Vincent Swain First Plaintiff/FIRST DEFENDANT BY COUNTERCLAIM And: Margaret Swain Second Plaintiff/SECOND DEFENDANT BY COUNTERCLAIM And: Scott Vickers Defendant/PLAINTIFF BY COUNTERCLAIM, 2019 NLSC 17

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Swain v. Vickers , 2019 NLSC 17 Date : January 28, 2019 Docket : 201701G2771 Between: Vincent Swain First Plaintiff/FIRST DEFENDANT BY COUNTERCLAIM And: Margaret Swain Second Plaintiff/SECOND DEFENDANT BY COUNTERCLAIM And: Scott Vickers Defendant/PLAINTIFF BY COUNTERCLAIM Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 22, 2018

Summary: The Plaintiffs applied under Rule 17A for a

summary trial which required a determination of whether the Plaintiffs, or the Defendant,have a better claim in title to an area of overlap as depicted by conflicting survey plans of adjacent properties. The Plaintiffs and theDefendant agreed that there was a sufficient evidentiary record to make the determination. HELD: The application was dismissed on the basis of an insufficient evidentiary record for determination. Appearances: Michael H. Duffy Appearing on behalf of the Plaintiffs/ Defendants by Counterclaim Joshua J. G.

Handrigan Appearing on behalf of the Defendant/ Plaintiff by Counterclaim Authorities Cited: CASES CONSIDERED: Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317(Nfld. S.C.T.D.); Young v. Noble, 2016 NLCA 58; Ring v. Newfoundland and Labrador, 2013 NLCA 66 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D.; Lands Act, S.N.L. 1991, c.36 REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] The Plaintiffs, Vincent Swain and Margaret Swain, are the Applicants in this application for

summary trial under Rule 17A

of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D . [ 2 ] The Swains seek a court determination on this longstanding boundary line dispute. In their statement of claim, the Swains claim trespass against Scott Vickers (the “Respondent”); and they seek damages and a permanent injunction preventing Mr.

Vickers from entering upon or causing harm to their property. [ 3 ] The dispute requires a determination of who has a better claim in title to an area of overlap (the “disputed property”) depicted by conflicting survey descriptions of two adjacent properties located on the Southern Shore Highway, between Witless Bay and Mobile.

The survey descriptions conflict as to the location of the boundary line between the Applicants’ property and the Respondent’s property. [ 4 ] The Swains assert that they own property as described in a survey prepared in 2016 by David Vallis (the “Swains’ property”), for which they have a quit claim deed from the Crown. Scott Vickers asserts that he and his wife, Lisa Vickers, own property as described in a survey prepared in 2012 by Richard Young (the “Vickers’ property”). BACKGROUND [ 5 ] This boundary line dispute appears to have started many years ago between the Swains and Arthur Jackman.

Arthur Jackman was a predecessor in title to the Vickers’ property. In Mr. Swain’s discovery transcript (at page 42), he describes his “first run-in” with Arthur Jackman occurring after 1984, after which pins and fences started to disappear off his property. Further, in 2003, the Swains commenced an action in Small Claims Court against Arthur Jackman claiming trespass arising from excavation work allegedly conducted by Mr. Jackman’s contractors.

In 2004 that court action was dismissed on the basis that it brought the title to land in question; and therefore, there was no jurisdiction for the Small Claims Court to decide the matter. [ 6 ] The Swains claim that they had initially acquired their interest in the Swains’ property by a deed of conveyance dated June 17, 1986, registered at the Registry of Deeds on July 1, 1986 from Mary Dinn, who was Margaret Swain’s grandmother. [ 7 ] On May 13, 2004, the Swains registered a declaration to the Swains’ property. The declaration attached affidavits of long possession executed by Dan Dinn and Patrick Carew.

Those affidavits attached a 1998 survey description also completed by David Vallis, NLS. The 1998 Vallis survey description was essentially of the same parcel of land as the 2016 Vallis survey. However, the 2016 survey description starts further back from the road, so as to allow for a larger road reservation. [ 8 ] Around 2004, the Crown became involved with the Swains’ claim to the Swain’s property. Crown Lands had received a complaint allegedly from Mr. Jackman, and the Swains claimed to be owners of the Swains’ property.

The Crown conducted an investigation of the Swains’ claim of adverse ownership to the Swains’ property. The Crown’s investigation determined that the Crown’s right to the Swains’ property had not been extinguished. [ 9 ] Ultimately, in 2016 the Swains applied for a Crown grant.

A grant was not provided; however, a quit claim deed was provided to the Swains for the Swains’ property. [ 10 ] The Applicants assert that their claim to the disputed property is based upon the quit claim deed from the Crown, which is dated September 15, 2016, and which attached the survey of the Swains’ property completed by David Vallis, NLS, dated May 30, 2016 (the “2016 Vallis survey”).

The Applicants submit that the quit claim deed is, in effect, a Crown grant because the Swains’ property was Crown land at the time the quit claim deed was executed. [ 11 ] The Swains alleged in their statement of claim (amended) that around the Fall of 2016, the Respondent cut a path through the Swains’ property by removing mature trees and installing a line of fence posts. The Swains further asserted that other fence posts placed by Mr. Swain had been removed by the Respondent. Further, the Swains asserted in their statement of claim that the Respondent had interfered with the Applicants’ excavation work.

As a result, the Swains claimed damages and a permanent injunction. [ 12 ] The Respondent filed a statement of defence (amended) and counterclaim to the Swains’ action. The Respondent asserted that the Swains’ property, as it is described in the quit claim deed, encroached upon the Vickers’ property.

