GARY SKIFFINGTON FIRST APPLICANT SHIRLEY SKIFFINGTON SECOND APPLICANT AND: GERALD LINTHORNE FIRST respondent donna LINTHORNE SECOND RESPONDENT, 2020 NLSC 65

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Skiffington v. Linthorn e, 2020 NLSC 65 Date : May 7, 2020 Docket : 201906G0134 BETWEEN: GARY SKIFFINGTON FIRST APPLICANT SHIRLEY SKIFFINGTON SECOND APPLICANT AND: GERALD LINTHORNE FIRST respondent donna LINTHORNE SECOND RESPONDENT Before: Justice Katherine O’Brien Place of Hearing: St. John's, Newfoundland and Labrador Dates of Hearing: March 11 and 12, 2020

Summary: An Originating Application for a perpetual injunction to prevent the Respondents from using a common driveway was denied. The Applicants’ request for an order of exclusive possession of the common driveway was also denied. Appearances: Gregory J. French Appearing on behalf of the Applicants

Gerald Linthorne and Donna Linthorne Self-Represented Authorities Cited: CASES CONSIDERED: Skiffington v. Linthorne , 2014 NLTD(G) 103; Skiffington v. Linthrone , 2015 NLTD(G) 148; R. v. Gary Skiffington (May 3, 2018), Clarenville 0617A-00079 (N.L. Prov. Ct.); Nalcor Energy v. NunatuKavut Community Council Inc. , 2014 NLCA 46 STATUTES CONSIDERED: Judicature Act , R.S.N.L. 1990, c. J-4 ; Quieting of Titles Act , R.S.N.L. 1990, c. Q-3 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D .

REASONS FOR JUDGMENT O’BRIEN, J.: INTRODUCTION [ 1 ] The Skiffingtons applied for a permanent injunction to prevent the Linthornes from using a driveway situated between their properties. They have also asked the Court to grant them exclusive possession of the driveway. The Linthornes opposed the application and the matter was heard on March 11 and 12, 2020. [ 2 ] Although the matter was commenced by way of an Originating Application, I heard viva voce evidence. The Skiffingtons were both cross-examined on their affidavits and the Linthornes both testified and were cross-examined.

I reserved my judgment until now. [ 3 ] I am dismissing the Skiffingtons’ application for the following reasons. BACKGROUND [ 4 ] The history of this matter, at least until 2014, was previously summarized by Handrigan, J. in Skiffington v. Linthorne , 2014 NLTD(G) 103 (“ Skiffington 1 ”) beginning at paragraph 8: 8 Sidney Linthorne and Alice Linthorne lived on Tremblett's Hill for many years before they died in 1992 and 1994 respectively.

They allowed their son, Gerald Linthorne, to build a house on part of their land in 1969 and permitted their daughter, Shirley Skiffington and her husband, Gary Skiffington to set a residential trailer on another part of their land in 1990. The parcels of land containing the Skiffington and Linthorne residences adjoin one another and align in a north-south orientation, with the Linthorne residence to the east of the Skiffington residence. 9 By all accounts, the Skiffington and Linthorne families lived side-by-side amicably for more than 20 years until 2012 when they had an argument.

I am not sure how the argument began but Shirley Skiffington said that her brother, Gerald, asked to borrow her husband's truck; and her husband demurred, or as Ms. Skiffington put it, "Gary didn't say 'yes' or 'no'". Several days later, Ms. Skiffington says, her brother "...came out and said all kinds of things, and it went from there". 10 And it went poorly from there: The parties confronted each other repeatedly; they uttered threats; they complained to the police; and they generally harassed each other at every opportunity.

The Provincial Court issued a peace bond in 2013 to prevent the strife from escalating but Mr. Linthorne responded by moving a broken-down pickup truck onto the driveway in February 2014 so that it was practically impossible for the Skiffington's to use it. In April 2014 Mr. Linthorne built a fence across the driveway obstructing it completely; and prompting the Skiffington's to apply to this Court for relief. 11 Mr. Linthorne admits that he put his pickup truck across the driveway and that he built the fence. He claims to have lived in the neighbourhood for over 67 years, 45 of them in his own home. Mr.

