2013 NBCA 62, 2013 NBCA 62

COURT OF APPEAL OF NEW BRUNSWICK 157-12-CA PETER HERBERT NORRIS APPELLANT PETER HERBERT NORRIS APPELANT - and - - et - LENNOX KINGMAN BLACK RESPONDENT LENNOX KINGMAN BLACK INTIMÉ - and - - et - THE REGISTRAR GENERAL OF LAND TITLES RESPONDENT LE REGISTRATEUR GÉNÉRAL DES TITRES DE BIENS-FONDS INTIMÉ Norris v. Black and The Registrar General of Land Titles, 2013 NBCA 62 Norris c.

Black et le registrateur général des titres de biens-fonds, 2013 NBCA 62 CORAM : The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Quigg CORAM : l’honorable juge Robertson l’honorable juge Bell l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: October 25, 2012 Appel d’une décision de la Cour du Banc de la Reine : le 25 octobre 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 346 Décision frappée d’appel : 2012 NBBR 346 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 10, 2013 Appel entendu : le 10 septembre 2013 Judgment rendered: October 31, 2013 Jugement rendu : le 31 octobre 2013 Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : l’honorable juge Robertson Concurred in by: The Honourable Justice Bell The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge Bell l’honorable juge Quigg Counsel at hearing: For the appellant: D. Andrew Rouse For the respondent Lennox Kingman Black: John D. Townsend, Q.C. For the respondent The Registrar General of Land Titles: David D.

Eidt Avocats à l’audience : pour l’appelant : D. Andrew Rouse pour l’intimé Lennox Kingman Black : John D. Townsend, c.r. pour l’intimé le registrateur général des titres de biens-fonds : David D. Eidt THE COURT The appeal is allowed for the limited purpose of striking the order made against a non-party, Mr. Welch. In all other respects, the appeal from judgment is dismissed. The respondent, Mr. Black, is entitled to costs of $3,500 payable by the appellant, Mr. Norris. No costs are ordered for or against the respondent, the Registrar General of Land Titles.

The judgment of the Court was delivered by ROBERTSON J.A. [ 1 ] In 1984, the respondent, Mr. Black, acquired a cottage property overlooking the waters of the St. Croix River. In 2010, the appellant, Mr. Norris, acquired a cottage on a contiguous lot, also fronting on the same river. Subsequently, Mr. Norris claimed the boundary of his property extended to an area that Mr. Black believed he owned. In fact, the “disputed area”

comprised more than half of Mr. Black’s total waterfront and the alleged boundary line ran perilously close to his cottage. A qualified surveyor, Mr. Welch, a non-party to the underlying proceeding, prepared and filed a subdivision plan under the Land Titles Act , S.N.B. 1981, c. L-1.1 (the Act ) at the request of Mr. Norris. That plan showed the disputed area to be within the limits of Mr. Norris’ property. In response, Mr. Black commenced proceedings against Mr. Norris, seeking both a declaration as to ownership and a permanent injunction restraining the latter from committing acts of trespass. Mr.

Black also joined the respondent, the Registrar General of Land Titles, seeking an order of “rectification” as provided for under s. 70 of the Act . [ 2 ] The trial of the action lasted four days and was preceded by several motions. In a decision embracing 189 pages and 566 paragraphs, and now reported at 2012 NBQB 346 , 399 N.B.R. (2d) 1, a judge of the Court of Queen’s Bench granted Mr. Black’s request for a declaration that he is the owner in fee simple of his waterfront property, including the disputed area. In addition, the trial judge ordered Mr.

Welch to prepare and file, at his own expense, an amended subdivision plan showing the disputed area to be part of Mr. Black’s property. Correlatively, the trial judge ordered the Registrar General of Land Titles, to rectify the title register, pursuant to s. 70 of the Act , thereby confirming Mr. Black’s ownership of the disputed area. Finally, the trial judge granted a permanent injunction restraining Mr. Norris and his agents from committing any further acts of trespass over the disputed area. [ 3 ] Following the trial, a hearing was held with respect to the matter of costs.

