Alain Ostiguy v. Valérie Savard, 2017 SCC 22

SUPREME COURT OF CANADA Citation: Ostiguy v. Allie, 2017 SCC 22, [2017] 1 S.C.R. 402 Appeal Heard: October 7, 2016 Judgment Rendered: April 6, 2017 Docket: 36694 Between: Alain Ostiguy and Valérie Savard Appellants and Hélène Allie Respondent Official English Translation: Reasons of Gascon J. Coram: McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. Reasons for Judgment: (paras. 1 to 96) Gascon J. (McLachlin C.J. and Moldaver, Karakatsanis, Wagner and Brown JJ. concurring) Dissenting Reasons: (paras. 97 to 164) Côté J. Ostiguy v. Allie, 2017 SCC 22, [2017] 1 S.C.R. 402 Alain Ostiguy and Valérie Savard Appellants v. Hélène Allie Respondent

Indexed as: Ostiguy v. Allie 2017 SCC 22 File No.: 36694. 2016: October 7; 2017: April 6.

Present: McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. on appeal from the court of appeal for quebec Prescription — Acquisitive prescription — Immovables — Publication of rights — Effective possession of parking space on neighbouring lot for more than 10 years — Application by new owners for injunction to stop possessor from parking on their property being dismissed by Superior Court and Court of Appeal — Provision of Civil Code stating that person who has possessed immovable as its owner for 10 years “may acquire the ownership of it only upon a judicial application” — Whether right of ownership acquired by prescription that has not been subject of judicial application may be set up against new owner of immovable who has registered title in land register — Respective roles of acquisitive prescription and publication of rights system in Quebec civil law — Nature of judgment resulting from application for judicial recognition of right of ownership acquired by prescription — Civil Code of Québec, arts. 922, 2910, 2918.

Between 1994 and 2011, A and her family used one or two parking spaces situated on the property of their then neighbour in full view of everyone, and there was no objection to their doing so. Between 2004 and 2011, after 10-year prescription had been acquired, A nevertheless did not bring legal proceedings to have her right recognized. In 2011, O and S purchased this neighbouring lot by act of sale. A few months after taking possession of their property, they applied for an injunction to stop A from parking on it.

A replied by arguing that she had acquired the parking spaces by 10-year prescription and that that acquisition took precedence over the title of O and S that was registered in the land register. The Superior Court agreed with A in part, holding that the evidence showed that she had acquired by prescription one of the two parking spaces she claimed. In the Court of Appeal, the majority dismissed the appeal, concluding that the legislature had not, in enacting art. 2918 of the Civil Code of Québec (“ C.C.Q. ”), intended to change the principles that applied to acquisitive prescription at the time of its enactment.

They observed that acquisitive prescription makes it possible to prove the existence of a right of ownership, whereas the role of land registration is not that of a guarantee of title. A’s possession could be set up against an owner whose title was registered in the land register. The dissenting judge, on the other hand, would have allowed the appeal and confirmed the title of O and S. He argued that the right to prescribe acquired by A in 2004 is distinct from the real right she was seeking, which can be obtained only upon a judicial application under art. 2918 C.C.Q.

In his opinion, the judgment resulting from that application is an essential condition for acquiring ownership by prescription. A thus had to obtain such a judgment and publish her right to be able to set it up against O and S. Held (Côté J. dissenting): The appeal should be dismissed. Per McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.: The parties on each side in this case have a legitimate right to assert. O and S acquired their title legally, by act of sale. A’s effective possession of one of the parking spaces on her neighbours’ lot is recognized and is just as legitimate.

What must be done in order to determine which of the parties should prevail is to define the respective roles of acquisitive prescription and the publication of rights in Quebec civil law, and then to interpret and apply the relevant provisions of the C.C.Q. , taking into account its overall scheme and its consistency. In the C.C.Q. , acquisitive prescription is recognized as a “means of acquiring a right of ownership, or one of its dismemberments, through the effect of possession” (art. 2910 C.C.Q. ).

The possessor must prove that, for at least 10 years in the case of an immovable, he or she in fact exercised the right in question with the intention of exercising it as the holder of the right. His or her possession must be “peaceful, continuous, public and unequivocal” in order to produce effects (art. 922 C.C.Q. ). A possessor claiming ownership of an immovable must also obtain a judgment confirming the right so acquired. As for the role of the publication of rights, it did not change significantly with the enactment of the C.C.Q.

Although the Civil Code Revision Office had initially, in 1977, proposed a substantial modification in procedures and in the consequences of the publication of immoveable rights that was based on the cardinal principle of absolute confidence in titles, the Quebec legislature did not carry the reform through to completion. In fact, it abandoned the reform in 2000, confirming the traditional purely declarative role of publication.

This decision to abandon most of the reform of the land register confirms that under the current C.C.Q. , for rights acquired by prescription to be set up against third parties, there is no greater requirement that they be published than was the case under the Civil Code of Lower Canada (“ C.C.L.C. ”). Thus, it can be seen that the effect of the distinct roles of acquisitive prescription and the publication of rights is that rights validly acquired by prescription apply regardless of the rights registered in the land register.

This solution is the one that is most consistent with the general scheme of the C.C.Q. and with the relevant provisions on prescription, as well as on the publication of rights and on sale. This solution is consistent with art. 2885 C.C.Q. , which requires the publication of a renunciation of acquired prescription with respect to immovable real rights. Given that acquired prescription jeopardizes a right that is registered in the land register, a renunciation thereof must be published to enable third parties to take notice of it.

The solution is also consistent with art. 2957 C.C.Q. , which provides that “[p]ublication does not interrupt prescription”. It would indeed make no sense to conclude that the publication of rights cannot interrupt prescription while the period is still running, but that it can negate the effects of prescription that has already been acquired. This solution is also consistent with the repeal of art. 2962 C.C.Q. , the effect of which was that third parties could no longer

rely entirely on entries in the land register. As for the theory of apparent rights, there is nothing to suggest that the legislature intended it to apply more generally in situations other than the ones in which the legislature decided to specifically recognize it. In any event, if it did apply, there would be no reason why appearances of right created artificially by the land register should prevail over the tangible appearances of right that result from effective possession. Finally, this solution is just as consistent with art. 1724 para. 2 C.C.Q. , which preserves the rights of all parties.

Under that provision, the seller warrants the buyer “against any encroachment commenced with his knowledge by a third person before the sale”. Thus, although it is true that in this case the acquisitive prescription A has set up against O and S denies them a portion of the right of ownership that the act of sale purported to transfer to them, it is nevertheless possible for them to claim the corresponding loss from their predecessors in title if they can prove that the latter were aware of A’s encroachment before the sale and failed to disclose it to them.

As for the advance registration of a judicial application concerning a real right that is provided for in arts. 2966 and 2968 C.C.Q. , it is of no assistance in the case of acquisitive prescription. The effective possession on which this form of prescription is based is already public and can already be set up against third parties. Since acquisitive prescription has its effects regardless of any rights registered in the land register, there is no need for a possessor to register a judicial application in advance in order to protect his or her rights.

Finally, the nature of the judgment under art. 2918 C.C.Q. is not determinative of the issue before the Court. In any event, the sole purpose of that judgment is to recognize pre-existing rights resulting from effective possession and the lapse of time; when all is said and done, the legislature merely intended to restore the situation that existed under the C.C.L.C. in this regard. It is true that when the C.C.Q. was enacted in 1991, the legislature seems to have intended that acquiring ownership of an immovable by prescription should be contingent upon obtaining a judgment.

