, given that Lot 27 has five corners (it is mostly rectangular, except for a small deviation in the northeast corner). Mr.

Deguire says, however, that the surveyor incorrectly identified one of the stakes he found as marking the northwest corner of Lot 27, whereas it is actually located approximately 120’ (or 36 metres) into Lot 28, marking the point on Lot 28’s northern boundary where it intersects with the boundary between two other lots (Lots 14 and 15). [ 9 ] Mr. Deguire says that he could not see the survey stakes at the time he began excavation and construction.

Consequently, as he explained under questioning, he decided upon the appropriate location to situate his house in part by trusting in his recollection of where the Grove representative had (incorrectly) pointed out the location of the northwest corner of Lot 27, and in part (he later added) by noting where the owner of Lot 14 had installed a fence post on the northwest corner of Lot 14. It is not clear from the evidence before me how the northwest corner of an acreage lot which is itself located northwest of Lot 27 (but does not adjoin Lot 27) would have been of assistance, and Mr.

Deguire acknowledged under questioning that Lot 14 is “nowhere near [Lot 27]”. He added that he had not bothered to consult the survey document which he had received from the previous owner to check the location of Lot 14 relative to Lot 27. [ 10 ] In short, Mr. Deguire says that he built his house and dug his well where he did at least in part because he relied on the location of the northwest corner of Lot 27 as it had been incorrectly shown to him by the Grove representative.

The result was that this led him to believe that the location of the western boundary between Lots 27 and 28 was 120’ or 36 metres further west than its actual location. [ 11 ] Mr. Deguire also stated under questioning that he has not returned to Grove to advise of its representative’s error or to ascertain the representative’s identity. [ 12 ] In July 2008 Mr. Deguire submitted a development permit application for construction of a modular home on a basement foundation on Lot 27. The application described the proposed development and included a site sketch which Mr.

Deguire deposes was “in accordance with my understanding of the location of the proposed development in relation to the boundaries of [Lot 27].” Although the sketch does not show the well, it does show the proposed house situated within the boundaries of Lot 27 – 65’ east of the western boundary of Lot 27 (that is, 65’ inside of Lot 27 from its boundary with Lot 28), and 180’ west of Lots 27’s eastern boundary. The house itself is depicted as running 60’ in length from its western to its eastern walls.

It is also depicted as squarely parallel to Lot 27’s property boundaries – that is, the house’s west and east walls are parallel to Lot 27’s west and east boundary lines, and the house’s north and south walls are parallel to Lot 27’s north and south boundary lines. [ 13 ] These distances (65’ from the western boundary of Lot 27 to the west wall of the house; 60’ along the house; and 180’ from the east wall of the house to the eastern boundary of Lot 27) total 305’. I observe that 305’ is also the width of Lot 27. [ 14 ] When Mr.

Deguire submitted this application to the County, he understood that the County required setbacks from the east and west side of the house of 15 metres (or 49’). [ 15 ] The County issued a development permit later in July 2008, and in September 2008 Mr. Deguire obtained a building permit (although he had already excavated the basement by then). As noted, the house was placed upon the foundation in November 2008. [ 16 ] After Mr. Burnett raised with Mr. Deguire the possibility that his house encroached onto Lot 28, Mr. Deguire retained Navland Geomatics Inc. (“Navland”) to perform a survey.

That survey confirmed not only that Mr. Deguire’s house encroaches, but that it is situated at a pronounced angle in relation to Lot 27’s western boundary. Mr. Deguire acknowledged under questioning that he did

not in fact situate the house as shown on the sketch. III. Analysis Introduction [ 17 ] Determining whether either party is entitled to

summary judgment in this case entails a review of the threshold for granting

summary judgment, and for granting relief under Section 69(1) of the Law of Property Act . The Test for

Summary Judgment [ 18 ] While the parties rely on different individual case authorities (Mr. Deguire upon Elbow River Marketing Limited Partnership v Canada Clean Fuels Inc. , 2010 ABQB 277 , Spurrell (Next Friend of) v Bradford , 2004 ABCA 288 and Lydian Properties Inc. v Chambers , 2009 ABCA 21 ; and Mr. Burnett upon Rahall v Tait , 2008 ABCA 221 , Murphy Oil Co. v Predator Corp. , 2006 ABCA 69 , 393008 Alberta Ltd. v Johnston , 2004 ABQB 927 and Tottrup v Clearwater Municipal District No. 99 , 2006 ABCA 380 ), there is no dispute between them on the onus and on the test to be met for