Linthorne says that he owns the driveway and asserts the right to say who uses it. He produced a document purportedly signed by a "Hazel White" that he says proves he owns the driveway. Mr. Linthorne says that he bought the driveway in 1964 and claims that he maintained the driveway by "stoning" and "paving" it in 1990-1991 and applying gravel to it regularly in the intervening years.

12 Mr. Linthorne agrees that the parties have been at odds over the driveway for the last 2 years. He says that their dispute started in 2012 when the Skiffingtons blocked the driveway for about 3 weeks by parking a car and a truck on it. He says that he parked his old truck on it in February 2014 to preserve the status quo until he could build the fence that he put across it in April 2014. Mr.

Linthorne says that the Skiffington's moved the vehicles that they parked in the driveway aside to allow the snowplow to clear the driveway and he shoved his truck into the breach until he could build the fence that blocks it now. [ 5 ] In Skiffington 1 , Handrigan, J. found that the Skiffingtons have a prescriptive easement over the driveway.

He ordered that Gerald Linthorne remove all obstructions from the driveway and cease and desist from interfering with the Skiffingtons’ use of the driveway in the future, including permitting a registered land surveyor from attending on the site to perform field work to prepare a legal survey of the Skiffingtons’ land and the driveway. He also ordered Mr. Linthorne to pay the Skiffingtons’ legal costs. I will refer to this as the “2014 Order”. The 2014 Order was not appealed. [ 6 ] The matter came before Handrigan, J. again as described in Skiffington v.

Linthrone , 2015 NLTD(G) 148 (“ Skiffington 2 ”) at paragraph 2: 2 Mr. Linthorne did not comply with my order and the Skiffingtons brought an application in November 2014 to find Mr. Linthorne in contempt of court for not complying with the order. I allowed the contempt application and I awarded the Skiffingtons costs of that application on a solicitor-and-own client basis. I also ordered Mr. Linthorne to pay $1,000 into court as security for good behavior within 30 days. Mr.

Linthorne has not complied with that order. [ 7 ] Skiffington 2 was largely concerned with the Skiffingtons’ efforts to be paid for their taxed costs and resulted in Handrigan, J. making an order that allowed the Skiffingtons to sell the Linthornes’ home on Tremblett’s Hill. The order was not appealed. Paragraph 11 of Skiffington 2 is relevant to the present application: 11 Gerald Linthorne does not accept the decision I made in September 2014 when I ordered him to remove the obstructions he placed over the driveway the Skiffingtons use to gain access to their home from Tremblett's Hill in Bonavista. Mr.

Linthorne declared his opposition to my decision repeatedly in court when I dealt with the several applications the Skiffingtons brought after that and the third application, in particular. The court record is replete with Mr. Linthorne's protestations [ 8 ] Also relevant to the present application is a decision of Noble, P.C.J. of the Provincial Court of Newfoundland and Labrador in R. v. Gary Skiffington (May 3, 2018), Clarenville 0617A-00079 (N.L. Prov. Ct.) wherein he dismissed a charge of assault against Gary Skiffington that arose out of a confrontation between Mr.

Skiffington and Gerald Linthorne on June 7, 2017. That decision was also not appealed. [ 9 ] On September 11, 2019, the Skiffingtons filed the present application and it was set down to be heard. On November 29, 2019, upon the Linthornes’ second application for a postponement of the hearing, I granted an Interim Order for an injunction (the “Interim Injunction”), enjoining the Linthornes from interfering with the Skiffingtons’ use of the driveway by any means on an interim, or temporary, basis. [ 10 ] On February 26, 2020, Handrigan, J. found the Linthornes in contempt of the Interim Injunction.

He remanded both of the Linthornes into custody for five days and ordered that they pay the Skiffingtons lump sum costs of $3,000.00 and full indemnity for expenses to clear the driveway. He further ordered that the Linthornes pledge $25,000.00 security for good behavior secured against their home. ISSUES [ 11 ] I must decide: 1) Should the Linthornes be perpetually enjoined, or prohibited, from using the driveway? 2) Should the Skiffingtons be given exclusive possession of the driveway? 3) What award of costs, if any, is appropriate?

THE EVIDENCE Evidence of the Skiffingtons [ 12 ] The Skiffingtons’ evidence came from affidavits and cross-examination. There is significant overlap between the evidence of Gary Skiffington and Shirley Skiffington and no disagreement between them, so I will review their evidence together. As much of their evidence as to the history of the dispute was essentially a recitation of facts found by other judges and already canvassed above, I will not review that information again. [ 13 ] Following the 2014 Order, the Skiffingtons had the driveway surveyed.

