NATHAN DUNFORD v. BARBARA DUNFORD, 2023 SKKB 232

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 232 Date: 2023 11 01 Docket: QBG-ES-00100-2015 Judicial Centre: Estevan, General Division BETWEEN: NATHAN DUNFORD AND BARBARA DUNFORD PLAINTIFFS - and - FRANK DUNFORD AND PAULETTE DUNFORD DEFENDANTS Appearing: James F. Trobert for the plaintiffs Frank Dunford and Paulette Dunford self-represented defendants JUDGMENT TOCHOR J. NOVEMBER 1, 2023 I. INTRODUCTION [ 1 ] Nathan and Barbara Dunford, the plaintiffs, own an acreage five miles north of Estevan, Saskatchewan. Their acreage is contained within a quarter

section of land owned by Nathan’s parents, the defendants, Frank and Paulette Dunford. Because the parties share the same surname, I will refer to them by their first names throughout these reasons. [ 2 ] Since obtaining title to the acreage in 2005, Nathan and Barbara made improvements to the acreage but they did not check to see if these improvements were on their property or on Frank’s and Paulette’s property.

[ 3 ] In 2013, a land boundary survey was commissioned which brought some surprising news: some of Nathan’s and Barbara’s improvements were either wholly or partially on Frank’s and Paulette’s property. [ 4 ] The parties attempted to resolve this but could not. Nathan and Barbara then filed a statement of claim seeking a variety of forms of relief, including an order allowing them to keep the land upon which the improvements were made and to pay compensation to Frank and Paulette. [ 5 ] Frank and Paulette disagree with such an order.

They want the improvements removed from their property and damages for trespass. [ 6 ] For the reasons that follow, I conclude Nathan and Barbara are entitled to an order pursuant to s. 2 (

b) of The Improvements under Mistake of Title Act , RSS 1978, c I-1 [ Act ] which permits them to retain the lands upon which the improvements were made and to pay compensation to Frank and Paulette. II. BRIEF BACKGROUND [ 7 ] Frank’s and Paulette’s quarter has been in their family for many years. They purchased the farm – originally owned by Frank’s parents – and built their house on this quarter in 1985. [ 8 ] When Nathan was in university and had a young family, Frank and Paulette suggested he build an acreage on part of their quarter.

However, in order to satisfy bank financing requirements for the building of a house, Nathan was required to have legal title to the land upon which the house was located. Therefore, Frank and Paulette subdivided a parcel of 2.22 acres [acreage] on their quarter so Nathan could take title to this parcel. In this way, Nathan was able to obtain financing and build a home on the acreage. [ 9 ] During this time, all parties agreed upon the general location of the acreage; however, there is no evidence that any of the parties referred to, or relied upon, a survey to set out the boundaries of this parcel.

Nathan describes the process of identifying the boundaries of the acreage with words to the effect that they just “eyeballed” it. [ 10 ] The home built by Nathan is within the legal boundaries of the acreage and is not in issue in this action. [ 11 ] However, over the ensuing years, Nathan and Barbara added other structures to the acreage. These included a large workshop with a concrete foundation, a bunkhouse for employees of Nathan’s family business with water and a septic line, and a go-kart track for their children. They also expanded the dugout and installed a pumphouse by the dugout.

I refer to these structures – except for the house Nathan and Barbara built – as the “improvements ”. [ 12 ] Throughout the years, Frank and Paulette knew about the improvements and they helped Nathan and Barbara make them. The parents were involved in discussions about where many of the improvements would be located, and they provided equipment and labour. They even paid for some of the improvements, for example, the workshop.

When the improvements were made, no one appears to have considered, or cared, whether they were on Nathan’s and Barbara’s property, or Frank’s and Paulette’s. [ 13 ] In 2013, the relationship between the parties changed. Nathan and Barbara decided to pursue a business opportunity in the Yukon and wanted to sell their acreage. Frank and Paulette disagreed with this decision and were upset. At this point, questions were raised for the first time about whether some of Nathan’s and Barbara’s improvements were on Frank’s and Paulette’s property.

These questions would, of course, impact the ability of Nathan and Barbara to sell their acreage. Therefore, at this point, a legal survey was commissioned. [ 14 ] The survey, completed in June 2013 and tendered as Exhibit P-8, established that everyone misunderstood the legal boundaries of the acreage.

All of the improvements (except the house that was built on the acreage) were either wholly or partially on Frank’s and Paulette’s property. [ 15 ] The plaintiffs, Nathan and Barbara, now seek an order pursuant to s. 2 of the Act permitting them to retain the land upon which the improvements were made and to provide compensation to Frank and Paulette for this additional land. They tendered into evidence a proposed survey to allow them to retain the land (Exhibit P-8).

