Bretin v Ross, 2019 ABQB 957

Court of Queen’s Bench of Alberta Citation: Bretin v Ross, 2019 ABQB 957 Date: 20191213 Docket: 1501 00038 Registry: Calgary Between: Vernon John Bretin Applicant - and - Donald John Ross, Christine Dot McKinnon, Alberta Treasury Branches, Ember Resources Inc., AltaLink Management Ltd., Canadian Pacific Railway Ltd. Respondents Mark Dorin Intervenor _______________________________________________________ Reasons for Judgment of the Honourable Justice April Grosse _______________________________________________________ I. Introduction [ 1 ] Mr.

Bretin claims that he has acquired ownership of lands through adverse possession. Nobody opposes his request to have title to those lands issue in his name. The dispute before me relates to whether Mr. Bretin’s title is subject to existing encumbrances. Mr.

Bretin claims title free and clear of those encumbrances. AltaLink Management Ltd. ("AltaLink"), which has a Utility Right of Way ("URW") registered against the property, disagrees. II. Agreed Facts [ 2 ] The parties filed an Agreed Statement of Facts. Much of the case can be decided on this basis. The remainder of this

section is comprised of facts taken from the Agreed Statement of Facts. [ 3 ] On September 24, 1986, Mr. Bretin and his wife Patricia Bretin acquired registered title to lands referred to in this case as the "Bretin Lands". The legal description is set out in Appendix "A". [ 4 ] The Bretin Lands are located directly south of lands currently owned by Christine McKinnon and Donald Ross (the "Ross McKinnon Lands"), also legally described in Appendix "A". [ 5 ] At the time that Mr. and Mrs.

Bretin purchased the Bretin Lands, there was a transmission line (the "Original Line") across part of the Ross McKinnon Lands and the Bretin Lands. [1] The Original Line was owned by TransAlta Utilities Corporation ("TransAlta"). TransAlta had a Crossing Agreement with Canadian Pacific Railway ("CPR"), the then owner of the Ross McKinnon Lands.

TransAlta also had a Right of Entry Order dated July 20, 1979 from the Surface Rights Board in respect of the Bretin Lands. [ 6 ] On May 28, 1997, TransAlta entered into a Right-of-Way Agreement (the "Right of Way Agreement") with CPR with respect to the Ross McKinnon Lands. TransAlta registered the Right of Way Agreement against title to the Ross McKinnon Lands on May 30, 1997. [ 7 ] In 2002, TransAlta assigned the Right of Way Agreement to AltaLink.

The registration on the Ross McKinnon lands was updated on June 17, 2002. [ 8 ] On June 12, 2012, AltaLink filed applications with the Alberta Utilities Commission ("AUC") requesting approval to construct and operate various transmission facilities, including a new transmission line (the "L to J Project"). One of the routes considered for the L to J Project was across the Ross McKinnon Lands and the Bretin Lands. Mr. Bretin testified at the AUC hearings and was part of a group that opposed AltaLink’s preferred route.

On October 7, 2013, the AUC issued Decision 2013-369, granting AltaLink permits and licenses to relocate the Original Line and to locate a new line on the Ross McKinnon Lands and the Bretin Lands. [ 9 ] On January 30, 2014, AltaLink applied to the Surface Rights Board for a Right of Entry Order with respect to the Bretin Lands relating to construction of the new line and relocation of the Original Line. The Board granted Right of Entry Order No. 0308/2014 with respect to the Bretin Lands. III. Procedural History [ 10 ] On January 8, 2015, Mr.

Bretin filed the Originating Application, which ultimately led to the trial of an issue before me. He named Ms. McKinnon and Mr. Ross as Respondents and sought an order quieting title to a portion of the Ross McKinnon Lands over which he claims adverse possession. These lands are a triangle in the southeast corner of the Ross McKinnon lands, abutting the existing Bretin lands and were referred to in the proceedings as the "Adverse Lands". The Adverse Lands are depicted a number of places in the trial record, including on a survey forming part of the Agreed Statement of Facts. [ 11 ] On August 4, 2015, Mr.

Bretin attended in morning chambers and obtained an Order quieting title to the Adverse Lands (the "Quieting Order"). The Quieting Order provided that subject to obtaining a survey and applying for subdivision, Mr. Bretin would take title free and clear from all prior rights, interests and encumbrances. Ms. McKinnon and Mr. Ross did not oppose the application. AltaLink was not notified and did not appear. [ 12 ] On February 17, 2016, AltaLink applied to set aside or vary the Quieting Order. AltaLink’s application was adjourned to August 26, 2016. On August 24, 2016, Mr.

Bretin applied to dismiss AltaLink’s application as being out of time. Both applications were adjourned to a Special Chambers hearing on August 24, 2017. [ 13 ] On August 24, 2017, the Court denied Mr. Bretin’s application to dismiss the AltaLink application and directed a trial of an issue with respect to Mr. Bretin’s entitlement to title to the Adverse Lands free and clear of encumbrances. As part of the August 24, 2017 Order, Mr. Bretin was directed to file an Amended Originating Application and he did so on December 1, 2017. [ 14 ] The trial of an issue proceeded before me on October 1-4, 2018. Mr.