In reasons now reported at 2012 NBQB 387 , 403 N.B.R. (2d) 22, the trial judge concluded Mr. Black was not entitled to costs on a solicitor-client basis. But, the trial judge also concluded it was not a proper case for awarding costs in accordance with Tariff “A” set out in Rule 59 of the Rules of Court . Instead, having regard to the factors set out in Rule 59.02 and this Court’s decision in Doucet and Dauphinee v. Spielo Manufacturing Incorporated and Manship, 2011 NBCA 44 , 372 N.B.R.(2d) 1, the trial judge opted to award Mr. Black a “lump sum” of $50,000 (plus HST).

In fixing that amount, the trial judge took into consideration the complexity of the litigation, the importance of the issues, the length of the trial and the five contested motions that led up to the trial and for which costs had not been ordered. As expected, the trial judge also looked at the fairness and reasonableness of the effort expended, in terms of the legal fees Mr. Black incurred in pursuing the litigation. Those legal fees amounted to $132,255, plus disbursements of $23,493. Both amounts are subject to HST. By contrast, Mr. Norris asserted his legal fees were between $38,000 and $58,000. Finally, Mr.

Black’s request for costs against the Registrar General of Land Titles was denied, essentially for the reason that the Province of New Brunswick does not guarantee boundaries with respect to lands that had migrated from the “old” Registry System to the “new” Land Titles System. [ 4 ] Only Mr. Norris appealed the trial judge’s decisions. He raises three grounds of appeal. The trial judge erred: (1) in his determination of costs payable by Mr. Norris to Mr. Black; (2) in granting a permanent injunction against Mr. Norris; and (3) in making an order against a non-party (the surveyor). Mr.

Black did not cross-appeal the refusal to award him costs as against the Registrar General of Land Titles. At the hearing of the appeal, the Registrar took no position on the issues raised as between the other parties. Nor did the surveyor, Mr. Welch, seek party status on the appeal with a view to having the impugned order set aside. [ 5 ] With respect to the first ground of appeal, Mr. Norris originally challenged the trial judge’s decision not to apply the Tariff when fixing costs. In oral argument, Mr.

Norris moved away from that position by insisting that the trial judge erred in making a costs award that was “inordinately high”, having regard to certain comparative considerations, dealt with below. Despite Mr. Norris’ subtle change in argument with respect to the costs issue, the pivotal issue is whether the trial judge erred in making a lump sum award rather than resorting to the Tariff. [ 6 ] Rule 59.01(1) expressly states that costs are in the discretion of the court. Moreover, Rule 59.01(2)(

a) provides that nothing in the Rule shall be construed so as to interfere with the authority of the court to fix costs “with or without reference to a tariff”. The trial judge also quoted the following passage from Spielo : “[Rule 59.01] has been drafted in the broadest of terms to preserve the discretion of trial judges when it comes to the task of fixing costs, so long as that discretion is exercised in a principled manner” (para. 154).

Within that legal framework, the trial judge concluded: In the present case I am of the view that there is not a realistic quantifiable claim available on which to base a Tariff calculation and I am accordingly left with the remaining two options: solicitor-client costs and a lump sum award. [….] I am of the view that the only adequate way to determine the market value of the Disputed Area would be to have it assessed by a qualified New Brunswick real property appraiser. I do not feel it is realistic to obtain such an appraisal at this point in time.

As well, the unique circumstances in this case relating to the Disputed Area would render any such appraisal a major challenge to determine its fair market value. The tariff method of calculating costs is clearly not appropriate in this case. Accordingly, I reject the “amount involved” Tariff option in this case and instead will exercise my discretion to make a lump sum award. [paras. 7 and 16]

[7] Certainly, the trial judge offered cogent reasons for his decision not to apply the Tariff in thecircumstances of this case and there is nothing in those reasons warranting intervention by this Court. In brief, the decision to make alump sum award, instead of applying the Tariff, was exercised in a principled fashion, that is to say, for reasons that are as cogent as theyare persuasive. However, it should be noted that Rule 59.09(1)(

c) provides that in cases involving a “substantial non-monetary issue” the“amount involved” for purposes of applying the Tariff is to be based on an amount determined having regard to the complexity of theproceeding and the importance of the issue. Thus, it appears that the Tariff can still be applied even if the issue involves a non-quantifiable claim. That said, the discretion of the trial judge to abandon the Tariff altogether cannot be disputed. That discretion isexpressly preserved in Rule 59.01. [8] Moreover, there is another rationale to bolster the trial judge’s conclusion.