Alternatively, they seek compensation from Frank and Paulette for the value of the improvements they made to their parents’ quarter. [ 16 ] The defendants, Frank and Paulette, submit they are the registered owners of the land upon which the improvements were made and, because of this, Nathan and Barbara are trespassers. Frank and Paulette argue they are entitled to damages for the trespass and that the improvements must be removed from their quarter. [ 17 ] For the reasons that follow, I conclude Nathan and Barbara are entitled to an order pursuant to s. 2 (

b) of the Act which permits them to retain the land upon which the improvements were made and to pay compensation to Frank and Paulette. [ 18 ] After identifying the applicable legal framework, I will address the issues required to determine if s. 2 (

b) of the Act applies. III. THE LEGAL FRAMEWORK [ 19 ] The starting point for identifying the legal framework, and for identifying the issues that must be determined, is found in s. 2 of Act . This

section states: 2 If a person has made lasting improvements on land, under the belief that the land is the person’s own, the person or the person’s assigns are: (

a) entitled to a lien on that land to the extent of the amount by which the value of the land is enhanced by the improvements; or

(

b) entitled or may be required to retain the land if the Court of Queen’s Bench is satisfied that the retention is just and appropriate in thecircumstances and, in that case, the court may direct that compensation be paid for the land retained. [20] There are two pre-requisites to obtaining relief under s. 2 of the Act. [21] The first pre-requisite regards the nature of improvements to the land.

A plaintiff must establish that “lastingimprovements” were made: Hill v King, 2014 SKQB 86 at paras 9-10, 440 Sask R 279 [Hill]; Limacher v Pickering, 2013 SKQB 396 atpara 31, 432 Sask R 78 [Limacher]; Nakrayko v Woloshyn (1996), (SK KB), 143 Sask R 285 (WL) (QB) at para 14[Nakrayko]. [22] As set out in Limacher and Hill, not every change made to a property constitutes a lasting improvement under the Act.The case law draws an important distinction between an improvement that is “lasting” and an improvement that simply adds to the valueof the land. A helpful illustration of this distinction is found in Nakrayko.

There, at para. 15, the court explained that the mistakenseeding and fertilizing of a canola crop, on land owned by another, is not a “lasting improvement” as required by the Act. [23] The second pre-requisite regards the plaintiff’s belief about ownership of the land upon which improvements are made.A plaintiff must establish they made improvements “under the belief that the land is the person’s own”: See Hill at para 9; Limacher atparas 31-32 and Nakrayko at para 14.

This was explained in Limacher at para 32: [32] … The belief that the improvement has been placed on the person’s own land must be either an honest belief or based on an honestmistake. (See: Olchowy v. McKay, (1996), (SK KB), 136 Sask.

R. 241; Vewcharuk, [(1999) (SKKB), 182 Sask R 154 (QL) (QB)] supra. [24] Further guidance on this pre-requisite is provided in Nakrayko where the court held at para. 14 that a plaintiff mustbelieve they have “at least an equitable title to the land”: 14 To bring oneself within the purview of the statute the plaintiff must establish (1) he has made lasting improvements on land; (2)under the belief that the land is his own. G.H.L. Fridman and J.G.

McLeod, Restitution (Toronto: Carswell, 1982) at p. 475 puts it asfollows: The scope of the legislation turns largely on the meaning of the phrase "under the belief that it is his own". The improver, in order to fallwithin the scope of the legislation, initially must establish that he believed that he had at least equitable title to the land at the time hemade the improvements ... Secondly, the plaintiff must establish that the mistaken belief was an honest or bona fide belief.

So long as the mistake is an honestmistake it would appear that it is not necessary to prove that it was founded on reasonable grounds although the reasonableness of themistake may be considered in determining whether or not the mistaken belief truly existed.

On the other hand, however, where theimprover is wilfully blind as to the true facts there can be no bona fide mistake if he proceeds to make the improvements. [Emphasis added] [25] The onus of establishing these two pre-requisites is on the party asserting them: Limacher at para 31. [26] If these statutory pre-requisites are established, the court must then turn to the next step and choose between tworemedies set out in s. 2 of the Act. [27] The first remedy set out in s. 2(

a) is an order which permits the plaintiff to have a lien on the land for the value of theimprovements. [28] The second remedy set out in s. 2(

b) is an order entitling the plaintiff to retain the land and pay compensation to thelandowner. This remedy can only be exercised if it is “just and appropriate in the circumstances”. [29] It is within this legal framework that I address the issues between the parties. IV. ISSUES TO BE DETERMINED [30] After reviewing the pleadings, the legal framework, and the evidence submitted at trial, I conclude there are three issuesto be determined in this case. These may be summarized as follows: 1. Did Nathan and Barbara make lasting improvements to the parents’ lands? 2.

