2012 NBCA 17, 2012 NBCA 17

COURT OF APPEAL OF NEW BRUNSWICK 127-10-CA RODRIGUE MICHAUD and GINETTE MICHAUD APPELLANTS RODRIGUE MICHAUD et GINETTE MICHAUD APPELANTS - and - - et - DRUMMOND (village of) RESPONDENT DRUMMOND (village de) INTIMÉ Michaud v. Drummond (village of), 2012 NBCA 17 Michaud c.

Drummond (village de), 2012 NBCA 17 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Richard CORAM : L’honorable juge Larlee L’honorable juge Deschênes L’honorable juge Richard Appeal from a decision of the Court of Queen’s Bench: September 13, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 13 septembre 2010 History of Case: Historique de la cause : Decision under appeal: N/A Décision frappée d’appel : S.O. Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: November 10, 2011 Appel entendu : Le 10 novembre 2011 Judgment rendered: February 23, 2012 Jugement rendu : Le 23 février 2012

Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : L’honorable juge Deschênes Concurred in by: The Honourable Justice Larlee The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Richard Counsel at hearing: For the appellants: Rodrigue and Ginette Michaud appeared in pe rson For the respondent: Basile Chiasson, Q.C. Avocats à l’audience : Pour les appelants : Rodrigue et Ginette Michaud ont comparu en personne Pour l’intimé : Basile Chiasson, c.r. THE COURT The appeal is allowed with disbursements of $1,500.00 awarded to the appellants.

LA COUR L’appel est accueilli avec débours de 1 500 $ accordés aux appelants. English version of the decision of the Court delivered by DESCHÊNES, J.A. I. Background [ 1 ] The village of Drummond filed an application with the Court of Queen’s Bench seeking an order directing the Michauds to dismantle a fence that does not comply with its municipal bylaw. The Michauds rely on the principle of vested rights as a defence and argue that the erection of their cattle fence constitutes a legal non-conforming use. II. The Facts [ 2 ] The evidence before the application judge was wholly documentary.

It is comprised of some sworn documents provided by the village of Drummond and by the Michauds. In short, we can say that the facts are not in dispute.

[ 3 ] The Michaud family property has an area of approximately 46 acres and has been operated as a small agricultural farm since 1946. [ 4 ] The undisputed evidence shows that the Michauds have always raised livestock on this land and that when the appellant Rodrigue Michaud’s father died in 1984, there were 19 cows in the fenced-in areas, and more animals were added later. In addition, the Michauds have been growing potatoes and wheat since then. [ 5 ] As years went by, farming activities were moved around on the property.

At times, the animals would be on the land bordering Tobique Street while another area was under cultivation. From 1946 to 2002, a 48-inch cattle fence ran along Tobique Street to ensure that the cattle would not stray off the property. [ 6 ] In 2002, the Michauds leased the front part of their farm that borders Tobique Street for potato growing. For easier access to this part of the property, they dismantled part of the cattle fence along Tobique Street, while keeping those parts of the fence that they did not need to dismantle.

The Michauds continued raising livestock on another part of their property and cultivation of the land never ceased.

In 2008, when the potato cultivation on the front part of their farm came to an end, the Michauds reinstalled the cattle fence that they had dismantled in 2002, because without this fence the livestock they were raising then (horses and one cow) might have escaped from the property onto Tobique Street. [ 7 ] In the meantime, in 2006, the village of Drummond enacted Municipal Bylaw No. 75, prohibiting the erection of fences over 29.5 inches in height in the village on property such as the Michauds’ land, fronting on Tobique Street.

When the municipal bylaw was enacted, there was no fence along the front of the Michauds’ property. No one disputes the fact that the farm fence reinstalled by the Michauds in 2008 is at least 48 inches high and that it does not comply with the village of Drummond’s bylaw. III.

The Position of the Parties [ 8 ] The only issue for the village of Drummond is whether the vested right that the Michauds claim allows them to shirk their obligations under the said municipal bylaw. [ 9 ] For their part, the Michauds contend that the erection of a cattle fence at least 48 inches high is an integral part of farming, where raising livestock and cultivating the soil have been continuous since 1946, and where the rotation of farming activities on different areas of the land is commonplace.

In their view, the dismantling of the fence in 2002 to allow potato planting on the front part of their land does not constitute an interruption of their vested right. The Michauds sum up their argument as follows: [TRANSLATION] “If I have a vested right in keeping animals, I have a vested right in building a fence to keep animals.” [ 10 ] The following words of the application judge capture the essence of the Michauds’ main argument: [TRANSLATION] What Mr. and Mrs.

Michaud are alleging here is that they have vested rights, and if I understand correctly they are saying that since they have had animals on their land all these years and it was a farm, they should be able to continue all activities required to carry on with farming, and this means installing and removing fences […] that they no longer need because they are sowing instead of [raising] animals. So, according to them, since the farming operations have been carried on since 1946, they themselves having received the farm in ’84 [from Mr. Michaud’s parents], they seem to believe that they have vested rights. IV.