However, the role of art. 2918 C.C.Q. was altered when the reform of the publication of rights system was subsequently suspended and abandoned. That

article and the relevant provisions of the Code of Civil Procedure should instead be interpreted in light of the abortive reform and the many changes that resulted from it. This leads to the conclusion that prescription depends on achieving effective possession, not on obtaining a judgment; it is acquisitive prescription that grants the right, not the judgment. In fact, the judgment attests to the existence of a pre-existing right; it does not create a new right. In this respect, the requirement in art. 2918 C.C.Q. is more like a procedural condition than a substantive one.

All these characteristics suggest a nature that is more declarative than right-granting or constitutive. In the end, the solution adopted in this case does not weaken the land register and introduces no more uncertainty into real estate transactions in Quebec than there already was. Rather, it accounts for the inevitable effect of acquisitive prescription, a key institution of Quebec civil law that has been recognized by the legislature and whose purpose is to ascribe legal consequences to possession that is already peaceful, continuous, public and unequivocal.

Per Côté J. (dissenting): Under art. 2918 of the Civil Code of Québec (“ C.C.Q. ”), the acquisition of ownership of an immovable by prescription is conditional on first obtaining a judgment following a judicial application. That judgment is constitutive of the right of ownership and without retroactive effect. Reading down the plain language of art. 2918 so as to render the judgment declaratory and retroactive cannot be reconciled with the legislative balance struck between the right of ownership and the operation of prescription.

Such a reading is also inconsistent with the property and publication books of the C.C.Q. , and with the rationale behind acquisitive prescription. The concept of prescription operates in tension with real rights, including the primordial real right in the C.C.Q. , ownership. Prescription is nonetheless grounded in a valid two-fold purpose. First, it operates to efficiently quiet title such that a party to a translatory act need not prove the validity of each link in the chain of title.

Second, it operates so as to allow a possessor in fact to acquire the right of ownership to the detriment of the true owner, whose own right is extinguished. In both cases, the regime of prescription has a clear underlying rationale: to promote the efficiency, stability and security of property relationships. In the modern era, this rationale is only served by recognizing that the conditions for acquisitive prescription of an immovable did in fact change with the introduction of the C.C.Q .

Previously, under art. 2242 of the Civil Code of Lower Canada (“ C.C.L.C. ”), a possessor in bad faith and without title could acquire an immovable only after possessing it for 30 years.

Article 2251 C.C.L.C. provided for prescriptive acquisition after only 10 years, but only if the possessor in good faith could found his or her possession upon a translatory title.

Article 2918 C.C.Q. replaced these conditions with a single possessory period of 10 years, regardless of the good or bad faith of the possessor, or the presence or absence of translatory title. In view of these changes — and given that a reduction in the prescription period inherently affects the balance between the rights of the possessor and those of the true owner — art. 2918 imposes a requirement that the possessor may acquire the right of ownership only upon a judicial application.

This requirement has no antecedent in the C.C.L.C. , and as a result its meaning cannot be defined by reference to practices prevailing under the C.C.L.C . The abandonment of the land register reform did not relieve possessors of art. 2918’s judicial application requirement. To the contrary, a careful reading of the legislative history of art. 2918 C.C.Q. and s. 143 of the Act respecting the implementation of the reform of the Civil Code reveals that the legislature intended the judgment on the judicial application to be constitutive of the right of ownership and without retroactive effect.

Rather than merely surviving the legislature’s purge following the abandonment of the reform, the judicial application requirement took on added importance given that the reduction of the prescription period to 10 years — which was initially premised on the successful completion of the register reform — was maintained. Under the current art. 2918, the lapse of time alone no longer gives the possessor a right of ownership; only a judgment can do that.

Holding otherwise conflates possession in fact with the creation or transfer of real rights, and fundamentally upsets the legislative balance struck between the rights of the possessor and those of the true owner. Giving effect to the plain wording of art. 2918 is consistent with the C.C.Q. ’s publication regime which, pursuant to art. 2966 para. 1, permits a possessor to register the judicial application in advance of obtaining the necessary judgment under art. 2918. Under art. 2968 para. 1, the date of advance registration is then deemed to be the date of publication.

The effect of these articles is to encourage a prudent possessor who has complied with the wording of art. 2918 to register the judicial application in advance. This aligns art. 2918 with the general publication requirement in art. 2938 C.C.Q. for the “acquisition, creation, recognition, modification,

transmission or extinction” of immovable real rights. It also minimizes the prospect of litigation and priority contests, and promotes theefficiency, stability and security of relationships between title holders by encouraging publication. Treating the judgment under art. 2918as if it had a declarative and retroactive effect does not. In this case, A did not make the required judicial application under art. 2918 until well after O and S acquired title to thecontested immovable and published their title in the land register. O and S are therefore prior in time and — as revealed by the register— prior in rank.

The result is that A’s possession is not opposable against O and S’s title. Cases Cited By Gascon J. Referred to: Deschesnes v. Boucher, [1961] B.R. 771; Noiseux v. Savio (1982), 27 R.P.R. 179; Dupuy v. Gauthier, 2013QCCA 774, [2013] R.J.Q. 662; Medeiros v. St-Louis, [2002] R.D.I. 352; Dupont v. Saint-Arnaud, (QC CA), [1992]R.D.J. 88; Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Dion v. Ouellet-Latulippe, 2008 QCCA 1812; Sylviculture et exploitation J.M.J. inc. v. Mayer Hill, 2012QCCA 1377; De Repentigny v.

Fortin (Succession), 2012 QCCS 905; Breton v. Fortin, 2016 QCCS 6149; Gosselin v. Turner, 2012QCCS 388; Caron v. Gauthier, 2011 QCCS 2898; Beauséjour v. Centre de ski Le Relais, 2015 QCCS 127; Cabana v. Valiquette, 2013QCCS 4710, aff’d 2015 QCCA 1520; Re Gagné, 2009 QCCS 6064; Re Montmagny (Ville), ; Re Béland, . By Côté J. (dissenting) Croisetière v. Gélinas, [1977] C.A. 183; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Dupuyv. Gauthier, 2013 QCCA 774, [2013] R.J.Q. 662; Craig v. Béton Chevalier inc., 2012 QCCS 2888; Granby (Ville) v.

Gestion Rainvilleltée, 2011 QCCS 4259; Re Gagné, 2009 QCCS 6064; Re Montmagny (Ville), ; Re Béland, ; R. v.974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575. Statutes and Regulations Cited Act respecting the implementation of the reform of the Civil Code, ss. 143 [am. 2000, c. 42, s. 87], 155 para. 1. Act to amend the Act respecting the implementation of the reform of the Civil Code and other legislative provisions as regards securityand the publication of rights, S.Q. 1995, c. 33. Act to amend the Civil Code and other legislative provisions relating to land registration, S.Q. 2000, c. 42.

Charter of human rights and freedoms, CQLR, c. C-12, ss. 6, 8. Civil Code of Lower Canada, arts. 406, 1508, 2082, 2089, 2098, 2183, 2183a, 2206, 2242, 2251. Civil Code of Québec, arts. 331, 627, 884, 912, 916, 921, 922, 928, 930, 947, 1037, 1559, 1643, 1724, 2163, 2847, 2875, 2879, 2885,2910, 2911, 2912, 2917, 2918 [am. 2000, c. 42, s. 10], 2938, 2941, 2943, 2944 [idem, s. 15], 2945, 2946, 2957, 2962 [rep. idem, s. 19],2966, 2968, 3026, 3046 to 3053 [idem, s. 73], 3075. Code Napoléon, art. 544. Code of Civil Procedure, CQLR, c. C-25, arts. 805 [am. 1992, c. 57, s. 367], 806. Code of Civil Procedure, CQLR, c.

C-25.01, art. 468. Code of Civil Procedure, S.Q. 1965, c. 80, art. 806. Declaration of the Rights of Man and of the Citizen (1789), arts. II, XVII.