Bretin requested the opportunity to file written argument and the parties did so later in 2018. I heard oral arguments on March 19, 2019. [ 15 ] During the attendances before me, Mr. Bretin advised that it is difficult for him to address matters on his feet and he needed a written process for submissions. While it may be different when he is receiving information as opposed to presenting it, I decided to prepare a written decision in hopes that Mr. Bretin will have a written record that he can digest without having to order transcripts. IV.

Other Proceedings [ 16 ] On March 11, 2015, AltaLink obtained a court order requiring Mr. Bretin to remove a structure from the Adverse Lands and enjoining him from interfering with AltaLink’s construction and operation activities relating to the relocation of the Original Line and the new line. The order was without prejudice to Mr. Bretin’s claimed ownership of the Adverse Lands. These other proceedings are

distinct, though the underlying events are part of Mr. Bretin’s narrative in terms of his dissatisfaction generally with the activities of AltaLink. V. Preliminary Matters [ 17 ] Mr. Bretin was self-represented in the trial. He requested leave to have his wife Patricia sit with him and act as his "McKenzie Friend". AltaLink consented to this request, notwithstanding that Mrs. Bretin was also a witness in the proceedings. Mrs. Bretin was of assistance to Mr. Bretin and the Court. [ 18 ] At the opening of the trial, Mr. Mark Dorin sought leave for standing in the proceedings.

He indicated that if he were granted standing, he would be seeking an adjournment. At that time, Mr. Dorin had not been able to file an application or evidence, but he later produced evidence that he had, in the week leading up to trial, entered into an option to purchase the Ross interest in the Ross McKinnon Lands. He did not seek to take a position with respect to Mr. Bretin obtaining title to the Adverse Lands. However, he took issue with the registration of AltaLink’s URW and wanted to protect his interests in that regard. [ 19 ] I denied Mr.

Dorin’s initial application for standing with oral reasons, but gave him leave to re-apply to participate in the final arguments. At the opening of the trial, it was not clear what the scope of argument would be, the extent to which Mr. Dorin's interest might be engaged, or the extent to which Mr. Dorin might be able to assist the Court in a way that the parties could not. [ 20 ] At the close of evidence, Mr. Dorin re-applied and I granted him status as an intervenor for the purpose of written argument, with oral reasons that I will not repeat here. Mr. Dorin participated in written argument. VI.

Witnesses [ 21 ] I heard evidence from Mrs. Bretin, Mr. Dorin, Mr. Bretin and Mr. Cavers, an AltaLink employee. For the most part, the outcome of these proceedings does not turn on credibility. [ 22 ] Mr. Dorin did not have relevant and material lay evidence to offer, so his evidence was brief. Nothing turns on his evidence or his credibility. I believe that Mrs. Bretin and Mr. Bretin were generally trying to be truthful. However, it is clear that over the course of this and other disputes, their position and their evidence have to some extent become entwined.

There were points in both their testimony where their evidence was either exaggerated or selective so as to fit with their position. This happened to a greater degree with Mr. Bretin. It is open to me to accept some, all or none of a witness’s evidence. I certainly do not reject all of the evidence of Mr. or Mrs. Bretin. To the extent that any of my findings below turn on particular aspects of their evidence, I have noted whether I accept that evidence. I generally found Mr. Cavers to be a credible witness.

He was fair in the way that he answered questions and he tried to make clear what he could answer and what he could not. Again, where my findings turn on any particular aspect of his evidence, I have noted whether I accept that evidence. VII. Analysis A. References to Evidence [ 23 ] Mr. Bretin presented much more contextual evidence than is referenced in these reasons. For instance, he gave evidence as to the first dealings he had with AltaLink in or about 1990, relating to an irrigation pipe. He and Mrs.

Bretin gave significant evidence about their plans to built an equestrian centre on their land, and to grow medical marijuana, and how the Original Line and the dealings with AltaLink over the L to J Project affected those plans. I reviewed all of the evidence in the proceedings. However, I have only made findings of fact and referred to evidence to the extent required to dispose of the issues before me. It was clear from the evidence that his past dealings with AltaLink, and in particular, Mr. Bretin’s dis-satisfaction with the compensation he received in the L to J Project process, remain very important to him.

B. Onus [ 24 ] Mr. Bretin obtained relief without notice to AltaLink. AltaLink then applied to set aside or vary the order and the matter was ordered to proceed by trial of an issue. In those circumstances, the onus remains on Mr. Bretin to demonstrate that he is entitled to the relief sought as against AltaLink: Secure 2013 Group Inc v Tiger Calcium Services Inc , 2017 ABCA 316 . C. Relationship between Adverse Possession and the AltaLink encumbrance [ 25 ] The registered owners Ross and McKinnon have never challenged Mr. Bretin becoming the registered owner of the Adverse Lands. AltaLink has never opposed Mr.