That survey is dated May 12, 2016 and was entered as an exhibit. Because a picture is worth a thousand words, I am appending the survey as

Schedule “A” to these Reasons For Judgment. [ 14 ] As shown on

Schedule “A”, the Skiffingtons’ property and the driveway are surveyed separately and labeled as Parcel “A” and Parcel “B”, respectively. The boundaries of Parcel “A” and Parcel “B” with all adjacent properties, including the Linthornes’ property, are shown. The driveway (Parcel “B”) is approximately “P” shaped, with a narrow drive leading from Tremblett’s Hill that widens into a larger turnaround area. The top of the turnaround borders the Skiffingtons’ property, more particularly their parking area.

The right side of the turnaround borders the Linthornes’ property, including a parking area that they have near the back entrance of their house. The bottom of the turnaround borders what is marked as “Now or Formerly Roger Keel” – land owned by a third party.

[ 15 ] The Skiffingtons state that from 2014 and continuing to the present date, the Linthornes have jointly engaged in a campaign of harassment and intimidation against them regarding their use of the driveway. They say the confrontations have become increasingly heated and have led to violence. In 2016, both sides applied for peace bonds against each other. These peace bond applications were dismissed. Then in 2017, both Mr. Skiffington and Mr. Linthorne were charged with separate allegations of assault against each other. The charge against Mr.

Skiffington arose from a confrontation on June 7, 2017 and was dismissed by Noble, P.C.J. as outlined above. The charge against Mr. Linthorne arose from a confrontation in February 2017. The Crown ultimately discontinued the prosecution against Mr.

Linthorne for reasons unknown to the Skiffingtons. [ 16 ] The Skiffingtons state that, despite the 2014 Order, the Linthornes have continued to block the driveway with their vehicles, have placed obstructions including wooden sawhorses and stools in the driveway to inhibit access, and have posted a “Trespassers will be Prosecuted” sign on the driveway, which the Skiffingtons believe was directed at them. Photographs showing a vehicle, sawhorses and the sign were entered as exhibits. [ 17 ] Additionally, the Skiffingtons state that on August 7, 2019, and again on September 4, 2019, Mr. Linthorne confronted Mr.

Skiffington as the latter was attempting to navigate the driveway to access his house. Mr. Skiffington says Mr. Linthorne became animated and shouted at him not to go up the driveway anymore and to stay off of it. On September 6, 2019, the Skiffingtons state that both Linthornes confronted them regarding their use of the driveway. The Skiffingtons state that the Linthornes were carrying wood and stools, which they dumped into the driveway, and that Mr. Linthorne then challenged Mr. Skiffington to a physical fight regarding the driveway.

The Skiffingtons state that they retreated to their house and called the police. [ 18 ] In short, the Skiffingtons state that the situation has become intolerable and that it is not possible for the two families to harmoniously share the driveway. The Skiffingtons state that this situation arises solely from the conduct of the Linthornes and their unwillingness to accept the 2014 Order. [ 19 ] The Skiffingtons further state that their house is not situated on a municipal street and that its primary access is by the driveway.

When they have been unable to use the driveway, they have had to rely on the generosity of other neighbors to access their property. They state that the Linthornes’ house is situated directly on Tremblett’s Hill and that the Linthornes have parking spaces on the front of their house that are directly accessible from Tremblett’s Hill. As such, the Skiffingtons state that the Linthornes do not require use of the driveway to access their property or park their vehicles.

Likewise, they state that the Linthornes can access their shed and house from their own property without needing the driveway. [ 20 ] The Skiffingtons filed evidence to establish that they have been paying taxes to the Town of Bonavista for both their property and the driveway since October 2006. [ 21 ] Shirley Skiffington states that the driveway was always used by her parents to access their home, which was located on the property now owned by the Skiffingtons, and that the driveway has been used by her and Mr. Skiffington since they put their trailer home on the land in 1990.

