2020 NBCA 28, 2020 NBCA 28

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 125-18-CA JAMES ALLISON WYLIE APPELLANT JAMES ALLISON WYLIE APPELANT - and - - et - GERALD WARD McCARRON and BEVERLYMAE WOOD RESPONDENTS GERALD WARD McCARRON et BEVERLYMAE WOOD INTIMÉS Wylie v. McCarron et al., 2020 NBCA 28 Wylie c.

McCarron et autre, 2020 NBCA 28 CORAM: The Honourable Justice Drapeau The Honourable Justice French The Honourable Justice LeBlond CORAM : l’honorable juge Drapeau l’honorable juge French l’honorable juge LeBlond Appeal from a decision of the Court of Queen’sBench November 6, 2018 Appel d’une décision de la Cour du Banc de la Reine: le 6 novembre 2018 History of Case: Historique de la cause : Decision under appeal: 2018 NBQB 206 Décision frappée d’appel : 2018 NBQB 206 , 2018 NBBR 206 Preliminary or incidental proceedings: None Procédures préliminaires ou accessoires : aucune Appeal heard: September 12, 2019 Appel entendu : le 12 septembre 2019 Judgment rendered: April 30, 2020 Jugement rendu : le 30 avril 2020 Reasons for judgment: The Honourable Justice French Motifs de jugement : l’honorable juge French

Concurred in by: The Honourable Justice Drapeau The Honourable Justice LeBlond Souscrivent aux motifs : l’honorable juge Drapeau l’honorable juge LeBlond Counsel at hearing: For the appellant: Wynn W. Meldrum For the respondent: Edward J. McGrath Avocats à l’audience : Pour l’appelant : Wynn W. Meldrum Pour les intimés : Edward J. McGrath THE COURT The appeal is dismissed with costs of $5,000. LA COUR L’appel est rejeté avec dépens de 5 000 $. The judgment of the Court was delivered by FRENCH, J.A. I.

Introduction [ 1 ] In the decision under appeal, a judge determined Gerald McCarron and Beverly Wood have a right-of-way over land that is located between Vacation Lane and their waterfront cottage. Without a right-of-way, they are landlocked. They acquired title to the property from Ralph and Elizabeth Logan in 2004 . Mr. Logan’s mother, Clarissa J. Logan, acquired it by deed in 1933, when the waterfront lot was carved out of a large tract of farmland on Baie Verte.

Vacation Lane runs from a public highway through the old farm to the cottages on the shore. [ 2 ] Following the purchase in 1933, Clarissa Logan accessed her property from Vacation Lane by crossing over the rear of the adjacent waterfront property, which is now owned by James Wylie, the appellant. Ms. Logan’s access through that property was in the same location for almost 40 years. Sometime after 1971, the route of her access was moved north, away from the shore. After 1986, it moved further north to a shared driveway that passes between Mr. Wylie’s cottage and a cottage owned by his sister, Margaret Gillespie.

This driveway is identified as “Existing Driveway” on the Survey Plan prepared by Warren Daigle, “Showing Boundaries Between Landowners: Gerald Ward McCarron & Beverly Mae Wood, James Allison Wylie and Margaret Gillespie,” dated May 23, 2017 (Exhibit P-5), which is attached as Appendix A. Ms. Logan’s initial access route crossed north of (behind) the location of Mr. Wylie’s cottage in 1935, which is identified as “Building 1935”.

The Daigle Survey also identifies the current location of (1) the Logan/McCarron/Wood cottage as “Civic 21”, (2) the Wylie cottage as “Civic 23”, and (3) the Gillespie cottage as “Civic 19”. [ 3 ] In September 2004, during the first stay at their recently acquired cottage, Mr. McCarron’s and Ms. Wood’s right to use the driveway was challenged. Over time, matters deteriorated and in August 2006, Mr. McCarron and Ms. Wood commenced an action against Margaret Gillespie claiming their right-of-way had been wrongfully obstructed by placing vehicles in front of the driveway and locking the gate at its entrance.

A second action was commenced against James Wylie in 2011. It appears the reason for proceeding initially against Ms. Gillespie was the belief the driveway passed over her property. At both trials, there was conflicting evidence over whether the driveway crosses the property of Mr. Wylie or Ms. Gillespie, or both. Indeed, as will become apparent, this right-of-way dispute is dominated by issues that flow from conflicting and unreconcilable evidence regarding the boundaries of all three properties. [ 4 ] The action against Margaret Gillespie was tried in 2015 over four days ( McCarron v.

Gillespie , 2015 NBQB 226 , [2015] N.B.J. No. 332 (QL) ). The trial judge accepted Ms. Gillespie’s evidence that any right-of-way to the former Logan property was on Mr. Wylie’s property, not hers. He dismissed Mr. McCarron and Ms. Wood’s claim to a right-of-way over Ms. Gillespie’s property and issued an order restraining them from crossing her property to access theirs. It seems each party had a different

interpretation of what the judge’s order restrained. Ms. Gillespie understood it to mean Mr. McCarron and Ms. Wood were barred from using the driveway that had been used to the time of trial and Mr. McCarron and Ms. Wood understood they could use the driveway (which they appear to have presumed from the decision was on Mr. Wylie’s property), so long as they did not cross over onto Ms. Gillespie’s property.

[ 5 ] The action against Mr. Wylie was tried in 2018. The trial judge determined Mr. McCarron and Ms. Wood have a right-of-way across Mr. Wylie’s property, shown on the Daigle Survey as the Existing Driveway. Mr. Wylie appeals this decision. One of his grounds of appeal asserts that by declaring a right-of-way over the Existing Driveway, the judge created a right of access, over his property, in the same location that he restrained Mr. McCarron and Ms. Wood from using in McCarron v. Gillespie , on the basis that it crossed Ms.

Gillespie’s property. [ 6 ] The evidence, issues and submissions at both trials were largely the same; however, there are important differences. Significantly, the Daigle Survey was not evidence at the first trial (it was not prepared until 2017) and the precise location of the driveway was not settled in McCarron v. Gillespie . [ 7 ] Mr. Wylie requested the trial judge recuse himself from the trial against him because of determinations the judge made in his decision dismissing the action against Ms. Gillespie. The judge’s dismissal of the recusal motion forms the basis of Mr.

Wylie’s first ground of appeal. [ 8 ] I would dismiss Mr. Wylie’s appeal for the reasons that follow. While the standard of review on questions of law is correctness, Mr. Wylie does not allege an error of law. He claims the judge’s misapprehension of the evidence resulted in a number of palpable and overriding errors. I do not agree. II. Background [ 9 ] James Wylie’s response to the claimed right-of-way raised issues that go beyond those typical in a dispute over the existence, use or nature of a right-of-way. Mr.

Wylie challenged the title to, and the boundaries of, the dominant tenement (the McCarron/Wood property) and the identity of the servient tenement ( the Wylie property or the Gillespie property ) and its boundaries. A

summary of the parties’ key positions should assist in recognizing the relevance of the broad and convoluted background that follows, which admittedly presents as much like the background to a disputed quieting of title action as it does to a right-of-way dispute: Mr. McCarron and Ms. Wood rely on an express grant of right-of-way, over the rear of Mr. Wylie’s property, which they claim has been relocated to the Existing Driveway, by agreement. Mr.

Wylie maintains the grant, initially made in the 1933 deed to Clarissa Logan, was not effective to encumber his property since the 1933 deed to his property was not expressly made subject to any such right. Both deeds were executed by the same grantor, on the same day, and the trial judge concluded it had been a mistake for the original deed to Mr. Wylie’s property not to have been made subject to the grant of right-of-way. Mr. McCarron and Ms.

Wood claim that, even if the grant of right-of-way was ineffective, a right-of-way by prescription exists since access has been consistently exercised during the more than 70 years that passed before they became owners in 2004. Mr. Wylie maintains prescriptive rights were not acquired by the Logans because they received permission to cross the property. Mr. Wylie further submits that, even if a right-of-way once existed, whether by grant or otherwise at law, any such right has been lost because (1) the way has moved and any original right has been released; (2) the Existing Driveway crosses Ms.

Gillespie’s property, not his; and (3) the McCarron/Wood cottage is not on their land, and, therefore, they do not possess a dominant tenement that is accommodated by the way. Mr. Wylie says their cottage has been moved back from the shore (due to erosion), off their property, and all that remains of the lot conveyed in 1933 is a narrow strip of land along the shore. Mr. McCarron and Ms. Wood maintain that, regardless of anything else, title to their property, including the right-of-way, was confirmed and made indefeasible when the Logans registered it under the Land Titles Act , S.N.B. 1981, c.