The Respondent counterclaimed against the Swains for the value of trees and fencing removed by the Swains; and like the Applicants, the Respondent sought damages and a permanent injunction. [ 13 ] The Respondent claims title to the Vickers’ property as surveyed by Richard Young in June of 2012, (the “2012 Young Survey”).

The Vickers’ property is part of a much larger parcel of land for which the Respondent submits there is sufficient possessory title dating back to 1955. [ 14 ] The purported title history for the Vickers’ property commences around 1955, when William Jackman acquired the larger parcel of land from James Dinn by deed of conveyance dated August 11, 1955, and registered at the Registry of Deeds for our province on October 1, 1963. William Jackman apparently died in 1968. He left a one sixth interest in the larger parcel of land to each of his six children, including Arthur Jackman.

Between 1968 and 1986, Arthur Jackman acquired from his siblings the entire larger parcel bequeathed by his father, William Jackman. [ 15 ] On or about November 18, 2014, Scott and Lisa Vickers purchased the Vickers’ property from Arthur Jackman’s spouse, Phyllis Jackman. Phyllis Jackman is Lisa Vickers’ mother. [ 16 ] The Respondent takes the position that the Crown made an error by attaching the 2016 Vallis survey description to the quit claim deed.

Rather, the Respondent’s position is that the Crown was dispossessed of all of the Vickers’ property, including the portion where Richard Young’s 2012 survey of the Vickers’ property overlaps David Vallis’ 2016 survey of the Swains’ property. To support

its position, the Respondent relies on affidavit evidence of acts of possession pertaining to the larger parcel, historical aerial photos, andsurveyors’ evidence respecting a rock wall, a barb wire fence and a potato garden, as depicted in another survey prepared in 2018 by Mr.Young. THE

SUMMARY TRIAL APPLICATION [17] Rule 17A is the

summary trial rule. Rule 17A.01(1) states, as follows: 17A.01.

(1) A plaintiff or defendant may, after defence has been filed and at any time prior to the proceeding being placed on a triallist, apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all orpart of the claim in the statement of claim, as the case may be. [18] In Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317 (Nfld.S.C.T.D.), Justice Green set forth a comprehensive list of 17 principles, which are guidelines for the approach to be taken whenanalyzing an application for a

summary trial. This Marco analysis for

summary trial applications is described at paragraph 76 of thatdecision, as follows: 76 From an analysis of the comments in the Ontario and British Columbia cases referred to above, in the context of the language ofNewfoundland Rule 17A, I offer the following set of principles as a guideline to the approach to the application of the

summary trial rulein this jurisdiction: 1. The object of Rule 17A is to promote the general objective of the Rules of Court of providing an expeditious and inexpensivedetermination of proceedings on their merits, by screening out claims that cannot survive the "good hard look". 2. The burden is on the applying party to satisfy the court that: (

a) there is no "genuine issue for trial" or, (

b) if there is a genuine issue, the record before the court enables the court to find the facts necessary to decide that issue and it wouldnot be unjust to the responding party to do so. 3. To bring himself or herself within the Rule the applying party must: (

a) in a case where he or she has the ultimate burden of proof on the merits, put forward an evidentiary basis for the claim which, ifconsidered alone, would prove each element of the cause of action; or (

b) in a case where the other party has the burden of proof on the merits, put forward an evidentiary base establishing a defence to theclaim as defined in the pleadings or tending to show that the other party's claim has no substance to it. 4. In either of the foregoing cases, the applying party's case must consist of an organized set of facts set out in a coherent way, eitherfrom primary sources or the best sources available, including admissions on interrogatories and discoveries, that constitute proof of aproper foundation of the claim or defence, as the case may be. 5.

In assessing whether the applying party's evidentiary basis is present, the court must take into consideration not only the affidavit andother documentary evidence presented on behalf of the applying party but also the results of any cross-examination, if allowed, of theapplying party's deponents. 6. The opportunity to avail of cross-examination is in the discretion of the court so as to ensure promotion of the philosophy of the ruleof providing expeditious and inexpensive paper trials. Cross-examination would likely be appropriate where: (

a) there is some disputed issue disclosed on conflicting affidavits, the resolution of which is necessary to the ultimate outcome of the

case; (

b) even though the applicant for cross-examination has not filed a conflicting affidavit, the purpose of cross-examination is to address information that is not within the knowledge of the cross-examiner's own deponents, provided the court can be convinced from other sources (e.g. the pleadings), that there is a substantive point of difference between the parties; (

c) there is other good reason to test the veracity of a statement that is directly related to a material fact in dispute. Unlike cross-examination on a full trial, cross-examination on affidavits would not generally be permissible for the purpose of attacking credibility generally. If that is necessary, then that is probably a good indication that the case should go to trial. 7.

If the applying party satisfies the threshold test for the application of the rule by putting forward an evidentiary basis for his or her position, the responding party then has an evidentiary burden to demonstrate that there is a genuine issue for trial. This cannot be accomplished by showing an issue raised by the pleadings. The argument on a Rule 17A application takes place at a level below the pleadings within the forums of evidence and legal argument.

The responding party must therefore "put his best foot forward" since failure to do so may lead the court to conclude that there is in fact no genuine issue for trial. The responding party should therefore set out in affidavits, or answers given on interrogatories or oral discoveries, an evidentiary foundation for his or her case so that the court can see that there is a genuine issue of fact or law that is joined and has to be resolved before the court can make an ultimate determination on the merits. 8.