Interpretation Act, CQLR, c. I-16, ss. 41.1, 50. Authors Cited Baudouin, Jean-Louis, et Pierre-Gabriel Jobin. Les obligations, 7e éd., par Pierre-Gabriel Jobin et Nathalie Vézina. Cowansville, Qué.:Yvon Blais, 2013. Bigot de Préameneu, Félix Julien Jean. “Motifs exposés au Corps législatif sur la loi,

titre XX, livre III du Code civil, relative à laPrescription”, dans Recueil des lois composant le Code civil, vol. 9, Paris: Rondonneau, 1804, 26. Brochu, François. “Critique d’une réforme cosmétique en matière de publicité foncière” (2003), 105 R. du N. 761. Brochu, François. “Le mécanisme de fonctionnement de la publicité des droits en vertu du nouveau Code civil du Québec, et le rôle desprincipaux intervenants” (1993), 34 C. de D. 949. Brochu, François.

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APPEAL from a judgment of the Quebec Court of Appeal (Savard and Schrager JJ.A. and Jacques J. ( ad hoc )), 2015 QCCA 1368 , [2015] AZ-51208986, [2015] J.Q. n o 7834 (QL), 2015 CarswellQue 7807 (WL Can.), affirming a decision of Dumas J., 2013 QCCS 5808 , [2013] AZ-51020921, [2013] J.Q. n o 16027 (QL), 2013 CarswellQue 11635 (WL Can.). Appeal dismissed, Côté J. dissenting. Eric Lalanne , for the appellants. Philippe Dumaine and Sarah Laplante Bazzi , for the respondent. English version of the judgment of McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ. delivered by Gascon J. — I.

Overview [ 1 ] This appeal highlights the occasional friction between acquisitive prescription and the apparent certainty of entries in the land register. Like any other source of friction between two or more parts of the Civil Code of Québec (“ C.C.Q. ” or “ Code ”), this one must be resolved by adopting the solution that accords best with the general scheme of the Code , but without singling out one of its articles at the expense of others.

The concern here is with the consistency of the Code , which is unquestionably one of its fundamental characteristics. [ 2 ] The parties are owners of contiguous lots on which their respective chalets are located. Between 1994 and 2011, the respondent, Ms. Allie, and her family used one or two parking spaces situated on the property of their then neighbour in full view of everyone, and there was no objection to their doing so. In 2011, the appellants, Mr. Ostiguy and Ms. Savard, purchased this neighbouring lot.

A few months after taking possession of their property, they applied for an injunction to stop the respondent from parking on it. The respondent replied that she had acquired the two parking spaces by 10-year prescription. The trial judge agreed with her in part, holding that the evidence showed that she had acquired by prescription one of the two parking spaces she claimed. [ 3 ] The appellants no longer contest the trial judge’s findings of fact regarding the status of the respondent’s possession.

However, they do raise a question of law on which this appeal is based: Can acquisitive prescription be set up against a new owner whose title was registered in the land register before the possessor’s right was asserted in court? [ 4 ] In the Court of Appeal, the majority answered this question in the affirmative and dismissed the appeal. The dissenting judge, on the other hand, would have allowed the appeal and confirmed the appellants’ title. [ 5 ] I would dismiss the appeal.

The Code has not changed the process of acquisitive prescription, which may be set up against the registered owner regardless of when his or her right was registered. This conclusion is based on the legislative history of the provisions at issue and reflects the need for consistency between the relevant books of the Code . In contrast, the solution proposed by the appellants is based on a literal

interpretation of art. 2918 C.C.Q. that would be incompatible with several provisions of the Code , that would result in inconsistencies the legislature could not have intended, and that must therefore be rejected. II. Background [ 6 ] The facts of this case are no longer in dispute. They can be summarized briefly. In 1993, the respondent’s predecessor in title, her deceased spouse, purchased the lot of which she is now the owner. From 1994 to 2011, their family had peaceful, continuous, public and unequivocal possession of one of four parking spaces located on their neighbour’s lot.

Between 2004 and 2011, after the space had been acquired by 10-year prescription, the respondent nevertheless did not bring legal proceedings to have her right recognized. [ 7 ] The appellants acquired this neighbouring lot in 2011 by act of sale. Relying on their title, which was registered in the land register, they moved quickly to send the respondent a formal notice to stop parking on their property. A few months later, they applied for an injunction to the same effect. The respondent objected to that application.

She filed a cross demand, arguing that she had acquired not one but two of the parking spaces by 10-year prescription and that that acquisition took precedence over the appellants’ title. III. Judicial History A. Quebec Superior Court ( 2013 QCCS 5808 ) [ 8 ] The trial judge found that the respondent and her predecessor in title had had effective possession of one parking space on the appellants’ lot for 10 years. The respondent had in that way acquired ownership of the space in question by prescription.

The judge therefore declared her to be the sole owner of the parking space and ordered that the judgment be registered in the land register. B. Quebec Court of Appeal ( 2015 QCCA 1368 )

[ 9 ] All three judges of the Court of Appeal adopted the trial judge’s findings of fact regarding the respondent’s effective possession. However, they were divided on whether that possession could be set up against the appellants.

(1) Majority reasons of Savard and Schrager JJ.A. [ 10 ] Savard J.A., writing for the majority, concluded that the respondent’s possession could be set up against the appellants. She mentioned that there is some debate among academic authors and in the case law about whether a judgment under art. 2918 C.C.Q. recognizes or grants a right of ownership. However, she found that this issue was not relevant in the context of the appeal.

Neither art. 2918 nor the Code as a whole had changed the principles with respect to acquisitive prescription that had applied under the Civil Code of Lower Canada (“ C.C.L.C. ”), according to which possession could be set up against an owner whose title was registered in the land register. [ 11 ] Savard J.A. noted that a possessor can acquire rights by prescription without a title, even if in bad faith. Accordingly, the presumptions of knowledge and of the existence of a right published in the land register, set out in arts. 2943 and 2944 C.C.Q. , can at best serve to prove bad faith on the respondent’s part.

They do not, however, change how prescription is acquired and may be rebutted by proof to the contrary, as provided for in art. 2847 C.C.Q. [ 12 ] Savard J.A. observed that acquisitive prescription makes it possible to prove the existence of a right of ownership, whereas the role of land registration is limited to deciding between competing successors to the same predecessor in title (art. 2946 C.C.Q. ) and to the ranking of security interests, but is no guarantee of title.

She noted that the appellants’ argument would lead to an irrebuttable presumption of the existence of published rights in respect of any immovable, thereby giving the land register a probative value greater than the legislature had intended to give it in the initial version of the Code , which had limited this presumption to immatriculated immovables ( art. 2944 para. 2 C.C.Q. , since repealed (2000, c. 42, s. 15)).

It was in the context of the reform of the land register, which has since been abandoned, that the initial version of art. 2918 C.C.Q. was enacted, and it, too, drew a distinction between immatriculated and non-immatriculated immovables. [ 13 ] Savard J.A. was also of the opinion that the appellants’ argument would resurrect art. 2962 C.C.Q. , which had been enacted as part of the same reform but had since been repealed (2000, c. 42, s. 19), and which had protected rights in an immatriculated immovable that were acquired in good faith.

She acknowledged that acquisitive prescription can sometimes come as a surprise, but noted that it is not open to the courts to interfere with the legislature’s choices in this regard. [ 14 ] In Savard J.A.’s view, the solution proposed by the appellants was inconsistent with art. 2957 C.C.Q. , which provides that the publication of rights does not interrupt prescription. This solution would also lead to the untenable conclusion that the possessor had waived prescription simply by failing to bring a judicial application upon the expiry of the 10-year period.

In addition, advance registration of a judicial application would be of no assistance, given that the possessor is generally unaware that his or her right may be contested. Finally, art. 2946 C.C.Q. did not apply in this case, because the parties did not hold their title from the same predecessor. [ 15 ] Savard J.A. concluded that the legislature did not, in enacting art. 2918 C.C.Q. , intend to fundamentally change the principles applicable to acquisitive prescription. A possessor is not therefore required to take legal action upon the expiry of the 10-year period.