L-1.1 , prior to their purchase in 2004. Mr. Wylie submits the Logans abandoned plans to quiet their title and instead “fabricated” a description of their property and improperly, if not fraudulently, registered it (and the invalid right-of-way) under the Land Titles system. A. The 1933 deeds [ 10 ] The root of title to the McCarron/Wood and the Wylie properties is found in two deeds executed the same day, on August 8, 1933, by John MacLeod Rayworth and Charlotte McGregor Rayworth, the owners of a large tract of farmland which included fields that ran from the “main road” to the shore of Baie Verte: 1 .

The deed to Marjorie Beatrice Wry ( Mr. Wylie’s lot ) describes the parcel conveyed as: “[…] BEGINNING at a stake […] thence in a north-westerly direction one hundred twenty-five (125) feet more or less to an iron stake; thence at right angles in a north-easterly direction one hundred (100) feet more or less to an iron stake; thence at right angle in a south-easterly direction one hundred and twenty-five (125) feet more or less to an iron stake on the shore of Bay Verte; thence in a south-westerly direction following the aforesaid shore-line back to the place of beginning.

Together with the use of a right-of-way from the main road to the above property by way of a lane running through the above farm from the main road to the shore .” The lane running through the farm to the shore is now called Vacation Lane. The lot is bounded on the south by Baie Verte, on the west by Vacation

Lane, on the north by the lands retained by the Rayworths (later owned by Ms. Gillespie) and on the east by the lot conveyed to Clarissa Jean Logan. 2 . The deed to Clarissa Jean Logan ( Mr. McCarron’s and Ms. Wood’s lot ) describes the parcel conveyed as: “[…] BEGINNING at a stake […] thence in a north-westerly direction and following the eastern boundary line of land owned by Mrs.

Marjorie Beatrice Wry, one hundred (100) feet more or less to an iron stake; thence at right angles in a north-easterly direction two hundred (200) feet more or less to an iron stake; thence at right angles in a south-easterly direction one hundred (100) feet more or less to an iron stake on the shore of Bay Verte; thence in a south- westerly direction following the aforesaid shore-line back to the place of beginning.

TOGETHER WITH the use of a right-of-way from the Main Road to the above property by way of a lane from the main road to the shore of Bay Verte and also over the rear of the above mentioned land owned by Mrs. Marjorie Beatrice Wry .” [Emphasis added.] This lot is bounded on the south by Baie Verte, on the west by the lot conveyed to Marjorie Wry and on the north by the lands retained by the Rayworths. [ 11 ] Marjorie B. Wry’s deed was not made subject to the grant of right-of-way contained in Clarissa Logan’s deed and, as noted, Mr.

Wylie maintained at trial the grant was not effective to create a right over his property. Had Ms. Logan’s deed been registered first, there would be no issue. However, Ms. Wry’s deed was registered in October 1938, while Ms. Logan’s deed was not registered until April 1963. The trial judge did not expressly address whether the grant was effective; however, he concluded there had been a mistake and the clear intention of the Rayworths was to grant a right-of-way over Ms. Wry’s lot. He wrote: […] both received their title from the same grantor by two deeds signed the same date: August 8, 1933.

Clearly, there was a mistake with respect to the provision of a right-of-way. There is no mention of the right-of-way on the civic # 23 deed [Ms. Wry]. Consequently, civic # 21 [Ms. Logan] would be landlocked. But the intention of the grantors in 1933 is also clear that a right-of-way was intended. [para. 34] B. The lay of the land: conflicting evidence regarding the boundaries of the original 1933 lots [ 12 ] Erosion along the shore of Baie Verte has been significant. Even before 1945, it caused cottages to be moved back from the shore, both east and west of Vacation Lane.

This loss of land and the resulting changes in the use of these properties, particularly after cottages and sheds were moved north, contributes to the difficulty of locating the boundaries of the parcels conveyed in 1933 and of establishing current boundaries. [ 13 ] The conflicting opinion evidence offered by the surveyors warrants explanation. Their opinions differed in two important respects. They disagreed on the starting point for Marjorie B. Wry’s lot; one has it about 25 feet further north than the other, and, as a result, the northern boundary is about 25 feet further north.

Also, they disagree on the direction of the northern boundary. As a consequence, one has the lot in the shape of a rectangle while the other has it as a parallelogram. Both variations flow from the different methods employed to locate the boundaries of the 1933 lots. [ 14 ] Mr. Daigle, the surveyor called by Mr. McCarron and Ms. Wood, explained that he used a 1935 aerial photo to determine the location of the top of the bank at that time.

He reasoned that the “iron stake on the shore of Bay Verte” (referenced in the descriptions of both the Wry and Logan deeds), would have been placed at the “top of the bank” of the shore. It would not make sense for the stake to have been placed in the sand of the beach or at the ordinary high-water mark. After identifying the notional location of the iron stake, the point of beginning to the metes and bounds description in Ms. Wry’s deed, he then followed the description to identify the lot’s boundaries. [ 15 ] The surveyor representing the Terrain Group Inc., who was called by Mr.

Wylie, agreed the stake would have been at the top of the bank and did not dispute the reasonableness of Mr. Daigle’s approach; however, he used orthophotos to locate the boundaries of the original lots, which he felt was a more accurate means of doing so. The Terrain Group did not prepare a survey or plan. It produced various sketches, including, a “Sketch Showing a Portion of Rayworth Beach […] Circa 2003”, dated April 2008. The sketch identifies both the Wylie cottage and McCarron/Wood cottage as being on Ms.

Gillespie’s property, north of the small strips of land along the shore that the Terrain Group says is all that remain of the original 1933 lots. The notes to the sketch indicate “It should only be used as a graphical representation and does not constitute a determination of legal boundaries […]” (Exhibit D-1, Tab 11). To be clear, Mr. Wylie’s position is that, regardless of anything else, including surveyor’s opinions on the use and occupation of the parties’ properties since 1933 or the representations of Ms. Gillespie, the dimensions of the lots conveyed to Marjorie B.

Wry and Clarissa Logan (100’ x 125’ and 100’ x 200’) are determinative of their boundaries today, and any land beyond those boundaries is owned by Ms. Gillespie. [ 16 ] The difference of opinions over the direction of the northern boundary results from each surveyor’s attempt to reconcile conflicting elements in the descriptions of the lots. Mr. Daigle has the northern boundary of Ms. Wry’s lot running at a right angle to Vacation Lane, while the Terrain Group has it at less than a 90-degree angle to Vacation Lane (closer to a 45-degree angle and more or less parallel to the shore). Mr.

Daigle explained the description calls for the northern boundary of Ms. Wry’s lot to be at a right angle to Vacation Lane and it is consistent with the fields then being cut and or used at right angles to Vacation Lane, as indicated on the 1935 aerial photo. However, this approach results in the eastern boundary, which runs south to the shore, being longer than the lot’s western boundary, despite the fact both are described as being 125 feet, more or less. [ 17 ] At the risk of oversimplification, the Terrain Group reasoned that it was preferable to respect the specific 125 x 100-foot measurements of Marjorie B.

Wry’s lot than the description of the boundaries as being at right angles. To achieve this, the Terrain Group has the northern boundary of her lot coming off Vacation Lane at less than 90 degrees to create a lot that is precisely 125 x 100 feet, and essentially a parallelogram. The

Terrain Group did the same for Clarissa Logan’s lot. [ 18 ] In short, Mr. Daigle locates Ms. Wry’s 1933 lot, including its northern boundary with Ms. Gillespie, about 25 feet further north than the Terrain Group and he has it in the shape of a rectangle while the Terrain Group has it as a parallelogram. The different results are indicated on the Daigle Survey. The dotted lines indicate where the Terrain Group would locate the northern boundary of Ms. Wry’s two lots (in 1963, Ms. Wry added a small 50-foot strip of land to the rear of her 1933 lot). Mr.

Daigle identifies what he believes to be the northern boundary of those lots with two lines of dashes, “- - - -”. Mr. Daigle shows the northerly boundary as being north of the “Old Road-Bed,” and running across the front (south) of Mr. Wylie’s cottage (in its current location) and shed. [ 19 ] While this explains the difference between the surveyors’ opinions on the location of the boundaries of Ms. Wry’s 1933 and 1963 lots (differences which also apply to Ms. Logan’s 1933 lot), there is another important difference in their evidence. Mr. Daigle extends Mr.

Wylie’s property further north than the lots conveyed to Ms. Wry; he extends it to the “property line as indicated by Margaret Gillespie.” This results in the Existing Driveway being on Mr. Wylie’s property, not Ms. Gillespie’s. The Terrain Group’s opinions were based on their identification of the boundaries of the original lots. [ 20 ] Before leaving the conflicting opinions in relation to the location of Mr. Wylie’s northern boundary, I would note the existence of a third, and different, hypothesis.