Bretin obtaining title and arguably, they would not be in a position to do so where the fee simple owner is not opposed. So, I have assumed that Mr. Bretin is entitled to a declaration quieting title to the Adverse Lands and I have not independently evaluated his claim of adverse possession on the merits. [ 26 ] If Ross and McKinnon sold their lands, title would issue to the purchaser subject to the existing encumbrances. Encumbrances also have to be addressed in subdivision: Land Titles Act , RSA 2000, CL-4, s.85. Mr.

Bretin’s acquisition of title to a portion of the Ross McKinnon Lands by adverse possession is no different. It does not simply extinguish all prior encumbrances. In fact, Mr. Bretin conceded in his final written submissions that "adverse possession, which results in quieting of a title to the surface of lands, does not, in and of itself, serve to quiet or extinguish any properly acquired rights under an instrument such as a Utility Right-of-Way or easement

agreement." [ 27 ] At times during the proceedings, Mr. Bretin has argued that in effect, he has been in adverse possession not only of the Adverse Lands themselves, but of AltaLink’s URW over the Adverse Lands, thereby permitting him to take title to, or otherwise extinguish, the AltaLink interest. Mr. Bretin did not press this argument in the end, with good reason. AltaLink’s URW is a non- possessory interest. There can be no adverse possession of a non-possessory interest: Aragon (Wellesely) Development (Ontario) Corp v Piller Investments Ltd , 2018 ONSC 4607 at para 157 . [ 28 ] Mr.

Bretin also argued at times that he had acquired ownership of the Adverse Lands through adverse possession prior to the Right of Way Agreement being entered in 1997. In effect, his position was that in entering the Right of Way Agreement with TransAlta in respect of the Adverse Lands, CPR was granting a right it no longer had and his interest is therefore not subject to the Right of Way Agreement. Mr.

Bretin’s argument in this regard is based on his assertion that he started using and occupying the Adverse Lands in a manner inconsistent with CPR’s title and ownership when he first acquired the Bretin Lands in 1986. By 1996, the 10 years required for adverse possession had passed. Mr.

Bretin says CPR would have known that he was possessing the Adverse Lands because after miles of straight fence lines, the fence that runs east-west, demarcating his property to the south from the then CPR lands to the north, suddenly turns to the north-east and runs on the diagonal to the road, along the triangle of the Adverse Lands. He and Mrs. Bretin testified that they had always used the Adverse Lands as an entrance to or exit from their titled lands and hayed the lands. [ 29 ] Regardless of the extent to which Mr.

Bretin possessed the Adverse Lands at or before the time CPR entered the Right of Way Agreement with TransAlta, his argument in this regard must fail vis à vis AltaLink. It is inconsistent with the principle of indefeasibility of title as it relates to bona fide purchases for value: Land Titles Act , section 203(2). The only exception is fraud. Mr. Bretin’s Amended Originating Notice does not plead fraud. In any event, there is no evidence of fraud on the part of AltaLink, or for that matter, its predecessor TransAlta. Even if TransAlta or AltaLink had notice of Mr.

Bretin’s claim of adverse possession, such notice would not disqualify their registered encumbrance taking priority over Mr. Bretin’s unregistered claim: Land Titles Act , section 203(2). Moreover, there is no evidence that they had notice. The change in the fence line is insufficient. In fact, the evidence establishes that AltaLink dealt with Mr.

Bretin for many years after acquiring the URW, and before this dispute arose, without him ever making any reference to any claim to part of the Ross McKinnon Lands, based on adverse possession or otherwise. [ 30 ] Adverse possession has been referred to as an additional exception to indefeasibility of title: Lutz v Kawa , 1980 ABCA 112 at para 13 . However, that reference was in the context of an argument that the title holder party out of possession could simply point to indefeasibility as an answer to an action to quiet title based on adverse possession.

The Court went on to affirm the rights of bona fide purchasers for value: Lutz at paras 42, 43, 46 . In Re Koziey Estate , 2019 ABCA 43 , the Court of Appeal declined to consider the application of paragraphs 42-43 in Lutz after the enactment of the Limitations Act , RSA 2000, c L-12 . I am not privy to the arguments that were made to the Court of Appeal in this regard. I see nothing on the Limitations Act that would affect the rights between AltaLink and Mr. Bretin in this case. D. Abandonment [ 31 ] Mr.

Bretin also raised the issue of abandonment, suggesting that AltaLink had lost its URW by either non-use or by permitting McKinnon and Ross to use their lands in a manner inconsistent with the terms of the Right of Way Agreement. In closing argument, when asked if he was pursuing an abandonment argument, Mr. Bretin indicated that he had relied on American authority in raising the issue and was content for the Court to find that he had not properly raised the issue here.

However, he was not prepared to withdraw the argument, seeking to preserve the issue for appeal. [ 32 ] The law on abandonment of utility rights of way, as opposed to easements, is unsettled in Alberta: Genstar Development Co v Plains Midstream Canada ULC , 2012 ABQB 457 (Master). I am not inclined to try to settle it in a case where the argument is not pressed by the applying party and the law not fully canvassed by the parties.