She acknowledges that her brother, Gerald Linthorne, has also used the driveway for many years. Evidence of the Linthornes [ 22 ] Both Linthornes state that they have never blocked the driveway over which the Skiffingtons have a right of easement. They appear to take a very narrow view of what the “driveway” is, however, because they both admit to parking their car in the turnaround area, placing stools there so that Mr. Linthorne can place his flake to dry fish, and putting wood there. Mrs. Linthorne testified that they put the sawhorses on the turnaround to let the Skiffingtons know that it was “our land”. Mr.

Linthorne testified that the sawhorses were placed there to keep the Skiffingtons from coming in and turning around and spraying rocks on his house. He says he put his car there for the same reason, to protect his house, and also to keep open the access to his shed doors. He stated his car was parked 15 feet away from the shed doors for these purposes. This places the car well on the turnaround portion of the driveway. [ 23 ] The Linthornes also both admit to placing the “Trespassers will be Prosecuted” sign at the entrance to the driveway. They state that they did this to try and stop Mr.

Skiffington from tearing up the driveway and spraying their house with rocks. Mrs. Linthorne testified that she and Mr. Linthorne had since taken the sign down or it had blown down. [ 24 ] The Linthornes’ narrow view of the Skiffingtons’ right of easement appears to come from advice they say they had from a lawyer at one time. When they erected a fence that ran essentially along the entire boundary between the Skiffingtons’ property and the driveway (including the turnaround), they say the lawyer told them they only had to remove “two lengths” of the fence to give the Skiffingtons access.

These reported statements of the lawyer were hearsay and thus not accepted for their truth but rather as part of the Linthornes’ explanation for their beliefs. This fence is referenced in the quote from Skiffington 1 in paragraph 4, above. It was eventually removed entirely pursuant to the 2014 Order. [ 25 ] Under cross-examination Mr. Linthorne made it quite clear that he does not accept Handrigan, J.’s orders. When asked directly if he accepted Handrigan, J.’s rulings, he replied, “Indeed I don’t. I was done in”. He also confirmed that he had no “respect” for the rulings.

He repeatedly referred to the driveway as “his driveway” and questioned why the Skiffingtons would want to take “his driveway” that he bought in 1964. I note that Mr. Linthorne’s assertions that he owns the driveway were already considered by Handrigan, J. at paragraphs 13 to 17 of Skiffington 1 . In short, Handrigan, J. did not find the documents produced by Mr. Linthorne useful or compelling. However, as Handrigan, J. was not tasked with making a finding on ownership of the driveway, he did not consider the documents at length. [ 26 ] With respect to allegations of harassment and aggression, Mr.

Linthorne states that he was put in the hospital by the Skiffingtons on June 7, 2017. When asked about the finding of Noble, P.C.J. that he was the aggressor on that date, he denied it, suggesting that Noble, P.C.J. was conspiring with Handrigan, J. and counsel for the Skiffingtons. Mr. Linthorne believes that justice is against him and his wife. [ 27 ] When asked about the events of August 7 and September 4, 2019, Mr. Linthorne admits to telling Mr. Skiffington to stay off the driveway. He says he did this because Mr. Skiffington was tearing up the driveway. When the details of the events from the

Skiffingtons’ affidavit were put to him and he was asked to confirm them, he confirmed that events “could have” happened that way but he reacted as he did because Mr. Skiffington was tearing up the driveway with the wheels of his truck. [ 28 ] As for the confrontation of September 6, 2019, both Linthornes denied those events, in particular they denied dropping anything in the driveway or blocking it. [ 29 ] Mr.

Linthorne acknowledged that the full area of the driveway, including the turnaround, was not included in the survey of his property, although he stated that this was a mistake and it should have been. [ 30 ] Although the Linthornes regularly referred to “their” house and land and referred to the driveway as “their” land, Mr. Linthorne also testified that he did not own his house and land. When questioned on this, he stated that he signed it all over to his son in 2006. He said “you got the wrong person in court”.

When asked why he did not take the position that he did not own the land in 2014 and 2015 when he was in court before Handrigan, J., Mr. Linthorne did not answer the question. He just repeated that it was all put in his son’s name in 2006. [ 31 ] When asked to reconcile his testimony that he had bought land adjacent to his house from Wayne Ryder in 2012 with his purported transfer of everything to his son in 2006, he said that he had a paper made out to his son in 2006 and it said that everything Mr. Linthorne owned, his son would own, and if Mr. Linthorne bought something tomorrow, his son would still own it.