In closing, she noted that the respondent was not a concealed third party, as there were signs that could have shown the appellants, when they purchased the property, that the respondent was using a parking space on it.

(2) Dissenting Reasons of Jacques J. ( ad hoc ) [ 16 ] Jacques J., on the other hand, was of the opinion that the need for stability of real estate transactions means that the respondent must not be able to set up her possession against the appellants. In his view, the primary purpose of acquisitive prescription is to protect the true right of ownership by making it easier to prove; it does not allow a [ translation] “usurper” to strip an owner of rights unless the owner has not exercised due diligence.

In short, its purpose is above all to correct defects of title, not to confer a right upon a “squatter”. [ 17 ] Jacques J. argued that the right to prescribe acquired by the respondent in 2004 is distinct from the real right she was seeking, which can be obtained only upon a judicial application under art. 2918 C.C.Q. In his opinion, the judgment resulting from that application is an essential condition for acquiring ownership by prescription. It thus grants a right of ownership, as is confirmed by the language of that

article and of arts. 805 and 806 of the Code of Civil Procedure , CQLR, c. C-25 (“ C.C.P. ”), and by certain commentators and judicial decisions. The retroactive effect sought by the respondent would be contrary to s. 50 of the

Interpretation Act , CQLR, c. I- 16, and would make it impossible for third parties to rely on the land register. [ 18 ] Jacques J. found that acquisitive prescription is subject to the publication of rights under art. 2938 C.C.Q. ; the respondent thus had to publish her right to be able to set it up against others. In his view, she could also have registered her application in advance (art. 2966 C.C.Q. ), which would have made a judgment in her favour retroactive to the date of the advance registration and capable of being set up as of that date (art. 2968 C.C.Q. ).

Thus, although registering in advance is not mandatory, anyone who fails to do so risks losing his or her right. In this respect, the possessor has no more rights than any other holder of an immovable real right. The onus is on the possessor to verify his or her title and exercise due diligence to correct any defect that might affect it. [ 19 ] In Jacques J.’s opinion, acquisitive prescription could not be set up against the appellants, who had not been negligent and would be left without recourse.

Financial institutions would also see their security diminished and they, too, would have no recourse, a situation that could have been prevented had the respondent’s application been registered in advance. A finding against the appellants, who had relied on their title in good faith, would make the land register practically worthless.

Moreover, art. 2962 C.C.Q. had been repealed for a technical reason related to a change to the concept of immatriculation; the repeal did not preclude the application of the theory of “apparent rights” ( droits apparents ), which was already recognized in Quebec law. [ 20 ] Jacques J. concluded that the appellants were third parties in relation to the respondent. Their rights would prevail over hers pursuant to arts. 2945 and 2946 C.C.Q. , as they had been published in a timely manner. The respondent, on the other hand, was

[translation] “a concealed third party who [came] out of nowhere” (para. 141 ), and her position was in direct conflict with theapplicable provisions on the publication of rights. It would make no sense if the unpublished rights of an acquirer by prescription couldbe set up against third parties but those of an acquirer by act of sale could not. IV. Issue [21] According to the trial judge’s findings of fact, the respondent and her predecessor had peaceful, continuous, publicand unequivocal possession of the parking space at issue from 1994 to 2011.

Given that this effective possession satisfies therequirements of the Code, the only remaining issue is whether prescription that has already been acquired can be set up against a newowner who registers his or her title in the land register before the possessor takes legal action. V. Analysis [22] First of all, it should be mentioned that the parties on each side in this case have a legitimate right to assert. Theappellants acquired their title legally, by act of sale. The respondent’s effective possession of one of the parking spaces on herneighbours’ lot is recognized and is just as legitimate.

In light of the evidence accepted by the trial judge, and contrary to the suggestionof the dissenting judge in the Court of Appeal, the respondent cannot be described as a concealed third party, a usurper or a “squatter”. [23] It is also important to mention that the completeness of the right of ownership is not at issue in this appeal. TheCourt is not being asked to determine the substance or the limits of that right, but to clarify the operation of one of the means foracquiring it.

In the end, the right of ownership is just as absolute regardless of whether it is found to be held by the appellants or by therespondent. [24] What must be done in order to determine which of the parties should prevail is to define the respective roles ofacquisitive prescription and the publication of rights in Quebec civil law, and then to interpret and apply the relevant provisions of theCode, taking into account its overall scheme and its consistency. An analysis in this regard persuades me that the solution adopted by themajority of the Court of Appeal is the one that should prevail here.

In light of the provisions of the four books of the Code that interact inthis case (namely the books on Property, Obligations, Prescription, and Publication of Rights), I find that the acquisitive prescriptionclaimed by the respondent with regard to the parking space at issue must prevail over the title registered by the appellants in the landregister. A. Acquisitive Prescription in Quebec Civil Law [25] Acquisitive prescription was once described as the patron of humankind (A. Mayrand, “Bonne foi et prescription partiers acquéreur” (1942), 2 R. du B. 9, at p. 9).

The drafters of the Code Napoléon, from which the drafters of the C.C.L.C. borrowedheavily, even considered that among civil law institutions, acquisitive prescription was [translation] “the most necessary for socialorder”, finding that without its capacity for legalizing situations resulting from possession, “everything would be uncertain and confused”(F. J. J. Bigot de Préameneu, “Motifs exposés au Corps législatif sur la loi,

titre XX, livre III du Code civil, relative à la Prescription”, inRecueil des lois composant le Code civil (1804), vol. 9, 26, at pp. 27-29). [26] Although the primary function of acquisitive prescription is to ensure the stability of property rights by helping trueowners prove their rights, it also enables third parties to acquire property by the lapse of time in accordance with the conditionsestablished by law (P.-B. Mignault, Le droit civil canadien (1916), vol. 9, at p. 336; P.-C. Lafond, Précis de droit des biens (2nd ed.2007), at paras. 2487-89).

The identification of its main elements requires a review of the provisions of two books of the Code: BookFour, Property, and Book Eight, Prescription. [27] In the Code, acquisitive prescription is recognized as a “means of acquiring a right of ownership, or one of itsdismemberments, through the effect of possession” (art. 2910 C.C.Q.). However, this possession must “confor[m] to the conditions setout in the Book on Property” (art. 2911 C.C.Q.).

The possessor must prove the exercise in fact of the right in question and the intention ofexercising it as the holder of the right, which intention is presumed (art. 921 C.C.Q.). His or her possession must be “peaceful,continuous, public and unequivocal” in order to produce effects (art. 922 C.C.Q.). Because of its public nature, the possession on whichprescription is based is necessarily [translation] “a material fact that is openly displayed” (P. Martineau, La Prescription (1977), atp. 119).

In contrast, [translation] “[p]ossession that is (objectively) secret or concealed does not aid in establishing prescription, as thereis no apparent encroachment” (D.-C. Lamontagne, Biens et propriété (7th ed. 2013), at p. 470 (footnote omitted)). [28] The Code attributes many effects to possession. Thus, a possessor is presumed to hold a real right he or she isexercising (art. 928 C.C.Q.), and possession vests the possessor with the right in question if he or she complies with the rules onprescription (art. 930 C.C.Q.).

A possessor claiming ownership of an immovable must show that he or she has possessed it as an ownerfor at least 10 years (arts. 2917 and 2918 C.C.Q.). Possessors may, for this purpose, join to their possession that of their predecessors(art. 2912 C.C.Q.). They must also obtain a judgment confirming the right so acquired (art. 2918 C.C.Q.; arts. 805 and 806 C.C.P.; newCode of Civil Procedure, CQLR, c. C-25.01, art. 468). There is some debate over whether the effect of such a judgment is to recognize aright of ownership that has already been acquired or to grant such a right.