Did Nathan and Barbara believe they had at least an equitable title to the land upon which they made improvements? 3. Are Nathan and Barbara entitled to a remedy under s. 2 of the Act? [31] After providing some observations on issues regarding the self-represented defendants and the documents they soughtto file, I address each of these three issues in turn. V. THE SELF-REPRESENTED DEFENDANTS

[ 32 ] I make two general background observations on issues regarding the self-represented defendants. The first observation briefly explains the assistance I attempted to provide to the defendants at the start of, and during, the trial. The second observation explains how I addressed some of the documents filed by Frank and Paulette after the trial.

Summary of Assistance [ 33 ] While Nathan and Barbara were represented by counsel at trial, Frank and Paulette were not. Frank and Paulette had counsel at earlier stages of the lawsuit, but their counsel withdrew from the record and Frank and Paulette chose to conduct the trial themselves. [ 34 ] At the start of the trial, I provided Frank and Paulette with a memorandum prepared by the court for the use of self- represented parties in a civil case. I provided two copies to Frank and Paulette, one copy to counsel for Nathan and Barbara, and one copy was filed as a court exhibit (Exhibit C-1).

I gave Frank and Paulette an opportunity to review the memorandum and to ask any questions they may have had about the court process. Throughout the trial, I also periodically gave them explanations of trial procedures and inquired if they had any questions. [ 35 ] Nathan and Barbara both testified, as well as a real estate appraiser in support of their case. Paulette briefly cross- examined both Nathan and Barbara, generally to confirm the boundary of Frank’s and Paulette’s property.

Nathan’s and Barbara’s counsel then tendered selected read-ins from the questioning of Frank pursuant to Rule 5-34(1) of The King’s Bench Rules . The plaintiffs’ case was then closed. [ 36 ] I then called upon Frank and Paulette to present their case. They advised they chose not to testify or to call witnesses. Instead, Paulette advised that, after considering the contents of the memorandum (Exhibit C-1), they chose to present their case by way of submissions only. When discussing this with Paulette, I reminded her that I only had the evidence called by Nathan and Barbara before me.

I also reminded them that I was only able to consider evidence that was properly tendered pursuant to the law and The King’s Bench Rules . [ 37 ] After hearing submissions from the parties, I reserved decision. Defendants’ Trial Brief [ 38 ] The second observation regards the binder filed by Frank and Paulette after the trial was concluded. The binder was entitled “Trial Brief” and contained several documents which I summarize as follows: 1. Defendants’ Trial Brief, including: (

a) Written submissions (

b) Proposed Parcel “B” (Proposal of Frank and Paulette) (

c) Emails alleging “child abuse” (

d) Handwritten notes of diesel fuel bill (

e) Health records relating to Frank Dunford (

f) Case authorities 2. Transcript of Questioning of Frank Dunford (entire transcript); 3. Transcript of Questioning of Nathan Dunford (entire transcript); 4. Excerpt of Consolidated Zoning Bylaw 5-2014 of Rural Municipality [R.M.] of Estevan No. 5, ss. 4.32 - 4.35; 5. Excerpt of Consolidated Zoning Bylaw 5-2014 of R.M. of Estevan No. 5, ss. 9.9 - 9.11; 6.

A copy of Exhibit P-8 [Proposed Plan of Subdivision] filed by Nathan and Barbara [ 39 ] Nathan’s and Barbara’s counsel objected to many of the documents filed by Frank and Paulette in this binder and I address below the admissibility of each of the defendants’ documents. [ 40 ] With respect to the Trial Brief and attachments, I accept the Trial Brief and the attached case authorities as the submissions of the defendants. I also accept the Proposed Parcel “B” as the proposal offered by the defendants if I were required to determine a remedy pursuant to s. 2 of the Act .

While there is no evidence as to how, or by whom, this proposal was created, I will treat this proposal as a submission by the defendants. [ 41 ] However, I conclude the attached emails alleging child abuse and the health records of Frank are not relevant and will not be considered. I also conclude there is no evidence with respect to the creation of the handwritten notes regarding the diesel fuel bill, and I will therefore not consider that. [ 42 ] With respect to the attached excerpts of the R.M. bylaws, I am entitled to take judicial notice of properly enacted bylaws

provided their provenance and accuracy are established.

