2018 NLCA 18, 2018 NLCA 18

Cynthia Maloney, as Executrix of the Estate of Blanche Prince (first appellant) and Glenys Duke, as Executrix of the Estate of Blanche Prince (second appellant) and Cynthia Maloney, in Her Own Right (third appellant) and Glenys Duke, in Her Own Right (fourth appellant) and Mabel King (fifth appellant) and Rosalind Prince (sixth appellant) and Barbara Smith (seventh appellant) and Marina Barrett (eighth appellant) v. Walter Fry, as Administrator for the Estate of Walter Prince (respondent) (17/64) Indexed As: Maloney v. Fry 2018 NLCA 18 2 C.A.N.L.R. 647 Court of Appeal of Newfoundland and Labrador Welsh, White and Harrington JJ.A. April 11, 2018

Summary: The administrator for the estate of Walter Prince applied for and was granted a quieting of title certificate for property claimed by the estate. The application was opposed by the descendants of Harry Prince, Walter Prince’s brother, on the grounds that they had acquired the land by adverse possession. They appealed the judge’s finding that Walter Prince was the probable owner of the property and consequent ruling in favour of the estate. Held: Appeal dismissed.

Welsh J.A. (White and Harrington JJ.A. concurring): Title to the property is properly determined by application of the law regarding adverse possession. While it may be easier, simply by virtue of circumstances, for a family member to prove adverse possession than it would be for a stranger, the same criteria must be established in either case; that is, possession must be open, notorious, exclusive and continuous or uninterrupted.

The applications judge reviewed and discussed the evidence, using examples and giving reasons, that led to his conclusion that Walter Prince, as represented by his administrator, Walter Fry, was the owner of the land and that Walter Prince extinguished any other interests in that property by using the land openly, continuously, notoriously and exclusively between 1967 and 1997, including his father, Alpheus Prince’s claim to the land or his brother, Harry Prince’s claim to the land. There was no error in these findings. There is reason to depart from the usual rule regarding costs of this appeal.

An unreasonable position taken by the administrator of Walter Prince’s estate resulted in the adverse claimants incurring some extra costs involving overtime work by staff. Accordingly, those extra costs were deducted from the costs of the appeal to be paid by the adverse claimants. The appeal was dismissed. Cases cited:

Russell v. Blundon , 2002 NFCA 20 , 210 Nfld. & P.E.I.R. 326 Earle Estate v. Finn , 2008 NLCA 14 , 274 Nfld. & P.E.I.R. 33 Counsel: Philip C. W. Whalen, for the appellants; Stacy G. MacDonald, for the respondent. This appeal was heard on March 14, 2018 before Welsh, White and Harrigton JJ.A. The following judgment was delivered on April 11, 2018 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: BACKGROUND [ 1 ] The administrator for the estate of Walter Prince was granted a quieting of title certificate for property claimed by the estate.

Descendants of Harry Prince, Walter Prince’s brother, appeal that decision. Issues relate to the application of the law regarding adverse possession and the effect of the failure to administer the estates of Harry Prince and their father, Alpheus Prince. [ 2 ] The property in question was originally owned by Alpheus Prince who had two sons, Walter and Harry. Alpheus died in 1964 and Harry in 1967. Neither estate was administered. Harry was married to Blanche Prince who died on December 23, 2010. Walter Prince died on December 10, 1997. [ 3 ] After an extensive

summary of the evidence, the applications judge made several findings of fact (2017 NLTD(G) 97): [91] Overall, I find that the Applicant proved on a balance of probabilities that the Estate of Walter Prince owns the 0.770 ha of land the Estate claims at Charleston.

I base my finding on the following: - Walter Prince lived on the land and was actively engaged in its use and development from 1946 to 1997, exclusively so from 1967 to 1997. - Walter Prince farmed the land, built his own house, a house for his sister, Alice Gould, and various outbuildings that supported his work on the land. - Walter Prince erected and maintained fences on the land to contain his animals, he harvested trees, hay and vegetables from it, he installed a duck pond on it and he grazed his animals over the whole of it. - Walter Prince went to his fishing premises over the land and erected structures on the shoreline that supported his fishing activities. - Walter Prince consulted no one and no one opposed him when he tore down his father’s home and built a house for his sister and a shed for himself from the materials. - Walter Prince directed Blanche Prince and family members around 1985 to remove a white shed from the land they claim in opposing this application and they complied. - Aerial photographs for 50 years from 1965 to 2006 are consistent with Walter Prince’s exclusive use of the land, showing fence lines that he built and maintained, structures that he erected and maintained, garden plots that he built and cultivated and vegetation that advanced or retreated consistently with how he used the land. - No one challenged Walter Prince on how he used the land, neither his father, Alpheus Prince, his brother, Harry Prince, his sister-in- law, Blanche Prince nor any of Blanche’s and Harry’s children. - Representations that Blanche Prince made in her Last Will and Testament and in a statutory declaration about the land her house is on at Charleston are tacit acknowledgments that she had no claim to Walter Prince’s land. - No one else used the land, either before or after Walter Prince died so as to exclude the claim that he established to it by his dedicated use. - The Adverse Claimants’ proposed subdivision of the land is an artificial construct that [is] unrelated to how Walter Prince used the land for 50 years. [ 4 ] On appeal, Blanche Prince’s descendants (the “Adverse Claimants”) submit that the applications judge erred in assessing the

adverse claim, particularly considering that the claimants are family members. ISSUES [ 5 ] At issue in the appeal is whether the applications judge erred in his assessment of the principles of adverse possession, particularly in the context of claims by family members. The issue of the limitation period as it may apply to the estates of Alpheus and Harry Prince is raised by the estate of Walter Prince. ANALYSIS [ 6 ] In assessing this application under the Quieting of Titles Act , RSNL 1990, c.