However, to the extent that all or part of the law of abandonment of easements applies to utility rights of way (without finding that it does), I am satisfied based on the evidence I heard that AltaLink never had the intention to release or abandon the URW, nor did AltaLink act so as to indicate such an intention. The following facts are pertinent: • The Right of Way Agreement includes a specific provision regarding "Discontinuance and Abandonment", which states, in part, "It [the Grantee] may also, if it so chooses, elect to terminate all rights and obligations hereunder.

" This agreement for abandonment to be at the Grantee’s election informs any argument of implied abandonment. Neither TransAlta nor AltaLink ever elected to abandon, nor did they take the steps associated with abandonment under the clause. • Until 2015, and the implementation of the changes arising out of AUC Decision 2013-369, TransAlta and AltaLink operated the Original Line running across the URW. In other words, they continued to use the URW by the very presence of the lines.

This is wholly inconsistent with abandonment. • After the relocation project was implemented in 2015, there continued to be lines across the URW. • There is no expiry term in the Right of Way Agreement. • AltaLink representatives were not physically present on the property regularly at all material times. However, the nature of the

URW interest is such that the lack of physical presence of representatives is not inconsistent with maintaining or using the URW. The Right of Way Agreement is very broad.

It grants an easement and right of away within, upon and over the then CPR Lands for "the erection, installation, construction, operation, maintenance, inspection, patrol, removal, replacement, reconstruction, relocation, alteration and repair of its electrical transmission lines, telecommunication facilities of every nature and kind and all works, equipment, apparatus and appurtenances as may be necessary or convenient in connection therewith for the conveyance of electrical energy or telecommunications within, upon or over the Right-of-Way, together with the rights over the Lands of ingress to and egress from the Right-of-Way for all purposes incidental to this grant." • I accept the evidence of Mr.

Cavers that since AltaLink acquired the URW from TransAlta in 2002, this URW has been part of AltaLink’s monitoring program, which includes ground patrols and aerial patrols on an alternating basis on a 5 year rotation, and it has been part of annual high-level fly overs of transmission lines. • Mr. and Mrs. Bretin gave evidence of Ms. McKinnon gardening and keeping chickens and other farming operations on the Ross McKinnon lands even after AltaLink acquired the URW from TransAlta. Most of this evidence came from Mrs. Bretin.

While I generally found her to be credible, some of her evidence about the McKinnon farming operations was exaggerated. In any event, nothing turns on the specifics of the evidence on the use of the Ross McKinnon lands. The Right of Way Agreement expressly permits the Grantor to have access to and to use the lands subject to the URW. It only permits erection of structures or products with written permission of the Grantee. However, even if I accept the Bretin position that McKinnon and Ross used the lands so as to be in breach of the Right of Way Agreement, this does not mean that AltaLink abandoned the URW.

There are other equally likely scenarios, including exercising restraint in terms of taking legal proceedings against landowners. I accept the evidence of Mr. Cavers that to the extent that Ross and McKinnon, or Mr. Bretin, were carrying out basic agricultural activities on any part of the URW lands, AltaLink would not take issue as long as those activities were not interfering with safety or AltaLink’s ability to maintain and operate its transmission lines. E. Registrability of the Right of Way Agreement [ 33 ] Mr.

Bretin questions whether the Right of Way Agreement creates a registrable Utility Right of Way, as contemplated by section 69(1)(

a) and 69(3) of the Land Titles Act . There is nothing on the record to suggest it does not and it has long been treated as a registrable Utility Right of Way by the Registrar of Land Titles: Vallieres v Vozniak , 2014 ABCA 290 at para 21 . F. Mr. Bretin as an "Occupant" under the Surface Rights Act [ 34 ] Mr. Bretin argues that along with negotiating the Right of Way Agreement with CPR, TransAlta was obliged to obtain his consent or a right of entry order pursuant to

section 12 of the Surface Rights Act , RSA 2000, c S-24 before entering the Adverse Lands. He states that at the time of the Right of Way Agreement and at the time of AUC decision 2013/369, he was an "occupant" of the Adverse Lands, as the term "occupant" is defined in

section 1 (g)(

i) of the Surface Rights Act . [ 35 ] Assuming that Mr. Bretin was an "occupant" of the Adverse Lands at any material time, a failure to obtain his consent or obtain a right of entry order would not invalidate or otherwise have any legal effect on the Right of Way Agreement. Nothing prevents an operator from obtaining the consent of one party (here, the registered owner) but still needing to obtain a right of entry order in respect of another (in this scenario, the alleged occupant). Whether Mr. Bretin has rights pursuant to

section 12 of the Surface Rights Act , qua occupant of the Adverse Lands, is a distinct issue that need not be addressed in these proceedings. His alleged status as "occupant" under the Surface Rights Act may be connected to, but is not coextensive with, his rights arising out of his alleged adverse possession of those same lands, and it does not impact the status of the registered URW on the title that he now seeks to acquire. [ 36 ] I wish to make it clear that just as I have not considered the merits of Mr.

Bretin’s claim to title based on adverse possession, I have not considered whether he was an "occupant" of the Adverse Lands at any point in time or what, if any, rights or remedies would flow from that status in these particular circumstances. G. Validity and

Interpretation of the Right of Way Agreement [ 37 ] Many of Mr. Bretin’s arguments are in the nature of a challenge to the underlying validity of the Right of Way Agreement. Although the validity of the Right of Way Agreement is arguably outside the scope of Mr. Bretin’s pleadings, AltaLink agreed that the Court should hear the evidence and argument on this issue. [ 38 ] Given the parties’ agreement to address the Right of Way Agreement, I have assumed, without deciding, that Mr.