The evidence at trial included an unsigned plan prepared by Pettipas Surveys Ltd., dated February 24, 2004 and titled “Survey Plan to Accompany Quieting of Titles in Favour of: Ralph M. Logan and Elizabeth Joyce Logan” (the “Pettipas Plan”). It was drafted in contemplation of an application to quiet the Logan’s title, which did not proceed. Mr. Pettipas was not called as a witness and while a copy of his plan was entered into evidence on consent, its relevance at trial seemed to be primarily related to evidencing its use in McCarron v. Gillespie , where it was marked on (in handwriting) to show where Ms.

Gillespie identified the location of her boundary and to identify the two most recent access routes to the Logans’ cottage. Like the Daigle Survey, the Pettipas Plan locates the northwest corner of Mr. Wylie’s lot at the northern post of the chain gate at the entrance to the driveway. Stated more generally, it shows the gate as being on Mr. Wylie’s property. Other than showing the location of this gate, the Pettipas Plan does not identify the route or path of the driveway. However, handwritten notes marked on the plan indicate the driveway crosses Mr.

Wylie’s property, as it leaves Vacation Lane and passes through the gate, but it then crosses Ms. Gillespie’s property, as it moves east toward the Logan cottage. While vague and open to

interpretation, these notes were not challenged at trial. [ 21 ] The trial judge did not make any express determination regarding the surveyors’ opinions, except one cannot avoid the conclusion he accepted Mr. Daigle’s opinion that the Existing Driveway crossed Mr. Wylie’s property, between the gate and his eastern boundary. C. Access to and location of the cottages [ 22 ] Not surprisingly, the evidence was limited regarding the Logans’ access to their cottage during the 70 years before it was sold to Mr. McCarron and Ms. Wood. Aerial photos taken in 1935, 1945, 1953, 1963, 1971, 1982, 1996, 2001 and 2011 form an important part of the evidentiary record. Curtis Speight, of

Interpretation Resources Consulting Inc., provided opinion evidence respecting their use and

interpretation. They were also relied upon by Mr. Daigle and the Terrain Group. All agree this evidence was key to understanding changes to the location of the shore, cottages, sheds, access/driveways, etc. from 1935. [ 23 ] The 1935 aerial photograph shows both Marjorie B. Wry’s cottage and Clarissa Logan’s cottage. It indicates access from Vacation Lane to both cottages passed to the north of (behind) Ms. Wry’s cottage. The 1935 location of Ms. Wry’s cottage is identified on the Daigle Survey as “Building 1935.” The 1935 location of Ms.

Logan’s cottage is not shown on the survey; however, the aerial photo shows it was further back from the shore than Ms. Wry’s cottage. This access, being “over the rear of” Ms. Wry’s lot, is as described in the grant of right-of-way made only two years earlier. The aerial photos indicate Ms. Logan’s access remained in this original location until it moved north, sometime after the 1971 photo. [ 24 ] The 1945 aerial photo reveals significant erosion along the shore of Baie Verte and that, sometime before the photo was taken, Ms.

Wry moved her cottage back from the shore by approximately 70 feet, along with her shed. The location of the cottage in 1945 is identified on the Daigle Survey as “Building 1963” (although moved to this location before 1945, the reference to 1963 was utilized to identify the cottage’s location when, in 1963, Ms. Wry acquired a 50-foot parcel of land to the north). According to the Daigle Survey, by 1945, Ms. Wry had moved her cottage partially off her original lot, and her shed had moved off entirely. Based on the Terrain Group’s different opinion on Ms. Wry’s original lot, it opined that Ms.

Wry had moved her cottage entirely off her property, and both it and her shed were on the Rayworths’ land. Ms. Wry also moved her driveway in a northerly direction, away from the shore. [ 25 ] According to the 1945 aerial photo, Ms. Logan’s access to her cottage did not change, it remained as shown on the 1935 photo. Thus, after Ms. Wry moved her cottage north, Ms. Logan’ s access was then south (in front) of Ms. Wry’s cottage. [ 26 ] In 1951, the Rayworths conveyed to Harman and Hattie Nicholson 60 acres of farmland, including the remnant parcel of land north of the lots conveyed to Marjorie B.

Wry and Clarissa Logan, and south of the main road. The 1953 aerial photo shows no material change to Ms. Logan’s access to her cottage. [ 27 ] The 1963 aerial photo does not reveal any relevant changes to the location of the cottages or access. In late 1963, Harman and Hattie Nicholson sold Marjorie B. Wry an additional 50-foot “strip” of land. The deed states this land is to “provide for greater protection against the risk of loss of foreshore from incursion by the sea”. This conveyance gives rise to another potential issue in the mix of considerations relevant to the

identification of the northern boundary of the Wry/Wylie lot, and, as a consequence, the southern boundary of Margaret Gillespie’s. While this 1963 conveyance has been generally viewed as simply adding 50 feet to the back of the lot conveyed to Ms. Wry in 1933 (in other words, extending her property 175 feet back from the stake on the shore), a surveyor posed the question: “when the [Nicholsons] deeded Ms. Wry the 50-foot strip, did [they] think [they were] adding 50 feet behind the 1963 location of the cottage?” As noted, since at least 1945, Ms.

Wry’s cottage was at least partially off her lot (and, in the opinion of the Terrain Group, it was entirely beyond her northern boundary and on the Rayworths/Nicholsons property). Another reason to ask this question was that the 50-foot strip of land conveyed was being hayed at that time by the Nicholsons. The deed expressly reserved the right for the Nicholsons to continue to hay the lands – until Ms. Wry moved her cottage back 25 feet. Presumably, as this theory would posit, the 50-foot strip of land being hayed would have been north of Ms. Wry’s cottage and shed.

Although left unanswered, it seems reasonable to consider whether the Nicholsons intended to convey a 50-foot strip north of Ms. Wry’s cottage and shed or a 50-foot parcel from a boundary that was further south. [ 28 ] Four years later, in 1967, the Nicholsons sold the remnant parcel of farmland (north of the lots conveyed to Ms. Wry and Ms. Logan and south of the main road) to Doris Wylie, the mother of James Wylie and Margaret Gillespie. This parcel was much larger than the 1933 lots and was indicated as being about 1.5 acres.

However, as a further reflection of the seemingly pervasive lack of precision, there was evidence that the actual size of these lands is about 2.5 acres. There was no evidence of any surveys or plans in connection with this or any of the prior conveyances. [ 29 ] The 1971 aerial photo shows that Doris Wylie built a cottage at the south-western end of her property, behind Marjorie B. Wry’s cottage. Doris Wylie’s cottage is identified on the Daigle Survey as “Civic 19.” [ 30 ] In 1976, Doris Wylie bought Ms. Wry’s property and, since then, members of the Wylie family have owned both properties.

Doris Wylie would later transfer Ms. Wry’s cottage to James Wylie and her own cottage to Margaret Gillespie. As will be explained further, the evidence at trial was that once Doris Wylie owned both properties, the members of the Wylie family did not consider the boundary between them as being of any practical significance, including after they were transferred to Mr. Wylie and Ms. Gillespie. [ 31 ] The 1982 aerial photograph reveals that, since the last photo, Clarissa Logan moved her cottage back from the shore by about 80 feet. Not surprisingly, her access from Vacation Lane had also moved north.

It now passed to the north of Marjorie B. Wry’s cottage and south of the cottage Doris Wylie had built. The record does not indicate when Ms. Logan’s access began in this location, other than the handwritten notes on the Pettipas Plan, which indicate it was sometime between 1972 and 1976.

These dates were not challenged, and they are within the range established by the aerial photos. [ 32 ] Clarissa Logan’s cottage, following this move, is identified on the Daigle Survey as the “Old Foundation.” The survey identifies its current location as “Civic 21” (in about 2011, the cottage was moved 20 feet north, to its current location, after it was knocked off the old foundation by a storm). The Terrain Group opined that in either location, Ms. Logan’s cottage was no longer on the lot she received in 1933; it was on property deeded to Margaret Gillespie. If so, Ms. Logan’s cottage has been on Ms.

Gillespie’s property for between 44 and 48 years. [ 33 ] Mr. Daigle’s opinion is that the cottage and shed are on the McCarron/Wood property. His survey does not identify the boundaries of Clarissa Logan’s original 1933 lot; instead, as Mr. Daigle testified, the boundaries shown are based on the description of the parcel transferred to Mr. McCarron and Ms. Wood in 2004 and on the use and occupation of the property.