Q-3, the relevant provisions are: 3(1) A person claiming to be the owner of land shall be entitled to have his or her title judicially investigated and declared, whether he or she has the legal estate or not, and whether his or her title is or is not subject to a charge or encumbrance. 13(2) Where the judge considers that the applicant is entitled to the land, he or she may grant a certificate to that effect or grant a conveyance, and that certificate or conveyance will apply against all persons except the Crown. Pursuant to

section 26 of the Act , a certificate of title is conclusive evidence of title. Application of the Limitation Period [ 7 ] The time within which to make a claim for title to property is governed by the Limitations Act , SNL 1995, c. L-16.1, which provides, in relevant parts: 7(1) Following the expiration of 10 years after the date on which the right to do so arose, a person shall not bring an action or proceeding … (

g) to recover land. 19(1) The right to enter, distrain or bring an action to recover land or rent by a person arises at the time … (

b) of death where that person claims the estate or interest of the deceased person and that deceased person was, at the time of his or her death, the last person entitled to or in possession of that estate or interest; [ 8 ] While the limitations issue was raised, it is not necessary to address it in these circumstances because the title to the property is properly determined by application of the law regarding adverse possession. Adverse Possession [ 9 ] The applications judge reviewed the principles engaged where a claim is made based on adverse possession.

After summarizing the evidence, the judge made relevant findings of fact as set out above. [ 10 ] The Adverse Claimants submit that a claim for adverse possession must be assessed differently where the claimant is a member of the family as opposed to a stranger. They rely particularly on the decision in Russell v. Blundon , 2002 NFCA 20 , 210 Nfld. & P.E.I.R. 326 . In that case, after dismissing the appeal, “being essentially in agreement with the reasons of the trial judge”, Gushue J.A., for the majority, explained: [6] … The following, however, should be emphasized.

It is important to note that whether or not, in these circumstances, the respondent took any active interest in the property over the years is irrelevant. She was a co-owner of an undivided half-interest in the property . She was never excluded in any manner from the land by her brother.

Surely, a co-owner who is being excluded from her property by the other co-owner should at least be aware of the exclusion. … Indeed, it may be said that, generally, one co-owner cannot exclude another co-owner except in exceptional circumstances which certainly do not obtain here. (Emphasis added.) [ 11 ] As applied to this appeal, the Adverse Claimants were not co-owners of the property and, therefore, are not in the same position as the parties in Blundon .

While it may be easier, simply by virtue of circumstances, for a family member to prove adverse possession than it would be for a stranger, the same criteria must be established in either case; that is, possession must be open, notorious, exclusive and continuous or uninterrupted (see , for example, Earle Estate v. Finn , 2008 NLCA 14 , 274 Nfld. & P.E.I.R. 33 ). [ 12 ] The applications judge adopted this test noting that possession cannot be “equivocal, occasional or for special or temporary purposes” (paragraph 9, point 4).

In addition, he explained that the acts on which the adverse claimant relies must be “acts of possession and not of trespass”, and that the claimant “must show that he intended to exclude the owner and other people” (paragraph 9, points 8 and 9). [ 13 ] The applications judge concluded:

[92] I dismiss the adverse claim. I declare that the estate of Walter Prince, as represented by his administrator, Walter Fry, is the owner of the 0.770 ha of land described in its application to quiet the title to it. I further declare that Walter Prince extinguished any other interests in that property by using the land openly, continuously, notoriously and exclusively between 1967 and 1997, including his father, Alpheus Prince’s claim to the land or his brother, Harry Prince’s claim to the land. A certificate of title will issue to the Estate for the property subject only to the statutory exceptions and qualifications contained in

section 22 of the Quieting of Titles Act . [ 14 ] The applications judge reviewed and discussed the evidence, using examples and giving reasons, that led to his conclusion. The Adverse Claimants have not provided any basis on which this Court could conclude that the judge erred in stating and applying the relevant principles of law or in the factual determinations on which he relied. In the result, for the reasons stated by the applications judge, I would dismiss the appeal.

Costs [ 15 ] The applications judge ordered the Adverse Claimants to pay costs under column 3 of the scale of costs on the basis that there was “no reason to depart from the usual rule that costs follow the cause” (paragraph 93). I would make the same order on the appeal, with a small exception. [ 16 ] Both parties contend that the other should be penalized for failure to comply with the requirements set out in the Court of Appeal Rules regarding the timing of the filing of documents. As a general proposition, compliance with the Rules is expected, desirable and strongly encouraged, particularly to avoid delay.

That said, some flexibility is permitted, provided that any delay is reasonable and does not cause prejudice. [ 17 ] Here, the position taken by the administrator of Walter Prince’s estate, which resulted in the Adverse Claimants incurring some extra costs involving overtime work by staff, was unreasonable. Accordingly, I would deduct those extra costs from the costs of the appeal to be paid by the Adverse Claimants.

SUMMARY AND DISPOSITION [ 18 ] Regarding the quieting of title to the property, the Adverse Claimants have not established any basis on which to conclude that the applications judge erred in dismissing their application and ordering the issuance of a certificate of title to the estate of Walter Prince pursuant to the Quieting of Titles Act . [ 19 ] Accordingly, I would dismiss the appeal, with costs under column 3 of the scale of costs pursuant to the Court of Appeal Rules , less the costs set out in paragraph 17, above. Appeal dismissed .