summary judgment. They each, however, emphasize particular statements from these case authorities. In particular, Mr. Deguire stresses that conflicting evidence on immaterial facts is not a bar to

summary judgment (Elbow River ; Spurrell and Lydian Properties ), while Mr. Burnett stresses that, in determining whether there is a genuine issue for determination, a party may not rely – as he says Mr. Deguire has – upon self-serving and self-created evidence ( 393008 Alberta Ltd. , at para. 21 ). [ 19 ] The briefest review of the leading case authorities reveals an array of judicial statements on

summary judgment and on when it can be successfully obtained or resisted. It must be “plain and obvious” that the claim or defence will fail; the claim or defence must be “bound to fail”, or have “no prospect of success”, or have “no merit, or raise “no genuine issue for trial”. ( Murphy Oil ; and Boudreault v Barrett , 1998 ABCA 232 at para. 9 .) [ 20 ] While these statements have been described as stating various tests ( Wickstrom v Wetter , 2008 ABQB 83 at para. 31 ), I view them as offering various descriptions of the same test.

That test, and its rationale, were recently encapsulated by my colleague Wakeling J in Beier v Proper Cat Construction Ltd , 2013 ABQB 351 . He states (at paras. 56, 59-68, 70): Most legal systems recognize that there is no reason to accord every party to an action full access to all stages of the litigation spectrum.

The common law principle that a person has a right to be heard or to have his day in court is not more important than speedy resolution of meritless claims or defences the continuation of which drive up the cost of litigation for everyone not just those prosecuting an action or maintaining a defence which has no real prospect of success. … … A mechanism which resolves before trial claims or defences that are so compelling the likelihood they will succeed or are so weak that the likelihood they will be rejected is very high is desirable. … In Canada v.

Lameman , 2008 SCC 14 , [2008] 1 S.C.R. 372, 378 the Supreme Court of Canada endorsed the value of

summary judgment protocols: The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. … Rule 7.3 of the new Alberta Rules of Court allows a court to grant

summary judgment to a moving party if the nonmoving party’s position is without merit. A party’s position is without merit if the facts and law make the moving party’s position unassailable and entitle it to the relief it seeks. A party’s position is unassailable if it is so compelling that the likelihood of success is very high. This may exist in a number of scenarios. First, the moving party is entitled to

summary judgment if, as a plaintiff, it presents uncontroverted facts and law which entitle it to judgment against the nonmoving party. The court must be satisfied that the plaintiff has presented uncontested facts which establish all the essential elements of the action. … Second, the moving party is entitled to

summary judgment if, as a defendant, it presents uncontroverted facts and law, which makes it highly unlikely the plaintiff will succeed. … There are a number of relevant principles which underly the fundamental norm that claims or defences that are so compelling the likelihood they will succeed is very high should be dealt with summarily. First, the legal or persuasive burden rests on the moving party. … The moving party must present the facts which, in combination with the applicable law, make its position unassailable if the nonmoving party does not contest the facts and the law. … Second, the nonmoving party has no legal persuasive burden to discharge. …

Third, the motions court may not make findings of credibility and resolve contested fact issues. … If a fact on which the moving partyrelies to support

summary judgment is the subject of a credibility contest, the motion court must dismiss the

summary judgmentapplication. Murphy Oil Co. v. Predator Corp., 2006 ABCA 69 , 384 A.r. 251, 257 (C.A. 2006) (“When a chambers … judgemust necessarily assess the quality and weight of the evidence to come to a decision, the failure of the case is not beyond doubt”). …That a controversy over nonmaterial facts exists is irrelevant. … Fifth, a nonmoving party’s argument that questioning or trial may produce evidence which assists the nonmoving party is without merit. Canada v. Lameman […] (“A

summary judgment motion cannot be defeated by vague references to what might be adduced in the futureif the matter is allowed to proceed”) …. [21] Justice Wakeling later reiterated and summarized the foregoing in O’Hanlon Paving Ltd. v Serengetti Developments Ltd.,2013 ABQB 428 (at paras. 38-41): Rule 7.3(1) of the Alberta Rules of Court stipulates that the Court may grant

summary judgment to a plaintiff if "there is no defence to aclaim". In Beier v. Proper Cat Construction Ltd., 2013 ABQB 351, para. 61, I provided this assessment of the essential features of rule7.3(1): Rule 7.3 of the new Alberta Rules of Court allows a court to grant

summary judgment to a moving party if the nonmoving party'sposition is without merit. A party's position is without merit if the facts and the law make the moving party's position unassailable andentitle it to the relief it seeks. A party's position is unassailable if it is so compelling that the likelihood of success is very high. And what does very high likelihood of success mean? The Supreme Court of Canada has held that the moving party must establish that there is no genuine issue to be tried. Guarantee Co. ofNorth America v. Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423, 438.