The Pettipas Plan, drafted when the Logans still owned the property in 2004, similarly represented the Logans’ property extending north, beyond their cottage and shed. [ 34 ] In 1982, James Wylie acquired Marjorie B. Wry’s cottage from his mother and in 1985, Margaret Gillespie acquired their mother’s cottage. [ 35 ] In 1993, Clarissa Logan conveyed her cottage to her son and daughter-in-law, Ralph M. and Elizabeth J. Logan. [ 36 ] The 1996 aerial photograph reveals Mr. Wylie had moved his cottage north by approximately 50 feet and the Logans had started using the shared driveway.

The record is not clear when either occurred, although it would appear the change in access likely followed the move of Mr. Wylie’s cottage, and the handwritten notes on the Pettipas Plan indicate the Logans’ access over the shared driveway began in 1986. [ 37 ] As noted earlier, while the Daigle Survey indicates the driveway is north of the boundary of the lots conveyed to Marjorie B. Wry in 1933 and 1963 (and described in the deed to Mr. Wylie from his mother), it also indicates the driveway is on Mr. Wylie’s property, based on the property line as indicated by Margaret Gillespie.

The Terrain Group’s opinion is that the driveway is on Ms. Gillespie’s property. Indeed, the Terrain Group states Mr. Wylie’s cottage and shed are on Ms. Gillespie’s land, as are the McCarron/Wood cottage and shed. The Pettipas Plan shows Mr. Wylie’s cottage and shed on his property; it locates the northern boundary of the 1933 and 1963 lots at the “chain gate” [ 38 ] Whether the driveway was on Ms. Gillespie’s property or Mr. Wylie’s appears to have been of no consequence until the litigation over its use began. Indeed, the decision in McCarron v. Gillespie indicates that while Ms.

Gillespie testified there was never a right-of-way over her property, it was over Mr. Wylie’s property, she did not mind Mr. McCarron and Ms. Wood driving on her property, so long as “they did not drive on her lawn when it was wet and cause damage”. In this case, Ms. Gillespie did not testify nor did Mr. Wylie. His non-attendance was explained to be due to health issues. Barb McQuade, a sister of Mr. Wylie and Ms. Gillespie, testified. She did not know the location of the boundary between their properties and explained its existence and location have not been important since her mother acquired both, in 1976.

In essence, Ms. McQuade’s evidence was that this boundary has not been relevant to the use of the properties and they have been collectively treated as one. Consistent with such use, Mr. and Ms. McQuade own or occupy a cottage that is on the northern part of Ms. Gillespie’s land; it is not on its own, separate, parcel. Ms. McQuade and her husband, Charles

McQuade, appear to have, on occasion, acted as a proxy or agent of both Ms. Gillespie and Mr. Wylie in dealing with Mr. McCarron and Ms. Wood. The Wylie family owns all of the land to the east of Vacation Lane, and west of the brook/marsh, other than the McCarron/Wood property. D. Evidence offered by Mr. Wylie to establish the Logans admit they did not have a right-of-way and exercised access with Ms. Gillespie’s permission [ 39 ] In early 2002, Ralph Logan contacted Margaret Gillespie in what appears to be an effort to recognize their use of the driveway as the right-of-way to their property. Mr.

Wylie offered this communication to establish the Logans knew they did not have a right-of-way and they exercised access to their cottage with the consent of Ms. Gillespie. [ 40 ] Mr. Wylie produced two written communications/letters from Mr. Logan to Ms. Gillespie. These letters indicate the Logans’ health was a factor in causing them to consider their options for the cottage, including a sale. Neither of the letters indicate the year they were sent; however, it appears that one, dated “Jan. 18,” was sent in January 2002, since it wishes Ms. Gillespie “All the best in 2002”. [ 41 ] In the January 18 letter, Mr.

Logan requested a right-of-way from Ms. Gillespie to avoid having to “reactivate the original grant of right-of-way through” Mr. Wylie’s property: Now – about the right-of-way. I don’t see that it has to be a complicated matter – just a letter from you granting a right of way to the Logan property across your land between your cottage and Jim’s [Mr. Wylie’s] cottage . Seems to me that this is the best solution to our right-of-way problem as it does not require that we reactivate the original grant of right-of-way through Jim’s [Mr. Wylie’s] property . [Emphasis added.] [ 42 ] The other letter from Mr.

Logan to Ms. Gillespie is dated August 18, and since it speaks of matters discussed before, it was likely sent in August 2002 or 2003. Mr. Logan advises they would prefer to pay Ms. Gillespie for a right-of-way, since “[t]o go through courts to gain access would be a costly proposition.” It states: As promised, here is a rehash of matters we have discussed before. Our healths are not good and we won’t be able to attend to the needs of a cottage much longer.

We have few options – one of which might be selling to one of your family members. (at a very low price) With your OK to access our cottage we could try and rent – but this would prove to be difficult – too difficult for us. We could abandon the cottage completely. Needless to say it would soon deteriorate. Sort of like throwing away money. Not an attractive option. We could sell – but must have a right-of-way. To go through courts to gain access would be a costly proposition . Our idea is to pay you for a right- of-way – thus eliminating the problem .

SO – when you see your lawyer – and if you think this is a good idea – see how it could be arranged to our mutual benefit. Naturally it would be ideal if a survey could be circumvented. Maybe just a clear description of the right-of-way would suffice. […] Thanks and enjoy the rest of the summer. Hope to see you soon […] PS our well tested AOK – those fellows fixed it good! [Emphasis added.] [ 43 ] There was no evidence regarding the outcome of these inquiries, other than the testimony of Mr. McCarron, who understood

from Mr. Logan that he would have rather burned the cottage down than sell it for what had been offered. E. The sale by the Logans to Mr. McCarron and Ms. Wood and the transfer of title to the Land Titles system [ 44 ] In September 2003, Mr. McCarron and Ms. Wood learned from Charles McQuade the Logans were interested in selling their cottage. They live out of province and during a visit with family in the area, they encountered Mr. McQuade while walking on the beach. Mr. McQuade testified that, at the time, he told Mr. McCarron and Ms.

Wood the Logan’s cottage did not have a right-of-way, and its well was bad. [ 45 ] Ms. Wood called Ralph Logan, who lived in Halifax, and they reached an agreement for the purchase of the cottage. She understood from Mr. Logan that, while there was an issue with access, his title included a right of access across the back of Mr. Wylie’s property and they have always had access to the cottage, which had been used since he was a child. While the record does not indicate Mr. Logan’s history at the cottage or his age, it appears he was a child when his mother acquired the property. His January 18, 2002 letter to Ms.

Gillespie, which stated that he had just celebrated his 50 th wedding anniversary, indicates he and Elizabeth Logan were married in 1951, 18 years after Clarissa Logan acquired the property in 1933. Mr. Logan’s personal knowledge is relevant to the statements he made in the Statutory Declaration he provided on the sale of the property to Mr. McCarron and Ms. Wood. [ 46 ] As part of the agreement, Ms. Wood and Mr. McCarron accepted Mr. Logan’s request that they take care of, and pay for, the “legalities.” Mr. Logan referred them to his lawyer from Amherst, Nova Scotia. This evidence is relevant to Mr.

Wylie’s assertion the Logans abandoned their intended quieting of title to improperly register under the Land Titles Act , and in doing so they “fabricated the description” of their property. [ 47 ] Mr. McCarron and Ms. Wood contacted the lawyer suggested by Mr. Logan. However, they later decided to retain separate counsel. Mr. McCarron testified that the Nova Scotia lawyer had recommended an application to a New Brunswick court to quiet the title, at an estimated cost of $7,000, and they felt uncomfortable with both parties using the same lawyer. In November 2003, Mr.

Pettipas completed the field work for the survey done in contemplation of the quieting, which, as earlier noted, is the unsigned Pettipas Plan dated February 24, 2004. The evidence does not indicate why the plan was left unsigned. [ 48 ] Mr. McCarron and Ms. Wood retained New Brunswick counsel and instead of a quieting, the decision was made for the Logans’ title to be registered under the Land Titles system. The description used to effect registration of the property did not utilize the 200-foot x 100-foot dimensions in the metes and bounds description in the original 1933 deed (or their 1993 deed from Mr.

Logan’s mother); it identified the boundaries in relation to the shore of Baie Verte and the three adjacent properties: […] Commencing at the intersection of the Southeast corner of lands now or formerly owned by James Wiley and the edge of the shore of Bay Verte; Thence following the easterly side line of the James Wiley property in a northerly direction to the lands now or formerly owned by Margaret Gillespie; Thence following the southerly side of lands of Margaret Gillespie in an easterly direction to lands now or formerly owned by Richard G. Racheter; Thence following the westerly side line of Richard G.