I will return to this point after discussing the role of thepublication of rights under the Code. B. Publication of Rights in Quebec Civil Law [29] Unlike prescription, the publication of rights, the subject of Book Nine of the Code, [translation] “plays no

part inthe process of creating rights” (F. Brochu, “Critique d’une réforme cosmétique en matière de publicité foncière” (2003), 105 R. du N.761, at p. 783). Professor Gidrol-Mistral notes that [translation] “publication does not have the effect of creating a right, nor does it evenconsolidate one by purging it of its defects” (G. Gidrol-Mistral, “Publicité des droits et prescription acquisitive: des liaisonsdangereuses?” (2016), 46 R.G.D. 303, at p. 316).

The role of publication is limited to allowing rights to be set up against third persons,establishing their rank and, where the law so provides, giving them effect (art. 2941 C.C.Q.). The land register also makes it possible todecide between the rights of two persons who have acquired their titles of ownership from the same predecessor in title (art. 2946C.C.Q.).

[ 30 ] The current provisions are so clearly rooted in those of the C.C.L.C. that it can be said that the role of the publication of rights did not change significantly with the enactment of the Code (arts. 2082, 2089 and 2098 C.C.L.C. ).

This is confirmed by the recent history of the provisions on the publication of rights. [ 31 ] In 1977, the Civil Code Revision Office (“C.C.R.O.”) — the body responsible for reviewing and recodifying the C.C.L.C. — had initially proposed to the Quebec legislature “ a substantial modification in procedures and in the consequences of the publication of immoveable rights” (Civil Code Revision Office, Report on the Québec Civil Code (1978), vol.

II, t. 2, Commentaries , at p. 923). [ 32 ] The primary purpose of this reform would be to reorganize the registry offices and computerize the registers ( ibid. , at pp. 924 and 927-28).

It would be accompanied by a significant legal reform based on one cardinal principle: . . . that every person should be able to rely on the registers as they stand at any given time, in the belief that what is recorded there is true, that nothing else can be set up against him except what is recorded there, and that nothing that might be entered afterwards will take priority or have any prejudicial effect on what is already published .

This principle can be described simply as “absolute confidence” in the titles. [Emphasis added; ibid. , at p. 926.] The C.C.R.O. was proposing that the land register be given absolute probative value, drawing its inspiration in this regard from the German and Swiss systems (M. Cantin Cumyn, “Les principaux éléments de la révision des règles de la prescription” (1989), 30 C. de D. 611, at p. 622). [ 33 ] The Quebec legislature originally followed these recommendations for the most

part in enacting the new Code in 1991 by, for example, giving absolute probative value to a registration regarding an immatriculated immovable that had been published for 10 years: 2944. Registration of a right in the register of personal and movable real rights or the land register carries, in respect of all persons, simple presumption of the existence of that right.

Registration in the land register of a right of ownership in an immovable that has been immatriculated carries the same irrefutable presumption of the existence of the right if not contested within ten years. [ 34 ] The legislature also codified the principle of public confidence proposed by the C.C.R.O. to the effect that third parties should be able to rely entirely on the land register: 2962.

A person who acquires a real right in an immovable which has been immatriculated , relying in good faith on the entries in the registers, is secure in his right if it has been published . [ 35 ] As can be seen from the words of these provisions, however, arts. 2944 para. 2 and 2962 C.C.Q. (both since repealed) applied only to immatriculated immovables. This limit stemmed from the legislature’s intention, in light of the practical difficulties associated with the implementation of this reform, to prepare a progressive transition to the new publication of rights system.

One by one, each immovable in the province was to be immatriculated, that is, its exact position was to be determined and a unique number was to be assigned to it in the cadastre (art. 3026 C.C.Q. ).

In addition, the Code provided that the rights concerning all immovables would be gradually catalogued and carried over to the new register (arts. 3046 to 3053 C.C.Q. , also since repealed). [ 36 ] This exhaustive search for and characterization of existing rights was a necessary precondition for the attribution of absolute probative value to the land register, since it was to lead to the extinguishment of any uncatalogued rights, thereby ensuring the reliability of the remaining rights (art. 3046 para. 3 C.C.Q. , since repealed; G.

Rémillard, “Présentation du projet de Code civil du Québec ” (1991), 22 R.G.D. 5, at p. 68) . This process would take time to complete, however, so the former publication of rights system was to remain in place for immovables that had not been immatriculated or for which the carry-over of rights had not yet taken place. [ 37 ] But when this reform was implemented in 1994, the legislature ran into more serious difficulties than had been expected with regard to the immatriculation of all immovables and the exhaustive characterization of existing rights (Brochu, “Critique”, at p. 764).

It therefore decided, by means of the 1992 Act respecting the implementation of the reform of the Civil Code and the amendments made to that Act in 1995, to suspend the effect of the main articles of the reform (including arts. 2944 para. 2 and 2962 C.C.Q. , mentioned above) and [ translation] “ extend . . . the application of the legal principles that had applied under the Civil Code of Lower Canada ” ( ibid. ;

An Act respecting the implementation of the reform of the Civil Code , s. 155 para. 1;

An Act to amend the Act respecting the implementation of the reform of the Civil Code and other legislative provisions as regards security and the publication of rights , S.Q. 1995, c. 33). [ 38 ] Six years later, in December 2000, the legislature realized that its reform would cost more than expected and would involve certain risks relating to the professional liability of notaries (Brochu, “Critique”, at p. 789). It therefore decided to concentrate on computerizing the existing land register and to drop the rest of the reform for good, simply repealing the provisions that had previously been suspended (

An Act to amend the Civil Code and other legislative provisions relating to land registration , S.Q. 2000, c. 42). The record of the legislative debate speaks volumes in this regard: [ translation] Mr. Charbonneau (Pierre): The conclusions of the Auger report were along the following lines: to proceed as quickly as possible with computerizing the register on the basis of the law that has actually applied since 1995, that is, the old way of doing things , if you will, and to leave for another day the feasibility or opportunity studies on what had been contemplated for Phase II. . . . . . .

And the bill is intended to reflect that situation . [Emphasis added.] (Quebec, National Assembly, Journal des débats de la Commission permanente des institutions , vol. 36, No. 82, 1st Sess., 36th Leg.,

June 2, 2000, at p. 52) [ 39 ] In sum, although the legislature aspired, in 1991, to give the publication of rights a probative value that would create rights by means of, among others, arts. 2944 para. 2 and 2962 C.C.Q. , it did not carry the reform through to completion. In fact, it abandoned the reform in 2000 (Gidrol-Mistral, at pp. 307 and 314). In Professor Gidrol-Mistral’s words, [ translation] “the abandonment of that reform . . . confirmed the traditional purely declarative role of publication” (p. 338) and put an end to the “dream of the publication of rights” (p. 340).

In short, as regards the role of the publication of rights, despite initial intentions to do otherwise, the current version of the Code essentially restates the law as it stood under the C.C.L.C. (p. 315; Brochu, “Critique”, at pp. 778 and 783). This background must be borne in mind in interpreting and applying the provisions of the Code on the basis of which the appellants assert that the respondent cannot set up against them unpublished rights resulting from her 10-year prescription. C.

Interplay of Acquisitive Prescription and Publication of Rights [ 40 ] It can be seen from the foregoing analysis that, on the one hand, acquisitive prescription remains a recognized means of acquiring immovable real rights in Quebec civil law and that, on the other hand, the publication of rights system provided for in the Code retains the limited role it had under the C.C.L.C. In my opinion, the effect of these distinct roles is that rights validly acquired by prescription apply regardless of the rights registered in the land register.