Our Court of Appeal has supported anumber of different measures of the high likelihood of success necessary to warrant

summary judgment. Another Look Ventures Inc. v.642157 Alberta Ltd., 2012 ABCA 253, para 8 (summary judgment may be granted if it is "plain and obvious that the action cannot succeed"); Enokhok Development Corp. v. Alberta Treasury Branches, 2011 ABCA 322 , 68 Alta. L.R. 5th 126, 131 (C.A.2011) ("summary judgment should only be granted if the matter is one factually and legally beyond doubt") &Prefontaine v.

Veale, 2003ABCA 367 , 339 A.R. 340, 344 (C.A. 2003) ("A defendant must show more than a strong likelihood that he will succeed; thepleadings and evidence on the motion must show that the claim has no reasonable prospects of success"). All of these standards are driven by the desire to achieve one overriding purpose - the court must be satisfied that the determination ofthe dispute without making available to a party all stages of the litigation spectrum is just. [22] Justice Wakeling’s formulation of the test for obtaining

summary judgment – that is, whether the evidence renders a claim ordefence so compelling that the likelihood it will succeed is very high – not only expresses the high threshold set by the Court of Appealin Murphy Oil and Boudreault; it also contains within it the rationale for granting

summary judgment and thereby depriving a litigant offull access to all litigation tools. Accordingly, the question to be answered on the applications for

summary judgment before me iswhether the likelihood of the respective applicant’s success is very high, such that it is just to determine the parties’ dispute summarily. Section 69(1) of the Law of Property Act [23] Section 69(1) of the Law of Property Act provides: When a person at any time has made lasting improvements on land under the belief that the land was the person’s own, the person or theperson’s assigns (

a) are entitled to a lien on the land to the extent of the amount by which the value of the land is enhanced by the improvements, or (

b) are entitled to or may be required to retain the land if the Court is of the opinion or requires that this should be done having regard towhat is just under all circumstances of the case. [24] Section 69(1) has been part of Alberta’s statutory law since

An Act to Amend the Land Titles Act, SA 1950, c 35, s 11. Despitethis long provenance, the parties before me were not agreed on the prerequisites to obtaining relief under Section 69(1). While they bothacknowledge that Mr. Deguire must show that his encroachment onto Lot 28 represents “lasting improvements”, they are disagreedabout what else he must show. Mr. Deguire says that, beyond lasting improvements, he need only show that he was (as Section 69(1)stipulates) “under the belief that the land was [his] own”. Mr.

Burnett submits that, because Section 69(1) amounts to a legislatively-sanctioned interference with his rights in property, it ought to be strictly construed so as to require Mr. Deguire to show his belief to havebeen not only honest and bona fide, but also reasonable. [25] While I am in sympathy with Mr. Burnett’s position as the innocent landowner in this dispute, I am bound by appellateauthority which supports Mr. Deguire’s position. That authority does not, however, preclude any consideration of the reasonableness ofMr.

Deguire’s mistake. [26] In Mund v Medicine Hat (City) (1988), 1988 ABCA 168 , 86 AR 392 (CA) at para. 12, Harradence JA, havingconsidered the requirement under the predecessor to Section 69(1) that the applicant be “under the belief that the land was his own”,said: That belief need not be reasonable, so long as it is honestly held. In that regard, the reasonableness of the belief will be relevant as towhether the belief was in fact honestly held: see Welz v. Bady, (MB CA), [1949] 1 D.L.R. 281 (Man. C.A.) and Maly

[v. Ukrainian Catholic Episcopal Corporation of Western Canada (1976) (AB KB), 70 D.L.R. (3d) 691].

Tosummarize, the Plaintiff must establish that he had an honest belief that he owned the land upon which the lasting improvements weremade. [27] This would appear to be the clearest possible statement of our Court of Appeal that (1) the requisite belief may be unreasonable, but it must be bona fide, in the sense of being honestly held, and (2) the unreasonableness of the belief is relevant to its honesty. [28] While I am bound by Mund, it is worth adding that this statement is, on the language of Section 69(1), clearly correct. TheLegislature has required that, to obtain a remedy under Section 69(1), Mr.