Racheter to the edge of the shore of Bay Verte; Thence following the various courses of the edge of the shore of Bay Verte to the place of beginning. Together with a Right-of-way from the Main Road […] and also over the rear of lands now or formerly owned by Marjorie Beatrice Wry as referred to in a Deed from John McLeod Raworth and Charlotte McGregor Raworth, his wife to Clarissa Jean Logan by Deed dated the 8th day of August, 1933 and registered in the Office of the Registrar of Deeds for the County of Westmoreland on April 21, 1960 […] And being the same lands and premises as were conveyed by C.

Jean Logan to Ralph M. Logan and Elizabeth Joyce Logan by Deed dated December 23, 1993 […] [Emphasis added.] [ 49 ] The purchase from the Logans closed in June 2004. A Statutory Declaration from Mr. Logan, sworn on June 18, 2004, was provided to Mr. McCarron and Ms. Wood.

It states: […] THAT I now own the within property described in Deed Number 588540 and have continued to travel and use the Right of Way and have done so since December 1993 to the present time ; THAT no person has interfered with the occupation of my lands and premises which I own and I am unaware of any claim or any interference from anyone with my mother’s ownership and occupation of the right-of-way during the time which she owned the property . [Emphasis added.] [ 50 ] Ralph and Elizabeth Logan also signed a notarized letter (on or after June 14, 2004), which confirmed the successful results from

the test of their well and also addressed the erosion of the shore, the location of the cottage and the use and location of the right-of-way: Joyce and I have owned the property for many years and we have not moved the cottage. We can see no indication when the aerial survey was done – and it certainly agrees with the property description as included in the deed. There has been some erosion of the frontage along entire beach over the years. The Wylie cottage has been moved back, but we have continued to access our property across the rear of his cottage .

In the fall and winter, there is a wire “gate” which has combination lock. This is to discourage people accessing the Gillespie, Wylie, and Logan properties. It is located at what is considered to be the border of Gillespie and Wylie properties . [Emphasis added.] [ 51 ] Mr. Logan’s comment regarding the move of the Wylie cottage is undoubtedly a reference to the move that appears to have occurred in 1986 and was related to the relocation of the Logans’ access to the driveway. F. Use of the common driveway, and the litigation [ 52 ] Not long after becoming owners, Mr. McCarron and Ms.

Wood’s use of the common driveway became problematic. Indeed, the first time they used the cottage in September 2004 they were advised by Barb McQuade and/or Charlie McQuade that Margaret Gillespie was upset that there had been no prior discussions with her regarding their use of the driveway. Mr. McCarron and Ms. Wood both testified that they told them their deed had a right-of-way. Mr. McCarron also testified that Mr. McQuade showed him where the access had been before it was moved to the common driveway; Mr. McQuade indicated it had passed near the front of the current location of Mr. Wylie’s cottage. Ms.

Wood’s evidence was that Ms. Gillespie said they could cross the property, if it was not wet, and she had never met Mr. Wylie. She said the only persons who told her they could not use the shared driveway were Ms. and Mr. McQuade. [ 53 ] Matters became worse during the summers of 2005 and 2006, with the driveway, at times, being blocked. This led to Mr. McCarron and Ms. Wood filing their action against Ms. Gillespie in August 2006. They also brought a motion for an interim injunction in September 2006. They would later commence an action against Mr.

Wylie, in 2011. [ 54 ] At about the same time, Barb McQuade contacted Mr. Logan, by email on August 18, 2006, complaining that Mr. McCarron was being difficult and had told Ms. Gillespie he “has a ‘right-of-way’ and that he has the papers to prove it.” Ms. McQuade explained to Mr. Logan that she was looking for “something that would make him stop harassing everyone who owns property here.” [ 55 ] Ms. McQuade’s inquiry produced an exchange of emails, including a further email from Ms. McQuade stating to Mr.

Logan that “in June, you stated to me on the phone that there never was a right of way for your cottage.” I note that had Mr. Logan said that, it would be contrary to what he stated in his letters to Ms. Gillespie in 2002/3. In any event, in their final response to Ms. McQuade, Richard and Elizabeth Logan explained: John Rayworth sold my parents the land – and included a right of way across the back of the Wry cottage in the deed. Sonny [Mr. McCarron] almost certainly has this deed BUT later on when Rayworth sold the land to Wry the right of way was not included in his deed.

Certainly an oversight – and one which we didn’t know about for a long time. I think not until our discussions with Jim [Mr. Wylie]. For many years we had no trouble crossing behind Wry, and even in front when they moved back . I hope this clarifies things. Not being a lawyer, any opinion I might have about resolving the situation, isn’t much use. However – here it is: Sonny [Mr. McCarron] does not appear to have a bona fide right-of-way – and crosses Margie’s [Ms. Gillespie’s] land because of her courtesy. I do not know what might happen if she closed it off.

Supposing Sonny obtained legal help – and somehow obtained a written right of way – where would that right of way be? [Emphasis added.] [ 56 ] While not offered by Mr. Wylie for this purpose, this communication indicates Mr. Logan recalled that they had “no trouble crossing behind Wry” (after 1933 but before 1945) and “even in front when they moved back” (from at least 1945 to about 1976). Mr. Logan also acknowledges that the shared driveway was at least partially on Ms. Gillespie’s land, and, while stating he is not a lawyer, it appears Mr. McCarron would not have any right to pass over Ms.

Gillespie’s land without permission. The only survey that appears to have existed at the time of this communication was the unsigned Pettipas Plan, which indicated the driveway crossed near the boundary between the Wylie and Gillespie properties. Mr. Logan did not testify at the trial against Ms. Gillespie, due to his failing health, and he had passed away by the time of Mr. Wylie’s trial. The declarations by and communications from Mr. Logan were admitted on consent. [ 57 ] At the 2015 trial of the action against Margaret Gillespie, the judge identified the issue as whether Mr. McCarron and Ms.

Wood “have a legal right of way” and, if so, “where is it located.” He summarized Ms. Gillespie’s position as: “Mrs. Gillespie says it was never on her property, it was on the Wry/Wylie property.” The judge’s reasons for decision provide an extensive

summary of the evidence relating to the grant of right-of-way and whether a right-of-way had been created by prescription (at para. 33); however, he did not make a determination on either issue; he concluded, as Ms. Gillespie had claimed, if there was a right-of-way, it was not on her property, it was on Mr. Wylie’s. The judge issued an order restraining Mr. McCarron and Ms. Wood from crossing Ms.

Gillespie’s property, but he dismissed all other claims made in her Counterclaim, which included the claim that when the Logans put their property on the Land Titles system, there “were a number of wrongful acts or at least mistakes made that must be corrected” (para. 40; sub-paras. 83-89). Ms. Gillespie also alleged these actions included a “fabrication of a description […] and a migration of land to the Land Titles system that was completely contrary to” the standards for the practice of real property; she asserted the Logans’ title had been fraudulently registered.

The judge expressly found there “was nothing wrong” with the registration under the Land Titles Act and the description of the right-of-way for that purpose was faithful to its earlier descriptions. This decision was not appealed. [ 58 ] At the 2018 trial of the action claiming a right-of-way over Mr. Wylie’s property, the issues and evidence were largely the same as in McCarron v. Gillespie . And, to be clear, the physical location of the right-of-way claimed over Mr. Wylie’s land is the same route claimed in McCarron v. Gillespie .

By the time of the Wylie trial, the route or location of this driveway was clearly identified by the Daigle Survey. It begins at the gate on Vacation Lane and continues until it passes between the trees shown on the northern boundary of the McCarron/Wood property. The trial judge declared Mr. McCarron and Ms. Wood have a right-of-way over Mr. Wylie’s property, across the Existing Driveway, as shown on the Daigle Survey.

Recognizing this would mean the Driveway would be used by all three owners, the judge also concluded: I believe it to be reasonable for a fence or gate to be jointly maintained by the three civic numbers in order to provide a degree of protection or security. However, Mr. McCarron and Ms. Wood are to be immediately provided with a key to the fence or gate. Much was made of the erosion effects on civics 21 and 23. It is submitted that civic #21 is now a very small parcel of property.

That issue is for another day, suffice to say, but I have found that a right-of-way exists to civic #21 as outlined in these reasons. [paras. 41-42] [Emphasis added.] III. Grounds of Appeal [ 59 ] In support of his request for this Court to reverse the trial judge’s decision and declare there is no right-of-way across his property, or alternatively, order a new trial, Mr. Wylie identifies a number of grounds of appeal, which I would summarize and restate as claiming the trial judge erred by: A. failing to recuse himself given the determinations he made in McCarron v.