However, even if I assume, without deciding, that the bylaws are proven, I am not able to consider these because there is no evidence as to whether, or how, they may be applicable to these circumstances. [ 43 ] With respect to the copy of Exhibit P-8, I will consider this attachment as admissible because it was previously entered into evidence by the plaintiffs at trial. [ 44 ] Finally, with respect to the transcripts of the questioning of Frank and Nathan, I conclude I am not able to consider either of the transcripts as evidence. [ 45 ] I cannot consider the transcript of Frank’s questioning because Frank and Paulette are only permitted to tender evidence of read-ins from the opposite party: see Rule 5-34(1) and (2); Yara Belle Plaine Inc. v Ingersoll-Rand Company , 2019 SKQB 90 at para 9 , 45 CPC (8 th ) 141 ; F.(C.D.) (Litigation guardian of) v Saskatchewan Rivers School Division No. 119 , 2002 SKQB 411 at para 6 , 226 Sask R 71 .

Frank and Paulette are not permitted, under this Rule, to tender the transcript of Frank’s questioning as evidence in support of their case. [ 46 ] As well, in these circumstances, I cannot consider the entire transcript of Nathan’s questioning. This would be unfair to Frank and Paulette because admitting into evidence the transcript of Nathan’s questioning would mean they effectively adopt the plaintiffs’ case – and this is not the result they intended.

Because they are self-represented, I want to ensure they do not unintentionally prejudice their case in a material and important way. [ 47 ] More importantly, however, I cannot engage in the exercise of reviewing the transcript of Nathan’s questioning and selecting parts of it that may assist Frank and Paulette and, at the same time, ignoring the parts that do not assist them. I cannot assume the role of Frank’s and Paulette’s advocate and make decisions about which parts of Nathan’s transcript will be helpful to their case and which parts will not.

A trial judge is not permitted to take on the role of advocate for a self-represented party, or to provide legal advice, or to direct the presentation of their case. That would be manifestly unfair to an opposing party. [ 48 ] A trial judge has a duty to offer adequate assistance to a self-represented litigant but, at the same time, has a duty to act as an impartial adjudicator. The need for a careful balancing of these duties is explained by Tholl J.A. in Fraser v Ksenych , 2022 SKCA 93 at para 27 : [27] Self-representation at trial creates a complex situation for trial judges.

They must provide adequate assistance to the self- represented person, while being cautious to never cross the line from that of impartial adjudicator into the realm of offering assistance in a manner that is unfair to the other party. A judge cannot offer legal advice. It is not for the judge to make the case for self-represented litigants or to take charge of their marshalling of evidence and arguments .

Instead, trial judges must help the self-represented party to understand the general nature of the issues in question and guide them through the procedures that are used at a trial to present evidence and arguments to address those issues. However, such assistance and guidance does not transform the judge into an advocate or a director of a self-represented party’s litigation.

That primary responsibility always remains with the litigant. [Emphasis added] [ 49 ] See also Bloomfield v Halfyard , 2020 MBCA 73 at para 9 ; Sydor v Keough , 2019 MBCA 119 at para 46 , reconsideration refused, 2020 MBCA 20 ; and Banilevic v Cairney , 2020 SKQB 25 at paras 19–29 . [ 50 ] I therefore do not admit into evidence the transcripts of the questioning of either Frank or Nathan. [ 51 ] In

summary, for the reasons explained above, I will consider the Trial Brief, the Proposed Parcel “B”, the case authorities, and the copy of Exhibit P-8. I will not admit into evidence the remaining attachments to Frank’s and Paulette’s filed documents. [ 52 ] Having addressed these preliminary points, I turn now to an analysis of the issues. VI. ANALYSIS OF THE ISSUES 1.

Did Nathan and Barbara make lasting improvements to the parents’ land? [ 53 ] The first issue to be addressed is whether the improvements made by Nathan and Barbara on Frank’s and Paulette’s land were lasting improvements. [ 54 ] This issue was not seriously contested at trial and there is no dispute as to the nature and character of the improvements. I accept the uncontradicted and unchallenged evidence given by Nathan at trial in all respects.

In addition, and in particular, I accept his evidence as to the nature and characteristics of the improvements made, and the purpose for which the improvements were made. [ 55 ] For the reasons that follow, I conclude that the four listed improvements were lasting, as required by s. 2 of the Act . [ 56 ] As mentioned above, it is agreed that the home built by Nathan is within the legal boundaries of the subdivided parcel and does not form part of the improvements in issue.

The water and septic lines for the house are also within the boundaries of the subdivided parcel and are not in issue. [ 57 ] The improvements that are in issue are shown in the Proposed Plan of Subdivision tendered by the plaintiffs (filed as Exhibit P-8). Nathan and Barbara filed this proposed plan as a plan for the boundaries of the acreage they seek to have ordered by the court under s. 2 of the Act . This plan shows the current legal boundaries of the acreage with a dashed line, and shows a proposed plan for boundaries , which encompass the improvements made, with a bold line.