Deguire must show that he was “under the belief that the landwas [his] own”. Had the Legislature intended to afford Mr. Burnett a defence of unreasonableness, it would have been an easy matter forthe Legislature to have imposed upon Mr. Deguire the burden of showing that he was “under the reasonable belief that the land was [his]own.” Mr. Burnett is therefore not asking me to strictly construe Section 69(1); he is asking me to add something to Section 69(1) thatis not there. [29] At the same time, Mund’s direction that the reasonableness of the belief may be considered in evaluating a belief’s honestymakes sense.

The more reasonable the stated belief about the location of improvements, the more likely it was honestly maintained.

Conversely, an unreasonable belief about the improvement’s location is less likely to have been honestly maintained. [30] Mund relied upon Maly v Ukrainian Catholic Episcopal Corporation of Western Canada (1976) (AB KB),70 D.L.R. (3d) 691 (ABDC), where Stevenson DCJ (as he then was) had (at paras. 5-6) identified two conflicting lines of authority onwhether reasonableness was itself a precondition to the granting of relief under Section 69(1): There is a divergence on the question of whether or not the mistake must be a reasonable one.

The defendant's argument before me wasthat, assuming the mistake to be honest, and bona fide, it was not reasonable. The statute must be read, according to that argument, withthe requirement that the mistake be "reasonable" or "informed" or, perhaps, "intelligent". Counsel recited the recent oral judgment ofMilvain, C.J.T.D., in Canada Permanent Trust Co. et al v. Herron et al.

S.C.A., J.D.C., No. 119475, [1976] W.W.D. 62, where there arereferences to "a belief founded upon a reasonable and adequate inquiry into the circumstances" or quoting Dysart, J., "'... the belief must,in any case, be real, bona fide, and reasonable'". In both the Chief Justice's decision and that of Dysart, J., there were factors whichsuggested inquiry and their comments must, of course, be read in that light. The Courts will not permit the claimant to close his eyes toinquiries which the circumstances commanded. I would be inclined to say that in those circumstances the mistake was not bona fide.

There is, however, a difference in the tests employed in the cases. It appears to be clear that one line of authorities must not have beenreferred to Chief Justice Milvain because the broad language used by Dysart, J., in Aumann v. McKenzie et al., [1928] 3 W.W.R. 223,does not square with the later decision of the Court of Appeal in Welz v. Body et al., (MB CA), [1949] 1 D.L.R. 281,[1949] 1 W.W.R. 123, 56 Man. R. 374. In that case Coyne, J.A., said, at p. 282 D.L.R., p. 124 W.W.R.: I have read the case cited for the appellant and a good many more. They show

interpretation that the belief should be bona fide orhonest. Some also say that it should be reasonable. In my opinion the proper

interpretation is to be found in Parent v. Latimer (1910), 2O.W.N. 210, in the Common Pleas Divisional Court, affirming a judgment of Boyd C. Chief Justice Sir William R. Meredith, withwhom Teetzel and Clute JJ. agreed, said of s. 30 of the Ontario Act, which is the same as our s. 27; "The right of the defendants[appellants] to the benefit of sec. 30 depends upon their having established that the improvements were made under the honest belief thatthe land was their own: Chandler v. Gibson, 2 O.L.R. 442, 448.

As I understand the section, it is not necessary, if it be an honest belief,that the belief be founded on reasonable grounds, though the reasonableness of it may doubtless be considered in arriving at a conclusionas to the existence of the belief." [31] Because Stevenson DCJ applied only the prerequisite that the encroachment be “honest and bona fide”, I must take him ashaving concluded that the Manitoba Court of Appeal’s decision in Welz v Body (which he cited) correctly decided that reasonableness ofbelief is not a prerequisite to the granting of relief under Section 69(1). [32] Maly is entirely consistent with Mund, which suggests that it has been established law in Alberta for nearly 40 years that, inorder to be entitled to trigger relief under Section 69(1), the plaintiff’s belief that the improvements were on his or her own land mustonly be “honest and bona fide”.

It need not be reasonable, although “the reasonableness of it may doubtless be considered in arriving at aconclusion as to the existence of the belief.” [33] It is therefore curious that, despite a clear statement from our Court of Appeal in Mund, citing an esteemed Alberta jurist whoin turn cited appellate authority from Manitoba (which was also relied upon by our Court of Appeal in Mund), uncertainty persists onwhat Mr. Deguire must show to qualify for relief under Section 69(1). Mr.

