2020 NLCA 24, 2020 NLCA 24

Oliver Watton and Lillian Watton (appellants) v. Frederick Kennedy (applicant/respondent) (14/38) Indexed As: Watton v. Kennedy 2020 NLCA 24 5 C.A.N.L.R. 574 Court of Appeal of Newfoundland and Labrador Welsh J.A. July 15, 2020

Summary: This was an application to vacate a notice of lis pendens which was filed in conjunction with a notice of appeal filed June 9, 2014 in relation to a trial decision rendered June 4, 2014. Held: Application allowed. Welsh J.A.: The appeal was rendered moot by a subsequent decision under the Quieting of Titles Act in 2019. The notice of appeal was therefore struck and by extension the lis pendens was vacated in the absence of any supporting pending litigation. Cases Cited: Kennedy v. Watton , 2014 NLTD(G) 62, 351 Nfld. & P.E.I.R. 335 Watton v.

Pike , 2019 NLSC 81 Statutes considered: Quieting of Titles Act , RSNL 1990, c. Q-3 Rules Considered: Court of Appeal Rules , NLR 38/16 , scale of costs, column 3 Counsel: Sean W. Montague, for the applicant/respondent; and Appearing on their own behalf (via teleconference), the appellants. The application was heard on July 15, 2020 with decision rendered orally by Welsh J.A. The following memorandum of disposition was filed on July 16, 2020 by Welsh J.A. ______________________________________________________________ Welsh J.A.:

[ 1 ] This is an application on behalf of Frederick Kennedy for an order vacating a notice of lis pendens , that is, a notice of a pending lawsuit, that was filed in the Registry of Deeds. The application was opposed by Oliver and Lillian Watton (“the Wattons”). [ 2 ] At the hearing, the application was granted, with an order requiring the Wattons to pay the costs of the application under column 3 of the scale of costs in the Court of Appeal Rules , NLR 38/16 . Following is a

summary of the reasons for granting the application. [ 3 ] I begin by noting that the proper procedure would have been an application to strike the notice of appeal, with, as part of the relief, a request to vacate the notice of lis pendens . This is because the request to vacate the notice was based on the premise that there was no litigation pending, that is, no appeal before this Court. In the circumstances, I considered the procedural error to be a matter of form which did not affect the substance. The issues relevant to striking the notice of appeal were fully canvassed and considered at the hearing.

It was clear from the application and supporting materials that the notice of pending litigation could be vacated only if the notice of appeal was struck. I would add that the Wattons had ample opportunity to seek legal counsel, particularly since the hearing was postponed, having been originally scheduled for June 9, 2020[. [ 4 ] I attempted to explain to Mr.

Watton that the purpose of a notice of lis pendens filed in the Registry of Deeds is to give notice, to anyone intending to deal with the property, that there is a matter before the courts which may affect any dealings with the property. [ 5 ] The “Notice of Lis Pendens ” that was filed in the Registry of Deeds is headed, “In the Supreme Court of Newfoundland and Labrador Court of Appeal”.

The notice states: TAKE NOTICE THAT an appeal has been commenced in the Supreme Court of Newfoundland and Labrador, Court of Appeal in the above captioned matter which encompasses property located at 8 Fern Lane, Conception Bay South, Newfoundland and Labrador which property is further described in a survey to the Defendant [Frederick Kennedy] dated November 2012 by Clifton G. Hawco, NLS. DATED at St.

John’s, Newfoundland and Labrador, this 10 th day of June, 2014. [ 6 ] The appeal to which the notice of lis pendens relates was filed on June 9, 2014, and is an appeal against the decision of Adams J. dated June 3, 2014 ( 2014 NLTD(G) 62 , 351 Nfld. & P.E.I.R. 335 ). The grounds of appeal relate to whether the judge erred by granting declarations with respect to ownership of real property, without specifying the boundaries. The principal request for relief was to set aside the declarations, with leave to apply for a quieting of the title under the Quieting of Titles Act , RSNL 1990, c. Q-3 .

A factum and book of documents were filed on June 4, 2015 by the Wattons’ then solicitor, Owen Myers. No further action has been taken on the appeal. [ 7 ] Subsequently, Robert Regular filed an affidavit with the Court, dated October 16, 2015. Having been referred to as “our solicitor” in a companion affidavit sworn by the Wattons, Mr. Regular states in his affidavit that Mr. Myers was proceeding contrary to the instructions of his clients, the Wattons. The affidavit states, further, that Mr. Regular “asked for their firm instructions to notify Mr.

Myers that [the Wattons] didn’t want the Appeal to proceed and explained why.” A companion affidavit sworn by the Wattons, dated October 19, 2015, was filed with the Court. In that affidavit, they state that they reviewed Mr. Regular’s affidavit of October 16, 2015, and that “we agree with the said Affidavit in full and confirm all points therein.” Each affidavit concludes with a statement that the affidavit was made “to inform this Honourable Court and assist it in dealing with this matter.” Mr.

Kennedy subsequently sold the property to Jamie Pike. [ 8 ] Although the appeal against Adams J.’s decision did not proceed and the appeal had not been discontinued, a trial was held in the Supreme Court, General Division on February 20 and 21, 2019, under the Quieting of Titles Act . Giving reasons for her conclusions, Marshall J. ordered, in relevant parts ( Watton v. Pike , 2019 NLSC 81 ): 1. The [Wattons] are the owners of the Wattons’ homestead property; 2. A certificate of quieting shall be granted to the [Wattons] for the Wattons’ homestead property; 3.

The certificate of quieting of titles shall be subject to the right of way agreement executed between the parties in October, 2017, and its terms, which is more particularly described in the

Schedule hereto attached to this order and marked “A”; ... [ 9 ] The right of way agreement, dated October 23, 2017, referred to in paragraph 3 of the order, was executed by Christian Pike, Frederick Kennedy, Oliver Watton and Lillian Watton. [ 10 ] It was clear at the hearing of this application that Mr. Watton does not accept that a notice of lis pendens serves only to give notice of pending litigation which may cloud the title for purposes of dealing with the property, but does not give him substantive rights.

His view that he can refuse to vacate the notice of lis pendens until he is paid money he claims he is owed is incorrect. [ 11 ] In determining that the notice of appeal should be struck and the notice of lis pendens vacated, I relied on the following. First, the appeal against the decision of Adams J. has been rendered moot by the decision of Marshall J. under the Quieting of Titles Act . Since June 2015, no action has been taken to pursue the appeal.

Rather, the parties proceeded with the trial under the Quieting of Titles Act , which was the remedy sought in the notice of appeal filed against Adams J.’s decision. No notice of appeal has been filed against the decision of Marshall J. and the time for filing such an appeal has long since passed. Finally, the affidavits of Mr. Regular and the Wattons sworn in October 2015 clearly state that the Wattons intended to discontinue the appeal.

[ 12 ] In the result, the notice of appeal against the decision of Adams J., filed on June 9, 2014 has been struck, with an order made at the hearing that the notice of lis pendens filed in the Registry of Deeds is vacated because there is no pending litigation in this Court to which the notice of lis pendens could attach. Application allowed.