Where the issue is one of fact, the responding party may demonstrate the existence of a genuine issue by filing his or her own affidavit or other material or, where cross-examination of the applying party's deponents is allowed, it may be demonstrated from answers given on such cross-examination or, where the responding party's own deponents are cross-examined, from favourable answers thus illicited.

Where the issue is a legal one, the responding party would be expected to demonstrate the existence of the legal issue, by the citation of appropriate authority, in the memorandum of law which is required to be filed pursuant to Rule 17A.02(6). 9. There will be a "genuine issue for trial" if the issue in question is not spurious and the issue relates to a material fact or point of law that is necessary to be decided to resolve the ultimate controversy between the parties.

Obviously, there will not be a genuine issue for trial if the responding party can put forward no evidence that could constitute either a defence or a claim in law. 10. The court must approach the test for application of Rules 17A on an issue by issue basis. Just because it is determined that a particular issue must go to trial, it does not follow that the court cannot adjudicate summarily on other issues if the pre-conditions for the application of Rule 17A have been made out in respect of those other issues. 11. In presenting an evidentiary base in support of or in opposition to an application for

summary trial, both parties have an obligation not to "scoop-shovel", to use the phrase employed in the Inspiration Management case, disjointed affidavits and other material on the chambers judge, but must set out the evidence in a concise and organized way that demonstrates the issues in dispute and why they can or cannot be dealt with by way of

summary trial. Failure to do so may result (if the culprit is the applying party) in the Court concluding as a threshold matter, that the case is not appropriate for determination by way of

summary trial; or (if the culprit is the responding party), in the court concluding that no genuine issue for trial has been demonstrated. 12. If there is no genuine issue for trial, the court must give judgment in favour of the applying party. If the only genuine issue is a question of law the court may proceed to decide the issue and give judgment accordingly. 13. Where there is a genuine issue for trial, the court must then go on to consider whether, on the evidence as presented, it is nevertheless possible and appropriate to decide the issues on the application on the basis of the existing record.

At this point, the inquiry changes focus. The responding party had an obligation to put his or her best foot forward to demonstrate that there was a genuine issue for trial. Having done so, the focus shifts, to some extent, to a determination of the court's "comfort level" with the state of the record as being able to justify a determination on the genuine issues that have been identified. The court must be satisfied by the applying party that the evidentiary record is "sufficient for adjudication", to borrow the phrase used in the Inspiration Management case.

In making that determination the court must keep in mind that it is entitled, on a common sense basis, to draw inferences from the evidence and from failure of a party to comply with Rule 17A.02(4) and (5). It does not mean that the chambers judge must nevertheless be satisfied that if the proceeding went through the full trial process the result would inevitably be the same as would be given on

summary trial. It simply

means that so long as the chambers judge is satisfied that there is a sufficient evidentiary backdrop against which findings of fact can be made and in which there are no material unanswered questions, he or she should be able to adjudicate on the merits. 14. A closed list of factors which the chambers judge must consider in determining this issue cannot be given. The list would obviously include: (

a) whether there are conflicts in the evidence which can be resolved by reference to other known facts and whether those facts are themselves proven on the record; (

b) whether there are issues of credibility which can be resolved without the necessity of observing the demeanor of the witnesses or of having more elaborate explanation of facts to which they have deposed. (

c) whether material evidence from a "principal player" is absent [this is particularly important where the absent evidence is from the applying party's side. It may be less significant where the evidence is absent from the responding party's case, in light of his general obligation to "put his best foot forward"]. In the end, this determination is a matter of discretion for the trial judge to determine whether he or she is confident that the court has the factual sub stratum necessary to make an informed decision on the merits. 15.

The requirement that the judge must also be satisfied that it is not "unjust" to decide the issues on the application reinforces the notion that the chambers judge should be satisfied that the court has a sufficient handle on the facts to make an informed decision. Thus, if it is clear that there is other material evidence available which might materially affect the result and the chambers judge concludes that he or she would not be deciding the case against the true factual background, he or she might well conclude that it would be unjust to deal with the matter by way of

summary trial. While a party has an obligation to put his or her best foot forward, there might well be a valid explanation for the absence of such other evidence, for example, if the information is in the hands of the other party. In addition, other factors that would have to be considered by the court to determine the "justice" of proceeding would be: (

a) the amount involved; (

b) the complexity of the matter; (

c) its urgency; (

d) any prejudice likely to arise by reason of delay; (

e) the cost of taking the case forward to a conventional trial in relation to the amount involved; (

f) the course of the proceedings to date. 16. If the court is satisfied on the foregoing matters, then it should proceed to adjudicate on the merits of the claim and, in so doing, apply the same standards of adjudication and burden of proof as would apply on a full trial. 17. Although one would expect that an applying party would not apply unless he or she clearly felt that there was considerable strength in the case, it is nevertheless possible that, if a court determines that it is appropriate to try the case summarily, the responding party could be successful in convincing the court that, on the record, judgment should be entered in his or her favour. Having set the

machinery of Rule 17A in motion, the applying party will not then be able to complain if judgment goes against him or her. [19] In Young v. Noble, 2016 NLCA 58, at paragraphs 26 to 28, Justice Green (then Chief Justice Green) further commented on theMarco analysis to be undertaken in a Rule 17A application, as follows: 26 I would also observe that the weight of authority is in favour of allowing a bifurcation of the appropriateness and merits issues, atleast in some circumstances.