Mr. Linthorne confirmed that there was no transfers of land registered at the Registry of Deeds between him and his son. [ 32 ] Mr. Linthorne also testified that he had to declare bankruptcy within the last seven years so that the Skiffingtons would not take “his house”. I understood that this had to do with him getting money to satisfy the award of costs that was considered in Skiffington 2 , but that was not fully clear. Mr. Linthorne’s current position is that he owns nothing but his clothes and his car. He denies ever having had a bank account.

ISSUE 1: Perpetual Injunction The Law of Perpetual Injunctions [ 33 ] The Skiffingtons seek a permanent, or perpetual, injunction to prevent the Linthornes from using the driveway.

Section 105 of the Judicature Act , R.S.N.L. 1990, c. J-4 authorizes the Court to make an order for an injunction where it appears to the Court to be just or convenient and upon such terms and conditions as the Court thinks just. The granting of an injunction is an equitable remedy and is subject to the Court’s discretion. [ 34 ] The analytical approach to determine whether a perpetual injunction should be granted as a remedy for a claimed private law wrong was set out by the Court of Appeal of Newfoundland and Labrador in Nalcor Energy v. NunatuKavut Community Council Inc. , 2014 NLCA 46 .

That approach was summarized in paragraph 72: 72 I will conclude this analysis by saying that the proper approach to determining whether a perpetual injunction should be granted as a remedy for a claimed private law wrong is to answer the following questions: (

i) Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant's suit should be dismissed); (ii) Has the claimant established to the satisfaction of the court that the wrong(

s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed); (iii) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy); (iv) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant's prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny the injunctive remedy.); (

v) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction? (vi) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent?

Analysis of Issue 1: Perpetual Injunction [ 35 ] The first step in the Nalcor Energy framework is a consideration of whether the Skiffingtons have proven that all of the elements of a cause of action are established. A cause of action must be established before the remedy of an injunction can be granted.

This is made clear in in paragraphs 51 and 53 of Nalcor Energy : 51 A court faced with a claim in which the remedy sought is an injunction must therefore be careful to ensure that it does not lose sight of the fact that the pre-condition to even embarking on a consideration of whether an injunctive remedy should be granted is whether a cause of action has been established on the evidence according to the applicable standard of proof. For example, the Supreme Court of Canada in Pepsi-Cola Canada Beverages (West) Ltd. v.

R.W.D.S.U., Local 558 [2002 CarswellSask 22 (S.C.C.) ] stressed that to obtain an injunction (in that case an interlocutory injunction) restraining picketing, the claimant must "base its claim on a specific tort" (paragraph 113). … 53 In a claim for a private law remedy, it is not sufficient simply to acknowledge that the claimant has to "establish its legal rights". Rather, the claimant has to show, on a balance of probabilities, that those legal rights, once proven to exist, were interfered with in a manner that the law recognizes constitutes a cause of action.

Just because one's legal rights are affected by the actions of another does not mean that a cause of action necessarily exists to vindicate and protect those rights.

I may have a legal right, in the sense of a licence or permission, to walk in a park or use a road but that does not mean I automatically have a legal right, in the sense of a claim-right, to sue for interference of that right (and obtain an injunction restraining someone other than the licensor from blocking my way) unless I can show that the facts fit within an established cause of action. [ 36 ] The factual matrix established by Skiffingtons may be sufficient to establish the tort of nuisance or that of intimidation or some other tort.

However, to properly advance their claim, the onus is on the Skiffingtons to clearly articulate their cause of action and establish that each of the elements of the tort are proven by the evidence. They have not done that. Rather they have focused on the existence of the 2014 Order and set out to establish that the Linthornes have not been complying with it. [ 37 ] The 2014 Order establishes the Skiffingtons’ prescriptive easement and requires that the Mr. Linthorne cease and desist from interfering with their use of the driveway. I do not accept the Linthornes’ very narrow view of what the “driveway” is.

If the “driveway” did not include the turnaround portion, then the Skiffingtons would have no access to the parking area in front of their house (see Appendix “A”). Nor would they be able to turn their vehicles around. I find that the turnaround part of the driveway forms part of the driveway over which Handrigan, J. found they had prescriptive easement. [ 38 ] As such, the evidence establishes that Mr.