Gillespie ; B. misapprehending the evidence and concluding there had been longstanding and continuous access which established a right-of-way by prescription and under the Easements Act , R.S.N.B. 2011, c. 143 , including, by: 1. finding 85 years of continuous access to the Logan/McCarron/Wood property as evidenced by the flattening of the roots of the trees through which the Existing Driveway passes; 2. disregarding the evidence that the Logans’ access continually moved over the years ; and 3. ignoring evidence that established the Logans’ use of the access occurred with consent or agreement, as was admitted by Mr.

Logan when he indicated Mr. McCarron was only able to access his cottage “due to Ms. Gillespie’s kindness”; C. determining the location of the right-of-way to be over the Existing Driveway and ignoring evidence that established the Existing Driveway is on Ms. Gillespie’s property, not Mr. Wylie’s;

D. determining the location of the right-of-way to be over the Existing Driveway, which is the same driveway the judge in McCarron v. Gillespie determined crossed Ms. Gillespie’s land (and in connection with which he issued an order restraining McCarron/Wood from using); E. ignoring evidence, including that of the Terrain Group, that established the McCarron/Wood cottage is not on their land, and, therefore, they do not hold a dominant tenement that is accommodated by the way; and F. not finding there had been fraud committed in the migration of the Logans’ property and right-of-way to the Land Titles system. IV.

Analysis A. Recusal [ 60 ] Mr. Wylie submits the judge erred in dismissing his motion for a recusal. Mr. Wylie explained to this Court his request was grounded in the belief the judge had already made up his mind there was a right-of-way over his property because the judge stated, in McCarron v. Gillespie : “The right-of-way, in my opinion, is on the property at civic #23” (para. 41). Civic number 23 is Mr. Wylie’s property. [61] The first difficulty with Mr. Wylie’s submission is that the statement identified by him is taken out of context and it is not an accurate representation of what the judge decided.

The judge’s reasons for decision respond to both the claim made by Mr. McCarron and Ms. Wood and the counterclaim advanced by Ms. Gillespie. In dismissing the claim there was a right-of-way over Ms. Gillespie’s property, the judge stated: “I accept the evidence before the court that if there is a right-of-way , it is; ‘over the rear of the above-mentioned land owned by Mrs. Marjorie Beatrice Wry’” (para. 35) (emphasis added). The judge did not decide whether a right-of-way existed. He merely concluded the evidence did not establish that any such right was over Ms.

Gillespie’s property. [62] It was when the judge subsequently addressed Ms. Gillespie’s Counterclaim that he made the statement identified by Mr. Wiley. To put what the judge said in context, I would consider first the preceding paragraph: Having found that the alleged right-of-way does not affect civic #19 [Ms. Gillespie’s property], I am left with the issues claimed by Margaret Gillespie. [para. 40] [Emphasis added.] [63] The following paragraph contains the statement identified by Mr.

Wylie and it also provides important context: I have found that the alleged right-of-way is not on Margaret Gillespie’s property . The right-of-way, in my opinion, is on the property at civic #23 . Consequently, Ms. Gillespie has no claim against Land Titles.

I am in no way making a determination with respect to the registration of the McCarron deed under the Land Titles system nor with the filing of the Logan deed to themselves, other than, to make a determination as to the location of the right- of-way to civic #21 [the McCarron property]. [para. 41] [Emphasis added.] [64] In my opinion, it is clear the articulated basis for Mr. Wylie’s concern, namely that the judge had already decided the right-of- way was on his property, flows from an erroneous

interpretation of that decision. However, that is not the end of the matter. [65] There is no doubt the judge turned his mind to the appropriate legal test, and this is not an issue on appeal. Indeed, the judge provided the parties with copies of the cases upon which he relied to guide his analysis. The relevant principles were fully explained by Richard J.A. (as he then was) in Bossé et al. v.

Lavigne , 2015 NBCA 54 , 440 N.B.R. (2d) 118 : 1) Impartiality is “a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions”; whereas bias “denotes a state of mind that is in some way predisposed to a particular result”: S. (R.D.) , at paras. 104-105; 2) Except in cases where necessity may have to prevail, judges have both an ethical and a legal duty not to adjudicate matters in which they either believe they will be unable to judge impartially or that a reasonable, fair minded and informed person would have a reasoned suspicion of conflict or bias; 3) The inquiry is one that is “inherently contextual” and “highly fact-specific”: Yukon Francophone School Board , at para. 26 and Wewaykum at para. 77;

4) A judge’s belief she or he will be unable to judge impartially connotes a subjective test. It is a determination the judge makes by asking him/herself whether he or she would be able to judge impartially.

If the answer is no, recusal generally follows; 5) While a judge’s subjective determination that she or he would not be able to judge impartially generally leads to recusal, an opposite determination does not always lead to the dismissal of a recusal motion; 6) Having determined she or he would be able to judge impartially, a judge must then consider whether there is nevertheless a reasonable apprehension of bias; 7) To determine whether there would be a reasonable apprehension of bias, a judge must ask the following question: “Having examined the situation in depth and viewing the matter ‘realistically and practically’, would a reasonable and well informed person conclude it is ‘more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly’?”: Gaudet , at para. 3, citing Committee for Justice and Liberty , at para. 40; 8) The elements of this objective test are that (1) the person considering the alleged bias must be a reasonable person, not one who is very sensitive or scrupulous, but rather one who is right-minded; (2) the person be a well informed person, with knowledge of all the relevant circumstances; (3) the apprehension of bias itself must be reasonable in the circumstances of the case; (4) the situation must be fully examined, not just the face of it; and, the examination must be one that is both realistic and practical; (5) the inquiry begins with a strong presumption of judicial impartiality and looks to determine whether it has been displaced such that there is a real likelihood or probability of apprehension that the judge would not decide the case fairly on the merits; 9) Within the knowledge one expects the informed person to possess, are “the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold”: R. v.

Elrick , at para. 14, cited in S. (R.D.) , at para. 111; 10) The grounds for the apprehension of bias must be substantial and the evidence demonstrating it must be cogent; the threshold is high and the onus of demonstrating bias lies with the one alleging it; “The grounds giving rise to the apprehension of bias must be sufficiently serious to rebut the presumption that the judge will abide by his or her oath of office and ‘[judge] a particular controversy fairly on the basis of its own circumstances’“: Gaudet , at para. 5, referring to an excerpt from United States v.

Morgan , 313 U.S. 409 (1941), at p. 421, quoted with approval in S. (R.D.) ; or, in other words, “Because there is a strong presumption of judicial impartiality that is not easily displaced [...], the test for a reasonable apprehension of bias requires a ‘real likelihood or probability of bias’”: Yukon Francophone School Board , at para. 25. [para. 7] [Emphasis in original.] [66] The recusal motion was brought at the beginning of the trial and it was dismissed from the bench. While the judge’s written reasons for decision provide a brief

summary of what occurred, the trial transcript provides the judge’s full explanation of his reasons for dismissing Mr. Wylie’s request. After hearing the submissions of the parties, he noted it was his duty to hear all the evidence and impartially decide the issues based on the evidence. The judge was aware that recusal is required where a judge is unable to impartially hear a matter or there is a reasonable apprehension of bias. He concluded the circumstances requiring recusal did not exist. It is my view there is no reversible error in this determination, and certainly no error based on Mr.

Wylie’s understanding of the judge’s findings in the case against Ms. Gillespie. B. Misapprehending the evidence of access [67] Mr. Wylie claims the judge made palpable and overriding errors in the assessment of the evidence leading him to wrongly conclude “the requirements under the law to establish a right-of-way and the Easements Act have been met.” [68] The reasons given by the judge for having made this determination are as follows: To the credit of the owners of civic #23 and #19, a passage way was provided to civic #21. This has existed for many years.

The evidence of a number of witnesses confirms the right-of-way. The aerial photos show access to civic #21 and #23 in 1934 aerial photos and this continued throughout the period in question as was stated in the evidence from Mr. Speight at paragraph 20: “[a]ccess to Civic 21 is consistent with the previous 1982 photography. […]. Similarly in 2001: “[a]ccess to Civic’s 19, 21 and 23 all originate from Vacation Lane at the same location.” The aerial photos confirm the Daigle survey plan, which is found at paragraph 18. Throughout the total period from 1993 to today, the parties have used the access as shown on Mr.

Daigle’s plan. The evidence showed that from time to time, either Ms. Gillespie or Mr. Wylie blocked the access, but this only occurred after the civic #21 was sold to Mr. McCarron and Ms. Wood in 2004 or approximately 70 years after the original deeds were given. Mr. McCarron and Ms. Wood stated that if the gate was closed, they had to walk to their cottage carrying their belongings, groceries or other necessities. Section 2(1) and 2(2) of the Easement Act provides as follows:

2(1) No claim, which may be lawfully made at common law by custom, prescription or grant, to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived on, over, or from any land or water of the Crown or being the property of any person shall, if the way or other matter has been actually enjoyed without interruption for the full period of 20 years, by the person claiming right to it, be defeated or destroyed by showing only that the way or other matter was first enjoyed at a time before the period of 20 years; nevertheless, the claim may be defeated in any other way by which it is now liable to be defeated. 2(2) If the way or other matter has been so enjoyed for the full period of 40 years, the right to it shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

I believe that with the passage of about 85 years where there was use of the right-of-way, which is confirmed by the roots of the trees near the cottage on civic #21 being flattened, the requirements under the law to establish a right-of-way and the Easement Act have been met .