In any event, I do not read Murphy as determining that in all cases there can never be a preliminary hearing.That would be counterproductive to the policy of conducting hearings in the most efficient and cost-effective way. As Dalley indicates,the decision in Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317 (Nfld.S.C.T.D.) -- which is a decision that is frequently cited and relied on in discussions of

summary trial law -- implicitly recognizes that athreshold question can be dealt with in advance of any hearing on the merits. In fact in another Marco decision, this is explicitlyrecognized and asserted: Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 308(Nfld. S.C.T.D.) at paragraph 5. 27 It is important to appreciate, however, that the threshold question that can, on these authorities, be determined in advance of thesummary trial proper is truly a threshold question directed to determine whether, on the matters raised in the application, the caseappears to fall within the

summary trial rule, whether the applicant has provided some evidentiary basis for the assertions made andwhether the nature of the case is such that it is potentially capable of being dealt with in the attenuated manner contemplated by asummary trial, bearing in mind the comments of the Supreme Court of Canada in Hrnyiak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87about the salutary uses of such a procedure to ensure access to justice in appropriate cases. 28 Such a threshold question is distinct from another similar question that may arise in the course of the

summary trial itself:whether, even if the applicant fails to establish that there is no genuine issue for trial, the court should, nevertheless, on the

summarytrial record, determine the legal and factual issues that have been raised. That requires a determination, within the language of rule17A.03(2) of the Rules of the Supreme Court, 1986, whether the judge "is unable on the whole of the evidence before the Court ... to findthe facts necessary to decide the questions of fact or law" and whether "it would be unjust to decide the issues" by way of

summary trial.Even though a judge may have decided, on a preliminary threshold screening as described above, that the

summary trial procedureshould be proceeded with, this latter inquiry is, of necessity, still at large and may have to be addressed and dealt with at the

summarytrial hearing itself. [20] Based on the Marco analysis and Justice Green’s comments in Young v. Noble, it is clear that the Applicants bear the burden ofsatisfying the Court of the appropriateness of determining the boundary line issue on a

summary trial basis. This first requires that theApplicants satisfy the Court that there is “some evidentiary basis for the assertions made”, and that the case is “potentially capable” ofbeing determined on a

summary trial basis (paragraph 27 of Young v. Noble). In the event that the Applicants satisfy the Court of thispreliminary threshold, the Respondent then bears the onus of establishing that there is a genuine issue for trial. If the Respondentsucceeds in establishing that there is a genuine issue for trial, the burden of proof shifts back to the Applicants to establish whether theCourt should determine the legal and factual issues raised by the application.

If this is established, the Court may then proceed to decidethe matter on its merits. [21] In this application, the Applicants and the Respondent have agreed that there is a sufficient evidentiary basis before the Courtto decide the issue of who has a better claim in title to the disputed property. ANALYSIS [22] In keeping with the Marco analysis (principle 3), and in accordance with paragraph 27 of Young v. Noble, the Court had to firstdetermine whether the Applicants had provided “some evidentiary basis” for their claim. Further, as stated in Young v.

Noble (atparagraph 27), it was necessary to bear in mind that this is “truly a threshold question”. [23] This preliminary threshold question can be determined prior to and in advance of the hearing of the

summary trial (Young v.Noble, at paragraph 27). The Applicants in this case did not seek a bifurcated hearing. Such was not necessary in the circumstances. Rather, the Court made a ruling at the hearing that the preliminary threshold had been satisfied. These are the reasons for thatdetermination. [24] In support of their application, the Applicants filed a solicitor’s affidavit, an affidavit of Vincent Swain, as well as documentswhich included as follows: cases, pleadings, discovery transcript excerpts, and a copy of the quit claim deed to the Swains’ property asdescribed in the 2016 Vallis survey.

The Applicants also filed other documents detailing or providing background history, along with amemorandum. The Applicants’ Counsel further made extensive submissions to the Court. [25] The Applicants provided documents from the Crown to support the Applicants’ claim that the Swains’ property had beenCrown land.

These included a 2005 briefing note from Crown Lands regarding the Swains’ adverse claim to the Swains’ property; and areport prepared by Robert Brake, Lands Management Officer for Crown Lands, pertaining to his field investigation in 2004 regarding theSwains’ property, and his review of aerial photographs of the area. [26] The briefing note and report refer to the 1998 David Vallis survey, as well as a 2004 David Vallis survey. As stated, the 1998Vallis survey is essentially of the same land as described in the 2016 Vallis survey; except the 2016 survey starts further back from theroad.

The 2004 Vallis survey is of a larger parcel of land described in the briefing note as being “west and south of the original parcelsurveyed in 1998”. The briefing note, and Robert Brake’s report, ultimately concluded that there was not sufficient evidence toextinguish the Crown’s right to the Swains’ property. [27] The Applicants also provided the 2004 transcript of the small claims matter regarding the action between the Applicants and

Arthur Jackman. The Applicants relied on the transcript as support for their claim that the Swains’ property was Crown land. In so doing, the Applicants referred to comments made by the Judge and the lawyer for Arthur Jackman. I note that there was no decision made by the Court in the small claims matter. I therefore see no probative value to the comments made in that proceeding. [ 28 ] The Applicants further submitted copies of affidavits of Arthur Maher and Michael Dillon, the originals of which are in the Respondent’s possession.

In those affidavits, sworn in May of 2004, the affiants attest to the ownership of Arthur and Phyllis Jackman to the property adjacent to the Swains’ property. However, there is no description of the Jackman property attached to these affidavits. Rather, attached to the affidavits is the 1998 Vallis survey description of the Swains’ property. The affiants in both affidavits stated that with respect to the description of the Swains’ property, they did not see any activity on that land which would indicate it was claimed by any person.