Exhibit P-8 is a helpful illustration of what boundaries exist now, and what boundaries are sought by Nathan and Barbara.

[58] The improvements in issue are the following: (

i) the large workshop (partially on Frank’s and Paulette’s property); (ii) the bunkhouse for employees of Nathan’s business with water and septic lines (wholly on Frank’s and Paulette’s property); (iii) the go-kart track and garage for Nathan’s and Barbara’s children (partially on Frank’s and Paulette’s property); and (iv) the installation of a pumphouse and dock (wholly on Frank’s and Paulette’s property). [59] Below, I explain my conclusion that the four listed improvements are lasting improvements. (

i) the large workshop [60] About half of the large workshop, as illustrated in Exhibit P-8, is within the boundary of Nathan’s and Barbara’sacreage, and the other half is within Frank’s and Paulette’s property. [61] There is no dispute that the shop consisted of a newly built, wood frame structure that cost about $15,000 to purchaseand was then enhanced with spray foam insulation and lighting.

Nathan’s evidence, which I accept, indicates the total cost of the shopwas about $50,000 and that the shop would be destroyed if it had to be moved. [62] In these circumstances, I have no hesitation in concluding the construction of the shop was a lasting improvement asrequired by s. 2 of the Act. (ii) the bunkhouse (and water and septic lines) [63] The bunkhouse, along with the attached well and septic services, are wholly on the property of Frank and Paulette.These improvements are visible in Exhibit P-8. [64] Again, the evidence as to the nature of this improvement is not in dispute.

Nathan’s testimony about how, and for whatpurpose, this bunkhouse was built was not challenged or contradicted, and I accept his evidence. The bunkhouse was built for Nathan’sfamily business so employees would have housing accommodations. This was seen as necessary for the business to attract and maintainemployees at that particular time. A movable structure was built and water and septic services were installed. As well, a power line wastrenched in along with an internet service line.

A building permit from the R.M. was obtained for this construction. [65] Nathan testified the cost to build the bunkhouse was about $100,000. It was used for housing for his employees and healso testified that, at a later time when employees were not residing there, his stepdaughter also lived there. Further, he testified thefamily discussed the prospect of Paulette living in the bunkhouse at some point in time in the future if Frank’s health deteriorated.

Iaccept Nathan’s evidence and am satisfied this was a newly constructed building that added value to the land. [66] I also note the uncontradicted evidence that this bunkhouse was removed from Frank’s and Paulette’s property in 2021.Nathan testified that Frank and Paulette wanted the bunkhouse removed and he therefore sold it. However, whether I need to address thisspecific improvement in my final order will depend on if a remedy, and which remedy, is granted under s. 2 of the Act.

For this part ofthe analysis, I need only determine if the bunkhouse is a lasting improvement. [67] Although Nathan acknowledged the bunkhouse was intended to be temporary, I do not consider that acknowledgment toautomatically exclude a finding that the bunkhouse was a lasting improvement. The bunkhouse was equipped with water, septic, powerand internet services, and was used as housing for employees and a family member. It was used as a permanent structure.

In thesecircumstances, I conclude it was a lasting improvement as required by s. 2 of the Act. (iii) the go-kart track [68] The go-kart track and the garage which accompanies the track is also evident in Exhibit P-8. The garage is whollywithin Nathan’s and Barbara’s acreage, and only two small portions of the track are within the property of Frank and Paulette.Essentially, the track and garage – with small exceptions – are on Nathan’s and Barbara’s acreage. [69] Nathan testified the track was dug into the soil about three or four inches but he acknowledged it could easily beremoved.

However, as set out above, the fact that an improvement could be removed does not automatically prevent a conclusion that theimprovement was not lasting. [70] In Olchowy v McKay (1995), (SK KB), 136 Sask R 241 (WL) (QB) [Olchowy], McLellan J.acknowledged the seeding of a canola crop was, at best, temporary and therefore not a lasting improvement under the Act. However, healso observed that Mateychuk v Kuchernowski, (MB KB), [1930] 1 DLR 367 (Man KB) determined at page 368 thatpreparing farmland for cultivation by clearing trees was a lasting improvement.

In Olchowy, therefore, McLellan J. concluded that rockpicking was also a lasting improvement for which an improver should be compensated. [71] In these circumstances, given the nature and characteristics of the go-kart track, I conclude it is a permanent and lastingimprovement as defined in s. 2 of the Act.