The Judge’s Decision [ 11 ] According to the application judge, the Michauds had a vested right, but this right was attached to the type of fence that existed between 1946 and 2002, when it was dismantled; dismantling it for an extended period resulted in the loss of the vested right which went with it. This is how she sees this vested right:

[TRANSLATION] So if the fence had been there and you had done nothing after the bylaw was enacted, obviously I would be here today saying to the Village of Drummond: “There was a vested right here, it already existed. You can’t change something that was in existence at the time you enacted your bylaw.” So this is what it would mean to have a vested right in a fence, it would mean that the fence was there when the bylaw was enacted. […] So, the fact is that from 2002 to 2008, you no longer had a fence in the front; I cannot find that you had a vested right because the fence wasn’t there anymore. V.

Analysis and Decision [ 12 ] At the outset some procedural housekeeping is in order. The original style of cause identified the respondent as “Village de Drummond”. However, by virtue of s. 55(1) of Regulation 85-6 under the Municipalities Act , R.S.N.B. 1973, c. M-22, it is provided “[t]he village called Village of Drummond is continued and the name of the village is Drummond”.

Accordingly, it is appropriate to identify the respondent, as we have done in the present style of cause, as “Drummond (village of)”. [ 13 ] The main conditions precedent to the existence of vested rights were summarized by the Quebec Court of Appeal in Huot v. Ange-Gardien (Paroisse) , [1992] J.Q. No. 1074 (C.A.) (QL) . I can see no reason why they should not be applied in this case and I quote: [TRANSLATION] (

a) Vested rights do not exist unless the non-conforming use prior to the coming into force of the prohibition on such use was legal. (

b) The use actually existed, since the intention of the owner or user is not sufficient in itself. (

c) The same use still exists, having been continued without significant interruption. (

d) Vested rights adhere to the advantage of the property they benefit. Such rights are not personal, but are assignable with the property to which they are accessory. (

e) They cannot be modified as to their nature and in some cases their scope, although the non-conforming activities may be intensified in some cases. (

f) Simply being an owner does not suffice to vest the rights. [ 14 ] If vested rights exist in this case, they are derived from the 46-acre property and how the Michauds have used it since 1946.

On this very point, there is no question that the Michauds have run a small farming operation and that the two main activities have always been raising livestock in small numbers and cultivating the land, without interruption, since 1946. [ 15 ] It is true that for a period of six years, the front part of the property was used to grow potatoes and that the 48-inch farm fence was dismantled to allow easier access to this front part of the property.

The application judge was right in finding that the 48-inch fence along Tobique Street no longer existed when the municipal bylaw was enacted. [ 16 ] However, the Michauds have operated the farm without interruption. Of course, there were years when the horses and other animals were moved elsewhere on the property to allow cultivation, but the use of the property as a whole never changed. In my view, the application judge erred in law in restricting the Michauds’ vested right in the type of fence which existed along Tobique Street. This

interpretation of a vested right is too restrictive in this case.

[ 17 ] That being said, I believe it may be useful to clarify a few points. [ 18 ] First, note that the Michauds have raised a defence to the village of Drummond’s application for an order directing them to dismantle the cattle fence that does not comply with the municipal bylaw. This defence, in my view, was valid to the extent that the Michauds were able to show that the municipal bylaw did not apply in this case because of the principle of vested rights. The only appropriate remedy is setting aside the application judge’s decision.

This is not a declaration that the Michauds are entitled to operate a farm that is different from the one in existence when the bylaw was enacted. [ 19 ] Finally, there is the question of costs and disbursements. [ 20 ] There is no need to revisit the question of costs awarded to litigants who represent themselves and are successful (see in this regard Proenca v. Squires Home Improvements & Total Renovations Ltd. et al., 2001 NBCA 45 , 252 N.B.R. (2d) 274 ). In this case, the Michauds have produced no evidence as to the value of the time that they had to invest to oppose the village of Drummond’s application.

However, they incurred considerable disbursements in travelling expenses to answer to the village’s application, both at the Queen’s Bench and Appeal Court levels. Normally, we could require successful appellants to prove the disbursements they have incurred before the Registrar of the Court, a process in which the respondent could have participated. In the instant case, I believe that the interests of justice would not be served by imposing this obligation on the Michauds. [ 21 ] I would award them disbursements of $1,500.00. VI.

Disposition [ 22 ] I would allow the appeal, set aside the orders made by the application judge and order the village of Drummond to pay to the appellants an amount of $1,500.00 in disbursements. ____________________________________ ALEXANDRE DESCHÊNES, J.C.A. NOUS SOUSCRIVONS À L’AVIS ____________________________________ M.E.L. LARLEE, J.C.A. _____________________________________ J.C. MARC RICHARD, J.C.A.