The Applicants submitted these affidavits further support their claim that the Swains’ property had been Crown land. [ 29 ] After considering the evidentiary basis submitted by the Applicants, I was satisfied that there was “some evidentiary basis” for the assertion made that the Swains have title to the Swains’ property as described in the 2016 Vallis survey attached to the quit claim deed from the Crown. The quit claim deed, in itself, provides some evidentiary basis for the assertions of ownership made by the Applicants. Further, the need for a quit claim deed is supported by the briefing note and Mr.

Brake’s report, which indicate the Crown’s right to the Swains’ property had not been extinguished. [ 30 ] Based upon the fact that the Applicants’ documents supported their claim to the disputed property, I was satisfied that the matter was “potentially capable of being dealt with in the attenuated manner contemplated by a

summary trial” ( Young v. Noble , paragraph 27 ). The preliminary threshold had been satisfied by the Applicants, and the hearing of the application continued. [ 31 ] In accordance with guideline 7 of the Marco analysis, the burden then shifted to the Respondent to establish that there was a genuine issue for trial. [ 32 ] The Respondent filed several affidavits and documents in response, along with a memorandum of fact and law.

The Respondent’s Counsel further made extensive submissions at the hearing with regards to the Respondent’s position. [ 33 ] The Respondent’s position is that the Vickers own the Vickers’ property as described in the 2012 Young survey; and therefore the Respondent has a better claim in title than the Applicants to the land as it is depicted by the area of overlap between the 2012 Young survey and the 2016 Vallis survey.

The Respondent claims that the Crown made an error by attaching the 2016 Vallis survey to the quit claim deed. [ 34 ] To support his claim in title, the Respondent submitted in evidence the affidavit of surveyor Richard Young, attached to which is a 2018 survey report and plan prepared by Mr. Young. In preparing this 2018 survey report and plan, Mr. Young completed a field investigation, reviewed aerial photographs from Crown Lands, and he prepared the surveyor’s report based on his field investigation. Mr.

Young’s 2018 plan depicts the 2016 Vallis survey plan of the Swains’ property overlaid on his 2012 survey plan of the Vickers’ property. The 2018 survey plan therefore depicts the disputed property, being the area of overlap between the surveys of the two properties. [ 35 ] The 2018 Young survey plan shows the area of overlap having significant width of 12.84 meters. Mr. Young further identified a rock wall being partially on both the Vickers’ property and the Jackman property, but mostly contained within the area of overlap. With respect to the rock wall, Mr.

Young noted in his surveyor’s report that it is about one meter in width, and 15 to 30 centimeters above normal ground level. He further noted that the rock wall was completely overgrown, and he referred to it as being “continuous as shown to the west where it was destroyed by subsequent ground work”. [ 36 ] In Mr. Young’s 2018 surveyor’s report and plan, he also referred to and depicts remnants of barb wire fencing which is on the Jackman property, and in proximity to but not within the area of overlap. His report stated that the wire was “completely rusted and only visible in certain areas”.

He estimated the age of the barb wire to be in excess of 40 years. [ 37 ] In Mr. Young’s 2018 surveyor’s report and survey plan he also identified and depicted what he described as “furrows of a potato garden” which were shown to him by the Respondent. He described that area as being overgrown and not detectable, “except for the knowledge of Scott Vickers”. The potato furrows are partially in the area of overlap. [ 38 ] The Respondent further submitted an affidavit from land surveyor Derek Saunders, who conducted an investigation of the 2016 David Vallis survey work of the Swain property.

The investigation arose from a complaint laid by the Respondent against David Vallis with the Association of Newfoundland Land Surveyors. [ 39 ] Mr. Saunders’ investigation report was dated February 5, 2018 and was attached to his affidavit. His report supports the Respondent’s position that the 2016 Vallis survey attached to the quit claim deed is erroneous. [ 40 ] Mr. Saunders’ report refers to an interview he had with Mr. Vallis. Mr. Vallis is now deceased and there was no affidavit, nor discovery evidence, from him. Mr. Saunders asserts in his report that Mr.

Vallis claimed that he had originally determined the boundary between the Swains’ property and the Vickers’ property by following a rock wall with wire; and that Mr. Vallis also claimed that since Mr. Vallis’ original survey in 1998, all evidence of the rock wall had been cleared by Mr. Vickers. However, Mr. Saunders stated in his report that his own field investigation, and review of aerial photos, revealed that he could find no evidence of the land being cleared; nor could he find any evidence of a rock wall being in the location indicated by Mr. Vallis. Mr.

Saunders’ further expressed the view that the existing evidence of an old rock wall and barb wire “probably represents a more accurate location of the original boundary”. Mr. Saunders’ opinion was that Mr. Vallis needed to revise his survey. [ 41 ] The Respondent submitted that the surveyors’ evidence of the rock wall, barb wire and potato furrows support the Respondent’s contention that there was use and occupation of the Vickers’ property that was sufficient to dispossess the Crown, in favour of the Vickers. The Respondent acknowledged that the age of these features had not been determined, although Mr.

Young did suggest in his 2018 report that the barb wire was in excess of 40 years old.

[ 42 ] The Respondent also submitted several other affidavits in which, when considered collectively, attested to the continuous use of the Vickers’ property, first by William Jackman from 1955, then the Jackman family, and then by Arthur and Phyllis Jackman, up until Phyllis Jackman conveyed the property to Scott and Lisa Vickers.

These affidavits were sworn by Bernadette Vickers, Edward Vickers, Thomas Tobin, Russell Sharpe, David Jackman and Lisa Vickers. [ 43 ] As submitted by the Applicants, the probative value of each of these affidavits is limited due to the lack of specific information regarding the purported historical use and occupation by the predecessors in title to the Vickers’ property, along the disputed boundary line.