(iv) the installation of with the pumphouse and dock [ 72 ] The pumphouse and dock are wholly outside the boundaries of Nathan’s and Barbara’s acreage and are on the property of Frank and Paulette. These improvements are also illustrated in Exhibit P-8. [ 73 ] Nathan testified he installed a pump near the dugout so as to draw water for the purposes of his business and, as well, for gardening. He stated he constructed the wood building around the pump, on a concrete slab, for the purpose of protecting the pump.

Nathan testified that Frank assisted with the construction of the pumphouse by using his tractor to lift up the roof joists. In the read-ins from Frank’s questioning, he acknowledges putting shingles on the pumphouse. Nathan testified the pumphouse is still in existence and that it would be difficult to move because of its concrete foundation. [ 74 ] In these circumstances, and in light of Nathan’s evidence, I conclude the installation of the pumphouse and the dock are lasting improvements as required by s. 2 of the Act . [ 75 ] In

summary, I conclude that the construction of the workshop, bunkhouse, go-kart track, and pumphouse (and dock) are lasting improvements as required by the Act . 2. Did Nathan and Barbara believe they had at least an equitable title to the land upon which they made improvements? [ 76 ] The second issue is whether Nathan and Barbara believed they had at least an equitable title to the land upon which the improvements were made. This is the articulation of the requirement set out in Nakrayko at para 14 . [ 77 ] For the reasons that follow, I conclude Nathan and Barbara had the requisite belief under s. 2 of the Act .

I find they believed they had at least an equitable title to the land upon which they made improvements. [ 78 ] First, Frank told both Nathan and Barbara, on numerous occasions, that he and Paulette intended to give the quarter to them and their sons. [ 79 ] For example, Nathan testified that when discussing where his acreage might be located on Frank’s and Paulette’s land, Frank told Nathan to “take as much land as you can” because it is “all going to be yours anyway someday”. [ 80 ] In another example, Nathan testified that when they were discussing the proposed location of the bunkhouse, no one was concerned whether the bunkhouse was on Nathan’s acreage or on Frank’s and Paulette’s property because he understood the land was going to be given to him and Barbara.

When asked how many times Frank expressed that intention, Nathan candidly replied that such expressions by Frank were “not daily”. However, Nathan stated Frank said this “numerous times”. Barbara’s testimony confirmed this. She testified that when the location of the bunkhouse was discussed, Frank said the location did not matter because the land “was going to Nathan and the boys anyway”. [ 81 ] In a further example, Nathan testified that when the parties were discussing the enlargement of the dugout, Frank said words to the effect that “someday, this land is going to be yours anyway”.

Frank also stated it was to Nathan’s advantage to make improvements to the dugout because if there was better access to water, the “land might be worth more”. [ 82 ] Nathan’s and Barbara’s testimony was not challenged or contradicted in any way. There is nothing in the evidence that suggests Frank did not express the intention, numerous times, to give that quarter to Nathan and Barbara. There is nothing in the evidence that Frank and Paulette communicated a different intention to Nathan and Barbara.

I accept Nathan’s and Barbara’s evidence and find that Frank and Paulette communicated their intention to give them the quarter at some point in the future. I also find this intention was communicated numerous times when the parties were discussing where and how improvements were to be made. Finally, I conclude Nathan and Barbara honestly, and reasonably, believed that Frank and Paulette intended to give them the land upon which the improvements were made.

This honest belief, I find, motivated them to make improvements even when no party had an accurate understanding of where the property boundaries were. [ 83 ] Second, Frank and Paulette had prior and contemporaneous knowledge of each improvement made by Nathan and Barbara. The parties discussed where Nathan’s house should be built, they discussed the location of the bunkhouse and the shop, and they discussed how, and in what way, the dugout should be expanded. As for the go-kart track, Frank appears to have been away when the location of the track was determined by Nathan.

While he apparently disagreed with the location ultimately chosen by Nathan, he did not express any objection to its construction on Nathan’s choice of location. [ 84 ] Third, Frank and Paulette had not only prior knowledge of the improvements made by Nathan and Barbara, their words and actions establish their consent to the improvements. There is no suggestion in the evidence they ever voiced objection or opposition to any improvement. In fact, the evidence establishes they assisted Nathan and Barbara, often quite generously. They gifted the land to Nathan that was needed for the acreage.

They paid for the workshop; Frank was going to buy a workshop for himself and then suggested to Nathan that they could get a better price if they purchased two workshops. He therefore paid for Nathan’s shop. Further, Frank’s equipment was used for trenching water and sewer lines for the bunkhouse, and for expanding the dugout. As well, Frank’s equipment was used to build the pumphouse. There are many examples in the evidence of Frank’s and Paulette’s generosity in assisting with the acreage and the improvements made by Nathan and Barbara.