The typical caseinvolving the application of the Tariff involves a claim for damages based in either tort or contract law. In the present case, Mr. Blackmade no claim for a monetary amount. He sought only a declaration with respect to ownership of lands and, correlatively, adetermination with respect to a boundary line. As it should happen, the intrinsic value of the disputed area was much greater to Mr. Blackthan to Mr. Norris. The location of the boundary line significantly impacted on Mr. Black’s use and enjoyment of his cottage propertyregardless of the property’s value to potential third party purchasers.

On the other hand, because of the location of the disputed area,ownership of that land added nothing to Mr. Norris’ use and enjoyment of his cottage property. These considerations lead to theconclusion that not only is there is no “amount involved” but also that the issue at hand is non-quantifiable, monetarily speaking. [9] Mr. Norris now argues that the cost award of $50,000 is “inordinately high” so as to be“manifestly or plainly wrong”: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27; Potash Corp. ofSaskatchewan Inc. (c.o.b. PCS Cassidy Lake Co.) v.

DuPont Canada Inc., [2008] N.B.J. No. 15 (C.A.) (QL) at para. 3, citing Williams v.New Brunswick (1985), (NB CA), 66 N.B.R. 2d 10, [1985] N.B.J. No. 93 (C.A.) (QL) at para. 62. His argumentinvolves a comparison of the costs awarded in the present case with those generated in accordance with the Tariff and also costs awardedin earlier cases involving a boundary line dispute. [10] Mr. Norris seizes on the fact that to generate a costs award of $50,000 under the Tariff, usingScale 3, the amount involved would have to be fixed at $1.5 million. He then notes that that amount is nearly five times the amountwhich Mr.

Norris paid for his property ($300,000) and substantially more than the amount which Mr. Norris was prepared to accept ifMr. Black was interested in purchasing the former’s property ($650,000). Mr. Norris’ second argument is tied to the earlier case lawinvolving a boundary dispute and much lower costs awards. In Pond v. Hovey, 2009 NBQB 86, 343 N.B.R. (2d) 390, rev’d on othergrounds 2010 NBCA 2, 353 N.B.R. (2d) 388, costs of $2,625 were ordered following a one day trial. In McKinney v.

Tobias, 2006NBQB 290, 306 N.B.R. (2d) 282 the trial judge ordered costs of $2,500, with respect to a claim for adverse possession under the LandTitles system, following a two day trial. Based on the existence of the Tariff and the earlier jurisprudence, Mr. Norris contends that thereasonable expectation of the parties was that the costs award would be reflective of what had been ordered in the past. As noted above,the trial in this case lasted four days and was preceded by several contested motions. [11] The short answer to Mr.

Norris’ argument is that any comparison between what might have beenawarded under the Tariff and what the trial judge awarded as a lump sum is misplaced. The object of the lump sum award is to providethe successful party with partial indemnification that reflects the realities of the time and money expended in pursuing the litigation. Aswell, it is unwise to rely unduly upon earlier precedents for three reasons.

The circumstances surrounding the litigation and the factors tobe considered under Rule 59 are simply too diverse to postulate, for example, that costs awarded in one boundary line case shouldapproximate those in another, having regard to an isolated fact: the length of the trial. Further, it is unwise to rely blindly on trialdecisions that pre-date the more recent jurisprudence of this Court. Finally, it is just as convenient to argue that the costs award in each ofthe earlier cases is manifestly low and unreflective of the true cost of litigation today. [12] Mr.

Norris advances an alternative argument in support of his contention that the decision toaward Mr. Black costs, whether in accordance with the Tariff or as a lump sum, was infected by reversible error. Mr. Norris maintainsthat the trial judge failed to consider the “unproven allegations of fraud” aimed at both Mr. Norris and his mother and, consequently,even though Mr. Black was successful, he should not have been awarded costs. With respect, there is no merit to this argument. Nowherein the Amended Statement of Claim is there an allegation that Mr. Norris was culpable of fraudulent conduct.

