Re Dyer Estate, 2011 NLCA 81

Date: 20111219 Docket: 11/04 Citation: Re Dyer Estate, 2011 NLCA 81 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : THE ESTATE OF JOHN DYER, SR. AND THE ESTATE OF NORA DYER By their Administrator d.b.n. , JOHN DYER APPELLANTS AND : THE ESTATE AND EFFECTS OF PATRICK JOSEPH DYER by its Administratrixes, DOLORES HARVEY and MICHELLE DYER RESPONDENTS Coram: Rowe, White and Hoegg, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 200601T0936 Appeal Heard: October 19, 2011 Judgment Rendered: December 19, 2011 Reasons for Judgment by White, J.A.

Concurred in by Rowe and Hoegg, JJ.A. Counsel for the Appellants: F. Richard Gosse Counsel for the Respondent: No appearance

White, J.A.: [ 1 ] This appeal is about whether the Appellants, who were adverse claimants in a quieting of titles application, should have been granted a certificate of title for a four-acre parcel of land at Snow’s Lane (the “Four Acres”) in St. John’s, NL under the Quieting of Titles Act , R.S.N.L. 1990, c. Q-3 (the “ Act ”). For the reasons that follow, I have concluded the trial judge was correct not to grant a certificate. BACKGROUND [ 2 ] The Four Acres are situated in the northeast corner of a larger, 32 acre, parcel of land. For convenience, I will refer to the 32 acre parcel as the “Land”.

It is generally bounded on the south by Snow’s Lane, on the east by the boundary between an old path called Vincent’s Road, on the north by part of the Stavanger Drive–Clovelly Trails Urban Development, and on the west by land owned by the Newfoundland Light and Power Company. Some portions are wooded. There is a stream, some meadows, and a power line. [ 3 ] The Land was owned in the late nineteenth century by two brothers, Stephen Dyer and Patrick Dyer, Sr. For many years much of it was used as a dairy farm by Patrick Dyer, Sr.

Over the years, at various times, the brothers and their descendants lived on the Land, grew vegetables on it, chopped wood on it, and fenced it. The younger generations have not used the Land as actively, but have not abandoned it. [ 4 ] The history of ownership of the Land has not been well documented. That history became significant on February 6, 2006, when the estate of Patrick Dyer Sr.’s son, Patrick Joseph Dyer, applied under the Act for a certificate of title for the Land.

Various adverse claims were filed, but the only one that was pursued was that of the estate of Stephen Dyer’s son, John Dyer Sr., and the estate of his wife Nora. [ 5 ] The application was case managed, and three significant case management orders were issued. On May 19, 2006, it was ordered that the originating application should be treated as a statement of claim, and the adverse claims as statements of defence. On June 22, 2006, it was ordered that all present and future claims to the Land be subject to case management.

On October 12, 2006, it was ordered that the Appellants file “the evidentiary basis for [the] claim and counter-claim of John Dyer” by December 5, 2006. [ 6 ] In accordance with these orders, the estates of John Dyer, Sr. and Nora Dyer filed a Counterclaim on December 1, 2006. [ 7 ] The trial judge found on a balance of probabilities that most of the Land, some twenty-eight acres, had been occupied notoriously, continuously, and exclusively by Patrick Joseph Dyer and his descendants.

He granted the estate of Patrick Joseph Dyer a certificate of title for this twenty-eight acre area. [ 8 ] The remainder of the Land is the Four Acres, where John Dyer, Sr. and Nora Dyer had their woodlot and garden. The trial judge found on a balance of probabilities that the Four Acres had been occupied notoriously, continuously, and exclusively by John Dyer, Sr. and Nora Dyer. However, he did not grant a certificate of title to their estates because he found that he had no jurisdiction to do so because the Appellants had not filed a valid petition.

ISSUE [ 9 ] The only issue is whether the trial judge erred in law by concluding that he had no jurisdiction to grant a certificate of title under the Act and, if so, whether a certificate of title should be issued. STANDARD OF REVIEW [ 10 ] The scope of the trial judge’s jurisdiction under the Act is a question of law and must be evaluated on a standard of correctness. ANALYSIS [ 11 ] A person who wants to have his or her title to land investigated and declared under the Act must file (1) a petition, as required by

section 5 , and (2) various particulars, as required by sections 6 –9. These requirements are designed to provide enough evidence to satisfy the court that it would be appropriate to make an order in rem that binds third parties. [ 12 ] If another person has a conflicting interest in the land, he or she has two options.