Burnett understandably draws my attention to the AlbertaLaw Reform Institute’s Final Report No. 89, Limitations Act: Adverse Possession and Lasting Improvements (May 2003) (the “ALRIReport”), which states: Belief in ownership is objectively assessed: … the “belief” must in any case be real, bona fide and reasonable. It must be more than an honest guess or a fervent hope. It must befounded upon information or assurances such as would guide an ordinarily careful and competent man.

Surely “belief” cannot bepredicated on the absence of information or lack of inquiry, especially where inquiry is suggested by the very nature of the circumstance. [34] The quotation appearing in this excerpt from the ALRI Report is taken from Canada Permanent Trust Co v Herron, the

decision of Milvain CJ, whose reasoning was rejected by Stevenson DCJ in Maly (and by extension rejected by our Court of Appeal inMund). [35] The ALRI Report concludes that “[a] belief will not be reasonable and thus not honestly held where circumstances warrantinquiry on the point of ownership”. In support of this statement, the ALRI Report cites both Mund and Maly.

With respect, thisstatement and its reliance upon Mund and Maly misapprehend their point about unreasonableness of belief: Mund and Maly do not saythat an unreasonable belief is a dishonest belief, but rather that an unreasonable belief may be relevant to the honesty of the belief. [36] It was necessary for me to undertake this review of the law governing Section 69(1) because, as Mr.

Burnett also points out,this Court has previously relied upon the erroneous statement of that law which appears in the ALRI Report to require an applicant underSection 69(1) to demonstrate the reasonableness of his belief. (Jusza v Dobosz, 2003 ABQB 582.) While the result in that case wasclearly correct (since the applicant’s belief was not honestly held), the point remains that our Court of Appeal has confined thereasonableness of the applicant’s stated belief to a secondary role, which is as a factor relevant to the honesty of the belief. [37] I should add, in view of the parties having touched upon the decision of my colleague Sanderman J’s decision in Jones vSemen, 1999 ABQB 473, that I do not see that decision as inconsistent with Mund.

While Sanderman J’s statement (at para. 24) that theapplicants were “foolish not to have the land properly surveyed” suggests unreasonable conduct on their part, he went on to describe why“[o]ne can understand in these circumstances [that the applicants] did not feel compelled to survey the land” and that “[o]ne cannotascribe any mala fides to them”, and finally that they made an “honest mistake”. I take this as a finding by Sanderman J of a reasonablebasis for the applicants’ belief that they were making improvements to their own land, which further supported a finding that the beliefwas honestly held.

This is the very analysis that Mund expressly contemplates. Does the evidence on Section 69(1) support a grant of

Summary Judgment to eitherparty?

(1) Mr. Deguire’s Application [38] I will first address Mr. Deguire’s application for

summary judgment. In order for Mr. Deguire to succeed, I must be satisfiedthat his claim under Section 69(1), which requires that he demonstrate that he has made lasting improvements on a portion of Lot 28under the honest belief it was his own, is so compelling that the likelihood it will succeed is very high. [39] The first issue is whether Mr. Deguire’s encroachment represents a lasting improvement to the land. By his Statement ofDefence, Mr. Burnett denies that it does. Mr.

Deguire, however, deposes that the foundation of the house extends approximately 8’ intothe ground and is constructed of concrete and other materials. As noted, the house is a modular home. The well extends approximately260’ into the ground and is constructed of plastic, steel and other materials. To Mr.

Deguire’s knowledge, neither the house nor the wellcan easily or practicably be removed or relocated from their current locations. [40] Both Stevenson DCJ in Maly and our Court of Appeal in Mund cited with approval the statement of Laskin JA (as he thenwas) in Gay v Wierzbicki (1967), (ON CA), 63 DLR (2d) 88 at 93 (ONCA) that, to constitute a “lasting improvement”,the construction must be “an addition to the property amounting to more than mere repair or replacement of waste” that is permanent “inthe sense of not being easily removable, as is the case with some fixtures”.

In Maly, therefore, foundations for a cottage were consideredto be a lasting improvement, while in Mund a cookhouse which rested upon ties and was never affixed to the ground, a dogpen and trees,being easily removable, were not. [41] In my judgment, the state of the evidence renders it very likely that Mr. Deguire will succeed in demonstrating that his home(complete with foundations) and the well are “lasting improvements” within the meaning of Section 69(1) and the criteria stated in Gay vWierzbicki. [42] I turn now to consider the evidence relevant to the honesty of Mr.