The Applicants also noted that Lisa Vickers, Bernadette Vickers and Edward Vickers are related to Scott Vickers; and David Jackman is related to Lisa Vickers. [ 44 ] Further, as submitted by the Applicants, Thomas Tobin’s affidavit indicates that he did not reside in the area between 1951 and 1976. This is significant because when determining whether there has been adverse possession of Crown land, the Court must consider the twenty year period from January 1, 1957 to December 31, 1976. This is in accordance with sections 36(1) and (2) of the Lands Act , SNL 1991, c. 36 , the

interpretation of which was recently confirmed in Ring v Newfoundland and Labrador , 2013 NLCA 66 , at paragraphs 8 to 17 . [ 45 ] Further, with respect to whether the rock wall depicted in the 2018 Young survey plan approximates the true boundary line, the Applicants noted that none of the affidavits filed by the Respondent referred to the rock wall, except the affidavits of the surveyors.

Further, the Applicants submitted that in any event, the boundary line depicted by the 2012 Young survey does not follow the rock wall depicted on the 2018 Young survey plan. [ 46 ] The Applicants also suggested that the rock wall followed by Mr. Vallis was not the same as the rock wall depicted on the 2018 Young survey plan. While the Saunders’ report suggested that Mr. Vallis indicated that he did follow a rock wall when his original survey was done in 1998, the report also stated that Mr. Vallis indicated that the rock wall was no longer there.

The Applicants therefore suggested that the rock wall followed by Mr. Vallis in 1998 would have been on the boundary line depicted on the 2016 Vallis survey, and that rock wall would have been parallel to the rock wall depicted in the 2018 Young survey. The Applicants also pointed out that Mr. Swain’s discovery evidence referred to a rock wall dividing the properties, and that Mr. Swain also referred to Mr.

Arthur Jackman removing same in 2003. [ 47 ] The Respondent further submitted in evidence paper copies of some Crown Lands aerial photographs, as well as the documents pertaining to the Crown’s investigation of the Swains’ adverse claim to the Swains’ property. These documents were attached to the affidavit of Steve Barnable, Regional Land Supervisor with Crown Lands.

The Respondent submitted that the aerial photographs, and the Crown’s investigation, supported the Respondent’s position regarding the boundary line; and supported the Respondent’s position that the Crown was dispossessed of the Vickers’ property depicted in the 2012 Young survey. [ 48 ] To elaborate, one of the documents attached to Mr. Barnable’s affidavit is the 2005 briefing note, which was also referred to by the Applicants, and which is entitled “Adverse claim of ownership by Vincent and Margaret Swain at Frog Marsh, Witless Bay”.

As stated, this briefing note refers to aerial photographs which had been reviewed in conjunction with the July 2004 field investigation by Robert Brake, Lands Management Officer for Crown Lands. The aerial photographs referred to in the briefing note were from 1948, 1951, 1973, 1980 and 1995. In reference to these aerial photos, the briefing note states that there were no signs of occupation of the land surveyed for the Swains by Mr. Vallis in 2004.

Further, there was a small clearing on the 1948 aerial photo of the land described in the 1998 Vallis survey; however, they could not determine if the clearing was man-made or natural. The remaining aerial photos show no new signs of occupation, and that clearing is described as ultimately being completely forested on the 1995 aerial photo. The briefing note conclusion is that there was “not enough evidence to substantiate a claim under

Section 36 of the Lands Act nor is there enough evidence of long time occupation to extinguish the Crown right to the property”. [ 49 ] By contrast, and in support of the Respondent’s position regarding historical use and occupation of the Vickers’ property, the briefing note did indeed indicate that with respect to the aerial photos, the adjacent land boundary was shown clearly, and occupation of the adjacent property was “very discernible”.

However, the briefing note does not state that the boundary line depicted by the Vallis surveys was incorrect. [ 50 ] The Respondent also referred to further paper copies of aerial photos attached to Robert Young’s affidavit. These aerial photos were from 1966, 1980 and 2009. [ 51 ] With respect to those aerial photos, in his 2018 report Mr. Young depicted the 2016 Vallis survey overlaid onto each aerial photo. He also depicted the boundary line suggested by the 2012 Young survey, which he extended along the larger Jackman parcel. He also depicted the barb wire fencing, the potato garden and the rock wall.

The Respondent suggested that Mr. Young’s depictions of the conflicting survey boundaries overlaid on the aerial photos support the Respondent’s position regarding the Vickers’ property boundary line, and the Respondent’s position regarding the use and occupation of the Vickers’ property. [ 52 ] On this point, referring to Mr. Young’s depictions, the Respondent suggested that the 1966 aerial photo showed a clearing on the Vickers’ and Jackman properties which extends to the rock wall. However, the photo is a blurry copy. It is possible a portion of land may have been cleared over to a portion of the rock wall.

However, in my view it is not possible to reasonably make such an inference in the absence of evidence as to whether or not the aerial photo depicts a natural clearing, a man-made clearing, or any clearing. [ 53 ] The Respondent further submitted that Mr. Young’s depictions on the 1980 aerial photo portrays an L-shaped clearing emanating from a path through the Jackman property, and following along the Vickers’ purported boundary line.

Again, it would not be reasonable to infer such based upon the blurry copy of the photo before the Court, and in the absence of evidence to support the origin and nature of what may be an L-shaped clearing. Similarly, it is difficult to interpret the 2009 aerial photo attached to the report in the absence of evidence to assist the Court to do so. [ 54 ] Finally, in further support of the Respondent’s position that the Crown made an error in granting the quit claim deed to the Applicants, the Respondent referred to a document attached to the affidavit of Steve Barnable entitled “Application for Grant of Land”.