The first option is to file a counter-petition, as allowed by subsection 3(2): Another person who claims an estate or interest in land may apply for an investigation, ascertainment and declaration, but it shall be in the discretion of the judge before whom the proceedings are taken to grant or refuse the application, and that discretion may be invoked and exercised at any stage of the proceedings, and the decision of the judge in exercising that discretion shall be subject to appeal. [ 13 ] Like an originating petition, a counter-petition requires both a

section 5 petition and the sections 6–9 particulars. These requirements can make counter-petitions costly and inconvenient. [ 14 ] The other way to oppose a petition is by filing an adverse claim under subsection 17(1). An adverse claimant is not required to file the

section 6 particulars, which are meant to provide enough evidence for the court to make an order in rem . Rather, an adverse claimant can file as much, or as little, information as he or she determines is necessary to defeat the petition. [ 15 ] The advantages of flexibility and economy come with a corresponding disadvantage. Adverse claimants are exempt from the requirement of presenting enough information to justify a certificate of title, but for that very reason they cannot get such an order. As Kent, J. said in In re Coleman (1934), 13 Nfld.

L.R. 149 (S.C. en banc ) at p. 156: In dealing with adverse claims … the Court has to consider them only in so far as they may affect the claim of the petitioner to the certificate and not with a view of deciding the rights of the opponent. In other words the only question the Court has to consider is

whether or not the certificate of title sought for by the petitioner should be granted to him or not. [16] The Coleman principle emerges from a plain reading of the adverse claim provisions of the Act and has been repeatedlyendorsed and applied by the courts in this province: see Re Hancock (1982), 38 Nfld. & P.E.I.R. 38 (NLTD.); Re Aucoin (1982), 38 Nfld.& P.E.I.R. 328 (NLTD.); Rousselle et al., Re (2001), (NL SC), 208 Nfld. & P.E.I.R. 42 (NLTD); Nuport HoldingsLtd., Re, 2003 NLSCTD 63 , 2003 NLTD 63, 224 Nfld. & P.E.I.R. 254; and George v.

George, 2010 NLTD 64, 296 Nfld. &P.E.I.R. 199. [17] The Coleman principle does not apply to counter-petitions under subsection 3(2). A valid counter-petition can lead tocertification of title. - Did the Appellants file a petition? [18] The Appellants refer repeatedly to the power of the court to certify title based on a “counterclaim”. [19] The term “counterclaim” is alien to the scheme of the Act. Two kinds of litigants appear in proceedings under the Act:petitioners and adverse claimants.

The Appellants have not escaped this dichotomy by drafting pleadings using a different vocabulary.Their pleadings are in essence either a petition or an adverse claim. [20] The Appellants’ pleadings do not comply with the requirements for a petition in several respects. 1. Requirement: The petitioner must file a petition in a specified form (section 5 of the Act). Deficiency: The Appellants have filed a counterclaim in a different form. 2. Requirement: The petitioner must file an abstract of title certified by the Registrar of Deeds (subsection 6(c)).

Deficiency: The Appellants have filed a report by a private title searcher and, no exemption from filing a Registrar’s abstract was granted. 3. Requirement: The petitioner must attest to certain propositions in an affidavit (section 7). Deficiency: The Appellants’ affidavit does not distinctly attest:

(1) That there are no encumbrances or charges other than those listed (subsection 7(1));

(2) That the deeds and evidences that the petitioner offers are the only deeds and evidences of title relating to the land in thepetitioner’s possession or power (subsection 7(1));

(3) Whether anyone is in possession of the land (subsection 7(2)) or

(4) That the affidavits and papers fully disclose all facts material to the title (subsection 7(2)). 4. Requirement: The petitioner’s lawyer must attest that he or she believes that the Appellants’ affidavit is true (section 8). Deficiency: The solicitor’s affidavit does not distinctly attest that he believes that the Appellants’ affidavit is true. 5. Requirement: The petitioner must produce satisfactory evidence that taxes have been paid on the land (section 9).

Deficiency: No evidence has been produced. [21] The Appellants’ pleadings can only be treated as a petition if there is some basis for overlooking these deficiencies. TheAppellants have suggested two possible bases: the case management orders and, broadly speaking, the interests of justice. - Do the case management orders cure the deficiencies? [22] The Appellants suggest that the case management orders authorized them to file a counterclaim instead of a petition. I cannotaccept this submission for two reasons. [23] First, none of the case management orders dispensed with any of the requirements of the Act.