In fact, the only referenceto “fraud” is found in that part of the pleading involving the Registrar General. Therein, Mr. Black asks for an order of rectificationunder ss. 17, 70 and 79 of the Act on the basis the registration of the Norris property “has been obtained by fraud and/or wrongful actand/or mistake on the part of Mr. Norris”. In effect, this portion of the Amended Statement of Claim is simply tracking the language of s.70(1)(

c) of the Act. This becomes evident when one turns to the trial judge’s reasons dealing with the issues of mistake and rectification.At paragraph 425, he notes that: “I find no evidence of fraud or wrongful act on the part of Mrs. Norris [Mr. Norris’s mother]. It wassimply a mistake.” Of course, Mrs. Norris was not a party to the action. However, it is the following passage that confirms that Mr.Black was not claiming a remedy for fraudulent conduct: Counsel for Mr. Black states that in all of Canada the language of Sections 70 and 71 of the Land Titles Act appears to be unique to NewBrunswick.

In his amended statement of claim Mr. Black says that, “The registration of the Norris property has been obtained by fraud

and/or wrongful act and/or mistake on the part of Mr. Norris and/or Mrs. Norris, to the prejudice of Mr. Black, and it would be unjust notto rectify the title register accordingly.” In his written submission counsel for Mr. Black refers to errors saying that Mr. Black is entitledto rectification on the basis of paragraph 70(1)(

c) of the Land Titles Act as the registration of Lot 10-1 would not have occurred had it notbeen for Mr. Welch's “surveying errors” and Mrs. Norris' “mistake” in signing the Form 2 affidavit. In other words, counsel for Mr.Black is arguing “mistake” and not fraud and/or wrongful act as stated in his statement of claim. The words “obtained by fraud” and/or“wrongful act” and/or “mistake” were tracked from section 70(1)(

c) of the Land Titles Act but only “mistake” was relied upon at the trialof this action. Counsel for Mr. Black asserts that Mrs. Norris' mistake ultimately resulted in Mr. Norris becoming the registered owner ofthe Disputed Area. I agree. In Chowood, Lawrence L.J. stated, “I see no reason to limit the word “mistake” to any particular kind ofmistake. The Court must determine in every case whether there has been a mistake in the registration of the title, and if so whetherjustice requires that the register should be rectified. In my opinion, I find that there has been a mistake by Mr.

Welch with respect to theerroneous inclusion on the Brenda T. Norris Subdivision Plan of the Disputed Area as being part of Lot 10-1 and the obvious mistakecontained in Mrs. Norris' Form B affidavit. [para. 555] [13] Furthermore, if one turns to the trial transcript it is evident that it was Mr. Norris’ counsel attrial (who is not counsel on appeal) who raised the issue of fraud with Mr. Black on cross-examination. At one point counsel asks: “Now,besides Mrs. Norris committing this fraud, was my client, Peter Norris, involved in the fraud in any way, shape or form?” The nextquestion posed to Mr.

Black is: “Well, I want you to tell me about your claim. You’ve alleged the fraud, you’ve put [Mr. Norris’] namein that paragraph. Was he involved with the fraud?” At this juncture, counsel for Mr. Black properly raises an objection on the basis thatMr. Norris’ counsel was “taking the pleading out of context”. Having regard to the totality of the evidence, the allegation of unprovenfraud is mischievous once it is recognized the plaintiff neither pled nor argued fraud. [14] The next issue is whether the trial judge erred in granting Mr. Black a permanent injunction,restraining Mr.

Norris and his agents from committing acts of trespass with respect to the disputed area. Mr. Norris argues that at no timedid he wrongfully interfere with Mr. Black’s proprietary rights and there is no evidence to support the allegation that there are reasonablegrounds to believe that Mr. Norris would interfere with those rights in future. In brief, Mr. Norris contends that Mr. Black failed toadduce evidence of wrongful acts in the past and cogent evidence of an intention on the part of Mr. Norris to do so in future: Pride ofDerby and Derbyshire Angling Association Ltd. v.