Deguire’s stated belief that throughout the construction ofthe improvements he believed that they were located entirely within the boundaries of Lot 27. [43] Mr. Deguire submits that his evidence that he believed he was making improvements to his land was unshaken underquestioning. He further submits that it is supported by the sketch accompanying his development permit application (inasmuch as thehouse is drawn entirely within the boundaries of Lot 27) and by his evidence about retaining Grove and about the advice he receivedfrom its representative. [44] Mr. Deguire also emphasizes that Mr.

Burnett does not depose to evidence that would support a finding that Mr. Deguire’sbelief that he was making improvements to his own land was dishonestly held, but that he merely asserts that this it was. Mr. Deguiresays that Mr. Burnett fails to identify any basis for this assertion. This is not, he says, a case where affidavits clash on relevant facts and,accordingly there is no bar to

summary judgment. [45] Mr. Burnett does, however, contradict Mr. Deguire in a material respect. [46] Mr. Deguire testified under questioning that, at the time of Grove’s representative’s attendance at Lot 27, and at the time ofsituating his house, the survey stakes were underground and not visible to the naked eye. Along with the incorrect advice Mr.

Deguirereports having received from Grove’s representative about the location of the northwest corner of Lot 27, his inability to actually see thestakes was central to his explanation of how he came to situate the house as he did (since he had to go by memory as to the location ofthe stake denoting the northwest corner, and by a post installed by the owner of Lot 14). [47] Mr. Burnett, however, deposes that all the survey posts were visible to him when he walked around the property. Thiscontradicts Mr.

Deguire’s evidence on a key element of his explanation for why he situated the house as he did, and raises the suggestionthat, contrary to his evidence, he knew or was willfully blind to the location of the stakes, or that he was at best reckless in failing to look

for what might be seen. [ 48 ] Mr. Deguire responds to this evidence in his reply brief, attaching portions of the transcript of his counsel’s questioning of Mr. Burnett. This, Mr. Deguire submits, demonstrates that “[t]he correct survey pin was not visible to the naked eye and a pin finder was required to locate it.” Certainly, the evidence in the transcript does not support Mr. Burnett’s general statement that all the survey stakes were visible to him. He said under questioning that he acquired a pin finder, and also used a surveyor’s chain to measure what he referred to as the “back property line”.

Later, referring to “a front pin” of “two posts” (the location of which are not described in the excerpt that was provided to me), he says that he located it by digging. He also appears to have been unable to locate a stake on the southwest corner of his property (which corner does not border Lot 27) because it was marked with “a post that said lot, block and plan on it” (which I take to be something different than a survey stake).

He also says that all this occurred after the parties had received the real property report (which I take to be Navland’s survey) in August 2009, and that prior to that he had not seen either of the stakes that marked the boundary between Lots 27 and 28 with his naked eye. [ 49 ] Assuming that “[t]he correct survey pin” referred to in Mr. Deguire’s submissions is the stake denoting Lot 27’s northwest corner, the portion of the transcript provided to me does not clearly support the submission that Mr.

Burnett’s evidence under questioning demonstrates that it was not visible to the naked eye and that a pin finder was needed to locate it. I cannot tell from this transcript whether the “front pin” is located (or for that matter either of the “two posts” are located) along the boundary between Lots 27 and 28. Nor does the transcript reveal whether that boundary is the “back property line” to which Mr. Burnett refers. And, a stake on the southwest corner of Lot 28 would not have been located along its boundary with Lot 27. [ 50 ] Mr.

Burnett’s affidavit evidence is shaken by his own admissions under questioning, inasmuch as all of the survey stakes could not have been visible to him, or at least to the naked eye. The central contention advanced by Mr. Burnett’s evidence, however, is that Mr. Deguire would have been able to see the stakes along the boundary between their two lots (and in particular the stake in Lot 27’s northwest corner). Mr. Burnett’s admissions as they appear in the portion of the transcript provided to me do not negate that contention.

His statement therefore remains some evidence which, as I have said, contradicts a material aspect of Mr. Deguire’s account for his actions. While the evidence may not prove to be sufficient to preclude a fact-finder from accepting Mr. Deguire’s evidence that he could not see the stake located at Lots 27’s northwest corner, fact-finding is not my role on this application. I rely upon and adopt the comments of my colleague Graesser J in Wickstrom v Wetter (at paras. 102-03, 106-08, 111-12 ): Is the existence of some evidence, however, enough for the Plaintiffs to survive this application?