Bretin has standing to argue the validity of the Right of Way Agreement, to which he is not a party, because it would now form the basis for a registered encumbrance on his title to the Adverse Lands. [ 39 ] To the extent that a challenge to the underlying Right of Way Agreement could be relied upon by Mr. Bretin to seek removal of the URW as an encumbrance from title, on the basis that regardless of the Registrar’s acceptance of the instrument for registration, it is invalid, I find that there is no merit to any of Mr. Bretin’s attacks on the Right of Way Agreement.

There is no reason for which the Right of Way Agreement is not the basis for a valid encumbrance on any title Mr. Bretin may acquire to the Adverse Lands. 1. The Railway Crossing Agreement [ 40 ] Mr. Bretin puts a great deal of weight on a Railway Crossing Agreement dated April 23, 1985 between TransAlta and CPR. That Agreement allows TransAlta to string eight electrical wires on, upon, over and across the lands and railway of the CPR but permits

the installation of “nil” poles or anchors. The Railway Crossing Agreement could be terminated by either party on three months’ notice. There is no expiry date. Mr. Bretin argues that the Railway Crossing Agreement is still in effect and prohibits the placement of structures on the Ross McKinnon lands, including the Adverse Lands, without a fresh agreement with the landowners or a Surface Rights Board hearing. Mr.

Bretin also relies on the Railway Crossing Agreement as evidence of the scope of right TransAlta really needed when it entered into the Right of Way Agreement. [ 41 ] I do not have evidence as to whether the 1985 Railway Crossing Agreement was ever formally terminated. It does not matter. The 1985 Railway Crossing Agreement is not on title and there is no evidence it was on title when Ross and McKinnon purchased the Ross McKinnon Lands or when AltaLink acquired its interest from TransAlta. There is no evidence that Ross and McKinnon or AltaLink has ever agreed to be bound by the 1985 Railway Crossing Agreement.

The 1985 Railway Crossing Agreement is irrelevant to the now owners of the various interests and it is irrelevant to Mr. Bretin’s request for title. [ 42 ] Further, and in any event, the 1997 Right of Way Agreement simply overtook and expanded upon the Railway Crossing Agreement. The evidence demonstrates that on October 7, 1991, the Canadian Transportation Agency ordered the CPR to abandon the operation of the Strathmore Subdivision covered by the Railway Crossing Agreement.

Once the railway was abandoned, it makes sense that the parties may have looked to a new form of agreement. [ 43 ] Under the Right of Way Agreement, TransAlta still had the right to string wires as contemplated by the 1985 Railway Crossing Agreement. The Right of Way Agreement simply granted TransAlta additional rights, including the right to install structures. The Right of Way Agreement also applied to a larger land area. I see nothing in the 1985 Agreement that prevents the parties from entering a new agreement with additional scope.

Further, the 1985 Railway Crossing Agreement does not prohibit the installation of poles, anchors or other structures. Rather, it is permissive in terms of the stringing of wires and it states that there is a grant to place "Nil" poles and "Nil" anchors. As long as the installation of poles, anchors or other structures is authorized by another agreement, there is no conflict with the 1985 Railway Crossing Agreement. [ 44 ] In sum, the Right of Way Agreement does not have to be read in conjunction with the 1985 Railway Crossing Agreement as suggested by Mr. Bretin.

Even if it did, I see nothing rendering the 1997 Right of Way Agreement invalid or incapable of registration, as alleged or at all. 2. Scope of Application of the Right of Way Agreement [ 45 ] Mr. Bretin argues that the Right of Way Agreement is broader than it needed to be, and broader than most right of way agreements. He says that the real intention would have been for a right of way over a narrower and more specific portion of the Ross McKinnon Lands with an accompanying right of ingress and egress over the remaining Ross McKinnon Lands so as to access the right of way. Mr.

Bretin questions whether the Right of Way Agreement is ambiguous in this regard, perhaps due to the use of a form agreement not suited for purpose. [ 46 ] I see no ambiguity in the Right of Way Agreement that bears on these proceedings [2] . The words are clear. The Right of Way Agreement expressly grants TransAlta the Right of Way over "any and all portions of the above described lands", being the entirety of what are now the Ross McKinnon Lands.

The Right of Way Agreement is not limited to the portion of the Ross McKinnon Lands described in the 1985 Railway Crossing Agreement or otherwise. [ 47 ] The rights that TransAlta obtained by way of the Right of Way Agreement may well be more broad than they required at the time. They may even be broader than what AltaLink needs now. There is also a suggestion that they are broader than would have been granted in a right of entry order. However, the Right of Way Agreement reflects what TransAlta bargained for.

There is no law that prevents a party from contracting for rights it does not need, whether immediately or ever. [ 48 ] Mr. Bretin argues that

section 38 of the Hydro and Electric Energy Act , RSA 2000, cH-16 limits AltaLink’s rights to the land set out in their permit from the AUC. I do not read

section 38 this way.