This was the Swains’ 2016 application to the Crown seeking a Crown grant with respect to the Swains’ property. The application

appears to be a sworn document, and one of the statements in the application is as follows: “I am not aware of any claim to or in respect of the land by any person either through occupation, improvements, possession or otherwise adverse to or inconsistent with any claim to any part of the land or to any interest therein…” [ 55 ] The Respondent submitted that the Applicants were obviously aware of the small claims action and the longstanding boundary line dispute.

Therefore the above statement in the affidavit was an error, or misrepresentation, and could possibly have influenced the Crown decision to grant the quit claim deed. [ 56 ] After considering the submissions of both Counsel, and particularly considering the conflicting survey evidence, the Court is satisfied that there is indeed a genuine issue to be tried. Clearly there is an issue respecting where the boundary line lies between the Swains’ property and the Vickers’ property.

More specifically, the issue is whether the boundary line is as it is depicted in the 2016 Vallis survey of the Swains’ property, or whether the boundary line is as it is depicted in the 2012 Young survey of the Vickers’ property. Indeed, it may be that the boundary line lies somewhere in between.

In any event, the issue of who has a better claim in title to the disputed property is a genuine issue for trial. [ 57 ] Having determined that there is a genuine issue for trial, the burden then shifts back to the Applicants to satisfy the Court that it is “possible and appropriate to decide the issues on the application on the basis of the existing record” (see the Marco analysis, principle 13). Similarly in Young v. Noble (at paragraph 28 ), Justice Green stated that in the course of the

summary trial a question may arise as to whether “the court should, nevertheless, on the

summary trial record, determine the legal and factual issues that have been raised”. [ 58 ] As stated, both parties asserted that in this

summary trial application there was a sufficient evidentiary record before the Court for the purpose of determining whether the boundary line between the two properties is as it is described by the 2016 Vallis survey, or as it is described by the 2012 Young survey. Both parties requested the Court to decide the matter in this

summary trial. However, in order to do so, the Court has to be satisfied a decision can be made based on the record provided. [ 59 ] In assessing whether there is a sufficient evidentiary record, Justice Green in the Marco analysis (principle 13) stated that, the Court may “draw inferences from the evidence and from the failure of a party to comply with Rule 17A.02(4) and (5)”. [ 60 ] Further, at principle 14 of the Marco analysis, Justice Green provided a list of factors to consider when assessing the sufficiency of the evidentiary record. Principle 14 states, as follows: 14.

A closed list of factors which the chambers judge must consider in determining this issue cannot be given. The list would obviously include: (

a) whether there are conflicts in the evidence which can be resolved by reference to other known facts and whether those facts are themselves proven on the record; (

b) whether there are issues of credibility which can be resolved without the necessity of observing the demeanor of the witnesses or of having more elaborate explanation of facts to which they have deposed. (

c) whether material evidence from a "principal player" is absent [this is particularly important where the absent evidence is from the applying party's side. It may be less significant where the evidence is absent from the responding party's case, in light of his general obligation to "put his best foot forward"].

In the end, this determination is a matter of discretion for the trial judge to determine whether he or she is confident that the court has the factual sub stratum necessary to make an informed decision on the merits. [ 61 ] If the evidentiary record is found to be sufficient, then the Court must also consider whether it is just to make the determination (principle 15 of the Marco analysis). If so, then the Court may proceed to “adjudicate on the merits of the claim” (principle 16, of the Marco analysis). [ 62 ] I have carefully reviewed the evidentiary record provided by the parties.

I have considered Rule 17A.02(4) and (5) and in my view this is not an appropriate case for drawing adverse inferences. Nevertheless, I have concluded that the evidentiary record before me does not provide the “factual sub stratum necessary to make an informed decision on the merits” ( Marco analysis, principle 14). This is primarily due to conflicts of evidence which cannot be resolved on the record provided. There are also credibility issues which will need to be resolved at trial. [ 63 ] To elaborate, as stated the 2016 Vallis survey attached to the quit claim deed clearly conflicts with the 2012 Young survey.

In my view, the affidavit of Derek Saunders with his attached report does not resolve the conflict; and there is insufficient evidence to resolve the issue of the conflicting surveys. More specifically, Derek Saunders suggests the location of an old rock wall with barb wire “probably represents a more accurate location of the original boundary”. However, the rock wall as it is depicted in Richard Young’s 2018 plan does not lie on either party’s proposed boundary.

Rather, the 2018 Young survey plan depicts a distance of 12.84 meters between the 2016 Vallis boundary line and the 2012 Young survey boundary line; and the 2018 Young survey plan depicts a rock wall in the area of overlap which he describes as being about a meter wide, and 7.93 meters from the proposed Vallis survey boundary line. Therefore, Mr. Saunders’ conclusion does not assist the Court in determining who has a better claim in title to the disputed property.

[ 64 ] Further, there is the unresolved and reasonable question of whether there was another rock wall used by Mr. Vallis when he did his 1998 survey; and this question cannot be resolved based on the evidence presented. [ 65 ] On this point, Mr. Saunders indicated that he could find no “evidence of a rock wall in the location indicated by Mr. Vallis”; and that he also could not find any evidence of the land being cleared. To support his position, Mr. Saunders relied not only on his prior field investigation, but also on aerial photos taken in 1995, 2005 and 2009.