Coupled with the above, we have confirmation and a title guarantee pursuant to the Land Titles legislation and the CRO which has been issued, which CRO included: Together with a Right-of-way from the Main Road to the above described property, by way of an existing lane running from the Main Road to the shore of Bay Verte and also over the rear of lands now or formerly owned by Marjorie Beatrice Wry as referred to in a Deed from John McLeod Raworth and Charlotte McGregor Raworth, his Wife, to Clarissa Jean Logan by Deed dated the 8th day of August, 1933 and registered in the Office […] All of which when taken together satisfied me that a right-of-way exists, at the present time, as shown on the plan of surveyor Daigle as Exhibit P-5.

This right-of-way is specific to civic #21, Vacation Lane, and permits the present owners and their heirs and successors the right to drive to and from their cottage along with guests and service persons. [paras. 35-40] [Emphasis in original.] [69] It is important to note there is no dispute over the applicable law. Mr. Wylie does not challenge the legal principles identified and applied by the trial judge. He maintains the judge made errors in his assessment of the evidence. (1) 85 years of passage based on flattened tree roots [70] Mr.

Wylie is correct; the evidence does not indicate 85 years of unchallenged access to the McCarron/Wood property. The right of Mr. McCarron and Ms. Wood to exercise access over the driveway has been disputed since they first used it in September 2004. This is acknowledged by the trial judge. However, the evidence of access during the previous 70 years is a different matter and will be addressed below. Indeed, that is the crux of this ground of appeal. [71] Mr. Wylie is also correct on one other point.

The evidence of flattened tree roots, where the route of the driveway passes between two trees (as shown on the Daigle Survey), does not establish 85 years of use; however, Mr. Wylie is mistaken if he is suggesting the judge referred to this evidence as indicating the Logans’ access passed between these trees for 85 years, or even 70 years. First, Mr. Daigle’s evidence was that the flattened tree roots indicate they had been crossed over for about 20 to 30 years. Second, the judge clearly acknowledges the location of the Logans’ access changed over the years, which is common ground.

(2) Disregarding evidence the Logans’ access continually moved [72] Mr. Wylie suggests the judge disregarded the fact the location of the Logans’ access had changed. As indicated above, this is not the case. Mr. Wylie does not expressly assert the relocation of the Logans’ access interferes with computation of the duration of the use of a way or any other requirement to establishing a right-of-way by prescription. If that is part of his submission, I do not agree. As the trial judge correctly explained in McCarron v.

Gillespie , an agreed change to the route of a right-of-way will not interfere with the duration of its use or otherwise operate to extinguish the right. The judge reproduced the following passage from A.H. Oosterhoff and W.B. Rayner, eds., Anger & Honsberger Law of Real Property , 2nd ed., vol. 2 (Aurora, Ont.: Canada Law Book Inc., 1985): Where the dominant and servient owners agree to change the course of a right of way during the prescription period resulting in a new route for the original route both the original and substituted routes are considered as one if both are used as of right for the same person.

The periods of use will be added together for the purpose of establishing a right of way by prescription over the servient tenement. [p. 950]

(3) Evidence of use and ignoring evidence that access occurred with consent or by agreement

[73] While the judge’s reasons do not provide an expansive assessment of the evidence of the Logans’ use, there is no reversible error in the judge’s finding that it satisfies the requirements necessary to establish a right-of-way. In Anne Warner La Forest, ed., Anger & Honsberger Law of Real Property , 3rd ed., vol. 2, looseleaf (Toronto: Thomson Reuters Canada Limited, 2019), the character of the use necessary to establish a prescriptive right is concisely summarized: The common law characteristics of prescriptive use and enjoyment were not changed by statute.

In order to claim an easement based on prescriptive rights, one must show use as of right, that is, use that is open, without consent at the particular time, and uninterrupted both as to the manner and during the time required by law. However, the owner of the land over which the prescriptive easement is claimed must have been aware of and have acquiesced in the use.

Also, “[i]f the use or activity is permissive or authorized by law, there can be no acquiescence by the owner of the servient tenement.” [pp. 17-15 to 17-16] [74] The aerial photos, and the opinion evidence based on them, clearly establish Clarissa Logan’s access in its initial location continued openly for a minimum of 36 years, between the 1935 photo and the 1971 photo. Indeed, the evidence as a whole supports a finding that the period is more likely than not in excess of 40 years, from 1933 to between 1972-76, when the notes on the Pettipas Plan indicate the route of Ms.

Logan’s access moved for the first time. [75] The evidence also supports a finding that the exercise of access in this location, over the rear of Marjorie B. Wry’s property, was as of right. As the 1935 photo indicates, Ms. Logan and Ms. Wry built their cottages in close proximity, within two years of the 1933 conveyances, and Ms. Logan accessed her property by crossing behind Ms. Wry’s cottage – over the rear of Ms. Wry’s property, as described in the grant of right-of-way. [76] Even assuming the grant of right-of-way was not effective to encumber Ms.

Wry’s lands, its existence is far from irrelevant to the assessment of the evidence respecting Ms. Logan’s access over Ms. Wry’s property during this early period. Neither Ms. Logan nor Ms. Wry had registered their deeds; this would not occur until Ms. Wry did so in 1938. Given the circumstances, including the fact that both deeds were signed the same day, the judge concluded the Rayworths intended to grant Ms. Logan a right-of-way and it was a mistake to not expressly make the deed to Ms. Wry subject to the grant in favour of Ms. Logan.

While such a finding might not be determinative of the grant’s validity or permit rectification, and the judge did not make any such determination, his conclusion is difficult to refute and the existence of the grant itself is a relevant part of the surrounding circumstances. The fact Ms.

Logan held a clear and fresh grant, and exercised access consistent with it, makes compelling the submission that her passage was unlike the circumstances of a person who lacks any colour of right to openly cross another’s property, a trespass to a new property that might be expected to be challenged in the absence of consent or an agreement. [77] After Marjorie B. Wry moved her cottage back from the shore (sometime before the 1945 photo) to the location shown on the Daigle Survey as “Building 1963”, Ms. Logan’s access continued in the same location; but, after the move, she passed in front of Ms.

Wry’s cottage, between it and the shore. Such access, over a waterfront vacation property, seems itself somewhat remarkable. Since Ms. Wry’s cottage had been moved far enough north to be off her property, at least partially (depending on which surveyor’s opinion is accepted), had Ms. Logan’s access also moved north, to stay to the rear of Ms. Wry’s waterfront cottage, she would no longer cross over Ms. Wry’s property; she would have passed over the Rayworth’s property, through their field.

This did not happen and there is no evidence to suggest that, as a consequence of an arguably ineffective grant of right-of- way, Ms. Logan was forced to seek or exercised a right-of-way of necessity over the land of the Rayworths, the grantors. [78] Mr. Wylie does not submit Ms. Wry consented to Ms. Logan’s access, in writing or otherwise, nor is there any evidence that would support such a suggestion. There is no evidence to suggest Ms. Logan did not exercise this access openly, without interference from or challenge by Ms. Wry. The evidence is to the contrary, including Mr.

Logan’s Statutory Declaration, made in June 2004. It states he was unaware of “any claim or any interference from anyone with my mother’s ownership and occupation of the right-of-way during the time which she owned the property.” Consistent with this, Mr. Logan explained in a response to inquiries made by Ms. McQuade, in August 2006, two years after the sale: “For many years we had no trouble crossing behind Wry, and even in front when they moved back”. There is no doubt, Mr.

Logan is referring to access in its initial location, from 1933 until 1972-76. [79] The evidence established, on a balance of probabilities, Clarissa Logan’s access over the rear of Marjorie B. Wry’s property was exercised as of right during a period of approximately 40 years. Further, the record supports the finding that this access continued until Ralph and Elizabeth Logan sold the property in 2004, despite the route of the access being relocated twice: first, between 1972-76, and again in 1986. [80] The first relocation, in 1972-76, is shown on the 1982 aerial photo. Ms.