Section 38 limits the scope of the powers granted by

Part 4 of the HEEA to the land prescribed in a permit. Those rights include certain rights to cross water, rights to cross highways and expropriation rights. While acquiring interests in land by negotiation is referenced in that Part, I see nothing in

section 38 limiting the scope of the interest in land that an operator may acquire by negotiation. The removal of the right to contract would have to be explicit. [ 49 ] Mr. Bretin also relies on the Alberta Land Titles Procedures Manual, Procedure URW-1, and sections 69(1)(a), 69(3) and 81(1)(1) of the Land Titles Act , to argue that the Right of Way Agreement wrongly covers the entirety of the Ross McKinnon Lands. The Manual and the legislative provisions do not bear the meaning ascribed to them by Mr. Bretin. None of them prohibit a "blanket utility right of way" over an entire parcel.

In fact, the Manual expressly states that the "U.R.W. may be granted in respect of an entire parcel". The fact that the Manual goes on to reference a common form wherein a blanket right of way is initially granted, to be followed by a plan of survey and partial discharge limiting the right of way to a portion of the parcel, does not mean that a more permanent blanket right of way is invalid. H. Other Arguments [ 50 ] Mr. Bretin made a number of other arguments, many of which raise issues that are either outside the scope of the pleadings, or outside the jurisdiction of this Court, or both. 1.

Ability to Re-File Encumbrance [ 51 ] Mr. Bretin made reference in several places in argument to the fact that this whole action could be solved by quieting his title to the Adverse Lands, after which AltaLink could simply re-file any necessary encumbrance. I understand why so proceeding is attractive to Mr. Bretin, but it is obviously not an answer to AltaLink’s position. Mr. Bretin acknowledged in oral argument that in making this submission, he seeks to have AltaLink negotiate with him for a right of entry in respect of the Adverse Lands.

2. Compliance with permits and licenses [ 52 ] Mr. Bretin argues that the Original Line was not constructed, operated or discontinued in accordance with the routes or other terms set out in the applicable permits or licenses, or that it was constructed, operated or discontinued without the required permits or licenses. This issue is not raised in Mr. Bretin’s pleadings. Further, whether a line that has since been relocated and added to was constructed in accordance with the original applicable licenses has no bearing on whether title to the Adverse Lands can issue to Mr.

Bretin free of AltaLink’s registered URW. [ 53 ] Similarly, Mr. Bretin made a number of arguments relating to AUC Decision 2003-369 (on the L to J Project), including an argument that AltaLink failed to establish that its preferred route is covered by a permit or licence issued by the AUC. Again, whether AltaLink’s implementation of the L to J Project accords with the permits and licenses granted by the AUC is not a matter for this Court in this proceeding. [ 54 ] Mr.

Bretin questions whether the surface rights of entry exercised by the operator were at all times consistent with construction permits, operating licenses and license amendments required pursuant to the Hydro Electric Energy Act and sections 15(3) and 15(6) of the Surface Rights Act . Sections 15(3) and 15(6) do not, on their face, apply to this circumstance, where the right of entry was acquired by way of agreement as opposed to right of entry order.

In any event, whether AltaLink or any of its predecessors complied with permits, licenses or orders under the HEEA or the Surface Rights Act has no bearing on whether the URW is registrable against any title to the Adverse Lands issued to Mr. Bretin. [ 55 ] As part of his argument on the alleged inconsistencies between the routes prescribed by the applicable permits and license and the actual routes of the AltaLink lines, Mr. Bretin invoked

section 7 of the Canadian Charter of Rights and Freedoms and

section 1 of the Alberta Bill of Rights , RSA 2000, c. A-14 . In my view, these enactments, important as they are, do not change the foregoing analysis. 3. Entry Fee and Compensation under Surface Rights Act [ 56 ] Mr. Bretin argues that TransAlta failed to pay the entry fee required by

section 19 of the Surface Rights Act in respect of the URW. This argument cannot be a basis for removing the URW from any title to be issued to Mr. Bretin for the Adverse Lands. I have no evidence as to whether TransAlta paid or did not pay the fee. Therefore, Mr. Bretin’s proposition is not established as a matter of fact. In any event, any failure to pay such a fee would not render the Right of Way Agreement or its registration invalid, particularly as against AltaLink as a bona fide purchaser for value of TransAlta’s registered interest under the Right of Way Agreement. [ 57 ] Similarly, Mr.

Bretin argues that the Right of Way Agreement does not provide for ongoing compensation as he says is required by

section 27 of the Surface Rights Act . This argument fails on a number of bases, including: • There is nothing on the record before me to indicate that there has been any non-compliance with

section 27 of the Surface Rights Act . I accept AltaLink’s position that they had no onus to lead evidence of compliance in these proceedings for a number of reasons, including that this issue was not raised by the Amended Originating Application. • Assuming that Mr. Bretin could have some right under

section 27 , the remedy for any failure to comply with

section 27 is not invalidity of the Right of Way Agreement in these proceedings or a cancellation of the registration of the URW on title. • Determining the rights and obligations of the parties pursuant to

section 27 of the Surface Rights Act lies in the jurisdiction of the Surface Rights Board and is not part of these proceedings before this Court. 4. Removal of Pole and other Property [ 58 ] In his written argument, Mr. Bretin questioned whether AltaLink had the rights necessary to remove the pole he erected on the Adverse Lands, or to otherwise access, disturb or remove the personal property of McKinnon or others from the Ross McKinnon Lands or the Adverse Lands. Neither of those matters is before the Court in these proceedings.