(1) Prescription May Be Set Up Against a Third Party in the Absence of Publication [ 41 ] In the context of the C.C.L.C. , the provisions of which resembled those of the Code , it was settled law that [ translation] “[t]o be set up against third parties, acquisition by prescription [did] not have to be registered” (Martineau, at p. 234; Deschesnes v. Boucher , [1961] B.R. 771, at p. 776 ; Noiseux v. Savio (1982), 27 R.P.R. 179 (C.A.) ).

Moreover, in his treatise on prescription, written when the C.C.L.C. was still in force, Professor Martineau contemplated a situation identical to the one in the instant case: [ translation] The owner against whom prescription has become effective then sells [his or her] immovable to a third party, who brings a petitory action against the possessor.

The possessor can set prescription up against the plaintiff, and the plaintiff cannot object that when he or she bought the immovable, the seller — not the defendant — was registered as its owner at the registry office. [Footnote omitted; pp. 234-35.] [ 42 ] Some argue that this conclusion still holds true under the Code . For example, Pierre Pratte states: [ translation] The new neighbour cannot claim that the prescription that became effective in the time of his or her predecessor cannot be set up against him or her, or that the possessor had to act before the sale by obtaining and publishing a judgment.

The possessor can accordingly assert the acquired prescription against the new neighbour. (P. Pratte, “La demande judiciaire relative à la prescription acquisitive d’un immeuble” (2014), 73 R. du B. 509, at p. 563) Professor Gidrol-Mistral agrees with this point of view. In her opinion, [ translation] “ the only logical solution is the one adopted by the majority [of the Court of Appeal]: acquisitive prescription became effective, and it applies to subsequent acquirers of the property in question” (p. 335).

Similarly, Professor Vincelette writes that after 10 years, [ translation] “possession is crowned with an irrebuttable presumption of ownership” (D. Vincelette, En possession du Code civil du Québec (2004), at para. 516 (emphasis added)). [ 43 ] Others, however, are of the view that the C.C.Q. changed the rules and that acquisitive prescription can no longer negate rights registered in the land register by third parties.

For example, Professor Lafond states that [ translation] “[a]n unpublished right of ownership that a person claims to have by virtue of 10 years of possession can be of no value in opposition to a title of ownership duly registered by a third party who holds it from the same predecessor in title” (Lafond, at para. 2569; see also L. Laflamme, M. Galarneau and P. Duchaine, L’examen des titres immobiliers (4th ed. 2014), at p. 113). [ 44 ] With respect, in light of the unfinished reform discussed above, I find that the first of these positions must prevail.

The situation might have been different had the legislature followed through on the changes contemplated in 1991.

However, its decision to abandon most of them confirms that under the current Code , for rights acquired by prescription to be set up against third parties, there is no greater requirement that they be published than was the case under the C.C.L.C. [ 45 ] The appellants’ arguments in support of the contrary view are not persuasive. [ 46 ] First of all, the appellants argue on the basis of arts. 2938 and 2941 C.C.Q. that, without publication, the respondent’s possession cannot be set up against them and should not permit her to acquire ownership of the parking space at issue.

It is true that the C.C.Q. provides that any acquisition, creation or recognition of an immovable real right requires publication (art. 2938) and that, unless they are published, the rights involved in such legal transactions cannot be set up against third parties (art. 2941). [ 47 ] However, as is stated in the Commentaires du ministre , arts. 2938 and 2941 C.C.Q. simply represent a continuation of the law as it stood under the C.C.L.C.

Article 2938 C.C.Q. [ translation] “substantially restates the former law in a simplified form and in a general rule”, while art. 2941 C.C.Q. “ restates, in part, articles 2082 and 2083 C.C.L.C. The rule does not break new ground” (Ministère de la Justice, Commentaires du ministre de la Justice , t. II, Le Code civil du Québec — Un mouvement de société (1993), at pp. 1845 and 1848).

In short, there is no basis for regarding this as a substantial change to the applicable rules. [ 48 ] Next, despite what the appellants say, arts. 2943 and 2944 C.C.Q. , two articles on the publication of rights that are new law, and on which the appellants place great emphasis, do not support their argument that rights acquired by prescription cannot be set up against third parties unless they are published. [ 49 ] It is true that the first paragraph of art. 2943 C.C.Q. creates a presumption of knowledge with regard to rights published in the registers:

2943. A right registered in a register in regard to property is presumed known to any person acquiring or publishing a right in the same property. However, as Savard J.A. mentioned, that

article at most supports a finding of bad faith on the respondent’s part. The Quebec Court of Appeal recently confirmed that [ translation] “[b]oth the Civil Code of Lower Canada and the new Civil Code of Québec allow a possessor in bad faith to acquire an immovable by prescription” ( Dupuy v. Gauthier , 2013 QCCA 774 , [2013] R.J.Q. 662, at para. 31 ). Under the C.C.L.C. , bad faith in this context had the effect of extending the prescription period to 30 years, whereas a possessor in good faith who had a translatory title could prescribe in just 10 years (art. 2206 C.C.L.C. ).

In the C.C.Q. , the legislature abolished this distinction, providing for a single prescription period of 10 years for all immovables, and not requiring good faith as a condition for prescription. Under the current Code , therefore, bad faith is no longer a relevant consideration for acquisitive prescription ( Dupuy , at paras. 50-52 ).

Article 2943 C.C.Q. is thus of no assistance to the appellants. [ 50 ] As for art. 2944 C.C.Q. , it creates a presumption of the existence of rights registered in the registers: 2944. Registration of a right in the register of personal and movable real rights or the land register entails, as against all persons, a simple presumption of the existence of that right. However, since this is a simple presumption, it may be rebutted by proof to the contrary (art. 2847 C.C.Q. ).

It must yield where, for example, there is proof that the right does not exist, particularly where the evidence establishes that the conditions for acquisitive prescription have been met (Gidrol-Mistral, at p. 338; F. Brochu, “Nouvelle posologie pour la prescription acquisitive immobilière” (2003), 105 R. du N. 735, at p. 750). In other words, this presumption in no way supports the appellants’ position. [ 51 ] Finally, art. 2946 C.C.Q. is of no assistance to the appellants.

It provides that “[w]here two acquirers of an immovable hold their title from the same predecessor in title , the right is acquired by the acquirer who first publishes his right.” But it cannot apply in the case at bar, as the appellants hold their title from two specific predecessors, the sellers from whom they purchased the property, whereas the respondent holds her title from no predecessor, having acquired it by prescription. [ 52 ] Contrary to the appellants’ position, the solution adopted by the majority of the Court of Appeal, with which I agree, reaffirms the place of acquisitive prescription in Quebec civil law and recognizes the limited role of the publication of rights by not giving the land register the higher probative value that the appellants would like to confer on it (Gidrol-Mistral, at pp. 318 and 324).

From this perspective, this solution is the one that is most consistent with the general scheme of the Code and with the relevant provisions on prescription, as well as on the publication of rights and on sale. [ 53 ] Consistency is a well-established principle of statutory

interpretation, one that the Quebec legislature has expressly recognized: 41.1. The provisions of

an Act are construed by one another, ascribing to each provision the meaning which results from the whole Act and which gives effect to the provision. (

Interpretation Act , CQLR, c. I-16) Consistency is even more crucial in the

interpretation of a code, which [ translation] “is generally defined as a ‘coherent corpus (or at least one that strives to be coherent) of texts encompassing, and arranged according to a systematic plan, all the rules relative’ to the civil law” (J. Pineau, “Le nouveau Code civil et les intentions du législateur”, in B. Moore, ed., Mélanges Jean Pineau (2003), 3, at p. 6). In concrete terms, this means [ translation] “that each portion of the Code has been drafted in a manner consistent with the others” (M. Tancelin, “L’acte unilatéral en droit des obligations ou l’unilatéralisation du contrat”, in N.