British Celanese Ltd., [1953] Ch. 149; OH Ranch Ltd. v. Patton, [1996] A.J. No. 795(C.A.) (QL) and Irving Pulp & Paper Ltd. v. McBrine et al. (1973), (NB KB), 9 N.B.R. (2d) 194 at 198 (S.C. (Q.B.Div.)), [1973] N.B.J. No. 206 (QL). [15] The evidence at trial does not support Mr. Norris’ argument. The trial judge concluded Mr.Norris had attempted to exercise control over the disputed area by having Mr. Welch identify it on a subdivision plan of the Norrisproperty. At paragraph 12 of the decision, the trial judge refers to Mr. Norris’ threats to take “active ownership” of the disputed area.

Iagree with counsel for Mr. Black that these factors bring this case within the test set out by this Court in Kinsella v.

New BrunswickPower Distribution and Customer Service Corporation et al., 2013 NBCA 25, 402 N.B.R. (2d) 323 (quoting from Pride of Derby at p.181): It is, I think, well settled that if A proves his proprietary rights are being wrongfully interfered with by B, and that B intends to continuehis wrong, then A is prima facie entitled to an injunction, and he will be deprived of that remedy only if special circumstances exist,including the circumstance that damages are an adequate remedy for the wrong that he has suffered. [para. 16] [16] As noted by Green J.A. in Kinsella, at para. 19, the trial judge is entitled to draw reasonableinferences from the evidence.

In my view, the inference drawn is not infected with palpable and overriding error. Therefore, this groundof appeal must fail. [17] The final ground of appeal is that the trial judge erred in making an order against a non-party,Mr. Welch, the surveyor retained by Mr. Norris to prepare and file a subdivision plan that showed the disputed area as belonging to Mr.Norris: see Stamper v. Finnigan (1987), (NB CA), 81 N.B.R. (2d) 213, [1987] N.B.J. No. 508 (C.A.) (QL); see alsoP.H. v P.H., 2008 NBCA 17, 328 N.B.R. (2d) 245 and New Brunswick (Legal Aid Services Commission) v. Comeau, 2009 NBCA 78,351 N.B.R. (2d) 269.

To date, Mr. Welch has not complied with the order to prepare and file an amended subdivision plan at his ownexpense. [18] As a general rule, it is well-accepted that a judgment or order binds only a person who was aparty to the proceeding in which the judgment or order was given (see Linda S. Abrams & Kevin P. McGuinness, Canadian CivilProcedure Law, 2nd ed. (Markam, Ont: LexisNexis, 2010) at §19.203). At the same time, Rule 61.11(1) of the Rules of Court providesthat a judgment made for the benefit of a non-party may be enforced by that person as if that person were a party.

Correlatively, Rule61.11(2) states that a judgment may be enforced against a person who is a non-party in the same manner as if the person were a party.

[ 19 ] Mr. Norris asks that the order against Mr. Welch be set aside. This leads one to ask whether this Court can grant the relief sought. Mr. Norris admits that he has no authority to act on behalf of Mr. Welch on the appeal, nor did Mr. Welch seek to be added as a party to this appeal for the purpose of having the order against him set aside. One can only speculate whether Mr. Welch was prepared to challenge the order should contempt proceedings be brought against him for non-compliance. Fortunately, this Court is able to side-step this issue because Mr.

Black consents to the appeal being allowed for the limited purpose of striking the order made against Mr. Welch. Apparently, the other relief granted at trial is sufficient for the purposes of confirming Mr. Black’s title to the disputed area. [ 20 ] With the consent of the respondent, I would allow the appeal for the limited purpose of striking the order made against Mr. Welch. In all other respects, the appeal from judgment is dismissed. The respondent, Mr. Black, is entitled to costs of $3,500 payable by the appellant, Mr. Norris.

No costs are ordered for or against the respondent, the Registrar General of Land Titles. ____________________________________ J.T. ROBERTSON, J.A. WE CONCUR: ___________________________________ B. RICHARD BELL, J.A. ____________________________________ KATHLEEN A. QUIGG, J.A.