However, as discussed the paper copies of the aerial photos are dark, blurry and difficult for the Court to assess for the purpose of making reasonable inferences. Further explanation and evidence is required to explain the basis for Mr. Saunders’ opinion in relation to the aerial photos. [ 66 ] In addition, Mr. Swain’s sworn discovery evidence conflicts with Mr. Saunders’ report. Mr. Swain’s evidence was that there was a rock wall defining the boundary line, and that such was removed by Mr. Jackman around 2003.

Again, this conflict cannot be resolved by referring to the Respondent’s several affidavits regarding the use of the Vickers’ property. It bears repeating that these affidavits do not specifically address the issue of the rock wall, and the historic use of the property along the boundary line asserted by the Respondent. Nevertheless, these affidavits do swear to use and occupation of the Vickers’ property.

Use and occupation along the boundary is a possibility, but it was not specifically addressed in the affidavits and such remains to be resolved. [ 67 ] In addition to the conflicting evidence arising from the conflicting survey descriptions, there is an issue of credibility with respect to Mr. Swain’s discovery evidence and affidavit. This requires a more elaborate explanation, and assessment at trial.

This credibility issue arises from the contents of the Swains’ application for a Crown grant, in which they stated they were not aware of any adverse claim with respect to the Swains’ property. [ 68 ] Having said this, there is also an issue of credibility with respect to the Respondent’s several affidavits regarding the use of the Vickers’ property. As stated, these affidavits do lack specificity regarding use and occupation where the boundary line lies; the issue of the boundary line is not the focus of the affidavits.

However, if indeed the affiants were definitively asserting that the boundary line is as per the 2012 Young survey attached to their affidavits, then their credibility must be assessed. Such an assertion conflicts with the Swains’ assertion as to where the boundary lies, it conflicts with the Crown quit claim deed, and it conflicts with the 2016 Vallis survey. As stated, the conflicting survey descriptions are not satisfactorily resolved by Mr.

Saunders’ affidavit, or any other evidence. [ 69 ] Similarly, the Applicants referenced the affidavits of Arthur Maher and Michael Dillon, which also did not focus on the issue of where the boundary line lies. The affidavits were referenced by the Applicants to support their position that the Swains’ property, as described in the 2016 Vallis survey, was Crown land. Due to the overlap between the 2012 Young survey and the 2016 Vallis survey, these affidavits conflict with the Respondent’s affidavits regarding the use of the Vickers’ land.

Again, credibility issues arise from these competing affidavits, and these affidavits do not resolve the conflicting survey descriptions. [ 70 ] Further, the conflicting survey descriptions are not resolved within the Crown’s briefing note and investigation. To recap, the Crown considered the Vallis surveys of 1998 and 2004, and the conclusion was that the Crown was not dispossessed of the Swains’ property. There is a letter attached to Mr. Barnable’s affidavit which is to the Swains, from the Regional Lands Manager at Crown Lands, dated March 11, 2005.

That letter stated clearly that the position of the Department of Crown Lands’ was that the Swains’ property in Witless Bay was Crown land. At the same time, the briefing note states that the aerial photos show the adjacent land boundary is clearly shown. However, the briefing note and the Crown’s investigation did not specifically and expressly address the issue in this

summary application, being which survey correctly identifies the boundary line between the properties. [ 71 ] Arguably, the fact that the Crown gave the Swains a quit claim deed suggests that the Crown’s view is that the 2016 Vallis survey properly identifies the boundary line between the properties. Nevertheless, the evidentiary record does not sufficiently detail the process undertaken by the Crown at the time the Crown determined what description to attach to the quit claim deed.

It is unknown whether the Crown would remain of the view that a quit claim deed would be granted in light of the conflicting 2018 Young survey report and plan, the Saunders’ affidavit, and the Saunders’ report. On this point, I note that the briefing note does indicate that one of the annexes to the note (annex 11) was an earlier survey by Richard Young & Assoc. Co. Ltd. showing an overlap of properties.

However, there was no evidence at the hearing from representatives of the Crown as to how, or whether, the Vickers’ claim with respect to the boundary line dispute would have impacted the Crown’s issuance of the quit claim deed. [ 72 ] As well, and again, the Crown aerial photos require further explanation as to their contents, which explanation must come from an appropriate witness. The Court cannot make reasonable inferences from generally unclear paper copies of the aerial photos. CONCLUSION [ 73 ] In conclusion, I recognize that all the parties wanted a

summary trial to resolve the issue of who has a better claim to the disputed property. There is no doubt that there would be significant cost savings and convenience in having the matter determined under Rule 17A. However, while a

summary trial determination was the desired outcome, in my view this is not an issue which can be decided based on the evidentiary record that is before me. [ 74 ] I conclude this based upon the foregoing analysis, and after carefully considering all of the evidence, documents, cases and submissions of the parties. There is conflicting evidence which cannot be resolved in this application, there is further evidence which needs to be provided at trial, and there are credibility issues to be assessed at trial. As a result, the application cannot be decided based on the evidentiary record before the Court.

I therefore dismiss the application. COSTS [ 75 ] With respect to costs, I am exercising my discretion to award costs in the cause. While the Swains’ initiated the application, the Respondent also wanted the issue determined by

summary trial procedure, and the Respondent was in agreement with the Applicants that there was a sufficient evidentiary record for the Court to resolve the matter. The Respondent sought the same order as the Applicants, being a finding that the Respondent was the legal owner, and a permanent injunction against the Applicants’ alleged interference with the property. In other words, like the Applicants, the Respondent sought the benefit of a

summary trial determination. In the circumstances, in my view it is appropriate to award costs in the cause.

_____________________________ Valerie L. Marshall Justice