Kasirer, ed., La Solitude en droit privé (2002), 213, at pp. 216-17). When there is friction between different parts of a code, it is therefore necessary to identify the solution that best accords with “the other provisions, its general structure and basic legal principles” (P.-A. Côté, with the collaboration of S. Beaulac and M. Devinat, The

Interpretation of Legislation in Canada (4th ed. 2011), at p. 328). [ 54 ] The solution I am adopting in this case is, first of all, consistent with the relevant articles on prescription. Thus, art. 2885 C.C.Q. provides that “renunciation of acquired prescription with respect to immovable real rights shall be published”. But if acquired prescription could not jeopardize a right that is registered in the land register, as suggested by the appellants and the dissenting judge in the Court of Appeal, there would be no need to publish such a renunciation to enable third parties to take notice of it. To accept the conclusion they propose would therefore strip this

article of any useful purpose. [ 55 ] This solution is just as consistent with art. 2957 C.C.Q. , which provides that “[p]ublication does not interrupt prescription”. It would indeed make no sense to conclude that the publication of rights cannot interrupt prescription while the period is still running, but that it can negate the effects of prescription that has already been acquired. Moreover, Professor Lamontagne confirms that this

article means that [ translation] “an adverse possessor will eventually be able to prescribe even if an opposing right is published, provided that he or she proves that prescription has been acquired” (Lamontagne, Biens et propriété , at p. 91). [ 56 ] This solution is also consistent with the repeal of art. 2962 C.C.Q. , which I mentioned above, and the effect of which was that third parties could no longer rely entirely on entries in the land register.

As Professor Brochu mentions, [ translation] “ the failure, in terms of legal effects, of the reform of the land registration system meant that acquisitive prescription retained its probative value” (Brochu, “Nouvelle posologie”, at p. 748). In contrast, the appellants’ position would resurrect this

article and extend its application to any immovable, whether immatriculated or not, thereby conferring a greater probative value on it than the legislature initially intended to give it.

In this respect, to quote Professor Gidrol-Mistral, [ translation] “Jacques J. [who adopted that position] does not seem to have fully understood the abolition of the legal arsenal that was supposed to confer a greater probative value on the publication of rights” (p. 338). [ 57 ] In response to this, the appellants state, as did the dissenting judge in the Court of Appeal, that art. 2962 C.C.Q. was repealed for purely technical reasons related to the modification of the concept of immatriculation and that, at any rate, the theory of apparent rights, which has always existed in Quebec law, would lead to the same outcome.

[ 58 ] This argument must fail. The repeal of art. 2962 C.C.Q. was intended to be more than a strictly technical one, since it removed from the Code the absolute probative value that would otherwise have been conferred on the land register and which is in fact what the appellants are seeking.

The legislative debate at the time of the repeal leaves little doubt as regards the intention of the legislature, which considered that art. 2962 C.C.Q. , far from simply recognizing an already applicable doctrine, [ translation] “ establishe[d] , in favour of third parties in good faith, an irrebuttable presumption of the validity of registered rights” ( Journal des débats de la Commission permanente des institutions , at p. 69 (emphasis added)). Like most of the amendments that were made at that time, the repeal of this

article was a logical consequence of the decision to abandon the reform of the publication of rights system. [ 59 ] As for apparent rights, it is important to remember that this theory was originally developed by the French courts to protect third parties in their dealings with the apparent heir of a deceased person (J. Carbonnier, Droit civil (2004), vol. I, at p. 317). It was recognized by the Quebec legislature, which applied it to certain specific situations in order to protect certain appearances of right (see, among others, arts. 331, 627, 1559, 1643, 2163 and 3075 C.C.Q. ).

But there is nothing to suggest that the legislature intended this theory to apply more generally in situations other than the ones in which the legislature decided to specifically recognize it. Moreover, no Quebec court has ever applied it in relation to acquisitive prescription. If, as the appellants submit and Jacques J. maintained, art. 2962 C.C.Q. merely codified a theory that had already been recognized, then it is difficult to understand why the Minister of Justice described this

article in 1991 as [ translation] “new law” that “[ was] consistent with the principles of the new system” ( Commentaires du ministre , at p. 1862).

Finally, if the legislature were simply recognizing a theory that had already been adopted by the courts, it would certainly not have taken pains to limit the theory’s application to immatriculated immovables — with the exhaustive search and the carry-over of rights immatriculation entailed at the time when the C.C.Q. was enacted. [ 60 ] In any event, even if the theory of apparent rights did apply in this case, it would logically have to protect all legitimate appearances of right, including those stemming from the respondent’s possession.

This concept and this principle are in fact closely related: [ translation] “Possession establishes an appearance of right in the eyes of third parties, so much so that the fact actually produces the right, as in the case of apparent mandate” (Lamontagne, Biens et propriété , at p. 470).

There is no reason why appearances of right created artificially by the land register should prevail over the tangible appearances of right that result from effective possession. [ 61 ] Moreover, the solution I am adopting is just as consistent with the provisions of Book Five of the Code on sale, and in particular with art. 1724 para. 2: 1724. The seller warrants the buyer against any encroachment on his part unless he has declared it at the time of the sale. The seller also warrants against any encroachment commenced with his knowledge by a third person before the sale. [ 62 ] This

article preserves the rights of all parties. In this respect, contrary to the erroneous statement of the dissenting judge in the Court of Appeal (para. 122), the appellants are not without recourse here. It is true that the acquisitive prescription the respondent has set up against them denies them a portion of the right of ownership that the act of sale purported to transfer to them.

Nevertheless, it is possible for them to claim the corresponding loss from their predecessors in title if they can prove that the latter were aware of the respondent’s encroachment before the sale and failed to disclose it to them (D.-C. Lamontagne, Droit de la vente (3rd ed. 2005), at para. 185; J. Deslauriers, Vente, louage, contrat d’entreprise ou de service (2nd ed. 2013), at para. 378; see also Medeiros v. St-Louis , [2002] R.D.I. 352 (Que. Sup. Ct.), at paras. 83-92 , decided under the equivalent rules of the C.C.L.C. , in particular art. 1508).

This personal action is of course not a perfect substitute for the desired right of ownership, and whether the appellants succeed would depend on their ability to prove the essential elements of their claim.

However, it is the legislature’s response to situations in which, as in the instant case, a third party’s encroachment prevails over the right the buyer thought he or she held. [ 63 ] In closing, given that the respondent’s effective possession can be set up against the appellants despite the fact that their right is registered in the land register, I cannot agree with the appellants’ argument ― this one, too, adopted by the dissenting judge in the Court of Appeal ― that the respondent had only to register her judicial application in advance in order to preserve her rights should the prescribed lot eventually be transferred.

Advance registration is provided for in arts. 2966 and 2968 C.C.Q. : 2966. Any judicial application concerning a real right which shall or may be published in the land register may, by means of a notice, be the subject of an advance registration. . . . 2968.

Rights which are the subject of a judgment or transaction terminating an action are deemed published from the time of their advance registration, provided they are published within 30 days after the judgment becomes final or the transaction takes place. . . . [ 64 ] By means of presumptions of publication and knowledge, advance registration is intended to safeguard rights that would be jeopardized if they remained unknown ( Commentaires du ministre , at p. 1865; F.

Brochu, “Le mécanisme de fonctionnement de la publicité des droits en vertu du nouveau Code civil du Québec , et le rôle des principaux intervenants” (1993), 34 C. de D. 949, at p. 1022). However, advance registration is of no assistance in the case of acquisitive prescription. The effective possession on which this form of prescription is based is already public and, as I mentioned above, can already be set up against third parties.

Since acquisitive prescription has its effects regardless of any rights registered in the land register, there is no need for a possessor to register a judicial application in advance in order to protect his or her rights. [ 65 ] In sum, what the appellants would like is that the publication of their right guarantee its validity. I find that the land register has no such probative value and is no guarantee of the titles registered in it. Ultimately, as far as acquisitive prescription in Quebec civil law is concerned, the role of land registration under the current Code is as it was under the C.C.L.C. and no more.