The answer is a reluctant yes. The evidence before me does not demonstrate to me that the Plaintiffs have a reasonable prospect of proving that they need to prove on a balance of probabilities, let alone on the higher standard required for rectification. … … From my review of the evidence, and giving the Plaintiffs the benefit of admitting all of the hearsay, using the lowest possible standard of proof, and the broadest possible parameters for the application of rectification, I do not think that the Plaintiffs have established a reasonable prospect of success.

However, this view comes from my analysis of the evidence, the weight to be given to it and consideration of the sufficiency of such evidence. That analysis takes me into the tasks a chambers judge is not allowed to perform on a

summary judgment application. The Murphy Oil decision is thus problematic for a moving party where there is some evidence, however scant, that might support the Plaintiffs’ claim. If the chambers judge on a Rule 159 motion has no ability to assess the quality of the evidence, or weigh the evidence in opposition to the motion, the motion is doomed to fail if the opposing party can adduce some evidence, or point to some evidence, which supports their position. It matters not whether that evidence is insufficient to meet any burden of proof. While the “reasonable chance of success” test may not be met, the need to weigh evidence gives the “genuine issue for trial” necessary to defeat

summary judgment. … In criminal cases, the trial judge acts as a gatekeeper for evidence and argument. In a civil case under Rule 159, the chambers judge’s role is more limited. Murphy Oil gives the judge no power to weigh the evidence. The only cases to be screened from a trial judge are those where there is absolutely no evidence which may support the claim or defence (as the case may be) or no arguable legal dispute if the facts are clear. In that regard, my task here is essentially to determine whether there is any evidence to support the Plaintiffs’ claim for restitution. Having found that there is some evidence, my hands are tied on a

summary judgment motion. … (Emphasis in original.) [ 51 ] It is entirely possible that further and better evidence from Mr. Deguire, or further questioning of Mr. Burnett or even clarification of what survey stakes Mr. Burnett saw and where he saw them, might resolve this contradiction. It might also explain what Mr. Burnett views as (at best) Mr. Deguire’s recklessness in making his encroachments. It is also possible that “recklessness” might not preclude a finding that Mr. Deguire honestly believed that he was making improvements to his own land for the purposes of Section 69(1).

That question has not yet been considered by this Court. As matters stand, however, there is some evidence from Mr. Burnett which bears directly upon the honesty of that belief. While, as I say, it may not be sufficient to support a finding on a balance of probabilities that Mr. Deguire saw the crucial survey stakes, it is sufficient to defeat an application for

summary judgment since it cannot be said that Mr. Deguire’s position is so unassailable that the likelihood that he will succeed is very high. [ 52 ] While this is on its own sufficient to dispose of Mr. Deguire’s application, clashing affidavits are not the only basis for withholding

summary judgment. There is another reason here for dismissing Mr. Deguire’s application.

[ 53 ] As Wakeling J said in Beier , whether it can be said that a claim or a defence is very likely to succeed is determined with reference to certain principles. Here, Mr. Deguire must present evidence which requires no judicial assessment of its quality and weight and, in combination with the applicable law, makes his position unassailable in the absence of contradiction by Mr. Burnett.

It follows that, even where a respondent presents no contradictory evidence, and even assuming (as I do here) that no further evidence will be led by either party if this matter goes to trial, an applicant’s evidence might fall short. I find Mr. Deguire’s evidence does so here. [ 54 ] Mr. Deguire’s evidence in support of the honesty of his belief consists of his account regarding the attendance at Lot 27 of a representative of Grove and, specifically, his account of the representative having “verbally and visually indicated where the property boundaries were located”. Under questioning, Mr.

Deguire admitted that he does not know the representative’s name; that he did not get what he requested, which was a survey; that he does not know why he did not get a survey; that he paid cash; and that he received no receipt. [ 55 ] This evidence is closely tied to the disputed evidence regarding Mr. Deguire’s ability to see the survey stakes denoting the boundaries of Lot 27. Mr.

Deguire says that, because he did not know where the stakes were located, he had to situate the building with reference to his recollection of the advice from Grove’s representative, as well as the location of a post on a lot that he admitted was “nowhere near” Lot 27. [ 56 ] In addition, Mr. Deguire had the survey document he had received from the previous owner. His sketch prepared in support of his development permit application depicts a west-east dimension that conforms precisely to the actual dimension as surveyed. These considerations go to the reasonableness of Mr.