Logan moved her cottage and access north, with the route of access passing behind Ms. Wry’s cottage (to the north of the “Building 1963” location). Since Ms. Wry added a 50-foot strip of land to the rear of her property in 1963, Ms. Logan could then cross Ms. Wry’s property while passing behind her cottage. Ms. Logan’s access remained in this location until 1986. [81] Mr. Wylie does not assert Ms. Logan’s access in this second location was challenged or exercised with Ms. Wry’s permission. Virtually no evidence regarding access in this location was offered by Mr. Wylie. Ms.

McQuade testified she had been going to the area every summer since her eighth birthday, in about 1956; however, she only recalled the Logans accessing their cottage by driving north of (behind) the Wry/Wylie cottage, and she testified that she had never seen anyone cross south of the Wry/Wylie cottage. Ms. McQuade did not offer any evidence to suggest the relocation of Ms. Logan’s access to this location was not by agreement with Ms. Wry (or with Doris Wylie if the relocation occurred after 1976), nor did she suggest Ms. Logan’s access was challenged by Ms. Wry, Doris Wylie or, later, Mr.

Wylie, who acquired the property in 1982. There was no suggestion access was exercised by permission. Mr. McQuade did not give any evidence regarding access in this location. This is not because he was not aware of this access; as Mr. McCarron testified, Mr. McQuade showed him the location of the Logans’ access before it was moved to the shared driveway. [82] To summarize, before Ms.

Logan’s access moved to the shared driveway, it had continued over the Wry/Wylie property for 53 years, from 1933 until 1986, unchanged, other than a single change in its route. [83] The question of whether the shared driveway crosses Ms. Gillespie’s property or Mr. Wylie’s property will be set aside, to be dealt with in the next part of these reasons.

[84] Provided the shared driveway is on Mr. Wylie’s property, there is no error in the trial judge’s finding the Logans’ access continued over his property, uninterrupted, from 1933 until 2004. [85] There is surprisingly little evidence of the circumstances surrounding the 1986 relocation to the shared driveway. The 1996 aerial photo shows the Logans sharing the driveway with Mr. Wylie and Ms. Gillespie; it also shows that Mr. Wylie had moved his cottage north by 50 feet. Given the location of Ms. Logan’s previous access (near the new location of Mr. Wylie’s cottage, as shown by Mr. McQuade to Mr.

McCarron), it stands to reason that, in the absence of evidence to the contrary, the move of Mr. Wylie’s cottage to the north necessitated the relocation of Ms. Logan’s access further north. Mr. Wylie did not submit, or offer evidence to suggest, the Logans’ access was not relocated to accommodate the move of his cottage. While Ms. McQuade has visited the area every year since 1956 (and has a cottage of her own there), neither she nor Mr. McQuade offered any evidence as to when Mr. Wylie moved his cottage or why the Logans’ access was relocated to the shared driveway, during either direct or cross- examination.

There was no evidence indicating Ms. Logan asked to have her access moved or that this new location was preferable to her. [86] Neither Ms. McQuade nor her husband testified about their knowledge of any agreement between the Logans and Mr. Wylie and/or Margaret Gillespie regarding the use of the shared driveway, other than to state the Logans did not have a right to cross Ms. Gillespie’s property, but they had been permitted to use the shared driveway so long as it was not wet. Recall, Ms. McQuade testified that she did not know the location of the boundary between Mr. Wylie’s property and Ms.

Gillespie’s. [87] Mr. Wylie’s position is that, after the Logans’ access was relocated to the shared driveway, they did not have a right-of-way and they knew they required Ms. Gillespie’s permission to use the driveway. Mr. Wylie says this is proven by Mr. Logan’s admission to Ms. McQuade that Mr. McCarron was only able to access his cottage “due to Ms. Gillespie’s kindness.” [88] This statement cannot be interpreted as an admission the Logans had no right-of-way to their property once they started using the shared driveway. First, the statement is inconsistent with Mr. Logan’s earlier communications to Ms.

Gillespie, in 2002/3, and the statement itself is taken out of context. Second, Mr. Logan’s belief the driveway crossed Ms. Gillespie’s property, at least partially, is of no consequence since the trial judge did not err in finding the driveway crosses Mr. Wylie’s property, as will be explained below. [89] In his January 2002 communication to Ms. Gillespie, Mr. Logan plainly stated that, to avoid having to “reactivate the original grant of right-of-way through” Mrs. Wylie’s property, he was asking for a right-of-way “across your land”. Mr.

Logan’s request was: […] just a letter from you granting a right of way to the Logan property across your land between your cottage and Jim’s [Mr. Wylie’s] cottage . Seems to me that this is the best solution to our right-of-way problem as it does not require that we reactivate the original grant of right-of-way through Jim’s [Mr. Wylie’s] property . [Emphasis added.] [90] He later offered to pay Ms.

Gillespie for an acknowledgment of a right-of-way across her property to avoid the “costly proposition” of going through the “courts to gain access.” Both communications indicate an effort to formalize the access that his mother and he had used since 1986, without having to enforce his right of access over Mr. Wylie’s property, and, possibly, over the shared driveway. Mr. Logan specifically referred to his grant of right-of-way, and, at the time he made his requests, the Logans had been accessing their property for 69 years. It would appear Mr. Logan later learned from Mr.

Wylie that Marjorie Wry’s deed had not been made subject to the grant. This is reflected in the same August 2006 email from Mr. Logan to Ms. McQuade that Mr. Wylie relies upon to establish Mr. Logan’s admission: John Rayworth sold my parents the land – and included a right of way across the back of the Wry cottage in the deed. Sonny [Mr. McCarron] almost certainly has this deed BUT later on when Rayworth sold the land to Wry the right of way was not included in his deed. Certainly an oversight – and one which we didn’t know about for a long time. I think not until our discussions with Jim [Mr. Wylie] .

For many years we had no trouble crossing behind Wry, and even in front when they moved back. I hope this clarifies things. Not being a lawyer, any opinion I might have about resolving the situation, isn’t much use. However – here it is: Sonny [Mr. McCarron] does not appear to have a bona fide right-of-way – and crosses Marjorie’s land because of her courtesy . I do not know what might happen if she closed it off.

[Emphasis added.] [91] The statement identified by Mr. Wylie is not evidence of Mr. Logan admitting he knew he had no right-of-way. His emailcontains a reiteration of his belief the driveway crossed Ms. Gillespie’s property, at least to some extent, and his right-of-way did not give him a right tocross her property. However, it appears his belief was grounded in a lack of knowledge over the location of the boundary. This is not surprising. As Ms.McQuade explained, she could not identify the location of the boundary and the family did not pay attention to it after Doris Wylie became the owner ofboth properties.

There is nothing in the record to indicate why Mr. Logan would know the location of the boundary any better than the members of theWylie family. [92] In

summary, none of this reflects an acknowledgement Mr. Logan did not have a right-of-way over Mr. Wylie’s property or thathe sought Mr. Wylie’s consent. As a consequence of Mr. Wylie moving his cottage, the Logans exercised access over the shared driveway without issueand with only one additional, minor, caveat: to not drive over it when the grass was wet, a request of Ms. Gillespie. Mr. Logan’s understanding thedriveway crossed Ms.

Gillespie’s property, to some extent, is of no consequence given the trial judge’s determination the Existing Driveway crossed Mr.Wylie’s property. [93] In my view, the judge did not err in finding the Logans exercised access over Mr. Wylie’s property continually,without interruption or challenge, for over 70 years, subject only to Mr. Wylie’s claim the Existing Driveway does not cross his property. [94] Although not argued in this case, or in McCarron v. Gillespie, principles applicable to the creation of an easementby propriety estoppel might apply to encumber the driveway, whether owned by Ms.

Gillespie and/or Mr. Wylie, based on the evidence of both thecollective use of their properties and the move of Mr. Wylie’s cottage causing the relocation of the Logan’s access. This is particularly so, if it were foundthat, in reliance on the relocation of their access to the driveway, the Logans released any right to “reinstate” their right-of-way over Mr. Wylie’s property,as Mr. Logan characterized his right. Also, in addition to the evidence of Ms. Gillespie and Mr.

Wylie disregarding the boundary between their propertiesand, to an extent, treating them collectively, as one property, the circumstances relating to Mr. Wylie’s move of his cottage and Ms. Logan’s access, ontowhat he says is Ms. Gillespie’s property, raises the question whether Mr. Wylie had the authority to bind Ms. Gillespie and/or whether Ms. Gillespieimplicitly consented to the relocation of both Mr. Wylie’s cottage and Ms. Logan’s access. In any event, none of this is an issue because the trial judgedetermined the Existing Driveway crosses Mr. Wylie’s property and Ms.

Gillespie was not a party to this action. C. Ignoring evidence that established the existing driveway is on Ms. Gillespie’s property, not Mr. Wylie’s [95] At the risk of stating the obvious, a

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