They might possibly be construedas allowing a petition to be filed in the form of a counterclaim rather than as a petition, but they cannot cure any of the other deficienciesin the Appellants’ petition. [24] Second, the case management orders could not have dispensed with the requirements of the Act even if they had purported todo so. Under

section 40 of the Act, the Judicature Act, R.S.N.L. 1990, c. J-4 and the Rules made under it apply only “unless whereotherwise provided”. What the Act does provide, the Rules do not provide a basis for disregarding. - Do the deficiencies affect the substantial justice of the proceedings? [25] The Appellants also argue that the counterclaim should be treated as a petition to conserve judicial resources and to avoidinconsistent results. This argument has a statutory basis in

section 39 of the Act: A petition, order, affidavit, certificate, registration or other proceeding shall not be invalid because of an informality or technicalirregularity, or of a mistake not affecting the substantial justice of the proceeding. [26] This provision appears to contemplate a distinction between “an informality or technical irregularity”, which is cured regardless

of whether it “affect[s] the substantial justice of the proceedings”, and a “mistake”, which can only be cured if it does not. Perhaps there is no distinction, as any error significant enough to affect the substantial justice of the proceedings might be too significant to be an informality or technical irregularity. [ 27 ] In light of the view I take of the matter, I do not need to address these questions. At least some of the deficiencies are “mistake[s]”, for instance, the failure to attest that all material facts have been disclosed.

Such deficiencies affect the substantial justice of the proceedings. - Do the deficiencies cause prejudice? [ 28 ] The Act is designed to deal with parcels of real estate like the Land that have passed for many years from person to person in a haphazard, poorly documented fashion. Such parcels of real estate often have been the subject of rounds of casual conveyances, inheritances, and adverse possessions.

They raise peculiar difficulties. [ 29 ] In a modern system of land transactions, acts that establish title (like registering a deed from the registered owner) establish it, at least prima facie , against all the world. In a quieting of titles application, this is not so: many of the acts relied on establish title only against a particular individual. [ 30 ] In this case, the true owner of the Four Acres could be able to prove his or her claim only against the Appellants. The Appellants or one of their ancestors might have had a spouse who earned a constructive trust interest in the Four Acres.

They might have transferred or mortgaged it without registering a deed. They might have received permission to occupy it from a prior owner, precluding any adverse possession claim. Whatever the reason, the true owner might have examined the Appellants’ pleadings, concluded that they were not a petition, and waited for the Appellants to defeat the Respondents’ claim. [ 31 ] Under the Act , ambiguity about whether a pleading is a conforming petition or not “affect[s] the substantial justice of the proceedings”.

Persons who have an interest in the property have a right to know, not only that a petition has been filed, but also the identity of the petitioner. The deficiencies in the Appellants’ pleadings, starting with the failure to file a petition in the prescribed form, make it ambiguous whether they are a counter-petition or an adverse claim. For that reason alone, I would conclude that they should not be cured under

section 39 . [ 32 ] Some of the deficiencies are also prejudicial in their own right. In this case, the Appellants did not attest that there are no encumbrances or charges other than those listed, that the deeds and evidences that the Appellants offer are the only deeds and evidences of title relating to the land in the Appellants’ possession or power, and that the affidavits and papers fully disclose all facts material to the title. [ 33 ] Those requirements are not mere formalities.

In the tangled history of the Land, it would not be surprising if the true owners were unaware that they had an interest in the Land. It could be that the only people with evidence of such ownership are the Appellants. Before issuing a certificate of title, the court must be satisfied that the Appellants have put forward all the evidence they possess and all the material facts they know. [ 34 ] When an affidavit omits statements that are specifically required by the Act , it is possible that those statements were omitted because it was not possible to truthfully state them.

In this case, if any of the omitted statements could not be stated as true, it would “[affect] the substantial justice of the proceedings”. - Judicial Economy and Inconsistent Results [ 35 ] The Appellants suggest that requiring a fresh petition would be a poor use of scarce judicial resources and that it might lead to inconsistent results. I cannot accept either of those arguments. [ 36 ] Judicial economy is a good reason for an efficient procedure that is also fair. It is not a good reason for adopting an unfair procedure, however efficient.

That policy is reflected in s. 39 , which does not allow a court to overlook a mistake if it “affect[s] the substantial justice of the proceedings”. [ 37 ] The problem of inconsistent results is already adequately addressed by issue estoppel. As between the Appellants and the Respondents, it has been decided on a balance of probabilities that the Appellants have a better title than the Respondents to the Four Acres.

That issue cannot be relitigated on a future petition. [ 38 ] If another party comes forward with a different claim, the doctrine of issue estoppel will not prevent the court from accepting that claim. But that is because the results will not be inconsistent.

It is perfectly consistent for the court to say today on a balance of probabilities that the Appellants have a better title than the Respondents to the Four Acres and to say in the future on a balance of probabilities that someone else has a better title than the Appellants. [ 39 ] Neither judicial economy nor avoidance of inconsistent results provides any basis for overlooking the prejudicial consequences of the Appellants’ mistakes. COSTS [ 40 ] The Appellants have not succeeded and the Respondents have not appeared. I would make no order for costs. CONCLUSION [ 41 ] I would dismiss the appeal.

____________________ C.W. White, J.A. I concur: ______________________ M. Rowe, J.A. I concur: ______________________ L.R. Hoegg, J.A.