The evidence makes it clear that Frank and Paulette were aware of, and consented to, each of the improvements made by Nathan and Barbara. In fact, the evidence establishes that Frank and Paulette not only supported but also encouraged the making of the improvements. [ 85 ] Within this evidentiary context, I find Nathan and Barbara honestly believed they had at least an equitable interest in the land upon which the improvements were made. In some respects, they honestly believed improvements such as the workshop, go-kart track and pumphouse were on their acreage.

In other respects, such as with the construction of the bunkhouse, they honestly believed that if the improvement was not on their acreage, they had an equitable interest in the land, as a result of Frank’s many statements that the land would someday be theirs.

[ 86 ] In these circumstances, and in light of my finding that Frank and Paulette explicitly consented to the improvements, I do not accept the argument that Nathan and Barbara are somehow liable in trespass. Nor do I accept the argument that Nathan and Barbara were willfully blind. I am satisfied both parties operated on a familial willingness to work together, and upon an honest misunderstanding of where the boundaries were between the acreage and Frank’s and Paulette’s quarter.

I am also satisfied that Nathan’s and Barbara’s belief that they had at least an equitable right to use the land was reasonable, largely because of Frank’s numerous statements that the land would someday be theirs. [ 87 ] In

summary, I find the second requirement set out in s. 2 of the Act has been established by Nathan and Barbara. 3. Are the plaintiffs entitled to a remedy under s. 2 of the Act ? [ 88 ] Having determined the plaintiffs have met the two requirements under s. 2 of the Act , I must now determine which remedy Nathan and Barbara are entitled to. The Act sets out only two remedies and therefore a choice must be made between the two specified options. This also requires consideration of what is just and appropriate in the circumstances. [ 89 ] After reviewing the evidence and the submissions of the parties, I conclude Nathan and Barbara are entitled, under s. 2 (

b) of the Act , to retain the land upon which they made improvements. I conclude the land to be retained shall be that set out in the Proposed Plan of Subdivision in Exhibit P-8. Further, I conclude Nathan and Barbara shall be required to pay compensation to Frank and Paulette for the land that is retained, in accordance with the per acre valuation of the land as set out in the evidence of the real estate appraiser, Ms. Lorna Pylychaty.

I conclude these orders are just and appropriate in these circumstances for the following reasons. [ 90 ] First, allowing Nathan and Barbara to retain the land upon which the improvements were made is a better option in these circumstances than making an order to compensate Frank and Paulette for the value of the improvements. Here, there is no evidentiary basis to determine the enhancement of value to the land caused by the improvements. [ 91 ] For example, there is no evidence of enhanced value because of the construction of the workshop, or the pumphouse and dugout.

There is no evidence of enhanced value, if any, as a result of the installation of water and sewer lines to the bunkhouse (which has since been removed from the property). Similarly, there is no evidence of enhanced value as a result of the construction of the garage and go-kart track. In short, there is no evidentiary basis to make an order that Nathan and Barbara have a lien on Frank’s and Paulette’s property for the enhancement of value, if any, to the land. The evidentiary vacuum on these key points prevents the option contained in s. 2 (

a) of the Act from being considered in a meaningful way. [ 92 ] As well, there is a similar absence of evidence with respect to the proposal put forward by Frank and Paulette in their Trial Brief. In that proposal they submit a smaller parcel of land could be subdivided and retained by Nathan and Barbara, if the court were to employ that option. However, even if I were to overlook any evidentiary issues with admitting that proposal into evidence, there is still an absence of evidence as to how compensation for that proposal could be calculated.

There is no indication of how many additional acres are contained in that proposal. Therefore, I am unable to consider that proposal because of the evidentiary vacuum surrounding its potential implementation. [ 93 ] Second, making an order pursuant to s. 2 (

b) of the Act appears to be the least disruptive or intrusive option for the parties. If this were ordered, Nathan and Barbara would have to pay for the land they wish to retain, but they would be entitled to remain on land they have occupied, and have paid taxes on, for a significant time. Proceeding under s. 2(

a) of the Act and requiring Nathan and Barbara to give up portions of their currently occupied land and require Frank and Paulette to pay an undeterminable amount of compensation would require further steps in the litigation. This matter could not be resolved on the basis of the evidence led at trial. [ 94 ] Importantly, as well, it is important to note Frank and Paulette will not suffer financial detriment if Nathan’s and Barbara’s Proposed Plan of Subdivision (Exhibit P-8) was ordered under s. 2 (

b) of the Act . Frank agreed he would not suffer such financial detriment in his questioning which was read in by the plaintiffs pursuant to Rule 5-34(1): Q. Okay. If the land in in Block B [Exhibit P-8] was to be somehow transferred to Barb and Nathan, it wouldn’t affect you detrimentally would it? Financially” A: No. (Questioning of Frank Dunford, page 122, lines 19-23) [ 95 ] This lack of financial detriment is supported by the evidence at trial that the land upon which the go-kart track was constructed had a high alkaline content and was not farmable.