Further, the removal of the pole was addressed in a separate injunction order, and Mr. Bretin may not re-argue that application in the guise of this trial. Mr. Bretin has no standing to claim for the removal of the property of McKinnon or others. 5. Alleged Withholding of the 1985 Railway Crossing Agreement [ 59 ] Mr.

Bretin alleges there was some form of wrongdoing on the part of AltaLink in not producing the 1985 Railway Crossing Agreement prior to a case conference in these proceedings held in September, 2018 in preparation for the trial of an issue. [ 60 ] In response, AltaLink submits that it was never a party to the Railway Crossing Agreement and it had not been brought to their attention until the mater arose at the case conference. CPR then produced a copy. [ 61 ] There is no evidence on the record to suggest that AltaLink withheld the Railway Crossing Agreement, wrongfully or otherwise. There is no merit in Mr.

Bretin’s allegation of wrongdoing in this regard. I. AltaLink’s Limitations Argument [ 62 ] In light of my findings above, I need not address AltaLink’s arguments pursuant to the Limitations Act , RSA 2000, c L-12 or its predecessor legislation, and I will not do so.

VIII. Order [ 63 ] In light of the lack of opposition, I declare that Mr. Bretin be quieted in the exclusive possession of the Adverse Lands, as depicted as Block 1 in the survey entered as Tab L of Exhibit 2 in these proceedings, or such other survey as the parties may agree or the Court may order, pursuant to an immunity from liability established under the Limitations Act , subject to the existing encumbrances on title to the Ross McKinnon Lands. For clarity, Block 1 is a portion of the Ross McKinnon Lands as defined in these Reasons. [ 64 ] The original Quieting Order directed Mr.

Bretin to apply to the Registrar of Land Titles for consideration of the subdivision of the Adverse Lands and issuance of legal title. Mr. Bretin requests that this language be removed, because he says that it has caused concern with the Registrar. He proposes that I simply direct the issuance of separate title. AltaLink’s counsel, as a friend of the Court, wanted to make sure that I was aware of the Koziey Estate case discussed below.

However, AltaLink does not take a position on the language in the order around subdivision or issuing new titles as long as their registration remains on any existing or new titles. [ 65 ] An issue has arisen in the jurisprudence as to the interplay between

section 74 of the Land Titles Act on one hand, and

section 76 of the Land Titles Act and

section 652 of the Municipal Government Act , RSA 2000, c M-26 on the other.

Section 74 of the Land Titles Act permits a party who has obtained a declaration of adverse possession to file a copy of the judgment in the Land Titles Office and then directs the Registrar to cancel an existing title and issue a new title. There is no mention of subdivision approval. However,

section 76 of the Land Titles Act prevents registration of an instrument or caveat in contravention of

Part 17 of the Municipal Government Act , which includes

section 652 , which states that the Registrar may not accept instruments for registration that have or may have the effect of subdividing a parcel of land unless the subdivision has been approved by a subdivision authority. [ 66 ] In Moore v McIndoe , 2018 ABQB 235 and Goertz v Oliver , 2018 ABQB 363 , Justices of this Court proceeded on the basis that subdivision approval is required if the judgment for adverse possession is for part of a parcel only. The

section on Adverse Possession in the Land Titles and Procedures Manual cross-references the

section on subdivision for compliance with subdivision requirements. [ 67 ] In Koziey Estate v Taylor , 2017 ABQB 597 , the trial judge ordered registration of the judgment quieting title and issuance of separate titles without reference to subdivision approval. It appears that

section 652 of the Municipal Government Act RSA 2000, c M-26 was not raised at trial. The appellant argued on appeal that subdivision approval was required: Koziey Estate v Taylor , 2019 ABCA 43 . The Court of Appeal declined to decide the issue where the matter was not addressed by the trial judge, and without notice to the Registrar of Land Titles and the Subdivision Appeal Board. The Court did not, however, interfere with the trial judgment. [ 68 ] I assume without deciding that subject to any order to the contrary, subdivision approval would be required in this case to effect title for Mr. Bretin.

I do not have any information one way or the other on the requirements for subdivision for the Adverse Lands. Mr. Bretin argued that the area is exempt from subdivision requirements because it is within a railway right of way. However, I am not prepared to accept that there is an exemption without further authority. I have not been pointed to any provision in the Municipal Government Act permitting me to waive compliance with that Act. I am definitely not in a position to take into account the matters that are weighed by a subdivision authority.