In light of this limited role, the fact that rights acquired by prescription have not been published does not on its own preclude their being set up against third parties.

(2) Nature of the Judgment Under Art. 2918 C.C.Q.

[66] In addition to their arguments to the effect that the acquisitive prescription claimed by the respondent cannot be setup against them, the appellants submit that the respondent quite simply has no right to assert against them, because she had neglected toobtain a judgment and publish it before they registered their right in the land register. They maintain that her failure to do so hadrendered her right precarious on the basis that obtaining such a judgment is essential to the acquisition of immovable real rights byprescription.

This argument, which is central to the appellants’ position, is based on the current wording of art. 2918 C.C.Q.: 2918. A person who has for 10 years possessed an immovable as its owner may acquire the ownership of it only upon ajudicial application. [67] In their opinion, art. 805 C.C.P. echoes this by also providing that a judgment must be obtained in order to acquire aright of ownership in an immovable by prescription: 805.

A person who, in accordance with the rules of the Book on Prescription of the Civil Code, has possessed animmovable as owner may acquire the ownership of that immovable by applying to the court of the district in which it is situated. [68] Under the C.C.L.C., possessors were in practice required to obtain a judgment in order to confirm their acquisitiveprescription. The need to take legal action to have acquisitive prescription confirmed is thus not entirely new in the C.C.Q.

As theappellants acknowledge, such a judgment obtained under the C.C.L.C. was merely declarative in nature, however, given that the rightitself was acquired upon the expiry of the prescription period (arts. 2183 para. 2 and 2183a C.C.L.C.; see also Code of Civil Procedure,S.Q. 1965, c. 80, art. 806;

An Act respecting the implementation of the reform of the Civil Code, s. 143 para. 2; Dupont v. Saint-Arnaud, (QC CA), [1992] R.D.J. 88 (Que. C.A.), at p. 91; Martineau, at p. 233; Brochu, “Nouvelle posologie”, at pp. 753-54). [69] The commentators are divided over whether this declarative nature survived the enactment of art. 2918 C.C.Q. Someauthors argue that it has (Lamontagne, Biens et propriété, at p. 490; P.

Pratte, “Chronique ― Le jugement en prescription acquisitiveimmobilière: déclaratif ou attributif?”, Repères, October 2012 (available online in La référence); and “La demande judiciaire”, atpp. 550-51; Vincelette, at para. 515; Gidrol-Mistral, at pp. 331-33). But others maintain that art. 2918 C.C.Q. makes such a judgment anessential condition for the very acquisition of the right sought by the possessor, and that the judgment therefore has the effect of grantingthis right (S. Normand, Introduction au droit des biens (2nd ed. 2014), at p. 354; C.

Gervais, La prescription (2009), at p. 193; Lafond, atpara. 2566; Brochu, “Nouvelle posologie”, at p. 754). The depth of these authors’ analyses is variable; some are relatively brief, whileothers are more detailed. However, none of these commentators suggest that a judgment can be right-granting if it confirms anencroachment, but declarative if it cures a defect of title. Indeed, Pratte raises this possibility, but concludes that [translation] “[i]f acertain uniformity is desired, a declaration by a court should be preferred to the granting of a right by a court” (“La demande judiciaire”,at p. 551).

As well, there is no indication in the Code that the nature of the judgment might vary depending on the circumstances. [70] The appellants embrace the second school of thought, arguing that the judgment under art. 2918 C.C.Q. always hasthe effect of granting a right. They assert that the enactment of that

article in 1991 and the amendment of art. 805 C.C.P. in 1992 thusradically changed the prior law, such that the respondent could not claim to have a right to the parking space before obtaining a judgmentto that effect. The dissenting judge in the Court of Appeal agreed, but the majority found that it was not necessary to deal with this issuein order to resolve the appeal. [71] I agree with the majority of the Court of Appeal that it is not necessary to decide this issue in the way sought by theappellants in order to dispose of this appeal.

Even if the judgment under art. 2918 C.C.Q. were right-granting in nature, which I do notadmit, the respondent could be granted the right of ownership she wishes to obtain despite the fact that the appellants’ title has beenpublished, because her possession meets the criteria under the Code and because, as I explained above, acquisitive prescription operatesregardless of rights registered in the land register.

In other words, the nature of the judgment under art. 2918 C.C.Q. is not determinativeof the issue before us. [72] This being said, it is my opinion that, in any event, the sole purpose of the judgment under art. 2918 C.C.Q. is torecognize pre-existing rights resulting from effective possession and the lapse of time and that, when all is said and done, the legislaturemerely intended to restore the situation that existed under the C.C.L.C. in this regard. [73] In concluding that what the judgment in question does is to grant a right, the appellants rely, as did the dissentingjudge in the Court of Appeal, on a literal

interpretation of art. 2918 C.C.Q. that is based on the supposed clarity of its wording. However,care should be taken before adopting such a reading of an

article that was enacted and then amended in the context of an abandonedreform; otherwise, the

interpretation of the provision could well be incompatible with its context, its history and its evolution. As thisCourt has mentioned in the past, “[w]ords that appear clear and unambiguous may in fact prove to be ambiguous once placed in theircontext” (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 10). Moreover, the modern approach tostatutory

interpretation requires consideration of the legislature’s intention, which means taking into account not only the words of theprovisions in question, but also their context, including the legislative reforms and the debate that led up to them (Rizzo & Rizzo ShoesLtd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21). In Professor Côté’s words, “[the] authorities and case law haveunequivocally rejected the idea that a statute’s context can be ignored, and its

interpretation founded on no more than the wording of thelegislation” (p. 310 (citations omitted)). That approach does not lead to a reading down of art. 2918 C.C.Q. but, rather, makes it possibleto identify the article’s real effect. [74] In light of the foregoing, it is obvious that art. 2918 C.C.Q. is not as clear as the appellants and the dissenting judgein the Court of Appeal suggest. The sharp differences between commentators on the

interpretation of this

article show how ambiguous itis. Furthermore, some of them expressly criticize its clumsy drafting in the context of this unfinished reform (Gidrol-Mistral, at pp. 317and 340; F. Brochu, “Prescription acquisitive et publicité des droits” (2005), 107 R. du N. 203, at p. 210; and “Revue de jurisprudence2012 en prescription acquisitive et en publicité des droits” (2013), 115 R. du N. 205, at p. 211). [75] It is true that when the Code was enacted in 1991, the legislature seems to have intended that acquiring ownership ofan immovable by prescription should be contingent upon obtaining a judgment.

At the time, the Minister of Justice stated, in a way thatwas in itself quite equivocal, that such an acquisition would from then on have to [translation] “be recognized by a court, as the right is

not acquired by possession alone” (Commentaires du ministre, at p. 1831 (emphasis added)). However, as the majority of the Court ofAppeal rightly noted, these comments must be read with caution, as they were written in respect of the initial version of art. 2918 C.C.Q.,which read as follows: 2918. A person who has for ten years possessed, as owner, an immovable that is not registered in the land register mayacquire the ownership of it only upon a judicial demand.

The possessor may, under the same conditions, exercise the same right in respect of a registered immovable where theowner of the immovable is not identified in the land register; the same rule applies where the owner is dead or an absentee at thebeginning of the ten-year period or where the land register indicates that the immovable has become a thing without an owner. [76] This first version was very different from the current one, which I reproduce again for ease of comparison: 2918.

A person who has for 10 years possessed an immovable as its owner may acquire the ownership of it only upon ajudicial application. [77] As can be seen, the initial version of art. 2918 C.C.Q. was closely linked to the reform of the publication of rightsbeing contemplated by the legislature when it enacted the original version of the Code. The effects of the

article varied depending onwhether the immovable in que

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