As well, the absence of financial detriment is supported by the evidence that the land upon which the bunkhouse was built was not practically farmable as it only involved a half-acre. There is no suggestion in the evidence that allowing Nathan and Barbara to retain the land will cause prejudice to Frank and Paulette or cause some type of financial harm. [ 96 ] Third, there is an evidentiary basis for the option presented in Exhibit P-8. The evidence of the real estate appraiser Ms. Pylychaty is that the land upon which the improvements were made had a value at trial of between $5,000 and $6,000 per acre.

Further, the evidence contained in Exhibit P-8 establishes that the original subdivision gifted to Nathan and Barbara by Frank and Paulette (Parcel

A) was 2.22 acres, and the additional acres contained in the Proposed Plan of Subdivision set out in Exhibit P-8 (Parcel

B) is 3.26 acres. There is, therefore, an evidentiary pathway for the calculation of compensation due to Frank and Paulette. I accept Ms. Pylychaty’s value of $6,000 per acre for the additional 3.26 acres in Parcel B and this provides an evidentiary basis to conclude that compensation to Frank and Paulette in the sum of $19,560 is warranted if Nathan and Barbara are permitted to retain the land. [ 97 ] After considering the evidence and the parties’ submissions, I conclude an order under s. 2 (

b) of the Act , allowing Nathan and Barbara to retain the additional 3.26 acres and to pay compensation to Frank and Paulette in the sum of $19,560, is just and appropriate in these circumstances. For the reasons set out above, I conclude an order under s. 2 (

b) is in the best interests of both parties

and is in keeping with the aims and objectives of the Act . [ 98 ] I therefore allow the plaintiffs’ action and make the requested order under s. 2 (

b) of the Act . VII. COSTS [ 99 ] Rule 11-7 of The King’s Bench Rules states costs in proceedings must follow the outcome of the event; however, this Rule is still subject to the overall discretion regarding costs found in Rule 11-1(1) and is subject to the considerations listed in Rule 11- 1(4). [ 100 ] In assessing the relative success of the respective parties in this matter, the plaintiffs have been successful and are therefore generally entitled to their taxable costs.

However, this general entitlement is nonetheless subject to the court’s over-riding discretion under Rule 11-1(1). [ 101 ] In these circumstances, and given the relationship between the parties, I conclude my discretion is best exercised by making an order for a fixed amount of costs.

Taking into account the factors listed in Rule 11-1(4), in these circumstances, I conclude the plaintiffs shall have an order for costs in the total sum of $7,000, which includes all fees, disbursements, taxes and costs, including any costs for witness or expert witness fees. [ 102 ] I also conclude it best that the costs due to the plaintiffs shall be set off against the compensation owed to the defendants by the plaintiffs.

By making orders in this way, it is my intention to promote finality to these proceedings, and to limit the need for further steps or legal proceedings between members of this family. [ 103 ] In the end, it is my hope that the generosity of spirit and co-operation exhibited over many years by Frank and Paulette, and Nathan and Barbara, will return. VIII.

SUMMARY OF ORDERS [ 104 ] I therefore make the following orders: (

i) Pursuant to s. 2 (

b) of The Improvements under Mistake of Title Act , the plaintiffs Nathan and Barbara Dunford shall pay to the defendants Frank and Paulette Dunford, compensation in the sum of $12,560 within 60 days of the date of this judgment, or within such further time as may be allowed by the court; (ii) Upon making payment of the compensation to the defendants, pursuant to s. 2 (

b) of the Act , the plaintiffs Nathan and Barbara Dunford shall be permitted to retain the land identified as Parcel B in the Proposed Plan of Subdivision filed as Exhibit P-8 in the trial of this matter; (iii) The defendants Frank and Paulette Dunford shall execute, within a reasonable time, any documents reasonably required to facilitate or effect the transfer of the retained lands to Nathan and Barbara Dunford, including any land titles documents, agreements, or transfers of title, or bank documents; and (iv) Either of the parties has leave to contact the office of the Local Registrar to arrange a teleconference between the court and the parties if any issue arises out of the implementation of this order.

J. M. D. TOCHOR