I also do not have the benefit of full argument on the issue that the Court of Appeal declined to decide in Koziey Estate because there is no lis between the parties before me on this point. I do have the benefit of Justice Eamon’s decision in Moore , where there was full argument. I also do not have any submissions or information from the Registrar of Land Titles or from the applicable subdivision authority, other than Mr.

Bretin’s advice that he encountered "reluctance by the Registrar of Land titles arising from the permissive wording of the Quieting Order." [ 69 ] In all of the circumstances, at this time, I am not prepared to make an order dispensing with any requirement for subdivision approval or directing the issuance of title without subdivision approval or otherwise. On the face of the Land Titles Act , the court’s role after a finding of adverse possession is to grant the judgment and declaration contemplated in section 74(1) of the Land Titles Act .

After that, filing and registration are up to the party that recovered the judgment and the Registrar. If either requires further direction from me, they may contact my office. IX. The Other Parties [ 70 ] The original respondents to Mr. Bretin’s application were Mr. Ross and Ms. McKinnon. As noted above, they were given notice prior to the original morning chambers application and did not oppose. On the first day of the trial of an issue, counsel for Mr.

Ross on other matters attended, indicating that he had no retainer in respect of this trial. [ 71 ] Through the various court attendances that led to the trial of an issue, Mr. Bretin added the following parties as Respondents: AltaLink, Alberta Treasury Branches, Ember Resources Inc. and Canadian Pacific Railway Limited. AltaLink has been involved in these proceedings. Mr. Bretin and CPR entered a Consent Dismissal Order filed September 13, 2018, dismissing the Application as against CPR. [ 72 ] Nobody appeared for Alberta Treasury Branches or Ember Resources Inc. at trial. Mr.

Bretin advised that they were properly served. There was some confusion as to whether Affidavits of Service had been filed and were simply not available on the Court file, or whether they had not been filed. In any event, I ultimately received Affidavits of Service from Mr. Bretin sworn and filed February 11, 2019 indicating that Ember was served on December 4, 2017 by email. There is no Affidavit of Service for Alberta Treasury Branches. Mr.

Bretin argues that the Ember and ATB interests have nothing to do with the Adverse Lands. [ 73 ] My findings in this judgment apply to all encumbrances on the Ross McKinnon title. In other words, any title issued to Mr. Bretin for the Adverse Lands is subject to all of those encumbrances. It may well be that Ember and/or ATB would not oppose its encumbrance being removed from Mr. Bretin’s new title. If that is the case, Mr. Bretin may obtain their consent. In the meantime, I do not have their consent.

I am not prepared to infer consent or lack of opposition in light of service on Ember being by email, which is not good service for an originating document, and there being no proof of service on ATB.

[ 74 ] Mr. Bretin must serve Ember and ATB with a copy of the Amended Originating Notice, filed December 1, 2017 and a copy of these Reasons no later than December 31, 2019. Such service must be in the manner provided in the Rules of Court for an originating document, given the lack of such service to date. Mr. Bretin is directed to file Affidavits of Service demonstrating that he has served Ember and ATB in accordance with this direction.

If either Ember or ATB wishes to be heard on this matter they must contact my office within 30 days of being served. [ 75 ] If the parties cannot agree on costs within 60 days of today's date, either party may write to my office and I will establish a process for resolving costs. Heard on the 1 st day of October, 2018 to the 4 th day of October, 2018 and the 19 th day of March, 2019. Dated at the City of Calgary, Alberta this 13 th day of December, 2019. April D. Grosse J.C.Q.B.A. Appearances: Vernon John Bretin Self-Represented Applicant Vivian R.

Stevenson, QC Karen McGlone for the Respondent, AltaLink Management Ltd. Mark Dorin Self-Represented Intervenor Appendix " A " Legal Descriptions Bretin Lands ALL THAT PORTION OF THE NORTH EAST QUARTER OF

SECTION 18 IN TOWNSHIP 23 RANGE 27

WEST OF THE FOURTH MERIDIAN LYING SOUTH OF THE RAILWAY RIGHT OF WAY SHOWN ON PLAN RY11 AND EAST OF THE EAST BOUNDARY OF IRRIGATION RIGHT OF WAY PLAN 0715259 CONTAINING 27.75 HECTARES MORE OR LESS EXCEPTING THEREOUT ALL MINES AND MINERALS AND THE RIGHT TO WORK THE SAME Ross McKinnon Lands PLAN RY11 THE RAILWAY AND STATION GROUNDS IN TWP 23 RGE 27 W4M CONTAINING: QUARTER

SECTION RAILWAY HECTARES ACRES NE 18 4.941 12.20 NW 18 4.941 12.20 EXCEPTING THEREOUT

A) OUT OF THE NORTH HALF OF

SECTION 18: THAT PORTION ON RIGHT OF WAY PLAN 8010896 CONTAINING IN NE 1/4 18 0.741 HECTARES (1.44 ACRES) MORE OR LESS AND IN NW 1/4 18 1.238 HECTARES (3.07 ACRES) MORE OR LESS

B) PLAN NUMBER HECTARES ACRES MORE OR LESS PLAN 9710203 0.313 0.77 (NE 1/4) EXCEPTING THEREOUT ALL MINES AND MINERALS