Deguire’s belief that his improvements were being made to his own land – which is, as I have explained, a factor to be considered in evaluating the honesty of his belief. [ 57 ] Taken together, this evidence does not furnish the Court with a sufficient basis to conclude that Mr. Deguire’s position is so unassailable that his claim is very likely to succeed. The admissions obtained by Mr. Burnett from Mr. Deguire, and the evidence regarding his possession of a survey document and the west-east dimensions of Lot 27 which appear on his sketch, detract from the plausibility and reasonableness of Mr.

Deguire’s stated belief that his improvements were on his own land. The degree to which they so detract is not for me to determine. ( Murphy , at para. 24: “when a chambers … judge must necessarily assess the quality and weight of evidence to come to a decision, the failure of the case is not beyond doubt.”). In these circumstances, however, it would not be just to grant

summary judgment against Mr. Burnett. [ 58 ] I make two further observations. First, this is not an instance such as Spurrell , where our Court of Appeal said (at para. 5) “[t]he mere possibility of a credibility issue is not enough to prevent

summary judgment.” The defendant applicant had in that case relied upon his own account and the account of an accident re-constructionist, presenting evidence that left no foundation for a concern about credibility. Here, however, Mr. Deguire’s evidence, in view of his admissions under questioning, does on its own give foundation to a concern about his credibility on a central issue. [ 59 ] Second, the Court’s concern here is distinct from Mr. Burnett’s submission about “self-serving” evidence, which goes to admissibility.

Self-serving evidence is usually a previous consistent statement introduced to bolster a witness’s credibility. ( MEDK v Delisle , [1996] AJ No 318 (QB, Berger J as he then was) .) Deposing to factual matters within a witness’s personal knowledge either in support or in response to an application for

summary judgment is not, however, providing inadmissible self-serving evidence. The Court’s concern here is not one of admissibility of evidence, but sufficiency of evidence.

(2) Mr. Burnett’s Application [ 60 ] Turning to Mr. Burnett’s application for

summary judgment on his counterclaim, it will be apparent from my earlier statement (that it is not for me to determine the degree to which Mr. Deguire’s admissions under questioning detract from the plausibility and reasonableness of his account) that Mr. Burnett’s application for

summary judgment also fails. [ 61 ] While I agree that the plausibility and reasonableness of Mr. Deguire’s account were shaken by his admissions under questioning and by the evidence of the development permit application sketch and of his possession of a survey document, it does not leave Mr. Burnett in a position to obtain

summary judgment against Mr. Deguire. In furnishing Mr. Deguire with a possible avenue to a remedy, Section 69(1) effectively provides Mr. Deguire with a defence to Mr. Burnett’s action. Unless it can be said that it is very likely that Mr. Deguire will fail to demonstrate an honest belief that he was building on his own land, it cannot be said that it is very likely that Mr. Burnett will succeed in his claims against Mr. Deguire. And, in my judgment, it cannot be said to be very likely that Mr. Deguire will fail in demonstrating the honesty of that belief.

His affidavit evidence of having retained Grove, even taken together with his admissions under questioning, leave some evidence, which I cannot weigh, supporting the honesty of his belief. Again, the comments of my colleague Graesser J in Wickstrom v Wetter (at paras. 102-03, 106-08, 111-12 , reproduced above) are apposite. [ 62 ] I acknowledge Mr. Burnett’s submissions regarding Mr.

Deguire’s possession of an earlier land survey, his failure to obtain a real property report until after construction, his knowledge of the required setbacks, his evident knowledge (judging from the sketch submitted in support of the development permit application) of Lot 27’s length running west to east, and regarding the variance between the house’s actual location and the proposed location in that sketch. In the face of Mr. Deguire’s evidence, however, Mr. Burnett is not entitled to

summary judgment. IV. Conclusion

[ 63 ] In the circumstances, it is unnecessary for me to consider questions of remedy. Both applications for

summary judgment are dismissed, with costs. Heard on June 7, 2013. Dated at Edmonton, Alberta on August 27, 2013. Russell Brown J.C.Q.B.A. Appearances: Daina Young Reynolds, Mirth, Richards & Farmer LLP for the Plaintiff Phyllis Van Campenhout Hall & Van Campenhout for the Defendant