Linthorne, at least, has breached the 2014 Order by parking a car in the middle of the turnaround and placing sawhorses there, by interfering with the Skiffingtons use of the driveway by placing the “Trespassers will be Prosecuted Sign”, and by confronting the Skiffingtons in August and September, 2019.

However, establishing that a court order is not being respected is not the same thing as establishing a cause of action and this distinction is at the heart of the reason why the Skiffingtons’ application cannot succeed. [ 39 ] The Skiffingtons’ complaint is that the Linthornes are refusing to accept the 2014 Order. For the purposes of this application, they have not identified a separate or new cause of action that protects their rights established by that Order. For example, nuisance was not pleaded or referenced in their submissions to the Court.

And, although their pleadings included a statement that the Linthornes have jointly engaged in a “campaign of harassment and intimidation” against them, they did not articulate this complaint as a cause of action, or submit to the Court that the elements of any tort related to this behavior were established.

Fairness prevents me from attempting to find support for a cause of action in the evidence after the hearing has concluded because fairness requires that the Linthornes have had notice of the claims against them and an ability to respond to those claims. [ 40 ] The failure to prove a cause of action is sufficient to dispose of the Skiffingtons’ application for a perpetual injunction. However, in the event that I am incorrect in my finding, I will go on to consider the third element of the Nalcor Energy framework, which I also find to be a bar to their success, at least with respect to Mr.

Linthorne. [ 41 ] The third element of the Nalcor Energy framework is a consideration as to whether there is an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong. The wrong is that the Linthornes are interfering with the Skiffingtons’ lawful use of the driveway. Yet, there is an adequate alternate remedy already in place, at least for Mr. Linthorne: the 2014 Order.

By seeking a perpetual injunction to enjoin the Linthornes from using the driveway, the Skiffingtons are, in effect, seeking that the Court punish Mr. Linthorne for failing to respect the 2014 Order by extinguishing a property right, use of a common driveway, that they acknowledge the Linthornes had for years. The present application is not the appropriate application to seek enforcement of the 2014 Order. [ 42 ] If Mr. Linthorne persists in breaching the 2014 Order, he may be found in contempt of court again.

The Linthornes have been ordered to pay financial damages and serve time in custody for previous findings of contempt against them. Contempt is a serious matter and people who repeatedly breach court orders can be subject to increasingly harsher consequences. Although the 2014 Order was not directed at Mrs. Linthorne because she was not a party to the proceedings before the Court, the Court’s finding that the Skiffingtons’ have a prescriptive easement over the driveway is a finding of general application.

As such, if the Linthornes do not respect the Skiffingtons’ legal rights recognized by the 2014 Order and this decision, they both risk coming before the Court again. ISSUE 2: Exclusive Possession [ 43 ] In their Originating Application, the Skiffingtons also sought exclusive possession of the driveway. Whereas a perpetual

injunction would prevent the Linthornes from using the driveway, an order giving the Skiffingtons exclusive possession of the driveway would prevent anyone else, not just the Linthornes, from using the driveway. [ 44 ] I have had no evidence regarding the use of the driveway by people other than the Skiffingtons and the Linthornes. The Skiffingtons have not sought a declaration of title to the driveway and they have not complied with the requirements of the Quieting of Titles Act , R.S.N.L. 1990, c. Q-3 .

The Quieting of Titles Act is the legislation that applies when a person claiming to be the owner of land seeks to have his or her title judicially investigated and declared. No legal basis has been established by the Skiffingtons for an order of exclusive possession so this relief is also denied. ISSUE 3: Costs [ 45 ] Rule 55.02 of Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D . (the “ Rules ”) provides that costs are in the discretion of the court. That discretion must be exercised judicially.

The presumption is that the unsuccessful party will pay some of the legal costs of the successful party, unless the court orders otherwise (see Rule 55.03(1)). [ 46 ] Although the Skiffingtons have not been successful in their application, I am exercising my discretion not to make any order with respect to costs because the Skiffingtons’ application was taken as a result of the Linthornes’ failure to accept the 2014 Order. Had the Linthornes respected the 2014 Order, this application would not have been made.

DISPOSITION [ 47 ] The Originating Application is dismissed and the Interim Injunction is dissolved without prejudice to the ability of the Skiffingtons to commence fresh litigation based on further events that they allege constitute a recognized cause of action or breach of statute. I make no order as to costs. _____________________________ KATHERINE O’BRIEN Justice Appendix A